Canon Law in the “Century of the Individual”: Revolution and Continuity

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Bermans Law and Revolution

A good example of this myopic view appears in Harold J. Bermans influential Law and Revolution.41 Echoing the consensus against Sohm,42 Berman proclaimed the introduction of scholastic jurisprudence in the twelfth century a revolutionary moment in the history of western thought, indeed the prototype of Western Science.43 In the course of the twelfth century, natural law triumphed over positive law and custom; the relativity of legal rules became established; legal reasoning and process began to assume forms recognizable to modern audiences.44 Reviews of Bermans work have noted errors in fact and over-reliance on classic scholarly studies without reference to more recent works.45 Some have, anticipating the thesis of this paper, questioned the utility of posing the construct of revolution in the first place.46

Most striking is how both Berman and his readers have agreed on the twelfth century as a moment of legal revolution. Their confidence in this proclamation of the century as a definitive breaking point with earlier legal tradition is no less certain than Sohms. To Berman and his supporters, the rediscovery of the Digest in the late eleventh century led inexorably to the scholastic revolution of law--both canon and civil--in the schools.47 That important changes did occur in the legal culture of the Church between 1100 and 1200 is undeniable; what Berman overlooked (like Sohm) was the continuity of older legal culture. Instead of making a difference in the twelfth century--a difference based on the assumption that law now resided only in the schools with their dialectically trained teachers and lawyers, we should discern a distinction: the monasteries, including the new religious orders, were able to benefit from both Gratian and his predecessors. This monastic culture of canon law, overlooked by those searching for turning points and revolutions deserves closer examination.

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