The Church and modern law.

Harold Berman’s ‘Law and Revolution: The Formation of the Western Legal Tradition’, clearly credits the medieval Church for building the foundations and structures of Western secular law.  From the time of Constantine to the 11^th century, the legal constructs of church and state were intermingled.  There was no clear separation between the ecclesiastical and the secular.

This changed in the 11^th century with Pope Gregory and the ‘Gregorian’ reforms.  Pope Gregory identified that a King was a lay person and had no power to interfere with church affairs including appointing bishops or priests.  The boundaries between church and state were clarified.  Out of this division, based on a common foundation, arose separate legal edifices.

Church law possessed the most coherent body of legal codes in the world, much of it based on the 6^th century Byzantine emperor Justinian and his ‘codex’.  From the 5^th to 11^th centuries however, church law could not be termed a systematic and comprehensive legal code.  It was instead a set of scattered commentaries, Biblical references, various exhortations, papal demands and it was regional in nature. 

Over time, church canon law was produced to regulate ecclesiastical affairs and this in turn became the model for secular laws.  Western church canon law became systematised after the Gregorian reforms in the 12^th and 13^th centuries. Prior to this creation of canon law in the high middle ages, legal codes per se did not exist in a coherent or logical manner in Europe.  In most areas law was intimately linked with custom and even pagan practices (eg trials by fire or water). 

By the 12^th century canon law was taking shape.  The monk Gratian produced ‘A Concordance of Discordant Canons’, written around 1140.  This was the first systematic legal code in Western Europe.  It was an enormous body of work.  Gratian’s work was premised on reason and conscience, along with natural law and God-granted rights.  These principles allowed a coherent legal structure to be shaped.

From Gratian and succeeding works, all aspects of society came under canon laws.  Property, marriage, inheritance, rational trials, the discontinuance of pagan rites such as trial of ordeals by fire or water, the development of equality before the law, protection given to the poor and dispossessed, can be found in Gratian’s work.  In essence the barbaric ‘law codes’ of Western Europe were replaced by canon law based on principles and reason.  Universities which began in the 12^th century had departments dedicated to the law and these scholars began to construct national legal codes based on canon law.

Canon lawyers were produced who used the canons to determine the criminality of a particular act, using legal principles still in use today.  These lawyers were concerned with the intent of the act, various kinds of intent, and with moral implications of acts.  Extenuating factors in criminal acts were also developed, including insanity and intoxication.  Accidental and deliberate actions were separated.  Contract law was also developed which is still with us today, enshrining and enforcing the legality of contractual consent. 

Criminal law was another area of innovation during the 12^th and 13^th centuries within canon law and served as the basis for the secular equivalent.  These were also deeply impacted by Saint Anselm’s 11^th century exposition Cur Deux Homo, where he explains the rationality in the mediation of the God-man ending in atonement for our sins through the crucifixion.  This doctrine of atonement rested on the concept that a violation of the law was an offense against justice and the moral itself.  Punishment was necessary to restore both.  Atonement is a central feature of all modern legal systems.

There is no doubt that the entire corpus of Western law is based on the medieval canon law.  Almost every area of modern jurisprudence can trace its lineage to the canon law of the 12^th century.  The very foundation of Western law in its philosophy, is entirely Christian and Catholic including the principles of law, punishment, atonement, forgiveness, morality and justice.