Fjordman: Medieval law and European civilization

05 June 2011


As I have noted before, Toby E. Huff in 2010 published his book Intellectual Curiosity and the Scientific Revolution: A Global Perspective, which inspired this essay. He was also the author of the modern classic The Rise of Early Modern Science: Islam, China and the West.

Although some scholars prefer to trace Europe’s defining moment back to the ancient Greeks of the Axial Age in 800-300 BC, Huff believes that a transformative event took place in Western Europe during the twelfth and thirteenth centuries AD, with an extraordinary medieval fusion between Greek philosophy, Roman law and Christian theology. Other major civilizations such as China, India and the Islamic world lagged behind with respect to scientific innovation or the creation of representative political institutions like parliaments.

The theory of corporate existence, as understood by Roman civil law and refashioned by the medieval Canonists, granted legal autonomy to entities such as cities and towns, universities, charitable organizations and merchant guilds as well as professional groups represented by surgeons and physicians. All of these entities were enabled to create their own rules and regulations and, in the case of cities, establish their own courts of law. Nothing like this kind of autonomy existed in Islamic law, Chinese law or Hindu law of an earlier age.

Huff argues that the twelfth and thirteenth centuries witnessed a social revolution that laid the institutional foundations upon which modern science was later constructed. At the heart of this development was the jurisprudential idea of a corporation, a collection of individuals who were recognized as a singular “whole body” and granted legitimate legal autonomy.

It also distinguished between the property, goods and assets of the corporation and those of individual members. A debt owed by the corporation was not owed by its members individually, and the allegiance of individual members was said to be to the corporation, not to other members of it personally. These ideas served to create a foundation for a public versus a private sphere of action – a clear distinction still lacking in many countries today. One could also argue that it is increasingly under threat within the Western world itself:

In short, the theory of corporate existence that was worked out uniquely by twelfth- and thirteenth-century Western legalists (but neglected by the Byzantines) created a whole new bundle of rights. These included the right to own property, to have representation in court, to sue and be sued, to make contracts, and to be consulted when one’s interests were affected by actions taken by others, especially kings and princes, following the Roman legal maxim, ‘What touches all should be considered and approved by all.’

Of course, it was a slow process putting all these new ideas into action, but the door had been opened, a new legal framework had been gestated. In the centuries to come, those ideas were to be transported across Europe and around the world. But notice that this whole constellation of ideas and institutions can be called civilizational complexes – that is, segments of cultural life – and they give a civilization a distinctive identity when they are shared by multiple societies or peoples encompassed by that civilization. Most if not all of these components of the European civilizational domain were disseminated over vast expanses of time and space without the force of empire.They were to a large extent spread voluntarily as scholars, in the universities and elsewhere, discussed fundamental issues related to law, governance, philosophy and medical education.

Of course, medieval Christian Europe did have well-known religious controversies against heretics like the Cathars, some of which were indeed met by the use of violence. It is also true that the conversion of so-called pagans to Christianity in parts of northern Europe did include certain acts of force. Yet despite its many flaws, Europe still had a greater emphasis on peaceful, intellectual and rational persuasion than virtually any other civilization of that time.