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  • How Old was the Old Law? Talking about Change in the History of Medieval Church Law
  • Greta Austin

Historians of medieval Church law sometimes distinguish between the ‘old law’ and the ‘new law’ of papal decretals which developed after Gratian’s Decretum. In the last quarter of the twelfth century, canonists began to distinguish between the ‘old law’ and the ‘new law’.1 Scholars have traditionally interpreted this ‘old and new laws’ as referring to the material before Gratian and the ‘new’ papal decretals of the twelfth century and onward.2 Historians also describe the shifts in canon law during this period by referring to the ‘classical canon law,’ or differentiating between ‘pre-Gratian’ and ‘post-Gratian’ law. Such categories are often helpful. Categories can enable us to sort through the complexities of history and to identify change. At the same time, however, the use of categories may create rigid divisions and discontinuities where none may have existed.3 This paper proposes that an over-rigid [End Page 1] reliance upon distinctions between the ‘new’ and ‘old’ or ‘post- and pre-Gratian’ poses problems for contemporary scholars and our understanding of medieval canon law, if contemporary scholars rely upon these categories too much as an explanatory device. These terms may indirectly reinforce a teleological reading of legal history that keeps us from understanding how medieval canon law worked ‘on the ground’. This paper looks at two models, those developed by Paul Fournier and Harold Berman, which explained how the ‘new law’ came into being. It argues that these two models share two flaws: their teleology and their anachronistic definitions of law, which depend upon modern expectations of law. In general, this paper points out the problems with teleological models of the history of law, which are implied in the distinction between ‘new’ and ‘old’. Teleological histories do disservices to the ‘new’ law and the ‘old law’ alike, since medieval canon law can only be a precedent to a more glorious [End Page 2] future.4 Second, this paper argues against the anachronistic project of defining law and measuring legal achievement against later yardsticks, as Berman did explicitly and Fournier implicitly, because this imposes modern standards upon earlier periods. Finally, this paper critiques a third problem with distinctions like those between the ‘old’ and ‘new law’: that such approaches tend to use the previous period as a foil, in order to emphasize the achievements of the period in question.

Finally, instead of simply complaining about the problems with this distinction between ‘new’ and ‘old,’ this article suggests that the scholarly treatment of the ordeal and its withering provides a helpful model for narrating medieval canon law as well as changes in it. The research on the ordeal has rejected the idea that Western people became more ‘rational’ and thus rejected the ordeal. Instead, historians of the ordeal have suggested that the ordeal and its decline- requires us to look at the social contexts, the fluctuations of power, the changing nature of institutions and authority, and the dynamic social structures in which law operated. This article then applies this model to the institution of episcopal visitation and episcopal courts in the central Middle Ages. By doing so, this paper proposes one alternative to Fournier and Berman as a model for describing and understanding legal change. [End Page 3]

Fournier and Berman: The master narratives

Historians usually describe the waves of papal reforming movements during the ‘the Gregorian Reform’ as pivotal in the history of Western law. In 1917, the French scholar Paul Fournier published an extraordinarily influential article, ‘Un tournant de l’histoire du droit 1060–1140’, which sketched out a convincing story of Western law.5 Fournier’s story was adapted widely. According to this narrative, there was no ‘scientific study of law’.6 When the Gregorian Reformers looked for legal support for their claims,7 they rediscovered Roman law, which taught them jurisprudence.8 According to this story, Ivo, bishop of Chartres, learned from the Romans in developing his jurisprudential theory in his Prologue, a text which explains methods for interpreting texts.9 For Fournier, Ivo also put the Prologue’s hermeneutical method into practice in his canon law collection...


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