How Old was the Old Law?: Talking about Change in the History of Medieval Church Law
Greta Austin
How Old was the Law? Talking about Change in History of Medieval Church Law Greta Austin Historians medieval law sometimes distinguish between ‘old law’ and ‘new papal decretals which developed after Gratian’s Decretum. In last quarter twelfth century, canonists began to law’.1 Scholars have traditionally interpreted this new laws’ as referring material before Gratian ‘new’ century onward.2 also describe shifts canon during period by ‘classical law,’ or differentiating ‘pre-Gratian’ ‘post-Gratian’ law. Such categories are often helpful. Categories can enable us sort through complexities history identify change. At same time, however, use may create rigid divisions discontinuities where none existed.3 This paper proposes that an over-rigid [End Page 1] reliance upon distinctions ‘old’ ‘post- pre-Gratian’ poses problems for contemporary scholars our understanding law, if rely these too much explanatory device. These terms indirectly reinforce a teleological reading legal keeps from how worked ‘on ground’. looks at two models, those Paul Fournier Harold Berman, explained came into being. It argues models share flaws: their teleology anachronistic definitions depend modern expectations general, points out with implied distinction ‘old’. Teleological histories do disservices alike, since only be precedent more glorious 2] future.4 Second, against project defining measuring achievement later yardsticks, Berman did explicitly implicitly, because imposes standards earlier periods. Finally, critiques third problem like law’: such approaches tend previous foil, order emphasize achievements question. instead simply complaining ‘old,’ article suggests scholarly treatment ordeal its withering provides helpful model narrating well changes it. The research on has rejected idea Western people became ‘rational’ thus ordeal. Instead, historians suggested decline- requires look social contexts, fluctuations power, changing nature institutions authority, dynamic structures operated. then applies institution episcopal visitation courts central Middle Ages. By doing so, one alternative describing 3] Berman: master narratives usually waves reforming movements ‘the Gregorian Reform’ pivotal 1917, French scholar published extraordinarily influential article, ‘Un tournant de l’histoire du droit 1060–1140’, sketched convincing story law.5 Fournier’s adapted widely. According narrative, there no ‘scientific study law’.6 When Reformers looked support claims,7 they rediscovered Roman taught them jurisprudence.8 story, Ivo, bishop Chartres, learned Romans developing his jurisprudential theory Prologue, text explains methods interpreting texts.9 For Fournier, Ivo put Prologue’s hermeneutical method practice collection...
Bulletin of medieval canon law