Angels and Infidels: Hierarchy and Historicism in Medieval Legal History

74 Pages Posted: 27 Sep 2011

See all articles by Guyora Binder

Guyora Binder

University at Buffalo Law School

Date Written: September 26, 2011

Abstract

In Law and Revolution, author Harold Berman argued that our society’s commitment to law’s autonomy and to law’s efficacy for social change are persuasively synthesized in an idea of legal science originally developed by medieval canon lawyers to justify the centralization of authority under the Pope. According to Berman, this idea of progress through law became the model for the modern state and inspired progressive social change. This essay challenges these claims. It argues that medieval scholasticism had a static view of history and that Berman systematically misreads synchronic representations of hierarchy and dominion in scholastic thought as diachronic representations of change and progress. It further argues that neither the centralization of the church nor scholastic legal thought had progressive influence in medieval society. To the contrary, the centralization of authority under the pope led to the persecution of self-governing communities of worshippers as heretic, while scholastic legal thought rationalized and legitimized the emergent feudal system. This was a change, but hardly progressive, leading to peasants’ loss of property, free status, and self-governance.

Keywords: legal history, comparative law, law & religion, law & society

Suggested Citation

Binder, Guyora, Angels and Infidels: Hierarchy and Historicism in Medieval Legal History (September 26, 2011). Buffalo Law Review, Vol. 35, pp. 527-599, 1986, Available at SSRN: https://ssrn.com/abstract=1933906

Guyora Binder (Contact Author)

University at Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2673 (Phone)
716-645-2640 (Fax)

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