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From Law to Paradise: Confessional Catholicism and Legal Scholarship 13 12 1 Awareness thereof was revived in From Law to Paradise: no small measure by H. J. Ber- man, Law and Revolution. The Confessional Catholicism Formation of the Western Legal Tradition, Cambridge Mass. and Legal Scholarship 1983. For a critical assessment of this book, see P. Landau’s review 1. The religious origins of the Western legal tradition in: University of Chicago Law Review 51 (1984) 937–943. 2 Thus, one of the key conclusions The major contribution of religion and theology to the devel- to be drawn from M. Godelier, opment of the Western legal tradition is a well-established fact.1 Au fondement des sociétés hu- This is quite unsurprising, given the quintessential role that shared maines. Ce que nous apprend religious representations turn out to play in the creation and l’anthropologie, Paris: Albin Mi- 2 chel 2007. This analysis runs delimitation of human societies in general. InthewakeofCarl counter to traditional anthropo- Schmitt and Ernst H. Kantorowicz, many eminent scholars have logical research which had a tend- highlighted the theological foundations of basic juridical concepts, ency to define societies on the especially in the domain of political thought and public law.3 basis of common parental lineage The fruitful input of theological doctrine into legal scholarship or shared economic structures. 3 Recent literature on the subject famously reached a peak during the classical period of Church 4 includes M. F. Renoux-Zagamé, law roughly between the 12th and 13th centuries. Especially, al- Du droit de Dieu au droit de beit not exclusively, in the field of private law, theological think- l’homme, Paris: PUF 2003; ing served as a catalyst in the attempt of both the canon and the M. Stolleis,DasAugedesGe- civil lawyers to reconcile Roman case law with Christian princi- setzes. Geschichte einer Metapher, 5 München 2004; G. Agamben,Il ples. regno e la gloria. Per una genea- Yet this influential symbiosis of law and religion is often logia teologica dell’economia e del thought to have come to an end just as it reached its peak in the governo (Homo Sacer, II. 2), Vi- period of classical canon law. Afterwards, the only crucial develop- cenza 2007; and M. Scattola, ment in the Western legal tradition often perceived to be related to Teologia politica, Bologna 2007. 4 For a systematic overview of the religious views is the advent of humanist jurisprudence and natural lasting influence of canon law on law doctrines, which occurred in the 16th and 17th centuries. The the Western legal tradition, see: Protestant reformations, especially Calvinism, are said to have Der Einfluss der Kanonistik auf attracted some of the most innovative jurists of the early modern die europäische Rechtskultur, ed. period.6 At the same time, this epoch seems to mark the birth of by O. Condorelli, F. Roumy, M. Schmoeckel, Bd. 1: Zivil- legal scholarship as an autonomous discipline, no matter how close und Zivilprozessrecht, Köln 2009 the Lebenswelt of the jurists, Protestants and Catholics alike re- (other volumes forthcoming). mained anchored in theological thinking and religious practices.7 5 See, for example, A. Lefebvre- Independent from any confessional views, law itself could finally Teillard, F. Demoulin, F. Rou- vindicate its role as a universally applicable tool to establish order my, De la théologie au droit, in: Grundlagen des Rechts. FS Peter and peace. Amidst the horror of the religious wars, the concept of Landau, ed. by R. Helmholz et secular law, with which most jurists living in Western societies to- al., Paderborn 2000, 421–438; day identify,8 emerged. and A. Padovani, Perché chiedi il mio nome? Dio, natura e diritto nel secolo XII, Torino 1997. 6Cf.M. Schmoeckel,DasGesetz the Western Legal Tradition, 8 It is precisely this self-image of the Gottes als Ausgangspunkt christ- Cambridge Mass. 2003. lawyer as a secular and non-con- licher Ethik? Zu calvinistischen 7 M. Schmoeckel, Die katholische fessional problem-solver, however, Traditionen des 16. Jh.s im Hin- Wissenschaft. Die methodische which might explain the reluc- blick auf ihre rechtshistorische Re- Säkularisation der Jurisprudenz tance of contemporary jurists to levanz, in: Ius commune 25 (1998) im 16. Jahrhundert, in: Vera recognize the influence of theology 347–366; J. Witte,LawandProt- Doctrina. Zur Begriffsgeschichte on the development of today’s le- estantism: The Legal Teachings of der Lehre von Augustinus bis gal systems. See the introductory the Lutheran Reformation, Cam- Descartes, ed. by P. Büttgen, remarks by G. Dolezalek,The bridge 2002; H. J. Berman,Law R. Imbach, U. J. Schneider, Moral Theologian’s Doctrine of and Revolution II: The Impact of H. J. Selderhuis, Wiesbaden Restitution and its Juridification in the Protestant Reformations on 2009, 167–171. the Sixteenth and Seventeenth Rg18/2011 From Law to Paradise: Confessional Catholicism and Legal Scholarship 13 The turn towards an autonomous legal discipline must be considered a major event in the course of European legal history. September 1976, ed. by S. Kutt- ner, K. Pennington, Città del However, our fascination with this turning point should not blind Vaticano 1980, 443–454. us from an equally astounding event which occurred at about the 11 It would take too much space here same time in Catholic territories. In the period that spans roughly to do justice to the plethora of from 1500 to 1700, and in territories that range from the Iberian legal historians who have studied Peninsula to the Holy Roman Empire and the New World, an the contribution of the scholastic 9 to legal thought. For ample refer- unprecedented synthesis of law and moral theology took place. ences to secondary literature on Not without right, some have denoted this explosion of treatises, in this subject, certainly with regard which the ius commune and moral philosophy are closely inter- to the development of contract twined, as a »second canon law«.10 Although mainly carried out law, please allow us to refer to the by theologians, this movement, also known as »the late scholas- footnotes in W. Decock,Jesuit 11 Freedom of Contract, in: The Le- tic«, is of direct relevance to legal historians. Indeed, the indebt- gal History Review 77 (2009) edness of Protestant natural lawyers to theological thinking is 423–458. beyond doubt.12 Furthermore, the moral theologians constructed 12 F. Todescan’s admonishment the forum internum as a parallel jurisdiction that competed for needs to be emphasized to the normative power with the secular State.13 effect that natural lawyers like Pufendorf were much more inspir- In light of the central role that confession, moral theology and ed by the Catholic theologians spiritual jurisdiction played in the Catholic Church during the than they were willing to recog- early modern period, it has been proposed that this period be nize; see Le radici teologiche del rebaptized as »confessional Catholicism«.14 This is not to say that giusnaturalismo laico, III, Il pro- a similar preoccupation with the salvation of the soul is not blema della secolarizzazione nel 15 pensiero giuridico di Samuel Pu- manifest in Protestant traditions. Typically, however, the casu- fendorf, Milano 2001, 5–6. istical literature produced by influential Puritans, such as William 13 As is brilliantly demonstrated in Perkins (1558–1602) and William Ames (1576–1633), is far less P. Prodi, Una storia della giusti- elaborate than the literature on cases of conscience produced by zia, dal pluralismo dei fori al mo- the great Catholic theologians.16 What they share is an obsession derno dualismo tra coscienza e diritto, Bologna 2000. with the salvation of the soul and the use of scholastic and 14 On the proposed use of the term casuistical methods to analyse qualms of conscience. The abun- »confessional Catholicism«, see dant use of the ius commune,however,isatypicalfeatureof J. W. O’Malley,Trentandall Catholic authors. In the Protestant world a clear caesura between that. Renaming Catholicism in the theology and law seems to have occurred much earlier than in the early modern era, Cambridge 17 Mass. 2002, 119–145. Catholic tradition. Except for some Jansenist strands of thought 15 Cf. Contexts of Conscience in that would later be condemned as heretic, the Catholics intensified Early Modern Europe, 1500– the use of the legal tradition in order to come to grips with moral 1700, ed. by H. Braun, E. Val- problems;18 in so doing, they in turn transformed the ius com- lance, Basingstoke 2003. mune. 16 For a comparative illustration with regard to the case of duties to The aim of this paper is to give an introduction to the vast legal inform about external market literature churned out by moral theologians in the age of »confes- conditions, see W. Decock,Les- sional Catholicism«. However, given the endless range of primary sius and the breakdown of the scholastic paradigm, in: Journal of the History of Economic Thought 31 (2009) 67–69. Centuries, in: Acta Juridica. Es- dert und seine Spuren im Denken 17 From this it should not be derived says in Honour of Wouter de Vos, derSocietasJesuunddesPetrus altogether that the Protestant ed. by T. W. Bennett et al., Cape Canisius, in: Petrus Canisius SJ theological tradition is of less in- Town 1992, 104–105. (1521–1597). Humanist und Eu- terest to the legal historian than 9 K. Seelmann, Theologie und Ju- ropäer, ed. by R. Berndt, Berlin Catholic moral theology of the risprudenz an der Schwelle zur 2000, 39–75. early modern period, as is obvious Moderne. Die Geburt des neuzeit- 10 P. Legendre, L’inscription du from J. Q. Whitman, The origins lichen Naturrechts in der iberi- droit canon dans la théologie. of reasonable doubt, theological schen Spätscholastik, Baden- Remarques sur la Seconde Scolas- roots of the criminal trial, New Baden 1997; N.
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