Law, Writing, Meaning: An Essay in Legal Hermeneutics

By Ian Fraser; Patrick Nerhot | Go to book overview

9
Premodernity and rationality in the Christian West

The reason why we have ceaselessly disputed this date of the sixteenth century as the period, the moment, when a society became transformed in order to lay the first foundations of social organisation of relevance to our modern times is of course that we intend to propose another way of interpreting premodernity. To do so we must venture still further back in the past, raising a tough question of method at the outset. How can one claim to analyse, to understand, major changes in societies that disappeared so long ago? It is clear to us that an explanation or understanding of very remote periods in the past does not claim to say what society 'really' was (and in any case, 'realism' remains an interpretation of things, not the things themselves) but aims more modestly at presenting an interpretation of traces, of particular documents.

In this period called the twelfth century, when a new form of urban life and a new merchant professionalism were imposing themselves, social organisation changed considerably and new forms of legal knowledge spread: written codes came into being alongside customary oral laws, 37 Roman law cases were rediscovered and taught at Bologna, canon law and the theology of the Christian Church were codified (the Decretum of Gratian of 1140, Peter Lombard's Sententiae, 1150). All these are signs we shall have to seek to interpret, and in doing so we shall as our key of interpretation take the practice of the ordeal.

Around 1050, as P. Brown tells us, 38 it was still possible, in the baptistry of Canterbury Cathedral, in one and the same giant water container, to be at the same time baptised as a Christian by the priest, and, as part of a dispute, be immersed in the water in order to discover the truth of a particular case, as part of an age-old legal procedure. The priest moved from his sacramental to his legal function with no particular problem, just because the ordeal was based on this very possibility of moving easily from the sacred to the profane and conversely. The ordeal, which like any social phenomenon whatever can be given a number of differing if not opposed interpretations, can nevertheless be the object of minimal agreement if we say that it is a sort of 'controlled miracle' 39 aimed

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