Part 8 (1/2)

The Catholic church's declaration of independence from political authority came in the late eleventh century, led by a monk named Hildebrand who later became Pope Gregory VII from 1073 to 1085.4 Hildebrand's group within the papal party, which included Peter Damiani, Cardinal Humbert, and Pope Paschal II, argued that popes should exercise legal supremacy over all Christians, including all political authorities, and that the pope had the right to depose the emperor. He a.s.serted that the church, and not lay authorities, was the only inst.i.tution that could appoint bishops. This came against the background of the machinations of the Holy Roman Emperor Henry III, who upon his arrival in Rome for his coronation had three rival popes deposed in favor of a candidate of his own choosing. Hildebrand's group within the papal party, which included Peter Damiani, Cardinal Humbert, and Pope Paschal II, argued that popes should exercise legal supremacy over all Christians, including all political authorities, and that the pope had the right to depose the emperor. He a.s.serted that the church, and not lay authorities, was the only inst.i.tution that could appoint bishops. This came against the background of the machinations of the Holy Roman Emperor Henry III, who upon his arrival in Rome for his coronation had three rival popes deposed in favor of a candidate of his own choosing.5 But in Hildebrand's view, the church could not become independent of political authority unless it reformed itself, and the most important reform was to restrict the ability of priests and bishops to marry and have children. He attacked the common practices of simony and nicolaism, by which church offices were bought and sold, and could be turned into heritable property.6 Hildebrand's party unleashed a pamphlet war urging Christians not to take sacraments from married priests or priests living in concubinage, and attacked the practice of taking money in return for ecclesiastical appointments. Hildebrand's party unleashed a pamphlet war urging Christians not to take sacraments from married priests or priests living in concubinage, and attacked the practice of taking money in return for ecclesiastical appointments.7 As Gregory VII, he made celibacy of the priesthood official church doctrine and forced already married priests to choose between their duties to the church and their duties to their families. This challenged the entrenched practices of the priesthood and led to an enormous and often violent struggle within the church itself. Pope Gregory's goal was to end corruption and rent seeking within the church by attacking the very source of patrimonialism, the ability of bishops and priests to have children. He was driven by the same logic that led the Chinese and Byzantines to rely on eunuchs, or the Ottomans to capture military slaves and tear them from their families: if given the choice between loyalty to the state and to one's family, most people are driven biologically to the latter. The most direct way to reduce corruption was therefore to forbid officials to have families in the first place. As Gregory VII, he made celibacy of the priesthood official church doctrine and forced already married priests to choose between their duties to the church and their duties to their families. This challenged the entrenched practices of the priesthood and led to an enormous and often violent struggle within the church itself. Pope Gregory's goal was to end corruption and rent seeking within the church by attacking the very source of patrimonialism, the ability of bishops and priests to have children. He was driven by the same logic that led the Chinese and Byzantines to rely on eunuchs, or the Ottomans to capture military slaves and tear them from their families: if given the choice between loyalty to the state and to one's family, most people are driven biologically to the latter. The most direct way to reduce corruption was therefore to forbid officials to have families in the first place.

This reform was naturally opposed by the existing bishops, and Pope Gregory understood that he could not win this battle unless he and not the emperor had the right to appoint them. In a papal manifesto in 1075, he withdrew from the king the right of deposing bishops and of lay invest.i.ture. Holy Roman Emperor Henry IV responded by attempting to oust Gregory from the Apostolic See with the words ”Descend, descend, thou ever accursed,” to which Gregory responded in turn by excommunicating the emperor.8 Many of the German princes, as well as a number of bishops, supported the pope and forced Henry in 1077 to come to Gregory's residence at Canossa. He waited for three days to present himself barefoot in the snow to receive the pope's absolution. Many of the German princes, as well as a number of bishops, supported the pope and forced Henry in 1077 to come to Gregory's residence at Canossa. He waited for three days to present himself barefoot in the snow to receive the pope's absolution.

Certain historical events are catalyzed by individuals and cannot be explained without reference to their particular moral qualities. The invest.i.ture conflict was one such moment. Gregory had a t.i.tanic and inflexible will, and was once addressed by one of his a.s.sociates in the papal party as ”my holy Satan.” Like Martin Luther four centuries later, he had a grand vision for a reformed church and its role in society. He could not be intimidated and was willing to see the conflict with the emperor escalate into outright war.

But this historic conflict cannot be explained simply as a matter of individual will. A critical background condition facilitating the emergence of the Catholic church as an autonomous political actor was the general political weakness throughout Europe. The Eastern church in Byzantium, and its Russian Orthodox successor, had no choice but to remain under the tutelage of the empires in whose seat they were headquartered. The Western church, by contrast, was situated in the politically fragmented Italian peninsula. The closest states were the equally fragmented German ones to the north, whose unity under the Holy Roman Empire was no more than nominal. France was scarcely more unified in the eleventh century and incapable, at this juncture, of intervening decisively in papal politics. So while the church did not possess military forces of its own in this period, it could easily play off the rivalries of the surrounding polities.

Although Henry accepted the authority of the pope at Canossa, he did not concede the pope's right to appoint bishops and continued to reject Gregory's demands. Henry went on to occupy Rome, deposing Gregory and making his own candidate, Clement III, an antipope. Gregory called on the Norman kings of southern Italy for help; they availed him, but at the cost of sacking Rome and turning its population against them. Gregory was forced to retreat with his Norman allies to the south, where he died in Salerno in 1085, a defeated man. The conflict over the right of invest.i.ture continued for more than another generation, with Gregory's successors excommunicating Henry IV again, as well as his son Henry V, and the emperor deposing popes and setting up imperial candidates as antipopes. The matter was finally settled in 1122 by the Concordat of Worms, in which the emperor largely gave up the right of invest.i.ture, while the church recognized the emperor's authority in a range of temporal matters.

The invest.i.ture controversy was hugely important to subsequent European development in several respects. In the first place, it allowed the Catholic church to evolve into a modern, hierarchical, bureaucratic, and law-governed inst.i.tution that, as the legal historian Harold Berman has argued, became the model for later secular state builders. One of Samuel Huntington's criteria for inst.i.tutional development is autonomy, and no organization can be autonomous if it does not have control over the appointment of its own officials. This is why the controversy over invest.i.ture was so central. After the Concordat of Worms, the pope through the church hierarchy became, for the time being, its undisputed chief executive officer, who with the advice of the College of Cardinals could hire and fire bishops as he pleased.

The church cleaned up its own act. The celibacy of the priesthood removed the temptations of the patrimonial awarding of lucrative benefices to kinsmen and descendants, and set a new moral tone with regard to the sale of church offices. The church could also collect its own taxes in the form of the t.i.the, and with the disentangling of the priesthood from local clan politics it was better able to dispose of its own fiscal resources. The church took on many of the characteristics of a true state, marshaling at times its own military forces and claiming direct jurisdiction over a defined (if small) territory.

The church's involvement in temporal affairs did not end, of course, with the invest.i.ture conflict. Secular rulers continued to try to manipulate the papacy and establish their own candidates, like the Avignon popes of the fourteenth century. Over time new abuses arose that would eventually pave the way for the Protestant Reformation. But the Catholic church had become far more highly inst.i.tutionalized in terms of its adaptability, complexity, autonomy, and coherence than the religious establishments of any of the other world religions.

The second important consequence of the invest.i.ture conflict was to clearly separate the domains of the spiritual and temporal, and thus to pave the way for the modern secular state. This separation, as noted earlier, was only latently present in Christianity. The Concordat of Worms conclusively ended the caesaropapist period in the history of the Western church, in a manner that never occurred in either the Eastern church or the Muslim lands.

The Gregorian reform sought to reduce the authority of political rulers by claiming universal authority over all matters spiritual and temporal, including the right to depose kings and emperors. The Christian pope was claiming, in effect, the same authority that Brahmins in India exercised from the beginning. In practice, however, the church at the end of a long political and military struggle was forced to compromise. By carving out a clearly defined spiritual domain over which the church was to exercise unquestioned control, it conceded the right of temporal rulers to exercise power in their own separate sphere. This division of labor established the grounds for the subsequent rise of the secular state.9 Finally, the invest.i.ture conflict had great consequences for the development of both law and the rule of law in Europe. The first came about through the church's efforts to legitimate itself by formulating a systematic canon law, the second through the creation of a separate, well-inst.i.tutionalized domain of spiritual authority.

THE REAPPEARANCE OF ROMAN LAW.

In their conflict with the emperor, Gregory and his successors did not have armies of their own to deploy and sought instead to bolster their power through appeals to legitimacy. The papal party initiated a search for sources of law to bolster its case for the universal jurisdiction of the church. One of the consequences of this search was the rediscovery of the Justinian Code, the Corpus Iuris Civilis Corpus Iuris Civilis, in a library in northern Italy at the end of the eleventh century.10 To this day, the Justinian Code remains the basis for the civil law tradition that is practiced throughout continental Europe and in other countries colonized by or influenced by countries there, from Argentina to j.a.pan. Many basic legal concepts, like the distinction between civil and criminal law, and between public and private law, have their origins in it. To this day, the Justinian Code remains the basis for the civil law tradition that is practiced throughout continental Europe and in other countries colonized by or influenced by countries there, from Argentina to j.a.pan. Many basic legal concepts, like the distinction between civil and criminal law, and between public and private law, have their origins in it.

The Justinian Code was a highly sophisticated compilation of Roman law produced in Constantinople under the emperor Justinian at the beginning of the sixth century.11 The newly recovered text consisted of four parts: the Digest, the Inst.i.tutes, the Code, and the Novella, of which the Digest was by far the most important, covering issues like personal status, torts, unjust enrichment, contracts, and remedies. The Digest was a compilation of what Justinian's jurists believed were the most valuable legacies of the whole earlier body of Roman law (now lost) and became the subject of study for the new generation of European jurists who emerged in the twelfth century. The newly recovered text consisted of four parts: the Digest, the Inst.i.tutes, the Code, and the Novella, of which the Digest was by far the most important, covering issues like personal status, torts, unjust enrichment, contracts, and remedies. The Digest was a compilation of what Justinian's jurists believed were the most valuable legacies of the whole earlier body of Roman law (now lost) and became the subject of study for the new generation of European jurists who emerged in the twelfth century.12 The revival of Roman law was possible because legal studies had been established on a new inst.i.tutional basis, in the emerging modern university. At the end of the eleventh century, the University of Bologna became a center where thousands of students flocked from all over Europe to hear professors like Irnerius lecture on the Digest.13 The new legal curriculum exposed Europeans to a sophisticated legal system that they could readily use as a model for law in their own societies. Knowledge of the Code was thus carried to the remotest corners of the continent, and law faculties were established in other cities such as Paris, Oxford, Heidelberg, Cracow, and Copenhagen. The new legal curriculum exposed Europeans to a sophisticated legal system that they could readily use as a model for law in their own societies. Knowledge of the Code was thus carried to the remotest corners of the continent, and law faculties were established in other cities such as Paris, Oxford, Heidelberg, Cracow, and Copenhagen.14 The recovery of Roman law had the effect, like English Common Law, of suddenly displacing the ma.s.s of particularistic Germanic customary law that prevailed through much of Europe and replacing it with a more consistent transnational body of rules. The recovery of Roman law had the effect, like English Common Law, of suddenly displacing the ma.s.s of particularistic Germanic customary law that prevailed through much of Europe and replacing it with a more consistent transnational body of rules.15 The first generation of expositors of the Justinian Code was known as the glossators, who saw their job primarily as one of reconstructing and reproducing Roman law. But subsequent generations of scholars, such as Thomas Aquinas, looked even farther back, to the ancient Greeks in their search for the intellectual foundations of law. Cla.s.sical philosophers such as Aristotle argued that custom and received opinion needed to be subjected to human reason and measured against more universal standards of truth. Aquinas applied this principle to his own study of Aristotle, and the philosophical tradition he founded encouraged later generations of commentators on the law not to mechanically reproduce an existing body of law but instead to reason about the sources of law and how it was to be applied to novel situations.16 The cla.s.sical tradition that was revived in European universities was not simply one of appeal to the authority of certain static texts but also of rational inquiry into the meaning of those texts. The cla.s.sical tradition that was revived in European universities was not simply one of appeal to the authority of certain static texts but also of rational inquiry into the meaning of those texts.

The new university produced a separate cla.s.s of lawyers trained to interpret cla.s.sical texts and master a special domain of knowledge. Both ecclesiastical and lay authorities came to understand that they needed to defer to the lawyers' specialized knowledge in making decisions, particularly in the commercial sphere, where contract and property rights were of paramount importance. The lawyers in turn developed their own inst.i.tutional interests in protecting their domain from incursions by nonspecialists and self-interested political parties.

Prior to the Gregorian reform, church law consisted of a diverse range of decrees of church councils and synods, writings of church fathers, papal decrees, and decrees of kings and emperors speaking on behalf of the church. It was mixed up with remnants of Roman law and with customary Germanic law.17 With the establishment of a unified hierarchy within the church, it was for the first time possible for the church to legislate authoritatively and bring unity to this body of law through the activities of an increasingly professionalized group of ecclesiastical legal specialists. The monk Gratian, trained in the legal curriculum, a.n.a.lyzed thousands of canons issued over the past centuries; he reconciled and synthesized them into a single body of canon law. This was published in 1140 in a ma.s.sive legal treatise of some fourteen hundred pages, the With the establishment of a unified hierarchy within the church, it was for the first time possible for the church to legislate authoritatively and bring unity to this body of law through the activities of an increasingly professionalized group of ecclesiastical legal specialists. The monk Gratian, trained in the legal curriculum, a.n.a.lyzed thousands of canons issued over the past centuries; he reconciled and synthesized them into a single body of canon law. This was published in 1140 in a ma.s.sive legal treatise of some fourteen hundred pages, the Concordance of Discordant Canons Concordance of Discordant Canons, or the Decretum Decretum. Gratian established a hierarchy among divine, natural, positive, and customary law, and established rational procedures by which contradictions among them could be resolved. In the century following Gratian, canon law expanded enormously to cover a wide range of other topics including criminal, family, property, contract, and testamentary law.18 The Catholic church acquired statelike attributes through its concept of a single canon law. But it also became more statelike by developing a bureaucracy by which it could administer its affairs. Legal scholars have argued that the first model of the modern bureaucratic ”office” as defined by Weber was created within the new, twelfth-century church hierarchy.19 Among the hallmarks of the modern office are a separation between the office and the officeholder; the office is not private property; the officeholder is a salaried official subject to the discipline of the hierarchy within which he is embedded; offices are defined functionally; and officeholding is based on technical competence. All of these were, as we have seen, characteristic of Chinese bureaucracy from the time of the state of Qin, though many offices were repatrimonialized during later dynasties. They were also increasingly characteristic of the church bureaucracy after its liberation from lay invest.i.ture and the imposition of celibacy on the priesthood. The church, for example, began to distinguish between Among the hallmarks of the modern office are a separation between the office and the officeholder; the office is not private property; the officeholder is a salaried official subject to the discipline of the hierarchy within which he is embedded; offices are defined functionally; and officeholding is based on technical competence. All of these were, as we have seen, characteristic of Chinese bureaucracy from the time of the state of Qin, though many offices were repatrimonialized during later dynasties. They were also increasingly characteristic of the church bureaucracy after its liberation from lay invest.i.ture and the imposition of celibacy on the priesthood. The church, for example, began to distinguish between officium officium and and beneficium beneficium-office and benefice-in the early twelfth century. No longer would officeholders necessarily receive feudal benefices; they could now simply be salaried employees of the church, who could be hired and fired based on their performance in their office. These bureaucrats began to staff new offices like the Papal Chancery that soon became the model for the chanceries of secular rulers.20 LAW AND THE RISE OF THE MODERN STATE.

The political order in Europe at the time of the Gregorian reform saw the beginnings of a reversal of the extreme decentralization of power that had taken place after the breakup of the Carolingian Empire in the ninth century. Power had leached out to a series of regional leaders and then was further divided when local lords started building impregnable castles at the end of the tenth century. The manor-a largely self-sufficient productive and military unit centered around the lord's castle and lands-became the source of governance throughout Europe. On top of this system there began to appear a number of royal houses like that of the Capetians around the ile de France or the various Norman barons who conquered England and southern Italy, whose domains were larger than those of their rivals and who formed the core of a new territorial state system.

The Gregorian reform not only provided territorial states with a model of bureaucracy and law but also encouraged them to develop their own inst.i.tutions. Secular rulers were responsible for securing peace and order in their realms, and providing the rules that facilitated the emerging levels of commerce. This led to the formulation of not just one but several distinct domains of law, related to feudalism, the manor, the city, and long-distance trade. Harold Berman argues that this plurality of legal forms promoted the development of liberty in Europe by motivating compet.i.tion and innovation between jurisdictions. Particularly important was the rise of independent cities, whose free populations and dependence on external trade stimulated new demands for commercial law.21 The church's move toward inst.i.tutional independence stimulated the corporate organization of the other sectors of feudal society as well. In the eleventh century, the bishops Gerard de Cambrai and Aldaberon de Laon formulated a doctrine that society should be organized into three hierarchical orders: the aristocracy, the ecclesiastics, and the commons-those who fought, those who prayed, and those who worked to support those who fought and prayed. This functional rather than territorial organization provided an ideological basis for the formation of each of these groups into representative estates, which rulers called together periodically to grant taxes and deliberate on issues of importance to the realm as a whole. As will be seen in later chapters, it was the ability of these estates to stand up to centralizing monarchs that determined whether particular European countries developed either accountable or absolutist governments.22 One of the peculiar features of European state building was its heavy early dependence on law as both the motive and the process by which state inst.i.tutions grew. Specialists have grown accustomed to thinking that war and violence were the great drivers of European political development. This certainly became true in the early modern period, when the rise of absolutism was built around the fiscal requirements of military mobilization. But in the medieval period, states gained legitimacy and authority by their ability to dispense justice, and their early inst.i.tutions crystallized around the administration of justice.

Nowhere was this more true than in England. In the early twenty-first century, we are used to thinking of England and its offshoot the United States as the home of Anglo-Saxon laissez-faire economic liberalism, and France as the birthplace of dirigiste centralized government. Up through the fourteenth century, however, exactly the opposite was true. Of all European polities, the English state was by far the most centralized and powerful. This state grew out of the king's court and its ability to offer justice across the whole realm. Already by the year 1200 it boasted permanent inst.i.tutions staffed by professional or semiprofessional officials; it issued a rule saying that no case concerning the possession of land could be initiated without a writ from the king's court; and it was able to tax the entire realm.23 Evidence of the central state's power lay in the Domesday Book, compiled shortly after the Norman Conquest, in which residents of every single s.h.i.+re in the realm were surveyed. Evidence of the central state's power lay in the Domesday Book, compiled shortly after the Norman Conquest, in which residents of every single s.h.i.+re in the realm were surveyed.24 There was also already an incipient sense of English national ident.i.ty. When the barons confronted King John at Runnymede in 1215 and imposed on him the Magna Carta, they did so not as individual warlords seeking to exempt themselves from general rules. They expected a unified national government to better protect their rights through the king's courts, and in this respect saw themselves as representatives of a larger community.25 France, by contrast, was a much less unified realm at the time. There were major linguistic and cultural differences among its various regions, and the king could not raise taxes beyond his own small domain around the ile de France. France, by contrast, was a much less unified realm at the time. There were major linguistic and cultural differences among its various regions, and the king could not raise taxes beyond his own small domain around the ile de France.

HOW THE MEDIEVAL CHURCH SET PRECEDENTS FOR CONTEMPORARY RULE OF LAW.

The emergence of the Catholic church as a modern bureaucracy and its promulgation of a coherent canon law in the twelfth century still leaves us very far from contemporary rule of law. In developed countries with a strong rule of law, the law that gives legitimacy to political rule is usually a written const.i.tution. This higher law is not derived from religious authority, and many const.i.tutions in fact mandate political neutrality with regard to the substantive moral issues to which religion speaks. The legitimacy of modern const.i.tutions comes rather out of some kind of democratic ratification procedure. That higher law may be seen as rooted in timeless or universal principles, as Abraham Lincoln argued the U.S. Const.i.tution was,26 and most modern const.i.tutions leave somewhat ambiguous the ultimate source of their legitimacy. and most modern const.i.tutions leave somewhat ambiguous the ultimate source of their legitimacy.27 But as a practical matter, the interpretation of those principles is always subject to political contestation. In the end, the power of democratically legitimated executives and legislatures is checked by a const.i.tutional law that is also democratically legitimated, albeit with more stringent requirements for social consensus through some form of supermajority voting. (In a more recent development, governments can also be checked by supranational legal bodies like the European Court of Human Rights or the International Criminal Court, whose basis of legitimacy is much murkier than those of national-level courts. But as a practical matter, the interpretation of those principles is always subject to political contestation. In the end, the power of democratically legitimated executives and legislatures is checked by a const.i.tutional law that is also democratically legitimated, albeit with more stringent requirements for social consensus through some form of supermajority voting. (In a more recent development, governments can also be checked by supranational legal bodies like the European Court of Human Rights or the International Criminal Court, whose basis of legitimacy is much murkier than those of national-level courts.28) In some liberal democracies including Israel and India, religious courts still exercise jurisdiction over certain issues like family law. But these are seen as exceptions to a general rule that excludes religious authority from partic.i.p.ation in the legal system.

So why does it make sense to say that law based on religion created the foundations for modern rule of law?

The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The a.s.sertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made. In this respect Christian princes were like Indian rajas and Kshatriyas, and Arab and Turkish sultans, who would agree that they were below the law.

In every society with religiously based law, political rulers legislated and tried to encroach on the domain of religious law. In many cases, this encroachment was necessary since there were many areas of life where religious law did not provide adequate rules. But the more dangerous encroachments were ones of principle. The great political struggles of early modern Europe (to be detailed in subsequent chapters) concerned the rise of monarchs who a.s.serted novel doctrines of sovereignty that placed themselves rather than G.o.d at the top of the hierarchy. These kings, like Chinese emperors, a.s.serted that they alone could make law through their positive enactments, and that they were not bound by prior law, custom, or religion. The story of the rise of modern rule of law concerns the success of resistance to these claims and a rea.s.sertion of the primacy of law. This resistance was obviously made much easier when a religious tradition gave law a sanct.i.ty, autonomy, and coherence that it otherwise might not have had.

The discontinuity between medieval and modern rule of law is more apparent than real, moreover, if one understands law as an embodiment of a broad social consensus regarding rules of justice. This is what Hayek meant when he said that law was prior to legislation. In a religious age like the twelfth century, or in the contemporaneous Muslim or Indian worlds, social consensus was expressed religiously because religion played a far greater role in people's daily lives than it does today. Religious laws were not something dropped on societies from outer s.p.a.ce. Even when they were initially imposed through violence and conquest, they coevolved with their societies and were taken up by them as indigenous moral codes.29 There was no separation between the religious and secular realms, and therefore no way to articulate social consensus other than in religious terms. Today, in an age when religion plays a much more restricted role, it is inevitable that social consensus has to be determined in other ways, such as by voting in democratic elections. But law remains an expression of broadly shared rules of justice regardless of whether it is expressed in religious or in secular terms. There was no separation between the religious and secular realms, and therefore no way to articulate social consensus other than in religious terms. Today, in an age when religion plays a much more restricted role, it is inevitable that social consensus has to be determined in other ways, such as by voting in democratic elections. But law remains an expression of broadly shared rules of justice regardless of whether it is expressed in religious or in secular terms.

The religious law that emerged from the twelfth century on had an important effect on modern rule of law by helping to inst.i.tutionalize and rationalize the law. For rule of law to exist, it is not sufficient to establish a theoretical principle that political rulers are subject to law. Unless that law is embodied in visible inst.i.tutions that exist with some degree of autonomy from the state, it is much less likely to inhibit the state's discretion. Moreover, if the law is not a coherent and clearly stated body of rules, it cannot be used to limit executive authority. The idea of a const.i.tutional separation of powers has to be based on the reality of a legal system that has strong influence over its own recruitment and promotion, sets its own professional standards, trains its own lawyers and judges, and is granted genuine power to interpret the law without interference from political authority. Even though the English king was responsible for creating a common law based on the final authority of the royal courts, he also delegated a huge amount of authority to judges and permitted the growth of a strong legal profession that was not exclusively dependent on the state for its employment and income. In continental Europe, the Justinian civil law tradition meant that the interpretation of law remained more centralized, but there was a parallel development of an autonomous legal profession-in fact, multiple legal professions for the multiple forms of law that appeared. In either case, Western law was rationalized to a greater degree than either Indian or Sunni Muslim law. Neither of these traditions saw the emergence of someone like Gratian, who would take the whole body of religious edicts and make them internally consistent.

The legal tradition that emerged in Western Europe was distinctly different from the one that existed in the lands under the influence of the Eastern church. It was not Christianity per se, but the specific inst.i.tutional form that Western Christianity took, that determined its impact on later political development. In the Eastern Orthodox church, bishops continued to be appointed by the emperor or by local political rulers, and the church as a whole never declared independence from the state. While the Eastern church never lost the tradition of Roman law the way the Western church did, it also never a.s.serted the same kind of primacy over the Byzantine emperor.

The emergence of a rule of law is the second of three components of political development that together const.i.tute modern politics. As in the transition out of tribal or kins.h.i.+p-based social organization, the dating of this s.h.i.+ft in Europe needs to be pushed back to a point well before the beginning of the early modern period-in the case of rule of law, to at least the twelfth century. This underlines one of the central themes of this book, namely, that the different components of modernization were not all part of a single package that somehow arrived with the Reformation, Enlightenment, and Industrial Revolution. While modern commercial law codes were driven by the requirements of independent cities and burgeoning trade, the rule of law in the first instance was the product not of economic forces but of religious ones. Thus two of the basic inst.i.tutions that became crucial to economic modernization-individual freedom of choice with regard to social and property relations.h.i.+ps, and political rule limited by transparent and predictable law-were created by a premodern inst.i.tution, the medieval church. Only later would these inst.i.tutions prove useful in the economic sphere.