Here’s a thought I had:
I have often said that we are still in a reaction to feudalism. But, to be more precise, its not really feudalism we’re reacting to but an aspect of it: legalism. This is something that has had great impact on Western society. It has caused things such as:
- It has justified injustice and unfairness
- Revolutions and conflicts have been a result of legalism
- Solutions have been found by using legalism
- It has kept an order
- It has created a condition that is rigid and unchanging
So we see that legalism has both good and bad qualities.
By “legalism” I mean the effects of using law, the legal system, and legal theory in such a way that it creates a rigid and unchanging condition. This has helped to hold things together and keep order but it can also cause conflicts.
Legalism consists of things like:
- The use of legal documents
- The use of signing and other forms of “sealing” agreements
- The use of a rigid and defined legal theory
- The use of people trained in law, such as lawyers
- The use of legal proceedings, such as courts
- The use of some form of authority as justification and right
I should point out that legalism, as I use it here, is not the same as “law”. To me, legalism is a specific way of using law. Qualities of this include:
- Its very organized.
- It has great authority. In many ways, law has more authority than royalty and even religion
- It tends to view itself as infallible.
- It tends to rely on pre-established and documented ways.
- It is very controlling.
- It tends to be dictatorial.
- It is very rigid. In fact, the problem of legalism is that it creates a rigid and unchanging condition . . . this made it almost impossible to change anything. By the 1700’s this reached a crisis (see below).
These qualities seem to describe that legalism is a product of an authoritarian self-righteous society. This society is, in actuality, the combination of the Roman Empire and the Catholic Church . . . the society of the Christian conversion. This created the basic tone and qualities of legalism but I do not think it established it in the society. It appears, to me, that legalism became established as a system in society as a result of feudalism.
THE BEGINNINGS OF LEGALISM – ROME AND CHRISTIANITY – THE “LEGAL CONVERSION”
Legalism is closely associated with the Roman Empire and Christianity. It was brought up north by the Christian missionaries who brought up Roman law along with it. In this way, legalism is part of the process of the Christian conversion. The use of Roman law would lay the foundation for legalism. In this way, the Christian conversion was not only a religious conversion but a “legal conversion”.
It appears that the use of Roman law reflected Christianities early attempts at modelling the new Christian world on the Roman Empire. As a result of this, Christianity often modeled its organization on the Roman Empire (such as the creation of a Pope in Rome, much like the Roman Emperor).
FEUDALISM AND LEGALISM
Initially, feudalism was a social structure that was in response to conditions of war by a limited farming community. It was based in a defined social structure with defined roles. It needed people to do specific things to work to keep the society going. It ended up creating a strong aristocratic and peasant society.
Much of the structure of the feudal system was based in legalism and needed it to hold it together. For example, people would sign or mark legal documents of fealty that were so binding that they were practically sealed in stone (some being binding for centuries after words!). This is why I often say “feudalism is legalism”.
In the early years feudalism worked and is, in many ways, responsible for holding Europe together during those difficult times. But, later, as conditions changed, the social structure of feudalism didn’t work as well. The legalism of feudalism, though, continued because of its rigid, binding, and unchanging character. This kept many qualities of feudalism going for years after it lost its value. Something like a tug-of-war happened. On one side was the changing conditions. On the other side was a legalism-based feudalism that was rigid and unchanging. It created a condition where things couldn’t change. One of the things that couldn’t change include many laws associated with the nobility and aristocracy. Basically, everything was in their favor, by law. These became an obvious abuse by the mid 1700’s. But the inability to change these laws caused many conflicts from the late 1700’s and well into the 1800’s. These conflicts include:
- The French Revolution
- The idea of democracy
- Growing legal theory and practice
These conflicts basically created the modern world. One could very well say that the creation of the modern world was greatly a result of the rigidity and unchanging qualities of legalism which had to be “broken”.
But, oddly enough, the legalism that helped caused the conflicts would grow and grow in the 1800’s but in a new form. In the late 1900’s they’d grow even more. As a result of this, Western society has become a “legalistic society”, based in the legalism established by feudalism. Remember that the legalism of feudalism became an abuse because of its inability to change. In the same way, “legalistic society” has also become an abuse, but in other ways. We are all familiar with the “legal crisis”, of ridiculous lawsuits, laws, lawyer corruption, etc. These are probably following in the footsteps of legalism and describes a trait that seems inherent in legalism. This means, more or less, that legalism often has a tendency to become an abuse after a while. There seems to be a progression:
- Legalism is used to deal with a specific situation or condition.
- Legalism works well under those conditions.
- When the conditions change, the legalism is too rigid to change with the new conditions.
- The legalism becomes disassociated from the new conditions but persists.
- There becomes a conflict between the rigid legalism and current conditions.
- Legalism becomes an abuse.
This abuse can do a number of things, such as:
- A medium of corruption
- Continues an injustice or injustices
- An incentive to change the law
LEGALISM AND POLITICS – THE INFLUENCE OF ROYALTY
Legalism was greatly utilized by royalty. In many ways, royalty established legalism as a power and force in society. In fact, it seems that royalty, in association with feudalism, introduced legalism into politics. It appears that royalty used it for similar reasons as Christianity. Being the rulers of the land, royalty wanted to create a new Roman Empire and used it, and its laws, as a model. They ended up using it quite extensively. It has now become integral to Western government, the state, and legal systems. The effects of this have continued down to today.
EXPANDING LEGALISM – THE INFLUENCE OF THE UNIVERSITY
The rise of the University, and the inquiry into Roman law that followed, caused some changes in the law. It created a new form of legalism, an “intellectual legalism”. It caused things such as:
- It turned law into an overly intellectual and “cranial” affair. It turned law into an endless “nick picking” that continues to this day, of an obsessive concern over details, trivialities, wordings, documents, as well as this, that, and the other thing.
- The University turned law into a world unto itself with its own logic and interpretation of things. Because of this, it became removed, detached, and alienated from life.
- Law became difficult, if not impossible, to understand by common people
- It made it so that law is something exclusive to a small group of people (that is, people of the legal profession).
- It made law even more rigid.
- It made law difficult to change.
- It gave law more authority and power.
- It gave more avenues for law to become tyrannical, corrupt, and abusive. I always thought that if legalism had the influence of a government it probably would of created a very tyrannical and controlling system, probably surpassing any government. But we are saved in the fact that legalism is a limited element in society with a specific function.
- It turned law into an ultra-organized system.
- It made law more effective, useful, and broadened its value and function.
LEGALISM AND AUTHORITY
Legalism seems to be based in an “assumed authority”. In other words, it seems vague as to the origin of its authority . . . its just “assumed” to have authority. In the past its often been associated with Christianity, Royalty, and eventually government or the state, as described above. These really describe an “association”, not necessarily a “source” of its authority. This suggests that legalism, by itself, has no authority. Its authority does not originate from itself but from what its associated with.
Some things that make it an “assumed authority”, and needing an authority to be associated with, include:
- Its based in an attempt at creating a new “Roman Empire” and is as if using it as authority. Remember that this was after the Roman Empire fell and is based in the idea of recreating it.
- The use of Roman law was implemented, and placed upon society, by a small minority of the population. The rest of the population had no hand in it nor agreed with it. In this way, the Roman law these minority of people placed on society was not based in any authority the people acknowledged.
- Its foreign in origin and not based in cultural belief and authority.
LEGALISM AS SOMETHING FOREIGN
It seems, to me, that legalism is something that was forced upon Western society. In other words, it is not something that is indigenous to Western society and does not reflect its culture and character. It came in as part of Christianity, which was also forced upon Western society, and is foreign to its culture. This, I always felt, is one of the reasons why legalism seems so removed and detached from society. To me, a lot of legalism seemed out-of-place in this society . . . it just doesn’t seem to fit in. Its like some other world, with its own detached understanding and view of the world, that no one understands.
Legalism is as strong as ever, perhaps more so than during the era of feudalism. It has changed, though. For example, democracy is nothing but a new form of legalism based on the feudal based legalism and the reaction toward it. One could probably very well say that Western society is a ‘neo-feudal legalism’.
Copyright by Mike Michelsen