The History of Jurisprudence:  The Catholic Tradition


Catholic jurisprudence was formed by the rules and regulations that governed the communities and institutions of Christendom from the birth of Jesus to the Protestant Reformation in the sixteenth century.  Canon (Ecclesiastical) law was established by early Christian communities that were skeptical of law.  The word canon reflects their skepticism.  In Greek, canon means a device with which things were measured.  Early Christians did not want to call their usages Alaws.@  Nevertheless, between the first and the fifth centuries Christian communities established rules through custom, conciliar canons, and papal decretals.  Canon law eventually became a very sophisticated legal system.  It is the only legal system that we can trace from its birth to its maturation as a part of the Ius commune from 1100 to 1800.


Jurists who taught canon law and wrote commentaries on between ca. 1100 and 1800 combined the hardheaded concerns that jurists in every legal system have --- procedural rules, civil and criminal justice, institutional governance --- with a focus that most legal systems do not have in their formative stages:  a need to fit the positive law of the Christian Church into the larger framework of divine law (especially the teachings of the New Testament), natural law, the law of peoples (ius gentium), and justice. These jurists were the first to coin the phrase positive law (ca. 1200) and discuss in depth its relationship to higher norms.   The result was a jurisprudence that created many of the ideas, concepts, and norms that we think of as central elements of our legal system.  The jurists of the Ius commune were the first to parse the concepts of justice, equity, rights, due process, natural law, necessity, the common good, the inviolability of contracts, individual property rights, and many others that have become part of  the European and American legal traditions.  The focus of this course would be the rich history of this jurisprudence.