Why the Middle Ages Matter

Medieval Light on Modern Injustice

Celia Chazelle, Simon Doubleday, Felice Lifshitz, Amy G. Remensnyder, Celia Chazelle, Simon Doubleday, Felice Lifshitz, Amy G. Remensnyder

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9780415780650
• eBook ISBN: 9781136636479
• Topic: History
• Subtopic: World History
• Index: History

The word "medieval" is often used in a negative way when talking about contemporary issues. Why the Middle Ages Matter refreshes our thinking about this historical era, and our own, by looking at some pressing concerns from today's world, asking how these issues were really handled in the medieval period, and showing why the past matters now. The contributors here cover topics such as torture, marriage, sexuality, imprisonment, refugees, poverty, work, the status of women, disability, race, political leadership and end of life care. They focus on a variety of regions, from North Africa and the Middle East, through Western and Central Europe, to the British Isles.

This collection challenges many negative stereotypes of medieval people, revealing a world from which, for instance, much could be learned about looking after the spiritual needs of the dying, and about integrating prisoners into the wider community through an emphasis on reconciliation between victim and criminal. It represents a new level of engagement with issues of social justice by medievalists and provides a highly engaging way into studying the middle ages. All the essays are written so as to be accessible to students, and each is accompanied by a list of further readings.

1

Crime and Punishment

Penalizing without Prisons

Celia Chazelle

With an incarcerated population of over 2.3 million, the US has more people and a higher percentage of its population behind bars than any other country.¹ If we add those on probation and parole, over seven million – more than 90 percent male – are under American penal supervision. In 1970, fewer than 200,000 Americans were incarcerated. Since then, crime rates have fluctuated and are now roughly where they were in 1973, yet our prison population has steadily grown. Much of the growth stems from tougher drug legislation passed during the last three decades; about one-third of incarcerations today are for drug offenses, mostly nonviolent.² These policies affect more middle class white Americans than we may realize, yet the impact on them is tiny compared with that on minorities – especially black men – from poor urban neighborhoods and our inner cities.³ If present trends continue, one-third of African-American men will go to prison during their lives; of those who do not finish high school, almost 60 percent serve prison sentences by the age of 40.⁴ Many black urban children grow up thinking of prison as a normal part of adult male life and barely knowing incarcerated fathers, partly because the facilities to which most inmates are sent lie more than a hundred miles from their home communities. The prisons support the economies of those largely rural white locales, while the inner cities bearing the brunt of crime remain impoverished.

Experts who study prisons today know that history is valuable if we are to solve the problems of our penal system. Numerous studies draw comparisons between modern American prison policies and earlier penal customs in Europe and the US, or trace the evolution of prisons from the past to the present. Like Michel Foucault’s classic 1975 work, Discipline and Punish: The Birth of the Prison, however, most of this scholarship pays little attention to the European middle ages and even less to the early medieval centuries, the so-called Dark Ages of c. 500–1100. True, incarceration was rare in early medieval Europe. Yet precisely for this reason, it is useful to examine some of the very different penal practices of that era as we think about how we might improve those of today. In the following pages, I first review the common judicial penalties of early medieval Europe in light of recent scholarship and the textual and archaeological record. I then look at the intersection of poverty, crime, race, and incarceration in American inner cities, focusing on Camden, New Jersey. Here the sources are both studies in sociology and criminology, and my own experiences working in a Camden neighborhood and teaching in a New Jersey state prison. At the end of the essay, I consider how this juxtaposition of early medieval to modern suggests policy changes that might lessen the negative effects of American prisons, in particular on minority urban neighborhoods.

The principles of community and reparative justice and their analogies to recorded early medieval procedures for handling disputes lie at the heart of the reforms I discuss. Despite all our lip service to rehabilitation as a penal goal, early medieval people were more concerned than we are about reintegrating wrongdoers into society. In traditional criminal justice in the modern US, the accused is compelled to appear before a formal judicial apparatus that listens to representations from the different parties – defendants, victims, witnesses, lawyers – but then reaches a supposedly disinterested decision about guilt or innocence and, in the former case, about punishment, often incarceration. In contrast, early medieval sources report many acts – sometimes even murder – that we would classify as criminal, yet are presented there as disputes. To resolve them, offenders negotiated settlements with their victims, victims’ representatives, and community members. Settlements typically hinged on the payment of reparations or compensation along with, frequently, the performance of penance or other rituals of humiliation that ideally reestablished – according to reports – friendship or “love” between the antagonists and community peace.

Similarly, modern community justice programs sometimes encourage reparative sanctions as alternatives to incarceration. Usually in these programs, governments yield partial jurisdiction to community residents, who work with municipal police to address the conditions encouraging crime and to deal with incidents in ways that limit the resort to prisons. When crimes occur, community panels may mediate among the different parties; taking individual circumstances into account, they devise responses intended to assist both the victim and the neighborhood as a whole. A guiding concern is the damage that wrongdoing inevitably does to social bonds throughout the community. The hope is that the penalty – reparations, perhaps in the form of work service – will compensate for damages and heal the divisions between offenders, victims, and other residents. Observing that offenders undertake “a species of secular penance” for the harm done not just to one person but to many, one expert in this field unknowingly echoes early medieval ideas. The penalty, he explains, offers “an apology” to victims and the wider public.⁵

Early medieval practices underscore the value of community and reparative justice for responding to nonviolent offenders in cities like Camden and, further, point toward initiatives that could provide similar benefits when dealing with violent offenders. Among the advantages of looking at modern penal policies through the lens of early medieval justice, one is that it reveals the particular importance of family and social networks to community wellbeing.

Early Medieval Justice

The best known medieval European judicial punishments are no doubt the spectacularly dramatic, painful torments seen in Hollywood films and Far Side cartoons: bodies broken on wheels and hanging from public gallows, beheadings, burnings, tortures like the thumbscrew and the rack. Foucault famously begins Discipline and Punish with a lurid account of the torture and drawing and quartering of Damiens, the would-be regicide (king-killer), in Paris in 1757. For Foucault, this scene harked back to a medieval emphasis on punishing the body, an approach to crime for which, he asserts, modernity has substituted the equally coercive punishment of prison. We now realize physical torture is still with us; but most Americans would agree that prisons illustrate our modernity, and most – unlike Foucault – believe these institutions are far more humane than any penalties of the middle ages.

Medieval records, however, reveal a more nuanced situation. The majority of the sources for studying medieval penalties date from the twelfth and later centuries. The evidence is sparser for the early middle ages, yet people then, too, were familiar with a host of painful practices. Early medieval lawcodes enjoin execution for offenses ranging from homicide to adultery to relapsing into paganism. Narrative sources tell of kings and aristocrats who condemned enemies to exile or death, and of lords who commanded that dependents be branded, blinded, or lose noses or ears. Courts ordered torture and ordeals – such as trial by fire, where the suspect walked on burning coals, or trial by water where he or she picked an object out of boiling water. Skeletons unearthed from burial grounds show the effects of decapitation, amputation, and limbs bound possibly for hanging.⁶ Furthermore, while imprisonment was unusual, it was not absent, and again the experience must have been decidedly unpleasant. Nobles who rebelled against kings, priests who disobeyed bishops, and slaves or serfs (people of servile or unfree status) who tried to escape were sometimes confined in monasteries; some religious houses had a special room called a carcer – the origin of our term, incarceration – where misbehaving monks were kept until they repented. Probably worse off were those offenders confined by secular authorities, often with chains, in dungeons or other dismal spaces. Many were evidently locked up only until they could be brought before lords or courts and another penalty like a fine or execution imposed. But some people clearly died in those places.

All these practices would seem to confirm popular ideas about Dark Age barbarism and to prove we have done well to leave that era behind us. Frequently omitted from this picture, though, is an array of early medieval penal customs rooted in the dearth of centralized government and, accordingly, in the importance of small-scale, local, and regional networks. Most early medieval European kingdoms were much smaller than those of the later middle ages, and in general, the governing elites – rulers and high-level nobility – were politically weaker than at any other point in Western history. Even in the Carolingian Empire, which covered most of western continental Europe in the ninth century, it was hard for emperors, kings, or aristocrats to exercise authority much beyond their courts or at the lowest social levels. A corollary is that common people had exceptional autonomy relative to other historical periods. Countless non-elite minor nobles and peasants lived in more or less independent agrarian households and communities that managed their affairs locally, with little outside interference. In modern American cities, the poor live under significantly more “state” control than they did in early medieval Europe. Medieval church authority was equally patchy. Bishops of minor dioceses, monks and nuns of small religious houses, priests overseeing local saints’ shrines, and village clergy distant from the main centers of wealth and privilege were often left on their own, not bothered by the higher echelon of bishops, archbishops, and the pope.

At the lowest social ranks as at the top of these hierarchies, personal connections were critical to the work of justice. Much as today, when the famous and well connected are the least likely to be imprisoned or executed, knowing the right people counted for a lot. Some ties that made a difference were familial: extended, overlapping, shifting associations of “kinship” that could encompass parents, children, and varied relations by blood, marriage, godparentage, adoption, and friendship. Additionally, just about everyone was conscious of their social class and of legal or customary responsibilities binding them to those higher and lower on the social ladder. Serfs were subject to lords, women to husbands and brothers, peasants to the local nobles, priests to bishops, and so on. Overall, the severest judicial reprisals were suffered by individuals who, when they ran afoul of more powerful people, lacked relatives, friends, lords, or patrons with sufficient clout to resist and the desire to do so. For them, penalties could be harshly punitive: death, maiming, flogging, and the like. Such unfortunates might include women punished by male relatives because of their sexual offenses; men abandoned by allies to face powerful enemies alone because their reckless behavior endangered the group; homeless exiles cut off from families and entangled in other villages’ strife; and doubtless huge numbers of slaves, serfs, and free but poor peasants whom lords decided, whatever the reason, not to spare when they got into trouble.

Many times, however, social disturbances were handled as disputes without any “big men” around to wield power unilaterally. Either the disputants possessed roughly equal status and influence, so no side was strong enough simply to impose its will; or if one party was weaker, it still had enough power to defend its interests, and the opposing side had to negotiate to end the conflict. Most recorded early medieval disputes were between nobles, monasteries, or clergy over property; but violent offenses such as rape, kidnapping, and homicide, at all social levels, could be addressed in this manner. Feud, we should bear in mind, was widespread in this period. Cycles of tit-for-tat vengeance, sometimes low intensity with sporadic violence, might persist for years before adversaries stopped fighting and started talking. When they did so, knowledge of law mixed with local custom might play a role; yet typically, the driving concern was less to follow specific laws than to make peace. To the extent that the conflict was treated as a dispute, the settlement had to be accepted by every party involved.

Just as neighbors today can end their quarrels peacefully without calling police or lawyers, early medieval disputants might resolve their differences alone or with help from only a few supporters. Other disputes were brought for mediation or arbitration before larger groups of relatives and neighbors or external courts convened by aristocrats, bishops, or royal representatives. More often, though, if disputes were not settled extra-judicially, assistance came from local courts somewhat akin to modern community justice panels: assemblies led by clergy, landowners, or other influential men of the neighborhood. It is important not to underestimate the frequent messiness of these proceedings. Local “bosses” could manipulate an affair to their personal benefit, throwing support to one side in exchange for loyalty in other matters. Multiple powerbrokers might take opposing sides and intensify the conflict, with tensions spilling into new violence. Courts could demand ordeals, and the poor and powerless mixed up in their lords’ disputes might be tortured. Gaining help from relatives and friends required negotiations and jockeying for position, with promises of future recompense. If the bartering failed and allies turned against disputants, the latter might encounter unanticipated retribution. When harvests were bad, communities may have been more likely than on other occasions to “settle” disputes by banishing or executing some participants. If nothing else, the punishments decreased the number to feed, and troublemakers could be blamed for bringing God’s wrath on others.

Yet a notable feature of reported early medieval dispute settlements is how often they depend not on a physically severe penalty such as exile or execution, but on reparations. Although historians sometimes associate the reparative sanctions mentioned in our sources with the early medieval term, wergeld, meaning “man money” or the price for killing someone, payments could compensate for other wrongs besides murder. Early medieval lawcodes list precise amounts for many offenses, but like other aspects of settlements, and like the penalties in modern community justice, what was owed depended in practice on the circumstances. The basic concept underlying the bargaining in early medieval disputes is the same as that underlying modern community justice deliberations: reciprocity. This principle was implicit in feud as well: every injury should induce equivalent hardship in return. The factors weighed in determining reparations, however, could be quite complicated. The penalty might need to measure up not only to the nature of the offense but to demands by big men trying to direct the affair to their advantage and, almost invariably, to the factors informing the disputants’ own sense of honor and outrage, such as the gender or rank of victims and offenders. Feelings of honor and shame were as important in early medieval relations as they are among modern urban street gangs.⁷ To be the victim of an offense was degrading; it hurt one’s social standing and that of family and allies. For the victim or victim’s circle to give up the right to retaliation, the recompense had to outweigh not simply the loss of goods or life but also the humiliation.

Offenders, too, worried about their honor and that of family and friends. Those who thought a proposed resolution was too shameful and had the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• List of contributors
• Acknowledgments
• A note to readers
• Introduction
• 1. Crime and punishment: Penalizing without prisons
• 2. Social deviancy: A medieval approach
• 3. End of life: Listening to the monks of Cluny
• 4. Marriage: Medieval couples and the uses of tradition
• 5. Women: The Da Vinci Code and the fabrication of tradition
• 6. Homosexuality: Augustine and the Christian closet
• 7. Sexual scandal and the clergy: A medieval blueprint for disaster
• 8. Labor: Insights from a medieval monastery
• 9. Disability?: Perspectives on bodily difference from the Middle East
• 10. Race: What the bookstore hid
• 11. Refugees: Views from thirteenth-century France
• 12. Torture and truth: Torquemada’s ghost
• 13. Class justice: Why we need a Wat Tyler Day
• 14. Leadership: Why we have mirrors for princes but none for presidents
• Index