Law and Theology in the Middle Ages

G.R. Evans

• Publisher: Routledge
• Year: 2012
• Print ISBN: 9780415253277
• eBook ISBN: 9781134526154
• Topic: Theology & Religion
• Subtopic: Religion

An unrivalled introduction to a fascinating subject, Law and Theology in the Middle Ages explores the relationship between law and theology in medieval Europe. Focusing on legal and theological responses to justice, mercy, fairness, and sin, this text examines the tension between ecclesiastical and secular authority in medieval Europe, illustrating areas of dispute in a clear and accessible way.

Part I

Good behaviour

1 The justice of God

Adam and Eve handed themselves over to Satan by their own free will when they sinned. To the eyes of a feudal age, it seemed that Satan gained rights over them as their lord when they did that.¹ When God became man, it was alleged, Satan tried to extend his jurisdiction to Christ; but Christ was sinless and so Satan could have no rights over him. Had he lost his rights of dominion over the rest of humanity too by that attempted abuse of his rightful authority when he tried to make Christ his own? Would justice require that the wronged party, Christ, thus rightfully acquired the jurisdiction Satan had forfeited by his own unlawful act?²

It was important to make the case in this way, because otherwise God could be thought to have done Satan an injustice, or, to put it in more precise legal terms, to have committed what was technically in Roman law an ‘actionable insult’³ in taking mankind back for himself by the death of Christ.⁴ For if all human flesh had been unclean, it would properly have remained subject to Satan and God would have been a thief of Satan's rightful property.⁵ God would have been in the wrong in acting contra ius diaboli. But since Christ was free of sin, the Devil had no right (ius) over him.⁶

Not all contemporaries accepted this legally coloured version of the old story of the war between good and evil. In his Cur Deus Homo, the monastic theologian Anselm of Bec and Canterbury was insistent that the problem of human sin was a matter not involving any rights of the Devil at all; he gives an account of what was needed and what was done, in which only man and God are concerned. His explanation goes deeper than feudal categories. It assumes both mutual obligation, and ownership (in feudal terms) of one person by another. But it also understands there to be a moral duty of obedience to the supreme Justice (who is God himself). The ‘court case’ metaphor thus rides on profounder assumptions about divine justice.

As the jurist Baldus puts it in the fourteenth century, the justice of the creator was from eternity, before the world was made;⁷ but the jurisconsult can speak of such things only as a creaturely human commentator. He and the theologian are both contemplating the same supernatural reality, of God acting in the judicial process of a sinful world, with the same unavoidable limitations of understanding.

The mediaeval Christian theologian and the mediaeval Christian lawyer both have to begin from the nature of God. For such thinkers it is uncontroversial that whatever God is, he is by definition that which it is to be just and true; and more, he is substantively justice itself and truth itself.⁸ It follows that his actions will reflect his justice and mercy. So in order to define or discover where ‘justice’ and ‘mercy’ lie, we need to look at the clues to be found in the divine behaviour.

Yet on the face of it, the divine behaviour is contradictory if God is not only absolute justice, but also absolute mercy. Since God cannot be at war with himself, his mercy and his justice must somehow be one. It is a paradox of this attempt to balance justice and mercy, severity and relaxation of due penalty, that justice and mercy may in fact be the same thing. It is just to help one's neighbour but it is also merciful.⁹ The difference is that what is done out of obligation is just, but what is done out of compassion is merciful.¹⁰

Anselm of Canterbury tackles variants of this problem in the late eleventh century in the Proslogion, where he is concerned to demonstrate not only that God exists, but all that the faith holds about the attributes which make up his nature. These are often paradoxical. In Chapter 8 Anselm explains that God can be both merciful and incapable of suffering (impassibilis), even though it would seem that mercy requires fellow-feeling with sufferers. Anselm argues that this is possible because although we experience his mercy as an effect, God does not ‘feel’ any emotion (tu non sentis affectum).¹¹ Anselm goes on in Chapter 9 to consider the ‘justice and mercy’ problem directly. He asks how it can be an act of supreme justice to give eternal life to those who deserve death.¹² He argues – in line with his basic principle in the treatise that God is whatever it is better to be than not to be¹³ – that it must be better for God both to punish and to spare than for him only to punish.¹⁴ To do the first is to give sinners their deserts and that is therefore just; to do the second is in accordance with God's own goodness (bonitati tuae condecens est) and it is therefore also just.¹⁵ He takes this a little further in Chapter 11, where he places side by side the two apparently contradictory texts, ‘All the ways of the Lord are mercy and truth’: universae viae domini misericordia et veritas (Psalm 24.10) and, ‘Just is the Lord in all his ways’: iustus dominus in omnibus viis suis (Psalm 144.17). These he reconciles with the explanation that those whom God wishes to punish, it is just to punish and those to whom he wishes to show mercy it is just to save.¹⁶ The justice and mercy of God are thus applied or deployed ‘appropriately’ for each sinner.

This Anselmian position, although it contains elements peculiarly Anselm's own, rests on assumptions set out by Augustine. Augustine argues that God condemns all men justly, for in Adam all have sinned. In the Enchiridion¹⁷ Augustine says:

Would it not have been just that such a being who rebelled against God, who in the abuse of his freedom spurned and transgressed the command of his Creator when he could so easily have kept it, who defaced in himself the image of his creator by stubbornly turning away from his light, who by an evil use of his free-will broke away from his wholesome bondage to the Creator's laws – would it not have been just that such a being should have been wholly and to all eternity deserted by God and left to suffer the everlasting punishment he had so richly earned? God would certainly have done so, if he had been only just and not also merciful. He intended that his unmerited mercy should shine forth the more brightly in contrast with the unworthiness of its objects.

Mediaeval theologians are concerned with yet another contradiction arising out of this puzzle about justice and mercy. God sets a standard of justice which is beyond the attainment of fallen humanity. It is therefore one which all human beings have in fact failed to meet, and which thus involves God himself in a sort of ‘litigation’ with sinful men, and in its turn it prompts actual lawsuits in the ordinary world. ‘As Justinian bears witness’, he says, human nature is ready and prone to sin, so that daily, one after another, quarrels start and lawsuits multiply. This in itself directly generates litigation.¹⁸ The administration of justice, in the system and the period with which we are concerned, is inseparable from the assumption of the – ‘positively pullulating’ – universal sinfulness of the human condition, as Bernardus Dorna the procedural theorist of a century after Anselm, puts it.¹⁹ At this contradictory interface the problem is whether God can possibly be just if he is demanding a standard of behaviour which it is impossible for fallen human beings to attain.

There is further underlying tension here, between an immutable standard set by God in divine law, and the legitimate variability of human law, both in its framing in different places, and in its application to different persons. In the famous tag, the Digest defines justice as the constant and enduring will to give each what is proper to him. Iustitia est constans et perpetuum voluntas ius suum cuique tribuens.²⁰ Cicero had said something very similar. In the De Inventione he takes it that justice is a habit or disposition of mind maintained for the common good, and respecting each as he should be respected: Iustitia est habitus animi communi utilitate conservata suam cuique tribuens dignitatem.²¹

The principle that justice is the will to ensure that everyone always²² gets his just deserts, with its requirement that justice should be adapted to individuals and circumstances, makes for untidiness and for inequity. Thus a twelfth-century commentator asks, knowing he is posing a crucial question, whether right itself is immutable (ius immobile).²³

There is a late fourth-century story in Jerome's first Letter of a trial in which the possibility is canvassed of the law saying one thing, the divine requirements of justice another. At the proposed execution of an innocent woman mistakenly found guilty of adultery,²⁴ it proved at first impossible to get the sword to cut into the woman's flesh.²⁵ She who was condemned by the judge was absolved by the sword, says Jerome.²⁶ For the sword here was ultimately in God's hand.

So the administration of justice in the Middle Ages is expected to answer ultimately to a higher authority than the judiciary, or indeed the legislature,²⁷ of a given time and place. But at the same time, issues of justice and injustice have a well-defined forensic context, either literally or metaphorically, and in that forensic context particularities tend to challenge, and even sometimes seem to interfere with, justice at its purest and highest.

To the pragmatist lawyer, the law is simply ‘a body of rules prescribing external conduct and considered justiciable’.²⁸ This recognition that the pursuit of absolute justice and the conduct of litigation are different things is a key point at which the theologian and the lawyer find themselves unable to speak the same language of expectations. The mediaeval theologian deals in absolutes. The lawyer adjusts his categories to the matter in hand. They are both doing so with an eye on a divine standard of justice which, while in principle absolute, is also complex in the face it presents to mankind, and especially to those, theologians and lawyers, whose professional task it is to make sense of it.

2 Sin and breaking the...

Table of contents

• Front Cover
• Law and Theology in the Middle Ages
• Title Page
• Copyright
• Contents
• Preface
• List of abbreviations
• Introduction: law and theology
• PART I Good behaviour
• PART II Theology and putting law into order
• PART III Theology and the teaching of law
• PART IV Law and theology in procedure
• PART V Inquiry, inquisition and summary procedure
• PART VI Outcomes
• Notes
• Bibliography
• Index