A Cultural History of Law in the Middle Ages

Emanuele Conte, Laurent Mayali, Emanuele Conte, Laurent Mayali

• Publisher: Bloomsbury Academic
• Year: 2021
• Print ISBN:
  9781350368330
• Edition: 1
• eBook ISBN:
  9781350079281
• Topic: History
• Subtopic: European Medieval History
• Index: History

In 500, the legal order in Europe was structured around ancient customs, social practices and feudal values. By 1500, the effects of demographic change, new methods of farming and economic expansion had transformed the social and political landscape and had wrought radical change upon legal practices and systems throughout Western Europe. A Cultural History of Law in the Middle Ages explores this change and the rich and varied encounters between Christianity and Roman legal thought which shaped the period. Evolving from a combination of religious norms, local customs, secular legislations, and Roman jurisprudence, medieval law came to define an order that promoted new forms of individual and social representation, fostered the political renewal that heralded the transition from feudalism to the Early Modern state and contributed to the diffusion of a common legal language.

Drawing upon a wealth of textual and visual sources, A Cultural History of Law in the Middle Ages presents essays that examine key cultural case studies of the period on the themes of justice, constitution, codes, agreements, arguments, property and possession, wrongs, and the legal profession.

CHAPTER ONE

Justice

JOSHUA C. TATE

JUSTICE IN MEDIEVAL CULTURE

In the thirteenth century, the author of the treatise known as Bracton attempted to explain the term iustitia, or justice.¹ Justinian’s Institutes had famously defined iustitia as the “constant and perpetual will to give to each his right (constans et perpetua voluntas ius suum cuique tribuens) (Inst. 1.1).” According to the author of Bracton, however, this could be interpreted in two ways. On the one hand, justice could come from God, who neither erred nor varied in treating his creations according to their just deserts. On the other hand, justice could be done by men, whose decisions were less reliable. For human judgments, “to give each his right refers to what is intended not to what is done, as the emperor is called Augustus not because he always augments his empire but because it is his intention to do so” (Bracton, f. 2b, II, pp. 22–23 – trans. Thorne). Thus, human justice was fallible, but could be called constant nonetheless so long as it was done with good intentions.

Throughout the Middle Ages, men of all sorts—poets, sculptors, and illustrators; lawyers, philosophers, and theologians; kings, monks, and bishops—were confronted with this fundamental distinction between divine and human justice. Their efforts to come to grips with this dichotomy both shaped, and were shaped by, medieval culture. Artists often depicted the figure of justice as a heavenly inspiration for the virtuous ruler, but also showed how justice on earth might fall short of that ideal. Canonists and civilians debated the possibility that the will of a prince, having the force of law, could nonetheless be lacking in reason. Meanwhile, real-life kings and bishops developed parallel systems of justice that at times complemented each other, and at other times competed for legitimacy. These developments in thought and action helped produce one of medieval Europe’s most famous contributions to the history of justice: the Great Charter of King John of England, commonly known as “Magna Carta.”

IMAGES OF JUSTICE

In medieval art, the figure of Justice is often represented pictorially alongside the other cardinal virtues. The arrangement of the scene can give important clues as to the artist’s understanding of divine and human justice and how they relate to one another. A dedicatory miniature in the Book of Gospels of Henry II, dating to between 1014 and 1024, is a good traditional example of how the figure of Justice might be portrayed (Katzenellenbogen 1939: 36). At the center of the image sits the emperor, holding the orb in his right hand and raising his left hand in a sign of benediction. Above his head is a descending dove symbolizing the Holy Ghost, blessing the emperor (“Spiritus alme Deus regem benedicto clemens”). The figures of Justice and Piety appear in the upper left and right corners of the frame, while Wisdom and Prudence appear at the emperor’s right and left.

The most interesting elements of the miniature appear at the bottom of the frame. At the bottom left and right are figures representing Lex and Ius, statute and general law. Between these figures, and at the emperor’s feet, a scene of judgment is depicted. A figure with his sword drawn awaits the emperor’s command to behead a prisoner or “tyrant” (“Caesaris ad nutum dampnant lex jusque tyrannum”), who kneels at the swordsman’s feet with outstretched hands, begging for mercy. Looking down from the top of the frame, the image conveys the message that God will bless the emperor as he decides the prisoner’s fate, and he will be guided by wisdom and prudence, but will rule according to statute and general law. In this scheme, the figures of Justice and Piety appear somewhat superfluous, observing the proceedings from a distance but not in a position to sway the emperor’s decision.

Images of emperors and other princes dispensing justice were often incorporated into illuminated manuscripts of legal texts. Illustrations from a Durham manuscript of the Institutes and Code, for example, depict the enthroned emperor Justinian sentencing and rendering judgment, surrounded by various jurists, advisers, scribes, and other servants (L’Engle and Gibbs 2001: 81). The famous opening phrase of the prologue to the Institutes, stating that imperial majesty ought to be armed with laws as well as graced with arms (“Imperatoriam maiestatem non solum armis decoratam, sed etiam legibus oportet ese armatam”), is illustrated in the Durham manuscript by an image of Justinian flanked by armed warriors in chainmail at his right and lawyers and jurists at his left (L’Engle and Gibbs 2001: 87). In these images, the emperor is shown seated, and he is also depicted with his right leg crossed over his left, a traditional posture associated with the rendering of judgment.

These depictions of Christian emperors suggest an idealistic notion of divinely inspired kingship. However, another story may be seen in representations of martyrs in religious texts. Some of these manuscripts depicted the judges who condemned the martyrs as evil, giving them ugly features, having them cross their legs the “wrong” way (left over right, rather than vice versa), depicting them with sabers of the sort used by Saracens, or otherwise discrediting them with unconventional imagery (Billoré and Dehoux 2015: 181–185). However, most images of secular princes passing judgment over martyrs depict them in conventional fashion, seated, wearing a full cloak, with the right leg crossed over the left (Billoré and Dehoux 2015: 185–189). The illustrators might have been using traditional imagery without thinking about its ramifications, but it is also possible that they believed the judge’s decision condemning the martyr to be in accordance with God’s plan, and not necessarily reflecting a flaw in the judge’s character.

Over the course of the Middle Ages, traditional depictions of justice gave way to more complex and sophisticated imagery. In two famous frescoes painted around 1339 in the Palazzo Pubblico in Siena, Ambrogio Lorenzetti used the figure of Justice to illustrate the differences between bad and good government (Resnik and Curtis 2011: 26–28). The frescoes have been given the modern titles Allegory of Bad Government and Allegory of Good Government. Medieval visitors to the Palazzo would have seen the Allegory of Bad Government on the west wall as they entered the building (Starn and Partridge 1992: 18). This fresco showed a frightening scene of the Court of Tyranny, in which a tyrant with horns and fangs sat enthroned with his feet resting on a goat. The female figure of Justice lay bound at the tyrant’s feet, while scenes of robbery, assault, and murder played out in the wings. An inscription in Italian explains that tyranny prevails when justice is bound (“Là dove sta legata la giustizia, nessuno al ben comun giammai s’accorda né tira a dritta corda, però convien che tiranni sormonti.”).

The Allegory of Good Government, which graced the north wall, depicts a far happier scene, in which the figure of Justice actually appears twice. At the far left of the fresco, Justice sits on a throne balancing scales held by a figure representing Wisdom. She appears again at the right of the fresco, along with several other virtues who are shown to be advising the ruler. The message is reinforced by another inscription, praising Justice as the source of unity among the citizens (“Questa santa virtù, là dove regge, induce ad unità gli animi molti”), always giving to each his right (“la qual sempr’a ciascun suo dritto rende”) (Starn and Partridge 1992: 262–266).

In late medieval art, the classic representation of justice was the scene of the Last Judgment itself, when Christ would sit enthroned in glory to separate the blessed from the damned (Edgerton 1985: 22–23). While early medieval depictions of the Last Judgment emphasized apocalyptic elements, later medieval artists depicted Jesus as a judge presiding over a divine courtroom. In one such painting, made by Fra Angelico in 1440 for the church of Santa Maria degli Angeli in Florence, the Virgin Mary and St. John the Baptist are depicted at Jesus’s right and left, in positions that might be occupied by attorneys in a courtroom scene. The damned are tortured at the Savior’s lower left, while the blessed enter heaven through a meadow at his right (Edgerton 1985: 23–26).

FIGURE 1.1 Henry II and Virtues. Miniature in the Gospel of Henry II. Rome, Vatican Library, ms. Ott. lat. 74. 1014-24. Source: PHAS / Contributor / Getty Images.

FIGURE 1.2 Allegory of Bad Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339. Source: DEA/G. DAGLI ORTI/Getty Images.

FIGURE 1.3 Allegory of Good Government. Ambrogio Lorenzetti, Siena, Palazzo Pubblico. 1339. Source: DEA / G. NIMATALLAH / Getty Images.

FIGURE 1.4 Last Judgment (Fra Angelico). Florence, Museo San Marco. 1440. Source: Wikimedia / The Yorck Project / GNU Free Documentation License.

Manuscripts of Gratian’s Decretum often incorporated an image of the Last Judgment. One of the most interesting examples was completed in the late fourteenth century by the artist Nicolò de Giacomo de Bologna. The illustration shows two parallel scenes, one directly above the other. The upper image depicts the enthroned Christ at the Last Judgment separating the blessed from the damned. Immediately below is an image of a pope judging or condemning various criminals, including a heretical bishop who is shown naked and engulfed in flames. Two accomplices are shown being led into jail (Edgerton 1985: 30–32). The artist’s intention to draw a parallel between divine and human justice is clearly expressed. Also notable is the fact that, in both images, the judge (Christ above or pope below) sits not in the center, but toward the left of the image, with most of the space devoted to the damned souls or condemned criminals.

JUSTICE IN POETRY

Justice as divine punishment was a strong theme not only in the visual arts, but also in literature. For example, as Dante and Virgil pass through the gates of hell in the Inferno, they pass an inscription declaring justice to be the inspiration for the “woeful city” (Sullivan 2007: 131). At several stages in his journey, Dante describes the sinners as being punished by divine justice, such as the sinners in the fourth circle of hell suffering pains and troubles for their sins (“Ahi giustizia di Dio! Tante che stipa nove travaglie e pene quant’ io viddi? e perché nostra colpa sí ne scipa?”), or the counterfeiters in the eighth circle of hell, punished by unerring justice (“infallibil giustizia, punisce i falsador che qui registra”) (Inferno, vii. 19–21, xii. 127–138; Sullivan 2007: 131–132).

Dante envisioned hell as organized hierarchically into nine circles, with the upper circles reserved for those whose sins were less severe, and the lower circles for progressively worse offenders. The first circle was reserved for the unbaptized, including infants as well as virtuous pagans such as Virgil, Dante’s guide. Carnal sinners overcome by lust occupied the second circle, while gluttons filled the third. The fourth, fifth, and sixth circles were occupied by those who were overcome by the sins of avarice, anger, and heresy. The lowest three circles, for those whose sins involved violence, fraud, or treachery, are themselves subdivided multiple times. Those who have committed violence against others are classified in a different ring from suicides, while those guilty of violence against God occupy a third ring. The eighth circle is divided into no fewer than ten Bolgie, and the ninth circle is divided into four rounds, with the last round devoted to sinners who were treacherous to their masters, including Judas Iscariot and Brutus and Cassius. These last three suffered the pain of being gnawed by Lucifer’s teeth for all eternity, with Judas suffering the most by virtue of having his head, rather than his feet, inside Satan’s mouth (Inferno, xxxiv. 52–67).

Given the overriding theme of divine justice, Dante’s finely graded and hierarchical classification of sin required some explanation. As Virgil guides Dante into the foul circles of lower hell, he explains the distinction in philosophical terms, citing Aristotle’s Nicomachean Ethics (Inferno, xi. 7–80). Aristotle had distinguished in the Nicomachean Ethics between those who are merely incontinent and become carried away in the excessive pursuit of normal pleasures, and those who are intemperate and choose to act wickedly because doing so is in their nature (Nicomachean Ethics, vii. 8). This distinction, Virgil explains to Dante, explains why some sinners were punished in the lower circles of hell, while others were treated more leniently (“Se tu riguardi ben questa sentenza,/e rechiti a la mente chi son quelli/che sù di fuor sostegnon penitenza,/tu vedrai ben perché da questi felli/sien dipartiti, e perché men crucciata/la divina vendetta li martelli.”) (Inferno, xi. 85–89).

SOME THEOLOGICAL IDEAS

In his Nicomachean Ethics, Aristotle distinguished between justice in the general sense and in the particular sense (Nicomachean Ethics, v. 1). Particular justice was further subdivided into distributive justice and corrective justice (Nicomachean Ethics, v. 2). Expounding on Aristotle’s classifications in the late thirteenth century (Briggs 1999: 9), Giles of Rome distinguished three categories of justice. The first category, iustitita legalis, required obedience to the law, without which no government could endure (De regimine principum, i.2.xi). The other two categories were iustitia commutativa, justice among the citizens, and iustitia distributiva, a hierarchical form of justice that required men to be treated in accordance with their social status (De regimine principum, i.2.xi). Dante’s classification of sin reflects iustitia legalis in that the sinners were being punished for violating God’s commandments. At the same time, the theme of iustitia distributiva is also evident, such as in the especially harsh treatment of the betrayers of Christ and Caesar among the traitors.

The two themes of iustitia legalis and iustitia distributiva are also evident in Chaucer’s Canterbury Tales, as Stephen Rigby illustrates in his study of the Knight’s Tale (Rigby 2009: 39–41). Iustitia legalis is evident in the discussion of the release and subsequent return of Arcite, one of the two knights held captive by duke Theseus of Athens who serve as the principal antagonists in the tale. Duke Theseus agreed to release Arcite on the condition that Arcite depart from Theseus’s country and never return, on pain of death (“That if so were that Arcite were yfounde/Evere in his lif, by day or night, o stounde,/In any contree of this Theseus,/And he were caught, it was accorded thus:/That with a swerd he sholde lese his heed.”) (I: 1211–1215). When Theseus discovers Palamon fighting with Arcite in the grove, Palamon admits to having “broken wikkedly” from the Duke’s prison and accepts that death is the punishment, but requests that Arcite suffer the same fate (“Wherfore I axe deeth and my juwise./But slee my felawe in the same wise,/For bothe have we deserved to be slain.”) (I: 1734–1741). Duke Theseus decides to pardon them upon their oath that they will do his country no further harm (I: 1821–1825).

Although Palamon and Arcite might deserve equal justice, there are many instances of iustitia distributiva in the Knight’s Tale where justice is defined through unequal treatment. Duke Theseus is careful to treat the participants in the great tournament according to their status (“everich at his degree”) (I: 2192). Seating arrangements at the table, the order of the riding procession, and the bestowal of gifts are all determined in accordance with the proper hierarchy (I: 2200, 2573, 2731–2739; Rigby 2009: 40–41). When Arcite dies, Duke Theseus frets over “wher that the sepulture/Of good Arcite may best ymasked be,/And eek moost honorable in his degree” (I: 2853–2856). Status mattered in death, whether for Chaucer’s heroes or Dante’s sinners.

THE EXAMPLE OF LAY PATRONAGE OVER CHURCHES: IUS PATRONATUS

The concepts of iustitia legalis and iustitia distributiva were woven deeply into the fabric of medieval legal analysis. Gratian’s Decretum, the final recension of which probably dates to the mid-twelfth century (Winroth 2000: 144), begins with a general statement that all laws are divine or human, and divine laws are determined by nature while human laws arise from custom (D.1 c.1). Nevertheless, as canon law evolved into a separate system governing many different subjects, it became difficult to disentangle from human law and human society. One context in which notions of divine and human justice came into conflict was in the complex jurisprudence relating to patronage of churches. Disputes over patronage were the subject of a jurisdictional conflict between ecclesiastical and secular courts, and lawyers ...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Contents 
• List of Figures
• Notes on Contributors
• Series Preface
• Introduction
• 1. Justice
• 2. Constitution
• 3. Codes
• 4. Agreements: The Discovery of the Market and the Control of the Guilds
• 5. Arguments
• 6. Property and Possession
• 7. Wrongs: Towards a Cultural History of a Medieval Legal Concept
• 8. Legal Profession
• Notes
• Bibliography
• Index
• Imprint