McSweeney on Magna Carta's Diverse Sources

Thomas J. McSweeney, William and Mary Law, has published Appealing Magna Carta in the online adjunct of the University of Chicago Law Review:

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay examines one piece of evidence highlighted by Helmholz and more recently by Professor Charles Donahue: that the Articles of the Barons, a preparatory document for Magna Carta, uses a phrase borrowed from canon law, appellatione remota (without possibility of appeal). Helmholz and Donahue pointed to its use as evidence that canon law formed part of the discussion when the drafters of Magna Carta were thinking about the common law. In this Essay, I argue that the use of this phrase is not actually evidence that canon law was being brought into discussions of the common law, since the phrase is used in the context of an ecclesiastical procedure. This example is nevertheless useful for highlighting some important features of Magna Carta. First, although there is a long tradition of associating Magna Carta with the common law, Magna Carta is not a text that is primarily about the common law. Rather, it contains provisions on several different types of law, including common law, forest law, and canon law, and underscores the pluralistic nature of English law in the thirteenth century. Second, the authors of the text seem to have gone to some length to keep these different types of law “discursively separate,” using common law terminology and canon law terminology only when appropriate to the context. And finally, although Roman and canon law were likely to have been part of the conversation about the contours of royal justice, they probably would have entered into the conversation at a high enough level of abstraction that they would not be visible in the text of Magna Carta. Overall, Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law.

--Dan Ernst

Cambridge History of Medieval Canon Law

The Cambridge History of Medieval Canon Law, edited by Anders Winroth, Universitetet i Oslo, and John C. Wei, has been published.

Canon law touched nearly every aspect of medieval society, including many issues we now think of as purely secular. It regulated marriages, oaths, usury, sorcery, heresy, university life, penance, just war, court procedure, and Christian relations with religious minorities. Canon law also regulated the clergy and the Church, one of the most important institutions in the Middle Ages. This Cambridge History offers a comprehensive survey of canon law, both chronologically and thematically. Written by an international team of scholars, it explores, in non-technical language, how it operated in the daily life of people and in the great political events of the time. The volume demonstrates that medieval canon law holds a unique position in the legal history of Europe. Indeed, the influence of medieval canon law, which was at the forefront of introducing and defining concepts such as “equity,” “rationality," "office,” and “positive law,” has been enormous, long-lasting, and remarkably diverse.

In addition to the editors, the other contributors are Caroline Humfress, Abigail Firey, Greta Austin, Christof Rolker, Wolfgang P. Mueller, Martin Bertram, Andreas Meyer, Péter Erdo, Norman Tanner, Gisela Drossbach, Gero Dolezalek, Anthony Perron, Susan L'Engle, Charles de Miramon, Elizabeth Makowski, M. Izbicki, Rob Meens, Thomas Wetzstein, Sara McDougall, Franck Roumy, Lotte Kéry, Edward Peters, Frederick Russell, Ryan Greenwood, Peter G. Clarke, Peter Landau, and Thomas Izbicki.  The TOC is here.

--Dan Ernst

Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.

Echevarria, Monferrer-Sala, Tolan and friends on law and religious minorities

We missed this one back in 2017: A. Echevarria (Universidad Nacional de Educación a Distancia, Madrid), J. P. Monferrer-Sala (Universidad de Córdoba), and J. V. Tolan (Université de Nantes) have co-edited Law and Religious Minorities in Medieval Societies: Between Theory and Praxis with Brepols Publishers. From the press:

This volume shows through the use of legal sources that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful; and at the same time shows how these boundaries were repeatedly transgressed and negotiated.

Muslim law developed a clear legal cadre for dhimmīs, inferior but protected non-Muslim communities (in particular Jews and Christians) and Roman Canon law decreed a similar status for Jewish and Muslim communities in Europe. Yet the theoretical hierarchies between faithful and infidel were constantly brought into question in the daily interactions between men and women of different faiths in streets, markets, bath-houses, law courts, etc. The twelve essays in this volume explore these tensions and attempts to resolve them. These contributions show that law was used to try to erect boundaries between communities in order to regulate or restrict interaction between the faithful and the non-faithful — and at the same time how these boundaries were repeatedly transgressed and negotiated.

Table of Contents after the jump:

European or Global? Secular or Religious? How (Some) European Jurists Re-Consider their Past

Recently, I returned from a visit to the Max Planck Institute for European Legal History in Frankfurt (https://www.rg.mpg.de/en), where several groups are working simultaneously to re-cast European legal history. Rather than thinking about Europe in isolation, rather than insisting on law as a secular affair, members of these groups interrogate the processes that led European law to expand overseas, as well as the way religion contributed to this expansion. They ask: What would happen to European law if we observed it from a global perspective? If we considered not only its accomplishments (rule of law, constitutions, democracy, etc.) but also its other legacies (empire, slavery, violence, and so forth)?[1] If we focused on the entanglements between law, religion, and morality?

With study groups centered on “Legal Transfer in the Common Law World”, “European Normative Orders in Ibero-America,” “Governance of the Universal Church after the Council of Trent,” “The Legal History of the School of Salamanca,” or “Translations and Transitions: Legal Practice in 19^th Century Japan, China, and the Ottoman Empire,” this re-thinking follows several paths. 

(1)   It interrogates the spaces that scholars need to study if they are to understand the history of European law. In tune with existing affirmations that Europe was an idea rather than a continent and that its meaning and extension constantly mutated, they suggest that historians of European law should modify the scope of their analysis. The appropriate scope could cover from Rome to the Mediterranean, further west to Latin-Christendom, North to England and Scandinavia, and across Oceans to Africa, Asia, and the Americas.

(2)   It asks about the consequences of the encounter between Europeans and other legal cultures. Rather than posing a West vs. the Rest, or engaging in, dismissing, or criticizing Eurocentrism, the aim is to understand how interactions between European and non-European norms changed both. Change and endurance are important in this regard but looking at European law elsewhere also has important methodological underpinning. European response to the “other,” scholars at the Max Planck argue, can tell us a great deal about European law. It allows to perceive its rigidity on occasions, malleability on others, and helps identifying its core principles as well as their potentialities. In other words, the main question we should ask is not whether European law was indeed universal (or potentially universal) as some Europeans have argued, but which parts of it survived the transfer outside Europe, what was lost, what changed, and how.  

(3)   If enlarging the research on European law to less-than-usual suspects is important, research at the Max Planck also reminds us that as important is to ask, “what is law.” Rather than assuming that law was a secular affair, the research agenda followed in Frankfurt recognizes the centrality of religion by integrating to the study of European law canon law and moral theology and by re-evaluating the contribution of the church to the dissemination of juridical ideas. One emblematic way they do so is by insisting on the importance of pragmatic literature, that is, the non-juridical literature that inculcated normative conduct (https://www.rg.mpg.de/research/knowledge_of_the_pragmatici).[2]  Drawing our attention to less-than- conventional sources for legal history, it observes what practitioners published but also the contents of popular works, as well as works of moral theology, confessionaries, and the like. The working assumption is that these types of sources, mostly ignored, contributed greatly not only to disseminate legal ideas, not only to vulgarize them (as they are often viewed) but also to develop and enrich European legal tradition.

---

[1] Thomas Duve. “Global Legal History: Setting Europe in Perspective.” In Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey (eds.). Oxford Handbook of European Legal History. Oxford: Oxford University Press, 2018, 115-140. This transformation began in 2009 after Thomas Duve was named director of the Institute. The Max Plank has this amazing system: The Society identifies individual scholars and names them directors of an institute, giving them space, funding, and administrative support to hire scholars and develop their own intellectual agenda, the only condition being that they innovate. 

[2] The results of this project will soon be published in a new Open Access book series with Brill Publishers, titled Max Planck Studies in Global Legal History of the Iberian Worlds.

English Exceptionalism Revisited II – The Continental Strawman

In English Exceptionalism Revisited, published previously on this blog, I argued for the need to reexamine the convention that English law was different from Continental law. I suggested that claims for English exceptionalism are often based on privileging the history of common law over the history of other jurisdictions and legal systems that co-existed in England. In this second part, I would like to examine yet another issue: how narratives of English exceptionalism use Continental law as a strawman. Because of considerations of space, I focus my attention on the claim that common law was different because (contrary to Continental law) it included an immemorial customary law. This claim became central to English legal thinking in the late sixteenth and the seventeenth centuries, but it also persists to-date. It is based, inter alia, on the (silent) assumption that Continental law was not an immemorial customary law, but instead a system based on scholarly debates, legislation, and Roman law.

Historians of Continental law would disagree. In their telling, customs were a central element also in the continent. From as early as classical Roman law and into the nineteenth century, Continental jurists habitually identified local law as customary. They suggested that it was a legitimate expression of a legal diversity that allowed for different local solutions despite the existence of an overreaching common core uniting all Romans (first), Christians (second) and Europeans (third). Jurists’ main role was to explain how this was possible, that is, how thousands of local legal arrangements (“customs”) could nevertheless form part of a single global system. This was what Roman jurists did, but it was also what medieval jurists accomplished as they slowly elaborated a system that, while validating local laws, also created a ius commune (a common law, a system that scholars of England identify as “Roman” or “Civil” precisely in order not to call it common law as Continental jurists would).

The effort to harmonize local and global were criticized by some sixteenth-century jurists. These jurists, known as legal Humanists, insisted on identifying an authentic local customary law that would stand in opposition to (rather than in harmony with) the common framework.  Because they believed that customary law could counter monarchical pretensions at absolutism, these jurists turned to identify what this law included. Thereafter, the main question they asked was not if customs existed and were important (of course they were) but who would be charged with identifying them. In France, where this struggle was particularly strong, the kings succeeded to have the upper hand. They gained control over the identification of customs by instituting committees that purportedly “wrote down” the customary laws of France but that, in reality, greatly modified them according to royal desire as well as tied them to royal validation.   

Because it was difficult to prove that certain practices were customary, late medieval and early modern Continental jurists adopted the convention that customs were, by definition, immemorial. In their telling, immemoriality was a category of proof, not a historical fact. It embodied a presumption identified as juris et de jure that, contrary to all other presumptions, admitted no proof to the contrary. As far as these jurists were concerned, at stake was not the distinction between what could be remembered and what had been forgotten, but a policy decision regarding what should be proved and what could be assumed without proper proof. This decision hinged on evaluating what society wished to protect (local law) and how much (as strongly as possible). It represented, perhaps better than anything else, the important place of customs in Continental juridical elaboration.

English sixteenth- and seventeenth-century descriptions of common law as immemorial customary law were thus part of a much larger European conversation. This conversation initiated in the Roman empire but continued throughout the Middle Ages and into modernity. Nonetheless, in the late sixteenth and in the seventeenth century, English lawyers insisted that their system was radically different, and they expressed fear of “foreign” influence. They suggested that Europe followed Roman law, while England had a genuine customary law of its own, which reflected the spirit of its people.  This portrait omitted the important contribution of ius commune jurists to the formation and institutionalization of common law, including ideas regarding customs and immemoriality. It assumed English lawyers were ignorant of developments in Europe (all evidence to the contrary) and it constructed a Continental strawman, against which England was compared. The result was often, to paraphrase the words of Chris Wickham, a “cultural solipsism” that led scholars to believe in exceptionality where not much of it existed.

Does European Law Have a History?

Historians have routinely divided European Legal history into many pieces. They distinguished an English from a Continental law and they often proceeded to describe national legal spheres even in periods, which pre-dated the emergence of nation-states. It was as if, once legal systems were nationalized in the late eighteenth century and in the nineteenth century, it was no longer possible to imagine a legal history that pre-dated the nation state or that, even after nation-states were formed, continued to be shared by the different European countries.  

In my most recent work (“A Short History of European Law: The Last Two and a Half Millennia,” Harvard U Press, 2018) I sought to identify a common European legal tradition that also embraced England and that filtered outside Europe because of European colonialism and because of processes of adaptation, translation, and transplantation. Rather than tracing the evolution of specific arrangements, I wanted to understand what law was: how it emerged, how it gained validity, and who controlled these processes. In other words, I was after the operating system(s), not the specific solutions it (they) enabled formulating.

Having surveyed two and a half millennia (from the Roman empire to the present-day), my most salient conclusion was that the development of law in Europe was both surprisingly consistent and astonishingly unpredictable. Take for example, Roman law. Roman law, Goethe once said, was like a diving duck. Whether you saw it or not, it was always there. Goethe was unquestionably correct when he pointed out to the enduring legacies of Roman law, which were widely shared across the Continent, but he was wrong to imagine it as a single duck. Classical Roman law was radically distinct from how Medieval jurists, allegedly reviving it, read it, and it had even less in common with what 19^th century German jurists imagined it to be. If it was a diving duck, it constantly changed colors and shapes to the point that it was no longer clear which type of duck it was and whether it was a duck at all. The endurance of Roman law, in other words, was less illuminating of continuity than it was revealing of change.

The same thing was true of the Magna Carta, to mention yet another emblematic example. The Magna Carta was a thirteenth-century feudal charter meant to guarantee peace among lords. However, centuries after it was enacted, it was given a new meaning and a new role. What counted for this radical transformation was not only, not even mainly, the identity of those reading the document, but the contexts in which they operated. Therefore, if we wanted to understand how law evolved over time, we would need to reconstruct the contexts (the operating systems) in which specific documents, doctrines, or institutions were implemented.

Listening to what actors stated was rarely sufficient. Jurists who invoked Roman law pretended to obey its rationale and instructions. So did the early modern English lawyers who invoked the Magna Carta. Yet, their pretense for continuity did not mask the profound changes they introduced. While claims for continuity could mask change, claims for change could mask continuities.  This was evident when late-eighteenth and early nineteenth-century French revolutionaries presented their system as entirely new, but it was also clear in the work of European jurists who purportedly wished to purge local law from the (evil) influence of Roman law yet nonetheless employed Romanist methodology. European legal development, in short, could be told as a story of actors both adopting and rejecting the past, both copying and re-writing it, both positioning for and against it. In the process, what the past meant, which parts of it were relevant, and how they could be used became essential as different individuals, groups, and institutions fought to discover, but also invent, the rules that would govern their relationships.

These processes were common across Europe. In the late Classical period and the high middle ages, the influence of Roman law and Roman traditions expanded outside the boundaries of the empire as a byproduct of the spread of Christianity and the creation of Latin Christendom. By that stage, however, Roman law was already very different from what it had been because it was infused with Christian ideals. Mixing with new elements continued with the Germanification of Roman law and the Romanization of Germanic laws. Roman, Canon, and Germanic laws all operated conjointly in the Middle Ages, alongside the extreme fragmentation of the legal regime. The eleventh, twelfth, and thirteenth-centuries witnessed a colossal effort to unite hundreds of local arrangements in a systematic ius commune (in the Continent), or common law (in England). This effort resulted in moments of greater or lesser cohesion but, above all, it unleashed a fierce struggle over the right to pronounce, make, implement, or unite, the law.

The advent of the modern state and stronger monarchical orders (as well as the opposition they generated), intensified these struggles. It also led to a serious questioning whether a common European law indeed existed and, if so, what was its nature. During these debates, many pointed to the obvious: that law was always contextual and, to some degree or the other, local. Particularism, such as embodied by the idea of a local customary, and then national law, however, never extinguished a horizon of commonality, only that commonality itself changed. Instead of placing Europe or Christianity at the center as had been the case during the Middle Ages, in the early modern period it progressively referenced a common humanity with a common rationality. This allowed Europeans to again refashion their system as universal by arguing that it united all humans regardless of their extreme dissimilarities.  These developments justified the imposition on occasions, the expansion in others, of European law overseas. They were responsible for severe Eurocentrism, but they also radically transformed European law. If what was common to Europeans was also common to all peoples and places, what was specifically European (and eventually national) in this law? Would European law become but a local version of a more general law that was in the process of being globalized?