Hincmar’s world 1: canon law in the ninth century?

This is the start of an intermittent series of posts on topics around Hincmar’s text De Divortio Lotharii regis et Theutbergae reginae, which a friend and I are currently translating. One of the things we will need to write about in the introduction is issues of what would normally be considered ‘canon law’ at the time (860) e.g. the church’s rules on marriage. And yet I’m increasingly unsure how useful ‘canon law’ is as a concept for the ninth century. (The term ius canonicum only starts to be used in the twelfth century, although the term ‘canon law’ is often happily used by early medievalists).

What does canon law mean? In medievalists’ terms it would normally be understood as one among several medieval legal systems, applying to Christian organisations and their members. I’d define a legal system in very broad terms as consisting of a) a body of law, b) a collection of courts which apply this law and c) a set of procedures for how the law and the courts together work (what goes to court and how matters are decided). If you’re being picky you could say that something only counts as a legal *system* if it’s systematic, i.e. there is a consistent way of dealing with legal problems. On that view, I’m not sure whether there is a legal system till relatively late on in the medieval period, but I think even without this you do also need at the minimum d) some method for dealing with new problems that arise in cases.

If you take these very loose criteria, there is a secular Frankish legal system in the Carolingian period. There is a body of law even if it is somewhat fuzzy around the customary edges. There are courts and a sense of what ought to be dealt with by them. On the question of how matters are decided, there seems to be a grab-bag of alternative procedures rather than one standard practice, but there are a lot of vaguely standard elements, modular building blocks. And there is a method for dealing with new problems: ask the king (or alternatively make it up yourself).

If this is hazy, things get even hazier looking at canon law/ecclesiastical law. Firstly, the body of law mutates between each ‘canon law’ collection: compilers routinely add or subtract material and it’s not clear even what categories of material count as ‘law’. Although there are church courts, there is no clear sense of what ought to be dealt with them. The decision processes within church courts are a similar grab-bag to secular methods. But unlike in the secular case, there’s no standard person to appeal to; it’s not at all clear that the popes are the final authority or should be. And the ‘making it up yourself’ is complicated by the fact that this tends to be done via the route of forgeries, such as the false decretals.

I think the most you can say is that in the ninth century there is an ecclesiastical law tradition: I think even saying there’s a system of ecclesiastical law is overstating it somewhat. And there certainly is nothing like canon law in its later sense. The problem is, is it useful to say that you have the roots of a canon law system, from which by cumulative changes the later system developed? This is how Carolingian (and earlier) material tends to be dealt with in standard outline histories of canon law. The problem is that assuming this tends to end up implying that there was a deliberate move to develop such a system, and while you can see this in the eleventh century among the Gregorian reformers, I’m not sure whether you can see it in the ninth century. What in particular seems to be to missing is any sense that what was done in particular cases was intended to set a precedent rather than to deal with the specific immediate issue.

In some way, in fact, texts which would normally be considered as legal works (such as De Divortio) might better be seen as forms of legal exegesis or even legal theology. An authoritative collection of texts (whether the Bible or a canon law collection) is taken and extracts from it used to make a specific theological or legal claim. Is there really a substantial difference in method between how Hincmar proves that God does not predestine people to perdition and that Lothar may not remarry? I’m not yet sure, but I’m wary that if I simply use the category ‘canon law’ without care it may obscure more than it reveals.

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9 thoughts on “Hincmar’s world 1: canon law in the ninth century?

  1. I think you’ve just pinned down a vague unease I’ve had in this area for a while. The term `canon lawyers’ sings of the Roman Law revival to me, but we’re expected to cope with `canon law’ well before then even though, well, there isn’t even a canon as such? And that Patrick Wormald would have argued that systematic options for remedy of wrongs isn’t really what secular law, at least, is made for until later too… Should we really be classing ecclesiastical jurisprudence any differently? I think perhaps we still should but I like your exegetical parallel a good deal better than one which would try and invoke clerical privilege and these Church courts that we never see. Not councils, but regular bishops’ courts and so on: I know I haven’t got any evidence for them. What I have got is one pet hearing where the Count and Bishop of Barcelona argue over who punishes a dodgy moneyer who happens to be a member of the bishop’s familia. They compromise and say that the count sets the sentence and the bishop administers it. This ain’t Becket… and that’s 990. I don’t think the ideas that `canon law’ evokes are really around in our period. So in summary! I agree! You’re quite right! Hurrah! But what do we do about it?

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    • There are actually a few Carolingian references I’ve found to ‘placitum ecclesiasticum’ or ‘placitum episcopi’, which *might* refer to some kind of bishop’s court, or might be an unusual way of referring to the regular diocesan synods or might mean a placitum at which a bishop is presiding. What I have found so far (though I haven’t gone through the sources systematically) is:

      1) Council of Rome 826 c 21 (MGH Cap I p 374) says that a lord who builds a church or monastery on his own land can appoint his own priest with the bishop’s consent, but the priest must be allowed to attend episcopal placita.

      2) the Quierzy letter of 858 (MGH Conc 3p 414) c 7 has bishops asking for counts’ agents to force incestuous to come ‘ad episcopi placitum’

      3) the Council of Trier 895 c 9 (MGH Cap 2 p 218) which discusses what happens if the bishop holds an ‘ecclesiasticum placitum’ and invites the ‘populus’ to attend and the count wants to hold a secular placitum on the same day (the count should switch days). [This sounds suspiciously like bishops taking over comital rights in some way].

      If anyone’s come across anything similar or has a better explanation for what the phrase actually means, I’d be interested to hear.

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    • Funny you mention Patrick Wormald, Jonathan- I was just about to come along and say that this post both reminded me of some of the trouble I’ve been having in talking about my Wulfstan manuscript, and at the same time clarified it. What *is* “Canon Law” anyway… Wulfstan certainly doesn’t use the term and I’m not sure that he sees a difference between the two. If your leading churchmen are writing your secular law codes, that does blur the boundary quite a bit too…

      Anyhoo, thanks for the thought-fodder, Magistra!

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      • I think that it’s more useful to start from what we actually have than from a Platonic concept of canon law. What I have (I’m not sure exactly what you as an Anglo-Saxonist have) is collections of canons and church disciplinary procedures for those within the church who breach these canons.

        The canons are regarded as authoritative, but it’s not clear that they are regarded as authoritative for the same reasons that secular law is regarded as authoritative (to the extent we know that) so calling them law may be misleading.

        I also have church disciplinary procedures (both theoretically laid out and actual examples). I’m referring to them in this general way because such procedures are not necessarily thought of as laws. If you are in an organisation (whether a company or a university or a club or whatever) and you break its rules, there are sanctions that they can impose on you up to and including throwing you out of the organisation entirely (which is what anathema is).

        These kind of disciplinary procedures only become something more akin to laws/jurisdiction when their relationship to secular law changes. One change is if the secular power says it will start to enforce disciplinary decisions made by the organisation. When the Carolingian say that counts should deal with those who do not do penance, that is significant. Another important step is when the secular power voluntarily asks another organisation to deal with an issue rather than legislating about it/enforcing it itself. (A modern example would be saying that problems in advertising should be dealt with by an advertisers’ code of practice). We can see this type of behaviour when Charlemagne wants bishops to investigate possibly incestuous marriages before they are made.

        Related to this is when the secular power gives up its right to deal with particular cases altogether (as happens with some later grants of immunity). I’d say it’s only at this point that you can talk about jurisdiction and I think this is fairly limited in the ninth century. My latest post has more details on the example of marriage disputes.

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  2. And why should canon/church/ecclesiastical law be different from any other legal system? Most European legal systems seem to have started as locally developed and administered customs over which a central authority eventually asserted authority and in doing so made uniform, curtailed, and otherwise sewed and spliced into an allegedly coherent whole. Often enough this wend hand in hand–in fact, was a central fact–in the central authority’s assertion of authority over the various localities.
    At least in the case of England (the country whose legal history I am most familiar with) it also went hand in hand with the central authority’s development of revenue sources. (For instance, in England, the same members of the king’s court would go on circuit around the shires both to hear cases and to, in effect, audit the local accounts to make sure that they were contributing their full share of royal revenue. Only as the judicial role grew larger did the second duty start to diminish; and meantime there was in London the Exchequer, which functioned both as the treasury and a full fledged court hearing tort and property cases.)
    So what you find is a mass of local customs which might be similar because they were developed or shared by populations of similar ethnic background, which gradually coalesce into something more uniform and more general as the central authority grows in stature–and which, as the central authority asserts itself, are tailored to fit whatever the central authority thinks of as best. This might well be Biblical law if the central authority is used to dealing with the Bible.
    Two other notes:
    In the earliest period–in the last stages of the Roman Empire and the period immediately after that–“Romans” and Germans might be subject to different laws. That is, a person born into a family which was of Teuton/Goth extraction would be subject to Teutonic/Gothic law, as formulated by the local king, while their neighbors, descendants of Roman citizens, were subject to Roman law; both administered by the same king and the same judicial structure. Against this, it is not far fetched to think of a third group, the clergy, who were subjected to “canon law”, being the law personally applicable to clergy.
    Deriving theology and practical law from the same Scriptural texts is how the Rabbis developed Jewish law and religious teaching; so there is no reason to think that Christian clergy could not do the same thing.

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    • There are two differences between canon law and what you might call ‘national’/gentile law. One is that there is moderately organised body of canonical regulations quite a time before there is a central body seriously claiming enforcing authority (i.e. the papacy). In the ninth century you have kings clearly as the authority backing laws in Francia and Britain, but not much actual content of written laws. On the other hand you have lots of really big written collections of canons, which are just being added to as the compiler chooses.

      Secondly, canon law in its developed form isn’t really like personal law, because it’s administered in a different judicial structure and with a different ultimate authority (the pope rather than the king). And it was applied not just to clerics but to laity (in matters of marriage etc). So I can’t see how it developed from personal law. I’m also not convinced that even in the ninth century clerics were necessarily judged by church law rather than secular law. (I refer to this a bit mroe in the next post).

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  3. Magistra, I don’t think your three examples of the phrase are all referring to the same thing (which is probably inevitable given how many senses of placitum there are. In the first case it looks as if the law is defending the bishop’s right to demand the priest’s attendance at the diocesan synod (and therefore the dona that he must bring). And the second looks like a court that’s setting penance, or dealing with exclusively ecclesiastical business as relevant to marriage at least. So I’d guess the third is the same thing; the difference there would then be in the class of crime involved, not the territorial rights of the lord. Yet ecclesiastical immunists ought to have their own courts too, no?

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