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.