Hincmar’s world 6: law, what is it good for?

It is only now I have started reading histories of Carolingian canon law in a systematic way that I have realised the peculiar position that many authors take on the legal position of early canons. Very often these are treated as legally binding, in the same way that canon law later was. If an early church council says that a matter is to be dealt with in a particular way, it is assumed that that becomes law and the whole church simply abides by this.

An alternative, which is almost equally unsatisfactory, is the assumption by some authors (such as Sylvia Konecny) that the impact of church law depends purely on political factors. Whether a royal divorce happened (as in the case of Charlemagne and Desiderius’ daughter) or didn’t (as in the case of Lothar II) had nothing to do with church law and everything to do with the relatively political power of the two rulers.

All this suggests that scholars writing about early medieval church law need to start thinking about the questions that historians writing on early medieval secular law have grappled with for years: what does law actually mean, what is it intended to do and how is it used? There’s a whole debate that seems to have entirely passed modern canonists by, presumably because they’re working in a framework of ‘Roman law’ (both late antique and eleventh century).

The first obvious point of similarity between the secular and ecclesiastical spheres is between law as aspiration versus law as application. The ‘programmatic’ quality of Carolingian capitularies has been overstated, but there is a serious point being made. Many Carolingian ‘laws’ are as much visions of what an ideal society should be like than strictly enforceable measures, and the same is true of many canons. I suspect that canonists have not taken this on board because they subconsciously feel that the symbolic use of law is a characteristic of ‘primitive’ societies, which do not have a proper understanding of law. The example of the UK ban on hunting with dogs, however shows that symbolic laws are not restricted to legally unsophisticated societies.

Secondly, parallels with secular law may get us out of excessive hang-ups about enforcement of ecclesiastical law (or its lack). The characteristic of all ‘state’ law-enforcement before the modern period (and specifically the development of police forces) is its reliance on occasional, exemplary punishment, as opposed to systematic repression of wrong-doing. It is likely too, that the canons had at least some deterrent power from the possibility that (in the reversal of the lottery slogan) it just might be you that got into trouble.

A final useful idea that comes from the study of early medieval secular law is that of customary norms (and hence law) as being negotiable rather than fixed. This has enabled studies of secular law in action to get beyond a simple dichotomy of laws as applied or ignored. Similarly, to see ecclesiastical cases as dealt with by negotiation between competing principles which were important but also malleable is more realistic than to attempt to fit a fixed legal framework around often specific and peculiar decisions.

What the study of the effects of early medieval canons offers to secular law, in return, is a way into the problem of why the powerful might obey the law, at least sometimes. Unlike with secular law, there was minimal direct coercive power behind the church’s demand for obedience to its norms; the Pope almost always had no divisions. (Nor, in practice, did Frankish rulers act to enforce such ecclesiastical demands, even if they might promise they would). And yet, for some of the Carolingian period, you can see powerful men adhering vaguely to some canonical principles (or justifying themselves by different canons when they did not). Lothar II did not simply repudiate his wife and dare the bishops to disapprove, and that was not purely because his political position was weaker than Charlemagne’s, but also because Christian kingship/lordship was important to him.

The example of the Carolingian church and the (intermittent) conformity of kings and magnates to its demands and ‘laws’ support the counter-intuitive suggestion that ‘playing by the rules’ can sometimes be maintained within a system even without a strong authority enforcing such rules. Rulers and magnates gained prestige from behaving in accordance with church norms and (seemingly) lost prestige and social support by opposing the church (or particular churches). A triumph by law rather than simply force in a dispute brought validity to one’s victory (for example, legitimacy to one’s marriage). Theoretical support for the legal order was also sensible for anyone who feared being the underdog in a future dispute; law could be a source of protection as well as a restriction. ‘Touch not the Lord’s anointed’ gave protection to Carolingian rulers even as it constrained their behaviour.

Yet what the Carolingian and post-Carolingian developments on marriage law, in particular, also suggest is that such a non-coercive system was difficult to maintain in the long run. If enough of the powerful refuse to acknowledge the rules in such a system (and a snowball effect is always likely), the rules effectively no longer exist, just as an unrefereed football match is always potentially likely to become a free-for-all. By the early eleventh century, as Georges Duby has shown, French rulers no longer cares about adhering to church rules on marriage. It is hard to argue that this was because Robert the Pious was in a stronger position with respect to the church than Carolingian rulers and so was more able to ignore their demands; it was more that adherence to church norms no longer seemed sufficiently advantageous. If applying insights about early medieval secular law can remind us that ‘law’ does not have a fixed meaning throughout the centuries, studying early medieval ‘canon law’ can reveal the extent to which almost all law in the early Middle Ages was essentially a confidence trick, a voluntary agreement by the powerful to accept small measures of legal constraint in their pursuit of power.

Advertisements

3 thoughts on “Hincmar’s world 6: law, what is it good for?

  1. Isn’t that “Law, HUH, what is it good for?”

    Note in support of your point that modern societies with lots of money to spend on law enforcement sometimes find extensive use of plea bargaining a practical necessity?

    Like

  2. This is full of good stuff, and I think you’re likely to be right about where canon law scholars and secular law scholars need to be learning from each other. What Would Wormald Do, and so on… Certainly the assumption that once a council has laid it down it is practice has annoyed me a great deal, not least about clerical marriage, which is clearly both outlawed and perfectly canonical at the same time over quite a lot of Carolingian Francia, no? It’s one of these models that makes me wish more people would have a good read of Eusebius’s Historia Ecclesiastica and then reflect to themselves that that simmering miasma of dissent and confusion is the great age of the canonical councils with zealot emperors backing up the Church’s enforcement, and it doesn’t work then either…

    Back in the Carolingian era, though, a few things in what you were saying stuck in my perception rather. Firstly:

    Lothar II did not simply repudiate his wife and dare the bishops to disapprove, and that was not purely because his political position was weaker than Charlemagne’s, but also because Christian kingship/lordship was important to him.

    This is certainly true, though it could be argued that he did go on to repudiate her despite Church disapproval in many quarters. But there’s an implicit comparison here with rulers who did do such things, isn’t there? Which makes me wonder whether we know. When Charlemagne repudiated the poor nameless Lombard princess, none of our sources like to talk about it; but I bet he had his clerics on side with justifications at the time. Similarly, Robert the Pious doesn’t say, “Well I’m the bloody king arnaye I can do wot I like” to the Church (except about abbacies), he has churchmen who support his actions, albeit not very many of them that time, and he uses grants and other sorts of support to ensure that some churchmen are still singing his praises and he can still present himself as `the Pious’ (warning: anachronism, etc.). Christian kingship’s important to him and Charlemagne too, but their position vis-à-vis their contemporaries is so much stronger than Lothar II’s that they can finesse it more easily towards their desired outcome.

    Like

  3. You’re onto something here.

    What a lot of writers tend to forget about the Medieval church is that it was as much an agency of the state as an institution for communal worship. The church controlled education so as well as priests, lawyers, scribes (administrators) teachers and the ruling gentry were all educated by religious insitutions.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s