Late antique law and the Italian wind tunnel

I seem to have been going to a lot of papers this year about post-Carolingian Italy, and here I want to discuss a couple more of them: Conrad Leyser speaking at CLANS in February on “The Donatist Controversy, 250-1150: Purity, Memory and Priestly Office in the Latin West” and Simon Corcoran speaking at the IHR Earlier Medieval Seminar in June about “How Not To Make a Law-Code: Forging the Justinian Code in the Early Middle Ages”. I’ll have more to say about Conrad’s paper, partly because Simon’s, although very interesting, was focused on quite technical issues about legal sources that I’m not sure my notes are adequate to explain correctly. But they did connect together in my mind in ways that are fruitful for my current interest in the development of legal practice in the early Middle Ages.

Conrad, as usual, was making some very wide-ranging arguments about changes in the church. Indeed, although his title suggested he was covering 900 years of history, he even brought the topic right up to date by arguing for ex-Pope Benedict XVI’s recent conversion to Donatism. By resigning because of his incapacity, Benedict implicitly accepted that the priest’s personal condition could affect his ability to administer the sacraments. Conrad was interested in when the papacy became seen as an office in this way, one that one could leave, and he wanted to connect this to new research about the early church and the Roman state.

In particular, he started with a typical Conrad inversion: that the earlier Middle Ages are often seen as a time of the victory of the ‘private’ over the ‘public’, when the Roman ideas of commonwealth and state are replaced by ‘private’ rights and the usurpation of state power. But new research (Conrad mentioned work by Kate Cooper, Fergus Miller and Caroline Humfress), is suggesting a far more ‘minimal’ Roman state, a “thin-crust state” in which the emperor is making as little policy as possible, legislation is overwhelmingly reactive and most communities settle their own disputes, because appeals are very expensive. Conrad was also arguing for a minimalist view of the early church, drawing both on old studies by Rudolf Sohm and recent work by Gary Macy to argue that churches were still being organised on a household basis as late as the twelfth century, and it was only then that a truly hierarchical church developed. In other words, in the Middle Ages there isn’t a falling away from the public authority of the Roman state, but an attempt by the church to move from the private Roman empire towards a new idea of the “public”. Conrad thinks that this had happened by the eleventh century (even if he’s sceptical about the Feudal Revolution).

The main part of Conrad’s talk focused on the tenth and eleventh centuries; I commented later that this was a history of the early medieval church with the Carolingians left out, which he more or less accepted. He sees the origins of church reform in the post-Carolingian Italian world, when churchmen there, seeing that the Carolingian empire is over and that they are on their own, go back as a conscious act of memory to the previous post-imperial period, that of late antiquity, and draw on those texts. This triggers the development of the church as a trans-regional corporation in the eleventh century, with a new criterion for who can be a priest: that he mustn’t have a family.

And the particular significance of Italy is that clerics there are drawing on texts that haven’t come via the Carolingian reform movement. That’s one of the key points of detail that Conrad brought up, referring to what he called the “Italian wind tunnel”; texts from fourth and fifth-century North Africa (such as copies of Cyprian) which go to southern Italy when the Vandals come and reappear in Italy between the ninth and the eleventh century without much mediation. For example, he was arguing that this was the case for the Collectio Avellana. Conrad also pointed out other manuscripts with a specifically Italian background that were used by reformers such as Peter Damien and his opponent Humbert of Silva Candida. These included the works of Auxilius, a defender of Pope Formosus and Vallicellian Tome XVIII, which is a canon law miscellany (though the latter also included Pseudo-Isidore, showing that there was some Carolingian influence).

It’s at this point that the intersection with Simon’s paper comes in. The main aim of Simon’s talk was to discuss (and prove incorrect) the recent claim by Laurent Waelkens that the first thirteen sections of the Justinian Code were only added to it later. But Simon also talked more generally about the reception of the Justinian Code in the early medieval West and showed that there were a number of different copies of it floating around in Italy (such as the one glossed in the seventh century by the Summa Perusina), as well as assorted epitomes. And he also explained how the text of the Code was reconstructed relatively quickly in the eleventh century by communities of Italian lawyers, who expanded selections of the Code into a standardised Vulgate text by the early twelfth century.

I’d heard about a bit about this process before via Charles Radding; one of the points that got raised in questions was the possibility that the reason the Code got recovered in such a consistent but intermittent way was that exemplars were not always available or even that they were only available for a price, and thus a process intended to get access to a particular key section eventually ended up recreating the whole. (This seemed an oddly familiar situation to people like me who’ve sometimes inadvertently ended up with the whole of a book by photocopying extracts over time). But what particularly interested me was Simon’s comment on how consistent this reconstruction was (contrary to Waelkens’ idea that this ‘reconstruction’ involved some effective creation of new material in Book 1). Unlike the Carolingian period, with its notorious forging of canons and general willingness to muck around with texts, this looks like fairly accurate copying, and Simon suggested that this was because there was a body of people doing such reconstruction: these were working texts and you couldn’t just pull your own version out of thin air.

I want to combine that insight with Conrad’s ideas (following R.I. Moore) about the key roles of crowds: what changes in the ‘Gregorian’ reform movement is the combination of canon law and crowds, with relatively obscure points of canon law being argued in the streets of Italian cities. Moore’s argued this for Milan and Florence in the 1050s; Conrad wants to see it present already in the Synod of the Corpse in 897. If he’s right about that (and I need to look in detail at the evidence, which I don’t know at all well), that is a significant change from the 860s. What I think we may be seeing is a process of the creation of a fixed corpus of church law with a group of rival specialist interpreters. And it’s only some way through this process that it’s safe to let “the crowd” near such matters.

I’ve argued before that Carolingian reformers became sceptical and disillusioned about lay reading and interpretation of the Bible after the civil wars of the early 840s. We also know that in the second half of the ninth century Frankish laymen were using papal letters to evade incest prohibitions. I think that we can see the use of canons for legal argument developing very rapidly in the ninth century: compare the initial deposition of Ebbo of Rheims, which doesn’t cite canon law at all, with later discussions of it. I wonder if it’s only once you’ve got canons in the process of becoming canon law (a fixed body of stable texts with agreed rules for how such texts can be used) that you can let laypeople anywhere near them without risking this blowing up in your face. And that’s part of the reason why reform is a tenth-century rather than a ninth-century development.

I really need to look at tenth–century sources in much more detail before I can sure whether my ideas hold up (and whether Conrad is right about the Formosan controversy). But as usual, his ideas are among the most intriguing and stimulating that I’ve heard recently.


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