PANEL: Law and Group Practice in Earlier Medieval Europe: Societies and Disputes
Saturday, October 24, 3:30-5:00
This panel includes three studies that reconstruct the parties, group contexts, claims, and patterns of resolution of disputes. Richard Barton reassesses the workings of judicial assemblies (curiae) in tenth- and elventh-century France by portraying them as occasions for the achievement of concord, negotiation, and informal reconciliation rather than formally institutionalized sources of binding and enforceable decisions. Hans Hummer uses one dispute involving a monastery and a family group to explore the relationship between the formation of political alliances on the one hand, and several formal norms concerning property on the other. Belle Tuten examines several eleventh- and twelfth-century disputes among monasteries in similar terms of group participation and politics, and thus introduces the innovative methods of interdisciplinary legal history squarely into the context of ecclesiastical dispute.
Chair: Geoffrey Koziol, Department of History, University of California, Berkeley
Courts, Communities and Consensus: Procedure and Adjudication in Western French Curiae, 950-1150
Richard E. Barton, Department of History, University of North Carolina, Greensboro
The charters extant from Western France between 950 and 1150 reveal a society deeply enmeshed in litigation and conflict. Yet in this period such narratives treat the issue of conflict and resolution in resolutely social and cultural, not legal, terms. That is to say that the purpose of the courts (curiae) in which many disputes played out was far more contextual and social than it was theoretical and legal. Close examination of several meetings of these courts, including those involving the cases of Waldinus of Malicorne, Raherius of SarcĒ, and Warin the Proud, will demonstrate that these meetings produced a discourse designed to foster horizontal bonds of community based on "right" rather than propound and fix vertical bonds of lordship based on abstract notions of "custom" or "law." The importance of this distinction, especially when the relative nature of decisions made according to "right" is taken into account, cannot be underestimated, for it allowed decisions to be cloaked by the mantle of higher authority while ensuring that consensus and compromise determined the production of those decisions. Indeed, although adjudication could and did occur as one of several possible means of attempting resolution, the evidence from western France confirms the conclusions of Cheyette and White about the prevalence of compromise and suggests, moreover, that compromise was not merely the epiphenomenon of decentralized political authority but was a deeply embedded social value that both shaped the procedure adopted in cases brought to curiae and determined the efficacy of adjudication. That Waldinus of Malicorne could reject the decision rendered by two bishops at a curia "because he had not heard what he wanted," and that he could do so without incurring judicial punishment or social ostracization, is as significant as the fact that Waldinus and his enemy eventually settled their dispute through compromise. Courts and judgments were, therefore, essentially personal and voluntary affairs that revealed a communal intent to produce peace; as such, the desire of the disputants and their peers for resolution mattered more than the authoritative power of a person or an abstract text. In short, the evidence of procedure, adjudication and decision-making at Western French curiae reveals the deep-seated cultural expectation that courts should be social events in which kin, friends, and neighbors would produce, albeit occasionally artificially, a decision based on "right" but underscored and enforced by consensus.
Family Rights and Monastic Reform in Tenth Century Burgundy
Hans Hummer, Department of History, University of California at Los Angeles
My presentation will investigate a tenth-century dispute in northeast Burgundy between the abbots of the monastery Lure and an Alsatian noble family for control of the said monastery. The dispute reveals the interplay of four competing norms: on the one hand the rights of the family to hereditary control of the monastery, which they had exercised for at least four generations; and on the other the attempt of the abbots to assert independence by appeal to Otto I for immunity, by appeal to the jus proprietatis of St. Peter in Rome and by appeal to the local rights of the patron saint of the monastery, Deicolus, and, by extension, his abbatial successors, to hereditary control of Lure. The aim was not to sever relations with the family, but to renegotiate the relationship of the family to the monastery and subordinate them to monastic control at a time when the Ottonian kings were reconstituting central authority in the east and encouraging reform of the Roman Church.
An Example of Peace and Concord: Inter-Monastery Relationships in Medieval Anjou
Belle Tuten, Department of History, Juniata College
While conflicts between medieval monasteries and their lay patrons, donors, and adversaries have been examined at length, scholars have paid less attention to conflicts between monasteries. This paper will use several cases from the western French city of Angers in the eleventh and twelfth centuries to explore inter-monastery conflicts and their political and legal characteristics. To do so, the paper will explore the relationship between the nuns of Our Lady of Charity, a Benedictine monastery for women, their counterparts at three monasteries for men, and the Bishops of Angers. Because the city of Angers supported four large monasteries at close quarters, property and jurisdictional disputes were common among Angers' religion houses. When they met their male neighbors in legal cases, the nuns of Our Lady depended heavily on the bishop for support. His support, whether given or withheld, often directly coincided with the nuns' ability to challenge their neighbors successfully in court. This paper will argue that while the bishops did not possess the undisputed right to solve property and jurisdictional disputes between monasteries, their support could help weaker parties such as the nuns of Our Lady to successfully pursue claims against their neighbors. The cases provide insight into the complex nature of inter-church relationships, as well as the structure, function and enforceability of church law in eleventh and twelfth-century France.
Comment: The Chair
often been portrayed as largely rationalist. My interest, however, lies in the mythological underpinnings of legal modernism. I have long been intrigued by the emergence of anthropological readings of the law in the period following the Civil War--and the invention of legal primitivism as a counter-point to claims of modernism. Writers from Henry Sumner Maine to Bronislaw Malinowski have recreated imagined primitive law or collected details about actual primitive legal systems. The important issue for me is how the rise of legal modernism through demanding the repudiation of other legal systems as primitive--especially those founded upon custom--denied legitimacy to a host of alternative conceptions of law.
For the purpose of the ASLH panel, my paper would focus upon the imagining of lex non scripta as the centerpiece of primitive law. If late nineteenth-century Anglo-American law is marked by a triumphalist embrace of text-centered learned law, why is there such a striking focus upon unwritten law?
Comment: Michael H. Hoeflich,
University of Kansas School of Law
Peter Just, Department of Anthropology, Williams College