PANEL: Confidentiality and the Canon Law
Saturday, October 20, 2000, 10:30-noon
Chair: Charles Donahue
Harvard Law School
Keeping the Client's Secrets: An Ethical Obligation of medieval Advocates
James A. Brundage
Although twentieth-century historians have sometimes claimed that the idea of privacy was either uncommon or unknown in medieval European societies, there were in fact important areas of life where medieval law not merely acknowledged, but also extended legal protection to, a right of privacy. This paper will explore one of those areas. namely the right of confidentiality enjoyed by clients in their dealings with advocates and le at advisers.
The standard teaching of medieval writers on legal ethics demanded that advocates, legal advisers (iurisperiti), and other legal "professionals"' (proctors, notaries, and the like) to safeguard confidential information that their clients disclosed to them. Thirteenth-century oaths of admission to practice, for example, frequently specified this obligation among the many others that ecclesiastical lawyers undertook to observe. Failure to maintain clients' secrets constituted a serious offense known as prevaricatio, the penalties for which might include suspension from practice in the courts for a period of time or even permanent disbarment. Medieval doctrine on this matter had roots in the Roman law of late antiquity. and also bears a direct relationship to modern ideas about the standards of professional conduct.
The Privacy of Inward Spiritual Experience: The Case of Joan of Arc in the Nullification Trial, 1455-1456
A claim of privacy for individual spiritual experience seems incompatible with the protection of orthodoxy that was a hallmark of the late medieval church. Possessing both the ideology and the procedure necessary to investigate and prosecute heresy, the church was well equipped to enforce conformity in religious belief and practice. During the lengthy proceedings that examined the validity of Joan of Arc's trial for heresy, however, it was argued that Joan's visions were protected under canon law from the scrutiny of the church. In sum, the learned opinions favoring nullification claimed that the church's reach into the spiritual realm was limited by legal and theological doctrine.
This paper will explore the legal doctrines on which this argument was built, namely the principle that "the church does not judge hidden matters" (ecclesia de occultis non judicat) and the law surrounding the prerogatives of conscience. The learned opinions advanced on Joan's behalf must not be read naively, as the nullification trial took place in a politically charged atmosphere. Joan's walked a fine line between political exigencies on one hand and professional and intellectual integrity on the other. In the final analysis, however, they did not abuse legal with aberrant interpretation as they creatively applied canon law to her case.
Comment: Robert C. Figueira, Department of History