PANEL: Truth, Justice, and the Carolingian Way:
Courts and the Articulation of Power in Early Medieval Europe
Saturday, October 20, 2000, 1:15 - 2:45
Chair: Thomas Francis Head, Department of History
"Why go to a court? Self-interest and the courts in early Carolingian Bavaria"
Recent research on disputing in the Carolingian world has shown that Carolingian courts were not institutional expressions of central power, but rather places where central authority met and blended with local politics and relationships. To explain why people went to courts and accepted their results, this research has speculated about self-interest and the role played in disputes by publicity and peer pressure. In this paper, I will explore the former by looking at what enabled Carolingian courts to function in an area where they were newly implanted, that is, Bavaria at the turn of the ninth century. Drawing on records of property disputes from the cathedral church at Freising, I will argue that Charlemagne's takeover of Bavaria in 787-94 changed the normative landscape surrounding gifts of property to churches in a way that made Carolingian missi courts resources that Bavarians could use to compete for property with each other. Overturning previous Bavarian practice, the missi interpreted gifts of property to churches to mean that the recipient church enjoyed full control of donated property. As a result, the courts became weapons that the bishop of Freising could use to assert his property rights against the customary claims of donor kindreds. At the same time, church rights as defined by the courts became a tool that members of landholding kindreds who were allied with Freising could use to protect their property from relatives. The courts thus became arenas where Bavarians processed conflict and competition that they had previously handled extra-judicially, and places where they forged new alliances to take advantage of the opportunities presented by the arrival of Carolingian authority.
What was supposed to be true in a Carolingian oath?
According to the great 19th-century Germanist legal historians, the essential proof of Carolingian courts was the compurgatory oath, in which the swearer alleged not knowledge of facts but support for a party's claim. The great revision of Carolingian history that has occurred in the last thirty years has discarded this view. Compurgatory oaths are now seen as archaic procedures of marginal use and utility, their supposed dominance in early medieval procedure a reflection not of early medieval reality but of the 19th-century mythology of tribal "Germanic" law. This paper will argue that the pendulum has swung too far. In discounting the importance of oaths, revisionists have argued from written charters, assuming that these document real contemporary practice in a way that law codes do not. Yet charters tend to document only particular kinds of disputes -- those arising over real property, between parties who share intimate and lasting ties, in which at least one of the parties is a church or cleric. In other words, charters tend to document rights that are are susceptible to evidentiary proofs, in situations where the disputants have a stake in negotiating a settlement, and where one of those parties is committed to a system of written law. Charters are not good evidence for all Frankish legal practice. In contrast, other evidence, such as chronicles, reveals just how important compurgatory oaths were and in what kinds of cases: highly charged political trials in which, whatever the stated legal issue, the underlying issue was standing within a community. In these situations, compurgatory oaths allow those controlling the court to draw a line in the sand that dares an opposing faction to speak out publicly or stay silent.
The Transformation of Legal Geography in an Ethnocratic State: The Making of the Israeli Land Regime 1948-1970
Alexandre (Sandy) Kedar
The Israeli Land Regime was originally shaped by: (a) nationalization of Arab and other lands; (b) preservation of firm national control over these lands; and (c) selective allocation of possession and use to different sectors within Jewish society. I label this a collectivist-nationalist land regime. The thrust of the paper looks into the first component of the Israeli land regime, and specifically into the nationalization of Arab land. The paper attempts to understand how the newly created State of Israel used the Ottoman and British heritage, changed some of its components and introduced new ones, to further the Zionist agenda of "Land Redemption." After shortly outlining the major legal tools that permitted the appropriation and nationalization of Arab land, the paper focuses on one legal mechanism that permitted this transfer of land: The process of "land settlement" or "settlement of title" that began in the late 1950's in the Arab villages in the North of Israel. The paper reviews the subtle changes in Ottoman and British laws, which took place during the period. Although these changes in administrative practices, in legislation and in Court's interpretations, were mostly concerned with rules of procedure and evidence, they resulted in a dramatic transfer of land from Arabs to the state and to Jewish institutions, and thereby promoted the goal of 'redemption' of Arab land. In the remaining time I will briefly look at the process of land allocation within the Jewish population. While keeping the formal ownership and substantial part of the bundle of property rights within the State and the Jewish institutions, some components of the bundle of property rights in the land (such as the right to possess) were redistributed to different groups within the Jewish society according to ethnic and class lines. This expropriation and distribution of rights in land, which amounted to a legal reorganization of Israeli geography, was essential for the establishment of new power structure of Israel as an ethnocratic state and society.
Comment: Adam J. Kosto, Department of History
ian's Adventures with the