Medieval Canon Law Research Articles

Bűn és büntetés a középkori egyházban

The medieval Latin Church had a very clear and elaborate theory of human sin and the punishment that was necessarily associated with it. This complex thought can be summarised in two main theories: theological theory and canon law, which can be particularly well illustrated by means of case law, i.e. the activity of the ecclesiastical courts. In the following overview, I will present the legal basis and purpose of punishment, as well as the types of punishment, based on the theological views of Thomas Aquinas on the one hand, and on the sources of medieval canon law on the other, illustrated with examples from canonical jurisdiction.

Medieval Canon Law, Second Edition by Melodie H. Eichbauer and James A. Brundage (review)

Medieval Canon Law, Second Edition by Melodie H. Eichbauer and James A. Brundage (review)

Anders Winroth / John C. Wei (Eds.), The Cambridge History of Medieval Canon Law. Cambridge, Cambridge University Press 2021

Article Anders Winroth / John C. Wei (Eds.), The Cambridge History of Medieval Canon Law. Cambridge, Cambridge University Press 2021 was published on February 1, 2023 in the journal Historische Zeitschrift (volume 316, issue 1).

Nowe szaty króla – uwagi nad książką Krzysztofa Burczaka

The Emperor’s New Clothes – Remarks on Krzysztof Burczak’s Book The review essay of the book on quinque compilationes antiquae by Krzysztof Burczak offers a critique of the scope and method applied to the research on the sources of medieval canon law within this monograph. The two objectives or hypotheses of the book are too broad and were not properly justified. The research was based on limited and outdated methods. The approach to the sources of quinque compilationes did not take into account the complicated history of the transmission of canon law texts. The author overlooked the relevance of the science of canon law (e.g., glosses) and application of compilations in courts which were crucial for defending his claims. Unfortunately, the book proves that the state and quality of the history of universal canon law in Poland resembles the emperor’s new clothes.

Telum manu fugiens and Involuntary Homicide in Medieval Canon Law

Medieval jurists succeeded in making the first attempts, which then made it possible to rank the degrees of guilt as follows: dolus – culpa – casus. Roman law addressed cases of unintentional crimes in a descriptive manner. For the manslaughter situation, they used the description of a weapon that escaped someone’s hand on its own and caused a someone’s death. A regulation of this kind has already appeared in the Law of the XII Tables. The topos of a weapon that itself escapes from a man’s hand was also used by early Christian writers. From there it made its way into medieval compilations of canon law.

A 17. századi protestáns természetjogászok családképe

The history of the development of the matrimonial law is a particularly useful tool for researching and comparing the biblical and Roman law roots of European legal culture. In Western Christianity, the (essential elements of) canonical marriage law had been unified by the second decade of the 13th century. However, the Protestant movements that developed in the first half of the 16th century and their denominational marriage law system led to further fragmentation, which has essentially continued to the present day, notwithstanding the fact that the rise of civil marriage and the secularisation of the law of dissolution in the 19th and 20th centuries meant that denominational marriage law no longer had any civil legal force. The most appropriate method for a historical comparison of Protestant ecclesiastical marriage law is to first consider the doctrines of the founders of the dominant movements on the institution of marriage, focusing on the differences that constituted a breaking point in relation to medieval canon law on marriage. In the Protestant regions of Europe, hundreds of secular (state, provincial and municipal) laws on the marriage law had already been enacted by the 16th century, and their common feature, in addition to the theological background mentioned above, was that they drew on biblical and Roman legal roots, while retaining elements of traditional customary law. In this overview, I will first introduce the Protestant understanding of the virtues of marriage through the example of Martin Luther and Jean Calvin, and then examine how the generation of natural law scholars who followed them, notably Hugo Grotius and John Selden, thought about the marriage bond on this basis.

Viešas reikalas? Bylos dėl impotencijos XVII–XVIII a. Vilniaus ir Žemaitijos katalikų konsistorijose

Matter of Public Concern? Impotence-Related Cases in the Catholic Consistories of Vilnius and Samogitia in the Seventeenth and Eighteenth Centuries Since the time of Paul the Apostle, Christians regarded marriage as a medium in which a couple’s legitimate offspring are born and which prevents the risk of fornication (Lat. fornicatio). With the development of canon law, the concept of conjugal debt (Lat. debitum conjugale) was defined in the middle of the twelfth century, which stated that upon marrying, a man and a woman undertook to have sexual relations with each other. At the same time, theologians and canonists debated about the essential condition for marriage: whether it was consent (Lat. consensus) or consummation of marriage via sexual intercourse (Lat. consummatio). In this context, various sexual pathologies that interfered with a couple’s sexual life were treated not only as a medical but also as a legal problem affecting the continuity and validity of marriage. In Catholic canon law, the terms used to refer to the sexual disorders causing difficulties in marriage were “impotence” (Lat. impotentia) or “frigidity” (Lat. frigiditas). These terms, although not gendered, were nevertheless most often used to describe men’s physiological problems. In the ninth century, impotence was divided into natural, permanent, and temporary, the latter thought to be caused by magic (Lat. maleficium). The decisions of the popes collected in Decretales (Liber Extra) of Pope Gregory IX, the most important collection of medieval canon law, defined modus operandi of the Church in dealing with impotence-related cases. Only permanent impotence could become legal grounds for declaring a marriage null and void; if the disorder was temporary, the couple had to live together for three years and attempt to consummate marriage. The very nature of the condition had to be proven by a specialist examination or a witness testimony, and in this respect, the impotence-related cases were rather a definitive example of institutional intervention in a seemingly very private sphere. In the Catholic consistories of the Grand Duchy of Lithuania, impotencerelated cases were perhaps the rarest category of all marital litigation. In the surviving sources of the seventeenth-eighteenth-century ecclesiastical courts, it was possible to find data on ten such cases, of which seven were examined. Due to the scarcity and chronological inconsistency of the data drawing generalising conclusions is problematic, nonetheless, it is possible to observe certain trends and to reveal aspects that are relevant from the point of view of micro-history. All bar one of the cases involved male impotence, and five out of seven resulted in the decisions declaring the marriages null and void. The analysis of case materials clearly reveals an aspect of publicity characteristic of this type of cases that had evolved in canon law since the Middle Ages, namely, third-party inspections. It was the expert insights of women or doctors that had a decisive influence on the decisions on whether to annul the marriage or to order the spouses to stay in it. This rather unwanted limelight may have precluded many of the cases from ever reaching the courts. Keywords: Impotence, ecclesiastical courts, Catholic Church, Grand Duchy of Lithuania, canon law.

Coacta voluntas est voluntas: Baptism and Return in Canon Law

Abstract Throughout the early Middle Ages, the border between Christianity and Judaism was comparatively permeable, and baptized Jews, particularly those baptized under duress, frequently returned openly to Judaism. While modern scholars of Jewish-Christian relations often assume that medieval canon law always forbade this, a single norm governing converts’ re-conversion, or reversion, did not begin to emerge until the mid-twelfth century with the Decretum Gratiani. The Decretum established the preeminence of the canon that barred Jewish baptizands’ reversion and acted as a catalyst for discussions about the limits of consent and coercion, baptism and conversion. These debates provided the foundation for the mandates of the early thirteenth century that did establish the legal boundary between Jew and Christian which lasted into modernity: so long as baptizands consented, even if under duress, they were Christians and could not return to Judaism.

Erec et Enideand the Concept of Consent

AbstractChrétien de Troyes’s Erec et Enide is about a husband’s appalling and disturbing mistreatment of his wife. Yet, this article contends, it can also be understood as a (perhaps surprisingly) critical reflection on sexual consent, which overlaps with key concerns of both medieval canon law and modern consent theory. In dialogue with each of these domains, this essay studies, first, how particular episodes not only call attention to the importance of sexual consent but also to factors that mitigate it—as well as to the more general limitations of the concept. Second, the article explores how the larger adventure series, which makes up the core of the romance, is persistently engaging with some of the knottiest issues in both medieval and modern thinking on sexual consent, such as its relation to equality, silence, volition, and the active/passive binary. Finally, the article reflects on the implications of considering this courtly romance alongside modern consent theory. On the one hand, modern theory pushes the medievalist to confront what is at stake in deeming Enide unable meaningfully to consent to the terms of her union with Erec. On the other, this medieval romance responds with crucial insights on, in particular, the history of the relationship between patriarchy and the concept of sexual consent.

UBUNTU AND THE AMENDE HONORABLE – A MARRIAGE BETWEEN AFRICAN VALUES AND MEDIEVAL CANON LAW

The South African law of damages purports to be compensatory in nature. Although the inherent historical punitive element of the actio iniuriarum is generally recognised, the Constitutional Court has held that punitive damages have no place in South African law, because they would inter alia violate the public law-private law divide. The actio iniuriarum, the remedy for defamation, also places strain on the right of freedom to expression, because potential defendants could be intimidated by large damages awards from exercising this right. At the same time it protects the right to dignity of the individual. In the past decade the idea has been mooted by academics and also in our case law that the revival of the medieval amende honorable in our law would solve the problem of balancing the rights to freedom of expression and dignity. This remedy involves an apology by the defendant, and because with this remedy a potential defendant does not face financial ruin, his right to freedom of expression is upheld. At the same time an apology by the defendant for defamatory remarks could do much more to restore the plaintiff’s dignity than a monetary award.This note juxtaposes the African concept of ubuntu with the amende honorable, a remedy which may be traced back to medieval European canon law. In the Constitutional Court judgment of Dikoko v Mokhatla (2006 6 SA 235 (CC)) two of the judges opined that the amende honorable has a place in the South African law of defamation, and moreover, that it is fully compatible with the notion of ubuntu.

Arvind Thomas, Piers Plowman and the Reinvention of Church Law in the Late Middle Ages. Toronto: University of Toronto Press, 2019. xiv, 267 pp.

Abstract: As the law and literature movement in law schools reminded us several decades ago and Hans-Georg Gadamer before that, law and literature share much cultural work in common: they tackle some of the same communal problems; they interpret and revise norms for conduct; they evaluate written sources; they weigh what constitutes authority; and they both use and invite similar hermeneutical methods. This is especially so with medieval canon law and Piers Plowman. That capacious dream vision is chock full of forensic elements – trials, lawyerly debates, confessions, penalties, acts of restitution, pardons – and it is studded with so many legal terms and maxims that John Alford compiled a book-length glossary of them. From the late fourteenth century, readers have been interested in the poem’s legal language and its profound rethinking of how society can reach justice, especially in economic transactions. Now Arvind Thomas examines how the B and C versions of Piers understand legal problems somewhat differently from canon law and use legal thought in new ways for different ends, types of what he terms “reinventing” canon law. To do this, he focuses on private sacramental penance, organizing his study around the penitential process: contrition, confession, restitution, and satisfaction.

Sacri Canones Editandi: Studies on Medieval Canon Law in Memory of Jirí Kejr (Ius canonicum medii aevi, vol. 1) Edited by Pavel OtmarKrafl. Pp. 266, Brno, Reprocentrum, 2017, npg.

The Heythrop JournalVolume 62, Issue 4 p. 781-782 Book Review Sacri Canones Editandi: Studies on Medieval Canon Law in Memory of Jirí Kejr (Ius canonicum medii aevi, vol. 1) Edited by Krafl, Pavel Otmar. Pp. 266, Brno, Reprocentrum, 2017, npg. Norman Tanner, Norman Tanner Bournmouth, UKSearch for more papers by this author Norman Tanner, Norman Tanner Bournmouth, UKSearch for more papers by this author First published: 05 August 2021 https://doi.org/10.1111/heyj.13971Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat No abstract is available for this article. Volume62, Issue4Special Issue: Augustine and Anselm of CanterburyJuly 2021Pages 781-782 RelatedInformation

Müßig, U. Reason and Fairness Constituting Justice in Europe, from Medieval Canon Law to ECHR

Book review: MUsIG, U. Reason and Fairness Constituting Justice in Europe, from Medieval Canon Law to ECHR. Legal History Library, vol. 2. Leiden: Brill Nijhof, 2019, 629 s.

HISTORICAL AND LEGAL ANALYSIS OF THE DEVELOPMENT OF EXTREME NECESSITY AS A CIRCUMSTANCE PRECLUDING THE CRIMINALITY OF AN ACT

The article presents an analysis of the historical development of extreme necessity as an institution of criminal law. The authors examines the peculiar views of Roman jurists on the possibility of exemption from criminal liability in connection with injury to the state of emergency, the specifics of medieval canon law, assessment of Russian lawyers of the institute of extreme necessity. Conclusions about the peculiarities of the evolution of the norms of extreme necessity in criminal legislation on the basis of a retrospective analysis of the sources of criminal law are made.

Jog az Egyház hagyományában es életében by Péter Erdő

Reviewed by: Jog az Egyház hagyományában es életében by Péter Erdő Richard Bona Jog az Egyház hagyományában es életében, by Péter Erdő. Budapest: Szent István Társulat, 2016. Pp. 7–488. For the twentieth anniversary of the founding of the Institute of Canon Law (ad instar facultatis) of the Pázmány Péter Catholic University (Budapest), His Eminence Péter Cardinal Erdő compiled a collection of his most recent works under the title Jog az Egyház hagyományában es életében (Law in the Tradition and Life of the Church). The book is written in Hungarian but includes tables of contents for Italian and English readers as well. However, the English version does not always employ the correct canonical idiom. The volume contains nineteen studies—all previously published articles and lectures—with the oldest being from 2004. Thirteen of these works have appeared also in other languages: twelve in Italian and one each in German and English. For the publication of this volume, several articles have been updated, modified, or enlarged. Borrowing from the structure employed by the 1983 Code of Canon Law, Cardinal Erdő organizes his work into five areas: fundamental concepts and general norms, juridical organization of the People of God, [End Page 235] sanctifying function of the Church, questions of ecclesiastical penal law, and procedural problems. Within these areas he devotes attention to the theology of canon law, unjust laws and religious liberty, the Church-State relationship, and the notions of ecclesiastical office and administrative law. He also explores the possibilities of advancement of ecumenism through the 1983 code’s conceptual elements and the potential of the principle of reciprocity not only with other Churches sui iuris, but also with other Christian denominations. The collection of these works gives evidence of Erdő’s predilection for historical analysis of different canonical elements. Thus, in this volume, one finds examination of the canonization of St. Elizabeth of Hungary, healthcare issues in medieval canon law, study of the requirement to know the language of the faithful for the appointment of a pastor, the canonical punishment of archers and arbalesters, the role of primates in the Western Church, the history of ecclesial affiliation of the city of Budapest, and the canonical investigation of the impeded see of the Archdiocese of Esztergom in the wake of Cardinal Mindszenty’s arrest. Concerning the ius vigens, Cardinal Erdő comments on papal primacy, the application of rule thirteen of the Regula iuris in the present canon law, reform of the Eastern liturgies after the Second Vatican Council, and the motu proprio Mitis Iudex Dominus Iesus. The articles and lectures of Jog az Egyház hagyományában es életében demonstrate the breadth of Cardinal Erdő’s canonical research. In an era in which most scientific fields display a pronounced trend toward specialization, works exhibiting polymathic character are rare. Yet, His Eminence still delivers competent and uniquely valuable studies, impressive in range and meticulous in detail. While these virtues could in principle expand interest in the author’s efforts, the present volume, unfortunately, is beneficial only for those who read Hungarian. More serious readers of Cardinal Erdő may find this book helpful as well, as it contains updated and enlarged versions of some of his earlier published work. [End Page 236] Richard Bona Diocese of Cleveland Cleveland, OH Copyright © 2021 The Catholic University of America Press

Piers Plowman and the Reinvention of Church Law in the Late Middle Ages by Arvind Thomas

Reviewed by: Piers Plowman and the Reinvention of Church Law in the Late Middle Ages by Arvind Thomas Sarah Wood Piers Plowman and the Reinvention of Church Law in the Late Middle Ages. By Arvind Thomas. Toronto: University of Toronto Press, 2019. In Piers Plowman and the Reinvention of Church Law, Arvind Thomas examines the B and C versions of Langland’s poem and the treatment of penance in medieval canon law as two open, dynamic, and evolving textual corpora. Noting that scholars of Piers Plowman have often traced Langland’s quotations back to their origins in, for example, the writings of Augustine, Thomas directs attention instead to the more immediately contemporary sources for Langland’s thinking about penance in texts such as Gratian’s Decretum, Raymond of Peña-fort’s Summa de paenitentia, and William of Pagula’s Oculus sacerdotis. But he also seeks to question the conventional hierarchical relationship between source text and literary work, arguing that the poem not only invokes or reproduces but also reinterprets and transforms these materials. Piers Plowman therefore participates with the treatises, Thomas argues, in producing “the discourse of canon law” (22). In a further claim, Thomas proposes that the C version (traditionally assumed to be Langland’s final revision but here approached with a fashionable agnosticism as merely one variant form) “exhibits a sharper or more substantial engagement and enrichment of canon law than does B” (20). Thomas is most compelling in his first chapter, which brings the corrupted or failed confessions of Meed (in passus 3) and Contrition (in B 20/C 22) into dialogue with the “contritionist procedures” set out by Raymond of Peñafort and others (35). This material on the proper conduct of confessions will be familiar in a general way to readers of Piers Plowman who have any knowledge of the many pastoral texts in the tradition of Raymond’s work, but Thomas’s detailed comparison of the poem with the treatises nevertheless brings into fresh view just how audacious a travesty Meed’s performance of penance really is. The “penitent” here usurps the role of the confessor (Meed gives the friar a little lecture about lechery) while the confessor adopts the “mildness of speech” proper to the penitent (42, 49). Thomas generally does not offer the treatises as direct sources in the conventional sense, but I found it easy to believe that Langland recalled Raymond’s warning that sins should not be confessed in haste “as money-changers count coins” when [End Page 162] he described “the swift exchange of a coin (‘noble’) between Mede and the confessor” (44). The subsequent chapters move from the practice of confession to more abstract and theoretical matters such as the prohibition of usury (chapter 2), the necessity of restitution (chapter 3), and the computation of penances (chapter 4). However, these discussions of the various treatises feel increasingly remote from the text of Piers Plowman. In chapter 2, for example, Thomas argues that Conscience’s newly expanded critique of Meed in passus 3 of the C version “adapt[s] concepts of credit, time, risk, and doubt used by canonists to theorize usury lurking behind credit sales such as advance (‘pre manibus’) payments” (93). But in order to claim that Langland had in mind here the canonists’ argument that loans on fungibles were unjust, Thomas must claim that Meed’s gifts of rings and gold cups “are fungibles as they are all expressible in terms of number, or weight, or measure” (102), a kind of special pleading that seems to come from the Rudy Giuliani school of jurisprudence. The comparison in the same chapter with Hostiensis’ discussion of conditional fiefs (104–105) is more persuasive, given that Conscience actually uses the same analogy (C.3.315–323, Piers Plowman: The C Version, 1997). In chapter 3, Thomas’s effort to elaborate the “canonistic grounds” (118) for the poet’s invention similarly strains against the more obvious meaning of the text. Here, he argues that in employing a maxim from canon law (“Numquam dimittitur peccatum nisi restituatur ablatum”) as part of the confession of Covetise in C 6, Langland “reinvents” “canonist thinking [. . .] by placing or recognizing limits upon the pope...

Stephan Kuttner: A Remembrance

Stephan Kuttner:A Remembrance Stanley Chodorow As did everyone else in our field of medieval canon law, I read everything Stephan Kuttner wrote from the 1930s to the 1990s. Actually, I read everything at least twice, because when Stephan was assembling the volumes of his collected articles for publication by Variorum Reprints, he called on me to help with the project. Even before we undertook that effort, I knew that Stephan had never let go of any of his publications. As he continued his work and learn new things, he returned to his earlier work and made notes. On every publication, he had files with corrections and additions carefully noted. When he faced the prospect of reprinting the articles, he and I gathered and organized all those notes and additions and appended them to the volumes. It pleased him greatly to title the additions 'Retractationes', the title of the revisions and reconsiderations that St. Augustine wrote at the end of his life. Stephan was one of those rare people who knew that his work was invaluable and who could not be accused of hubris or excessive self-regard in so thinking. I began working with Stephan in 1971-1972, during a year I spent on an ACLS Fellowship at the School of Law at Berkeley. Stephan had moved to Berkeley from Yale the year before to become one of two directors of the Robbins Collection, dedicated to research in religious and civil law. David Daube, a renowned scholar of civil and Jewish law, was his co-director. Stephan brought the Institute of Medieval Canon Law with him from Yale; he had founded the Institute at The Catholic University of America in the 1950s, after emigrating from Europe during World War II. I was taking law courses as part of my fellowship, but I spent every available hour in the Institute doing research in the Robbins Collection and learning from Stephan. The relationship we developed during that year led to my assisting him with the Variorum project. [End Page 15] As I learned during that year at Berkeley, Americans did not do their doctoral work under Stephan Kuttner. (Robert Somerville was the only American student who took his doctorate under him.) Rather, those who regarded themselves as studying with Stephan were recent Ph.Ds. That pattern began, so far as I know, with my own mentor, Brian Tierney, who completed his doctorate at Cambridge under Walter Ullmann and then won a position, with Stephan's help, at Catholic University. Brian established the pattern many of us later followed. It was not that we went to study with Stephan at Catholic or Yale or Berkeley, but that we worked in his aura and absorbed his standards by listening to his direct comments, reading his scholarship, and observing him at work. I came to think that a doctoral student was not yet knowledgeable or experienced enough to get what Stephan had to offer, although Somerville's example belies that view. The danger for a doctoral student working with Stephan was that he set such a high standard of knowledge and insight that one could not imagine being able to do scholarship worthy of his example or sit for the exams of the doctoral program with him as one of the examiners. Once one had done all that, one could work with the master. The experience of working with Stephan was humbling. His scholarship set the standard we all aspired to, and his genius sometimes overwhelmed. It was a common experience to go ask him a question and hear, 'Oh. You asked me that three months ago, and the answer I gave you was …'. He was not criticizing you; he was merely stating a fact. By the time I was working with him, he had gotten over any feelings of superiority he might have had as a young man. He just remembered everything and from time to time noted the fact. The most common experience of working in his shop was the feeling that his help and his example made you better at the job. He did not give an impression of a stellar classroom teacher, but he was a marvelous teacher to all...

The History of Courts and Procedures in Medieval Canon Law ed. by Wilfried Hartmann and Kenneth Pennington

The History of Courts and Procedures in Medieval Canon Law ed. by Wilfried Hartmann and Kenneth Pennington

중세 교회법상의 usura 법리의 발전 과정에 관한 연구

중세 교회법상의 usura 법리의 발전 과정에 관한 연구

Semantiken des Alten, des Neuen und des Modernen im gelehrten kanonischen Recht: Beobachtungen zur Deutung von ,antiqua‘, ,nova‘, ,hodie‘ und ,moderna‘in der Kanonistik des 12.–15. Jahrhunderts

Abstract Semantics of the Old, the New and the Modern in Learned Canon Law: Observations on the Interpretation of ‘antiqua’, ‘nova’, ‘hodie’ and ‘moderna’ in the Science of Canon Law, 12th–15th Century. In using the terms ‘antiqua’, ‘nova’, ‘hodie’ and ‘moderna’ as descriptors of change in law and legal knowledge, the science of medieval canon law adopted a longstanding semantic tradition of theology and rhetorics. The article addresses these usages and argues that they represented different understandings of the relationship between the past and the present, ranging from the idea of progress and continuous change to the concept of superior authority of the past towards the present.