9
1 This chapter integrates sections from the first edition chapters on canon law in private and public life to emphasize the importance of this field of research.
Canon law was by no means a matter that concerned solely the clergy or the devout. Until the mid-fourteenth century, when men trained in civil law gradually began to displace canonists, rulers and other powerful persons, both lay and clerical, as well as religious communities, municipalities, and other institutions, found it prudent either to maintain a resident canon lawyer in their households or, more commonly, to grant pensions to one or more of them as a long-term retainer. Trained canonists routinely served as ambassadors, spokesmen, and negotiators for both great and small corporations, cities, and individual potentates. They were able to do this by engaging with, shaping, and embedding ecclesiastical norms into the intellectual culture of the period; they would lay the foundation for what it meant to engage in a profession. Canon law was woven into the fabric of medieval life and its influence permeated the entire medieval social order, reaching into virtually every nook and cranny of human conduct. It influenced commercial activity, namely just price and excess profit, charging of interest on loans, and when people could work. It supported the ownership of private property and helped to move testamentary practices from a rigid system to one that allowed the dying to determine who inherits their goods. Canon law laid the foundation for social safety-nets, such as poor relief. Finally, canonists created mechanisms by which to address legal problems inherent in both ecclesiastical and secular corporate organization and structure.
As we have seen, canon law was an integral part of the intellectual ferment of the Middle Ages. The thirteenth century, as a case in point, was an age of spectacular innovation in nearly every department of Western life. It witnessed the birth and flowering of the mendicant religious orders; the rise of universities; advancements in scholastic theology and philosophy; the burgeoning of sophisticated poetry in the vernacular languages; and the invention or improvement of numerous scientific, technical, and mechanical devices. It also produced massive amounts of new law and new legal doctrines nearly everywhere in the Latin West. Thirteenth-century England was an age rich in legislation, from Magna Carta (1215) to the Statutes of Mortmain (1279), Westminster II (1285), and De tallagio non concedendo (1297). It was also the age of Bracton and of court reports in the yearbooks. Thirteenth-century France likewise witnessed a great wave of legal innovation, including a long string of royal Ordonnances, the establishment of the Parlement de Paris, and the appearance of Beaumanoir’s Coutumes de Beauvaisis. Similarly in thirteenth-century Germany we have the Sachsenspiegel, in Spain the Siete partidas and the Fuero real, and in Italy the Liber Augustalis, as well as an astonishing wealth of municipal statutes.
The flourishing law schools and the compilation of legal collections were central to engaging with and shaping the Middle Ages. Canonists devised new solutions to problems, old and new, originated fresh approaches to the analysis of institutions, and contributed novel ideas to what has since become the common stock of Western tradition. Styles of investigation and genres of canonistic writing transformed as law became more intricate and technical. Ambitious attempts at synthesis gave way to small-scale treatises upon increasingly minute technical problems. Canonistic summae became increasingly rare in the fourteenth and fifteenth centuries, although those that did appear showed a marked increase in size and complexity since they had to take account of an ever-growing volume of canonical scholarship. A characteristic genre of canonical writing in this period was the monograph on some specialized topic, such as arbitration techniques, the taxation of litigation costs, intestate succession, provision to benefices, precedence in liturgical processions, or the privileges of academic rank. The consilium was another favorite genre as they analyzed in great detail the law relevant to a some highly specific situation. Some late medieval legal experts compiled collections of replies that they or others had written in response to inquiries in real cases, while others simply used the consilium as a literary vehicle for discussion of complex legal problems. Late medieval canonists also produced numerous aids to legal scholarship, such as dictionaries and digests or epitomes, that were increasingly necessary to locate relevant material within the vast body of legal literature—“the ocean of law”, as some described it. Canonists, in short, formed one major creative component of the intellectual as well as the practical life of the European Middle Ages.
The teaching of canon law contributed to the idea of what constitutes a “profession”. From the sixth through the eleventh centuries, there were those who practiced law. They served as judges in trials; they acted as proctors and advocates; they provided legal advice. However, such individuals did not receive a law degree; they came to know the law, for example, through individualized study or something akin to an apprenticeship, and they came to be respected for their knowledge and conduct in such cases. Practicing law was often one of many duties; they were also bishops or teachers in the cathedral school. Law was not their principal occupation. Ivo of Chartres serves as an excellent example. He received his education in the liberal arts but also learned law. He engaged with the law and compiled canonical collections, but his principal function was serving as bishop of Chartres.
Beginning in the twelfth century, however, people went to school specifically to study law, a program which had formal requirements for certified graduates. By the 1220s, a “master of decrees” (magister decretorum) was likely to mean a person who had pursued a prescribed course of studies in canon law at a university and at the end of it had passed an examination given by his teachers, who certified that he was competent both to teach and to practice as a canonist. By the 1250s, degree structure and nomenclature had grown more complex. The title “doctor of decrees” (doctor decretorum) had by then come into common use to designate a fully-trained canonist, one who had not only completed a course of studies that stretched over five years or more, but had also passed both a preliminary private examination and a public one and had also lectured in canon law at the university that conferred his title. Those who had completed the first year or two of canonical studies were coming by this time to be described as “bachelors of decrees”, while those who had progressed far enough to take and pass the private examination often bore the title “licentiate in decrees”. Those who completed their study and associated requirements participated in an admissions ceremony which involved the swearing of an oath of office and the entry of the new practitioner’s name on a register of practitioners. The admissions oath, in turn, spelled out in general terms some basic professional obligations that the newly admitted practitioner undertook to observe. Fledgling practitioners swore that they would represent and advise their clients with the utmost diligence and zeal. They further swore that they would not knowingly accept unjust or ill-founded causes, that they would neither fabricate evidence themselves nor introduce evidence fabricated by others, that they would not conceal relevant evidence from their opponents or the court, and that if during the course of proceedings they became aware that their client’s case was frivolous or maliciously brought in order to harass their opponent, they would immediately abandon the client, withdraw from the case, and inform the judge of their reasons for doing so. Finally, many jurisdictions in the Middle Ages—especially in Italy, local guilds, or associations of university-trained lawyers—imposed their own examinations and other requirements upon those who sought to qualify as advocates or proctors in the courts.2 The same holds true today: a lawyer must pass the bar exam in the state in which s/he wishes to practice in order to participate in the profession.
2 See, in particular, R. Helmholz, The Profession of Ecclesiastical Lawyers: An Historical Introduction, (Cambridge, 2019); J. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008).
The external focus of canon law helped to shape societal frameworks that today we take for granted. The jurisdictional boundaries of canon law were often fuzzy, and many jurisdictional frontiers remained uncertainly defined throughout the Middle Ages. Medieval church courts claimed, and often exercised, authority over numerous aspects of life that people in modern secularized societies tend to regard as the business of civil government. Commercial activity is one such area. Canonical courts intervened in matters involving just price—the price that the buyer was willing to pay and the seller was willing to accept—and excess profit through the manipulation of market prices. The Church punished those engaged in forestalling (the artificial manipulation of the market by withholding supplies of a vital commodity, such as salt, in order to drive up prices), engrossing (refusing to sell a massed supply of foodstuffs until buyers pay a steep price for it), and regrating (buying commodities in bulk at a market town and then reselling them in the countryside at many times the purchase price). Canonists, however, sometimes applied just price theory inconsistently when services rather than commodities were at issue. For example, when journeymen attempted to drive up wages by withholding labor from the guild masters who employed them, canonists were prepared to treat this as illegal interference with market economics. When guild masters resorted to collective action to drive wages lower, however, the issue of market manipulation seemed to become much fuzzier and canonical sanctions were seldom invoked.3
3 J. W. Baldwin, “Medieval Theories of the Just Price,” Transactions of the American Philosophical Society, New Ser. 49, no. 4 (1959): 1–92; idem, “The Medieval Merchant before the Bar of Canon Law,” Papers of the Michigan Academy of Science, Arts, and Letters 44 (1959): 287–299.
Church authorities had claimed the right to regulate the charging of interest for loans from its earliest days. The first Council of Nicaea in 325 forbade clergymen from doing so.4 Later authorities gradually broadened the prohibition by extending it to Christian laymen and to all classes of loans. Any return in addition to the principal of a loan constituted usury and usury was a canonical crime for which church courts could impose substantial penalties. Usurers who took or demanded interest upon a loan must return their unlawful gains to the borrower and might suffer further penalties, both spiritual and temporal, as a consequence of their unlawful actions. They were also subject to excommunication and canonical infamia, which rendered them ineligible to hold positions of public trust, to bring accusations in court, to testify at a trial, or to make a valid will. Actual punishment for these crimes was uneven, and, by the end of the Middle Ages, church authorities realized that they could not enforce an economic policy rooted in moral policy. They thus modified the canonical prohibition of all interest charges and to permit lenders to collect modest amounts of interest legally, while still condemning excessive interest as the social evil of usury.5
4 COGD I: I Nicaea, c.17.5 J. Gilchrist, The Church and Economic Activity in the Middle Ages (London, 1969), 53–76, 104–115; F. Schneider, “Das kirchliche Zinsverbot und die kuriale Praxis im 13. Jahrhundert,” in Festgabe, enthaltend vornehmlich vorreformationsgeschichtliche Forschungen, Heinrich Finke… gewidmet (Münster, 1904), 127–167.
Canon law further imposed limits upon the periods when people could legally engage in work, especially “servile” work. The law mandated abstinence from work on Sundays and holy days throughout the year. Prohibition of labor on these occasions was grounded, at least in theory, on the premise that the holiday would enable everyone to attend Mass and participate in other devotional exercises and would thus provide spiritual as well as corporal refreshment for the entire community.6 By the twelfth century, saints’ days and other festivals in the Roman liturgical calendar added about 40 days annually of enforced leisure to the 52 Sundays when work was forbidden.7 Further, workers were obliged to refrain from labor on the feast days of local saints celebrated in their own region, and these averaged about 30 additional days each year when work was illegal. In total, then, canonical regulations subtracted something in excess of 120 days, the equivalent of four months every year, from the time available for productive labor. Despite loss of productivity and income, frequent holidays no doubt contributed in some measure to social wellbeing, since they afforded workers periodic and frequent respite from the daily grind, often featuring dances, feasts, dramas, and pageants. These bursts of merriment punctuated the unexciting chores of daily life.
6 C. R. Cheney, “Rules for the Observance of Feast-Days in Medieval England,” Bulletin of the Institute for Historical Research 34 (1961): 117–147.7 Grat. De cons. D.3 c.1.
Canonists, like other jurists of the ius commune tradition, were vocal champions of individualism and of an economy based on private ownership which must, they thought, entitle a rightful owner to enjoy as much property as he could accumulate and to dispose of it in any way that he pleased, provided that its disposition threatened no harm to others. Thus, the industrious, well-connected and lucky entrepreneur, for example, had every right to amass as enormous a fortune as he could, and likewise to give every penny of it away if and when that suited his fancy. In property matters, medieval jurists were staunchly on the side of individual proprietors and, by the same token, were deeply suspicious of joint-proprietorship arrangements, since they feared that tenants-in-common would be more apt than a single owner to neglect property, to allow it to fall into disuse or decay, and to stifle its effective exploitation because of conflicts and jealousies among the co-owners. Both canonists and civilians, in addition, zealously defended the rights of property owners against efforts by public authorities to confiscate their wealth through taxation or by any other means. Confiscation by a ruler, they agreed, was tyranny and subjects had every right to resist it.
The Church’s support of private ownership of property parallels the critical role canon law played in the development during the high Middle Ages of those mechanisms for transmission of property between generations that we usually style last wills and testaments. Prior to the eleventh century, Germanic inheritance practices held sway whereby the property of deceased family members was divided according to fixed rules. Changes in social structure and ecclesiastical influence helped to nudge Europeans toward a more flexible and voluntary process, a process furthered by a revived awareness of Roman law from the beginning of the twelfth century, which further stimulated reintroduction of ancient testamentary practices (and, more especially, their adaptation to fit contemporary conditions). In England, more than in most regions of medieval Europe, canonical courts became the regular forum for the probate of wills and testaments and the disposition of claims arising under them.8 The dominance of canon law over probate jurisdiction was already well established by the end of the twelfth century and Glanville, King Henry II’s chief justiciar, refers to it as if it were a routine matter that secular courts did not contest.9 During the late medieval period, however, the Common Law courts succeeded in wresting debt claims against a decedent’s estate away from the canonical courts and into their own jurisdiction. Civil law and secular courts on the Continent, however, were less ready than their English counterparts to yield control over testamentary matters to the Church. Instead, testamentary questions were usually treated as matters of mixed jurisdiction.10 Church courts secured control in cases where the formalities of making a testament were at issue and also over legacies and bequests for pious causes, as well as the testaments of clerics; civil courts dealt with most other disputes that arose from testamentary disposition of property.11
8 M. M. Sheehan, The Will in Medieval England: From the Conversion of the Anglo-Saxons to the End of the Thirteenth Century (Toronto, 1963).9 G. D. G. Hall, ed. and trans., Tractatus de legibus et consuetudinibus regni Anglie qui Glanvilla vocatur/The Treatise on Laws and Customs (rpt. Oxford, 1993), 7.8; F. Pollock and F. W. Maitland, The History of the English Law before the Time of Edward I, 2nd edn (Cambridge 1968) 2:331–333.10 R. H. Helmholz, “Debt Claims and Probate Jurisdiction in Historical Perspective,” American Journal of Legal History 23 (1979): 68–82; repr. in his Canon Law and the Law of England (London, 1987), 307–321.11 For example, F. R. P. Akehurst, trans., The Coutumes de Beauvaisis of Philippe de Beaumanoir (Philadelphia, 1992), Ch. 11 §317, p. 120; Ch. 11 §333, p. 124; Ch. 12 §427–428, p. 153; J. Petit, ed., Registre des causes civiles de l’officialité épiscopale de Paris, 1384–1387 (Paris, 1919), xxviii and passim; C. Calisse, A History of Italian Law, trans. L. B. Register (London, 1928), 638–641.
Poor relief was another area where canon law controlled a vital element of medieval social structure. The Church had, from early on, accepted special responsibility for alleviating poverty and providing support for the disadvantaged. Gratian and his early commentators put the matter clearly: the bishop bore primary responsibility for assisting the poor in his diocese and defending them against oppressors, while the rest of the clergy shared in that duty.12 Funding for poor relief in medieval society came in the first instance from tithes, the 10% tax on most forms of income that the Church levied, at least in principle, on everyone.13 A fourth part of the revenue of each parish was supposed to be earmarked for assistance to the poor, according to some canonical texts, although other authorities prescribed that as much as a third should be allocated to this function.14 In theory, this should have yielded quite substantial funding for poor relief, but the administration of tithes in practice was fraught with problems and conflicts. In many regions, lay proprietors—often the lords of manors—converted tithe revenues to their own uses.15 Elsewhere the rectors of parishes treated tithes as part of their personal income and shared them only grudgingly with the other nominal beneficiaries.
12 B. Tierney, Medieval Poor Law: A Sketch of Canonical Theory and Its Application in England (Berkeley-Los Angeles, 1956), 68–71; J. A. Brundage, “Legal Aid for the Poor and the Professionalization of Law in the Middle Ages,” Journal of Legal History 9 (1988): 169–179; J. Taliadoros, “Law, Theology, and Morality: Conceptions of the Rights to Relief of the Poor in Twelfth and Thirteenth Centuries,” Journal of Religious History 37 (2013): 474–493. On voluntary poverty as a religious ideal see L. K. Little, Religious Poverty and the Profit Economy in Medieval Europe (Ithaca, 1978).13 C. E. Boyd, Tithes and Parishes in Medieval Italy: The Historical Roots of a Modern Problem (Ithaca, 1952); G. Constable, Monastic Tithes from Their Origins to the Twelfth Century (Cambridge, 1964); P. Górecki, Parishes, Tithes and Society in Earlier Medieval Poland, ca. 1100–1250 (Philadelphia, 1993).14 Grat. C.12 q.2 c.23, c.26–c.31; Tierney, Medieval Poor Law, 72–75.15 For a full treatment of the proprietary church, see S. Wood, The Proprietary Church in the Medieval West (Oxford, 2006).
The Church’s influence over prices and usury, work, private property and the right to dispose of that property, and poor relief demonstrates its tremendous influence over society. This influence vis-à-vis its legal arm reflects its influence as a corporation. Canonists created mechanisms by which to address legal problems inherent in corporate organization and structure. They devised answers to a variety of questions: What was, or ought to be, the proper relationship between the chief officer and the other members of such a corporate body? Did the head, by virtue of his office, enjoy an all-encompassing right to exercise absolute power over the members? If not, what were the limits of the head’s powers? Could the head single-handedly alienate property given to the whole group? What if the head of the group proved to be greedy, irresponsible, incompetent, immoral, or otherwise unfit for office; could he be removed? If so, how, under what circumstances, and by whom could this be achieved? Could the members impose legitimate constraints upon their leader’s policies and actions and, if so, how could they do this? Who was to judge if the head exceeded his authority? Who could enforce such a judgment, and how?
These questions were not easily answered. For example, Pope Innocent IV (d. 1254) and Hostiensis (d. 1271) could not agree on corporate structure and power relationships within a corporate body because each began with a fundamentally different conception of how corporate entities ought to conduct their business. Innocent IV grounded his treatment of ecclesiastical corporations on the premise that power within these institutions ought to be concentrated in the hands of the principal officer. The head of the group, to be sure, might delegate partial responsibility and limited authority over some matters to subordinate officers, who were answerable to him for the proper discharge of their duties. Innocent’s view of corporations, accordingly, may be described as authoritarian. The head of the corporation is ultimately the sole legitimate source of power and the members are dependent upon him. The exercise of power by the head is not subject to review or limitation by the other members of the group. Innocent envisioned the corporate head as an authoritarian ruler, responsible only to higher authority and ultimately to God.16 In rejecting this view, Hostiensis taught that head and members shared corporate authority and responsibility. The head of the body, Hostiensis conceded, was entitled to make the final determination on matters that solely affected the rights and property that belonged to his office. Even on those issues, however, he must consult the other members of the group before taking final action. The members retained authority over matters that affected them alone. On these, the members could make final disposition, although the head, of course, retained the right to participate in discussions of these affairs and even to vote on them, since he remained, after all, a member of the corporate body. On matters that involved the joint interests of head and members, according to Hostiensis, the two shared authority and responsibility, so that neither could act without the consent of the other.17
16 Innocent IV, Apparatus in quinque libros Decretalium (Frankfurt am Main, 1570), ad X 1.2.8 s.v. sedis §2 (fol. 4ra–rb).17 Hostiensis, Lectura sive apparatus domini Hostiensis super quinque libris decretalium, 2 vols (Strasbourg 1512), ad X 1.2.8 s.v. §Fuit and s.v. §Quo circa (vol. 1 fol. 7vb–8ra).
Canonists distinguished between three major classes of corporate business. One class of business pertained exclusively, or mainly, to the prelate or other head of the corporate body. A second pertained primarily to the members of the body, while a third class consisted of matters in which head and members had joint interest. In dealing with matters that fell into the first of these classes, the corporate head must ask the advice of the members, but did not require their consent. The members of the corporation could take action on matters in the second class, even without the consent of the head, although the head was entitled to be heard and to vote on these issues because he was a member of the corporation. Matters that fell into the third class, where joint interests were involved, required that both head and members agree before lawful action could be taken.18
18 Bernard of Parma, Gloss. ord., ad X 1.3.21 s.v. debeant.
This analysis of corporate decision-making required those who taught canon law in the schools to define the meaning of terms such as “advise” and “consent”. Thirteenth-century academic lawyers who taught canon law in universities such as Bologna, Paris, and Oxford took up this task. Although some early writers used the terms “advise” and “consent” as if they were synonyms, Hostiensis and others by mid-century distinguished them sharply from one another. When the head of a corporate group, such as a chapter, a monastery, or perhaps the College of Cardinals, was required only to take counsel with the members, but was not bound to abide by the advice he received from them, then “advise” was the appropriate verb to describe the situation. But if the “consent” of the members was required, the head must not only consult with the members, but also win their approval. The result was to impose limits upon the authority and discretion of the head of a corporation and to allow the members a voice in the determination both of corporate policy and actions.
As early as the time of Innocent III, some writers had interpreted the theological teaching that the Church formed the mystical body of Christ as grounds for classifying the entire Latin Church as a corporate entity, with the pope as its head and the College of Cardinals as members. Later canonists, such as John of Paris (d. 1306) and Cardinal Zabarella (d. 1417) in the fourteenth and fifteenth centuries, pushed this analysis much further. Just as the powers of the heads of other ecclesiastical corporations were limited by the powers of the members, they argued, so likewise papal power was not absolute. Instead, the cardinals and especially the general councils of the Church enjoyed the right to limit the exercise of papal discretion and to establish boundaries within which popes must operate.19 The pope, like other Christians, they asserted, was bound to observe the laws of the Church. Should he defy the limits that the law established, he acted illegitimately and, in extreme circumstances, might even be deposed. These issues concerning the limits of papal authority and the relationship between popes, cardinals, and councils lay at the heart of the conciliarist controversies in the later Middle Ages.
19 B. Tierney, Foundations of the Conciliar Theory: The Contribution of the Medieval Canonists from Gratian to the Great Schism, enlarged new edn (Leiden, 1998), 143–214.
Just as canonists conceived of the Church as the mystical body of Christ, civil lawyers likewise adopted the notion that the commonwealth (respublica) formed another mystical body, the body politic, in which the ruler was the head and his subjects were the members of a corporate entity. Canonistic corporation theories thus influenced debates concerning the limits of the power of kings and other rulers within civil society. Out of the elaboration of canonical corporation theory emerged some novel political ideas that have subsequently become basic to modern Western notions about constitutional government.20 Canonists, followed by civil lawyers, adapted a Roman legal rule originally fashioned to govern the conduct of business when a minor or other person legally unable to manage property had two or more guardians. The rule seems almost absurdly simple: “What touches all should be approved by all” (quod omnes tangit) or, in other words, all parties with a legal interest in any matter must consent before a legitimate transaction concerning it can be completed.21
20 B. Tierney, “Medieval Canon Law and Western Constitutionalism,” Catholic Historical Review 52 (1966): 1–17; repr. in his Church Law and Constitutional Thought in the Middle Ages (London, 1979); K. Pennington, “Law, Legislative Authority and Theories of Government, 1150–1300,” in Cambridge History of Medieval Political Thought, c.350–c.1450, ed. J. H. Burns (Cambridge, 1988), 436–453.21 Dig. 41.2.22; see, in particular, K. Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in Western Legal Tradition (Berkeley-Los Angeles, 1993); G. Post, “A Romano-canonical Maxim, ‘Quod omens tangit’ in Bracton,” Traditio 4 (1946): 197–251.
A key issue, however, was that the quod omnes tangit rule seemed to require unanimous consent for every proposed transaction, with the result that each individual member of the group possessed a potential veto power that could overrule the wishes of all the other members. This could obviously create serious problems, and lawyers soon devised at least partial solutions to them. One obvious approach was to require that only the numerical majority of the body need consent to a proposal, rather than that everyone must consent unanimously to every item of business. Again, Roman law supplied a mechanism that medieval canonists adapted for purposes very different from those that the classical jurists had originally envisioned. The mechanism this time was the mandate, a specialized kind of contract used in Roman law to create a proctor (procurator)—the Latin term that gave rise to the English word proxy. Romans in Late Antiquity mandated proctors to transact all sorts of business that would have been impossible or inconvenient for the principal to execute in person. Depending upon the terms of his mandate, the proctor might be empowered to buy or sell goods, pay or receive money, conclude contracts, or act upon the principal’s behalf in litigation—any or all of these with the same force or effect as if the principal had done them himself.
Following the canonists, some thirteenth-century civil lawyers thinking about the sources of royal power concluded that subjects, speaking through representatives, might lawfully impose limits upon the exercise of kingly prerogatives. Out of the questions and the answers that corporation theory suggested emerged the basic elements of what we may call “parliamentary constitutionalism”.22 These included the notion of the rule of law, which holds that rulers like their subjects must obey the law, combined with theories of representation and consent that entitled relatively small groups of a ruler’s subjects to speak for the rest and to impose some limits upon the ruler’s freedom from control. The conceptual framework that made possible the development of legislative assemblies, such as the English Parliament, the Spanish Cortes, and the French Estates-General, among others, emerged gradually out of speculative arguments among academic lawyers in the thirteenth and fourteenth centuries about these and related matters of legal principle.
22 Tierney, “Medieval Canon Law and Western Constitutionalism”; on questions of governance see also R. W. Kaeuper, P. Dingman, and P. Sposato, eds., Law, Governance, and Justice: New Views on Medieval Constitutionalism (Leiden, 2013).
Canon law was simultaneously a product of, and an integrating component within, medieval religion and politics. The boundaries between canon law and civil law remained highly permeable throughout the Middle Ages and well into modern times. The ius commune on the Continent, which drew upon both of the learned laws, provided the underlying platform upon which many secular legal systems rested into the twentieth century. The two learned laws depended so heavily upon one another that it is often difficult or misleading to classify one or another legal scholar or commentary as civilian or canonist. Although university curricula and degrees distinguished sharply between civilians and canonists, the symbiosis between them was close, if not always cordial.
Canon law had cemented its imprint on society. Although Protestant Christians in principle rejected the canon law of the medieval church, they often retained a substantial part of its regulations and policies.23 This was particularly evident in the Anglican Church, where medieval canon law remained a notable force long after the break with Rome. Justices and serjeants of the English king’s court would have found it necessary to have some knowledge of Roman-canonical law and its procedure. Questions of bastardy, inheritance and a widow’s rights, litigants pressing a matter in ecclesiastical court that should in fact be heard in secular court, and the rights of churches demonstrate that lay courts of English Common law and the ecclesiastical courts of the ius commune intersected with one another.24 The ius commune continued to influence English lawyers writing about the ius gentium (law of nations) after the establishment of Protestantism in England under Queen Elizabeth; this was in spite of Henry VIII’s dismantling of the canon law faculties at Oxford and Cambridge and, with the help of Parliament, the abolishment of the papacy’s appellate jurisdiction even over matters in which the English Church had continued to hold jurisdiction. The writings of influential jurists writing between 1550 and 1750, such as Sir William Blackstone (d. 1780), Francis Bacon (d. 1626), George Dawson (d. 1700), John Dodderidge (d. 1628), William Fulbecke (d. 1603), Thomas Ridley (d. 1629), and Thomas Wood (d. 1722), reflect a familiarity with the theoretical topics of the natural law and the law of nations. Canonical thinking on the ius gentium found its way into contemporary thought and the works of Sir Arthur Duck (d. 1648), Richard Cosin (d. 1597), Colybute Downing (d. 1644), Alberico Gentili (d. 1608), Henry Swinburne (d. 1624), Robert Wiseman (d. 1654), and Richard Zouche (d. 1661).25 Romano-canonical jurisprudence was thus woven into the fabric of English Common law from at least the first half of the twelfth century to the second half of the eighteenth century. Various sixteenth-century projects for the creation of a reformed English canon law thus foundered, with the result that a substantial part of the law of the early modern Anglican Church remained virtually identical with medieval canon law. Historians now recognize the importance of this remarkable continuity and are exploring its causes and consequences.26
23 See, for example, R. H. Helmholz, The Oxford History of the Laws of England: The History of the Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004); idem, Roman Canon Law in Reformation England (Cambridge, 1990).24 See, for example, P. Brand, “The Common Lawyers of the Reign of Edward I and the Canon Law,” in Studies in Canon Law and Common Law in Honor of R. H. Helmholz, ed. T. L. Harris (Berkeley, 2015), 27–40.25 R. Helmholz, “The ius gentium and the Canon Law in England, 1550–1750,” in Der Einfluss der Kanonistik auf die europäische Rechtskultur, Vol. 6: Völkerrecht, eds. O. Condorelli, F. Roumy, and M. Schmoeckel (Cologne, 2020), 190–203.26 B. Tierney, Liberty and Law: The Idea of Permissive Natural Law, 1100–1800 (Washington, DC, 2014); Helmholz, Roman Canon Law in Reformation England. Projects exploring understanding of jurists from a particular geographic region have added to our understanding of juristic thought, see W. Decock and J. Oosterhuis, eds., Great Christian Jurists in the Low Countries (Cambridge, 2021); M. Schmoeckel and J. Witte Jr., eds., Great Christian Jurists in German History (Tübingen, 2020); O. Condorelli and R. Domingo (eds.), Law and the Christian Tradition in Italy: The Legacy of the Great Jurists (London-New York, 2020); O. Descamps and R. Domingo, eds., Great Christian Jurists in French History (Cambridge, 2019); R. Domingo and J. Martínez-Torrón (eds.), Great Christians Jurists in Spanish History (Cambridge, 2018); M. Hill and R. H. Helmholz, eds., Great Christian Jurists in English History (Cambridge, 2017).
Evangelical Protestants on the Continent typically cast off a good deal more of the heritage of medieval canon law than did their Anglican brethren in England. Even so, marked elements of continuity remained between the older law and the new discipline of the established Protestant churches, perhaps most notably within the German Lutheran tradition.27 Nonconformist Protestant groups, however, vehemently rejected not only the rules embodied in the canon law of the medieval church, but the very idea of canon law itself. Baptists and Quakers, for example, believed that the Scriptures and the Holy Spirit were the only authentic Christian guides to salvation. Medieval canon law, in their view, was an all-too-human invention that had led countless men and women into religious error. Other Protestant groups, such as Congregationalists, maintained that the autonomous local churches described in the Acts of the Apostles and the Pauline letters were the proper models for Christians to imitate. Individual congregations, they believed, must be responsible for making and enforcing whatever rules their members deemed necessary and appropriate for their community.
27 For an overview see P. Landau, “Kirchenverfassungen,” in Theologische Realenzyklopädie, Vol. 19: Kirchenrechtsquellen – Kreuz, eds. H. R. Balz and G. Müller (Berlin, 1990), 110–165, here 147–155.
Despite fierce disagreements in post-Reformation Europe and the Americas over the role of religious law in Christian life, numerous elements of the medieval canonistic tradition remain embedded in the civil laws of modern national states.28 Laws concerning marriage, family relationships, inheritance, sexual conduct, and other types of personal behavior, for example, often retain substantial elements of medieval church law at their core. Western societies to this day vigorously resist efforts to displace those core elements. The history of divorce laws in the nineteenth and twentieth centuries demonstrates this with particular clarity.29 The tax treatment of churches and other religious bodies in most Western nations, to cite another obvious example, is predicated on the medieval canonical policy that exempted church property from the usual fiscal obligations that governments impose on other corporate groups.
28 See, for example, J. Muldoon, ed., Bridging the Medieval–Modern Divide: Medieval Themes in the World of the Reformation (London-New York, 2013).29 R. Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988); L. Stone, Road to Divorce: England, 1530–1987 (Oxford, 1990).
Medieval canon law, to conclude, not only remains a major source of religious law (at least in those modern churches that identify themselves with the traditions of Catholic Christianity), but also influenced many vital elements of modern secular legal systems. The speculations and insights of medieval canonists remain enshrined both within the common law tradition of the English-speaking world and within the civil law heritage of Continental Europeans. This is most obviously true in family law and testamentary law, but canonical tradition is also evident in many other branches of the law—contracts, torts, property law, and corporate law among them. Canonical ideas and techniques even more obviously underlie much of Continental procedure and substantive law as well. Western political thought and, indeed, the idea of constitutional government itself ultimately draw much of their substance and many of their basic premises from debates that raged in the canon law faculties in the twelfth and thirteenth centuries. Medieval canon law, in short, constituted a fundamental formative force in the creation of some of the elemental ideas and institutions that continue to this day to characterize Western societies.