The Medieval Review 13.01.01

Pennington, Kenneth and Melodie Harris Eichbauer. Law as Profession and Practice in Medieval Europe: Essays in Honor of James A. Brundage. Burlington, VT: Ashgate Publishing Company, 2011. Pp. xiv, 421. $134.95. ISBN: 978-1-4094-2574-8. . .

Reviewed by:

Thomas McSweeney
Cornell University
tjm37@cornell.edu

James Brundage is one of the leading scholars of medieval canon law. He is also one of those rare medievalists whose work has reached undergraduates directly. Brundage's Law, Sex, and Christian Society in Medieval Europe is, I suspect, the only encounter many undergraduates will have with the field of medieval canon law. For students whose primary academic interests lay elsewhere, Brundage's book makes medieval canon law accessible, interesting, and even funny; his famous flow chart explaining when it was permissible to have sex according to the Irish penitentials has brought joy and mirth to many an undergraduate marriage and sexuality class. His recent book, The Medieval Origins of the Legal Profession, has introduced a wide audience of historians and legal scholars to the world of medieval lawyers. It is thus fitting that Brundage's career to date should be celebrated in this Festschrift, whose editors have assembled a magnificent team of top scholars.

Almost anything within the field of medieval or early modern canon law could be said to respond in some way to Brundage's work. The (very helpful) list of his work to date at the end of the volume runs to twenty-nine pages and includes over 400 published works! This also presents a challenge in organizing a Festschrift with a coherent theme, however. Apart from the fact that all of the papers are concerned, in some way, with canon law or Church history, there is little to hold them together. Some of the articles, like Jonathan Riley-Smith's meticulously researched article on the development of the Templar rule and James Muldoon's article on the seventeenth- century debate between Hugo Grotius and John Selden about whether an individual state could close the sea, are pitched to very specific audiences, and audiences that do not necessarily overlap. It is possible, as happens in many Festschriften, that very good articles will get lost in this volume because they do not reach the relevant audiences.

Law as Profession and Practice contains many excellent articles. For the most part, readers should not look for a complete reimagining of medieval canon law, but for articles that move forward in an established line of inquiry. Some, like Brian Tierney's article on the medieval antecedents to the state of nature in the writings of John Locke, will be of broad interest and may even be appropriate for undergraduate classes, but most of the articles speak primarily to specialists in sub-fields. Readers will probably be best served by seeking out articles of specific interest rather than reading Law as Profession and Practice straight through. That said, very few of the articles are inaccessible to non-specialists; a scholar who is unfamiliar with the literature on sexual imagery in Romanesque sculpture, for example, will learn something from Richard Kay's article on the subject.

The reader may have some difficulty locating relevant articles. The broad range of subjects seems to have led to some difficulties in organizing the volume. The articles are arranged into four parts, which roughly correspond to Professor Brundage's areas of academic interest. Parts III and IV, titled "Law, Sex, and Marriage," and "Law and Crusades," correspond to two of Brundage's books and are fairly specific in their scope. They also contain far fewer articles than the other parts. Parts I and II, "Medieval Legal Thought and Constitutional Ideas," and, "Schools, the English Church, and Texts" seem to have been designed as catch-all categories for articles that did not obviously fit into Parts III and IV.

It would be impossible to do justice to all nineteen articles in the book, but I will highlight certain articles under themes that may be of interest to particular audiences. The articles on "Law, Sex, and Marriage" will be of the most interest to a general audience. Although they cover a wide swath of history and have little in common apart from having something to do with sex or marriage, each of the articles has a particular strength that will make it interesting to the general reader. Charles Donahue's piece is really more about the legal profession than it is about marriage, but the methodology Donahue employs is very interesting. "The Mysterious Canonist Bazianus on Marriage" is a history of the mediocre. Donahue uncovers, through glosses, the opinions of a canonist, working at the end of the twelfth century, who was just not very good at what he did. Donahue’s exposition of the hapless Bazianus reminds us that the jurists whose work comes down to us were, for the most part, the successful ones. But mastering legal theory in the way the great jurists did could not have been the norm; there must have been many a canonist like Bazianus who created "larger problems than the ones he set out to resolve" (285). Although difficult to recover, the work of mediocre jurists might be a fruitful avenue for future research, filling out our picture of the medieval scholarly profession with the average Joes, or Baziani, who must have constituted the bulk of the profession.

Richard Kay's article, an outlier in that it is the only article in the book that covers a topic that predates the eleventh century, tells a fascinating story. Kay recounts a ninth-century Frankish monk's vision of Charlemagne in hell with a monster gnawing his genitals. Kay ties the vision to contemporary debates about concubinage among the Frankish nobility and whether it was a forgivable sin. Glenn Olsen makes a broad point about shifting conceptions of humor and vulgarity in the twelfth century. In his piece on sex in Romanesque art in Occitania and Northeast Spain in the late eleventh and early twelfth centuries, Olsen seeks to make "a first sketch of a sexual topography...an estimation of the incidence and variety of sexual themes found in one area over the period of about a century" (327). Olsen tentatively suggests that there was a shift in sensibilities in the later twelfth century whereby "what before had been viewed by many...as much as comical as anything else, came increasingly to seem vulgar" (356).

Readers interested in the early modern period will want to work through the many articles that challenge the traditional division between the medieval and the modern. Thomas Izbicki looks at the fifteenth-century canonist Juan de Torquemada's "conservative" view of witches. Reversing the usual narrative of a historical shift towards a modern scientific skepticism, he shows us a case of medieval skepticism towards "diabolical wonders" (39) giving way to early modern credulity. Edward Peters, in his article "The Sacred Muses and the Twelve Tables," argues against a strand of historiography that sees the rise of humanism as the beginning of the end of the medieval, scholastic version of Roman law. According to scholars like Manlio Bellomo, humanists, over time, transformed Roman law from a living system to a "textual treasure-trove of philological and other antiquarian pursuits and interests" (148) with little relevance to the present. Peters summarizes work done on legal humanism and shows that the scholastic law and the humanist interest in law came into conflict far less than has been supposed: humanists with interest in the texts of the Corpus Iuris Civilis did little to change the practice of law in fifteenth and sixteenth century Europe and had no desire to do so. Peters takes apart the label "legal humanism" and shows that it did not represent a unified movement that was opposed to scholasticism. Humanists and legal practitioners were not so much competing with each other over the proper interpretations of the canonical texts of Roman law as using the same texts for different purposes. The humanists can thus be acquitted of any evil intent in tearing down the edifice of the medieval ius commune. Rather, the ideas the humanists developed--that Roman law was not universal law, but was a law that had been created in a particular historical context--were later "instrumentalized by thinkers with other agenda" (148).

Charles Reid and James Muldoon look at medieval antecedents to doctrines that are often seen as marks of modernity: subjective rights and open seas. For Brian Tierney, it is John Locke's concepts of individual consent to government and the state of nature that turn out to have medieval precedents. Tierney shows that the "contrast between medieval corporatism and Lockean individualism" is a construct of the historical literature on the subject (71). Readers familiar with Tierney's work will find nothing surprising in the argument that the roots of modern democratic ideas can be found in the writings of medieval canonists. The genius of this article is Tierney's choice of Locke as his subject. By examining the works of a canonical author celebrated as one of the heralds of modernity, Tierney opens his work up to a wide audience and could even initiate discussions on the usefulness of modernity as a concept in Western Civilization or Great Books courses. Given the subject matter, a political science journal may have been a better venue for this piece. In a book pitched primarily to medievalists, Tierney's article preaches to the converted. I hope that this article will reach political philosophers and historians of early modern Europe, as well.

Another group of articles speaks to the line between secular law and ecclesiastical law. James Powell shows us that Innocent III could make secular law as well as canon law, and that he could distinguish between the two. Powell argues that Innocent viewed his roles as pope and as secular ruler of the papal state and Sicily (as regent) as separate endeavors. While Powell focuses on the distinctions between secular and ecclesiastical law, Kenneth Pennington, in his article on canonists' writings about the oath of fealty, shows us a world that "did not balkanize canon, Roman, and feudal laws as we balkanize our legal systems today" (106). He argues that canonists, although they distinguished clearly between the secular oath of fealty and ecclesiastical oaths of obedience, could draw on the norms of canon law in their discussion of the former because they "believed that if principles were valid in one legal system they could be valid in another" (106).

A final group of articles will be of interest to scholars who work on Church administration. Robert Somerville looks at Adhemar of Le Puy, the papal legate on the first crusade, and asks what the office of legate meant to Adhemar, to Urban II, and to the crusaders. Olivia Robinson's "Bishops and Bankers" explores, in detail, the web of relationships between the pope, Italian bankers closely connected to the papacy, and bishops who borrowed heavily from those bankers, primarily to fund their representatives at the papal court. Robinson's paper is more interesting for the presentation of her research than for its conclusions, but the article will raise many interesting questions for the reader. What was the relationship between the pope and the bankers? Why was the pope so anxious to support bankers over his bishops? Peter Landau's article could also fall into this category. Landau takes a very useful approach that is becoming more common in canon law studies: he examines a particular text, the Collectio Fontanensis, and looks at how that text might have been used in its historical context. Landau looks at the subject matter of this collection of papal decretals and connects it with the activities of the wealthy Cistercian abbey of Fountains, where it was produced. From this text, Landau paints a picture of a Cistercian monastery that is not so isolated as we might imagine. It is hard to understand why a community of presumably celibate monks living in an isolated abbey in northern England would be interested in the many papal letters on the law of marriage that appear in the collection. They make sense, however, given the abbot's active role in the administration of canon law in the region: he sat regularly to decide cases, often involving marriage, as a papal judge delegate. By examining the sources that the monks drew upon to create the Collectio, Landau also suggests that Fountains was a nexus for the dispersal of canon law texts in England. Patrick Zutshi's article on the University of Cambridge examines the highly contestable process by which a school could come to be recognized as a studium generale with the power to grant the right "to teach at any other university without undergoing further examination" (157).

The reader wishing to broaden her knowledge of any of the above topics—and to read recent work by the top scholars in the field—will find it worthwhile to spend time with this volume. The authors present the complex field of medieval canon law in a way that is accessible to a general audience, a fitting tribute to a scholar who has tried to make medieval canon law accessible to historians with little background in law, lawyers with little background in history, and even to undergraduates.