contributor.author: Cynthia J. Neville

title.none: Musson, ed., Boundaries of the Law (Cynthia J. Neville)

identifier.other: baj9928.0608.003 06.08.03

identifier.issn: 1096-746X

description.statementofresponsibility: Cynthia J. Neville, Dalhousie University, cneville@dal.ca

publisher.none: .

date.issued: 2006

identifier.citation: Musson, Anthony. Boundaires of the Law: Geography, Gender and Jurisdiction in Medieval and Early Modern Europe. Aldershot and Burlington, VT: Ashgate, 2005. Pp. x, 196. $89.95 0-7546-5090-1. ISBN: .

type.none: Review

relation.ispartof: The Medieval Review

The Medieval Review 06.08.03

Musson, Anthony. Boundaires of the Law: Geography, Gender and Jurisdiction in Medieval and Early Modern Europe. Aldershot and Burlington, VT: Ashgate, 2005. Pp. x, 196. $89.95 0-7546-5090-1. ISBN: .

Reviewed by:

Cynthia J. Neville
Dalhousie University
cneville@dal.ca

This collection of essays had its origin in a conference on "Mapping the Law", hosted by the University of Exeter's Anthony Musson in 2003. As is so often the case with collective efforts, the quality of the contributions varies from the very strong to the much weaker. Here, the editor should probably have left out at least two essays on the basis of poor writing and flawed analytical content. The majority, however, offer intriguing and sometimes exciting perspectives on various aspects of the law as it operated in England and Europe. As the subtitle of the volume and the editor's introduction make clear, each of the contributions explores some aspect of the ways in which legal boundaries shifted to accommodate the imperatives of geography, gender or jurisdiction, and in doing so effected profound change among lawmakers and litigants alike.

Mark Ormrod's paper sheds new light on the oft-discussed outlaw literature of later medieval England. He begins with a brief exploration of the tension, characteristic of the fourteenth and fifteenth centuries, between the "centralized and formalized" legal procedures of crown courts and the "abiding determination" of provincial elites to administer the law in ways best suited to local conditions. He then looks for--and finds--evidence of this tension in the literature of the period, particularly in the legends of Robin Hood. These stories, he contends, resound with intimations of the deep divide between the king's court, with its centralized system of justice and its crown-appointed judges, and the greenwood, where local communities "maintain their traditions of self-determination" (14). This is an insightful essay, provocative and, rather like the Gest of Robin Hood itself, subversive, in that Ormrod challenges many of the conclusions that literary and legal scholars alike have drawn about outlaw legends.

Thomas Gergen and Trish Olson also address topics that have long preoccupied historians, this time from a pan-European perspective. Gergen explores the extent to which French bishops gave real and meaningful expression to the canons that collectively made up the Peace of God movement. He sets out to answer this question by examining the cartulary of Charroux, the site, in 989, of the first of the famous Peace councils. He finds that, although specific reference to the canons is lacking, a careful reading of several of the abbey's charters reveals that the treatment of persons who used violence in or against the church closely reflects the provisions of the first and third canons of 989. He concludes that "the Peace rules and their application were thus integrated into the negotiation of rights and power" between the abbot and its secular neighbors (28). Unfortunately, Gergen's contention that "the Peace tradition" became firmly embedded in cartulary practice in Charroux fails to convince that the legacy of the canons is as apparent elsewhere in Aquitaine or indeed in France more generally. A mere handful of charters does not constitute sufficiently weighty evidence to support his claims; a broader study would have been in order.

Trish Olson's essay on sanctuary-seekers also tries to offer a new perspective on well trodden historical territory, in this case the "conventional wisdom" of scholars, which holds that the privilege of sanctuary was a hindrance to the condign punishment of evildoers. In opposition to this view, she suggests that sanctuary be interpreted as medieval people themselves understood it, that is, as a ritual of penitential suffering, in which the offender offered satisfaction to God (annoyingly referred to throughout the essay as "the Divine"). In undergoing "a terrible anguish", the sanctuary-seeker made restitution for his crime, much as did persons who were put to trial by what she calls the "regular procedure" of secular law. Olson's interpretation of the privilege and its function within the legal system of Anglo- Saxon England in particular has the potential to make historians rethink their views. Yet she undermines the strength of her arguments with a poor understanding of the ways in which recent scholarship has recast the meaning of the feud and reinterpreted dispute settlement more generally within medieval society.

The next three essays offer a welcome contrast to those of Gergen and Olson. All approach the study of the law from gendered perspectives. Catherine Rider seeks to understand how the church's leading canonists, preoccupied in the twelfth and thirteenth centuries with creating a comprehensive law of marriage, dealt with the problem of impotence caused by magic. "They did not," she aptly reminds the reader, "develop the law in a vacuum" (54). Instead, they wrote in response to a series of real and pressing concerns, not least of which was a growing awareness of the widespread use of magical cures. Rider shows how, soon after 1200, the canonists' discussions of magic impotence assumed a striking and novel urgency. This was in turn a consequence of the immense success of the pastoral movement, the twin aims of which were the reform of lay morals and the education of everyday people in their religion. Rider musters here an altogether compelling argument that the canonists were in close touch with the everyday practice of religion.

Sara Butler also examines the church's influence on marriage, but her perspective is that of separated and abandoned wives in medieval England and their quest for maintenance and support from abusive of neglectful husbands. She reminds the reader of the severity with which the common law treated wives whose marriages broke down, but she finds compelling evidence, both in the records of the Chancery and those of the church, of a more sympathetic attitude towards these women. A creative reading of the evidence allows Butler to claim that medieval society expected a husband "to act like a man and support his wife" (72) and that, by the fifteenth century, "extra-legal separation agreements may have been a familiar feature of late medieval life" (74).

Musson's study of rape begins with a rather ill-tempered review of the ways in which some legal and literary scholars have made injudicious use of surviving common-law records. Advocating a better-informed appreciation of the distinct nature of King's Bench, assize and gaol delivery materials, he proceeds to examine why some accusations of rape found their way into royal courts, while others did not. His conclusion is that medieval plaintiffs, jurors and justices alike exercised great skill in using and manipulating courts and methods of prosecution in order to achieve their respective ends, and that in so doing they punished rapists more effectively than scholars have hitherto allowed. This is a subtle and intriguing essay, one that, shorn of its opening diatribe, deserves careful consideration.

The remaining essays in the volume all touch directly on the question of jurisdictional boundaries. Mia Korpiola examines the fraught relationship between secular and ecclesiastical courts in Sweden with particular reference to heinous sexual crime. As was the case in other European kingdoms, Sweden punished sexual offenders with increasing severity between the twelfth and fifteenth centuries, but here, unusually, the secular authority gradually appropriated from the church responsibility for punishing the most serious of these problems, defined in a statute of 1439 as including bestiality, bigamy, adultery and some kinds of incest. It did so in part in order to benefit from lucrative fines and forfeitures, but primarily, Korpiola maintains, out of a sense that crimes which threatened the well-being of the Christian community were the exclusive purview of the secular arm. This "division of labour" did not occur without conflict, but already by the early years of the fifteenth century it had become apparent to the Swedish bishops that they had lost what had once been a monopoly over sexual misconduct.

Dirk Heirbaut's contribution to the volume examines jurisdictional conflict in twelfth- and thirteenth-century Europe. He treats the county of Flanders as an example study of what he calls the growing "territorialism" of the law in this period. This trend saw not merely the triumph of regional practices over national norms, but also the use of legal custom as instruments of power in the hands of provincial lords anxious to express their independence from princely authority. Heirbaut makes liberal use of terms and concepts--notably "feudal" law--that most historians now reject as conceptually unsound, but the value of his essay lies in his conclusions about the tension between center and locality, a theme that is also argued in Ormrod's piece.

Essays by Louis Knafla, Daniel Klerman and Jonathan Rose move the focus from the medieval period to early modern England. Knafla presents in abbreviated form some of the first fruits of a much broader study that aims to create a detailed "morphology of litigation" in sixteenth- and seventeenth-century England. In this piece he concentrates on a wide variety of court records from Kent for the years 1598 to 1603. A masterful analysis of these materials, using the methodology of historical demography, allows him to offer tentative conclusions about the ways in which English people, rich and poor, great and small, urban and rural, used the courts, and illustrates the exciting promise of the larger project on which he is engaged. Daniel Klerman's essay takes a long view at the structure of English justice from the twelfth through the nineteenth centuries, and posits that, throughout its history, the common-law process was characterized by a "pro-plaintiff bias". Evidence for the claim that defendants were not as well served as their pursuers is particularly apparent in three areas of the law, each relating to contracts. Klerman's conclusion that jurisdictional competition among the royal courts in England lay behind this pro-plaintiff bias is at once challenging and aggressive, and will be sure to provoke a reaction on the part of some readers. Jonathan Rose concludes the collection with a thoughtful retrospective on the ways in which English legal history as a discipline has evolved in recent decades. He writes with a keen awareness of the "culture wars" that have troubled American academics in particular, and of the "battle lines" that have divided lawyers and historians since the time of Maitland. Yet, Rose is enthusiastic in his praise of the interdisciplinarity that scholars on both sides of the Atlantic have demonstrated in their work, and optimistic about the intellectual paths down which this approach will lead scholars in future.

Anthony Musson's skills as an editor are not without their flaws. Despite a close reading of his lucid introductory comments, this reader could make no sense whatsoever of the order in which the essays are presented. Although this is roughly chronological, it is by no means clear why some essays that treat similar themes, for example those by Rider, Butler and Musson himself, are grouped together, while others, notably those by Heirbaut and Klerman, are not. A geographical approach, separating the English from the European essays, might have made more sense. Organizational weaknesses apart, this is a collection that brings together several very important essays, and one that integrates smoothly the work of seasoned writers with young scholars.