This is all a first book ought to be. It engages in a running scholarly debate, contributes material from a time and area previously under-represented there, and subjects the results to precise scrutiny and imaginative analysis. Brown's subject is Bavaria in the period just before the Carolingian Conquest and under Carolingian rule, running from the later eighth century into the later ninth. There has been very little previous work on this area in English. It is bad luck then that his book appears so shortly after the appearance of Kathy Pearson, Conflicting Loyalties in Early Medieval Bavaria: A View of Socio-Political Intervention (Brookfield: Ashgate, 1999). It matters little, however. Brown's interest is not standard political history, despite his initial claim that his subject was "how political power functions on the ground in a society that lacks the coercive resources available to the modern state". His goal is to study the disputes documented by the charters in the series of Bavarian monastic charter collections and unveil their function within his society. He is happy in his choice of sources and the decent proportion of obvious disputes they offer for study. His period too is shrewdly chosen, since it enables him to monitor the claims to authority and influence of not just any central government but that Carolingian polity which in important senses set the standards for all medieval governance. The result is a book whose findings should receive the close attention of all serious students of both the Carolingian empire itself and the "arbitration-law" posited as the best its eleventh-century successors could offer.
The Carolingian conquest of 787 is the central event of the book. Brown sets the scene with a sketch (all that is possible from the five conflict charters of the time) of the Agilolfing period when duke Tassilo was in all but name a king on the spot. Violence was one of a range of legitimate responses to "insult or injury" that included more peaceful resort to bishop, duke or kin councils. Though some of this doubtless took the shape of formal feud, much conflict was within families, a feature that recurs throughout the book and may contribute even more to its patterns than Brown sees. Men were already giving property to the Church in order to nail down, in writing, the formal title they desired to secure their dispositions against future challenge. These grants were expected to create a "mutually beneficial relationship" between the family chiefs and the bishop who received formal title. They did not remove actual control of the land from the donors, who used such grants as a means of making dispositions that would last beyond their own lifetime. Our few charters show the duke mediating with authority derived as much from the network of his own kin and dependants as from any power of his office.
Dead saints joined the disputes as principal parties, if we can believe their vitae, in ways not always found among contemporary bishops elsewhere. They sought first the outright surrender of their opponents. But once this was achieved, St. Corbinian for one was prepared to be merciful and restore his grace on compromise terms that reconciled the disputants; he might even pay compensation for those who had harmed him. This "act of mercy script", as Brown terms it, is a major theme of the book and will call for further discussion below. At this stage, one should notice that the saint sought no outside intervention or aid, certainly none from courts or secular officeholders. It was enough to confront his adversaries directly and bring them to heel, with God, as it were, at his side. Afterwards settlements were sealed over the common meals of food and the sacrament.
"The Carolingian conquest added a new set of players to the game of dispute." It brought to Bavaria all the familiar Carolingian institutions of central authority, counts, courts, missi, and some formal legislation. It also strengthened bishops' rights with the justifications and sanctions of canon law. One swift result, a burst of new and visible property disputes, calls for explanation. Brown plausibly suggests that bishops saw their opportunity to make good on old rights and claims in the new expectation that they could now exercise real control over the property. Charter draftsmen therefore found it in their interest for a while to record even brokered deals as if they resulted from clear court verdicts validated as acts of power from above. Prudent men concluded that they needed confirmations from Charlemagne, who might otherwise not be prepared to warrant their tenure. And now that the conquest had "moved a preexisting world of conflict into the light of church charters", there is much evidence of families divided amongst themselves, as some individual sought to pursue his personal interest in public courts. This was also the moment, according to Brown, when the formal rights of the Church first became "part of the tactical repertoire of conflict" in Bavaria. The game had changed because missi tried to uphold the strict terms of the charters adduced before them.
The apogee of this Carolingian justice can perhaps be situated in the string of synods presided over by archbishop Arn of Salzburg between 794 and 810. Arn was himself the first visible non-royal "authority figure" able to exercise power in dispute management by dint again of personal connection with other power figures. He utilized his ability to threaten court proceedings to get settlements that suited his purposes. The cases in which he was involved are notable for their documentation in proper "placitum" form, and are recorded as having followed the full procedural norms of the Carolingian lawsuit including "proof" by witnesses and document where appropriate. This formal pattern was indeed for a time seen only in Arn's immediate vicinity, a sign perhaps that he could compel charter draftsmen to follow his protocol. Around him one can see a serious effort made to get disputes brought into open court to be determined there according to the laws, as directed by a famous capitulary of 812.
At this stage, for a short while in the early ninth century, the Bavaria of the charters really does resemble the Carolingian paradigm, with courts apparently enforcing "impersonal norms", and with documents, laws, and royal officers, armed, in a word, with a whole new "repertoire of conflict". How much of this is an illusion of the sources we shall never know for sure. But Brown is clear that a "subculture of compromise" was omnipresent beneath the documentary surface. He rightly stresses the importance of representation in general, but especially to peacemaking. The careful work of the charter draftsmen can then be reverse-engineered to disgorge "a colorful culture" of dispute in which the written record itself served as an integral part of the litigation process, a means to publicize dispositions and register hopes for the future.
The gap between these two cultures, of formal law and informal compromise, progressively narrowed during the first third of the ninth century. Bavaria was far from the Carolingian heartland. The model of central government and law faded fast there. Even under Louis the Pious, the infusion of "placitum" charters seems to have come more from the bishops than actual royal officials. For a time, indeed, especially after the great 814 imperial investigation into injustices, charter draftsmen can be seen struggling to reformulate their scripts in "placitum" form. Brown reads this as an indication that men now followed in court the full ritual of "placitum" procedure in order to secure the fuller security they believed could come from it alone. Though he may be right, he concedes that charters were by the 830s showing rather little influence from court process, which looks ever more purely bilateral and often again culminated in the formulaic "act of mercy". Overall, "this world of formal dispute resolution was beginning to be connected to the 'subculture' of extrajudicial settlement." By 854, we see a mixed system, still distinctively Carolingian in the written record, but now with the informal Bavarian ground bass increasingly predominant over its Carolingian top line. Older ways like the submission of intra-kin disputes to a bishop begin to resurface in the documents. More generally, the charters become less useful to the historian out to recreate the occasions they recorded. They are so keen to manage the representation of the events and the result that they tell little of the underlying dynamics. Spin has ousted the vestiges of reportage. Then after 850 the formal detailed charters themselves disappear in favor of "a sea of short exchange notices".
Brown had the neat notion of framing his survey with an analysis of the poem "Carmen de Timone comite" (1 sq., 206 sq.), which shows how imperial supporters wanted Carolingian justice to work, impartially administered far from Aachen by counts ready to punish the wicked and protect the rest in the emperor's name. This elegantly highlights the gaps in the documented story. The charters tell us little or nothing of Downward Justice and social control, almost nothing of the non-noble majority of the population, only glimpses of routine relations among the nobility itself. In the perspective of the charters, the king and the much lauded institutions of the capitularies appear in Bavaria as "simply one resource among many", save on those rare occasions when a king was actually on the spot.
This is probably as convincing an account of the management of property conflict in Bavaria at this time as one can wrest by direct action from the available sources, and all political historians must take note of its arguments. As Brown says at the outset, "how people resolve their inevitable conflicts has a great deal to say about how much a central authority and its institutions matter." His book targets the great problem of early medieval political history, how to govern at a distance beyond which a king could directly reach regularly, say by including it within his annual itinerary. The challenge for the Carolingians with their vast empire was dispiritingly massive. They tackled this through a wide range of governmental and administrative devices, often very cleverly thought out -- sophisticated is the term of choice -- and starting out from the detailed prescriptions of capitularies and other texts instructing royal missi and other officials precisely how to carry out their duties. It is no wonder that we scholars, trained some of us exclusively in the critical use of written sources, have been mightily impressed.[1] In this perspective, conflict resolution, adjudication, Law, all indeed social control, can be seen as a test of the effectiveness of a distant government. The way to attempt this is by combining contemporary (or near contemporary) description of how it all worked in practice, who actually did what, with a great deal of critical imagination.
Reading Brown one is always aware of his skeptical sensibility striving to see how much he can honestly claim for Carolingian legal administration in Bavaria. If he appears in the end somewhat to oversell his results, which is my view, this is both understandable and in the end no great defect. These are and always must be judgment calls. Doubtless the temporary success of Carolingian government and law in places like Bavaria merits its traditional textbook applause for the creativity it brought to the challenge. Its solutions did after all win very widespread acceptance, to form a core of almost all state formation in the West, Britain not excluded. Charlemagne remains the father of our Europe that we know today. Yet the persistence of that "subculture of compromise" through many decades of Carolingian rule until the new system and its documenting charters begin to fade from our sight in the later ninth century tells its own story. And here Bavaria, being about as far from Aachen as anywhere north of the Alps can be, constitutes a favored vantage point from which to survey the whole. In Bavaria as elsewhere of course the charters confine the historian's vision in so many ways. The worst of these is probably not the fact that in dealing so largely with Church property, they make the viewpoint of churchmen so much more visible than that of their lay neighbors. Brown in fact brings out very well the way that clerical draftsmen strove quite consciously to take command of their culture's means of representation of symbolic ends, even to make life and actual trials resemble more closely the "placita "on which they recorded proceedings. He is always wary of falling beneath their spell. But there is a yet more powerful distortion at work in the fact that charters talk first of lands (and other property), and only later and secondarily of the men who competed for them. "The power of a person in the early middle ages", says Brown (19), "depended on how much property he could control." This is at least debatable. Early medieval historians have often remarked that real power in their period might best be counted by the numbers of men who would answer a summons, ready to turn out for battle or to mob a courtroom. It was arguably control over men that was the key to power, rather than over land often in great, sometimes in unlimited supply, needing only cultivators to release its food and intrinsic wealth. It is hard to be sure that these considerations do not apply in ninth-century Bavaria. There is patently no easy way to discover how much land was available for purchase or conquest. We have no realtor's archive or land register from which to assess what proportion of the cultivable land was occupied, how potentially valuable the remaining waste of forest and mountains might be, how fully exploited the land was in terms of the contemporary technology. Can one plausibly say, as scholars sometimes do of the Viking invasions, say, or the Crusades, that young men were compelled to sign up because land on which to settle at home was in such short supply? There are no hints of a comparable situation in this book. Brown sees the competition for land within noble families of the mid-ninth century as a function of intra-kin conflict, presumably at a moment special for reasons he does not give (158, 162-3). But when would young men not vie with each other for a greater or earlier share of the family land? Greed and ambition are constants among young nobles. The charters depict intra-kin strife as a staple of Bavarian culture (86 sq., 178, 205). This may possibly be a clue. Everyone knows of the (theoretical) constraints on intra-kin violence; parricide and fratricide were numbered amongst the most horrifying of all sins. That being so, when kinsmen could come to blows it is certainly conceivable that there was a lot more recourse to naked violence in Bavaria by feud etc. than even Brown allows. (He refers to a feud mentality on pp. 35-9, 64-6, 99, 191, and 200 sq.) The charters tell us about a small proportion of the spoils that went to the victors of conflict, only insofar as they affected the recording churchmen and their houses. They may in aggregate hugely underestimate the overall propensity to violent solutions. They would then correspondingly exaggerate the significance of "real" law and rational judgment. If such an hypothesis won favor, its ramifications would run far beyond Carolingian Bavaria. The Davies and Fouracre collection some fifteen years ago made a very fruitful and persuasive case for relatively rational approaches to dispute settlement all over early medieval Europe.[2] Brown writes very much under the benign influence of that volume's contributors. He perhaps shared with them a certain tendency to be a little too easily impressed by the surface evidence of legality and rational law of the kind that they had assembled. One way for the conventional historian to pursue these questions is to ask what we should make of the definable legal concepts thrown up by our sources. Understandably, most of us generally frame our analyses in terms of legal notions imported from the present day, sometimes with less than complete critical examination for their appropriateness first.
The truth is that the recent flurry of marvelous studies of dispute management and legal development between the ninth and twelfth centuries has included rather little in the way of legal semantics and lexicography.[3] There is a pressing need for studies of the changes in semantic field covered by basic terms such as Latin "ius", along with its vernacular derivatives such as "drictum", dreit" etc., the diverse and putatively technical terms denoting such matters as possession and dispossession, offenses and their categorization, and the different stages of secular litigation. We should not assume the precision and technicality of this legal vocabulary; most of its words start their development from a non-technical vernacular meaning. The timing of the emergence of a specialized usage has much to tell us about the general as well as the legal culture of the medieval West. It is exceedingly difficult to pin down. The necessary study may, indeed, be impossible outside a full reappraisal of western law and dispute management over this extended period, no mean task. Until this great work is available, one cannot fairly complain when the author of a book like Brown's does not dispose of its results. The rest of us may nevertheless take the hint to clarify our own analytical vocabularies. Many beloved pieces of familiar legalese carry subtle traps for even the most intelligent of us lay readers. The notion of proof is one case to point. The nub of modern dictionary definitions of proof lies in the procedures employed to make a decisive test of the factual contentions made by one party or, sometimes, a comparison of two sets of evidence.[4] The most definitive test that the Carolingian age could conceive was, naturally, to put the issue to the judgment of God. Men believed they could do this through oaths of various kinds and through various kinds of afforcing procedures we call ordeals. This quintessential judgment-proof appears to have been close to ubiquitous at the end of eleventh-century lawsuits, that is, to close that minority of suits that had not been ended at an earlier stage by the collapse or confession of one party, or some kind of compromise settlement. (We now understand that if ordeals were to work at all effectively, they needed to be rare.) I am fairly confident that I understand the eleventh-century post-Carolingian situation. The picture for the Carolingian ninth century is to me more complex and problematic. As later, parties frequently submitted to their courts various kinds of visible support for their case. Prominent among these in the written record are witness statements, usually under oath and sometimes adversarial, i.e. pitting testimony for the two sides directly against each other, and also written documents. Should we be tempted to refer to these as evidence, we would be using a word that had yet to acquire its modern sense, even in Latin. Most scholars, however, call these "proofs", and tend to praise their use as "rational". But it is evident from any close scrutiny of the texts that neither procedure worked in the way expected by modern law or even in the developed legal systems of the thirteenth and later centuries. The production of witness and documentary "proof" is probably best seen as part of the ongoing series of discussions and negotiations waged in court and also, perfectly legitimately, outside it, through which president and suitors maneuvered toward an issue for submission to God's judgment followed by a definitive court decision. Within this kind of procedure, production of a relevant charter, for example, did not of itself constitute proof, it merely brought its possessor, in the words of near contemporaries, "closer to the oath". This means that it entitled one to a favorable mesne (intermediate or penultimate) judgment on the crucial questions: who was to make "proof", by what means (e.g. by oath or by ordeal), in what specific terms, and with what (if any) support or reinforcement. All the details may or may not be recorded in the charter, if there is one. But, concession being a better guarantee of future peaceful relations than a submission coerced by judgment, most disputes probably never reached this final stage.
These eleventh-century verities (as I believe them to be) may not hold for a ninth-century law backed by the full pretensions of Carolingian royal authority and the actual power of Charlemagne and some of his successors in their heyday. My ignorance here seeks certification from the experts. Until that is forthcoming, though, we should all surely be slow to assume that ninth-century "proofs" worked in anything very like the supposedly "rational" similar procedures of a later age. Brown does seem to make some assumption of this kind at times (109-10) and is slow to scent recourse to the swearing of oaths on occasions when they seem likely (eg 118, n. 75). He might now consider reassessing some of his materials in the light of these points. Bavaria could provide an excellent test.
Terms that ring satisfyingly legal to the lay ear can sometimes mislead. It would be easy to list candidates. Let me simply mention two or three that would obviously benefit from closer attention than most historians have given them. First should come "ownership" (cf. Brown, 66, 80). There exist a range of views on this notion in the early middle ages. Robert Palmer once challenged its very existence in any legal sense for England, wrongly in my view. Gurevic, Susan Reynolds and others have remarked upon the very cultural and slippery nature of contemporary notions. In a perfect world, studies like Brown's would show some awareness of these debates and declare a position.
Then there is the very artificial construct of the "heir" (e.g. 97). The minimum here is to explain whether your society recognizes such figures during the lifetime of the putative ancestor. Some do, some don't, and many waver according to time, viewpoint, and circumstance. The contrasting implications of, on the one hand, the maxim that "God not man makes an heir" and, on the other, the biblical sale by Esau of his "primogenita" to Jacob perhaps indicate extreme positions here. A final example of a different kind is "precedent" (e.g. 131), a doctrine of which seems essential to any developed legal system in the modern world. Justice surely requires some sense that similar cases should in principle be treated in the same way. In the absence of some such doctrine, one may reasonably doubt the value of having legal norms and view the exercise of lawmaking in a very cynical light. That said, however, it is obvious that by no means all systems bind their courts to follow previous decisions in any precise manner resembling, for instance, that of the modern common law, and fairly certain that Carolingian courts were not among those that did. How influential could old decisions possibly be in a largely oral culture like ninth-century Bavaria, when written records were so few and even those were inaccessible to most judges let alone political actors and their advisers? No wonder that capitularies thunder against those who ignore their enactments in "arbitrary" judgments.
But if Bavarian courts did not follow precedent, how did they decide their cases? Brown tackles this question with a relatively simple set of assumptions. His actors are all political animals, in full instrumental cry after their own interests or those of the religious bodies to which they belonged. Institutions rarely restrain them, though they do require changes of form and direction. Authority (as opposed to power) is similarly rather weak. "Authority figures" may try to parlay their titles and positions into extra influence over more men, but they derive their power from the same kinds of political network as anybody else, just more so. Even Arn of Salzburg, Brown's prime exemplar of Carolingian prelate (116, 123 and chap. 3 passim), could have achieved most of what he did without a Carolingian conquest. The underlying model of conflict resolution and the routine relations behind is essentially one of interest and power.
Swimming in this highly political sea, however, is a whole flotilla of "norms".[5] Brown goes to much trouble to establish where he can, what these are, how they originate, and what they might do. He seeks and finds norms originating in or changed by recent lawmaking. He patently thinks them important. They presumably lend seriousness to "the struggle for control over the meaning and representation of events" (184, and cf. 124-5). This is waged most notably by the charter draftsmen, who represent in their own persons the strongest case that norms really determine social behavior, and set the parameters within which to fight and decide disputes. As literate churchmen with a duty to preserve their saint's rights and property, they are the most plausible candidates to know written laws. Yet even they show precious little sign that they have internalized the norms that they and others in the sources periodically voice. (I refer here to secular norms; I am casting no doubt on their piety.) Brown's best efforts turn up only a very little evidence that his "subculture of compromise" functioned in that "shadow of the law" which some modern analysts posit for our own worlds of business and internal politics. The model resembles a Deist universe. Law and norms set the rules of a game that, once begun, they hardly seem to influence.
There is, of course, the matter of ritual, including colorful actions as with Kyppo's pig and the custom of ear-pulling during testimony (110, 135-7). Brown treats the subject with caution in the wake of recent skepticism on the very concept of ritual.[6] His material seems to me to justify at least a clerical respect for forms. He believes he can show churchmen, for example, pressing men to follow the full "placitum" procedure, in the belief that this will offer them stronger guarantees of rights and title than less formal procedures could. A little reflection on the "act of mercy script", Brown's procedural star turn, can help us understand what hidden depths routinized forms might come to possess. He is well aware that in its essentials it is not unique to Bavaria, and cites with approval Gerd Althoff's study of the Ottonian deditio.[7] English historians will instantly recognize that the submission pattern supplies the pre-history they are missing for the common law's amercement, a fictional one perhaps but indisputably part of the right story. One view of this script might emphasize that a bishop or king faced by his lesser adversary's unconditional surrender must now give him much of what he was after in the first place. (This resembles other customary constraints on the freedom of action of superiors, such as those governing escheats or indicated by the German Leihezwang.) Another could note its creation of a comforting expectation that permitted potential rebels and competitors to test the mettle of an authority figure at relatively little personal risk. The mailed fists are so softened by the depth of velvet glove that nobody stands to get badly hurt. More importantly, as some of us outmoded functionalists might say, the script reduces the odds that internal strife will weaken the polity as a whole.
All this is certainly politics, but politics in a landscape filled by restraining norms. It is undoubtedly possible to analyze the dynamics merely in terms of selfish, instrumental actors, individual and collective. But, if so, these are actors compelled to make their "rational choices" from an exceptionally complex set of algorithmic rules and take account of a very wide range of possible feedback effects. At this stage of the game, less cynical models begin to look attractive again. I should myself wish to reformulate some of the argument of the book in language that acknowledges more openly not just the variety of applicable norms, good and evil, but also the degree of belief in them held by participants in the process.
None of this need be considered a criticism of the book under review. It would be unreasonable to hold against Brown imperfections for matters in which our most expert guides have shown such limited interest. It is much more a measure of Brown's overall achievement that the intelligence of his analytical taxonomy of data prompts and equips readers to raise basic questions of the kind I have been canvassing here. To find fault I would be reduced to pleading for relative trivia such as a little more citation of the Latin originals of texts. Within its stated terms of reference, Unjust Seizure is an exemplary first book of the kind that promises its author a scholarly career full of importance and interest. In it Warren Brown has demonstrated that he has the equipment and serious intent to become a significant player in the field, even -- perish the thought -- an authority figure.
[1] In my own mind, I date from the advent of H. Fichtenau, The Carolingian Empire in English translation (1957) the realization by anglophone scholars that what was prescribed may not have been enforced or carried out.
[2] Wendy Davies and Paul Fouracre, edd., The Settlement of Disputes in Early Medieval Europe (Cambridge, 1986).
[3] A partial and not altogether happy exception is the analysis of norms on which I comment in a forthcoming paper "Norms and Legal Argument Before c. 1150", to appear in a volume ed. Andrew Lewis.
[4] David M. Walker, The Oxford Companion to Law (Oxford, 1980), 1007, "that which establishes the existence or non-existence of a fact unknown or disputed...", is reasonably typical.
[5] Though these are never called "rules", Brown does talk in a recurrent image of "rules of the game", e.g. 162-3, 205. The reasons for the currently fashionable scholarly preference for "norm" over "rule" are unclear to me.
[6] Philippe Buc, The Dangers of Ritual (Princeton, 2001), came out too late for Brown to use, though he was certainly aware of the general lines of the critique from previous studies.
[7] "Das Privileg der 'Deditio'", in O.G. Oexle and W. Paravicini, edd., Nobilitas. Veroeffentlichungen der Max-Planck-Institut fuer Geschichte, 133. (Gottingen, 1997), 27-52, reprinted in his own aptly named collection, Spielregeln der Politik im Mittelalter: Kommunikation in Frieden und Fehde (Darmstadt, 1997).