14.09.16, Salrach, Justícia i poder a Catalunya

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Jonathan Jarrett

The Medieval Review 14.09.16

Salrach, Josep M.. Justícia i poder a Catalunya abans de l'any mil. Referències, 55. Vic: Eumo, 2013. Pp. 244. ISBN: 9788497664752 (paperback).

Reviewed by:
Jonathan Jarrett
University of Birmingham

For historians of medieval Catalonia, a new book by Josep María Salrach i Marés is an occasion for celebration: Salrach is perhaps the biggest name in Catalonia's medieval historiography and his work bears on themes that concern most social historians working on the Middle Ages. His works include trenchant volumes on famine and the peasantry (La fam al món: passat i present of 2009 andLa formación del campesinado en el occidente antiguo y medieval of 1997) which deserve to be far better known, even if his potential readers need to tackle an œuvre almost entirely in Catalan and Castilian. This volume, which is entertaining, illuminating and thought-provoking in equal measure, adopts a more local focus, however, on the interaction of the ideals and practice of justice with the demands of power in the area that is now Catalonia in the two centuries before the year 1000, and Salrach makes no effort to engage it in wider currents of European medieval historiography.

In fact, Salrach engages with almost no historiography at all, a deliberate choice to avoid debates with which the author expresses his fatigue (16). Instead, almost all his references are to printings of primary material, with which this period and area is remarkably blessed and Salrach still more so, since he had access when writing to the unpublished volumes of the Catalunya Carolíngia charter edition for the important county of Barcelona. While this disengagement with the historiography presents problems, discussed below, the chosen alternative is still an engaging way to proceed, because Salrach sees all his documents as stories worth exploring. Rather than systematise unduly (or sometimes at all) he leads the reader through case after fascinating case of pre-Catalan judicial practice and by so doing expertly reconstructs the structures, tensions and changes of the society whose documents he knows so well, providing what he calls an "atypical and internal history of the Catalans" (16), or at least, of the predecessors of those who now so identify. The human interest of the cases is never far from the surface and peculiarities are teased out to illuminating effect.

The book works first through the systems and procedures of the courts that will be discussed. Here we first meet one of the book's recurrent themes, the continuing use in the area (as also further west) of the law code of the Visigothic kings of Spain, the Forum Iudicum (Conference of Judges). Two tenth-century copies of this work's local version, the Liber Iudicum Popularis, survive from this area, one copied by a man who decided many of the cases dealt with in Salrach's book and helpfully added a preface of his own on the duties of a judge. Salrach defends the label "public" for this system, and whatever problems this term may have, in the face of such evidence anachronism cannot be one of them.

The second chapter looks at court disputes between the powerful, including appeals to the Carolingian kings who sit at the edge of early medieval Catalan history; here we see not least that the counts in whose hands effective government rested could be defeated in their own courts, although the explanation, in so far as Salrach gives one--which is that by being prepared to lose sometimes they encouraged their subjects to use and uphold the system that legitimised their power (88)--has to wait for the next chapter. There is something here worth addressing that Salrach does not, although as in many places in this book he gives the reader all the materials to think of the point themselves: while it is astonishing to have documents preserved by the losers in a court case at all (for these documents often come from the comital archives, though Salrach does not say so), we do not have them from the Church, where Salrach's example of a lost case preserved is the only one known to the present reviewer, in which the contested land was split between the cathedral of Girona and the defendant (79-80). Special imperatives must have driven the counts' creation of such documents. One might note how often these cases involved the actions of the presiding count's father, and how a small wave of such cases of expropriation or wrongful claim seem to have followed the death of each count of Barcelona as his son profited from the chance to palliate the alienated. It was perhaps harder than Salrach allows obtaining justice against a living count, at least after Guifré the Hairy came to power in 878, but there might still have been more hope of it than against the undying Church.

Such pessimism resounds more in Salrach's next chapter, on disputes between the powerful and the less so. A series of cases demonstrate that when it wished to the Church could pursue cases to the point where the ordinary norms of justice, privileging written evidence that could be checked and considering claims left unpursued for thirty years as lapsed, would be set aside in pursuit of the ecclesiastically preferred outcome, although the case is made further on in the book that some judges would also bend process when strict application of the law would ruin the helpless (154-156). Nonetheless, although the Church held more cards (or rather cartae) in court than anyone else, it is clear that for most of the ninth and tenth centuries persons of middling or even low status did come to court in hope of justice and so presumably enough of them found it to keep that hope alive in society at large, although if the lands in question never came to the Church, or land was not what was at issue, such outcomes might be invisible to us (102-103).

Invisibility is also an issue for the fourth chapter, which is on slavery. This is a subject on which Salrach has done much important work, some of which is reprised here straight from the evidence, but this is the chapter which has least to do with justice. Since, however, slaves did not hold property and are rarely themselves transferred in what we have (perhaps because they were perishable and thus not worth the archiving), trials in which people were reduced to slavery for their crimes are much of the evidence we have that slavery was still an institution in the Catalan counties of this era. Salrach contends, indeed, that no definition of the term serfdom which allows for arbitrary maltreatment of the serf can really be accepted, so that his slavery went on for much longer than many scholars would accept. This has analytical rigour in its favour, since it places a definite line between statuses, but as Salrach himself says it is not clear that there was one in practice. Nonetheless, this chapter is a worthy challenge to historians to re-examine their categories and what those categories might have meant to live in.

The next two chapters focus on court business and the use of documents respectively. In the former of these Salrach starts by outlining the judge as the crucial part of the judicial machinery, but rather than tell us who judges were (though this turns up in the conclusions, p. 241, with a mention of previous discussion presumably cut) he goes through the types of business with which they dealt, in an immensely informative tour of the pre-Catalan judicial machinery. One might wonder why this chapter did not follow the first one on judicial ideology, and its final pages, on the Carolingian kings' interventions in the area via the documents awarded to those who travelled to court to obtain support, do not really connect to the theme. What is here is of great interest, though, as it is mostly the cases where something unusual occurred which Salrach goes through with the reader (such as the single ordeal recorded in the area before 1000, suggested and dramatically, yet not technically, failed by the defendant). As a result we are shown people having to make real and difficult decisions about ideals versus practice, rather than merely the "rules of the game."

The chapter on literacy and documents has rather less to say to anyone familiar with the work of Michel Zimmermann, who escapes the ban on historiography in the form of his monumental Écrire et lire en Catalogne and provides much of Salrach's perspective here. Nonetheless, a particular focus on the reading of documents aloud, including from memory while obtaining replacements, pulls together oral and written in ways that Zimmermann's discussion does not and forces scholars of such matters to accept that here, at least, documents were read and re-read on numerous occasions so that people could remember them, even outside Church contexts. This is one of several points in the book where one wishes that Salrach engaged more deliberately with a wider historiography, as scholars elsewhere have spent years trying to expose such processes; if Salrach is aware of this, though, he gives no sign.

The final substantive chapter deals with the degradation of this judicial system as the year 1000 approached then passed. Here one cannot miss Salrach's credentials as a well-established believer in the so-called "feudal transformation." Readers of his El procés de feudalització of 1987 will find much that is familiar here, refracted through the optic of court cases in which nobles refused to accept verdicts, raised challenges by combat or simply didn't turn up. For Salrach, this all shows the long roots of the noble disenchantment with the alliance of Church and counts which would explode after the death of Count-Marquis Ramon Borrell of Barcelona in 1018.

Salrach's conclusion shows what he thinks the key themes of this book are. They could be summarised as: the question of access to justice, which he believes was not class-blind but still remarkably open; the potential of court cases as a window on social change; the question of freedom versus slavery in law and in practice; and a more technical matter of what was constituted by the renders and duties that magnates claimed under the name of servitium. He attacks this last issue several times in the volume (87-90, 110-112, 126-132, 242-243), proposing that the servitium due from fiscal slaves had become generalised to the population at large as servitium regis, mainly comprising military service or its support (unless, as in some cases here (50-53), they could demonstrate exemption), but that personal submission to a lord also involved renders called censum or tributum as part of servitium. This has important implications for debates on serfdom and fiscality elsewhere in the early medieval world and it is a pity that such thoughts are published only as glosses on case notes rather than as a stand-alone thesis. The book's lack of historiographical context means that the importance of such observations may not be appreciated by a reader who is being told, not without basis, that these conclusions are obvious from reading the documents. Salrach's findings on the oral value of charters, on servitium, or on the preservation of documents relevant to properties by those properties' owners even when the documents predated that ownership, may seem obvious to him, but they have not been so to many scholars elsewhere and they deserve emphasis that this arrangement cannot give.

More obviously, the lack of citation makes it impossible to be aware if Salrach is simply unaware of a work or rather thinks it irrelevant. One very obvious case where one must suspect the former is Jeffrey Bowman's 2004 book Shifting Landmarks, which addresses many of the same issues and even documents as does Salrach, often with different and more critical conclusions. This is especially serious where the Visigothic Law is concerned: Salrach's citations leave us in no doubt that the ancient text was indeed a frequent resort in the tenth century, but Bowman has already shown that this resort was partial and often misleading, despite judges well knowing the original sense of the texts they distorted by excerption or insertion. This makes Salrach's uses of the Liber Iudicum as a normative source for tenth-century practice decidedly problematic, and Bowman's work should have made a difference here.

Another issue is one of regionality. Salrach's discussion of Church defence of rights against more humble laymen (69-83) is entirely conducted from the documents of the Girona cathedral cartulary. On the other hand, his discussion of loans and credit and the judges' role in enforcing fair terms (another of the points where one wishes Salrach would trumpet his innovative view more loudly) is based entirely on documents from Barcelona. The former is not least because the bishops of Girona were in fact keener in such efforts than many another--they got charters of immunity from every Carolingian king up to (and including, pace Salrach) Louis IV, more than anywhere else as far as we can tell--and the latter is because credit arrangements are far harder to find outside the over-driven land market of Barcelona. The contribution to the record of Girona's bishops' diligence is however further distorted by the fact that at Girona we are largely reliant on a selectively-copied cartulary rather than the wealth of original documents we have from other areas, making generalisation here still riskier. Such issues do not make Salrach's points invalid, but they do mean that in these cases they need more careful balancing with other evidence than is provided.

All of these critiques show the power of this book to spark debate and inspire new thinking, however, and should not minimise or even seriously diminish the insight of Salrach's scholarship as here displayed. There are matters here of consequence to scholars interested in slavery, literacy, judicial practice and the construction of power in many parts of the early medieval world, powered by the ability of Catalonia's uniquely dense array of well-published documents of practice to source models of how things may have been done in other areas less well evidenced. The author, perhaps recognising the limits of his likely audience given his language, has not striven to make these connections, but the book nonetheless showcases such possibilities well, as well as being founded clearly throughout on fascinating evidence. While one might hope that any translation would involve some effort to connect to the English-language historiography, this volume is certainly an excellent reason for early medievalists with any Romance language ability to see how far they can get with Catalan; it will amply repay the effort.

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Jonathan Jarrett

University of Birmingham