17.11.05, Brasington, Order in the Court

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Stefan Jurasinski

The Medieval Review 17.11.05

Brasington, Bruce C. Order in the Court: Medieval Procedural Treatises in Translation. Medieval Law and Its Practice, 21 . Leiden: Brill, 2016. pp. 358. ISBN: 9789004214347 (hardback).

Reviewed by:
Stefan Jurasinski
State University of New York, Brockport

The title of this book might lead readers to expect something more modest. While the translations make it of obvious worth to anyone interested in the legal organization of premodern Western Europe, Order in the Court is really a scholarly monograph in its own right. In it, Brasington describes the conditions that gradually made law more a matter of learning than of custom. Throughout this process, Roman law exerted a gravitational pull on litigants and experts, eventually overwhelming the independent legal traditions that had built up in its absence.

The general outlines of what is sometimes called the "recovery" or "reception" of Roman law in the eleventh and twelfth centuries are familiar enough. For much of the earlier Middle Ages, knowledge of Roman law was sparse even among the most learned, obtained through fragments or, for the lucky, compilations such as Alaric's Breviary. But with the rediscovery in the eleventh century of the Digest commissioned by Justinian I, a process was set in motion that would, in time, see the formation of the University of Bologna as a school for the formal study of Roman law. The learning cultivated there would spread throughout Europe and make Roman categories once again the basis of civil law. Brasington's approach to narrating these events, which places both familiar and neglected materials at the center of readers' attention, allows the recovery of Roman law to become something more than the desiccated abstraction it is often reduced to. We are allowed to see the range of reasons why ecclesiastical and secular law in the West took such a direction and the varied motives that induced disputants to invoke the language of an otherwise somewhat alien tradition.

Earlier chapters take up more familiar signposts along the road to Bologna. Though the book ends with the latter part of the twelfth century, Brasington begins his study in late antiquity. There are, as he points out, good reasons for doing so. While it is customary to observe that canon law did not emerge in anything like its modern form until the latter part of the Middle Ages, the writings of the New Testament offer many instances both of Christians in conflict with one another and of recommendations for the just and amicable resolution of their disputes: "Litigants and lawyers, courts and judges were present from the beginning of the Church" (xi-xii). That exercise of the judicial office fell to bishops from the reign of Constantine onward made some sort of legal training an essential part of clerics' preparation. It also put bishops in the middle of wholly secular affairs they might rather have avoided while bequeathing to later centuries uncertain and often controverted boundaries between ecclesiastical and secular jurisdiction. Even at this early stage of development, "[w]e find instances of secular government pushing back against their clergy and their bishop" over matters such as the criminal responsibility of clergy (13).

Through this period, knowledge of Roman law (however faint) survived in materials such as Isidore of Seville's Etymologies and other imperfect witnesses (12). Though the Carolingian Renaissance enriched considerably the learning and sophistication of the episcopal court, no full recovery of Roman law took place, with "the language of legal procedure remain[ing] theological" and upholding a fundamentally "sacramental, penitential conception of the law" (21). Law remained as much a matter of "orality and adherence to ritual and custom" as of writing, and the bishop's role seems to have remained confined to "arbitration and compromise" between disputing parties (25).

The importance of writing ensured, however, that Roman law would eventually assume its place within the ambit of ecclesiastical learning. Internal conflicts seem to have prompted this development as much as the secular affairs into which bishops were inevitably drawn. Chapter Two initiates the book's shift toward examination of texts quoted in full. It commences with discussion of the brief "Marturi Case," an account of a dispute in 1076 between "two Tuscan monasteries...concerning a grant of land" that involved consultation of Justinian's Digest, seemingly for the first time. (According to Brasington, the "Marturi Case" was last edited by Julius Ficker in 1874.) Though the knowledge of the Digest exhibited by the text remains a matter of dispute, the "Marturi Case" is generally seen as initiating the full rediscovery of Roman law. Brasington moves thence to a decretal by Pope Honorius II concerning clerical participation in the oath. The remainder of the chapter is taken up with an account of a dispute between Hariulf, Abbot of Oudenburg in Flanders and the abbot of Saint M├ędard in Soissons, which brought the former all the way to the papal court.

Brasington's observations in this and subsequent chapters are effective in showing the increments by which the language and intellectual superstructure of Roman law insinuated themselves into the processes of canonical and, ultimately, civil litigation. While the Marturi Case may give the appearance (as Kenneth Pennington has put it) of a "big bang" heralding the ultimate transformation of European law along Roman lines, Order in the Court demonstrates that this event was preceded by a much longer and slower absorption of Roman law--something often overlooked in commentary that leans too heavily on the deceptive neatness of periodization.

Subsequent chapters are devoted to the translated procedural treatises, invariably given with detailed introductions and commentary and close attention to the Latin. The materials presented here in English, presumably for the first time, offer sobering testimony to the neglect suffered even by important witnesses to the recovery of Roman law. The Anglo-Norman Ordo Iudiciarius (chapter 3) saw its standard edition published in 1838; William of Longchamp's Practica Legum et Decretorum (chapter 4), 1883; the Ordo Bambergensis (chapter 5), 1882. None has attracted much commentary in the years since, something that is likely to change now that they are available in translation. As much for its careful discussion of these materials (delivered with a command of a staggering range of scholarly publications) as for the texts themselves, I am grateful for the work that must have gone into the preparation of this important volume, which is sure to benefit both the teaching and the study of legal history. I expect my copy will see much use in the years to come.

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