19.08.13 Byrne, Justice and Mercy

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Esther Cohen

The Medieval Review 19.08.13

Byrne, Philippa. Justice and Mercy: Moral theology and the exercise of law in twelfth-century England. Artes Liberales. Manchester, UK: Manchester University Press, 2018. pp. xviii, 286. ISBN: 978-1-5261-2534-7 (hardback).

Reviewed by:
Esther Cohen
Hebrew University of Jerusalem
msecohen@mscc.huji.ac.il

Justice and Mercy is a remarkable book. It is meticulously researched, densely written, and not easy to read. The main thesis, spelled out already in the introduction and systematically carried through the entire book, is that theological thinking and debates on the nature of justice and of mercy had consistent impact upon the practice of doing justice in the field of common law. The choice of the field of inquiry is apposite: the twelfth century was both a time of intellectual renaissance and of the coalescence of systematic common law in England. While the twelfth-century renaissance was an international phenomenon (at least, a Franco-English one), English law was unique and distinct from the Roman law taught in the continental schools. By asseverating this uniqueness, the author places herself squarely within the tradition of Maitland and his followers, while elegantly avoiding the ongoing argument with theius commune scholars. In general, the book resounds with the historiographic traditions and conflicts among the different schools of legal history and of intellectual history, both in Britain and on the continent. While the author is obviously well aware of them, she manages to avoid the pitfalls of adding to these ongoing conflicts.

Instead, Byrne concentrates on the thinking and writing of twelfth-century intellectuals. True, most of them had trained in Paris both as philosophers and as theologians, but their careers lay in the Angevin kingdom, specifically in England. Those thinkers often wore more than one hat: ordained clergymen, they found themselves involved in the operation of royal justice, from the scaccarium to the eyres. Furthermore, they were largely forming and inventing it while practicing; "twelfth- and thirteenth-century judges thought very hard, very long and very carefully about both the operation of justice as a virtue and the realisation of that virtue of justice in legal practice" (3).

Before examining Byrne's findings and conclusions, one should dwell upon the innovative character of this claim. As Byrne herself notes, "[t]he history of English law has been written as the history of writs, not as a history of ethical dilemmas" (8). The historiography of common law has indeed centered upon the administration of justice, and historians have turned, and still turn, to archives, rolls, and sentences rather than theological treatises. The idea that one ought to turn also to contemporary philosophy in order to understand the practice of law in twelfth-century England is therefore highly innovative. It is not, however, free of problems.

Having established her thesis, Byrne proceeds to examine the background. The survey of the schools of theology on both sides of the channel, and what came out of them on the subject of justice and mercy, is thorough and convincing. Theologians were aware of the inherent contradiction between pure justice and the exercise of mercy despite justice, and they struggled to resolve the inherent tensions between the two virtues.

The problem begins in chapter three, entitled "The problem with mercy: the courts." Here legal historians lift their brows. Are there any legal documents, court records especially, extant from England in the twelfth century? Alas, no. All that we find here is not the courts, but what Canon lawyers thought ought to happen in court. True, the author admits, Canon law encountered difficult problems "when it tried to translate theological ideas into principles of legal guidance" (40). Here theology also encounters political reality in the growing power and authority of the crown, mostly the power to pardon crimes and thus exercise mercy. The main problem, it appears, was that the very judges employed by Henry II were Canon lawyers. In dealing with this problem, the author finally introduces the matter of legal history--not court cases, but law compilations. Again, the discussion is learned, thorough, analytical, and devoid of any indication of factual influence of the prescriptive sources over judicial reality. The dubious conflation of mercy and pardon only obscures the main issues.

Thus, the book continues in the vein of intellectual history. What were the models that twelfth-century thinkers saw when discussing justice and mercy? Here Byrne admits that mercy could only be exercised in criminal cases and that the contemporary plea rolls are inadequate to portray such actions. Instead, she proposes using judicial exempla culled mainly from the historical books of the Bible, with the New Testament providing Christ's mercy. Most of the biblical material, though, is an illustration of the dangers inherent in the wrongful exercise of mercy. The use of models introduces a historiographical sleight-of-hand, in the shape of the long twelfth century. For the purpose of this book, the long twelfth century does not end in 1215, but is extended to 1250, deep into the scholastic world of the thirteenth century. Thus, Thomas of Chobham (ca. 1160 - ca. 1236) and Robert Grosseteste (ca.‚ÄČ1175-1253) are introduced as twelfth-century thinkers. It is a periodization that certainly enriches the discussion of contemporary thinkers, but problematizes the entire argument. Theological discussions of mercy, its advantages and dangers, continue throughout the fifth chapter. Finally, two-thirds through the book, reality intrudes in the shape of three ecclesiastical court cases. But, as it turns out, these are not the cases. What we have is the correspondence between judges unsure of their way, and their episcopal advisers. Here the Becket controversy appears in the letters of Gilbert Foliot, bishop of London. All three correspondences are highly enlightening on such theoretical issues as the possession of jurisdiction, and very thin on the realities of the controversies. Once again, the scholarship and research behind the chapter are most impressive. Not content with printed editions, Byrne has sought out the manuscript and codicological evidence, which indeed bolsters her argument of reality. The penultimate chapter does not reveal any new judicial sources. Instead, it brings in the evidence of contemporary chroniclers, who--contrary to the earlier theologians--largely condemn mercy as a mistaken policy. Again, the author stretches her evidence as far as it will go. Thus, Raoul Ardens, who studied in Paris and served that most un-English of Plantagenets, Richard I, is roped in as an English intellectual. While his ideas are certainly interesting, how valid is the inclusion of someone who very probably knew nothing of English law and its practice? "[W]hile not 'English'per se, Raoul at least had a significant link to England and to the master who influenced so many English theologians" (i.e. Peter the Chanter; 172). This extension is hardly convincing.

The last chapter is faithful to the methodology of the entire book. Probably written as a rejoinder to Paul Hyams' argument about the twelfth-century culture of vengeance, Byrne proposes an alternative culture of mercy. As might be expected, the proof of this "culture" is a work of popular theology, The Four Daughters of God, where misericordiapleads with God to forgive humanity for Christ's death. The tradition is neither English nor of the twelfth century, but it is the main argument of the chapter.

Throughout the book, two characteristics stand out. The first is the excellent scholarship and mastery of nuanced textual analysis, and the second is the constant recourse to circuitous and long-winded narrative. As an example, I take the beginnings of chapter 6. The chapter opens with a clear statement of aim and sources: ecclesiastical correspondences discussing the problematic exercise of mercy. Then, instead of approaching the cases, the author introduces a long disquisition on penitential culture in twelfth-century England, lasting several pages and breaking the thread of the argument. This trend does much to make a highly complex book even more difficult to read.

In sum, if one is to evaluate the book as a whole, it seems as though the author undertook an impossible task. There is no dearth of discourse about justice and mercy in twelfth-century England. As the author notes, this discourse was not limited to the rarified circles of the episcopate and the royal court. It appears in manuals of penitence, in sermons, and in sculpture. As such, this is a fascinating topic that promises a great deal of further research. However, when it comes to the crux, the initial question remains unanswered. Did all this discourse percolate into the actual exercise of justice? Thanks to Byrne, we can assert with some confidence that royal judges were aware of these ideas. In some cases, they were the very source of perceptions of mercy. We do not know whether they applied them in court.

More seriously, Byrne chooses to ignore the multiple system of courts, most of them not royal, that prevailed in England. Baronial and manorial courts probably still accounted for most of the judicial activity in the twelfth century. In fact, as several studies of rural justice have shown, the manorial court system was alive and well in the thirteenth century. How much mercy would have been exercised in these courts? One cannot demand that the author answer this question. It is beyond the purview of this book, which is essentially a book on intellectual history. But at a time when even intellectual historians have claimed the social history of ideas, there is room for examining the impact of ideas upon practice.

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