The Internal Forum and the Literature of Penance and Confession

THE INTERNAL FORUM AND THE LITERATURE OF PENANCE AND CONFESSION By JOSEPH GOERING When Dante ascended to the Sphere of the Sun, he was directed by St. Thomas Aquinas to consider a circle of shining lights. One of the lights, St. Thomas tells him, is Gratian, "who served the one and the other court so well that it gives pleasure in Paradise" (che l'uno e I'altro foro / aiutà si che piace in paradiso [Paradiso 10:104-5]). The allusion to two "courts" (fora) would have puzzled Gratian, but to both Thomas and Dante it would have had a clear reference to the two broad arenas in which the Church's canon law was operative: the external forum of ecclesiastical courts (sometimes known as the "contentious forum") and the internal forum of conscience and of penance.1 This new way of describing the Church's legal competence had been invented in the decades immediately following the publication of Gratian 's magisterial textbook (ca. 1140), and it would have important consequences for the history of medieval canon law in the years to come.2 1 See A. Mostaza, "Forum internum — forum externum: (En torno a la naturaleza jurídica del fuero interno)," Revista Española de derecho canónico 23 (1967): 253-331, at 258 ?. 15; 24 (1968): 339-64. Note that the term "internal forum" is not a medieval usage; forum internum was used in the post-Tridentine church to refer to what was called the forum poenitentiae or poenitentiale, or the forum conscientiae in the Middle Ages. This essay was originally written in 1992 for the multi-volume History of Medieval Canon Law, ed. W. Hartmann and K. Pennington (Washington, DC, in progress). The publication of the volume of the History in which it was to appear has been unavoidably delayed, and it was thought best to publish a revised and updated version of the essay here. I have attempted to integrate recent publications in the body of the essay, but four general surveys deserve special mention as appearing too late for adequate incorporation. They are: Maria Giuseppina Muzzarelli, Penitenze nel Medioevo: Uomini e modelli a confronto (Bologna, 1994); Peter Biller and A. J. Minnis, eds., Handling Sin: Confession in the Middle Ages (York, 1998); Roberto Rusconi, L'ordine dei peccati: La confessione tra Medioevo et età moderna (Bologna, 2002); Odd Langholm, The Merchant in the Confessional: Trade and Price in the Pre-Reformation Penitential Handbooks (Leiden, 2003). 2 For a general orientation to the internal forum see: P. Capobianco, "De ambitu fori interni in iure ante Codicem," Apollinaris 8 (1935): 591-605; 9 (1936): 364-74; K. Mörsdorf, "Der Rechtscharakter der iurisdictio fori interni," Münchener theologische Zeitschrift 8 (1957): 161-73; B. Fries, Forum in der Rechtssprüche, Münchener theologische Studien 3, Kanonistische Abteilung 17 (Munich, 1963); Mostaza, "Forum internum — Forum externum"; W. Trusen, "Forum internum und gelehrtes Recht im Spätmittelalter: Summae confessorum und Traktate als Wegbereiter der Rezeption," Zeitschrift der Savigny-Stiflung für Rechtsgeschichte, Kanonistische Abteilung 57 (1971): 83-126. 176TRADITIO The language that would divide the Church's legal competence between two fora is metaphorical; it refers to no precise jurisdictional boundaries but rather to two interrelated spheres of the Church's authority. The primary locus of the external forum is the ecclesiastical court; the primary locus of the internal forum is the court of penance (forum poenitentiae or forum poenitentiale ). In general, the external forum is concerned with public and manifest transgressions of the Church's law or of divine law, while the internal forum is the court of conscience (forum conscienliae) where even secret crimes and sins are considered, along with manifest sins against God, neighbor , and self. The external forum is both mandatory and contentious: defendants are compelled to appear, and the truth of their case is sought through argument and counterargument. The court of penance is voluntary in the sense that it is entered on the initiative of the penitent alone. In it the penitent is simultaneously the accuser and the accused. The external forum follows specific and carefully devised procedures under the supervision of experienced judges, lawyers, and trained personnel, while the penitential forum is...