Law and the Illicit in Medieval Europe

Introduction: The Reordering of Law and the Illicit in Eleventh- and Twelfth-Century Europe

Introduction: The Reordering of Law and the Illicit in Eleventh- and TwelfthCentury Europe Edward M. Peters The subject of law and the illicit in medieval western Europe is broader than any single academic discipline and requires the study in combination of subjects that have usually been considered separately, from formal legal history and the academic and governmental structures that taught, defined, and applied the law to those social (including gender) relations , types of behavior, forms of thought, and individual consciences that were affected by it. The subject ranges from the law itself through the theology and canon law of sin to the psychology of the passions and affections as these were worked out in moral theology and pastoral care, especially in the literature on vices and virtues and understood by laity and clergy alike. It also requires consideration of the nature of varying publics and institutions , not only monasteries, houses of canons regular, cathedral chapters, schools, universities, and towns, but also methods, languages, media, and networks of communication, jurisdiction, and influence. Ideas of the illicit may begin with changing ideas and institutions of law, may privilege law, and may model themselves on law, but the subject of the illicit reaches out into many other aspects of society and culture, some ostensibly quite distant from the law. The problem of law and the illicit indicates the absolute centrality, not only of various kinds of law, but also of the idea of lawfulness itself in most aspects of early European life. When moral order, propriety, reason, and the administration of justice seemed to fail or absent themselves from any early European society, then anxiety, scandal, unrest, and fear of imminent divine retribution often replaced them.1 The illicit is a far broader category than the illegal, with broader consequences in society and culture. The eleventh and twelfth centuries, because of their respect for the often conflicting  Edward M. Peters traditions and texts of the past and their need to force these to regulate a very different and rapidly changing world, are a useful place to begin. The beginnings of the process took place in Carolingian Europe in the ninth century, but the continuity of the process can be more easily traced from the later period. From the eleventh century and for several centuries later, law, pastoral theology, the formation of new and interested publics, and lines and institutions of communication created a continuum of instruction and discipline that allowed legal institutions of various kinds to reach out into ever more areas of everyday life ever more consistently. The circumstances of everyday life then looped back into the formation of legal institutions , as people more regularly went to law—or to confession. I consider first, some changes that occurred in the formalizing of law itself, and then those occurring in methods of ecclesiastical definition and discipline— chiefly penance and moral theology, and finally the networks of communications that linked these specialized worlds with wider publics and created the continuum just mentioned.2 At some point in the late s in England, a jurist generally known as Ranulf de Glanvill produced a work that he called the Tractatus de legibus et consuetudinibus regni Anglie. In his Prologue, after lavishly praising King Henry II for defending the realm against both external and internal enemies and establishing consistent and impartial justice throughout the kingdom, Glanvill makes a point that offers a convenient perspective on the vast legal changes of the eleventh and twelfth centuries: Although the laws of England are not written, it does not seem absurd to call them laws—those, that is, which are known to have been promulgated about problems settled in council on the advice of the magnates and the authority of the prince—for this is also a law, that ‘‘What pleases the prince has the force of law.’’ For if, merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them. It is, however, utterly impossible for the laws and legal rules of the realm to be wholly reduced to writing in our time, both because of the ignorance of scribes and because of the multiplicity of those same laws and rules. But there are some general rules frequently observed in court which it does not seem to me presumptuous to commit...