The History of Courts and Procedure in Medieval Canon Law ed. by Wilfried Hartmann and Kenneth Pennington (review)

This long-awaited volume addresses church courts in western and central Europe between about 1100 and 1500. Bringing together an international group of senior scholars, it contains fourteen essays divided into two parts.

The basic story is familiar. In the first half of the twelfth century, academic jurists at the nascent universities developed a set of procedural rules derived from newly discovered texts of Roman law. These rules—known as the ordo iudiciorum—standardized the stages of litigation, modes of proof (namely, witness testimony), and rendering of judgments. The ordo was quickly adopted by the papacy and incorporated into the canon law of the Church, giving birth to a joint "Romano-canonical procedure" that replaced older forms of proof such as the ordeal and oath-compurgation. Between 1150 and 1250, bishops across Europe adopted the ordo and established fixed courts (consistory courts, officialities, etc.) whose jurisdiction included—but was not limited to—marriage, sexual crimes, church property, injury to clerics, and oaths/contracts. Part of an appellate network which reached all the way to the pope in Rome, these courts survived well into the early modern period.

Essays in this volume explore aspects of the Romano-canonical legal system, including its procedure, personnel, jurisdiction, physical location, documentation, and regional variation. Kenneth Pennington and Charles Donahue explain its procedural norms as described by jurisprudential treatises and papal decretals. Barbara Diemling addresses the location of church courts, identifying a transition around the year 1200 away from church portals and toward separate civic courtrooms. James Brundage charts the development of legal professionals, including advocates, proctors, and notaries. Brigide Schwarz describes the papal court and its officials, while Charles Duggan explains the rise and fall of the papal judge delegate between 1150 and 1250. Essays in the second part focus on the records of individual regions: France and adjoining territories (Charles Donahue and Sara McDougall), England and Scotland (Richard Helmholz), Spain (Antonio García y García), and Poland and Hungary (Péter Cardinal Erdő).

The main question that this volume seeks to answer is whether the procedural rules of ordo iudiciorum were actually applied in practice. In other words: do the proceedings described in church court records reflect the procedural norms described in academic treatises and papal decretals? While this question might seem trivial to the non-specialist, it is hugely important and has never actually been answered in a comprehensive way. The essays assembled here make a strong case that legal practice does, in fact, reflect legal theory. Allowing for some practical and local flexibility, the authors conclude that bishops' courts from the thirteenth century onwards did generally follow the ordo. Other recurring topics throughout the volume include regional variation in jurisdiction, conflicts with secular courts, the use of torture, and summary procedure. In general, the authors present a positive view of the ordo, which offered protection to the accused through its requirement of due process.

Given the scale of this project, it is not surprising that logistical issues occasionally impede the reader. Essays range in length from the admirably succinct (Duggan) to the tediously long (Schwarz), and topical overlap sometimes results in repetition. This reviewer would also like to know more about ecclesiastical tribunals such as synods and archdeacons' courts which may not have employed the ordo. Brundage and Donahue point out that the ordo was expensive, requiring lengthy proceedings, extensive documentation, and trained personnel. Would the average peasant really have been able to access these courts? What were the alternatives? Helmholz points out that some major kinds of cases, such as the trials of accused clerics, almost never appear in the records of consistory courts/officialities. Such cases were surely tried at episcopal synods, which, as García y García notes, do not always follow the ordo. Do other kinds of cases follow a similar pattern...