- Marriage Litigation in the Western Church, 1215-1517 by Wolfgang P. Müller
A little more than fifty years ago the late Michael Sheehan published an article in Mediaeval Studies devoted to the church's matrimonial law as it was applied in English practice. His article was based upon evidence he had found in fourteenth century court records from the diocese of Ely. It was something new—an experiment—and a successful one. A flood of scholarly studies like the one he initiated have come into existence during the years that followed. This would probably have been a surprise to him. The prevailing attitude among scholars then was that the law of the church was fully stated in the Corpus iuris canonici. Cases from the courts were regarded simply as examples of the results the formal law required. They were of no special significance. Today this attitude among scholars has changed. Studies of the history of marriage and divorce derived from medieval record sources have multiplied, and they have come from many European lands. By my count, the bibliography of secondary sources in the book under review contains 235 scholarly books and articles devoted to the history of the canon law of marriage. Of that number only nineteen predate Sheehan's article, and virtually all of them were studies of the formal canon law.
What a change! How should we account for it? There is certainly more than one plausible explanation. Perhaps the initial revelation that there was a divergence between formal law and law in practice itself encouraged further research. Once it had been recognized, scholars changed their mind about the sufficiency of the older and more formal approach to the subject. Or perhaps it was the Anglo-American assumption drawn from common law that encouraged further study drawn from court records. No common lawyer would draw a legal conclusion without looking at the relevant case law. Why should the church's law be an exception? Or maybe it was the fact that the voices and the [End Page 233] interests of women came to the fore in matrimonial disputes in a more direct way than they did in disputes over tithes or ecclesiastical benefices. Paying attention to matrimonial disputes was itself may have been spurred by the greater numbers of women entering the academy during the past fifty years. Or perhaps it was just something new and different. Novelty is a path to tenure. Is there a correct answer to the question? I can only guess.
What I can say with more confidence is that the comparative approach does prove appropriate for this subject, and indeed that, once undertaken, it has proved to be a healthy development. It was time, therefore, that someone should undertake a large and more general comparative view of the subject. Müller's work is the first book length work to undertake a Europe-wide approach to this subject, and it is a good development. Of course, this approach is not an invention. Prior scholarship from the pen of Charles Donahue has demonstrated what can be learned from taking a comparative approach. His two edited volumes in Comparative Studies in Continental and Anglo-American Legal History that were published by Duncker & Humblot in 1989 and 1994 have also encouraged a wider approach by calling attention to the contents of ecclesiastical archives in many lands. However, no one has attempted anything as ambitious as Müller's monograph. It is drawn from record evidence found in French, German, English, Italian and Spanish archives, and it opens up the subject in useful ways by taking this geographical scope.
Most fundamental of the results is the author's conclusion that a real divide existed between the South (Italy and Spain) and the North (England and Germany). The former adopted a notarial culture; the latter did not. This meant that most marriage contracts in the South were entered into and their full terms put into writing by notaries public rather than being contracted orally...