Chapter 4 uses chronicles, hagiographies, ekphraseis and polemical treatises to discuss clerical hunting in Romanía. Prohibitions against clerical hunting had existed for Western men since Late Antiquity, but there is not enough evidence to suggest that Romanía followed the same pattern. In the Eastern Roman context, narratives of clerical hunting did not put the emphasis on differences between secular and religious men, and non-participation did not entail the loss of masculine capital. Rather, the focus was on human/animal interactions and the need to avoid overindulgence, and the emphasis was the same whether the person involved was an emperor or a cleric. The animals themselves also had an important role to play: they were not simply seen as prey to be dominated by the manly man but could act as co-creators of the skills necessary for the hunt, leaving their traces on their co-hunters’ subjectivity. At the same time, the malleability of Eastern Roman ideas about which animal lives were worth preserving allowed authors to strategically unify all men against the animal Other or to distinguish between different types of men, creating in the process hierarchies of masculinities.

Chapter 5 investigates the impact of prohibitions against fighting on clerical masculinity. It examines two clerical groups: those who acted violently but wished to remain clerics and those who abandoned their religious status. Both Western and Eastern canon law forbade clerical fighting, with an important difference: the Western Church put emphasis on bloodshed; the Eastern was more concerned with the clerics’ state of mind and the avoidance of anger. This meant that, in Romanía, outside of strict prohibitions against killing, there was more of an overlap in the exercise of moderate force. The situation was different for clerics who abandoned religious life. Eastern canon law insisted on strict religious/secular distinctions through a focus on vestments, but authors of histories accepted such shifts with little comment. In Romanía, religious status – and, as a result, one’s gender – could prove to be rather fluid throughout one’s life. The chapter ends with a case study focusing on Michael Chōniatēs’ Life of Niketas, the eunuch bishop of Chonai, who fought visible and invisible enemies. His example offers a limit case for how an ecclesiastic could show his masculinity while maintaining an attitude that was considered acceptable, and even ideal, for a clerical man within religious circles.

Chapter 4 is the first of three chapters laying a basic foundation in German law and politics. The chapter focuses on German legal history, including a deep history dating from the Roman encounters with the German barbarians up to the codification movement in the nineteenth century. The deep history shows how Germanic customary law, Roman Law, and Canon Law mixed to form modern German law. The chapter then shows how the process of development proceeded differently for private law (leading to the great codification of private law) and public law (with a tumultuous process of constitutionalization).

Canon law rules of marriage became the legal means for policing forbidden sex in Iceland during the Middle Ages. These rules were adapted to various needs: enforcing morality, encouraging adherence to Christian sexual norms, and managing inheritance practices and property rights. This chapter explores sex in Iceland in the fourteenth and fifteenth centuries by focusing on legal regulation, the archbishops’ and bishops’ statutes, and selected court cases. In all the Nordic countries the regulation of sexuality was highly influenced by canon law, but a study of sex in Iceland needs to be understood in relation to the special character of the society. It was highly literate, because of Christianity, but decentralized, with no towns and a distant royal administration. There had never been a strong executive authority in Iceland, and its absence seems to have encouraged widespread interest in documenting personal disputes and property rights. This makes Iceland special. Written documents and historical writing were mostly kept at the farms of leading families, for use in disputes over property rights in the local courts. This differs from more urbanized societies elsewhere in Europe.

The introduction makes a case for returning to the topic of Boccaccio’s realism through the lens of law and rhetoric. Boccaccio’s Decameron is not just realistic from a stylistic perspective, a mark of the authors modernity. Rather, the work is itself a critical examination of the uses and abuses of realism. This examination of everyday, social mimesis occurs most trenchantly in the Decameron’s numerous trial scenes. Accordingly, this introduction argues that we should shift focus from Boccaccio the expert canonist to Boccaccio the astute observer of procedural law. It argues, further, that that the difference between Dante’s and Boccaccio’s realism can be seen as a legal-procedural difference. Dante prefers in inquisitorial poetics aimed at uncovering hidden truths while Boccaccio’s realism is dialectical and accusatorial.

This chapter considers the relationship between Buddhism and constitutional law from the perspective of the Canon Law. Drawing on examples from the other chapters in the volume, it elaborates on the connections between religion and several key constitutional ideas: freedom of religion, the right to remain silent, welfare rights, and the status of the clergy.

This chapter starts the transition to the period after 1250 and argues that advocacy remained important into the fifteenth century (and later), in part because it was central to debates about imperial and papal authority. Beginning in the twelfth century, both popes and emperors insisted that the German ruler was the special advocate of the Roman Church, but the two sides differed on what this title meant. While the popes asserted that it was the emperor’s responsibility to defend the Church from its enemies and that the popes therefore had a role to play in selecting an able defender, the emperors claimed that as advocates they could exert wide-ranging influence over the Church and even call Church councils when necessary. This conflict not only highlights the inherent fluidity of the role of the advocate centuries after it first appeared but also helps to explain why so many people would continue to want to call themselves advocate during the half-millennium after 1250.

This chapter analyzes the abundant sources that record accusations of violence and other abuses committed by advocates in the eleventh to thirteenth centuries. While much of this evidence includes rhetorical flourishes that suggest advocates were barbaric tyrants, a close reading of the sources demonstrates that many advocates employed specific strategies to benefit in corrupt ways from their positions. These included abusing their judicial authority, making excessive demands for protection payments from churches’ dependents and treating ecclesiastical estates like their own property. This chapter also tracks disputes between monasteries and advocates that lasted multiple generations, in order to argue that advocates’ corrupt practices were deeply rooted in the challenges churches were continuously confronted with when they needed to grant someone else access to their property in order for that person to provide protection and exercise justice.

This chapter argues that monasteries and churches employed a variety of different strategies to try to counter advocates’ corrupt practices. One of the most popular was forging documents (especially royal privileges) in an effort to alter the terms of their relationships with their advocates. Many ecclesiastics also traveled to the German imperial court or the Papal See in Rome to seek outside support and to request that the ruler or pope remove advocates from their local positions. Requests to the papacy were backed by a growing body of canon law dedicated to the issue of church advocacy. Nevertheless, these strategies were frequently unsuccessful. By the early thirteenth century, it therefore became increasingly common for monasteries and churches to offer their advocates monetary payments in return for those advocates relinquishing all of their rights.

Does the concept of natural rights have roots, logical and historical, in the concept of natural law? Our answer is, ‘it depends’. By this, we mean that some conceptions across Western history do not in fact allow for the derivation of natural rights in the subjective sense. In contrast, others are conceived such that natural rights follow logically therefrom. Our premise is that talking about ‘natural law’ in the singular – at least in the period from Roman times to sixteenth-century – represents a distortion of on-the-ground realities.

This chapter provides a history of the idea of custom both in definitions and as presented in texts about lay legal life before the coutumiers. The first part of the chapter examines the struggle to define custom from late antiquity to the time of the coutumiers. It shows that thinking about and defining custom in its legal capacity was no obvious thing: while there where common definitional elements, the quest to define custom was marked by debate and a lack of consensus that would continue into the fourteenth century.

The fourth chapter discusses the question of why now – why did customary law become the subject of vigorous written output at this particular thirteenth-century moment? The answer lies in the politics of customary law or, more specifically, the changes in both society and legal culture that created new zones of competition between secular and ecclesiastical courts. Competition between the temporal and spiritual jurisdictions was, of course, not new. The investiture controversy that began in the eleventh century, based in the conflict over the right of appointment of church officials, showed this to be a key issue of the high medieval period. The nature of competition manifested in the coutumiers was a little different. The coutumiers aimed to theorize, regularize, and professionalize the secular courts in the face of ecclesiastical courts, which had already gone through the same process and offered a competing forum at a time when boundaries were still being defined.

The chapter discusses canon law provisions relating to just punishment of financial–economic infringements by members of the Catholic Church. The aim of penalties in the Church differs from that in civil society: in the Church, punishments are applied to lead the offender through repentance to salvation; in civil society to reintegrate them into the society. The Church does not have power to enforce punishments, which means that a punishment can be applied only to those who accept the power of the Church by their own will. In canonical delicts the offender is bound by his conscience; in civil delicts by the coercive power of the state. Penalties can be used only as last resort. All possibilities are to be exhausted before a real punishment is applied. The principle of gradualism is one of the most important in the salvation of souls. The reverend emphasizes that being lost in pure legalism in the interpretation of the texts would cause the real meaning of canon law to be lost, since all penalties have the purpose that all offices, dignities, ministries, duties should be fulfilled by persons who are suitable.