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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.
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.
In 1995, the German legislature introduced the rule that a woman who terminates her pregnancy in the first trimester, which is illegal, would not be punished if she had previously undergone a legally prescribed counseling session. The counseling session, while oriented toward the protection of unborn life, is also open-ended, respectful of the decision-making right and duty of the pregnant woman. At the request of the pope, the German bishops instructed the existing counseling centers of the Catholic welfare organizations not to issue any written certificates of such counseling, as such certificates could ultimately be used to evade punishment. In order to continue to be able to offer counseling, Catholics, among them Ernst-Wolfgang Böckenförde, founded the association Donum Vitae (Gift of Life), which continues to issue certificates when requested. For the German bishops, the association, founded by Catholics for Catholics and non-Catholics alike, is external to the church. But what precisely is Donum Vitae? What does it stand for? Why are assessments of the association divided until this day? The essay examines these questions theologically and legally.
Ernst-Wolfgang Böckenförde (1930–2019) was one of Germany’s foremost postwar legal scholars. He coined or popularized key terms and ideas that have left their mark on postwar German political debate to an extent matched by only few, from the chain of legitimation to the concept of the constitution as an ordering frame, the importance of the idea of subsidiarity in the European Union’s political competency, and his insistence that society must continuously work toward agreement on the things that cannot be voted on: the ultimate agreements in society that lie beyond the ballot box. Böckenförde was a lifelong commentator on Catholic affairs in Germany and involved in several important inner-Catholic reform initiatives. At the age of thirty-one, he became known to a wider German public with an article that presented a critical historical appraisal of the role of the Catholic Church under National Socialism. While still a postdoc, he co-authored a widely publicized critique of Jesuit Gustav Gundlach’s justification on theological grounds of a war of nuclear deterrence. In 1968, he was the first to publish a German edition of De Libertate Religiosa, the final declaration of the Second Vatican Council (Vatican II), and provided an authoritative commentary.
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.
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.
Welsh jurist and Anglican theologian Norman Doe has pioneered the modern study of comparative ‘Christian law’, analysing the wide variety of internal religious legal systems governing Catholic, Orthodox and Protestant churches worldwide. For Doe, religious law is the backbone of Christian ecclesiology and ecumenism. Despite the deep theological differences that have long divided Christian churches and denominations, he argues, every church – whether an individual congregation or a global denomination – uses law to balance its spiritual and structural dimensions and to keep it straight and strong, especially in times of crisis. This makes church law a fundamental but under-utilised instrument of Christian identity and denominationalism, but also unity and collaboration on many matters of public and private spiritual life, both clerical and lay. Doe has developed this thesis in a series of impressive scholarly projects and books – first on Anglican law, then comparative Anglican-Catholic canon law, then all Christian laws and other Abrahamic laws, and their interaction with secular legal systems. This article offers an appreciative analysis of the development of Professor Doe's scholarship, and situates his work within the broader global field of law and religion studies.
Why did bishops turn to the papacy for advice in late Antiquity? And what does the reception of these decretals reveal about the legal and religious culture of the mid-thirteenth century? This interpretative volume seeks to explain the first decretal age of late antiquity, placing the increased demand for papal jurisprudence – long before it exerted its influence through religious fear – within its social broad context. D. L. d'Avray then traces the reception of this jurisprudence through to the mid-thirteenth century, and the post-Gratian decretal age. Along the way he explores the role of Charlemagne and 'Pseudo-Isidore', which included many genuine early decretals alongside forged ones. Similarities between the Latin world c. 400 and c. 1200 thus help explain parallels between the two decretal ages. This book also analyses decretals from both ages in chapters on pagan marriages, clerics in minor orders, and episcopal elections. For both ages the relation between canon law and other religious genres is elucidated, demonstrating many fascinating parallels and connections.
Canon law touched nearly every aspect of medieval society, including many issues we now think of as purely secular. It regulated marriages, oaths, usury, sorcery, heresy, university life, penance, just war, court procedure, and Christian relations with religious minorities. Canon law also regulated the clergy and the Church, one of the most important institutions in the Middle Ages. This Cambridge History offers a comprehensive survey of canon law, both chronologically and thematically. Written by an international team of scholars, it explores, in non-technical language, how it operated in the daily life of people and in the great political events of the time. The volume demonstrates that medieval canon law holds a unique position in the legal history of Europe. Indeed, the influence of medieval canon law, which was at the forefront of introducing and defining concepts such as 'equity,' 'rationality,' 'office,' and 'positive law,' has been enormous, long-lasting, and remarkably diverse.
Consent is the issue at the heart of Chapter 3. Peine forte et dure was necessary simply because the English court system required a defendant’s consent before he might be submitted to trial by jury. Without his consent, justices could not proceed to trial. This chapter asks why did English justices see consent as vital, especially when other Europeans did not? It explains that consent was a traditional part of English legal culture, signaled by a defendant’s choice of proofs (compurgation, ordeals, battle). In choosing a method of proof, an accused felon recognized the court’s authority in the matter, and consented to abide by its decision. With the transition from proofs to trial (by jury) that began under Henry II and coalesced with Lateran IV’s abandonment of the ordeal, a defendant’s rights were whittled away. These changes took place against the backdrop of the twelfth-century legal revolution that championed a defendant’s natural rights to legal protection. Thus, while the English may have protested the loss of choice through silence, justices needed a solution that respected both English heritage and a defendant’s rights. That solution was peine forte et dure.
Between a hundred and two hundred manuscripts connected with Brittany, written in the ninth and tenth centuries, can be identified by their script, contents and Old Breton glosses; they survived the Viking age by being taken to Francia or England, and open a window on the sources and external contacts of Bretons’ scholarly culture. The manuscripts contain a wide variety of Latin texts, biblical, legal, grammatical, technical and historical. One of the most important subsets consists of manuscripts of the Irish canon law compilation, Collectio Canonum Hibernensis: it is unclear whether the text was obtained from Ireland or via Irish-influenced centres on the Continent, but the ability of Breton scribes to access both the extant versions in full, together with some of their source-texts, implies contact with the milieu of the original compilers. Glosses show that even texts that were widely available on the Continent, like grammars and the scientific writings of Bede, reached Bretons through Irish contacts. Some manuscripts reveal collaboration between annotators writing in Irish, Welsh and Breton, providing a context for the sharing of hagiographical information discussed in the previous chapter. The occasional sharing of rare texts allows us to pinpoint a few centres where such encounters may have taken place, among them are Reichenau and Echternach. The survival of Breton manuscripts in England suggests that Breton scholarship played a considerable part in the reconstruction of the English Church in the tenth century, after the Viking age.
While captivity was the product of the violent confrontation between Jews, Christians, and Muslims, this essay uses Latin, Arabic, and Romance sources to argue that ransoming was also a phenomenon that intimately linked these communities. Grounded in a shared Roman inheritance, the tradition of ransoming brought Jews, Christians, and Muslims into a dialogic and reciprocal relationship with one another, one that depended on mutual understanding and expectations. It provided a channel to share ideas and institutions. Ransomers also helped pave the paths for commercial and diplomatic relations. Nevertheless, if ransoming drew these communities together, it also tore them apart. The physical and emotional cost of captivity, although shared, became the ground of separation.
Developing the arguments of Chapter 1, this chapter examines the everyday experiences and policing of gambling in Italy during the fifteenth and sixteenth centuries. It traces shifting attitudes toward games of chance in both penitential thought and civil regulation. It argues that civil law attitudes toward gambling were structured by the notions of honor and social status held by the homosocial office-holding classes of Italian cities. While these governors understood themselves to possess the requisite social and financial capital to gamble, they continually attempted to restrict the ability of women, younger men, and lower socioeconomic estates to play at games of chance. The chapter also uses artworks and criminal prosecutions to trace resistance to this attitude by the excluded, revealing that the notions of honor, character, and self-control that pervaded elite ideas about gambling penetrated deeply in Italian society, although manifesting in different ways. In both cases, attitudes rested on ideas about what it meant to take chances on the unknowability of the future.
The Middle Ages are not usually considered an era when the law was friendly to laborers. Numerous regulations in medieval England were very unfriendly to them. However, religious laws—that is, canon law—did act to protect laborers when it came to working on holy days. Examining cases in the ecclesiastical courts, this article traces discussions concerning who was to blame, from theory into practice, when masters compelled their subordinates to work on holy days. Differing ideas on how to assign blame were ultimately reflected in the ecclesiastical courts. Some courts prosecuted only masters, while others prosecuted both masters and subordinates.
This chapter considers Roman and canon law, the English common law tradition and French juristic thought. Roman and canon law jurisprudence of the fourteenth and fifteenth centuries are taken together because fifteenth-century jurists tended to reiterate the works of fourteenth-century ones. The chapter considers whether jurists contributed to the early development of international law. The impact of humanism on law is also discussed – notably in the case of Lorenzo Valla's destruction of the authenticity of the Donation of Constantine. The English common law tradition is considered through the writings of Sir John Fortescue: notably his justifications of English kingship. The French juristic tradition is considered through its two most important theorists: Jean de Terrevermeille and Claude de Seyssel. Terrevermeille made the most detailed contributions to the notions of the mystical body of the kingdom ever put forward in the Middle Ages. Seyssel, through elaborating the three bridles on royal power (religion, justice and the police) justified an absolute monarchy limited by higher norms, a solution fundamental for centuries throughout the ancien régime
How was power justified in late medieval Europe? What justifications did people find convincing, and why? Based around the two key intellectual movements of the fifteenth century, conciliarism in the church and humanism, this study explores the justifications for the distribution of power and authority in fifteenth- and early sixteenth-century Europe. By examining the arguments that convinced people in this period, Joseph Canning demonstrates that it was almost universally assumed that power had to be justified but that there were fundamentally different kinds of justification employed. Against the background of juristic thought, Canning presents a new interpretative approach to the justifications of power through the lenses of conciliarism, humanism and law, throwing fresh light on our understanding of both conciliarists' ideas and the contribution of Italian Renaissance humanists.