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.

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.

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.

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