Winning political consent, Carolingian-style

On Thursday, voters in the UK will to go to the polls to elect a new government. Although they agree about the apparent inevitability of Brexit, the two main parties in England are otherwise miles apart in their policies. That means voters have a clear choice. Thanks to the UK’s peculiar ‘first-past-the-post’ system, however, it also means that millions of people will be very disappointed on Friday morning, as it’s almost certain that the winning party will attract well under half the vote. The whole thing seems almost designed to generate dissatisfaction. Did things work any better in the Middle Ages?

Contrary to what some people may tell you, elections were pretty common in the medieval period, though usually with a restricted franchise, and not normally on a strict one-person one-vote basis. As towns grew in size, they were often run by elected officials, and election was an important principle in the church throughout the period, for popes, bishops and abbots (and abbesses) in particular. Even crusaders elected their leaders on occasion.

Sometimes kings were elected too, but most often they based their claim to rule on inheritance. Even so, governing with the consent of (some of) the governed was vital, in practice as well as in theory. A king who lost the trust of his aristocracy could, like King John in England or Emperor Louis the Pious in Francia, find himself in serious trouble, accused of tyranny, and facing rebellion and even deposition.

So although medieval kings didn’t need to win regular elections, they did need to generate consent amongst the elite. The Carolingian kings of the ninth century were already masters of this game. For instance, they used to hold a ‘secret’ meeting with their most trusted and senior advisors to thrash things out, before then holding a ‘general’ meeting with a much larger group, to discuss the same issues all over again as if for the first time. All the senior advisors would stick to the secretly pre-arranged line, so the second meeting’s outcome was more or less predictable. A way of sneakily sewing up the meeting in advance: or a sensible method of steering discussion, generating buy-in, and avoiding divisive conflict?

This blog was prompted however by another Carolingian tactic, evidenced by a text whose English translation is provided below (for the first time in full) – the Capitulary of Quierzy of 877, issued by King Charles the Bald of West Francia. Capitularies were essentially royal edicts, declarations of the royal will, and this capitulary is no different. It’s traditionally been seen as marking the beginning of the end for Carolingian rule (and the onset of feudalism), because it supposedly recognised that public offices could be inherited. In reality, a quick glance will show that King Charles very much kept the whip-hand: sons could take over their fathers’ offices temporarily, while Charles was away, but he reserved the right to appoint someone else on his return.

But maybe what’s most interesting about this text isn’t its content, but its “unique form”[1]: the way that it’s written out partially in a question-and-answer format, or, more accurately, as a set of declarations followed by affirmatory responses. For instance, King Charles begins by stating that the church ought to be protected, which evokes this response: “We all praise and wish to keep the first chapter, as you have decreed with God’s inspiration”.

Now,  the capitulary could be a verbatim record of the Quierzy meeting, borrowing  techniques used to record church councils, in which case it could show how a king might choreograph consent in royal assemblies.[2] But at no point is it ever spelled out exactly who this ‘we’ is, which is a rather strange omission.

So just as likely is that this response-format is primarily a textual effect, designed to communicate consent to readers, rather than faithfully recording – or scripting – an actual dialogue. Agreement is literally ‘built-in’ to the Quierzy edict, in an innovative and rather striking fashion. The text comes pre-ratified, so to speak: the royal will has already received consent, before any further discussion.

It’s been said that Thursday’s election in the UK may be about control of the means of production, but that it’ll be won through control of the means of representation. King Charles might not have understood the politics involved (and they might have confirmed his rather mixed opinion of the English) – but it’s a lesson he and his advisors would instinctively have grasped.

English translation (pdf): Quierzy capitulary 877

[1] J.L. Nelson, Charles the Bald, p. 248.

[2] As proposed by J.L. Nelson, ‘Carolingian royal ritual’, in The Frankish World, 750-900, p. 120,

Image: Charles the Bald, from the Codex Aureus of St Emmeram, made a few years before the Capitulary of Quierzy (full page here)

Verify the Source

If you pay a visit to the Sheffield city archives, you might spot a nearby piece of graffiti, pictured above:  ‘Verify the Source’.

That’s a great lesson, and not just for the patrons of the Sheffield archive, as was brought home to me when I revisited some work I’ve been doing on (who else?) Hincmar of Reims, everyone’s favourite Frankish bishop. I’m particularly interested in a text Hincmar wrote in 868, known as the Rotula, defending clerics from being put on trial in secular courts. It’s quite a famous text (well, in a niche kind-of-way),  and is readily accessible in Patrologia Latina.

PL, as it’s known, is a huge set of Latin texts, whose ubiquity has been strengthened by being readily available – and searchable – online. The problem is that Patrologia Latina was put together in the 19th century in a hurry,  and mostly just reprinted earlier editions. In this case, it relied for Hincmar’s text on a 17th-c. edition by a French Jesuit called Louis Cellot. So,  the searchable version of PL on your screen is a striking combination of 21st, 19th and 17th-century text technologies – a triple mediation of the early medieval manuscripts.

And in this case, a price has been paid.

Because though Cellot’s edition was quite good, it relied on a very partial manuscript of Hincmar’s work, now in Barcelona (Ripoll 40). Another version of the Rotula  is however available in a different manuscript, one now in Berlin (SB Phill 1741). And it’s a much more complete version, with several fairly long passages not present in the Barcelona manuscript, or in Cellot’s edition, or in the PL.

And what that means is that a key passage in a key work by a key early medieval author has never – to my knowledge – been edited before (a draft English translation is given below), while historians have been happily relying on the (not so) trusty PL.

Like the graffiti says: ‘verify the source’…

Hincmar of Reims: a new passage of the Rotula (868)
“And if a bishop or any ecclesiastical cleric has a case against a layman, and the layman with the cleric seeks episcopal judgement or agrees to undergo it, then each party should and can absolutely be judged by the bishops. But if the layman does not seek episcopal judgment nor agrees to undergo it, then the ecclesiastical cleric should pursue his case against the layman in his forum, with the permission of the bishop involved, through a procurator: except for criminal actions and those actions for which the holy laws set out a clear account of how they should be amended and corrected, as the Valentinian Law demonstrates, saying “If any cleric accuses someone in a dispute, let him be heard in the forum of him whom he summons to the judge, if however the accused does not agree to come to priestly judgement”. And the holy Leo and the Roman synod in the letter cited above indeed says “If a cleric accuses a layman, let him first demand to be heard by bishops, then if he sees that the layman blocks his request, let him contest it in the disceptatio of secular moderators, with his bishop’s permission”. That is, not in person but through an advocate, as the law of Archadius and Honorius and Theodosius decrees”.

Fragments of history – or, why judges shouldn’t get married

One of the joys of being a historian of the early Middle Ages is working with fragmentary evidence: artefacts shorn of clear and definite context, and isolated, often incomplete texts that are at first sight inscrutable – and that often remain so even after further inspection. This blog’s about one of these fragments that I stumbled across in the course of my research into clerical exemption.

At the end of a ninth-century canon law manuscript now in Florence, a slightly later hand entered a passage that appears to be an imperial decree prohibiting secular judges from getting married. Here’s a draft English translation from the (rather tricky) Latin.[1]

About the life and continence of judges.
Moreover, it is permitted to none of the judges giving the law in our sacred palace or elsewhere in our kingdoms to contract marriages. This is so that they should not be led by love of their children to leave the path of truth and law, and to unjustly seize other people’s property for the ambition of their children, using their judgements for their advantage. But let them despise the delights of this wicked world, and hold to the norm of truth in all things, in customs, apparel and the signs of all goodness, and as we determined above in another capitulary, let them imitate the religious priests, and adhere in all things to their laws.

What should the historian think, faced with such a text? The first reaction is surely that this must be a forgery. No Roman, Carolingian or Ottonian emperor ever issued any command like this, at least not to my knowledge. Rulers often did worry about judges’ private interests interfering with their decisions, but there was never a prohibition on secular judges getting married. That would have gone against the grain of how medieval society worked. The text is entirely unprecedented.

But that observation doesn’t exhaust the text’s interest. The parallel it draws between judges and priests, urging the former to imitate the latter, is fascinating. Arguments about priestly marriage flared up in Western Europe in the eleventh century, but they did so on the basis of earlier anxieties and concerns. This little text, which is probably tenth- or early eleventh-century, illustrates that point very neatly. It looks like before Pope Leo IX and his circle came together, someone was already hard at work constructing a legal precedent to support a stronger line on married priests, by fair means or foul.

Of course, the aim of establishing a continent (and eventually celibate) priesthood was to create a sharper distinction between the laity and the priesthood. So it’s ironic that this author sought to justify the position with reference to secular law, and secular judges. Perhaps that’s why the text doesn’t seem to have circulated?

Update (11.01.17). In light of the very useful comments on this blog, I’ve realised Kaiser’s text might repay more detailed attention. So I’ve ordered a copy of the relevant folios to examine the palaeography more closely (and now have an excuse to visit the library in Florence, too). I’ll keep you posted!

***

[1] Edited by Wolfgang Kaiser, Authentizität und Geltung Spätantiker Kaisergesetze (Munich, 2007), p. 204, n. 12, from Florence, Biblioteca Laurenziana Edili 82. Kaiser provides no commentary other than to observe that this Heiratsverbot seems neither to be in any other manuscript nor to have been edited before. I have not yet been able to see the manuscript.

Latin (from Kaiser):
De vita et continentia iudicum. Nulli praeterea ex iudicibus nostris sacro palatio iura dantibus vel in omnibus regnorum nostrorum finibus liceat contrahere matrimonium (interlinear: id est mulierem) ne forte filiorum inducti diligentia a veritati et legis declinantes semita aliena iniuste subrepta ambitione filiorum ad opus eorundem per sua trahant discrimina sed huius noxii contempnentes (interlinear: id est respuentes) saeculi delicias normam veritatis ubique teneant moribus vestibus atque totius bonitatis insignibus sicut superios in alio capitulo statuimus religiosorum sacerdotum imitentur eorumque per omnia inhereant legibus.

Women and law-courts: the mysterious case of the Council of Nantes

In the early years of the tenth century, Regino, formerly abbot of Prüm, but now living in exile in Trier, compiled a handbook of extracts from church councils and other sources for use by bishops travelling round their diocese. The work, in two books, is known as Libri duo de synodalibus causis et disciplinis ecclesiasticis and was very influential on later canonical collections. Among the hundreds of extracts included are a number of capitula which Regino attributes to a “Council of Nantes” – including a famous and remarkable text about women and law-courts.

The date and background to this supposed Nantes council has often been debated. Several discussions incorrectly attribute it to the year 895, confusing it with the Council of Tribur;[i] some other historians saw it as dating from the mid-seventh century. However, a detailed study by Emil Seckel of the 21 canons attributed by Regino to this council identified that a number of them were taken from the episcopal capitularies of Hincmar of Rheims and Theodulf of Orléans.[ii]

There were eight canons, though, for which Seckel could find no earlier source, which he thought could be attributed to a genuine council of Nantes.

Other historians have been sceptical about this. Gabriel Fournier claimed that Regino had simply invented the council and attributed a number of canons from other sources to it in order to give them greater authority.[iii] He thought that the eight canons for which no source had been found were probably compiled in the Rhine area in the Carolingian period; more recently Wilfried Hartmann has suggested that they date from the ninth century and look most similar to episcopal capitularies.[iv]

I argued a few years ago in a seminar paper that another of the canons that Regino cites as coming from the “Council of Nantes” might be attributable to Hincmar of Rheims. This is the well-known “canon 19”, which is often cited by writers on women’s history. Here is its text, with my translation below:

CLXXIV Unde supra
Ex Concilio Nannetensi

Cum apostolus dicat: Mulieres in ecclesia taceant, non enim permittitur eis loqui; turpe est enim mulieri loqui in ecclesia [1 Cor. 14, 34-35], mirum videtur quod quaedam mulierculae contra divinas humanasque leges attrita fronte impudenter agentes placita generalia et publicos conventus indesinenter adeunt et negotia regni utilitatesque reipublicae magis perturbant, quam disponunt, cum indecens sit et etiam inter barbaras gentes reprehensibile mulieres virorum causas discutere, et, quae de lanificiis suis et operibus textilibus et muliebribus inter genitiarias suas residentes debuerant disputare, in conventu publico, ac si in curia residentes, senatoriam sibi usurpant auctoritatem. Quae ignominiosa praesumptio fautoribus magis imputanda videtur quam feminis. Unde, quia divinae leges, ut supra monstratum est, hoc contradicunt, et humanae nihilominus id ipsum prohibent, ut feminae nihil aliud prosequantur in publico quam suam causam. Ait enim lex Theodosiana [Codex Theod. II, 12, 5, Interpretatio] : «Nulla ratione feminae amplius quam suas causas agendi habeant potestatem, nec alicujus causam a se noverint prosequendam.» Idcirco ex auctoritate canonica interdicimus ut nulla sanctimonialis virgo vel vidua conventus generales adeat, nisi a principe fuerit evocata, aut ab episcopo suo, nisi forte propriae necessitatis ratio impulerit, et hoc ipsum cum licentia episcopi sui.

(Regino, De synodalibus causis, 2.174, ed. Wilfried Hartmann, Das Sendhandbuch des Regino von Prüm, Ausgewählte Quellen zur deutschen Geschichte des Mittelalters, 42 (Darmstadt, 2004), pp. 350-351).

174. As above
From the Council of Nantes

The apostle says: Let women be silent in church, for it is not permitted them to speak; it is shameful for a woman to speak in church. It therefore seems amazing that certain little women, acting shamelessly against divine and human laws with impudent face, incessantly go to general placita and public meetings (publici conventus) and rather perturb than arrange the business of the kingdom and the utility of the commonwealth. Since it is unsuitable and reprehensible even among barbarian peoples for women to discuss men’s cases and for those who ought to discuss their wool-working and textile work and women’s work, residing in their workshops, to usurp senatorial authority for themselves in public meetings, as if residing in courts.
This disgraceful presumption should be attributed rather to their patrons than the women. Since divine laws, as is shown above, condemn this and human ones no less prohibit women pursing any other case but their own in public. For the Theodosian law says: “Women may not have for any reason the power of acting beyond their own cases, nor should they recognise anyone’s case to be pursued by themselves.” Therefore from canonical authority we prohibit any holy virgin or widow from going to general meetings (conventus generales), unless they should be called by the prince or by their bishop, unless perhaps reason of their own necessity impels this, and this is with the permission of their bishop.

Why do I think this canon was probably written by Hincmar? Because the structure of the canon looks suspiciously like his style, piling up only partially relevant quotations for rhetorical effect. The author combines quotations from St Paul and the Theodosian code to try and suggest that both “divine” and “human” law condemn women’s attendance at such meetings (and adds in that even the “barbarians” don’t think it’s suitable). But St Paul’s quotation is irrelevant to the topic, since it’s about women’s behaviour in church. The Theodosian code, meanwhile, is talking about women prosecuting or acting in the legal cases of others, not them attending meetings which weren’t purely judicial.

The text also includes some turns of phrase that, although not unique to Hincmar, are seen elsewhere in his works, like the references to women’s workshops, and to ‘mulierculae’.[v] I’m not sure I can prove this text is by Hincmar, but it does sound suspiciously like him.

After all this rhetoric by Hincmar or another, the actual provisions are surprisingly modest. What we have right at the end is a specific prohibition about religious women (holy virgins and widows) attending public meetings without royal or episcopal permission. Even when their own cases are concerned, they must first get the bishops’ permission to attend. This provision is actually not that dissimilar from the repeated royal and episcopal demands that monks shouldn’t be attending placita. It reflects common concerns both that those living a religious life (men and women) should be properly separated from the world and also that bishops should exercise control over the religious of their diocese.

We are faced, therefore, with a canon that combines general and overblown rhetoric and only marginally relevant quotations with a fairly specific prohibition on one particular group of women. It’s also one that comes to us without a known context.

And that is a serious problem, because this text often takes centre stage in a claim that a Carolingian woman was not supposed to “try to exercise power in her own right”,[vi] or that reformers were attempting “to restrict women to a privatized domestic realm”,[vii] or indeed as a more general claim that medieval women were criticized for moving outside their own spaces.[viii] But as Janet Nelson points out, this is a lot to erect on “some actually rather uncertain bits” of text.[ix]

Even if it was Hincmar writing this canon, we’re still mired in uncertainty without more of a context. Should we read it in a narrow sense as trying to place restrictions only on religious women or is Hincmar concerned about laywomen’s behaviour as well? Does the canon reflect the view of a council (if possibly a council directed or strongly influenced by Hincmar himself) or was Hincmar alone responsible for it? And is it possible, that like many of Hincmar’s supposedly general statements, it is in fact a response to a specific conflict in which he was involved?

We know of at least one dispute that Hincmar had with a religious woman: we possess the summary of a letter he sent to Bertha, abbess of Saint-Pierre d’Avenay, regarding a conflict between her men and the monks of Hautvillers. Bertha was the daughter of Lothar I and Ermengard, but controlled a convent within Hincmar’s archdiocese; Lothar and Ermengard used this to try and exert influence within Charles the Bald’s kingdom.[x] Such an entanglement of the authority of kings, bishops and abbesses certainly provides a possible context for the canon we have, but by no means the only one. And without such a context, it is difficult to be sure of the significance of the original text.

Nor is this canon alone in its isolation from any context: a number of other Carolingian texts that appear in later canon law collections are of uncertain origin or are forged. All of us using such canons as source material need to take care that we remain aware of the context (or the lack of context) in which such statements were written and circulated and are careful about the conclusions we draw from them.

Image credit: Stuttgart Psalter, f. 33v

[i] See discussion by Janet L. Nelson, ‘Women and the word in the earlier middle ages’, in W. J. Sheils and Diana Wood (eds.), Women in the church. Papers read at the 1989 summer meeting and the 1990 winter meeting of the  Ecclesiastical History Society, Studies in Church History, 27 (Oxford, 1990), pp.53-78 at pp. 57-8.

[ii] Emil Seckel, ‘Studien zu Benedictus Levita. I.’, Neues Archiv der Gesellschaft für ältere deutsche Geschichtskunde 26 (1901), 37-72.

[iii] Paul Fournier, Histoire des collections canoniques en Occident: depuis les fausses décrétales jusqu’au Décret de Gratien, 2 vols. (Paris, 1931), pp. I: 259-61.

[iv] Wilfried Hartmann, Die Synoden der Karolingerzeit im Frankenreich und in Italien (Paderborn, 1989), p. 387.

[v] De Divortio, Responsio 3, p. 130: ‘quamque, ut dicitur, etiam feminae in textrinis suis revolvunt’; De coercendo et exstirpando raptu viduarum, puellarum ac sanctimonialium, PL 125, col. 1023, c. 8: ‘Cum etiamsi illae miserrimae mulierculae veraciter adulterium perpetraverint’.

[vi]Suzanne Fonay Wemple, Women in Frankish society: marriage and the cloister, 500-900 (Philadelphia, 1981), p. 105.

[vii] Jane Tibbetts Schulenburg, ‘Female sanctity: private and public roles, ca. 500-1100’, in Mary C. Erler and Maryanne Kowaleski (eds.), Women and power in the Middle Ages (Athens, GA, 1988), pp.102-25 at pp. 115-6.

[viii] Barbara A. Hanawalt, ‘At the margins of women’s space in Medieval Europe’, in Robert R. Edwards and Vickie L. Ziegler (eds.), Matrons and marginal women in medieval society (Woodbridge, 1995), pp.1-17 at pp. 6-7.

[ix] Nelson, ‘Women and the word’  at p. 57.

[x] Elina Screen, ‘An unfortunate necessity? Hincmar and Lothar I’, in Rachel Stone and Charles West (eds.), Hincmar of Rheims: life and work (Manchester, 2015), pp.76-92 at pp. 79-80.

‘I, Dado’: the politics of commemoration in Verdun

Today, the eastern French city of Verdun is best known in Britain for its role in the First World War. That association is even stronger in France, where the Battle of Verdun occupies the symbolic place equivalent to that of the Battle of the Somme in the UK. As such, the town is at the heart of the current state-supported programmes of commemoration.

But Verdun has of course a longer history – and what’s more, the politics of its commemoration go back a lot further than the twentieth century, as I’ll be talking about at a conference in Gent later this week, on ‘Bishops in the Age of Iron’.

In particular, I’m going to discuss a remarkable document written in the year 893 by a bishop of Verdun named Dado (you can read my  English translation of it here as a pdf). Known as the ‘Memorial of Bishop Dado’, it’s a short first-person account of Verdun’s history, and of Dado’s place in it. In other words, it presents an early medieval bishop’s own view of history, both personal and institutional.

Bishop Dado’s text is fascinating for what it has to say about the importance of aristocratic family consciousness in the early Middle Ages, and for the prominence of Carolingian kings too. Dado was proud that he was the nephew of the preceding bishop of Verdun Berhard (‘my uncle’, he reminds the reader several times), and in a short text he manages to cram in six Carolingian kings, all mentioned by name.

But Dado’s text is also interesting for what it doesn’t say. The absence of the treaty signed in Verdun in 843 that broke apart the Frankish empire is maybe understandable, since Dado only begins his account with Hatto, Verdun’s bishop from 847. But the lack of any reference to Bishop Hatto’s close involvement in the royal divorce scandal that rocked the Frankish world in the 860s is more striking.

Bishop Hatto had been closely involved helping King Lothar II secure his divorce so he could marry Waldrada, for which the king amply rewarded him with lands. But when things began to go awry in the divorce process, the bishop seems to have reassessed his priorities, building bridges instead with the fiery pope Nicholas.

A generation later, Bishop Dado celebrated Hatto’s success in acquiring property for the church of Verdun, but he evidently preferred not to mention the political context behind it. And he doesn’t mention popes at all – not because they hadn’t had an impact on Verdun, but because that impact didn’t fit the story he wanted to be told. Nor for that matter does Dado mention the contested circumstances of his own election (the details, as a result, are rather murky).

Dado, in other words, was choosing what he thought should be publicly remembered about Verdun, and skirting round a difficult past. His text may be short, but it’s a carefully fashioned remembering nevertheless, notable for what it misses out as much as for what it contains.

Really, that’s not surprising:  commemoration – that is, remembering in its organised forms – is always a bit about forgetting, if only because you can’t emphasise all of the past at the same time. It may seem ironic that today’s symbol of official remembrance, the poppy, chosen for its links to the battlefields around Verdun,  is also the plant that produces the drug most closely associated with obliviousness – but in another sense perhaps it’s quite appropriate.

National commemorations are of course important, and in this case a fitting tribute to the tens of thousands of men who died in the battlefields around Verdun. But there are different ways of remembering the past, and different pasts to be remembered.  Dado’s Memorial reminds us not only of the city’s longer history – a history that inevitably tends to be overlooked – but also of how the act of commemoration itself has a deeper history to be explored.

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Translation of Bishop Dado of Verdun’s Memorial (pdf).

Image: Richard de Wassebourg’s edition of Dado’s text.

The Church, the State, and the Special Place of Religion

Over the last six weeks on Wednesday lunchtimes in Sheffield Cathedral, a range of speakers have taken us from Old Testament Israel to discussions taking place right now about the place of Sharia Courts in British society. In this sixth and final talk in the Religion and Law series, ‘Church Establishment in a Global Context’ by Prof. David McClean, many themes raised before emerged once again.

The established nature of the Church of England is often seen as an anomaly – something out of step with the rest of the world, and thus dated and in need of change. This criticism declares that the links between the Church and the crown are ill-suited to the diversity of religions which now form a part of the United Kingdom.

In England, these links between the Church and the crown go back to the Act of Supremacy in 1538. The Act made King Henry VIII the Head of the Church, so it was his right to elect bishops, deans and some vicars, and to ratify any decisions made at a general synod. Today, royal assent for Church appointments and new pieces of law is still needed. The ‘masterly inactivity’ of the Tudor monarchs in retaining the original settlement of the 1530s still has echoes in how the Church of England is run in the present.

But this relationship between church and crown is not entirely unique, nor only associated with England. David McClean highlighted a number of examples where the church and the state work together. The Danish Church, for instance, is so  entwined with the crown that it is effectively an arm of the state, run by a “Minister for Ecclesiastical Affairs”.

In Greece, although the Greek Orthodox Church is technically the ‘dominant’ and not the ‘established’ Church, it’s still heavily state funded. Even in France, where the relationship between the Church and the State is probably the most hostile, in some areas, such as Alsace-Lorraine, the Church still receives favourable tax benefits and direct financial support.

The nature of the established church, or rather the place of the church and religion across Europe, highlights a key theme across this series of talks: that of the often special relationship of religion in law.  The interlocking of the Church of England and the crown as described by David McClean recalls the close connection of Christianity with the Roman Empire and how their development became closely entwined; but also the special position of clerics within the law of England in the twelfth and thirteenth centuries and how this ‘benefit of clergy’ continued to have resonance throughout Europe into the modern era. Another example is the intrinsic nature of Islamic law to the life of Muslims and how it guides their lives and their communities, and thus becomes a part of secular laws and systems.

The relationship between religion and law, between religion and the state is thus an old one that echoes down the centuries, and remains an area of debate today over the place not only of the Church of England but of all religions and laws in the UK.

And that’s not surprising: because religion isn’t a static entity. Throughout history, it has worked alongside secular laws, as well as created its own rules. Different communities create their own laws to define them. It’s the interaction of individual religious groups and their laws with that of secular law which shapes the societies we have today: and the societies we’ll have in the future.

***

Image: Sheffield Cathedral

Sharia Law and Contemporary British Society

How do Sharia councils in the UK operate now – and how should they operate in the future? In the week the long-awaited UK parliamentary inquiry into Sharia Councils began,  the fifth speaker in the Religion & Law series, Imam Sheikh Mohammed Ismail, provided an introduction to Sharia Law and its implementation in Britain today. His talk showed how the question of the right relation between religion and law is still, in this respect, very much alive and kicking in the UK.

Sharia is the body of Islamic law that works within the public and private aspects of Muslims’ lives, or those who live in a legal system based on Islam. The implementation of Sharia Law varies from place to place, and is not always fully applied even in those countries where it operates as the main legal system.

Sharia is based upon five sources in the Islamic tradition.

  • The Quran is the core text for moral and judicial laws within Islam, and is understood as being the word of Allah. It is split into two sections: the first, from when the Prophet Muhammad was in Mecca, is mainly about beliefs; the second is from when the Prophet was in Medina and is about laws and the organisation of a society of believers.
  • The Sunnah, also known as the Hadith, details the sayings, deeds and silent approval of the Prophet. Where the Quran lays out beliefs and morals, the Hadith explains how they can be put into practice.
  • The three remaining sources that come together to create Sharia Law are the Ijma, which means the collective consensus of scholars or the community on a point of law that is not clarified or explained in the Quran or the Hadith; the Qiyas or analogical judgement,  when a case emerges that is not in the Quran or the Hadith but a judgement is made based on an understanding of these two sources (an example is the prohibition of alcohol in general on the basis of the Quran’s prohibition on drinking wine); and finally the ljtihad, analogical judgement used when the Quran, Hadith and Qiyas have not already provided an answer to a case.

So Sharia Law derives from key holy texts and traditions within Islam and is then translated into four main areas: beliefs and rituals, business and finance law, social and marital law, and penal law.

In the UK, there are currently around 30 Sharia Councils, which mainly deal with marital and financial disputes. Those who sit on them are predominantly male scholars who are experts in Islamic law. These councils have no clear standing in UK law, but in practice their decisions are viewed as binding by many within the Muslim communities they serve.

The ongoing parliamentary inquiry is seeking to address the role of the councils, considering whether either to include Sharia advisors in British family courts, or to formally acknowledge the role that Sharia Councils play in Islamic British society. That would in effect make these courts legally recognised arbitration tribunals – in which case the government would regulate how they work, for instance by requiring at least one woman to be on each council, and setting minimum standards of training in UK law as well as Islamic law.

Over the course of previous talks, we’ve seen how accommodations between religion and law can work to increase separation (for instance, separating Jews from gentiles) or alternatively can enhance community cohesion (for example, inadvertently creating networks of exiled clerics in the Roman Empire) – and sometimes both at the same time, as when the separate legal treatment of clerics and laymen ultimately served to strengthen the overarching integration-through-difference worked by the medieval Church.

So when parliamentarians wonder over the coming weeks about how best to integrate religiously-based difference into legal frameworks in the UK in the case of Sharia law, they’re dealing with an issue that’s absolutely contemporary – yet one that also has a very long history behind it.

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The next and final talk in the series is on Wednesday 9th December at 1:15pm in Sheffield Cathedral, where Prof. David McClean will be discussing ‘Church Establishment in a Global Context’.

Image: Wikicommons – Central London Mosque.

Religion, Law, and Confusion in Early Modern England

Indecision, compromise: both seem to be the order of the day in British politics. From indecision over the triggering of the EU’s ‘Article 50’ to the decade-long discussions over Heathrow’s third runway that seem to run and run: in the realm of politics, clear and definite decisions just don’t seem to be forthcoming.

This though is nothing new for the English political system. In the fourth talk in the Religion and Law series, Prof Anthony Milton took us back to Early Modern England and the arrival of Protestantism – and to a remarkable political, legal and religious fudge.

King Henry VIII’s divorce from Catherine and Rome, and the subsequent creation of the Church of England, led not to a complete abandoning of Catholicism and its influences, but rather to a compromise. The Henrician Compromise allowed the existing Catholic canon laws to remain valid until such time as new law could be made, provided only they didn’t go against the law of the realm and the prerogative of the King.

During the reign of Henry’s son Edward VI, new laws were actually drafted. In 1552-1553, Thomas Cranmer created a body of Protestant laws, called the Reformatio Legum Ecclesiasticarum, as part of a plan for a radical overhaul of the Church. But due to Edward’s early death, the Reformatio was never implemented. And his eventual successor Elizabeth I adopted a policy of ‘masterly inactivity’.

That meant the old laws stayed on the books. And the result was a religious law system in a state of confusion that competed with and clashed with the common law courts. Confusion over what could be discussed in what court led to abuses and delays within the legal system. The Reformatio was re-published several times in an attempt to clean up this ‘unholy mess’, but it was never implemented.

But what if it had been? What would the Church of England have looked like if the Reformatio Legum Ecclesiasticarum had been given the force of law? England would have looked very different.

For instance, a key aspect of the Reformatio concerned moral discipline. Anyone found guilty of adultery or of committing serious cruelty towards their wife could be punished with perpetual banishment and excommunication. This excommunication was to be enforced not just by the bishop, but by the local community as a form of social exclusion.

The excommunicate could be reconciled to the Church, but such a process would also have involved the local parish community. Under the Reformatio, the hierarchy of the Church would have been more flexible, with the bishop working alongside the clergy. In short, the implementation of the Reformatio would have changed the way that religion and law worked, devolving power to the local community, rather than to the law courts.

The confusion in Early Modern England due to the inability to define what was meant by Protestantism and Protestant law can still be seen today, as Catholic canon laws are still – remarkably – an element of the English legal system. But such confusion also provides interesting parallels with the political situation of the present, and the position that England once more finds itself in.

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The next talk in the series is held on Wednesday 2nd November at 1:15pm in Sheffield Cathedral, where Imam Sheikh Mohammad Ismail will discuss ‘Sharia Councils in Contemporary British Society: Conflict or not?’ For the full programme of talks see here.

Image: Archive.org (the Reformatio legum ecclesiasticarum  Londini, Impensis Societatis Stationariorum, Thomas Fisher Collection, University of Toronto)

 

Getting off the Hook

This month, debates over the UK government’s  plans to make troops exempt from human rights laws whilst on service have highlighted how not all groups are treated the same under the law in modern society.  But who has immunity from the law, and where does the concept come from?

In last week’s talk in the Religion and Law series, Dr Charles West discussed how clerics in the Middle Ages were exempted from the conventional laws which bound society.

The reign of King Henry II of England in the twelfth century led to the extension of royal power deep into the counties and shires. A key expression of this authority was the bringing of royal justice within reach of the English people. However, an impediment to this extension was the exemption, on paper anyway, of clerics from the king’s laws.  Rather than being treated by the kings’ judges for their crimes, they were to be tried by other clerics.

Henry II’s desire to remove clerical exemption led to arguments with the Archbishop of Canterbury, Thomas Becket. Becket argued for clerical exemption, stressing that it was the right of clerics, going back to the Roman Empire, to be tried by their own peers and not by the judges of the royal court.

The disagreement between the two contributed to Becket’s long exile. A tentative reconciliation was short-lived, for in 1170 Becket was assassinated by over-zealous royal followers. It was Becket’s death that forced Henry to make the compromise that allowed for clerical exemption from his laws.

The exemption of clerics from royal law had implications for the clerics who committed the crimes, but also for the system which ruled the land. The separation of the Church from the judicial system marked out the latter as secular, separate from ecclesiastical affairs – though twelfth-century government and kings could hardly be described as not being religious. The twelfth-century ‘benefit of the clergy’ then saw the institutionalisation of two separate systems – one for the laity and one for the clergy.

The ratifying of clerical exemption into English law was to remain influential until the nineteenth century, though by this point the ‘benefit of the clergy’ had come to be applied to many first time offenders rather than the clergy alone. Today the calls to prevent soldiers being accountable to the European Court of Human Rights (ECHR) would place them in a parallel system to that of conventional law. Exemption from the law still has implications in the present.

However,  ‘benefit of clergy’ shouldn’t just be thought of as a dry legal principle. It had real consequences for people in the Middle Ages,  as one woman in Lincoln in 1202 was to discover. Mabel was an ordinary woman who wanted justice for the murder of her husband, Godwin. However, with the disappearance of the murderer, Alred, Mabel was left to accuse Alred’s family (whom she was then forced to admit had nothing to do with her husband’s murder), and the cleric William, who had held her husband down as he was killed.

William did not deny having played a role in Godwin’s murder. But he did not have to, as because of Becket’s death some thirty years before, he was exempt from the laws of the secular royal court. The worst punishment he faced for his crime was being defrocked – that is, losing his clerical status. So, William was passed over to the bishop’s officials,  and that is the last we hear of him (the records for clerical trials have not survived).

Mabel’s situation was tragic, but not unusual. The summer of 1202 in Lincoln saw well over 500 cases brought before the king’s judicial envoys. Many of the cases brought before the court were violent in nature – 75 of them being murders. This violence was not simply carried out by the laity but by clerics as well – it was only the law that treated them as separate, not society.

So Mabel and William’s story reminds us of how the law and its relationship with religion can have an effect upon everyday people. The development of religion and law in the last three talks has shown us the pathways that religion and law have taken in different ways, but Mabel, the murder of her husband, and the favourable treatment of one of his murderers reminds us of the very human impact of law’s intersection with religion.

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The next talk in the series is on Wednesday 26th October at 1:15pm in Sheffield Cathedral, where Prof. Anthony Milton will discuss Religion and Law in Early Modern England. For the full programme of talks see here.

Exile: Creating Orthodoxy in the Roman Empire

Exile: the banishment of a person or group from their home country, typically those who pose a threat to government and/or society. Exile has often been used by successive leaders and states to remove those who contradict their authority through words and actions. For the Roman Emperors of the fourth and fifth centuries, the use of exile was no different.

Following on from last week’s Religion & Law talk, on Weds 12th October Dr Julia Hillner traced the development of Christianity in the Roman Empire, and how the use of Imperial Law had unintended consequences for the establishment of Christian orthodoxy.

In the fourth century, the Roman Emperors exiled hundred of Christian clerics to far-flung and remote regions of the Empire (including the Isles of Scilly). The intention was to bring about their cultural alienation. But because their exile was within the Empire itself, many clerics were able to continue to spread the opinions for which they had been exiled.

A good example of this is provided by Athanasius of Alexandria. Athanasius had led the fight against a cleric named Arius, who argued that Christ was subordinate to God the Father.  Athanasius succeeded in having the Council of Nicaea in 325, called by the Emperor Constantine, condemn Arius’s beliefs as heretical.

Many people remained however attracted by Arius’s beliefs, and indeed Athanasius himself ended up being exiled. But Athanasius, and others like him, were able to make use of their exile to create new networks of support, particularly in the West of the Roman Empire. So when Arius’s beliefs were discussed again some sixty years later at the Council of Constantinople in 381, there were far fewer people willing to speak up for them. Athanasius’s exile had led to the spread of ideas, an unintended consequence of a law that was supposed to stop ideas from travelling, not promote them.

In the fifth century, however, the imperial government and Church Councils were able to wield more control over exiled clerics, as the example of Nestorius of Constantinople demonstrates. Nestorius argued that Jesus had two natures: one divine and one human, and that it was his human nature that was represented in his life on earth.

His arguments tapped into a great debate within Christianity, but because of disagreements with Cyril, the Bishop of Alexandria, he was condemned at the Council of Ephesus in 431 and initially exiled to his monastery at Antioch. But continued accusations against him led him to be exiled to numerous other places in Egypt, under ever closer surveillance by the Bishop of Alexandria, throughout the East until his death in circa 450. Unlike Athanasius, Nestorius was less able to use his exile to spread his ideas beyond his core supporters located in Syria. As a result, Athanasius’s theology is now fundamental to western Christianity, whereas Nestorius’s isn’t.

Exile then was a way for the Church and the Roman Emperor to attempt to create a Christian space and exclude anyone who did not agree. The exiling of clerics helped to shape the nature of Christian orthodoxy; an orthodoxy that would continue to define Christianity up to the present day.

For more information on Dr Julia Hillner’s work,  you can read about her project here.

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The next talk in the series is on Wednesday 19th October at 1:15pm at Sheffield Cathedral, where Dr Charles West will discuss Clerical Exemption from the Law in the Middle Ages. For the full programme of talks, see here.

A research project blog by Charles West (Department of History, Sheffield)