Justice and mercy

Moral theology and the exercise of law in twelfth-century England

Philippa Byrne

• Publisher: Manchester University Press
• Year: 2018
• ISBN:
  9781526125361
• Edition: 1
• Topic: Historia
• Subtopic: Historia europea medieval

This book examines one of the most fundamental issues in twelfth-century English politics: justice. It demonstrates that during the foundational period for the common law, the question of judgement and judicial ethics was a topic of heated debate – a common problem with multiple different answers. How to be a judge, and how to judge well, was a concern shared by humble and high, keeping both kings and parish priests awake at night. Using theological texts, sermons, legal treatises and letter collections, the book explores how moralists attempted to provide guidance for uncertain judges. It argues that mercy was always the most difficult challenge for a judge, fitting uncomfortably within the law and of disputed value. Shining a new light on English legal history, Justice and mercy reveals the moral dilemmas created by the establishment of the common law.

1

Introduction

Renaissance and crisis

This book is concerned with justice and mercy, with how twelfth- and early-thirteenth century English judges wrestled with the requirement to be both just and merciful in their judgments. It that sense, it represents a study of one particular aspect of the medieval judicial office – the point at which impersonal law and personal virtue met, collided and conversed. But justice and mercy are vast ideas, and such a broad theme must reasonably invite the questions – why England; why this period? One could, after all, quite easily make the case that heated intellectual argument about the nature of justice is – if not a perennial problem – hardly a phenomenon discovered in, or exclusive to, twelfth-century England.¹

The choice of twelfth- and early thirteenth-century England as the subject for this study is justified on two grounds. The period c.1100–c.1250 (the ‘long twelfth century’) in England saw two key and coinciding changes.² The first was the rise of scholasticism across Northern Europe, and the set of intellectual and cultural changes accompanying the proliferation of schools and the beginnings of the scholastic technique, often fitted under the umbrella term of the ‘Twelfth-Century Renaissance’. The profound changes in the way in which learning was approached and texts were read placed tremendous conceptual pressure on the term ‘justice’ (iustitia), and its relative ‘mercy’ (misericordia). It generated a level of debate which – arguably – had not been seen for eight centuries. Those discussions primarily concerned how a judge should set punishment, and how, where and why mercy fitted into the judicial office.

The second development, equal in importance to the trans-national phenomenon of scholasticism, was the ‘English’ change: the emergence of systematic law, or law with systematic aspirations, associated with Henry II’s legal reforms. Although similar legal transformations were set in motion across Europe in the latter part of this period, English common law can still fairly be thought of as distinct and ‘early’ in its development, relative to its European counterparts.³ This reorganisation of law is also packaged up with many other developments under the term ‘Renaissance’.⁴ But whether one describes it as a legal renaissance, or as a process of the professionalisation and systematisation of law, the law changed. In England, legal changes created the conditions and space for a ‘crisis’ of a conceptual and ethical kind: uncertainty regarding the moral duties associated with the office of the judge, and, most particularly, how a judge ought to exercise mercy in his judgments. That question became a matter of particular political and ‘public’ concern for English authors throughout the twelfth century. In the context of a judicial system aspiring to some level of uniformity and ‘national’ coherence, seemingly abstract questions about what justice should look like, and how mercy was to be defined, took on urgent practical relevance.

This book is, in part, an attempt to explain why defining justice, and its relative, mercy, presented such a complex problem for English moralists and judges in the period between 1100 and 1250, and how the struggle over those two terms was fundamental to the way in which the role of the judge was constructed. Of course, that problem was not static and unchanging, and over the course of a century and a half, its dimensions changed. It took on new shapes and was encountered in different settings. Criticisms of King Stephen’s excessive use of mercy, for example, functioned in quite a different political context from later denunciations of the ways in which King John punished malefactors without mercy or abused the system of royal pardons. There is, however, a constant theme which draws these complaints and commentary together: an awareness that mercy and justice do not fit easily together, and a judge is obliged to think carefully about their relationship before giving judgment.

Determining how a judge should behave, and how he⁵ should exercise his judgment, was not a question confined to England in this period. But the English dimensions to this problem are distinct. This is first due to the peculiar lineage, form and content of the common law itself, which emerged in a way markedly different from its Roman-law-derived European contemporaries. Secondly, the historian’s discussion of how ‘English’ judges engaged with moral theology must, by necessity, follow different lines from those discussing continental judges. The thicket of historiographical assumptions and myths which have grown up around the common law, emphasising its isolation, particularism and even ‘native purity’, demand a treatment of their own.

Thus, before one can even approach the medieval law itself, one must consider exactly what historians mean when they talk about medieval justice and medieval mercy. To offer a history of medieval justice can mean to examine the arguments forged in the medieval schools – discussions of soteriology, sin, virtue and the just life, finding its apotheosis in Aquinas’s pronouncements. Alternatively, it can take on a resolutely practical cast, with historians following trails of administrative documents, court records and procedural manuals. In short, a history of medieval justice can trace a history of competing concepts and definitions, primarily moral and biblical; or of actions encompassing the devising of laws and their application. How one defines and approaches justice, therefore, conditions what we look for as evidence of medieval mercy: it is either an ethical and personal choice relating to medieval ambitions to live the virtuous life; or it is a question of searching for pardon rolls that will show how much it cost to purchase forgiveness for a crime from the crown.

Because mercy springs from justice, this book begins from justice. Both intellectual history and (English) legal history have written their own histories of justice, and both disciplines have broadly differing views about the most significant moments of change in the way that medieval people thought about and used justice. There are few, if any, points of contact between the two chronologies. The intellectual history of justice charts shifts in thought and interpretation which have never been mapped onto a legal history of justice. That strict division between theory and practice has led to the assumption – usually implicit – that scholastic discussions about moral virtue had no connection to English legal practice. But, as this book argues, twelfth- and thirteenth-century judges thought very hard, very long and very carefully about both the operation of justice as a virtue and the realisation of that virtue of justice in legal practice. The place where concerns about virtue and the practical giving of judgments most intersected was when those men of the law were required to deal with the issue – or, perhaps more accurately, the problem – of mercy. To put it simply, this book argues that, first, when it came to determining the judicial punishment of offenders in twelfth- and thirteenth-century England, theological thought informed legal practice; and, secondly, that theological modes of thinking drove a sophisticated and long-running debate about judicial ethics. These, in themselves, may not appear to be particularly challenging or surprising statements: that it may prove so is testimony to the very sharp separation of the modern disciplines of intellectual and English legal history. I have tried to strike a balance: the first half of this book draws on the work of theologians and moralists – primarily those working in England but including those active across western Europe – in order to illustrate the depth and complexity of the discussions of justice, mercy and law taking place in the schools. The second half focuses on examples of judgment and judicial dilemmas within the English polity.

Justice and scholastic thought

The contemporary intellectual history of the medieval concept of justice was shaped by explanatory frameworks devised in the first half of the twentieth century. Modern studies take their cue from the work of Odon Lottin’s magisterial Psychologie et morale aux XIIe et XIIIe siècles, an exhaustive exploration of scholastic moral philosophy, published in six volumes between 1942 and 1960.⁶ Lottin’s account of the development of scholastic moral thought was characterised by a clear teleology, where twelfth-century thought served to lay the foundations for the achievements of truly systematic thirteenth-century scholasticism.⁷ Lottin’s discussion of ‘justice’ in Psychologie et morale is in fact a slightly modified version of an article from the 1930s.⁸ That article offers a similar narrative: twelfth-century analyses of the virtue of justice proceeded only in fits and starts. ‘Justice’ was only subject to a fully penetrating analysis with the thirteenth-century schools’ re-engagement with Aristotle. This theme is evident even in the proleptic title of the original article – ‘justice … avant l’introduction d’Aristote’. It was only when scholastic thinkers had access to the Aristotelian categories of ‘general’ and ‘particular’ justice that they were able to give a full account of justice, and fully explain the relationship between a just (virtuous) life and specific (judicial) acts of justice. By contrast, discussions of justice before the mid-thirteenth century were to be characterised as, at best, idiosyncratic, and, at worst, chaotic and disorganised, a mishmash of borrowings from classical texts, lacking any compelling structural principle.⁹ Subsequent historians have reiterated this idea: while there were flashes of brilliance in twelfth-century thought about justice – perhaps, most obviously, Abelard’s ethics of intention – these ideas never entered the main corpus of scholastic thought, and left little legacy.¹⁰ Much of the twelfth- and early-thirteenth century is characterised as frenzied discussion without lasting influence.

More recent scholarship has followed the lines laid down by Lottin, enquiring into the classification of iustitia in scholastic summae, quaestiones and works ‘de virtutibus et de vitiis’. The focus has often been to place justice in relation to its fellow cardinal virtues, prudentia, temperantia and fortitudo.¹¹ Lottin’s argument for a fundamental thirteenth-century shift has been upheld by, among others, István Bejczy, who has argued that the thirteenth century saw a changed conceptualisation of the cardinal virtues, with the view that virtue was a mental habit supplanting the opinion that virtue resided in the will.¹² Whereas twelfth-century authors argued that justice served an important role because it regulated the will, thirteenth-century thought argued that justice did not control its own mental power.¹³ The thirteenth century conceived of only three faculties of the mind: reason, controlled by prudence; the irascible appetite, under the power of fortitude; and the concupiscent appetite, moderated by temperan...

Table of contents

• Cover
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• Figures
• Tables
• Acknowledgements
• Abbreviations
• Prologue: the vanishing adulteress
• 1 Introduction
• 2 The problem with mercy: the schools
• 3 The problem with mercy: the courts
• 4 Twelfth-century models of justice and mercy
• 5 Who should be merciful?
• 6 Judgment in practice: the Church
• 7 Histories of justice: the crown, persuasion and lordship
• 8 Love your enemies? Popular mercy in a vengeance culture
• 9 Conclusion
• Bibliography
• Index