It’s just struck me that I’m badly behind with seminar reporting. In fact I managed to jam the Catalonia trip between two seminars that had important similarities: they were by people for whose work I have lots of respect, they were both working on dispute settlement, and they were both studying a period later than I usually consider interesting. There the similarities more or less ended…
On 4 March Professor Chris Wickham was addressing a joint gathering of the Institute of Historical Research‘s Earlier Middle Ages seminar and the London Society for Medieval Studies, and he was talking to the title, “Getting justice in twelfth-century Rome”. To me this was worth it mainly for the stories of years-long lawsuits, flagrant disregard of the results, corrupt judges and obdurate defendants that most medieval dispute studies can bring up; the actual conclusions didn’t seem terribly transportable as the story was mainly that Rome was very unusual. The particular oddity that was being looked at here was the way that a dispute in Rome might be taken either to the Pope, or, after about 1150, to the Senate. Neither seems to have been very good at settling things, taking a very long time to produce verdicts that then couldn’t be enforced, and which might be appealed from one court to the other. It’s difficult to prove a judicial verdict is ever enforced, of course, but here we have a much higher incidence of preserved returns to court, for a new sentence after one had proved ineffective, than we get from elsewhere, and that must at least mean that such records were likely to be needed in the medium-term, which in turn speaks for an inconclusive system. What didn’t really become apparent was why the Romans persisted in using the system, although there was of course the possibility opened that mostly they were not and we were seeing only cases that people couldn’t resolve any other way, which might in turn explain why so few were settled… But there are circles here, though Chris’s work will no doubt slowly square them.
Then soon after I got back, 19 March, there was Professor Stephen White, talking to the Earlier Middle Ages seminar to the title, “A Paranoid Style in Medieval Political Culture? The Taste for Legal Melodrama in 12th- and early 13th-century France and England”. I know Professor White’s work primarily through having reviewed a volume of his collected papers, and that gave me an impression of a very hard-nosed attitude to dispute records leavened by an interest in the actual characters in the disputes, which I can generally get behind. So I was slightly surprised to find I was listening to a paper about twelfth- and thirteenth-century romances, in which Professor White has found a pattern of disputing that he thinks tells us about political culture in those areas, especially under the Angevins. The pattern was basically that someone is falsely accused by a traitor, who takes in the corrupt and febrile king (often Arthur or Charlemagne) and is only thwarted by sane old counsellors insisting that the matter be taken to trial by combat, in which the wronged hero wins so that the balance between corruption and honour is, often briefly, restored. These stories do seem to have been popular, or at least, there seem to have been a lot of stories with these moments in, but disagreements from the floor centered on the variation between the stories in which they appeared, how important the dispute was to the rest of the story, how much extra diversity could be found in the pattern when you started to look, and of course, whether literary evidence like this really connects to the world. To the last, Professor White suggested that in the conflicts that rolled up the Angevin Empire before Philip Augustus, actually things that put tests of loyalty and misfortune from faulty rulers at the centre of their themes might have found an unsually sympathetic audience, but I still personally left thinking that little had been proved except that there are a lot more medieval romances than anyone can be bothered to read except when looking for particular motives. But is gutting literature for use as a context-less data-bank ever really sound history? It wasn’t as brute as that, but it was questionable, I thought, whether this could ever really tell us much about what people did, or even about the stories.
A Corner of Tenth-Century Europe 
I have been following your blogs about Feudal Transformation with great interest. It is pleasing to find an online critique of Professor White’s processualist “data-bank”; a peculiar attempt at re-writing the sociojuridical history of post-Carolingian France using loquacious material from a handful of places (often monasteries near to the River Loire), imposing abstract meaning upon this material, and then refusing to place it in any wider context. White has devoted much of his time, over the past decade, arguing that there probably wasn’t a ‘Crisis of Fidelity in c.1000’ – referring to Thomas Bisson’s mid-‘90s revival of the Dubian model – whilst pioneering this novel approach to understanding legal discourse from the ninth century onwards. It is an approach which thoroughly deviates from the structuralist framework proffered by White’s European counterparts, because individual documents can only be read on their own terms and must, under no circumstances, be used to form part of a master-narrative. What we are left with, from the present perspective, is an unsatisfactory historical method which is dangerously immune from criticism (how can one possibly criticise an individual’s response towards several decontextualised documents?) That said, I am interested in reading White’s work on paranoia in twelfth and thirteenth century courts when, or if, it is published!
Hullo, and thankyou for the thoughtful comments. I have a lot of respect for Professor White’s work, as you’ll perhaps have seen from the review I linked to, but this bit did strike me as problematic. I have some sympathy for the approach of studying disputes through literature—after all, even legal dispute texts proper are constructed narratives—but the weakness is the link to the master narrative. I think that the approach demands that there be such a link, or else this isn’t really history, but its nature is much more complicated and disputable than this paper was really happy allowing.
I agree that it is important to find alternative methods of studying disputes and the nature of the judicial process. The problem with legal charters or placita, such as those from the abbey of Cluny, is that they offer a one dimensional view of the subject. The original purpose of these documents was to provide a rough written record of what lands the abbey owned and acquired. Remarkably few serve as genuine records of dispute settlement (e.g. notitia verpitionis), and those that do tend to remain vague about the actual means by which the dispute was settled. For this reason, Professor White’s argument that Georges Duby’s “fifteen reports of judgements rendered by the court of the count of Mâcon” before c.980, were not judgements but agreements is unfounded. Some appear to be judgements (e.g. Cluny 1179) and others agreements; the inadequacy of the information makes it difficult for us to tell.
A notable benefit of the French placitum format, by contrast to the written “lawsuit” style of early England, is that it tends to be structured and fairly formulaic. In my view, we can place greater faith in documents, like placita, which demonstrate certain levels of consistency, rather than those which expose a scribe’s poetic licence (e.g. Anglo-Saxon cases). Although I have not seen or read White’s work on paranoia in medieval romances, I can imagine it to be over-complicated and highly speculative – as is frequently the case when historians consult literary sources. While I respect White for exploring new areas, his dogged anti-narrative and anti-comparative stance cannot be the way forward. My suggestion would simply be to incorporate a bottom-up analysis of disputing, with attention to means by which individual disputes were settled, into a holistic analysis of legal systems – i.e. to what extent do these disputes reflect known legal procedures or law codes, and what do they tell us about the community/communities in which they took place? The study of literary sources, if studied in relation to other documents, can play a valuable part in this process.
I have to wonder here if you’re creating a strawman. Although I would agree that Professor White’s arguments as I heard them needed to take more of the narrative context into consideration for his cases, neither here nor in his earlier work would I say that he has a “dogged anti-narrative and anti-comparative stance”; in fact no-one so keen on legal anthropology could be called anti-comparative surely. And his attention to the detail of cases in his earlier more conventional work is an example to us all. On this occasion he may well be barking up an unfruitful tree but I don’t think it’s part of any larger agenda of blinkered interpretation. You seem to be saying what White is doing on the basis of what other historians using literature have been known to do; and while I think that White could learn from the approaches of, for example, Simon Gaunt, here, I don’t think he really fits this pattern. I do agree though that this material must be considered at best anecdotal, and therefore irremovable from its larger context (i. e. the romances) before it can become part of the sort of generalisations he was making on this occasion. I don’t think this is quite the bottom-up approach you’re advocating, although that sounds like a good foundation for a Ph.D., albeit not in Catalonia where Jeffrey Bowman’s already kind of done it.
As for documents being more trustworthy when they’re formulaic, now there is a whole bundle of questions. Of course formulas are varied according to necessity; when they are abandoned entirely, that is partly a cultural shift, but is not so impossibly infrequent wherever the literacy of the scribe is sufficient for him to feel confident of improving a text. I would say that pressure to make a record conform to a formula is just as suspect, if not more so, than the literary impulse to improvement enjoyed by such a scribe, who may after all be inspired by the material he has to work with. Favouring formulaic records seems to me to be just the same kind of neutering of the anecdotal strength of our records as you condemn White for here, a kind of `safe sample’ which we can take as `authentic’ practice. But these are still constructed narratives: their message here is `this placitum ran according to custom’. Actually we have every reason to suspect that procedures were often bent by necessity, and if that is evident in the record that seems more verisimilitudinous (yes, all right, but come up with a shorter word there) to me than a formulaic record.
Take Cluny 1179, since you introduce it. Here the formula has chopped off most of what we might actually want to know. All that this is, functionally, is the record of one side’s oath. The verdict isn’t here and has to be inferred, and Rosenwein would suggest that a case like this where it must have been clear that Airoard would produce his witnesses is probably really about reminding people that Gerold and Goltrudis had some kind of claim to the land, which isn’t explained to us. I’d actually like a literary version of this so as to be sure that judgement actually took place. As it stands it could easily be argued that this was a document of an oath which Airoard then took forward to another hearing which, since the property doesn’t seem to come up again, he may well have in fact lost! This is the sort of context which White is well familiar; and this is why it was rather odd to find him apparently ignoring the context of his new source material.
I would be tempted to disagree that formulaic records have a greater potential to “chop off” what we want to know about a given dispute (I do not doubt, however, that they are constructed narratives which provide less information if, as you say, a “placitum ran according to custom”). The very non-formulaic, English charters I have recently examined are, in some ways, more impenetrable than the formulaic ones from France, arguably because the scribes writing them possessed a measure of “literary impulse”. While the English charters provide a neat(ish) description of an individual’s claim, the nature of jurisdiction is often bent by a disinterest in legal content and/or the persons involved in adjudication. The important details are therefore missing, and the reader is left to infer from what is in effect a literary text. In my opinion this notable lack of scribal formulae in the pre-conquest period, together with the relatively small number of surviving charters, makes it just as hard for us – if not harder – to study early English dispute settlement.
Hypothetically speaking, would a non-conformist/literary version of Cluny 1179 really tell us, for sure, that a judgement took place? As far as I know, the people writing these documents were not independent officers to the court but monks, whose primary obligation was to their monastery and its lands. Even if the scribe in question was allowed the freedom to write a more detailed account of the applicants’ claim, I suspect he would not have included much more information than is already there in Cluny 1179. It is of course mild speculation but, as you have already guessed, I am searching for ideas!
Re: Stephen White, it is probably wise to postpone my thoughts until I’ve re-read some of his earlier work. I’ll get back to you soon.
Well, to stick with Cluny 1179: if a more ‘literary’ version did exist, someone would have had to have an interest in writing it. That interest would almost certainly entail a claim to the property and would therefore presumably attempt to establish it. The surviving document looks to me like something that was preserved from a case proceedings to serve that purpose later, which always makes me suspicious: why don’t they have the final verdict instead? However, that’s a very Iberian perspective and I don’t know if the Lex Burgundionum created oath documents in the same way.
Your wish for charters to provide the important details of legal procedure of course supposes that there was some ideal of practice being followed at the time; but people have argued, haven’t they, that there wasn’t precisely because it doesn’t appear in the charters. I don’t know which side I’d come down of that for England, but in Catalonia I certainly, as said in the original post, incline towards believing that changes in the form of documents reflect changes in the society that’s using them. I’m not sure what those changes would be in England but perhaps you have some ideas…
England is an interesting case, I think, because recent historians – that is from Patrick Wormald to the present day – have tended to view its legal system as state-orientated down to 1066, when it is said that “conquest superimposed the French scene upon it”. For Wormald, in particular, disputes in the time of the Anglo-Saxon were settled by a fixed set of legal norms that were once ascribed to a much later period. The charters he used, however, give a slightly different picture.
First of all, they reveal a distant relationship between law and actual practice. One example is a case from the 990s in which a woman named Britwaru took violent repossession of estates that had hitherto been seized and given to the bishop of Rochester. The bishop attempted to reclaim the estates but failed because he could not provide proof of ownership. An oath, in favour of Britwaru, was then sworn before a “section of the public” at a shire meeting. In this instance, Wormald argued that the people at the meeting were merely ratifying a decision that had already been made by a public official, for which there is simply no evidence! My interpretation is that while the legal necessity for proof is doubtlessly acknowledged in the text, which is unusual in the cases I’ve examined, Britwaru’s seizure was a private one and the case itself was run according to what appeared to be non-discriminatory at the time. There are several other examples from the reign of Ethelred II which follow a similar course to this – i.e. no formal adjudication, irregularities in those witnessing and, above all, a vagueness in evidence. It suggests that pre-conquest dispute processing was anything but ideal, and actually quite similar in nature to the ad hoc, compromise settlements that Fredric Cheyette, Stephen White, and others have assigned to post-Carolingian France. A second issue, which follows on from the first, is that Wormald failed to see shire meetings as anything other than public justice in its purest, pre-modern form. We have already been exposed to the limitations of Duby’s “mallus publicus” and I think the same uncertainties apply here.
A problem I’ve noticed with the English charters is that their relative dearth makes it almost impossible to ascertain whether or not, as you say, changes in the form of documents reflect changes in the society that’s using them. There is, for instance, a vacuous period from the death of Ethelred II through to the reign of Edward the Confessor – 26 or 27 years – from which only 14 dispute settlement charters survive. The big change, as far as I can tell, came with the post-1066 introduction of the placitum, though I am sure that one can identify certain parallels between this and the earlier Anglo-Saxon format. It was, after all, the illusion of public order and process in the pre-conquest charters that compelled Wormald to map the origins of the English common law more than 150 years before the reign of Henry II.
I have just read your blog, ‘Settling disputes across three countries’. Were the examples Wendy Davies discussed all pre-1000, and did she choose Wales, Brittany, and Spain because of the Celtic connection?
It would be inconsistent of me, given what I’ve written elsewhere, to disagree with you about the English documents and their flexibility, though I believe that English charters do go rather wild in the late tenth century and are more regular before that, which is of course significant for Contentinally-aware scholars looking for documentary change. Certainly I don’t believe any more than you do in a defined court process, but let’s remember that even in Visigothic Law, which is pretty legalistic, actual court procedure, as opposed to who can witness, what time is allowable for attendance and what to do if people ignore summonses, isn’t much more defined than ‘plaintiff puts case, judges interrogate defendant, both sides asked to produce witnesses/evidence, further hearing if necessary, adjudication’. That would not only cover most Spanish cases (though there are plenty it wouldn’t) but that of Brihtwaru above…
As for Wendy’s paper, there your questions are more simply answered. All the cases were pre-1000 except some late-running Welsh ones that made good parallels, and the choice of zones was determined by the path of Wendy’s career rather than this exact paper; she’s worked on all these areas so can talk about them. I think the development sequence is that she started with Wales out of local interest, then looked at Brittany because it was related but there was more evidence, and then started looking at Spain because, though there was no connection (the British emigrés didn’t leave us any charters) there was even more evidence. Also, the better weather may have helped :-)