It’s back to work for the UK’s academics tomorrow, in what for me will be one very frantic day of teaching followed by another one of marking, but then, unless some substantial progress is made in negotiations, we’re back on strike again on Monday. There is therefore time now, but maybe not later, for me to deliver on the first of the posts I just promised, by reactivating a long-dormant series with a post about a visit to the Earlier Middle Ages Seminar at the Institute of Historical Research, like I used to do so much long ago. On this occasion the beneficiary is Professor Jennifer Davis, who had at this point just published an important book on Charlemagne’s government and had come to talk to us with the title, “Rethinking the Frankish Capitulary”.1 This is stuff that affects how the Frankish kings who separated Catalonia from the rest of the Iberian peninsula ruled there, so I care enough to make a post out of it so as to think more about it.
Now, if you’ve never met the word ‘capitulary‘ that is not a reason to feel ignorant, because it’s arguably a word without a solid definition and is only used by scholars of the line of Frankish kings we call the Carolingians, but what they usually mean by it and what was meant here is documents of legislation arranged as headings or chapters, in Latin in capitula. This was how the rulers of the Carolingian kingdoms liked to issue new law, in collections of points that had needed ruling on at the same time. Some of them are more programmatic, when there was a policy at work that means lots of the laws connect up, and some are just the business of that particular assembly as it fell out.2 The ones that actually were issued in assembly, however—which by no means everything that’s ever been called a capitulary was—present a paradox, which is where this paper started: these are, as far as we can tell, legislation that was actually given out from royal assemblies, but the texts we have of them are all private copies, often slightly varying, with no clear sign that there was actually an ‘official’ text of the rulings anywhere. What kind of law is it that generates so much text but doesn’t actually stick to its own letter?
There have, hitherto, been two fairly broad ways out of this particular difficulty and one newer, narrower one. The older one of the broad two is simply to assume that the Carolingians were way more ambitious in their legislation than was actually practical, that the ideals of the state outstripped its actual capacity.3 This seems necessarily to suppose that the Carolingians themselves didn’t know how well their own state worked, and while communications and knowledge networks were surely imperfect, then as now or more so, scholars have been less and less happy over time to assume in this way that we know better than our subjects did. The alternative broad way, therefore, associated forever with the name of Patrick Wormald, is to argue that the kings knew perfectly well that what they legislated probably wouldn’t actually happen but the point was to behave in a royal or imperial fashion by issuing law, by being seen to know what the good of the kingdom was and how it should be achieved, and in general to create the impression that royal government was doing what it should and living up to expectations. In this view legislation was primarily performative, and the number of texts we have of Carolingian legislation just indicate that the performance was well received.4
In the last decade or so, however, law has become part of the material for a developing school of thought that says that although the Carolingians proclaimed a rhetoric of reform and correction and standardised a lot of texts, including those of the big traditional lawcodes that helped to define many of the identities within the Frankish Empire, uniformity may not have been the goal, as opposed to uniform participation, within which a certain amount of variety was not only tolerable, but maybe even necessary so as to be able to test different possible solutions to problems.5 By this reckoning the point of the capitularies was not to get everyone dancing to the same tunes, but to make it clear that the band was playing and they should listen. This was roughly where Professor Davis located her argument, but she did so only after touring us through a number of difficulties with any of the three solutions so far argued, based on a really good study of the manuscript evidence. For instance:
- Charlemagne’s later capitularies repeatedly stress that everyone should know and even discuss what was in the laws, but there was still apparently no standard text or content for any collection of them; his son Louis the Pious had one made, but he did not.6
- Apparently there were written copies in circulation, as well as the reports of the messengers who carried them, because some of the capitularies instruct their recipients to make copies of them upon receipt—so why don’t we have many copies that match? We have some, but few.
- If you actually did have access to all the capitularies of the reign, they’d contradict each other quite a lot on some issues, so what were people supposed to learn?
Professor Davis’s overall suggestion was that, while details were sometimes important to know—and one particular capitulary was so keen on that that it required that a copy be made of itself and then signed by all present, and it’s possible we still have one copy of a lawcode – not a capitulary – that shows this happening, as you can see below—what the king was really after was a general knowledge of ‘the law’, writ broadly, in all its contradictory possibilities, whether canon law, Biblical law, ‘Frankish’ or other ‘ethnic’ law or the capitularies; as long as the royal right to be authoritative was recognised, and people did this work to discuss and know the law because the king required it, the fact that this might create the crazily-paved pattern of slightly different selections, determinations and versions of ‘the law’ all across the empire might not matter; people using it would still be doing right at royal behest.
I think this does help us squeeze through that narrow gap of conformity-not-uniformity while still recognising that these texts appear to require specific behaviour of their audience, but the contradictions from our point of view don’t entirely go away with this answer, and there was some pushback in discussion from well, me and Susan Reynolds, and I don’t like to consider myself the awkward squad but—no, that’s probably a lie actually; I kind of do. Anyway; Susan thought that it was more likely that the texts existed to provide governmentalised sanction of what people were already doing, so reflect steady practice rather than royal direction of change, to which Professor Davis reasonably argued that some of the texts are explicit about innovating, which would seem to lose some of the benefit of confirming custom if that’s what you were doing; and I argued from there that the centre sometimes aimed to change ‘custom’ by contradicting the big lawcodes which it itself had compiled, so clearly had a programme of sorts, and wondered whether there were limits on the variation the centre would allow. To this Professor Davis argued that considerable autonomy of interpretation would have been allowed to those making legal judgements, especially counts and judges, but that they were expected to be making those judgements on the basis of knowing this aggregate of usable law. I am sort of OK with that, as it is very much how law was being applied in tenth-century Catalonia, as we’ve seen. But that was another century, and besides the law was the Goths’, so I wouldn’t like to be sure that this is Catalonia being Carolingian; maybe we have something more broadly Wormaldian about what early medieval law was for here… In his absence, I guess we’ll figure it out by ourselves eventually! But this was a step along the way, I thought.
1. Jennifer R. Davis, Charlemagne’s Practice of Empire (Cambridge 2015).
2. A recent discussion with the kind of nuance I’m trying to imitate here is Christina Pössel, “Authors and Recipients of Carolingian Capitularies, 779–829” in Richard Corradini, Rob Meens, Pössel and Philip Shaw (edd.), Texts and Identities in the Early Middle Ages, Forschungen zur Geschichte des Mittelalters 12 (Wien 2006), pp. 253–274.
3. I think of this as being the domain of François-Louis Ganshof, in particular his “The Last Period of Charlemagne’s Reign: A Study in Decomposition”, in idem, The Carolingians and the Frankish Monarchy: Studies in Carolingian History, transl. Janet Sondheimer (London 1971), pp. 240–255, online here, but more specifically on this issue Ganshof, Was waren die Kapitularien? (Darmstadt 1961).
4. Patrick Wormald, “Lex Scripta and Verbum Regis: legislation and Germanic kingship, from Euric to Cnut” in P. H. Sawyer and I. N. Wood (edd.), Early Medieval Kingship (Leeds 1977), pp. 105–138, repr. in Patrick Wormald, Legal Culture in the Early Medieval West: Law as Text, Image, and Experience (London 1999), pp. 1–44. The issue must also be covered in his The Making of English Law: King Alfred to the Twelfth Century, Volume I: Legislation and Its Limits (Oxford 1999), but I don’t have easy access to a copy just now to check.
5. As well as Pössel, “Authors and Recipients”, see Carine van Rhijn, “Manuscripts for Local Priests and the Carolingian Reforms” in Steffen Patzold & van Rhijn (edd.), Men in the Middle: Local Priests in Early Medieval Europe, Ergänzungsband der Reallexikon der Germanischen Altertumskunde 93 (Berlin 2016), pp. 177–198.
6. That being the Collection of Ansegis, of which one copy is shown above, on which see Stuart Airlie, “‘For it is written in the law’: Ansegis and the writing of Carolingian royal authority” in Stephen Baxter, Catherine E. Karkov, Janet L. Nelson and David Pelteret (edd.), Early Medieval Studies in Memory of Patrick Wormald (Farnham 2009), pp. 219–235.