The Body of Evidence: A Living Matter?
Brigitte Bedos-Rezak (NYU)
This paper concerns a controversy initiated in early 12th-century northern Europe about the support of documentary writing: enduring sensory medium or dead skin? The paper will first address documents’ organic qualities and the animate nature of their production, and their reception as sensitive repositories of the substantiating tangible contacts received from all those bodily involved in the act of writing, witnessing, signing, subscribing, and sealing. The paper will then consider the extent to which this understanding impacted the relationship between written evidence and living witnesses.
Centers and Peripheries: Thinking about Coloniality in Medieval Urban Customary Law
Esther Liberman Cuenca (University of Houston-Victoria)
The Angevin occupation of Dublin and other towns in Ireland is well-attested to in the literature, as has, more specifically, the use of English common law as a powerful weapon to bludgeon the native Irish into submission. Scholars such as Edmund Curtis and James Lydon and most recently Sparky Booker have spoken of the heavy weight of the “legal disability” to which the native Irish were subject. This brief paper, however, redirects this conversation about “legal disability” elsewhere; namely, the customary law of Dublin as it has survived in its municipal records. It focuses on the law’s coloniality, or how it perpetuated colonial dominance over the native population, and how it evolved as the genres of customary law changed over time.
Material Community in Medieval Cairo: Documentary Practices of Coptic Christians at Islamic Courts
Tamer el-Leithy (IAS and American University Cairo)
This paper discusses Coptic Christians’ use of Islamic courts in late-medieval Cairo; these everyday crossings of a central legal border reveal the mutually-constitutive relationship between family, property, community, and law. It is based on documents, issued by Islamic courts, that refer to houses that Coptic Christians established as waqf/pious endowments in support of monasteries. I use these to reconstruct the biographies of three neighboring houses, to discuss two questions.
First, the documentary practices of the Coptic actors reveal the critical role waqf played in the survival and reproduction of the Coptic Christian community (from physical presence in the city to securing funds for religious establishments). Second, certain patterns in these cases (litigants’ choice of courts; the correlation of some Coptic actors with specific Muslim notaries) suggest that notaries were decisive in shaping both the material ecology of Islamic law and how it was consumed. Given the legal savvy of some Coptic actors, I also suggest that notaries served as cultural brokers through whom Copts learned about and mastered Islamic law.
Medieval Ashkenazic & Sephardic Approaches to the Talmud & Jewish Law
Talya Fishman (University of Pennsylvania)
Why did medieval Jews of the two most prominent subcultures, Sepharad and Ashkenaz, develop disparate approaches to the Talmud and its role in Jewish law? In mediating the Babylonian Talmud, a work teeming with unresolved legal disputes between 3rd– 6th century rabbis, 11th century Sephardic scholars of North Africa and al-Andalus produced commentaries that clarified the law to be practiced, or composed systematic codes. By contrast, the Talmud commentaries produced by 12th to 14th century Ashkenazic scholars of Northern Europe were not interested in applied law; instead, they pinpointed and dissolved discrepancies within the Talmudic corpus and harmonized clashes between the text’s legal prescriptions and longstanding communal practices rooted in custom.
My remarks will consider ways in which cultural assumptions and practices of longue durée in the two regions – Sepharad, in the heartland of the former Roman Empire, and Ashkenaz at its periphery – may have shaped these disparate medieval Jewish approaches to the Talmud and to Jewish law.
Dispensation: Forms and Borders of Exception in Canon Law
Arnaud Fossier (Université de Bourgogne)
In canon law, dispensation enabled those who requested it to be exempted from the law. Most of the dispensations were granted in response to a situation of “irregularity” – for example, to a cleric wishing to be ordained a priest, but who had committed a serious offence – or to remove a canonical “impediment” – such as the prohibition on marriage between two people of the same blood. The power to dispense therefore was the power to derogate from the law and to tolerate infringements of it. It is why it has sometimes been interpreted as the instrument par excellence of the “state of exception”, defined by Giorgio Agamben as a state breaking free from the legal system. Nevertheless one could also see in it the instrument of “canonical equity” which function was to “temper the rigor of the law”, according to Huguccio of Pisa (late 12th century). In order to further understand the nature of it and its working, we have to go back first to the patristic and canonical origins of dispensation, then to observe how it practically applied and finally the jurisdictional issues it raised.
Illuminating Gratian in Toulouse and the Case of Bernard of Castanet
Joanna Fronska (Centre National de la Recherche Scientifique)
Converting the Land: Property and Religious Difference in the Iberian Fueros
Rodrigo García-Velasco (University College London)
As the Christian realms of Iberia expanded during the eleventh and twelfth centuries, a new genre of customary law and settlement franchises known in Spain as ‘fueros’ and ‘cartas pueblas’, took the Peninsula by storm. By the 1200, fueros were being granted from the Mediterranean to the Atlantic coasts, often in territories formerly under Islamic dominion with no prior contact with Christian legal cultures and economic systems. Fuero statutes are precisely characterised by their break with Visigothic and post-Visigothic rules and conventions of the early Middle Ages. This break with convention is especially noticeable in the realm of private and property law. One of those major changes is the inclusion of Jews and Muslims in such economic laws. The following presentation explores the guarantees made by fuero franchises to protect the proprietary rights of non-Christians, as well as the legitimacy of rights and procedures originating before the Christian conquests, “in tempore sarracenorum”.
The talk starts from two interrelated questions. First, it asks why Jews and Muslims were given visibility in the regulation and operation of property markets. Second, it posits why kings, lords, and local communities increasingly appealed to written law and formal documents –as opposed to oral transactions– to negotiate questions of property, its transfer, and its fiscalisation.
Most scholarship has tended to overlook these norms, understood as a social biproduct of the Reconquista. Reading fueros alongside the drafting of Arabic and Hebrew purchase-sale property contracts, the talk posits that such rules need to be understood as reflexive, often retrospective, legislative acts. Categorising these practices as ‘customary’, legislators brought these communities and legal practices under the jurisdiction of fuero covenants. They were part of a process of legal conversion and documentary transformation that characterises the production of fueros more generally.
‘If He Should Ask’: Bound Community in Medieval Icelandic Law
Mahel Hamroun (University of California, Berkeley)
Adam of Bremen, a chronicler writing in the second half of the eleventh century, famously writes of Icelanders that “there is no king among them, only law.” The laws of this kingless period—often referred to as the Commonwealth or Free State period—are now collectively referred to as Grágás, the ‘Grey Goose’ laws. They remained at least theoretically in force until Iceland’s formal subjugation to the Norwegian kings Hákon Hákonarson (r. 1217-1263) and Magnús ‘law-mender’ Hákonarson (r. 1263-1280) in 1262/4, following decades of internal warring and civil strife.
This paper explores legal ideals in Iceland during this ‘Free State’ period through the close reading of the two principal surviving medieval manuscripts of Grágás—GKS 1157 fol (c. 1250) and AM 344 fol (c. 1260-1270). It is my contention that these manuscripts must be understood both as representations of the formal institutions that defined secular guilt in medieval Iceland and as pieces of literature compiled with the purpose of constructing a certain ideal of justice. This legal ideal was aimed first and foremost at establishing networks of communal obligation and accountability amidst the significant political, institutional, and religious upheaval that dominated thirteenth-century Iceland. Underlying the establishment of these networks was a constant negotiation and renegotiation of the boundaries of legal community.
Ancilla
Carissa Harris (Temple University)
Storytelling and Islamic Law
Jocelyn Hendrickson (University of Alberta)
This paper examines storytelling in medieval Islamic legal texts. Modern academic scholars often approach these texts as dry, serious, and univocal. It is as though a boundary separates Islamic legal texts, which must be read as both literal and true, from other forms of writing, in which the use of literary devices is acknowledged and the role of ideological biases is interrogated. Drawing primarily on North African legal responses (fatwās) issued between the twelfth and fifteenth centuries, I identify at least four types of stories that appear in legal literature: didactic stories meant to advance legal arguments, stories that jurists tell about how and why particular problems arose, stories they tell about their lives, and invented frame tales that provide an origin story for particular legal documents. All of these modes of storytelling suggest that modern scholars would do well to read medieval legal texts through a more literary, and less literal, lens.
Overlooked and Unrecorded: Textbook Study Aids by Medieval Law Students
Susan L’Engle (Saint Louis University)
For over twenty years I have been trying to engage legal historians in the importance of codicological elements—text articulation and narrative miniatures—in medieval manuscripts of Roman and canon law. Studies by legal historians are almost universally text based; these scholars analyze developments in medieval legal literature and its commentaries as benchmarks of a period’s evolving social and political tenor. Since 2011, however, I have been researching students’ graphic and pictorial additions to the same manuscripts, and have identified their significant contributions to the history of study and teaching of law. In this paper I will demonstrate the importance of considering these unexpected and ignored additions in tandem with the text itself.
Who does the Qur’an Think Will Enforce its Laws?
Joseph E. Lowry (University of Pennsylvania)
The Qur’an mentions several legal offices in conjunction with legislation: scribes, witnesses, arbitrators, for example. All such passages are addressed directly to the Qur’anic audience; those passages use either plural verbs or impersonal formulations in a manner that is consistent with the Qur’an’s other appeals to the Qur’anic audience. None of those passages mentions Muhammad or suggests that he play a role in the oversight or exercise of the offices mentioned. In a small number of passages, none of them legislative, the Qur’an does suggest that Muhammad might act as judge, but those passages are polemical and directed at other Biblical communities; they do not address the functioning of law within the Qur’anic community and they do not contain any legislation. Yet there is no doubt that the Qur’an promotes the idea of Muhammad’s paramount authority within the early Qur’anic community.
In this brief presentation, I will suggest that the surprising absence of Muhammad (“God’s Emissary” or “the Prophet”, rasūl allāh, al-nabī) from the Qur’an’s legislative passages that mention legal offices may possibly be explained with reference to Qur’anic prophetology, as a logical outcome of a prophet’s success in overturning the reigning, but impious, social and political order.
Moving in the Margins: Medieval Jewish Legal Texts across Bibliographic and Geographic Borders
Pinchas Roth (Bar-Ilan University)
Medieval Jewish legal writing is conventionally divided into three literary forms: Commentaries (primarily commentaries on the late antique Babylonian Talmud), codes and responsa. Commentaries follow the often-meandering course of the Talmud and must make a special effort to clarify which elements of the discussion are ultimately considered to be legally valid. Codes cut through the complexity of the Talmudic discussion and strive to offer a thematic structure and a clear legal bottom line. Responsa were written in response to ad hoc questions, offering a legal answer that was asked in real time in a real situation.
These categories and distinctions are usually helpful, and they often even reflect the intentions of the authors themselves. But all categories get messy and books have their own fates, so it is no great surprise that many books straddle several categories, either because their authors wrote them that way to begin with or because of the intervention of scribes and readers over centuries. This is especially true of texts that were transmitted in the margins of other works. I would like to share some of my reflections on medieval Jewish legal texts that slipped and slid across bibliographic categories over time and about the insights they might provide into changing legal cultures.
Possibilities and Precursive Forms of Blind Justice
Benjamin Saltzman (University of Chicago)
The iconography of Lady Justice blindfolded or covering her eyes is typically traced back to a 1494 woodcut (attributed to Albrecht Dürer) in Sebastian Brant’s The Ship of Fools where it pejoratively illustrates the blindness of deceived and misguided judges. In a complete reversal, by the eighteenth century, images of a blindfolded Lady Justice would take on a distinctly positive sense, in which the blindfold represented her exemplary impartiality. Today, the iconography goes in both directions, as the blindfolded figure is both upheld as a monument in courts of law and depicted satirically in critiques of the injustices pervading legal systems. But before Dürer cut his wood plate and indeed ever since, figures depicted with their eyes covered or turned away could represent a far wider range of meanings. My current book project explores these gestures in art, literature, and philosophy from Antiquity and the Middle Ages, and this talk—a first attempt at the book’s epilogue—considers the implications of this multidimensional and highly ambiguous gesture as it informs both the particular history of Lady Justice’s iconography as well as the ethics of turning away in the face of injustice.
The Makings of a Flemish ‘Race’ in Late Medieval English Law
Samantha Katz Seal (University of New Hampshire)
In attempts to restrict and legislate the participation of “foreign” merchants in late medieval England, both royal statutes and local policies treated the “Flemings” as an easily defined legal category. Likewise, contemporary scholars have approached the “Flemings” — and other medieval “alien” communities— as if such terms map clearly onto nationalist entities and provide an anagogical model for modern immigration policy and vocabulary (ex: first-generation, second-generation, etc.).
On the contrary, I argue in this paper that we must approach medieval ethnic and potentially “racial” categories like “Fleming” as capacious and flexible, and that we must therefore resist the attempts of medieval legal texts to impose a narrow, singularity of identity upon those born in foreign lands. The repeated slippage between Flemings and the French in the alien tax subsidies for example, as well as the frequent slippage of Flemings in and out of the later continuations of the tax, should not be read only as individual responses to changing political events in England’s relations with the Low Countries, but as a collective attempt to negotiate the instabilities of identity in a time when geographical boundaries and familial lineages were being consistently rewritten. Was it birthplace or rather bloodline that made the Fleming? Moving from late fourteenth century urban legislation over merchant housing to the anti-alien political policies of the fifteenth century, I argue that we need to treat “the Flemings” as a flexible, inconsistent category of racialization, rather than as a national demarcation.
The Etymology of Ruling and Lawgiving in Origines Gentium
Julia Verkholantsev (University of Pennsylvania)
The talk examines how Cosmas of Prague, the author of the Chronica Bohemorum (1125), uses the etymological method to construct an etiological narrative proving that the mythological founder of the Czech royal dynasty, Přemysl, was predestined to become the legitimate ruler, judge, and lawgiver.