History 542a:

Law in Medieval Europe

Professor Anders Winroth
106 WLH

Office hours:

Telephone: 432-7657

Email: anders.winroth@yale.edu

The seminar meets Mondays 1.30-3.20, SLB 003 (Law School Library, Rare Book Room).

The syllabus is preliminary and will change. Always check the web version!

This seminar provides an introduction to research in medieval European law, with a focus on the development of the high medieval ius commune ("European Common Law"). This body of law is the result of a combination of Roman law and canon law, and it influenced strongly all other kinds of medieval European law. The seminar also provides training in manuscript studies and in medieval Latin.

This year, we will work in the Rare Book Room of the Law School Library. The LawSchool owns a distinguished collection of medieval legal manuscripts. Each student will chose one manuscript and explore it in detail.

Practically all sources with which we will work are in Latin, often in "strange" and highly technical Latin. Knowledge of Latin is, therefore, required for the course. We will work with the assigned Latin texts in class in order to learn better to understand medieval Latin. Some of the reading will be in medieval manuscripts and early modern printed works. Secondary literature in English, Latin, French, and German will be assigned, and students should cooperate to cover any gaps in their language skills.

It is not possible to audit this class.

Course requirements

1) Weekly manuscript journal , and weekly comments on others' journals (go to Wiki at classesv2.yale.edu). The journal assignments given in the syllabus are a minimum.

2) Collaborative translation of Hariulf of Oudenburg's report of his visit to Pope Innocent II in 1141 to get the pope's judgment on a legal issue.

3) Bibliographies, drafts, and other assignments due at various points as below.

4) A final paper due on April 26.

5) Participation, including presentations.

Week 1 (January 11): Introduction to medieval law

Reading

Anders Winroth, "The legal underpinnings," in Miri Rubin and Walter Simons, eds., Cambridge History of Christianity, vol. 4: c. 1100 - c. 1500 (Cambridge, 2009), 89-98. (Check Orbis to see if the volume is available online yet.)

Week 2 (January 15): The growth of legal business and delegated justice

Journal assignment: Transcribe the first and last words of each text in your manuscript plus any rubrics and colophons you might find. Attempt to identify the texts in your manuscript. Find printed editions of the texts, if possible.

Assignment

Ernst Müller, " Der Bericht des Abtes Hariulf von Oudenburg über seine Prozessverhandlungen an der römischen Kurie im Jahre 1141 ," Neues Archiv 58 (1930): Draft an English translation of the Latin text on max one page between pp. 102 and 115. Do not spend more than 2 hours on this. Post your draft translation on the class wiki by 8 p.m. on Thursday January 18. By classtime, please read all the translations that have been posted and make suggestions for revisions.

Readings

"Final actum of the judges delegate in a suit between the nuns of Stamford and the canons of Ashby," c. 1217, trans. Anders Winroth on the basis of Jane E. Sayers, Papal judges delegate in the province of Canterbury 1198-1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford 1971), 333-334, n. 4.

Kenneth Pennington, " A Short History of Canon Law from Apostolic Times to 1917": chapters " Canon Law in the West After Gratian: The Age of the Decretists " and " The Age of the Papal Decretal ".

Anders Winroth, " Tools for the Study of Medieval Latin," in Timothy Graham and Raymond Clemens, Introduction to Manuscript Studies (Ithaca, N.Y., 2007), 259-261.

Jacqueline Rambaud, " Le Décret de Gratien" and "Les Décretales," in Henri-Jean Martin and Jean Vezin, eds., Mise en page et mise en texte du livre manuscrit (Paris 1990), 200-209.

Examine: Kenneth Pennington, "Medieval canonists: A bio-bibliographical listing," to appear in Pennington and Hartmann, eds., History of Medieval Canon Law.

Examine: Stephan Kuttner, Repertorium der Kanonistik (1140-1234): Prodromus corporis glossarum (Vatican City 1937). [CL01 K97]

Examine: Gero Dolezalek, Verzeichnis der Handschriften zum römischen Recht bis 1600 : Materialsammlung, System und Programm für elektronische Datenverarbeitung (Frankfurt am Main 1972). [KJA4.5 .D65]

Be prepared to answer:

1) To which genres do(es) the text(s) in your manuscript belong? How did you arrive at your answer? Is your text the product of teaching? (Remember that many medieval legal manuscripts contain more than one text. Any marginal gloss counts as a separate text.)

2) Are you able to find (any of) the text(s) appearing in your manuscript in Kuttner's Repertorium, Pennington's bio-bibliographical listing, or Dolezalek's catalogue?

3) Does your manuscript contain any canon law text that was composed in or before 1234 but after 1149? If so, be prepared to briefly present the text (max. 3 mins.). Who wrote/promulgated it? Was the text much read? Please prepare a brief research bibliography on the textm (max. 1 page) and make copies for the class.

4) How should the class organize to produce a polished translation of Abbot Hariulf's entire report?

Week 3 (January 25): Legal procedure

Journal assignment: Work with your manuscript and report on what you find.

Readings

Norma Adams and Charles Donahue, Jr., eds., Select Cases from the Ecclesiastical Courts of the Province of Canterbury c. 1200-1301, The Publications of the Selden Society 95 (London 1981), 265-269. Pay special attention to document 2 on p. 268 ("Petition of Master Robert de Picheford for restoration of status").

Goffredus Tranensis, Summa super titulis Decretalium (Lyon 1519; repr. Aalen 1968), f. 95 r. - 96 v. To answer the questions below, look at the first few lines after each ¶.

Gregory IX, Liber extra, book 2, title 13 (=X 2.13), in Emil Friedberg, ed., Corpus iuris canonici (Leipzig 1879), 2.279-291: Read all of chapter 18 (X 2.13.18). Another web version of the text (better proof-read), but not the apparatus, is available through the Bibliotheca Augustana. The text is c. 39 of the Fourth Lateran Council, 1215, and may in that guise be accessed in English translation.

Fourth Lateran Council, c. 18 (= X 3.50.9, ed. Friedberg, 2.659-660).

Brundage, Medieval Canon Law,120-141, 190-205, examine 206-230 (but pay special attention to what is said about Geoffrey of Trani).

Help for expanding abbreviations in Goffredus and elsewhere :

Adriano Cappelli, Dizionario di abbreviature latine ed italiane (Milan, many editions, including one on the internet and one in the Rare Book Room).

Emil Seckel, " Paläographie der juristischen Handschriften des 12. bis 15. und der juristischen Drucke des 15. und 16. Jahrhunderts: Aus E. Seckels Nachlaß ," Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 45 (1925), 1-16.

Be prepared to answer the following questions:

1) X 2.13.17 and X 2.13.19 are ecclesiastical laws. When were they originally promulgated and by whom? Where did Raymond of Peñaforte, the compiler of the Liber extra, find them?

2) How does Goffredus define spoliation (spoliatio)?

3) When in a process should restitution happen, according to Goffredus?

4) Refer to Brundage's description of canonical civil procedure (129-134): where in the process does Robert de Picheford's claim about spolition fit?

Week 4 (February 1): Late medieval canon law, and the introduction of torture; describing medieval manuscripts

Complete bibliography due. Make as complete a bibliography as you are able on the texts included in your manuscripts. Be prepared to discuss the bibliography in class.

Journal assignment: Transcribe a suitable chunk of text in your manuscript. The text should include allegations (cross-references) if you are able to find any; if your text is glossed, allegations are most likely to be found in the gloss. - Begin to describe your manuscript in accordance with the model in Shailor. Start with the "physical description" (i.e., the paragraph beginning "Parchment": material, number of pages, size, layout of writing, etc.). Put your draft description on the wiki, and keep updating it until you have a complete version.

Readings

Robert Bartlett, Trial by Fire and Water, 135-143.

Excerpts from decretals by Popes Innocent IV and Alexander IV , from Edward Peters, Torture: Expanded Edition (Philadelphia 1996), 236-237.

Excerpts from Hermann Kantorowicz, Albertus Gandinus und das Strafrecht der Skolastik (Berlin 1907-1926) 1. 203-218: read 212.5-213.23. Summary of the process (in English).

Kenneth Pennington, " A Short History of Canon Law from Apostolic Times to 1917": chapters " Papal Decretals and Codification from 1298 to 1582 " and " Late Medieval and Early Modern Western Jurists ".

James J. John, "Latin Paleography", in James M. Powell (ed.), Medieval Studies: An Introduction, 2nd edn. (Syracuse, NY, 1992), 1-68: read as much or as little as you think you need .

Description of Beinecke MS 423 from Barbara Shailor, Catalogue of Medieval and Renaissance Manuscripts in the Beinecke Rare Book and Manuscript Library, Yale University (Binghamton, 1984-2000).

Assignment

1) Does your manuscript include any canon law text written after 1234? If so, be prepared to present the text (max. 3 mins.).

Week 5 (February 8): Gratian and his sources

Journal assignment: Write out a translation of the text you transcribed last week. Modernize any allegations according to the system recommended by Brundage. - Are you able to find in your manuscript any use of Gratian?

Readings

Stephan Kuttner, " The revival of jurisprudence," in Robert L. Benson and Giles Constable, eds., Renaissance and Renewal in the Twelfth Century (Cambridge, Mass., 1982), 299-323.

Anders Winroth, The Making of Gratian's Decretum (Cambridge 2000): at least chs. 1 and 4 plus the Conclusion (Available as an ebook through Orbis).

Kenneth Pennington, " A Short History of Canon Law from Apostolic Times to 1917": chapter " The Twelfth and Thirteenth Century: Gratian and Bologna ."

Brundage, Medieval Canon Law, 190-194.

Eric C. Knibbs, " How to Use Modern Critical Editions of Medieval Latin Texts ," History Compass 5 (2007), 1521-1549.

Examine : Emil Friedberg, ed., Corpus iuris canonici, vol. 1 (Leipzig 1879). Electronic copies are available on the internet through theBayerische Staatsbibliothek and Columbia University Library. (The hidden text file behind the Bavarian copy is better proof-read than the Columbia version.)

Examine : Gratian, Decretum C. 1 q. 1 cc. 1-13, first recension, ed. Anders Winroth. What do the different apparatus contain?

Examine : Anders Winroth, Research Tools in Medieval History .

Week 6 (February 15): Texts in context: Law schools

Bring a first draft of you manuscript description to class (one copy for each student) and be prepared to discuss it. What problems have you encountered? What information do you need to complete it?

Journal assignment: Describe the gaps in your knowledge of your manuscript. Ask for advice when you feel you need it. Does your manuscript reflect teaching in a law school?

Assignment : Identify the best edition of thematerial sources for three chapters in Gratian's Decretum, C. 1, q. 2 (assigned previous week). Bring a photocopy of the relevant pages, including the title page.

Readings

Anders Winroth, " The teaching of law in the twelfth century ," in Helle Vogt and Mia Münster-Swendsen, eds., Law and Learning in the Middle Ages (Copenhagen, 2006), 41-62.
Petrus Peregrossi, Lecture announcement, c. 1250.

Gratian, Decretum C. 3, thema, first recension, ed. John N. Dillon and Anders Winroth.

Bulgarus, Stemma Bulgaricum, trans. Joshua C. Tate and Anders Winroth, in " The teaching of law in the twelfth century ,"14-15.

Anders Winroth, "An Unnoticed Gratian Manuscript in Stockholm," in Vincenzo Colli and Emanuele Conte, eds., Iuris historia: Liber amicorum Gero Dolezalek (Berkeley 2008).

Week 7 (February 22): Textual criticism case study: Gratian's Decretum and the St. Gall manuscript

Journal assignment: Compare a text in your manuscript to some other version (printed edition, other manuscript) of the same text. Any differences? How would you explain them?

Readings

Anders Winroth, "Recent work on the making of Gratian's Decretum," Bulletin of Medieval Canon Law, 1-29.

Examine : St. Gall, Stiftsbibliothek, Cod. Sang. 673 (Sg), available through Codices Electronici Sangallenses. (C. 3, q. 1 is on p. 67)

Examine : Barcelona, Arxiu de la Corona d'Aragö, Santa Maria de Ripoll 78 (Bc): Go to http://pares.mcu.es/ParesBusquedas/servlets/Control_servlet?accion=0 , enter "Ripoll' into the top box ("Buscar"), hit "Buscar". On the next page go down to "Archivo de la Corona de Aragön" and click on "Manuscritos" below. On the next page, find "RIPOLL,78". On the next page, hit "Ver imágines". (There must be an easier way, but I do not know it.)

Examine : Cologne, Erzbischöfliche Diözesan- und Dombibliothek 127 (Ka), available through Codices Electronici Ecclesiae Colonienses. (Ka was Friedberg's manuscript A.)

Examine the material sources of C. 3, q. 1 (all the material sources were, unbeknownst to Gratian, Pseudo-Isidorian forgeries about which we will learn next week):

c. 1: Gaius, epistula

c. 2: Fabianus, ep. 2, c. 20

c. 3: Iohannes Zachariae archiepiscopo

c. 4: Eusebius, ep. 2

Examine : DigitaleHandschriften (a wiki containing a catalogue of large collections of digitized manuscripts).

Assignments

1) Examine different types of textual arguments and consider their strengths. Be prepared to discuss.

2) Compare the texts of C. 3, q. 1 in Sg, Bc, and Ka with each other and with the material sources (at least for those chapters appearing in Sg and Bc).

3) Do your comparisons result in any evidence for or against the various theses about the relationships among Sg, Bc, and Ka?

4) If you have a laptop computer with wifi, please bring it to class so that we may have the manuscript pages in front of us during discussion.

Week 8 (March 1): Early medieval canon law

Bring a second draft of you manuscript description to class (one copy for each student) and be prepared to discuss it. What problems have you encountered? What information do you need to complete it?

Journal assignment: Have you collected all the information you need to complete the manuscript description? What do you still need to find out?

Readings

Kenneth Pennington, " A Short History of Canon Law from Apostolic Times to 1917": chapters " The First Collections of Canon Law within a United Christendom ," " The Latin and Frankish Churches in the Ninth Century, " and " The Eleventh Century and the Reform of the Latin Church ."

Capitula Angilramni , read at least chapter 1 and 2(a). There is also a German translation.

Klaus Zechiel-Eckes, "Ein Blick in Pseudoisidors Werkstatt: Studien zum Entstehungsprozess der Falschen Dekretalen: Mit einem exemplarischen editorischen Anhang (Pseudo-Julius an die orientalische Bishöfe, JK †196),"Francia: Forschungen zur westeuropäischen Geschichte 28 (2001), 37-90. Avec résumé français, p. 61. The entire article is of great interest and worth reading. The French resumé summarizes the main results of Zechiel-Eckes's research. At the very least, read this, study the plates between pp. 68 and 69 to look for Pseudo-Isidor's marginal notations, and examine the edition (pp. 71-88), particularly the apparatus fontium to get a sense of how Pseudo-Isidore put together his texts as mosaics of authentic texts.

Assignments

1) Does your manuscript include any canon law text written before 1140? If so, be prepared to present the text (max. 3 mins.).

Spring break

Saturday, March 20 , 4.00-5:30, WhitneyHumanitiesCenter:

Lecture : Charles Donahue, Jr., "The Legal Professions of Fourteenth-Century England" (Part of the Annual Meeting of the Medieval Academy of America; followed by a cocktail party)

Week 9 (March 22): The persons behind the law books

Completed manuscript description due. Please bring it on paper to class and see to that your description in the journal is up to date.

Journal assignment: How do we know what we think we know about the author of the text that you are treating in the final paper?

Readings

John T. Noonan, "Gratian slept here: The changing identity of the father of the systematic study of canon law," Traditio 35 (1979), 145-172.

Anders Winroth, The Making of Gratian's Decretum, ch. 5.

A twelfth-century law student's letter requesting more money from his abbot.

Mike Widener, "A gallery of illustrious jurists," Yale law library - Rare Books Blog, posted September 2, 2009. Please follow the link to the Law Library's Flickr site.

Assignment

How convincing are the various arguments proposed by Noonan (about Gratian) and Winroth (about Irnerius)?

Week 10 (March 29): Roman law; understanding allegations

Journal assignment: Describe the subject of your final paper.

Readings

Placitum from Marturí, 1076 , in Cesare Manaresi, ed., I placiti del "Regnum Italiae," Fonti per la storia d'Italia 97 (Rome, 1960), 333-335.

Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History (Oxford 1966), pp. 152-164 .

Brundage, Medieval Canon Law, 190-205.

Gérard Giordanengo, "Droit romain" and "Droit canonique" in Jacques Berlioz, Identifier sources et citations (Turnhout, 1994) 121-176. [Alternative for Germanophiles: Hermann Kantorowicz, "Die Allegationen im späteren Mittelalter." Archiv für Urkundenforschung 13 (1935).]

Adolf Berger, Encyclopedic Dictionary of Roman Law, Transaction of the American Philosophical Society, n.s. 43:2 (Philadelphia 1953), s.vv. "Restitutio in integrum" and "Praescriptio longi temporis."

Examine : Theodor Mommsen, Paul Krüger et al., eds., Corpus iuris civilis and pay attention to the indices [SML KBD C68 and Law school]

Examine : Stephan Kuttner, Index titulorum decretalium ex collectionibus tam privatis quam publicis conscriptis (Milan 1977) [LAW KJA4 .I53].

Examine : Franca Sinatto d'Amico, Indices corporis juris civilis juxta vetustiores editiones cum criticis collatas (Milan 1964-1970) [LAW KJA 1064 S56].

Examine : Javier Ochoa Sanz and Luis Diez, Indices canonum, titulorum et capitulorum Corporis iuris canonici [LAW CL 14 +1964].

Examine the indices in Emil Friedberg, ed., Corpus iuris canonici (Leipzig 1879) [L&B KBG C37]

Assignment

1) Are you able to find the most relevant texts concerning restitutio in integrum and praescriptio longi temporis in the sources of Roman law (Tip: Berger will refer you to several laws)?

2) Does your manuscript include any Roman law text? If so, be prepared to present the text (max. 3 mins.). (Assignments as above.)

Week 11 (April 5): Ius commune and iura particularia

Reading

Kenneth Pennington, "Learned Law, droit savant, Gelehrtes Recht: The Tyranny of a Concept," Rivista internazionale di diritto comune 5 (1994) 197-209 and Syracuse Journal of International Law and Commerce 20 (1994) 205-215.

Chris Wickham, Courts and conflicts in Twelfth-Century Tuscany (Oxford 2003), selection.

Examine: Helmuth Coing, ed., Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte (Munich 1973) [Foreign and International Law Reading Room (right below the Rare Book Room) KJC956 .H36]

Assignment

1) Does your manuscript include any texts that should be considered ius particulare? If so, be prepared to present the text (max. 3 mins.). (Assignments as above.)

2) Be prepared to discuss the subject of your final paper.

Week 12 (April 12): English Common Law

Draft of your final paper due

Readings

Joshua C. Tate, "Ownership and Possession in the Early Common Law," American Journal of Legal History 48 (2006), 280-313. (This link leads to an abstract; follow the link to the full article.)

Assize of novel disseisin , from F. W. Maitland, Equity Also, The Forms of Actions at Common Law: Two Courses of Lectures, ed. by A. H. Chaytor and W. J. Whittaker (Cambridge 1910): scroll down to "Assisa Novae Disseisinae."

Wikipedia , s.v. "Assize of Novel disseisin."

Wikipedia , s.v. "Common law", section "Medieval English Common Law"

Assignments:

1) How is the writ of novel disseisin (in the example from Bracton printed by Maitland) different from and similar to the petition of Robert de Picheford for restoration of status and the arguments about restitutio in integrum in the 1076 Marturí case?

Week 13 (April 19): Presentations of final papers. The law on the books

Journal assignment: Describe what your manuscript says about some legal issue, as best you can make it out.

Readings

Kenneth Pennington, "Innocent until proven guilty: The Origins of a Legal Maxim," A Ennio Cortese (2001), available at http://faculty.cua.edu/pennington/Law508/InnocentGuilty.htm.

Reading questions

1) What are the strengths and weaknesses of "Innocent until proven guilty'?

2) Why did medieval jurists develop a system of legal procedure that gives relatively strong protection to the accused?

Week 14 (April 26): Final paper due (no class, for it is a Friday!)

Assignment: Write a research paper on at least one of the texts included in your manuscript. Address who wrote the text, when and where, and for what purpose. If the text exists in several recensions, indicate which your manuscript contains. How important is the LawSchool manuscript for the study of this text? What peculiarities does the manuscript have? There will be many other questions to address, different for different manuscripts. The paper should include your revised manuscript description as well as your revised annotated bibliography on this text.

Date TBA: Celebration