Why the Church and the Law?

Professor Rosamond McKitterick is President of the Ecclesiastical History Society 2018-19. Here she explains her choice of theme for the annual Summer meeting 2018 and winter, selected papers from which will form the volume Studies in Church History 56.

 

My first paper at an international conference as a very young graduate student (and consequently my first publication) was to the Ecclesiastical History Society annual meeting in Bristol in 1973. The theme then was Sources, Materials and Methods and a selection of the papers was published as Studies in Church History 11. I certainly never imagined for a moment all those years ago that I would eventually become the President of this remarkable Society, founded at a time when there were very few such thematically focussed national or international conferences to encourage thinking and comparisons across conventional chronological boundaries, still less those who would welcome graduate students and listen to their papers.

image1Cambridge Trinity College MS R.17.1, fol. 279v

I never pursued further the particular topic of the peculiar texts known as penitentials (lists of tariffs of penance and punishments for various sins of thought and action) that I discussed in 1973.  At the time, work on the penitentials was part of my initiation as an early medievalist into the world of legal texts of all kinds promulgated, composed, invoked, compiled, and even forged as part of political responsibilities, visions of order and justice, social organisation and the confirmation of legal transactions.  I also encountered often highly technical scholarship related to law in itself, as well as the many contexts in which it was deployed and has survived. Ever since then I have found the vagaries of manuscript survival and compilation, puzzling over why so many scribes and compilers adopted what can crudely be called a pick-and-mix approach to creating dossiers of law, and the questions such dossiers raise about both the definition and function of law endlessly fascinating.

I have also spent a great deal of my time in the past four decades on the world of the Carolingians and their extraordinary efforts to legislate for good order and justice in their kingdoms as a whole in which secular and ecclesiastical concerns were so integrated as to make traditional notions of a church/state dichotomy meaningless. Both Charlemagne (†814) and his grandson Charles the Bald (†877), for example, were so conscious of their royal function as lawgivers that Charlemagne compared himself to the Old Testament King Josiah, and Charles the Bald was hailed as similar to Josiah but equal to the Emperor Theodosius. A royal responsibility for the people of God was expressed in legislation covering many different aspects of social and ecclesiastical life.

My own current preoccupation with the history of the early medieval popes has inevitably involved considerations of various representations and manifestations of papal authority in Rome, Italy and the rest of early medieval Europe in the centuries immediately following the deposition of the last Roman emperor in the West in 476. Whatever else that event precipitated, it changed the status of Roman law in the West, and created a new context and set of political and social configurations in which the law might be acknowledged or practised. The Christian societies of medieval Europe nurtured a faith for which the legal terminology of judgment, law, commandments, sanctions, covenant, punishment, and forgiveness is fundamental.

image2Rembrandt van Rijn (1655), Ecce Homo: Christ presented to the people.

Law and jurisdiction underpin the events recorded in the Christian Gospels and Acts of the Apostles and are not only evident in relation to the tensions and conflict between secular authorities, Jewish religious leaders and the earliest Christians. The Christian church of course has made its ‘own’ law since the letters of St Paul and his successors, but the degree to which this law can be distinguished from secular law has been challenged time and time again. For one reason and another I have also been reading extensively into the early history of ‘canon law’ and the promulgation of the Codes of the Emperor Theodosius (438) and Justinian (534) and the influence and reverberation of both codes in the early medieval west in particular.  The prominence of secular authorities in church matters and the formal endorsement as ‘law’, for example, by the Emperor Justinian in 545 of the conciliar decisions made at Nicaea, (325), Constantinople (381) Ephesus (431) and Chalcedon (451), is usually taken as of great significance. Quite what the impact of this was beyond Constantinople, or what it meant in practice are things that still needs to be clarified.  Examination of intentions voiced in legislation can only get us so far. How knowledge of such legal prescriptions was disseminated, and what people actually did with them when faced with specific and practical problems of jurisdiction, misdemeanour, organisation, and aspiration can only be explored through evidence of cases of challenge, conflict and resolution.

Nuremberg ChronicleNuremberg Chronicle (1483)

All this provides the background to my choice of a theme.  Yet the precipitating point was a contemporary matter given a lot of media coverage in Britain that coincided with my invitation to become President of the Ecclesiastical History Society. This is the conflict between the Marriage (Same Sex Couples) Act passed by the British Parliament in 2013, and the canon law of the Church of England on marriage. This was addressed at the General Synod in 2016 at which the Synod refused ‘to note’ the Bishops’ Report and it was the vicars, rectors and priests who decided they could not continue with the current prohibition on blessing or marrying same-sex couples in church.  Such a clash between of a law of Parliament and the law of the church seemed to me to open up all kinds of possibilities for a fascinating series of case studies across two millennia of Christian history. It offers an opportunity to stimulate considerations of particular issues in new ways. I think there is something in this theme for every historian, of whatever decade or century, and whatever country, whether it is thinking about religion and rulers (monarch, emperors, the state), Christianity in the law within areas newly Christianized, not least in imperial and colonial contexts,  compliance with state laws or the working of ‘ecclesiastical’ or canon’ law , the resonance of biblical law, the engagement of secular and religious authorities with the law and what that law actually comprised (Roman law, canon law, national laws, royal edicts).

image3Stuttgart, Württemburgische Landesbibliothek, Cod. Bibl.fol.23, fo. 90r Psalm. 77 (78)

So much work is currently being done on law and history, legal sources in historical research, and on legal culture in its social and historical contexts, that it seems especially timely now for reflection on the role of the church in relation to the law. I hope my fellow historians will  examine the legal and often technical issues and legal consequences underlying relations between secular and religious authorities in the context of the Christian church, from its earliest emergence within Roman Palestine as a persecuted minority sect through to the period when it became legally recognised within the Roman empire, its many institutional manifestations in East and West throughout the middle ages, the reconfigurations associated with the Reformation and Counter-Reformation, the legal and constitutional complications (such as in Reformation England or Calvin’s Geneva), and the variable consequences of so-called secularisation thereafter. What were the legal consequences and implications of the Reformation (confiscation and restitution of property?) of the French wars of religion; the French Revolution; the political transformations of the nineteenth and twentieth centuries? Are there particular influences on the formation of ecclesiastical law (the Bible, Roman law, national law codes)? To what extent do nineteenth and twentieth century imperial contexts act as a catalyst for the erosion of or prompt new ideas about links between the state and the plurality of churches?

image4Jean Calvin, (Getty Images)

My own interest in codification and compilation underlies a further aspect of the theme, namely, the formation of bodies of law and how and why it became recognised as law. The development of canon law is a case in point.  There is also the problem of definition. How early, for example, can a ‘code of canon law’ be defined, and what are the processes by which opinion, advice on a specific problem, and conciliar decision became perceived as ‘law’?  What light does the transmission and reception of ‘canon law’ throw on such questions?

I anticipate that court cases, legal challenges to authority, discussions of legal culture and legal practice, legally orchestrated clashes between secular and ecclesiastical law, legal documents of many kinds will be invoked and provide case studies. On many occasions in recent years, as I indicated above, we have been confronted with contemporary discrepancies, contradictions, and even rejection of secular laws, modern social mores or social attitudes. Are there particular instances where church law and civil law came into conflict? When is heresy an offence against the state? How does secular law incorporate or legislate for the church? What are the constitutional peculiarities of particular churches or ecclesiastical institutions?   How did missionaries (and the rulers of the regions concerned) in conversion contexts cope with the clash between what they thought of as law and required social relations, and the laws they encountered in the societies into which they were inserting the Christian church and faith? Can particular case studies reflect light on the way law is involved and acted upon?

Further, what new interpretations and perspectives has recent scholarship thrown into relief?  Case studies could of course be of particular individuals who were instrumental in the formation or interpretation of the law of the church. Particular scholars –  medieval, early modern, or modern – have been crucial in compiling, interpreting or elucidating law in an ecclesiastical context, such as the French jurists of the sixteenth and seventeenth centuries in relation to France’s constitution, the Maurists, the German canon law scholar Friedrich Maassen, the patristic scholar Cuthbert Turner and his Oxford colleagues at the beginning of the twentieth century. They too merit study. What influence does secular governance exert on ecclesiastical governance, administration and legal records, the conduct of courts and judicial procedure, or conversely, what influence does the church exert on the conduct of legal practice and the formation of legal culture, definition of criminal acts or the role of punishment, or such legal and social fundamentals as property ownership, inheritance, marriage practice and legitimacy?

I and my five other plenary speakers will be addressing some of these questions in the contexts of late antiquity, the early middle ages, the central middle ages, the Reformation period, eighteenth- and nineteenth-century Europe, and contemporary Britain. But we hope to be joined by a constellation of case studies spanning the world over two millennia.  There is still time to offer a paper at the summer meeting, 24-26 July 2018 in Cambridge (the closing date for proposals is 31st March, and this is also the closing date for applications for conference bursaries from graduate students). Or bear it in mind for the Winter meeting 12th January 2019.  Please go to the relevant section of the Ecclesiastical History website for the proposal forms.

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