If you've been following the news (or even if you haven't), you've probably had an argument about the law. Many times, that debate isn't really about what the law itself says but how the law should be applied. Is it better for a police officer to write you a speeding ticket or give you a warning, if both will get you to slow down? How vigorously should laws against marijuana possession be enforced, given that many states are now legalizing its use for recreational purposes? Does our answer to those questions change when data shows how minority populations are disproportionately arrested and prosecuted, for both minor traffic offenses and marijuana possession?
Then the big one that has dominated the recent news cycle, how should immigration law be applied? Does it call out for strict application or should more leniency be used?
This might seem like strange territory for a historian of the European Middle Ages but it's one that's quite familiar to Prof. Karl Shoemaker from the University of Wisconsin-Madison. His research focus is medieval law, and he says that just this debate - how should the law be applied - was one that people of the period thought about almost constantly. I spoke with him over email and learned some interesting things.
Most people don’t think of the European Middle Ages as a time particularly concerned with the law. Is that fair?
No, it is not fair. There was really an astonishing concern with law and due process in the European Middle Ages. To use English law as an example, by the late 12th-century, the foundations of the English common law were being established – complete with permanent courts, a legal profession, and a well-organized bureaucratic structure. And the criminal trial jury has its roots in this period.
So where do you think that confusion comes from?
One of the things that might be confusing to people though is that not all of that law looks recognizable to us as law today.
For example, some medieval legal practices seem to us quite unusual. For instance, until 1215 CE, accused criminals might find themselves tried by a process called “the ordeal” that involved carrying a red-hot iron in their bare hands. Those who did not burn were considered innocent, those who were burned were guilty. The idea being that divine judgment (and truth) would be revealed through the flesh of the accused. In England, the abandonment of the ordeal led to the rise of the criminal trial jury, a procedural practice still protected by the US Constitution.
Also, in parts of medieval Europe it also became the practice to use judicial torture to interrogate witnesses and suspects in criminal cases – practices that continued into well into the eighteenth century before they were abolished.
Another point of confusion might come from a difference in outlook between then and now. For example, medieval Europe was deeply committed to the rights of sanctuary seekers, even insisting that murderers and rapists could not be forcibly dragged out of churches if they fled to one for sanctuary. Contrast this with the reluctance on the part of many modern nation-states to grant asylum rights to even young children.
Further, the 12th and 13th centuries were really fertile time for thinking about how to separate the duties and obligations of political office from the pure personal preferences of the individual ruler. There was considerable concern in the Middle Ages with trying to make sure no one raised themselves above the law. These attempts were not always successful, as we have some experience with that in our own day.
What “types” of law were there?
There were lots of different types of law, including many different forms of unique legal practices that operated at the city and local level, but scholars tend to group them under the following categories:
- Royal law, which included legislation and orders issued by monarchs for their judges and officials to implement.
- Canon law, or the law of the Church, which governed matters including family law, Church institutions, the charging of interest on money loaned, and penance for various sins.
- Roman law, which refers to law contained in late Roman legislation, but which was revitalized in European universities in the 12th century. Traces of Roman law can still be seen all over the globe, since Roman law (sometimes called Civil Law) forms the basis of much of the law brought by European colonial powers to regions in South America, Africa, the Near East, and the Pacific Rim – to name just a few.
You published a really interesting article in 2011 on the role of the devil (!) in how medieval conceptualized law. Can you expand a bit on that?
Sure. I came across this topic accidentally when I was working on sanctuary law. There are a large number texts from the 14th and 15th centuries that depict a kind of mock trial between Satan and the Virgin Mary. At stake is the eternal fate of all human souls – but it is dressed up as a real trial and presented as if the questions were the subject of litigation as it would have been conducted in that period.
The texts were sometimes assigned to law students, so it was a teaching tool. Medieval audiences would have enjoyed the portrayal of the salvation story in legal terms, and would have seen the text as a way to think about the relationship between strictly applied law on the one hand, and merciful and equitable practices on the other.
Throughout the text, Satan’s demonic representative seeks to weaponize law and procedure in such a way that their strict application would work tremendous injustice. Mary, on the other thand, is the advocate who defends humanity from this legal assault, and Christ sits as judge in the case. The medieval audience would have recognized in the devil’s claim for the strict application of law an inability to see that the mere following of rules was not sufficient for doing justice.
Are you still working on that project? Where do you see it going?
I am. I have published some articles on it in specialized medieval and legal history publications, and I have presented it various universities and law schools, but I am also working on a book length study for the general public. And who could resist the depiction of Satan as a legal actor, seeking remedies in court?
So what’s the takeaway for non-specialists? How does this area of the medieval world seem to relate to today?
I think it relates in several key ways. First, medieval law was deeply concerned with the relationship between law and justice – and recognized that the simple existence of a rule was not a reason to follow the rule. Second, the figure of Satan in these texts is always demanding a strict application of justice, a kind of malicious compliance with the written law, but in ways that furthered his own interests at the expense of justice and equity. So one might say that strict insistence on law at the expense of justice was considered satanic in the Middle Ages.
The text concerns questions of who is bound by law and who is above it. Can authorities override a law to suit there own interests? Must an unjust law or process be applied, or how it might be set aside? The assertion that “the law is the law” – or that following an unjust legal process might be a good in itself -- was highly questionable in the Middle Ages, even if such assertions have found fertile ground in certain modern regimes.
In other words, the principle insisted on by the framers of the American Constitution that no one is above the law is a concept that had deep roots in medieval legal traditions. So, in that light, studying medieval law serves as a reminder that we must continually ensure that our traditions of law and justice don’t devolve into the kinds of abuses (self-enrichment, preferential treatment, cruel oppression of political enemies) that these legal traditions sought to curtail.
This interview has been edited for length and clarity.
