Law & Lawlessness: Canon law

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Background

  • Ideals of the age: the Church guided God's people and mediated his will to them, moral & legal
  • Gregory's 'Pastoral Care': priest's role = lead the flock; tell them God's commandments & will
  • Gregory -> Augustine: 'we ought to maintain discipline among the faithful as good fathers do with their children'
  • Term 'canon law' came into use following Council of Niccaea in 325 AD
    • Went on to deal with wider societal issues e.g. marriage, sexual morality, sin, crime, etc.
  • Texts we deal with are ideal and normative texts that portray how society ought to be according to the writers/composers
    • Do not necessarily reflect reality
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Church involvement in legal proceedings

  • Adomnán's Lex Inneocentium (IRELAND)May have introduced a new 'pax' in which the entire populace & foreigners were bound never to take action against women, clerics or the young in a way that would drive the non-combatants to violence, incl. self-defence
    • Promulgated after Synod of Birr in 697 AD after meeting of 'both lay persons & clerics'
    • Aimed to protect those unable to fight for themselves = just war principle, based on Augustine's work
    • Adomnán: men = agents of action; women = victims
    • Non-combatants = women, clerics and the young - focuses on women & in role of victim
  • => law code enhanced status of women in the face of the secular laws operating in IrelandAdomnán's Lex Innocentium = example of church-led initiative to improve legal status of weaker parties in society by meeting with lay persons to compile a law code
    • In secular Irish law, honour-price determined by property, office, skills/training, etc. - women's access to these were v. limited so rarely had independent legal capacity in these cases
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Church and land disputes

  • Land disputes involving the Church usually comprised at least 1 ecclesiastical party
  • Exception = 804 AD, layman Æthelric summoned to synod where Archbishop Æthelheard ruled he was free to alienate his inheritance
    • Æthelric then went on pilgrimage, entrusting property to friends for safekeeping
  • Argued that church involvement in land disputes originated from time when kings alienated land by book only for ecclesiastical purposes => one party always clerical
    • As bookland became more common practice of alienating land, the Church continued their involvement
    • Esp. as they represented the majority of literate persons => key part of society's administration
  • Most charters lack secular punishment for infringement - penalties always religiousChurch's sway over literacy may have meant they were intrinsic part of land disputes
    • E.g. excommunication, punishment in afterlife, etc. = can only be made by ecclesiastical authorities => stands that an ecclesiastic must be precent at legal proceedings
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Canon law and wider societal issues

  • Gregory -> Augustine re: when secular legal problems affect the Church (Bede's EH): 'you must  judge from the thief's circumstances what punishment he ought to have'
    • Implies in such cases Augstine holds a judicial position or as sole bishop of the English he must stipulate punishment in canon law
  • Canon law and marriageIssues the Church had strong opinions on which had legal implications (e.g. marriage and kinship) must be corrected/changed, at least officially in law, in order to be faithful to Christian teachings
    • Greogory -> Augustine: 'A certain secular law in the Roman state allows that the son and daughter of a brother and sister, or of two brothers or two sisters may be married...sacred law forbids a man to uncover the nakedness of his kindred; hence it is necessary that the faithful should only marry relations 3 or 4 times removed'
    • Hints at tension between pagan ideas of marriage and Christian ones
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Motivation - Practical

  • Authority for Church's right of judgement derived from Pauline teaching: 'Dare any of you, having a matter against another, go to be judged before the unjust, and not before the saints? Know you not that the saints shall judge this world?'
  • Everyone was a baptised member of the Church => everyone was nominally part of the Church
  • Pragmatic effect that the Church stretched above and beyond individual polities, meaning that laws, such as the Lex Innocentium could be implemented beyond an individual kingdom's jurisdiction
  • BUT should note Church was not united and there was some extreme regional variation in the canon laws
    • Lex Innocentium: 'Now, all the holy churches of Ireland together with Adomnán have besought the unity of the Divinity of Father and Son and Holy Spirit and Heavenly Host'
  • Lex Inocentium: 'He that shall put a woman to death, and not do penance in accordance with this Law, shall not only perish in eternity and be cursed by God and Adomnán, but all that have head and do not curse him, and do not censure him according the judgement of this Law, shall be cursed'Church's nature made it an excellent instrument of justice & way of promulgating law codes
    • Useful clause practically in a context where crimes were difficult to prove and the actions of the victim were normally required to prosecute and gather evidence themselves 
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Motivation - Theological

  • Advantage of Church enforcing legislation = no one can escape God on Judgement Day
    • Gregory -> Æthelberht: '...for these signs of the end of the world are sent in advance to make us heedful of our souls, watching for the hour of death, so that when the Judge comes we may, through our good work, be found prepared'
  • Through Scripture and the Church, God's will was mediated to humanity, meaning that the objective will and law of God could be incorporated into secular law to stop the nations falling into sin - as seen with the Law, Moses the Lawgiver and Israel
    • Particularly evident in Wulfstan's writings but also Lex Innocentium: 'After 14 years (as abbot) Adomnán obtained this Law from God and this is the Cause'
  • Díre text c. 700 AD: 'the worst transactions are women's constracts. her father looks after her when she is a girl; her spouse looks after when wen she is the wife; her sons look after he when she is a widow with children; her family looks after her when she is a spinster; the church looks after her when she is a woman of the church'
    • One imagines that this clause indicates that the church is legally responsible for those women who have taken up monastic orders
    • Identity of women in the church developing rapidly at this time
    • Adomnán's Law enhances women's status by emphasising their role as life-givers while simultaneously drawing an analogy between them and Virgin Mary
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Canon law and women

  • Angels directive to Adomnán in Lex Innocentium: 'You shall establish a law in Ireland and Britain for the sake of the mother of each one, because a mother has borne each one, and for the sake of Mary, the most of Jesus Christ through whom the whole [human race] is'
    • Idea of Mary as mother of Christ and human kind, perhaps deriving from John 19:26-27: '[Jesus] saith to his mother: Woman, behold thy son. After that, he saith to the disciple: Behold they mother. And from that hour, the disciple took her to his own.'
    • => All women shared in Mary's motherhood and the motherhood of Christ
  • Sharing in Mary's motherhood of Christ can be the prerogative of all women, not just those who are mothers in biological terms
    • Augustine On Virginity: 'and they [the virgins] with Mary are Christ's mothers, if they do the will of the Father'
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King and the Church

  • Gregory -> Æthelberht (in Bede EH): 'Whatever counsel he [Augustine] gies you, listen to it gladly, follow it earnestly and keep it carefully in mind. If you listen to him as he speaks on behalf of Almighty God, that same Almighty God will listen to him more readily as he prays for you'Not mentioned in Bede, but Æthelberht explicitly asked churchmen to assist him in writing his law-code
    • Choice = listen to your bishop and subsequent wider Church or risk losing favour with God by not carrying out his works
  • Synod of Birr in 697 involved a meeting of 'both lay persons and clerics' even though ecclesiastics took precedence on list of attendees, it might suggest parity between the parties involved at the synod
    • I.e. this was an ecclesiastical initative, but one that must be developed and decided upon by and with the lay persons for its proper implementation
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