A Companion to Crime and Deviance in the Middle Ages (Arc Companions) [New ed.] 1641891815, 9781641891813

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[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

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A COMPANION TO CRIME AND DEVIANCE IN THE MIDDLE AGES

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ARC COMPANIONS Further Information and Publications www.arc-​hum​anit​ies.org/​sea​rch-​resu​lts-​list/​?ser​ies=​arc-​com​pani​ons

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A COMPANION TO CRIME AND DEVIANCE IN THE MIDDLE AGES Edited by

HANNAH SKODA

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British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. © 2023, Arc Humanities Press, Leeds

The author asserts their moral right to be identified as the author of this work.

Permission to use brief excerpts from this work in scholarly and educational works is hereby granted provided that the source is acknowledged. Any use of material in this work that is an exception or limitation covered by Article 5 of the European Union’s Copyright Directive (2001/​29/​EC) or would be determined to be “fair use” under Section 107 of the U.S. Copyright Act September 2010 Page 2 or that satisfies the conditions specified in Section 108 of the U.S. Copyright Act (17 USC §108, as revised by P.L. 94–​553) does not require the Publisher’s permission.

ISBN (HB): 9781641891813 eISBN (PDF): 9781802701098 www.arc-​hum​anit​ies.org

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CONTENTS

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

General Introduction Hannah Skoda���������������������������������������������������������������������������������������������������������������������������3

PART ONE: RELIGIOUS IDEOLOGIES Introduction Hannah Skoda������������������������������������������������������������������������������������������������������������������������ 21

IDEAS AND BELIEFS The Heretic: Contingent and Commodified Ian Forrest������������������������������������������������������������������������������������������������������������������������������ 32

Censorship and Criminalization of Ideas in Western Europe Ann Giletti������������������������������������������������������������������������������������������������������������������������������ 46 Medieval Suicide Alexander Murray �������������������������������������������������������������������������������������������������������������� 66

SEXUALITY Attitudes to Same-​Sex Sexual Relations in the Latin World Ruth Mazo Karras���������������������������������������������������������������������������������������������������������������� 84

Marriage and Sexuality in China, 960–​1368 CE Christian de Pee������������������������������������������������������������������������������������������������������������������ 102

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MONEY

Usury as Deviance in Medieval Europe Julie Mell�������������������������������������������������������������������������������������������������������������������������������� 119

PART TWO: POLITICAL IDEOLOGIES Introduction Hannah Skoda���������������������������������������������������������������������������������������������������������������������� 145

TREASON El and Bulqa: Between Order and Chaos in the Formative Years of the Mongol Empire (1206–​1259) Michael Hope������������������������������������������������������������������������������������������������������������������������ 156

Treason in France and England in the Later Middle Ages Emily Hutchison������������������������������������������������������������������������������������������������������������������ 173 Revolts in the Late Medieval Middle East, 1200–​1500 Nassima Neggaz�������������������������������������������������������������������������������������������������������������������� 196

POLITICAL VISIONS OF COMMUNITY Power, Scapegoating, and the Marginalization of Jews in Western Europe in the High Middle Ages (Eleventh–​Fourteenth Centuries) Rebecca Rist�������������������������������������������������������������������������������������������������������������������������� 223 Articulating and Contesting Power in the Twelfth-​Century Maghrib Amira K. Bennison �������������������������������������������������������������������������������������������������������������� 243

Social and Environmental Policing G. Geltner and Gregory Roberts���������������������������������������������������������������������������������� 258

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PART THREE: LEGALISM

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Introduction Hannah Skoda���������������������������������������������������������������������������������������������������������������������� 277

THEFT Shifting Attitudes to Theft in Medieval Western Europe ValÉrie Toureille �������������������������������������������������������������������������������������������������������������� 289

“This may bring about many evils”: The Jewish Minority Community in Medieval Europe Facing Its Own Thieves Ephraim Shoham-​Steiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

VIOLENCE The Criminalization of Violence in the Medieval West Warren C. Brown���������������������������������������������������������������������������������������������������������������� 326

Rape and Law in Medieval Western Europe Gwen Seabourne������������������������������������������������������������������������������������������������������������������ 342 An Analysis of “Rape” in Islamic Legal Discourse (1000–​1500 CE) Yasmine Badr������������������������������������������������������������������������������������������������������������������������ 358

WITHIN THE HOME Between the Muslim State and Individual Agency: The Regulation of Sexuality in the Jewish Communities of Medieval Egypt Oded Zinger �������������������������������������������������������������������������������������������������������������������������� 376

Attitudes to Domestic Violence in Christian Europe Sara M. Butler���������������������������������������������������������������������������������������������������������������������� 397

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Epilogue Hannah Skoda���������������������������������������������������������������������������������������������������������������������� 415

Index�������������������������������������������������������������������������������������������������������������������������������������������������� 419 Thematic Indexes of Contents���������������������������������������������������������������������������������������������������� 435

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ACKNOWLEDGEMENTS

It has been a real honour working with the contributors to this volume. We hope that readers will find it as stimulating to read as it has been to collaborate on. Our profound thanks to Danna Messer at Arc Humanities for patience, wise advice, and encouragement. Thanks also to Amy Ebrey for careful editorial work. As editor, I would like to acknowledge the benevolent support of the Leverhulme Trust and British Academy, both of which have generously funded periods of research leave during which I have worked on this book. St John’s College has been extremely supportive. I would like to thank Malcolm Vale for his intellectual encouragement; the anonymous peer reviewer for brilliantly insightful responses; and my children, brother, and parents for their support and love.

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GENERAL INTRODUCTION Hannah Skoda In Canto 15 of Dante’s inferno, Dante in his imagined poetic incarnation meets his old friend and mentor Brunetto Latini.1 Latini is condemned to walk on burning sands for eternity, the punishment for being a sodomite. “O figliuol,” disse, ‘qual di questa greggia s’arresta punto, giace poi cent’ anni sanz’ arrostarsi quando ‘l foco il feggia.”

(Inferno, XV, ll. 37–​39)

“Oh my son,” he said, “if anyone from this flock stops for a moment, he must then lie for a 100 years, without fanning himself when the flames burn his face.”

Latini’s punishment is emblematic of the wider project of Dante’s early fourteenth-​ century Commedia—​to categorize behaviours and beliefs and to map out their degree of deviance or virtue and their consequences in the afterlife. Punishments are made to fit the crime with a logic known as contrapasso. So Latini must forever walk on burning sands, as apparently befits the sterility and wastefulness of the act of sodomy. This volume is about the concept of deviance. It is about the categories and judgements which societies construct and enact to distinguish between good and bad; to make sense of the world; to demonize and to persecute. Only rarely do these operate univocally: they tend to be made up of intertwined legal, economic, moral, religious forces and logics. The book will examine the “how” and the “what” of such processes across cultures, whilst hoping that this allows us to gesture towards the “why.” This introduction offers some initial thoughts about the construction of categories of deviance, it sets out the conception of the volume as a whole, and it suggests ways to approach the essays published here. The chapters discuss a wide range of societies, from China to France, North Africa to the Mongol empire. They cover many different kinds of deviance: from theft and violence, to far more disturbing medieval judgements relating to sexuality, religious belief, and identity. The general introduction is followed by a series of three more detailed sectional introductions, which focus on the individual essays, attempt to offer some comparative 1 Dante Alighieri, The Commedia: I refer to the Oxford University Press edition with parallel translation by J. Sinclair, 3 vols. (Oxford: Oxford University Press, new ed. 1981). The Oxford Handbook of Dante is a useful guide (edited by Manuele Gragnolati, Elena Lombardi, and Francesca Southerden, Oxford: Oxford University Press, 2021).

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thoughts (partly as a response to the patchy geographical coverage here—​unfortunately covid-​related challenges have meant that not all original contributors were able to take part),2 and suggest some further reading. Brunetto Latini’s punishment may seem typical of a dispiriting human proclivity to categorize and to judge. But of course, Dante’s text, whilst wildly sophisticated in its almost geometrical schema of gradations of sin, is also deliberately problematic. Dante’s sheer pleasure at seeing his friend, his joy in his company, and his respect not just for his achievements but for his wisdom, are hard to reconcile with the brutality of the punishment here. Whilst the Commedia appears structurally to rely on categorization and labelling, the richness of Latini’s character defies such a reductive approach. He may be condemned to run on burning sands for eternity, but he cannot be reduced to a single label. The texture of Dante’s encounter undercuts the idea that human experience can truly be neatly rendered into nicely delineated categories. To some extent then, the premise of this volume must be destabilized too. It is indeed a volume about constructions of deviance, but more importantly, it is a volume about the ways in which these processes were multi-​layered, constantly shifting, beset by tensions, and repeatedly failed to map onto the messy and wondrous complexity of human life. It is the goal of this introduction, then, not only to explore constructions of deviance, but to suggest ways in which they undercut and contradicted themselves. There is an ethical prerogative here too, and one which is felt acutely as pain and sorrow by Dante’s character in the Commedia. Human beings cannot, and never should be, reduced to the categories and judgements of others. In studying the proclivity of society to label and demonize, the subjectivities and complexities of human individuals must lie at the heart of our analysis. First, we need to ask why so many societies do feel the need to define categories of deviance? This is, of course, a largely unanswerable question, but it is nevertheless an important one because it makes us think about things in contingent terms. Dante places Brunetto Latini in the seventh circle of hell because he was apparently a sodomite. But sodomy has not always been labelled as such, let alone condemned (a theme taken up in the essay here by Ruth Mazo Karras). In Dante’s medieval Florence, religious prohibitions on sodomy were long-​standing, but its criminal prosecution only really picked up pace in the mid-​fourteenth century, reaching a terrifying climax with the work of the Office of the Night in the early fifteenth century.3 When we ask the question “why” Latini was poetically condemned by Dante on the basis of his sexuality, we remind ourselves that this was a judgement rooted in time and place. As this volume will show, a whole range of reasons for constructions of deviance come into play. Contingency is most compellingly demonstrated through comparative 2 There are hugely regrettable gaps in the coverage, notably India, South America, and moving beyond north Africa. Global pandemic has ironically made global coverage harder. We hope at least to point readers to the wonderful scholarship on these areas to complement what is published here. 3 See Michael Rocke, Forbidden Friendships: Homosexuality and Male Culture in Renaissance Florence (Oxford: Oxford University Press, 1997).

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work, and it is hoped that the range of topics presented here, and their dispersal across different geographical contexts, will provide insights. Readers will find that often categories of deviance were created at least in part to make sense of the world. If human experience is messy and complex, it is always tempting to try to make sense of it by categorizing and schematizing. But more mundane factors also come into view. Categories of deviance, and their associated judgements and often punishments, could be motivated by a practical sense of ensuring social stability. More cynically, they could be extremely effective ways of shoring up power. Enacting categories of deviance both imposes a particular world view, and renders the power to punish it visible: it provides a double hit. This implies, of course, a profoundly hegemonic view of constructions of crime and deviance. But communities also played a critical role, and the role of communities comes into focused view in all the chapters gathered here. Labelling certain groups or individuals as deviant can be a powerful way to define community, to include and to exclude. And less cynically, it might be seen in some cases as motivated by a desire to protect community and to ensure common well-​being. Any single explanation for constructions of deviance flattens out the complexity of motivations. When confronted by empirical evidence, there is not a single case here where a univocal explanation suffices. More importantly, if produced carelessly, these kinds of explanations can diminish the subjectivity and the agency of those involved. To return to Brunetto Latini, the admiration of Dante’s poetic incarnation for this man is palpable and moving. ché ‘n la mente m’è fitta, e or m’accora, la cara e buona imagine paterna di voi.

(Inferno, XV, ll. 82–​84)

“The dear and good paternal image of you is now fixed in my mind, and now it touches my heart.”

Latini’s wondrousness as a human being of great wisdom and creativity is evoked here. His sodomy is not mentioned—​the reader only knows that Latini has been placed with the sodomites. Despite his grisly fate, he is irreducible, and his subjectivity is rendered most effectively by his extended, wise, and moving speech. One way of studying constructions of deviance whilst remaining attentive to the subjectivities of those involved is to focus on threats. Deviant labels were often constructed in response to perceived threats: there is a reciprocity here between conscious processes to shore up power, and acknowledgements of the real fragility produced by the irreducible humanity and uncontrollability of individuals. Another way is to think carefully about the dialogic processes at play in ideological constructions of deviance. Rarely do they represent a single authority imposing a world view and a set of judgements on everyone else: they emerge out of implicit discussion between all members of a society, and although they cruelly produce winners and losers, they are never able to silence those who find themselves condemned. The Jewish communities

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discussed in this volume by Ephraim Shoham-​Steiner, Rebecca Rist, Oded Zinger, and Julie Mell were notably eloquent in the midst of subordination and persecution. Indeed, Brunetto’s nobility as an individual problematizes the whole idea of categories. The geometry of Dante’s hell has long fascinated scholars: Antonio Manetti (1423–​ 1497) famously attempted to work out its mathematical proportions and layout.4 But it is the juxtaposition of mathematical precision and human complexity which renders the Commedia so profound. Dante constructs a schema of deviance which is mind-​blowingly coherent and learned, but he peoples it with individuals who continually render themselves too capacious for its bounds. If Brunetto Latini is noble and wise, the adulteress Francesca, whom Dante encounters in the second circle of hell (Inferno V), is dignified and eloquent, and the nobleman Cavalcante de’ Cavalcanti (Inferno X) is condemned as a heretic, but far more richly textured in his role as a loving and beloved father. Again and again, in this work obsessed with classification, the whole premise that human life can be encapsulated and codified breaks down. Some of the most interesting moments in the present collection of chapters come, then, when attempts to categorize break down or are rendered more complex. This might happen in a number of ways. Sometimes, the categories themselves are so slippery that those involved are caught out by their fluidity. So, for example, the articles here by Emily Hutchison and Michael Hope on concepts of treason and betrayal in medieval western Europe and the Mongol empire, respectively, show the fluidity of what seem like stringent categories, and the ways in which different perspectives could catch out both rebels and rulers. Sometimes, categories might break down because the different normative discourses which generate them produce conflicting views. Alexander Murray’s work on medieval suicide explores the tensions between early canon law prohibiting suicide, and the continued reliance of these same intellectuals on classical texts which often encouraged or even demanded it. The collection of chapters contains examples also of what one might very broadly term equity: a sense that the complexity of human life cannot be straightforwardly reduced to categories and that human compassion and realism require a more tailored and sometimes more merciful approach. For example, Ephraim Shoham-​Steiner’s work on Jewish theft tells of a mother arguing that her thieving son should be treated more leniently because he had been misled by more wicked companions. And sometimes these categories break down because societies choose to break them down. The impulse to categorize, to create labels of deviance, and to judge, is not necessarily universal and certainly not universal in its form. Against Fernanda Pirie’s recent eloquent description of laws as “a map for civilisation,”5 we might set David Graeber and David Wengrow’s assertion of the playfulness of many societies. Whereas Pirie claims that societies choose law and rules because they provide a sense 4 Beatrice Arduini, “Antonio Manetti: gli studi e la passione per Dante,” in Dante visualizzato. Carte ridenti III: 1450–​1500, ed. Rossend Arqués Corominas, Marcello Ciccuto, and Sabrina Ferrara (Florence: Cesati, 2019), 101–​14. 5 Fernanda Pirie, The Rule of Laws: A 4,000-​year Quest to Order the World (New York: Basic, 2021), 7.

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of orientation and often should assure the rights of the weak, Graeber and Wengrow remind us that care and domination need not go hand in hand.6 In other words, none of this is a given—​not all societies claim to love one another by violently judging and policing each other’s behaviour; the urge to categorize and condemn may be offset by playfulness and experimentation. For example, Christian de Pee’s work on marriage regulations in medieval China shows a kind of experimentation and pragmatism at a local level, contrasting with imperial attempts to impose a universal way of thinking about relationships. There is a second and crucial way in which categories are problematic, and here we switch gears. Ironically, a book on categorization and constructions of deviance must find its own way of categorizing the material. I have chosen to structure the book around a set of ideological or normative ways of thinking, in order to bring into relief the ways in which constructions of deviance are sustained and experienced. Thus, Part One is about religious ideologies and the ideas of deviance which this produced; Part Two is about political ideologies and the deviant behaviours which were defined and castigated through political discourse; Part Three is about legalism and the normative power of law to produce categories of deviance. These three parts provide, to my mind, a compelling way of analyzing different constructions of deviance, but they are all problematic. The first problem is obvious—​deviance is not just about discursive constructs, but about actual behaviour. Real individuals behaved in particular ways and espoused certain ideas. All the chapters are alert to this sense of reciprocity. Valérie Toureille reminds us that laws about theft developed in response to real thieves; Sara M. Butler discusses attitudes towards domestic abuse, with a clear sense that abusers and victim survivors lie at the heart of the analysis; G. Geltner and Gregory Roberts discuss the regulation of urban life in response to very real problems of hygiene. The second problem is the Eurocentrism of my categories. But even within medieval Europe, actually the idea of teasing apart religious, political, and legal discourse is problematic. In a different geographical context, Amira Bennison’s chapter on the Almohads makes it very clear that this is a discussion of a religio-​political community. These headings, then, are intended merely as indicative signposts. They provide one way of thinking about the material, but absolutely not the only way. Readers should remain alert, as I attempt to be in my sectional introductions, to the ways in which particular kinds of deviance slipped between the political, the legal, and the religious. Condemnations sustained by a range of discourses were overlaid one upon another, often in tension. To make the point more clearly, I suggest here alternative pathways for navigating the chapters in the book. Two further tables of contents are structured around the idea of threats, and the idea of communities. All these pathways take as a given that there is indeed something distinctive about this period, whether we call it medieval, or whether we simply circumscribe it very 6 David Graeber and David Wengrow, The Dawn of Everything: A New History of Humanity (London: Lane, 2021), 350.

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loosely by dates.7 Many parts of the world saw significant intensification of settlement patterns. Towns and settlements bring fresh challenges and opportunities for a sense of community, particularly in the diversity which tends to characterize them.8 Often, this goes hand in hand with trade and commerce, and certainly commerce on both global and local scales intensified in this period.9 This not only brought together people from different backgrounds, but also produced new ethical and practical challenges: how to assure the trust and good faith which must underpin commercial transactions?10 Some of this must surely have been driven by population growth, followed by demographic catastrophe. As is well known, by the late thirteenth century, population levels across the globe were peaking and contemporaries seem to have been well aware of this.11 The fourteenth century saw a series of catastrophes: it opened in Europe with livestock murrain in the 1310s and widespread harvest failure and famine. Frighteningly for our own times, much of this seems to have been driven by dramatic climate change: the period is often described as the “mini Ice-​age.” In 1348, bubonic plague struck across the globe. Originating probably in Yunnan Province, in southwest China it spread rapidly, reaching Genoa in 1348, and the shores of England via Lyme Regis in July of that year.12 Whilst quantifying mortality rates across the globe is well-​nigh impossible, it seems likely that up to 60 percent of the population died.13 The effects of this varied locally of course, but existing social structures were shaken dramatically, some areas saw the decline of existing patterns of labour and its exploitation, and contemporaries were acutely aware of these changes. That anxiety about deviant behaviour, about the importance of defining community, and about the potential for disorder, should intensify in such a context is surely not surprising. This kind of exogenous shock was intertwined with dramatic political change. In many ways, it was an age of competing empires. Perhaps most strikingly, the Mongols 7 An eloquent discussion of global periodization can be found in Naomi Standen and Catherine Holmes, “Introduction,” in The Global Middle Ages (Past and Present supplements 13) (Oxford: Oxford University Press, 2018). 8 Conrad Leyser, Naomi Standen, and Stephanie Wynne-​Jones, “Settlement, Landscape and Narrative: What Really Happened in History,” in The Global Middle Ages, 232–​60.

9 See, for example, Valerie Hansen, The Silk Road: A New History (Oxford: Oxford University Press, 2012). 10 See Ian Forrest and Anne Haour, “Trust in Long-​Distance Relationships, 1000–​1600 CE,” in The Global Middle Ages, 190.

11 Peter Biller, The Measure of Multitude (Oxford: Oxford University Press, 2013); Bruce Campbell, The Great Transition: Climate, Disease and Society in the Late Medieval World (Ellen McArthur lectures) (Cambridge: Cambridge University Press, 2016). 12 Monica H. Green, Pandemic Disease in the Medieval World: Rethinking the Black Death: The Medieval Globe (special issue) 1, no. 1 (2014).

13 See, for example, Ole J. Benedictow. The Black Death, 1346–​ 1353: The Complete History (Woodbridge: Boydell, 2021); Mark Bailey, After the Black Death: Economy, Law and Society in Fourteenth-​Century England (Oxford: Oxford University Press, 2020).

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swept across Eurasia constructing an empire marked by a complex mix of nomadism and institutionalized government.14 This produced dramatic change in China, with the coming of the Yuan dynasty. In the Middle East, the Abbasid and Seljuk empires found themselves threatened and ultimately superseded by the Mamluks, who were not just competitors but represented a very different set of political models, strikingly characterized by a form of meritocracy.15 Dramatically different, but also changing political forms, can be found in other parts of Africa, as, for example in Mali, where a form of decentralized but highly effective and enormously wealthy empire was wrought by the charismatic figure of Mansa Musa.16 Many historians of Europe now speak of the rise of polities in this period—​the shoring up of political boundaries and territorial identities, the development of statecraft, and growth of political institutions.17 These political forms across the globe looked dramatically different and rested on completely dissimilar principles, but the rapidity of change and concern for experimentation and development is striking across the globe. One final point is critical in this rapid overview of what characterizes the period. Put simply, we know so much more about it. Historians speak of the “rise of the public sphere” in England in the period, and an enormous amount of ink has been spilled about the growth of literacy in Europe from the thirteenth century onwards.18 But in different forms, the same is true across the globe. The documentation for China is famously and fabulously rich, and of course facilitated by the use of printing technology.19 But it was also propelled by a desire to document. This desire to document can be seen in the growing notarial culture across the Middle East, Europe, and North Africa.20 But we are not just looking for words and texts more readily accessible to historians; we are also talking about a sense of wider public discourse, of a sphere for discussing change, of political participation writ large. We might cite the rise of representative assemblies, 14 Marie Favereau, The Horde: How the Mongols Changed the World (Cambridge, MA: Harvard University Press, 2021).

15 See Andrew Peacock, The Great Seljuk Empire (Edinburgh: Edinburgh University Press, 2015); Jo Van Steenbergen, A History of the Islamic World, 600–​1800: Empire, Dynastic Formations, and Heterogeneities in Pre-​Modern Islamic West-​Asia (London: Routledge, 2020).

16 Michael Gomez, African Dominion: A New History of Empire in Early and Medieval West Africa (Princeton: Princeton University Press, 2018).

17 John Watts, The Making of Polities: Europe, 1300–​1500 (Cambridge: Cambridge University Press, 2009).

18 Charles F. Briggs, “Literacy, Reading, and Writing in the Medieval West,” Journal of Medieval History 26, no. 4 (2005): 397–​420. 19 Denis Crispin Twitchett, Printing and Publishing in Medieval China (London: Wynkyn de Worde Society, 1983).

20 See indicatively: Judith Reesa Baskin, “Jews in the Notarial Culture: Latinate Wills in Mediterranean Spain, 1250–​1350,” Shofar 17, no. 1 (1998): 162–​64; Boaz Shoshan, Damascus Life 1480–​1500: A Report of a Local Notary (Leiden: Brill, 2019); Kathleen Miller, Guardians of Islam: Religious Authority and Muslim Communities of Late Medieval Spain (New York: Columbia University Press, 2008), 81–​100.

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and the use of vernacular languages for administrative purposes. Revolts across the globe bear witness to this as the article here by Nassima Neggaz shows. Continued investment in monumental architecture which both impressed but also incorporated the wider body religious and politic, the development of political ceremonial which involved the wider public, are further ways of thinking about this growth of a public sphere.21 And this bears critically on our subject of constructions of deviance. If this was a period in which, across the globe, people talked about and documented their political, religious, and social experiences, this generated reflections on, and documentation of, the articulations of power, conceptions of community, and attempts to make sense of social reality. The table of contents which the book follows physically is structured around normative and discursive ways of managing deviance. The articles show how the interplay between these discourses and people’s actual behaviour responded to, and generated understandings and experiences of community, society, and politics. It opens with a section on religious ideologies. This was a period which saw growing attempts in the name of religion to circumscribe, define, and judge behaviours and beliefs: paradigmatic is the Fourth Lateran Council of 1215, an extraordinary attempt to codify and control the behaviour and beliefs of Catholic Europeans. Equally, it is a period in which religious belief systems seem to have hardened up, or at least attempted more clearly to circumscribe, what it was they actually believed, creating categories of deviance or heresy for those who differed. Religion is inherently a subjective category. Belief systems are in some ways imposed, but individuals must nevertheless choose subjectively to engage and internalize beliefs. No one can be forced to believe anything, even if choices are motivated by layers of fears, the desire for comfort, support, and belonging. The Marxist sense that religion disempowers and controls is reductive and problematic, but importantly it does remind us that belief systems and the normative categories which they generate can be profoundly hegemonic. This seems then an appropriate theme with which to open a volume concerned with the interplay between individual choices and behaviours, and the ways in which they are circumscribed, controlled, and categorized. It is relatively rare that the study of categories of religious deviance can be reduced to a study of hegemonic us-​versus-​them-​type analysis. The debate about heresy is paradigmatic for how we approach these challenges. Heresy was not a new category by any means in the later Middle Ages. Few, though, would contest the notion that from the thirteenth century onwards, the categorization and persecution of heretics increased dramatically in a range of religious contexts. On the one hand, defining some believers and some beliefs as unacceptable clearly provided ways of classifying and understanding the world. This was not just a top-​down process, but one bought into and propelled by the wider religious community in most cases. 21 For example, Gomez, African Dominion, 45–​50; Justine Firnhaber-​Baker and Dirk Schoenaers, eds., The Routledge History Handbook of Medieval Revolt (London: Routledge, 2019).

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But it was also precisely about community, about defining who was in and out, and about circumscribing its boundaries. Categories of heresy sustained power, and constructed community. Such a view was perhaps most famously advanced by R. I. Moore in the seminal book The Birth of a Persecuting Society.22 But more recently historians have repeatedly pointed out that the subjectivities and choices of the heretics themselves deserve more attention than such a model tends to give them.23 After all, these were people willing to die for their beliefs rather than renounce them. We do indeed most often have the source material to understand not just the ways in which they were demonized, but the choices they made themselves. Of course, these were choices shaped by awareness of the wider persecuting context. This is then a study of deviance which requires careful analysis of the interweaving of condemnations by others and individual choices; of top-​down power and communal fear and hatred; of protective strategies by individuals and wider discursive ideologies. The chapters here by Ian Forrest and Ann Giletti, on heresy in medieval Europe and censorship at universities, engage precisely with this dynamic. Religious ideologies are a very special case in the study of deviance because they are not just about behaviours and practices, but are also of a transcendental nature. This transcendentalism might seem to offer religious categories even greater authority to control individuals and to exercise power. But this is to miss the point in three main ways. First, the transcendental dimension of religious ideologies means that their attempts at categorization are even more fraught precisely because to some extent they rise above human logics. So, for example, in a Christian context, we might examine the ways in which many thinkers tried to articulate the role of mercy in a judicial context.24 Violent repression generated by black and white categories failed to map onto the complexity of divinely-​modelled caritas, hence the popularity of miracles in this period wherein the Virgin Mary suddenly appeared to rescue someone judicially condemned but apparently deserving of mercy.25 Ruth Mazo Karras cites one such story in her account here of the labelling of same-​sex erotic relations. Alexander Murray’s account in this volume of medieval attitudes to suicide is shot through with contemporaries’ sense that human pain was more complex and pity-​inducing. 22 R. I. Moore, The Formation of a Persecuting Society: Authority and Deviance in Western Europe, 950–​1250 (New York: Blackwell, 1987).

23 J. H. Arnold, Belief and Unbelief in Medieval Europe (London: Hodder Arnold, 2005). See also a useful review article of recent historiography by Jessalyn Bird, “Recent Trends and Future Directions in the Study of Medieval Religion, Heresy and Inquisitions,” The English Historical Review 135, no. 576 (2020): 1260–​86.

24 This kind of approaches inform two recent publications in particular: Lidia Zanetti Domingues, Confession and Criminal Justice in Late Medieval Italy: Siena, 1260–​1330 (Oxford: Oxford University Press, 2021); Philippa Byrne, Justice and Mercy: Moral Theology and the Exercise of Law in Twelfth-​ Century England (Manchester: Manchester University Press, 2019). 25 For example, in the plays produced by the Parisian Guild of Goldsmiths in the late fourteenth century: Les Miracles de Nostre Dame par personnages, ed. Gaston Paris and Ulysse Robert, 7 vols. (Paris, 1876–​1893).

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Second, the authority of transcendental beliefs means that conflict is even more fraught. Put simply, if various parties believe that they have sacral authority for their beliefs, the tension between different classifications of what is deviant and what is not is intensified with terrifying consequences. As case studies in conflict between different delineations of and experiences of deviance, religious ideologies take centre stage. One might think about this more positively, in ways implied by Graeber and Wengrow: religious ideologies are intertwined with labelling deviance, but at the same time offer multiple possibilities, what they term a kind of “playfulness.” It is a vast statement, but a compelling one, to claim that no world religion has actually produced a single hegemonic way of distinguishing between right and wrong, but rather provided parameters for discussing and articulating such distinctions. For example, Julie Mell’s article in this volume shows the ways in which the idea of usury was weaponized against medieval Jews, but also the ambivalences, disingenuities, and explorations which lay at the heart of economic thinking on the subject. And third, the transcendental quality of religion can produce an illusion of essentialism. It underpins a kind of authority which claims that categories of deviance are universal and obvious. Unpacking the ways in which deviance in a religious sense worked in this period reveals quite the opposite. These were highly contingent categories, ever shifting and often contested. Religion is also about behaviours and identities. Whilst it is bound up with conceptions of community, it is also deeply personal: it provides moral frameworks for the ways in which people identify themselves as individuals and in relation to others. Conceptions of sexuality, of sexual relationships, of gendered identities, of marital relationships, even of friendship and the ethical imperatives of how to love and how to hate, tend to be bound up in religious ideologies. Yet, as Christian de Pee shows here with regard to Song and Yuan China, religious or cosmological ways of thinking about relationships overlapped with more legalistic and often pragmatic concerns. Thinking about deviance—​its constructions and its behaviours—​from this perspective offers insights into how societies have made sense of identities and relationships. The second part of the volume addresses political ideologies. It is, of course, a problematic endeavour to separate politics and religion: the opening chapter of the section by Michael Hope shows very clearly how treason and political crime within a Mongol context was perpetrated, classified, and judged against the power of the Khan understood in cosmic terms. Nevertheless, I hope that political ideologies provide a useful analytical framework for thinking about the weight of motivation and logic behind the perpetration and demonization of some of these behaviours. Whilst the opening chapters by Michael Hope and Emily Hutchison address treason in Mongol and French and English contexts respectively, political ideologies are not simply about top-​ down hegemony. Indeed, these chapters are alert to the ways in which treason and its categorization emerge out of political community as well as power. Nassima Neggaz’s chapter on revolt in the Middle East makes the powerful point that members of political communities actively contested and defined deviance. If this was a period of intensified statecraft, of many diverse kinds across the globe, it was also a period of increased

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buy-​in, and often of increased political participation. No ruler in this period had the means to impose a single will on an entire population. Aristotle teaches us that politics is precisely about understanding and ensuring the good of the individuals as they interrelate to produce a wider community. Studying deviance then in political terms—​as perpetrated and as defined—​is not just a story about power and obedience. It is about how particular world views and political systems are understood and sustained, and it is about how communities conceive of and define themselves. Moreover, the process works in many directions. Political ideologies themselves gain traction through constructing classificatory systems for managing the behaviours of members of a political community. And most obviously, political ideologies can be made visible through the spectacle of violent punishment. Taken together, the chapters in this section once again make the point that deviant categories are rarely one-​ dimensional or uncontested. We hope that readers will explore the ways in which perpetrators were moved by different understandings of the boundaries between good and bad in political terms and the intertwining of so-​called political and religious motivations. The second section of this part of the book examines ways in which entire groups, defined religiously, ethnically, or behaviourally, have found themselves defined as deviant. Amira Bennison’s discussion here of the religio-​ political project of the Almohads, and Rebecca Rist’s analysis of persecution of Jewish communities, show how political community could be created through exclusion based on religious categories. Even where these community-​oriented definitions of deviance were rooted in observable actions, as in the “health-​scaping” and urban regulations discussed by G. Geltner and Gregory Roberts, categories were obviously contingent and politically motivated. And needless to say, they were often contested, or at least their consequences were. The third part of the book examines the most explicit form of ruliness available to societies: legalism. Laws have long provided a normative discursive way of classifying society, and it is useful to move beyond a narrow vision of law as coercive. Paul Dresch defines legalism as “an appeal to rules that are distinct from practice, the explicit use of generalizing concepts, and a disposition to address in such terms the conduct of human life.”26 Such a definition reminds us that law is sustained by a human impulse to make sense of reality, as much as it is generated by the desire to control and manipulate. Again, the category is problematic. Legalism cannot be disentangled from religious and political frameworks: most often it is motivated by both.27 Anthropologists have long drawn attention to the ways in which legal frameworks map onto other normative systems. They have also repeatedly reminded us that law cannot be thought of as a monolithic system. This is not only because so many societies are characterized by legal pluralism, 26 Paul Dresch, “Introduction,” in Legalism: Anthropology and History, ed. Paul Dresch and Hannah Skoda (Oxford: Oxford University Press, 2012), 1.

27 This is a point nicely made in Peter Coss, The Moral World of the Law (Cambridge: Cambridge University Press, 2000).

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but also laws relate to, and are held in tension with, moral and ethical frameworks of other sorts. In most contexts legalism may gain its traction precisely because it claims to map precisely onto morality and religious authority, but in reality these are maps where the tracing paper has been laid only crookedly on top. Legalism is a particularly useful context for teasing apart the various layers in the construction of deviance. One might start with generalized communal taboos, then explore the ways in which customs emerge; the codification and prescription of laws produces its own categories, but these often look very different when applied in practice. The behaviours of those who prosecute and who (mis)behave and find themselves prosecuted are another step in the process. And all this is non-​linear: the implementation of legal categories loops back and shapes the legislative articulation of those categories (most obviously with the concept of precedent in English common law),28 the role of communities in accusing individuals depends on their understandings of rules and shapes those rules in their turn, and so on. The chapters drawn together here tease apart these stages carefully. Valérie Toureille and Ephraim Shoham-​Steiner in chapters on theft in Christian Europe and medieval Jewish communities respectively further remind us of the contingency of legalism as a process in defining and dealing with deviance. Moreover, they are dealing with real thieves: these were categories which arose from individual behaviours and choices, however constrained these may have been. That sense of reciprocity emerges with even greater clarity and urgency in the chapters on violence of various kinds by Warren Brown, Gwen Seabourne (on rape in Christian Europe), Yasmine Badr (on rape in the Islamic world), and in a domestic context (Sara M. Butler on Christian Europe and Oded Zinger on Jewish communities in medieval Egypt). Here we are powerfully reminded that legal categories and deviant behaviours are produced not just by those in power, and engaged with by perpetrators. The central perspective should surely be that of victim survivors: those who found themselves harmed by choices made by others. As these chapters show, alongside their brilliant examination of complex legal frameworks and communal taboos and reportings, victim survivors played a central role in articulating their own experience. There is no need to assume that the medieval records have obliterated their voices—​ indeed, that is just a failure of our own listening practices as historians. And their voices, remarkable often for their courage, as well as their subjective experiences, should be central to our analyses of these kinds of deviance. The chosen structure for this book, then, reflects a sense that in studying deviance, we are studying the ways in which deviant categories emerged, were defined, and judged. It reflects a sense that the discourses by which this happened were intertwined and overlaid, that distinctions between right and wrong were often blurred and often held in tension with one another. It tries to engage with a sense that deviant categories were constructed not just from above, but dialogically with communities, and amongst 28 See Paul Brand, The Making of the Common Law (London: Hambledon, 1992).

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the individuals involved. And crucially, it tries to inject a sense of the subjectivity of those involved. This structure produces a sense that what drives constructions of deviance is the need to produce a certain kind of order, both pragmatically and ideologically. This cannot be solely true, so we offer alternative pathways through the book, and hope that readers will construct their own also. One focuses on communities, and how these both generate certain kinds of misbehaviour and behaviour, but also produce particular impulses to categorize and distinguish between right and wrong. Michel Foucault perhaps most famously articulated a view that constructions of, and punishments for, deviance sustained not only particular visions of power, but also particular visions of community. His Surveiller et Punir famously (and problematically for the Middle Ages) claims that the eighteenth century saw the development of particular forms of coercive control, notably prisons, as the state took it upon itself to control not only behaviours, but the ways in which people conceived of such behaviours.29 And this double-​pronged attack enabled the construction of communities defined as much by exclusion as by inclusion. One might argue that community relies on deviance partly because these constructions and judgements help to articulate shared understandings and ideologies. But one might also argue that they work by marginalizing and excluding in order to reiterate who is “in.” This is an approach rather brilliantly explored by Frank Rexroth in his work on deviance and regulation in late medieval London.30 All this is highly discursive, and perhaps rather overlooks the reality of lived experience. A welcome corrective might be sought in the recent work of a number of scholars on hygiene and “health-​scaping” in late medieval urban communities. The very practical demands of close living quarters in an era of limited healthcare meant that labelling deviant and anti-​social behaviours as such was a process critical to the well-​being of the community.31 This makes sense politically too: late medieval Europe was characterized by an obsessive attention to the furtherance of the “common good” as the ultimate aim of political authority and social community.32 This pathway proposes sections entitled “rulers and ruler,” “sexual relationships,” “urban communities,” “communities of belief,” and “communities of economic interest,” 29 Michel Foucault, Surveiller et punir: Naissance de la prison (Paris: Bibliothèque des histoires, 1975). 30 Frank Rexroth, Deviance and Power in Late Medieval London, trans. Pamela Selwyn (Cambridge: Cambridge University Press, 2007).

31 See the recent work of Janna Coomans, Community, Urban Health and Environment in the Late Medieval Low Countries (Cambridge: Cambridge University Press, 2021); Carole Rawcliffe and Claire Weeda, Policing the Urban Environment in Premodern Europe (Amsterdam: Amsterdam University Press, 2019); G. Geltner, Roads to Health: Infrastructure and Urban Wellbeing in Later Medieval Italy (Philadelphia: University of Pennsylvania Press, 2019). 32 See Matthew Kempshall, The Common Good in Late Medieval Political Thought (Oxford: Clarendon Press, 1999).

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in order to attempt to draw out the ways in which patterns of deviance could be both ideological and pragmatic. Once again, these are all contested categories: in most cases, those condemning “deviancy” would claim that they were protecting community, whilst those defined as deviant often understood their own behaviours and identities as sustaining community differently conceived. I would suggest that it is in the interstices and tensions between these different visions that much of the interest lies. And once again, it remains crucial to work wherever possible from the perspective of those who found themselves victimized either by the brutal actions of others, or the brutality of categorizations themselves. The relationship between the agency of individuals, the role of categorizations, and the suffering of those caught up in these processes perhaps emerges more starkly in another proposed pathway, that of “threats,” perceived or real. Deviance is usually constructed as such because it is deemed to be a threat, rightly or wrongly. Indeed, many deviant behaviours are intended to be threatening. The ubiquity of attempts to classify and to distinguish between deviant and non-​deviant behaviours and identities is perhaps a reminder just how fragile social and political orders usually are. If defining perceived threats was a way of acknowledging that fragility, it was also a way of fear-​ mongering and of producing power. Even where threats were entirely imagined, and the phenomenon of anti-​Semitism is a repugnant case in point, our analysis nevertheless needs carefully to incorporate the agency and subjectivity of those who found themselves thus defined. The section explores perceived threats to domestic units, to political stability, to religious integrity, to physical health, and to economic trust: this highlights the agency of those involved, the fears which drove categorization and demonization, and the complexity of the ways in which threats could be conceptualized. I would like to finish this introduction with a few pleas to the readers. Please do look at these chapters in different orders, and try out different juxtapositions: we hope that this will produce new insights and uncover different logics behind these processes. Please look for the cracks: the moments at which attempts at categorization failed, when different logics produced different outcomes, and when human experience revealed itself to be irreducible to categories. Most importantly, please look for moments when that irreducibility became not failure but opportunity. I see constructions of deviance and the impulse to categorize as emphatically a bad thing. We all do it. But its implications are terrifying and repugnant, in terms of human cruelty and existential dogma. So I have a third and final plea, which may seem incongruous. Please approach the volume with humour. It is an element largely lacking in the chapters, though the attentive reader will notice the odd medieval joke hiding here and there. Humour has long proven the most effective defence against dogma, and I am often in fact struck by the medieval propensity to crack jokes in what might seem like the most inappropriate circumstances. What those jokes reveal, I think, is not a hopelessly blasé attitude to suffering, but rather a profound discomfort about the disjuncture between the messy rich texture of our lives, and our social need to impose an order which is often reductive and cruel.

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Selected Secondary Sources Arnold, J. H. Belief and Unbelief in Medieval Europe. London: Hodder Arnold, 2005. Biller, Peter. The Measure of Multitude. Oxford: Oxford University Press, 2013. Campbell, Bruce. The Great Transition: Climate, Disease and Society in the Late Medieval World. Cambridge: Cambridge University Press, 2016. Coss, Peter. The Moral World of the Law. Cambridge: Cambridge University Press, 2000. Favereau, Marie. The Horde: How the Mongols Changed the World. Cambridge, Massachusetts: Harvard University Press, 2021. Firnhaber-​Baker, Justine and Dirk Schoenaers, eds. The Routledge History Handbook of Medieval Revolt. London: Routledge, 2019. Gomez, Michael. African Dominion: A New History of Empire in Early and Medieval West Africa. Princeton: Princeton University Press, 2018. Graeber, David and David Wengrow. The Dawn of Everything: A New History of Humanity. London: Lane, 2021. Green, Monica H. ed. Pandemic Disease in the Medieval World: Rethinking the Black Death: The Medieval Globe (special issue) 1, no. 1 (2014). Miller, Kathleen. Guardians of Islam: Religious Authority and Muslim Communities of Late Medieval Spain. New York: Columbia University Press, 2008. Moore, R. I. The Formation of a Persecuting Society: Authority and Deviance in Western Europe, 950–​1250. New York: Blackwell, 1987. Peacock, Andrew. The Great Seljuk Empire. Edinburgh: Edinburgh University Press, 2015. Pirie, Fernanda. The Rule of Laws: A 4,000-​year Quest to Order the World. New York: Basic, 2021. Standen, Naomi and Catherine Holmes, The Global Middle Ages (Past and Present supplements: 13). Oxford: Oxford University Press, 2018. Steenbergen, Jo Van. A History of the Islamic World, 600–​1800: Empire, Dynastic Formations, and Heterogeneities in Pre-​Modern Islamic West-​Asia. London: Routledge, 2020.

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PART ONE

RELIGIOUS IDEOLOGIES

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INTRODUCTION Hannah Skoda Religion so often lies at the heart of the ways in which societies and individuals make sense of their worlds and attempt to distinguish between right and wrong. Belief often claims a degree of transcendental timelessness, but of course history teaches us that religious maps of behaviour and misbehaviour are profoundly contingent. This small sectional introduction will briefly explain what the chapters here are about, draw out some central themes and questions, and attempt to set them in a wider context with some suggestions for further comparative reading. The first part of this section explores the categorization of ideas and beliefs themselves. Societies often map out the rightness and wrongness not only of behaviours, but of thoughts and cherished beliefs. It is both an extraordinary and horrifying endeavour, and an extremely common one. We open with Ian Forrest’s exploration of heresy in England, Bohemia, and the Languedoc from the thirteenth to the fifteenth centuries. He brings together approaches to the study of heresy and the study of crime to pin down what is particular about the processes by which heretical beliefs and their adherents were demonized and cast out from the Christian community. A powerful argument emerges that the process was contingent—​rooted in time and historical circumstance—​as indeed are all crimes which depend by their very nature on a process of definition. That contingency involved a degree of uncertainty and suspicion which looked different from the clearer delineation of a crime like theft. Heretics, once classified as such, found themselves, as Forrest argues, “commodified”—​ostensibly stripped of features apart from their heretical-​ness. After tracing this process comparatively across three contexts, Forrest then turns most importantly to the heretics themselves: how did they experience belief? What motivated their choices? How might we do justice to the ethical imperative to place these individuals at the heart of our analysis, rather than merely reproducing the categories imposed by those hostile to them? Readers might compare Forrest’s themes here with an exploration of heresy and reactions to it in Byzantium, and in medieval Islam. As Christine Caldwell Ames has pointed out, Christians, Muslims and Jews shared ways of thinking about God and his relations with humanity, shared ways of interpreting texts and traditions that lent themselves to increased fears of disunity, diversity and wrong belief. Again, each religion’s scripture had lessons and warnings about unity, consequences and punishment that could be underlined, revised, or ignored, dependent upon circumstance.1

1 Christine Caldwell Ames, Medieval Heresies: Christianity, Judaism and Islam (Cambridge: Cambridge University Press, 2015). ­

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That last phrase is the key here: although these monotheistic religions seem to have carried an intrinsic anxiety about unity, labelling and persecution of religious deviants ebbed and flowed. Through comparative study, Caldwell Ames has shown that political fragility tended to intensify persecution of heretics. Thus, the more fragmented situation by the early eleventh century, whereby rival Muslim states threatened the security of the Abbasid Caliphate, can be correlated and perhaps related to an intensification of efforts against heretics. By 1041, the Caliph al-​Qadir’s (991–​1031) Qadiri creed was formally issued by his son: “This is the profession of faith of the Muslims; he who is opposed to it is a transgressor of the law and an infidel.”2 In a Byzantine context, the dynamics of the freshly-​formed Comnenos dynasty lent particular impetus to the persecution of heresy. Alongside this sense that heresy labels were related to political fragility lies another important resonance with Forrest’s chapter: the efforts to pin down that most slippery of crimes. Medieval Judaism also attempted to define and categorize right and wrong belief: the figure of Maimonides was key.3 Strikingly, though, Jewish definitions of heresy were never institutionalized in the ways attempted in the Islamic and Christian worlds.4 Comparing patterns of heresy—​both its practice and its persecution—​across these religious worlds, also reveals the particularity of what was problematic. In an Islamic context, the emphasis was very strongly on obedience.5 In a Jewish context, definitions evolved around a “foundation of a baseline Jewish belief and identity.”6 As Forrest shows in a Christian context, the relationship between beliefs, behaviours, and identities was in flux. Here, an instructive contrast might well be sought in Mongol attitudes to belief: broadly speaking, the relationship here between religious belief and ethnic and cultural identities was such that Mongol rulers were willing to allow a range of beliefs to flourish.7 Those who were accused of heresy were in the majority of cases sufficiently wedded to these beliefs and identities to be willing to die for them. There is a substantive difference here between so-​called heretics, and those who explored and discussed potentially “deviant” ideas in an intellectual context whilst continuing to define themselves as good Catholics. The nature of these ideas, and the ways in which they were censored is explored in Ann Giletti’s chapter. Giletti considers the ways in which a number of ideas were defined, castigated, and condemned in thirteenth-​century Paris, focusing on a set of condemnations from 1277. As she points out, the ideas themselves 2 Caldwell Ames, Medieval Heresies, 169. 3 Caldwell Ames, Medieval Heresies, 183. 4 Caldwell Ames, Medieval Heresies, 184. 5 Caldwell Ames, Medieval Heresies, 174. 6 Caldwell Ames, Medieval Heresies, 181.

7 See T. Barrett, “Religion and Violence in China,” in The Cambridge World History of Violence, ed. M. Gordon, R. Kaeuper, and H. Zurndorfer (Cambridge: Cambridge University Press), 349–​67.

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were being condemned, as well as those who held them, and in some cases, those who disseminated them. Some ideas were condemned as “errors”—​in other words, they were criminalized. She explores in particular the censorship of Aristotelian ideas on the eternity of the world, which mounted a challenge to the idea of the creation story, and Averroes’s work on the unicity of the intellect (responding in part to Aristotle) which was deemed to undermine belief in the afterlife. The complexity of these ideas is explored, and the ways in which condemning them ironically required careful engagement with their substance. Once again, the subjectivity of those involved in these discussions emerges with clarity—​these were university men committed to the exercise of the intellect, who continued to see themselves (and indeed to be seen) as members of the Catholic Church. Indeed, many saw these debates as central to intellectual endeavour. The scholastic theologian Godfrey of Fontaines pushed back against censorship eloquently:

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

It is thanks to the diverse opinions that cultured and learned men hold concerning such questions through various discussions taking one side or the other so as to find truth that the truth is best discovered. Consequently to impede this method of investigating and establishing the truth is evidently to impede the progress of those who study and seek to know the truth.8

That sense of subjectivity is most painfully acute in the following chapter by Alexander Murray on suicide in Europe in the Middle Ages. He traces the process by which suicide was condemned, beginning effectively with St. Augustine’s strong prohibition on suicide in The City of God: this is shown in part to be a response to the continuing prevalence of stoic ideas, which tended rather to extol the virtues of those who took their own lives. The condemnations were profoundly cruel, but the ways in which they emerged were strikingly unsure of themselves. The reader will find a to-​ing and fro-​ing here which is very enlightening, as different philosophical currents, legal traditions, and religious norms collided, intertwined, and continued in uneasy tension. Murray draws striking comparison with Indian ideas about suicide, and readers might also find other comparisons instructive. In the face of horrific persecution, Jewish communities articulated a philosophy of suicide martyrdom: this was the “sanctification of God’s name” by enacting “an extreme and total expression of faith.”9 Attitudes were complex, with many believing this should not be encouraged. But this was not an act of desperation: it was an act of resistance, and a visible statement that “the stronger power does not make the rules.”10 This sense of suicide martyrdom as rejection of another power’s rules, as protection of community and belief, as fulfilment in some sense, was intertwined with a resonant and emotive sense of sheer suffering: this is 8 Godfrey of Fontaines, quodlibets XII. 5, quoted in François-​Xavier Putallaz, “Censorship,” in The Cambridge History of Medieval Philosophy, vol. 1 (Cambridge: Cambridge University Press, 2014), 99–​113. 9 Simha Goldin, The Ways of Jewish Martyrdom (Turnhout: Brepols, 2008), 344. 10 Goldin, Jewish Martyrdom, 345.

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drawn out with particular poignancy in the work of Susan Einbinder on Jewish poetry in medieval France.11 Suicide in China took very different forms, and many scholars have shown the importance of examining this through the lens of gender as a category of analysis. Female suicide to protect chastity, or suicide by widows, was long understood as Neo-​Confucian patriarchal oppression in a familial context: the practice seems to have intensified in the fifteenth century. More recently, scholars have pointed to the role of female agency on the one hand, and a cultural discourse of suicide as the ultimate expression of loyalty on the other: “the rise of pro-​suicide writings in the fifteenth century was not orchestrated by the state on behalf of a conservative and puritanical authority. Rather it was a spontaneous development among Ming literati of a variety of intellectual persuasions.”12 Perhaps most striking in Murray’s chapter is the relationship between the normative discussions about suicide coming from above—​from Roman lawyers, canonists, theologians, philosophers—​and the role of communities. A critical concept is introduced here: that of the taboo. So much of our historical source material about constructions and categorizations of deviance comes from figures of authority. It is always tempting then to assume that these were the instrumental figures. But of course, these were also the figures with literary and practical means of documentation and repression at their disposal—​which is not the same thing. Such normative evaluations “from above” might well be drawing also on wider communal taboos. And these taboos, and the role of the community, are not invisible to historians—​they just take a bit more looking for. Both Murray’s and Forrest’s chapters point strongly to the importance of communities in defining, seeking out, and even punishing what was perceived as deviance. Other key themes emerge from this trio of chapters. As Forrest points out here, what is at stake is the relationship between individual actions and the impulse to categorize them. This relationship is dependent upon processes of definition, and, again as Forrest points out, these definitions have both locutionary and illocutionary power: the definition of a someone as a heretic effectively makes them a heretic. The relationship between reality and language is peculiarly complex in the case of constructions of deviance. And these definitions are anything but straightforward. For heresy, they were distinguished by a sense of fluidity and uncertainty, often reflected in the sentence structure of the records. In the case of the censorship which Giletti explores, definitions had to grapple with the relationship between people and ideas, and saw a trajectory from early thirteenth-​century prohibitions of particular books to later condemnations of the ideas themselves, astonishing in their capaciousness. Suicide might seem a clearer case, but here again, Murray shows that definitions evolved in often rather confused 11 Susan Einbinder, Beautiful Death: Jewish Poetry and Martyrdom in Medieval France (Jews, Christians, and Muslims from the Ancient to the Modern World) (Princeton: Princeton University Press, 2002), particularly 1–​10.

12 Paul Ropp, “Passionate Women: Female Suicide in Late Imperial China,” in Passionate Women: Female Suicide in Late Imperial China, ed. Paul Ropp, P. Zamperini, and Harriet Zurndorfer (Leiden: Brill, 2001), 19.

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ways, and the Greek term biothanatos (literally “life-​death”) continued to be used polysemously even as late as 1100. What motivates these categorizations and demonizations of particular ideas and actions? We perhaps most often assume that this is about power. But strikingly, raw power emerges only faintly as a theme in these chapters. Rather, we find an impulse to think about the well-​being and moral integrity of the religious community (however repugnant this may be to us). This is not a unilaterally top-​down process in any of the accounts here. Forrest’s chapter demonstrates the importance of community in picking out what they saw as heresy, in defining certain people as such (even if this was so that witnesses could protect themselves), and often in pursuing personal vendettas and grievances via the flinging of such an accusation. Communal fears about contagion and purity provide the hinterland, and perhaps more than that, for Murray’s discussion of legalistic, philosophical and theological ideas about suicide. But beyond these kinds of functionalist explanations for why some behaviours and ideas are demonized lies a strong sense that moral and religious frameworks are to a certain extent self-​generative. The scholastic debates at the University of Paris which Giletti outlines responded to one another: this was a conversation, albeit one with terrifyingly high stakes. Even the shifts in thought about suicide were driven as much by discussion and enquiry as they were about concern for society or power more generally. In the case of suicide, one of the most interesting trajectories traced in Murray’s chapter concerns the role of intention. The canonistic proscription on taking one’s own life enacted at the Council of Braga in 561 is shown to have focused on the ways in which one might do it, rather than on intention. By the Council of Auxerre, shortly afterwards, the telltale phrase “propria voluntate” was there. Forrest also carefully teases out the ways in which definitions of heresy prioritized the idea of intention, and attempted to relate this to visible behaviours. The role of intention then was a key, but shifting, component of the way in which deviance was constructed. And it is critical, because it is utterly reliant on the subjectivity of the individuals at the heart of all these cases. Constructions of deviance did not operate in some kind of normative vacuum, but were intertwined with the subjectivity of those they were attempting to categorize. So too must our study of deviance be focused on the subjectivity of the heretics, the theologians, those who took their own lives. Indeed, Forrest asks what it must have felt like to be trapped between “contingency and commodification.” How can we recover and explore the experiences of those whose cases these were? Giletti’s chapter also draws stark attention to the choices made by those who espoused “erroneous” ideas. These were highly learned men, who made these choices knowingly and who believed that their Christian identities remained unshaken. Murray’s chapter reminds us of the misery which lay at the heart of suicide—​and, implicitly, of the appalling suffering for grieving families. This sense of subjectivity is important not just in re-​focusing our analysis on individuals, but also in understanding processes of deviance construction themselves. All three chapters show these processes to have been complex, dialogic, contingent. Those caught up in them were not simply victims of authoritarian forces, but their subjectivity was intertwined in the ways in

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which categories emerged and were defined. These were not simply “us versus them” situations, as Giletti puts it. And these categories were complex. Constructions of deviance, particularly religious ones, often try to project a sense that they are essentialized, universal, and timeless. But these chapters show this to be untrue in many ways. First, one can point to the sheer contingency of these processes. All three chapters trace the ways in which categories and condemnations ebbed and flowed over time (I am carefully avoiding the word “developed”). All three draw attention to particular moments which punctuate these shifts (for example, the 1277 condemnations in Paris condemning theological errors; the 561 Council of Braga condemning suicide), but all three also show these stories to be non-​linear. Murray’s account of suicide prohibitions is attentive to the tensions and uncertainties which emerged, not least in the uneasy relationship between canon-​law proscriptions and the continued reliance on classical texts which so often espoused a Stoic stance extolling the virtues of suicide. In this case, as Murray points out, the re-​ kindling of interest in Aristotle in the thirteenth century helped to resolve that tension, since here was a classical author also condemning suicide as damaging the health of the social body. And yet, as Giletti points out, Aristotelian ideas also generated intractable philosophical problems which some tried to reconcile with their faith, an attempt others were decrying as erroneous. Even as categories emerged, they were by no means clear. Giletti explores the idea of “degrees of deviance,” pointing out that some ideas were declared false, some more profoundly erroneous, and some heinously heretical. Yet even these degrees were not clearly delineated and terminology was slippery. Moreover, the normative discourses which seemed to underpin these categories were multiple and often held in uneasy tension. Whilst placed in this section on religious ideas and beliefs, Murray’s chapter shows religious condemnations of suicide were intertwined with classical philosophical considerations, Roman law, and custom. The categories themselves then emerge from these chapters as processes—​shifting, fraught, and blurred around the edges. The same questions might be picked up again in relation to the next pair of chapters, which explore deviance with regard to sexualities in the Middle Ages. Here, we move beyond Europe and hope that the rich textures which emerge are insightful for scholars in a range of times and places. Ruth Mazo Karras explores ways in which same-​sex sexual relationships came to be categorized as deviant. As ever, she stresses the many ways in which deviance is a highly contingent term: indeed, even whilst homosexual relations came to be condemned as deviant, many affirmative attitudes towards such relationships continued. Same-​ sex eroticism was never a stable category of deviance, and at the centre of any such analysis should lie the subjective experience and desires of individuals. Karras shows that early condemnations were not bothered particularly about gender, but rather about non-​reproductive sex. The idea of penetration played a rather different role in shifting ideas about what was and was not deviant; likewise, the ages of those involved produced different judgements over the centuries (on the whole, inspiring far less concern than now). This chapter argues that a crucial shift can be dated to the

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time of the Council of Nablus (1120). During this Council in the Frankish Kingdom of Jerusalem, a range of sexual activities were condemned: adultery, inter-​religious sexual relations, and sodomy. Karras explains that western Europeans were beginning to associate same-​sex eroticism with the Muslim Middle East. In an Islamophobic context, and in profoundly segregationist spirit, particular sexual practices were marked out as problematic partly because of their association with a religious other. This delineation of a clearer set of definitions of sexual deviance appeared alongside Frankish attempts to demonstrate their own religious purity and to condemn those who appeared to show sympathy with or adopt Muslim practices. From this point, Karras shows secular legal codes increasingly jumping on the bandwagon, and condemning same-​sex erotic relations, though strikingly with a focus on men rather than women. The French Livres de jostice et de plet, the Coutumes du Beauvaisis of Philippe de Beaumanoir, and Alfonso of Castile’s Siete Partidas are cases in point. Moreover, towns increasingly legislated on sexual practices too by the fourteenth century. Karras thus traces a key shift from ecclesiastical strictures to secular law codes and municipal injunctions, all of which were underpinned by more widespread moral panic driven largely by shifting conceptions of community. The following chapter considers a dramatically different context: that of the Song and Yuan legal codes in China. Here, any concern about homosexuality is conspicuously absent. De Pee shows that the kind of sexuality which concerned imperial authorities was explicitly that linked to reproduction: this was about patrilineal and virilocal kinship regimes. The tenth-​century Song Penal Code claimed to represent universal moral obligations. Thinking about sexuality was cast in ethical and spiritual, not just legal terms. It mattered to obey these injunctions, because a cosmological order depended upon it. And bound up in sexual relations, because of reproduction, lay a whole structure of property relations, reciprocal obligations and duties, and judgements about deviance. De Pee shows how the Tang Code of 653 and the Song Code of 963 presented their rulings as timeless and cosmic, as instantiations of an immanent “middle way” that avoided extremes and maintained universal harmony and balance. De Pee traces a key shift with the Yuan dynasty, who instead allowed different laws for different groups, essentially using rules to concretize a kind of ethnic hierarchy. The stated motivation here was as much about limiting litigation as about cosmic order. But De Pee shows powerfully that this shift contrasted with enduring local customs. Although these are difficult to uncover in the sources, he is able to point to a more transactional approach at a local level. The complaints of Song officials trying to deal with local cases, and the interest of the Yuan in allowing different rules for different groups permit a kind of triangulation to uncover this dynamic. Sexuality at a local level appears to have been beset by various ideas about deviance, but mostly motivated by desires to improve the lot of particular families. The interplay between locality and empire, and between legal and cosmological or religious norms, might usefully be compared to the Indian Dharmaśāstra tradition. This was an explicitly Hindu jurisprudential tradition, which was nevertheless rooted in the particularities of everyday life. An increasingly punitive attitude towards adultery, and towards women, can be traced here; this was despite a

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continuing tension between ideas of sex as pleasure, and anxiety about sex as potentially damaging to social hierarchies.13 Key themes emerge from both these chapters, and continue to resonate with the opening three on heresy and ideas. Both Karras and De Pee show definitions once again to have been highly contingent, shifting across time and place. Which sexual practices were actually being condemned, and which were deemed worth caring about, differed at local and imperial level in China, and across time in the Latin East and West. Most importantly, as ever, definitions intersected with the lived experience of those whose sexual practices and sometimes identities were being defined and judged. In the Chinese case, the Song emphasis on universalism stands in stark contrast to the Yuan interest in ethnic community and hierarchy. Most strikingly, both imperial perspectives are shown to contrast with local views of right and wrong. And whereas imperial rules claimed to act in the best interests of the universal community, to local actors, as de Pee points out, they appeared opaque and violent even: deviance was turned on its head. The relationship between top-​ down legislation and the community-​ generated taboos and behaviours is not just straightforwardly conflictual though. Karras’s interest in the ways in which a kind of mass panic is intertwined with these shifts indicates a more complex picture. De Pee draws our attention to another theme which complicates this tension: that of forgiveness. Which actions are seen as forgivable and what does this imply? The notion of what is forgivable is a key theme worth tracing throughout the volume, subtly different from the “degrees of deviance” described in Giletti’s article. As Forrest shows, heretics could recant, do penance, and be forgiven: heresy was a terrifying category, but it was one from which people could emerge. Karras shows that same-​sex eroticism could be thought of in terms of what was forgivable. She cites a miracle story in which a young boy accused of sodomy was rescued from the flames by the Blessed Virgin Mary, perhaps implying a sense that his sin was mitigated by his passivity and exploitation by an older man. The relationship between spiritual and moral condemnations, and judgements based upon other normative frameworks are revealed by both chapters to be dizzyingly complex. Karras traces a trajectory from religious to secular rulings, but this is not straightforward as both are underpinned by anxiety about community which was at once religious, ethnic, and political. De Pee draws a contrast between a concern for cosmological harmony and ethnic hierarchy, but it is clear that Yuan order continued to be underpinned by this kind of moral conception and that local communities’ own ideas were powerfully autonomous. 13 See Stephanie Jamieson, “Women ‘Between the Empires’ and ‘Between the Lines’,” in Between the Empires: Society in India 300 BCE to 400 CE, ed. Patrick Olivelle (New York: Oxford University Press, 2006), 191–​214, at 195. See also Donald Davis, Jr, The Spirit of Hindu Law (Cambridge: Cambridge University Press, 2010).

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In both cases, differing conceptions of community—​whether universal, religiously differentiated, ethnically hierarchized—​seem to lie at the heart of what is happening. Categories of deviance serve to delineate boundaries, to reiterate difference, but also—​ apparently—​to protect community. Very strikingly, both chapters indicate that there is an economic dimension here too. In the Chinese case, heterosexuality mattered so much because property relations hinged on it—​attempts to provide universal ways of thinking about this sought to protect property regimes, and local thinking about this was still underpinned by often economic thinking of a strikingly transactional kind. In the case of same-​sex eroticism, Karras points out that many civic authorities in the later Middle Ages believed it was their duty to legislate on such matters because civic morality underpinned economic relations and the proper functioning of the market (dependent as it was, upon trust). And it is economic categories which lie at the heart of the final chapter in this part, by Julie Mell. In this period, economic morality was often constructed in religious terms: in a European context, market morality was not just a matter for civic authorities, but for theologians whose discussions were often intertwined with those of merchant and urban regulators.14 As Mell points out, these discussions often attempted to create categories of deviance based on religious thought which nevertheless allowed for market flexibility and lending at interest in particular. One might draw in a comparison with India. Ranabir Chakravarti has drawn attention to the taboos on seafaring commerce in Sanskrit normative texts. He shows, however, that there was actually no single attitude towards trade in early India, with both Buddhist and Jainist texts actually revealing quite positive responses partly because trade need not involve violence. He also shows the inefficacy of these taboos in the face of a flourishing trading network.15 In a Chinese context, the tensions were slightly different. Here the main source of anxiety seems to have been that of people hoarding resources, underpinned by a sense that these resources were indeed finite. But disagreement about the role of government in addressing this, and how far this was a moral issue beyond the remit of politics, rumbled through Chinese economic thought.16 Mell examines the ways in which European Jewish communities came to be associated with usury over the course of the Middle Ages, and how this was used by 14 Joel Kaye, Economy and Nature in the Fourteenth Century: Money, Market Exchange and the Emergence of Scientific Thought (Cambridge: Cambridge University Press, 1998).

15 Ranabir Chakravarti, “A Subcontinent in Enduring Ties with an Enclosed Ocean (c. 1000–​ 1500 C.E.),” Journal of Medieval Worlds 1, no. 2 (2019): 27–​56; Ranabir Chakravarti, “Merchants, Merchandise and Merchantmen in the Western Sea-​Board of India (c. 500 BCE–​1500CE),” in Trading World of the Indian Ocean, 1500–​1800, ed. Om Prakash (New Delhi, Centre for Studies in Civilisations, 2012), 53–​104. 16 See Margherita Zanasi, “Frugality and Luxury: Morality, Market, and Consumption in Late Imperial China,” Frontiers of History in China 3 (2015): 457–​85.

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Christians to demonize them. She traces a three-​stage process. First, she notes that anti-​usury pronouncements and legislation by the Church were focused on Christian morality: this was really a movement against usury by Christians. As in Karras’s essay, the crusading context is revealed to be crucial. Mell shows how the febrile atmosphere of crusade enthusiasm generated particular antagonisms and particular logics of protecting crusader property, which led to a closer association between Jews and usury. Again, similar to the trajectory traced by Karras, the Church’s condemnation of usury, and then of Jewish usurers, was then taken up by secular rulers: by the thirteenth century, the trope was readily available and underpinned mass expulsions of Jews. This final stage was characterized by an intensified Christian focus on the notion of “the common good,” conceived of not just in moral but in explicitly economic terms. The notion that religious community should be bound up with economic community, and an interest in economic well-​being is fascinating, and resonates with Karras’s comments on economic community generating other kinds of persecution also. Tracing how usury was first demonized, and then mapped onto a specific community, is a profoundly unpleasant process which reminds us just how contingent categories of deviance can be. Karras, de Pee, and Mell all show how particular behaviours can be artificially made to coincide with ethnic and religious difference, and in doing so to reify boundaries. Mell’s chapter furthermore shows a kind of overdetermination in this process—​usury could be placed alongside accusations of blood libels, host desecration, theft, and so on. One deviant label was so often not deemed enough. Rendering something or someone deviant was a fragile process which often required this kind of overdetermination. But returning to the question of subjectivity, perhaps most terrifying across all these chapters is the way in which particular behaviours, real or imagined, can be made to map onto identities and used as a basis to challenge the very nature of who someone is.

Selected Secondary Sources

Barrett, T. “Religion and Violence in China.” In The Cambridge World History of Violence, edited by M. Gordon, R. Kaeuper, and H. Zurndorfer, 349–​67. Cambridge: Cambridge University Press, 2021. Caldwell Ames, Christine. Medieval Heresies: Christianity, Judaism and Islam. Cambridge: Cambridge University Press, 2015. Chakravarti, Ranabir. “Merchants, Merchandise and Merchantmen in the Western Sea-​Board of India (c. 500 BCE–​1500 CE).” In Trading World of the Indian Ocean, 1500–​1800, edited by Om Prakash, 53–​104. New Delhi: Centre for Studies in Civilisations, 2012. Davis, Donald Jr. The Spirit of Hindu Law. Cambridge: Cambridge University Press, 2010. Einbinder, Susan. Beautiful Death: Jewish Poetry and Martyrdom in Medieval France (Jews, Christians, and Muslims from the Ancient to the Modern World). Princeton: Princeton University Press, 2002. Goldin, Simha. The Ways of Jewish Martyrdom. Turnhout: Brepols, 2008. Kaye, Joel. Economy and Nature in the Fourteenth Century: Money, Market Exchange and the Emergence of Scientific Thought. Cambridge: Cambridge University Press, 1998.

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Putallaz, François-​Xavier. “Censorship.” In The Cambridge History of Medieval Philosophy, edited by Robert Pasnau, 99–​113. Cambridge: Cambridge University Press, 2014. Ropp, Paul. “Passionate Women: Female Suicide in Late Imperial China.” In Passionate Women: Female Suicide in Late Imperial China, edited by Paul Ropp, P. Zamperini, and H. Zurndorfer, 3–​21. Leiden: Brill, 2001. Zanasi, Margherita. “Frugality and Luxury: Morality, Market, and Consumption in Late Imperial China,” Frontiers of History in China 3 (2015): 457–​85.

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THE HERETIC: CONTINGENT AND COMMODIFIED Ian Forrest Each heretic was someone’s neighbour, well-​known and familiar but suspected of a crime that seemed to put everything in doubt. A bishop’s court heard how, in 1413 John Anneys, the tailor, a follower as it is said of William the lollard, held and affirmed in public—​especially in taverns—​and preached in other public places that he would not confess fully and honestly to any priest, although he would rather not confess at all, and that all doctors and bishops of the church were stupid and were widely thought to be stupid; he is publicly held to be a lollard.1

A neighbour is accused, the tailor who made your clothes; there is an allusion to the crime of heresy, which is not named; a known dissenting preacher—​William—​is labelled “lollard,” the vernacular English word that was sometimes a synonym for heretic, sometimes not; familiar places are namelessly evoked; reported speech blurs into opinion. Beneath the realistic detail and offhand banality of heresy records such as this, a curious indeterminacy seeps out. What is really being said, in language and in law? What was happening to John the tailor? Why is a heretic not called a heretic? Why does it feel as though something is being held back? What was the evidence for his crime? The proceedings against John Anneys were in many ways typical of those experienced by thousands of men and women across Europe between 1100 and 1500. They were men and women who found that their words and thoughts made them suspect of a crime. It is interesting, therefore, that the study of heresy and the study of crime have come to form two distinct bodies of scholarship. Some level of understanding is lost if we perpetuate that historiographical separation. I begin this chapter, therefore, by comparing the ways in which heresy and other crimes were defined. My aim is to draw attention to two features common to the definition of all crimes, but which affected the people called heretics to an extraordinary degree. The first is that being a criminal does not simply arise from acting in a certain way: it is contingent upon an act being labelled criminal in a particular time and place. Over time, and around the world, definitions of crime vary, and being “a criminal” is dependent upon this. Second, a person defined as a criminal becomes a commodity; once labelled a thief or a heretic they can be stripped of their individuality and referred to by that label, a sort of shorthand, for all sorts of political and social ends. My starting point is to consider typical examples of the language by which criminals were identified, noting similarities and differences between heresy and other crimes. My goal is to expose the ways in which “the heretic” was constructed, and 1 Lincoln, Lincolnshire Archives, MS Vj/​0, fol. 14v.

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then to ask whether current scholarship adequately moves beyond that construction to address the experiences and individuality of the people so accused, people like John Anneys the tailor. Naming an action as criminal is a use of language that consists of two parts: a reference to an action and its connection to a general—​criminal—​category of behaviour. This point—​which is a common thread running through the chapters of the present volume—​may be grammatically obvious, and fundamental to analysis of the concept of deviance, but its implications are often overlooked in histories of crime. To an extent this is less true of the history of medieval heresy, in which the reality of the acts in question, their definition as heretical, and the relationship between the two have become central interpretative issues.2 It is, nevertheless, instructive to begin with the basics of grammar. Take the sentence: “John the tiler is a thief who stole timbers from the lord’s wood.” The subject of this hypothetical entry echoing the commonplace phrasing of a medieval court book is John the tiler, and the illocutionary force of the words is to label him a thief. We have a reference to an action, and its attribution to the criminal category of theft. Although apparently very simple, such grammatical constructions contain certain ambiguities. For instance, in my ideal-​type of a medieval judicial record, stealing timbers is presented as both the reason why John should be considered a thief, and as the inevitable consequence of his being a thief. Terse, laconic medieval court records abound in this sort of phrase, where we find an “is” statement arranged in such a way as to disguise the extent to which it is really an “ought” statement. John the tiler ought to be considered a thief because he stole timbers from the lord’s wood. But was he? Here the contingency begins to bite. A person can be defined as criminal or deviant and have done nothing to warrant either label; a person can be engaged daily in things that others would regard as criminal or deviant and yet not be labelled as such; equally, a person might do and say things widely seen as criminal or deviant, be labelled as such, and yet dispute the definition; overlap between the grammatical subject and object might occur when someone labelled a thief starts to see themselves in that way and self-​identifies with the category into which they have been placed by neighbours or a court.3 In the case of John the tiler, “a thief who stole timbers from the lord’s wood,” the labelling as criminal is achieved partly by this grammar and the elision of is and ought, but also by the use of the words “thief” and “stole” and the reference to the lord. The “crime words,” if we can call them that, tell the reader or listener what category they ought to be placing these actions in, be it theft, murder, heresy, or any other crime. The reference to a lord fulfils two further necessary conditions for considering an act to be a crime: the presence of a victim and an authority. Without a victim, or some physical or abstract object to which damage is done (property or “the king’s peace” for example), 2 This is exemplified in the debate over whether the Cathars were a real group of religious dissenters or a construction of inquisitorial process, for which see the essays in Antonio Sennis, ed., Cathars in Question (York: York Medieval, 2016). 3 Many of the ideas in labelling theory derive from Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (Harmondsworth: Penguin, 1963).

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an act cannot be an offence in law. Without an authority there is no one to decide what is a crime and what is not. In this example the lord is both the victim and the authority, a common aggregation in many medieval court records. How do some of these ways of looking at medieval crime and deviance translate to the “crime” of heresy? Can we use them to contain some of the slipperiness in that indictment of John Anneys, with which I began? In many ways heresy was simply another crime, defined in law, dealt with by courts, liable to punishment and so on.4 For instance, the doubling up of victim and authority figure is found in most heresy records, which posit “the church”—​be it the institution or the community of belief—​as the victim of a heretic’s speech: John Anneys’s preaching and affirming in taverns, for instance. However, in many other ways it pushed the usual categories of crime and deviance to their conceptual limits. What was a heretical act? It was not so easily defined as an act of theft. Most acts reported or investigated by inquisitors were merely indications of heresy. It is striking that when the word “heresy” or “heretic” is used in inquisitorial (i.e. judicial) records, there is not, in general, the same elision of act and criminal category as in the sentence: “John the tiler is a thief who stole timbers from the lord’s wood.” We tend not to see comparable phrases used of heresy: “John the tiler is a heretic who did not attend church.” Such a hypothetical example would more likely be rendered: “John the tiler did not attend church and is thereby greatly suspected of heresy.” It is even more striking that in the example with which I began, from the bishop of Lincoln’s 1413 investigation of heresy in Leicestershire, England, holds back from naming heresy at all. Examples of the ideal-​type abound in the records, from across later medieval Europe. In this chapter I will refer to cases from England, Bohemia, and Languedoc, but other regions could easily have furnished similar instances. The following two examples illustrate further ways in which the indeterminacy seen in John Anneys’s case was typical of the prosecution of heresy. During his inquisition at České Budějovice in southern Bohemia in 1338, the Dominican Gallus von Neuhaus recorded the following testimony: “The witness Petr Smelczo … deposed that Frídrich the weaver is suspected by him of heresy, because … when the body of Christ is elevated then Frídrich closes his eyes …” Here the criminal category is invoked and the act which justifies its use is described, but the correspondence between the two is not one-​to-​one. Instead, between Frídrich closing his eyes during mass, when the communion bread was raised by the priest, and the categorization of this behaviour as heretical, we find an intervening linguistic—​and judicial—​step: the witness’s suspicion. This makes it much more of an “ought” than an “is” statement. Suspicion makes the link between behaviour and criminal labelling conditional, contingent on context and interpretation. A century and a half later in 1488, at Ashbourne in the English Midlands, Bishop John Hales heard that “Margaret Goyt … [is] publicly defamed, accused and detected of the crime of heresy, as appears from the 4 On the definition of heresy by canon lawyers, and in the church courts, see Lucy Sackville, Heresy and Heretics in the Thirteenth Century (York: York Medieval, 2011) and Ian Forrest, The Detection of Heresy in Late Medieval England (Oxford: Oxford University Press, 2005).

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following articles containing pure heresy or at least savouring of heresy” (my italics).5 In some respects this is a quite different piece of judicial language. No specific acts are mentioned (although they were, in detail, in what followed) and instead there is only the vaguest reference to articles containing “or at least savouring of” heresy. Nevertheless, the grammatical and judicial construction is the same. Behaviour is alluded to, the category of heresy is invoked, and, in noting that Goyt was “defamed” of things that “savoured of” heresy, suspicion is again introduced as the link between the two. In some ways the lack of specificity at this point in Goyt’s trial only served to emphasize the importance of suspicion and uncertainty in the legal definition of heresy. This uncertainty was not something that arose only in dubious cases. It was central to how the crime of heresy was conceived in canon law and dealt with by inquisitors and the church courts throughout Latin Europe.6 It also went way beyond the usual circumspection of the church courts, where final judgement in all matters was thought to rest with God, because the consequences for an accused person could be so serious, namely death and expulsion from the church. The contingency of the relationship between actions, materiality, and the crime of heresy was strikingly evoked by the mid-​fifteenth century theologian and bishop of Chichester, Reginald Pecock, who explained that: an error or heresy is not the ink written, nor the voice spoken, but it is the meaning or the understanding of the writer or speaker, signified by such ink written or by the voice spoken.7

Heresy could be signified by acts, words, and things, but it resided in “understanding,” by which Pecock meant intention and the will as well as comprehension. For inquisitors then, the equation of certain behaviours with the crime of heresy was contingent upon the intention and understanding of the suspect. It was the job of the heresy trial to establish intention, and this was done by offering suspects the “opportunity” to admit their fault and recant any heresy. In this, medieval canon law followed St. Augustine, who had written that if, after questioning, a suspect was prepared to accept “correction,” they were not to be counted a heretic.8 Accepting correction meant accepting a degree of guilt, but also avoiding categorization as a heretic, at least in law. Despite the importance of suspicion and contingency in the labelling of heretics, there are circumstances in which the historian can still find heresy or heretical identity treated as certain and given a one-​to-​one equivalence with specific acts. For example, in 5 Alexander Patschovsky, ed., Quellen zur bömischen Inquisition im 14. Jahrhundert (Weimar: Hermann Böhlaus Nachfolger, 1979), 175–​76; Shannon McSheffrey and Norman Tanner, eds., Lollards of Coventry 1486–​1522 (Cambridge: Cambridge University Press, 2003), 91 (“ad minus heresim sapientibus”). 6 Where secular courts proceeded against heresy, it was usually following a determination in the church courts. 7 Reginald Pecock, The Donet, ed. E. V. Hitchcock (London: Early English Text Society, 1921), 4. 8 Cited by the twelfth-​century legal scholar Gratian (C.24 q.3 c.29).

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the long witness statements taken by inquisitors in thirteenth-​and fourteenth-​century Languedoc, we come across people already categorized as heretics or “of the heretics,” whose actions are treated as prima facie evidence of their guilt. These individuals were the much-​ discussed perfecti, the highly-​connected long-​distance bearers of dualist ideas through Provence, the Midi, across the Alps and into the Pyrenees. The inquisitors less often caught up with them than they followed their traces and networks, interrogating many hundreds of frightened—​but resourceful—​abettors and bystanders for information on their whereabouts. Sometimes the record—​as in the 1274 testimony of Bernard Hugh from Roquevidal between Toulouse and Castres in southern France—​makes a very direct connection between heretical acts and the category “heretic”: he [Bernard Hugh] said that Fort, the son of Bernard Garrigue of Maurens, came to the house of the same witness to see the heretics there. He saw and adored them there once, genuflecting three times, saying “Bless me” according to their rite. (my italics)

In this excerpt “the heretics” are already categorized as such, and the particular actions that took place in that house are said to have constituted the “rite” of the heretics. This is a world of facts, not suspicion. Much more of the testimony in this inquisitorial record concerns more mundane actions, such as who knew who, who went where, with whom and so on. But even here, the rhetorical force of the details is, when attached to a criminal category, to imply de facto guilt and criminality: some days later … William Guriaud came to Roquevidal, to the same witness’s [Bernard Hugh’s] house, and asked the same witness whether the heretics were there. He told him that they were not, and he returned to his own affairs.9

In such banal moments, and many thousands like them, the repetition of “the heretics did this” or “the heretics did that” works to produce tacit evidence of their being heretics. This undoubtedly served one of the inquisitors’ goals, to entrench the idea that certain people were heretics, but why did witnesses fall in with such rhetoric? The answer has to be that they had little choice. Under interrogation about individuals who were already categorized as criminals, it seems that witnesses before these tribunals accepted the labels “heresy” and “heretic” as essential or factual categories, accepting as well thereby the certainty those words implied. They did so as an exculpatory strategy, invoking “the heretics” and their actions as an acknowledged danger from which they themselves could back away. This is implicit in many witness depositions, but on occasion it becomes more explicit. For instance in 1241 the scribe recording inquisitions at Montauban and Moissac noted that: Raymond of Loc carried a heretic in his boat to Villemur, not knowing him to be a heretic, but he knew later when he received the fare. At another time he carried two heretics as

9 Peter Biller, Caterina Bruschi, and Shelagh Sneddon, eds., Inquisitors and Heretics in Thirteenth-​ Century Languedoc: Edition and Translation of Toulouse Inquisition Depositions, 1273–​ 1282 (Leiden: Brill, 2011), 351–​53.

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far as Montauban. When they got into the boat he didn’t know that they were heretics, but he knew later, in the boat.10

The record here seems to echo what would have been Raymond of Loc’s tactical approach to providing information, converting it into a third-​person narrative. Apparently he could not deny having ferried certain people in his boat, but he wished to remove from himself the suspicion that he was a sympathizer who had aided them because of their religious identities. He did this by accepting the label “heretic” as a simple fact, and making his ignorance as to their identity likewise a factual matter. For the most part, however, speaking or writing of heresy in the Middle Ages meant entering highly contingent territory, a landscape in which suspicion and uncertainty prevailed over certainty and facts. Deponents and defendants pushed into making firm statements about “the heretics” thus did so in circumstances fringed with jeopardy. They had, to some degree, been manipulated into taking discursive risks. One would only deploy certainty about another person if one were trying to find some safety for oneself in carefully-​constructed indeterminacy. The definition of the heretic in law was a possibility arising from behaviour which could be interpreted in other ways, to a much greater degree than was possible or likely in the case of theft. The distinction is brought home if we experiment with heresy-​derived phrasing for a court book entry on theft: “John the tiler stole timbers from the lord’s wood and is thereby greatly suspected of theft.” We never see this sort of statement because once the act of theft has been described there is no way to think of that person except as a thief. The person suspected of heresy, on the other hand, presents a puzzle to the authorities. Certain acts, like not attending church, closing one’s eyes when communion bread was blessed, or receiving suspect people in one’s home or boat could be evidence—​or signs or symptoms—​of heresy, but equally they might not be. This contrasts with the situation in trials for theft or murder where the acts in question were the crime. The heretic was therefore arguably a more contingent figure than the thief or the murderer, defined at the most slippery junction between censure and behaviour, label, and act. The censure that created the heretic as a criminal could only be that of a bishop or someone delegated with inquisitorial authority, but suspicion about heresy could emerge in many contexts, and non-​judicial censure might occur in confession, in a university, or in the course of daily life. Each of these contexts for censure had different effects, and created particular kinds of contingency. What went on in confession is any historian’s guess, but if a confessor warned his subjects to avoid positions that might lead them into heresy, it would have reinforced an idea that heresy was something that one could move towards and away from. Other sins—​“have you stolen timbers from the lord’s wood?”—​were related to rather more fixed and tangible acts and moments. Academic censure for heresy was arguably doubly contingent: not only was heresy a judgement that could be held in abeyance through recantation, university masters were 10 Catherine Léglu, Rebecca Rist, and Claire Taylor, eds., The Cathars and the Albigensian Crusade: A Sourcebook (London: Routledge, 2014), 141.

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used to adopting positions that sailed close to error, as a means of advancing rational debate. Here the slipperiness of categories could work against them, as, for example, when Jerome of Prague and Jan Hus went to the Council of Constance in 1415 expecting to debate theological propositions in an academic setting, only to find themselves in the middle of their own heresy trial.11 In the day-​to-​day life of the parish, “heretic” could function as a formal accusation but also as an insult, contingent upon friendship and enmity rather than determined by the commission of particular acts. This can be seen in two examples from early sixteenth-​century England. Both examples come from lawsuits not for heresy, but for defamation, complaints that the language of heresy was being bandied about too freely, harming reputations and risking more serious legal proceedings. The first occurred in Yorkshire in 1509 when Thomas Morpath from Birkin said to his neighbour Thomas Moberlay, “thou art a heretic and I will not be agreed with thee.” The two men were already locked in a dispute that had become public; their friends had attempted to broker peace between them, but this outburst was too much for Moberlay to stomach and he sued Morpath for defamation. He was deploying a subtle and technical legal category (“heretic”) very loosely indeed, attempting to isolate his neighbour from commercial networks. Such a tactic rested upon the fact that suspicion—​rather than guilt or innocence—​occupied the vast majority of the conceptual territory relating to heresy, and so casting suspicion upon another person was enough to ensnare them in legal proceedings. Similar insights into the linguistic and social fields of heresy-​talk emerge from consideration of another marketplace disagreement that took place in 1512, much further south in Uxbridge, Middlesex. Here, a cloth dyer called Robert Linacre objected to his neighbours giving their business to a man from Amersham, Richard Saunders, who was known to have been prosecuted for heresy: Why would you rather that a heretic and a lollard should dye your cloth and earn your money than one of your own neighbours?

Saunders, like Moberlay, sued for defamation.12 The contingency surrounding heresy—​that one was not a heretic in the criminal sense until one had been lawfully tried and had refused to recant—​is in these examples revealed to have another side: commodification. Richard Saunders was known as a heretic in neighbouring towns and villages following inconclusive trial proceedings before the bishop of Lincoln in 1511. Thomas Moberlay was worried what an 11 Kantik Ghosh, “Logic, Scepticism, and ‘Heresy’ in Early Fifteenth-​Century Europe: Oxford, Vienna, Constance,” in Uncertain Knowledge: Scepticism, Relativism, and Doubt in the Middle Ages, ed. Dallas G. Denery II, Kantik Ghosh, and Nicolette Zeeman (Turnhout: Brepols, 2014), 261–​83, at 271–​77.

12 Richard H. Helmholz, ed., Select Cases on Defamation to 1600 (London: Selden Society, 1985), 12–​14; London Metropolitan Archives, DL/​C/​0206, fols. 150–​51. Shannon McSheffrey, Gender and Heresy: Women and Men in Lollard Communities 1420–​1530 (Philadelphia: University of Pennsylvania Press, 1995), 75, reports that Saunders was the “wealthiest of the Amersham Lollards.”

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unchallenged accusation of heresy might do to his reputation. Although the category was slippery and contingent, it could also ossify quickly, becoming known as a fact. In this way the heretic was also a commodity. The commodification of heresy began with its conceptualization. I noted previously that in common with many other crimes, the authority which prosecuted heresy—​the church—​could also be positioned as its victim. But of how many other crimes, besides heresy, can we say that the victim and perpetrator could also be one and the same? Heretics, in placing themselves outside the church and trusting their own will instead of God’s, chose damnation over salvation, making themselves—​alongside the church and other Christians—​one of the victims of their own crime. The only other crime of which this was true in the Middle Ages, was suicide, similarly defined as the rejection of God’s will in favour of one’s own choices.13 The effect of this convergence of two usually separate juridical taxa—​victim and perpetrator—​in the one person made an exceptional commodity out of the figure of the heretic. Without claiming that religious dissent was imaginary, all in the minds of conspiratorial churchmen, we can nevertheless recognize that “the heretic” was manufactured through social, theological, and legal processes into a useful commodity. Always dangerous, but always pathetic, the self-​defeating person who hindered their own salvation so spectacularly as to be at once the perpetrator and the victim of Christendom’s greatest crime, was often presented as having confounded the church’s cautious and solicitous contingency surrounding the criminal category of heretic, making themselves into an object of ridicule. I use the word object consciously: here we have the opposite perspective to the heretic as contingent: the heretic as commodity; an object; an entity with which one could do things; a tool; a means to an end. What could be “done” with a heretic? And who could do it? The main ways in which the commodified heretic could be used were didactic or pastoral, and political. “The heretic” as a commodity could be used in many didactic situations: preachers spoke of heretics punished miraculously by saints; bishops and inquisitors stage-​managed public abjurations in order to shore up orthodoxy. A fully-​elaborated argument has recently been made along these lines by Sara Lipton in relation to Jews in twelfth-​century Europe. She argues that anti-​Semitism in art was as much directed at Christians as at Jews: it was intended less to change attitudes towards living Jews (though it is likely to have done so), and more to educate Christians about the limits of the faith.14 A very similar analysis could be made of anti-​heretical discourses. For example, an anonymous Cistercian sermon of the early 1200s, attacking as heretical a lack of belief in the incarnation and passion of Christ, uses the figure of the heretic as a hook upon which to hang a series of exhortatory and didactic passages about how Christians should behave, what they ought 13 Alexander Murray, Suicide in the Middle Ages, vol. 2, The Curse on Self-​Murder (Oxford: Oxford University Press, 2000). 14 Sara Lipton, Dark Mirror: The Medieval Origins of Anti-​ Jewish Iconography (New York: Metropolitan, 2014).

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to believe, and the attitude they owed towards the church which told them so.15 In this it is rather typical of many sermons, from across Europe and from every century between Origen and Luther, wherein heretics perform a symbolic and didactic role. Similarly, in public abjurations following trials, suspects who recanted their “heresies” before a large audience were not just advertising their own personal movement away from heresy and back to the church, they were the coerced performers in a more general propaganda effort to delineate the boundaries of acceptable belief and behaviour. The words put into the mouth of Richard Knobbyng of Beccles in Suffolk, England, in 1430—​that he would “depart from all manner of error and heresy, and turn with good will and heart to the unity of the church”—​seem calculated to resonate with all doubters and dabblers in lollardy, as well as communicating doctrine about unity and forgiveness.16 Perhaps such sermons and judicial performances were not so much intended to affect attitudes to individual heretics as to deploy a concept of “the heretic” as a useful teaching tool in the education, and disciplining, of the laity at large. A thought-​provoking argument of this sort has recently been made by Sarah Raskin in a Columbia University PhD thesis.17 She identifies and elaborates what she calls a “silent alliance” between heretics and bishops, in late medieval England, which consisted of each party playing a role in a surprisingly low-​stakes drama. Because they wanted to use heresy suspects as examples to other Christians, and because some of them had dubious doctrinal pasts themselves, bishops went easy on heresy suspects, Raskin argues, giving freedom to many whose second or third appearance as a suspect ought to have had them condemned as obstinate and relapsed heretics. Raskin’s argument, whether or not one accepts it as a package, calls for a re-​consideration of the purpose of heresy trials. Looking back at my own 2005 work on this subject, to which Raskin is in part responding, I note that although I proposed that “heresy and anti-​heresy … can be seen to have performed a didactic role in society,” with which Raskin would—​I think—​agree, I then concluded with the comment that, nevertheless, “prosecutors were for the most part not concerned with the wider social utility of anti-​heresy propaganda; they were more worried about solving the problem itself.”18 While at one level undeniable, this statement also flattens the range of possible motivations for the way in which heresy prosecution was approached by bishops and inquisitors. Does Raskin’s argument not demand that we consider the ways in which “the heretic” as a commodity was deployed by those who constructed the category and delivered the verdicts? There is certainly potential to push this question and see where it leads, with heresy studies providing fertile ground for such an approach. For instance Alexander 15 Beverly Mayne Kienzle, Cistercians, Heresy and Crusade in Occitania, 1145–​1229 (Woodbridge: York Medieval, 2001), 140–​41. 16 Norman P. Tanner, ed., Heresy Trials in the Diocese of Norwich, 1428–​31 (London: Royal Historical Society, 1977), 116. 17 Sarah Raskin, “False Oaths: The Silent Alliance between Church and Heretics in England, c.1400–​c.1530,” unpublished PhD thesis, Columbia University, 2016. 18 Forrest, Detection of Heresy, 232.

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Patschovsky’s proposition, that all accusations of heresy were political, already pursues the heretic as a symbolic role or commodity. Patschovsky does not flatten the political to a single motivation, but proposes that historians should always look for the political and not assume that heresy accusations and prosecutions arose purely in response to unambiguous crimes.19 Given this argument, there are naturally as many possible examples as there are accusations of heresy in the sources. They would range from aristocratic court struggles like that which engulfed the chapter of Orleans cathedral in 1022, to the political and economic benefits accruing to the French lords who took part in the Albigensian Crusade.20 The focus would alternate between elite power struggles and local politics, where disputes between neighbours or fellow traders—​like that involving the two English dyers discussed above—​could become major incidents in small places. It is impossible to separate an accusation of heresy from the person who made it, the person against whom it was made, and the circumstances of the two. Accuser and accused might be known to one another, and so the accusation would be inseparable from their wider relationship, so momentous would it be to the fortunes of one or both parties. If accuser and accused were not known to each other, the accusation would still be political because reporting heresy was made a central element in the possession of authority and membership of the church. Reporting heresy contributed to one’s position within society. In these respects, and so many others, the heretic was commodified. The heretic was, then, both contingent and commodified. But these were processes of categorization, definition, detection, trial, exploitation and use carried out by third parties, people other than the accused themselves. What about the real people who were accused of heresy, formally or informally? Were they both contingent and commodified? This rhetorical question is framed in an intentionally absurd manner: of course it is not sufficient to describe a human being as a contingent product of other people’s words and actions; of course a human being cannot be a fully formed historical actor if they are only treated as a commodity in someone else’s power game. Each real person caught up in a heresy trial or finding themselves suspected of heresy, whether they were indeed religious dissenters or not, was someone whose part in history deserves to be more than contingency and commodification allow. As the foregoing discussion has suggested, the processes by which one person’s identity and place in society could be made contingent upon a legal process suffused with ambiguity, or made a commodity by the symbolic role that heresy could play in power struggles, were real and are worth studying. Indeed one has to peel back these layers of meaning if one is to work with any records of heresy, this 19 Alexander Patschovsky, “Heresy and Society: On the Political Function of Heresy in the Medieval World,” in Texts and the Repression of Medieval Heresy, ed. Caterina Bruschi and Peter Biller (Woodbridge: York Medieval, 2002), 23–​41.

20 R. I. Moore, The Formation of a Persecuting Society: Authority and Deviance in Western Europe, 950–​1250, 2nd ed. (Oxford: Blackwell, 2006), 14–​15 on the Orléans case; for the Albigensian crusade see Mark Pegg, A Most Holy War: The Albigensian Crusade and the Battle for Christendom (Oxford: Oxford University Press, 2008).

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most momentous and yet slippery of the crimes in medieval culture. However, the fact that contingency and commodification could shape a person’s experience does not mean that their experience and historical significance can be reduced to those processes. I conclude this chapter by proposing that the most significant question arising from the discussion of the criminal category “heretic” does not have to do with how identity was fashioned through the eyes of others. These things are merely preliminaries to asking: “how did it feel to be trapped between contingency and commodification?” Answering this means accepting that the real people visible in heresy trials and inquisitions inhabited a reality substantially different from the picture we gain of it from those records. Being in themselves neither contingent nor commodities, suspects and witnesses were always hopelessly mis-​described in the inquisitor’s record. Something was always missing, but what, and how do we get at it? There is much we will never know; historians no longer see judicial records as offering up the unmediated speech of medieval people, still less giving us a first-​hand account of their feelings and motivations.21 And yet the fragments of suspects’ lives and speech presented in inquisitorial documents, dissected, and commodified though they are, provide sufficient reminder that we are dealing with real, ineffable, irreducible people when we write about the history of heresy. Take for example the mention of a Czech woman called Zertla, named in testimony about a group of heresy suspects at Jarošov nad Nežárkou, a small village in southern Bohemia in 1339. Zertla is reported to have said to one witness, “You are a heretic,” to which the witness replied, “If I am a heretic, then so are you,” prompting Zertla to back off saying, “I’m joking, but you should keep quiet so you don’t get others into trouble.”22 This snippet of dialogue may have been reported because the unnamed witness was trying to minimize her own culpability, admitting associations with other suspects but shifting attention towards Zertla, a conspirator and perhaps therefore an influential figure within the group. Whatever the truth behind the record, the use of the word “heretic” is very interesting. As in the English defamation cases referred to above, both women in this example seem aware of the danger posed by its utterance, as they first raise and then lower the temperature of their conversation. They know that being labelled a heretic is dangerous, that it is contingent upon how others see matters, but that words can stick, creating a commodity within a category. And they were right to be wary. Large investigations of heresy were bureaucratically voracious, gathering the names of people mentioned in testimony and asking other witnesses whether they had had any dealings with them; in every repetition of suspicion encircling someone with danger. How did they feel? How were they affected? What was life like before, during, and after the inquisitor had appeared to disturb the uneasy equilibrium of a community where religious belief and practice were varied? Despite 21 The classic piece of source criticism for inquisitorial records is John H. Arnold, Inquisition and Power: Catharism and the Confessing Subject in Medieval Languedoc (Philadelphia: University of Pennsylvania Press, 2001). 22 Patschovsky, Quellen zur bömischen Inquisition, 189.

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the huge volume of scholarship on medieval heresy, there is surprisingly little that deals with the people affected as complex, fully-​rounded individuals inhabiting emotional as well as, or instead of, merely textual communities. I will end by drawing attention to two pioneering examples of how the carapace of contingency and commodification imposed upon heresy suspects by the church’s records can be pierced, if the heretics (or people described as heretics) are placed at the centre of the study and given the consideration, as complex and rounded human beings, that the judicial record denies to them. The first is Rob Lutton, a historian whose 2006 book, Lollardy and Orthodox Religion in Pre-​Reformation England, remains the best study of the people suspected of heresy in this time and place. Lutton situates people—​fully embodied and entangled in believably-​ complex lives—​in relation to all relevant currents in the religious life of the late fifteenth and early sixteenth centuries. This approach is novel, and radical, because it refuses to adopt the labels and categories of the investigating bishop, and does not treat a court’s list of suspects as the definitive outline of a lollard community. Furthermore, Lutton does not limit his discussion of the heresy suspect to an assessment of how heretical they really were, a habit of thought that makes many modern studies into little more than echoes and repetitions of medieval inquisitions. In taking his human subjects in the round, Lutton instead traces a spectrum of beliefs and practices which coalesced in varied constellations from family to family. Central to his enquiry is the identification of a culture of “parsimonious piety,” a sort of stripped-​back orthodoxy, which for some, but by no means all, was a gateway into lollardy and Lutheranism; for others it was a community of belief that was sui generis, reducible neither to “heresy” (the bishop’s category) nor to the sort of orthodoxy labelled “traditional religion” by some Catholic historians.23 Among many examples we might draw attention to the Castelyn and Pellond families of Tenterden in Kent, playing the game of social advancement and frugal if respectable piety, but also harbouring lollard tendencies: members of each family were prosecuted for anti-​sacramental and iconoclastic heresies in 1511. Lutton achieves this subtle and humanistic result because he refuses to see the people tried for heresy as either contingent productions of an inquisitorial mentality, or as commodities in someone else’s power-​play. They are themselves, and all the more interesting and worth studying for that reason. The second is the literary scholar Fiona Somerset, whose 2014 book, Feeling Like Saints: Lollard Writings After Wyclif, modestly proposes a rather revolutionary way of approaching texts produced by people prosecuted for heresy. Hitherto, literary scholars had tended to categorize religious writings as heterodox or orthodox in accordance with how close they sailed to a Wycliffite position on the Eucharist, or Bible translation, areas of belief and practice that were most important to the bishops who prosecuted heresy. Texts that were hard to categorize in this way were placed in a “grey area” which then expanded to encompass almost all Middle English writings of the fifteenth century. 23 Robert Lutton, Lollardy and Orthodox Religion in Pre-​Reformation England (Woodbridge: Royal Historical Society, 2006).

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I barely exaggerate. This, Somerset argues, meant that historians and literary scholars were looking at religious writings from an inquisitor’s point of view, searching for the signs of heresy. Such an approach completely failed to apprehend the nature of the texts in question, which expressed ideas about belief and practice on their own terms, not those of inquisitors. Instead of classifying texts according to an inquisitor’s checklist of heretical doctrine, Somerset conducted an open-​minded survey of the main doctrinal, cultural, and linguistic markers in a range of texts, on the lookout for what she calls “normal heterodox piety”: that is, not the sensational stuff of heresy trials, but the things that really mattered to the communities of practice and belief that used such texts. Her main finding was that lollard texts such as the Five Questions on Love or the Dialogue between Reason and Gabbyng set themselves apart from those produced in more conformist circles through an unusually active and liberal attitude towards doubt as part of the individual’s journey to faith, and by an empathetic identification with the gospel writers as bearers of truth. Neither of these tendencies was unique to lollard texts, but Somerset compares the degree to which they mattered, and the extent to which they formed a core set of values, in texts that show a Wycliffite influence and others of a more conventional affiliation.24 In doing so she allows the people labelled heretics a bit more space to breathe in their own selves, rather than repeating the inquisitor’s stifling demand that they be defined by damning heresies. Faced with such apparently banal, and yet curiously indeterminate, records of heresy as that which saw John Anneys hauled before his bishop in 1413—​the commodification and the contingency at work—​historians have to make an effort to recover the individual. The heretic was made contingent by the legal and theological reasoning of authority figures in the church, and commodified by their need for living examples of this most heinous of medieval crimes. Certainly, exposing these processes is an important part of studying the intersection of crime with religion in the Middle Ages, but doing so does not automatically mean that one is studying the people accused and suspected of heresy. The censure and the behaviour, or the label and the person, should not be confused. There is huge scope now for students of medieval heresy to distinguish more carefully between the contingent and commodified “heretic” of inquisitorial discourse, and the real people who, though now long-​dead, find themselves trapped in the indexes of research monographs under headings that would have meant little to them.

Selected Secondary Sources

Arnold, John H. Inquisition and Power: Catharism and the Confessing Subject in Medieval Languedoc. Philadelphia: University of Pennsylvania Press, 2001. Biller, Peter, Caterina Bruschi, and Shelagh Sneddon, eds. Inquisitors and Heretics in Thirteenth-​Century Languedoc: Edition and translation of Toulouse Inquisition Depositions, 1273–​1282. Leiden: Brill, 2011. 24 Fiona Somerset, Feeling Like Saints: Lollard Writings after Wyclif (Ithaca: Cornell University Press, 2014).

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Forrest, Ian. The Detection of Heresy in Late Medieval England. Oxford: Oxford University Press, 2005. Helmholz, Richard H., ed. Select Cases on Defamation to 1600. London: Selden Society, 1985. Léglu, Catherine, Rebecca Rist, and Claire Taylor, eds. The Cathars and the Albigensian Crusade: A Sourcebook. London: Routledge, 2014. Jewish Iconography. New York: Lipton, Sara. Dark Mirror: The Medieval Origins of Anti-​ Metropolitan, 2014. Lutton, Robert. Lollardy and Orthodox Religion in Pre-​Reformation England. Woodbridge: Royal Historical Society, 2006. McSheffrey, Shannon. Gender and Heresy: Women and Men in Lollard Communities 1420–​1530. Philadelphia: University of Pennsylvania Press, 1995. Moore, Robert I. The Formation of a Persecuting Society: Authority and Deviance in Western Europe, 950–​1250, 2nd ed. Oxford: Blackwell, 2006. Raskin, Sarah. “False Oaths: The Silent Alliance between Church and Heretics in England, c.1400–​c.1530.” Columbia University, unpublished PhD thesis, 2016. Sennis, Antonio, ed. Cathars in Question. York: York Medieval, 2016. Somerset, Fiona. Feeling Like Saints: Lollard Writings after Wyclif. Ithaca: Cornell University Press, 2014.

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CENSORSHIP AND CRIMINALIZATION OF IDEAS IN WESTERN EUROPE Ann Giletti “Deviance” and “crime” are terms usually applied to behaviour or actions. Can

an idea be deviant or criminal? Or is this what we say about the person who holds it? The censorship of ideas in thirteenth-​century Europe offers particular insights into the ways in which ideas themselves can be categorized as deviant—​that is, denigrated by normative systems—​and outlawed or perceived to be outside the law. By professing the idea, a person could be condemned and punished, but the idea itself also carried the taint of crime. This impression, while not based on a legal definition of crime or involving the absurd possibility of inflicting punishment on the idea, was nevertheless a perception shared by many people in the circumstances analysed here. The discussion below looks at the distinction between criminal people and, in the view of medieval protagonists, criminal ideas. It shows how legal measures criminalized ideas through the use of certain labels; and it identifies perceptions of ideas as criminal, even in the absence of legal measures. To draw out the powerful ways in which ideas can be treated as not neutral but criminal, the discussion concludes by showing how the criminal status of ideas could condition perceptions about people—​even when those people were conscientious in their handling of the ideas and did not intend to be transgressive. The ideas under discussion here are not socio-​political, potentially revolutionizing a society or its government (as in the introduction of a commune system), but philosophical and religious. Censorship of ideas and investigations of culprits holding them were by and large carried out by the Church, with secular authorities performing punishments in cases of individuals found by the Church to be heretics. In general the ideas were religious, such as the belief in two deistic principles which Cathars were accused of holding.1 The focus of this article is marginalized ideas which were not religious in themselves, yet trespassed on religion by conflicting with central beliefs. This was the case with certain Aristotelian philosophical/​scientific theories that caused controversy in academic circles in the thirteenth century. The theories were newly introduced into 1 For recent studies addressing Cathar dualism, see Antonio Sennis, “Questions about the Cathars,” in Cathars in Question, ed. Antonio C. Sennis (Woodbridge: York Medieval, 2018), 1–​20; Mark Gregory Pegg, “The Paradigm of Catharism; or, the Historians’ Illusion,” in Sennis, Cathars, 21–​52; John H. Arnold, “The Cathar Middle Ages as a Methodological and Historiographical Problem,” in Sennis, Cathars, 53–​78; Yuri Stoyanov, “Pseudepigraphic and Parabiblical Narratives in Medieval Eastern Christian Dualism, and their Implications for the Study of Catharism,” in Sennis, Cathars, 151–​76; Lucy J. Sackville, “The Textbook Heretic: Moneta of Cremona’s Cathars,” in Sennis, Cathars, 208–​28; Peter Biller, “Goodbye to Catharism?,” in Sennis, Cathars, 274–​313.

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Latin Europe through the translation of ancient Greek and medieval Arabic philosophical texts over the twelfth and early thirteenth centuries. They sparked controversy because they were regarded as denying fundamental Christian beliefs. Examples we will examine are Aristotle’s theory of the eternity of the world, which conflicted with Creation, and the theory of the unicity of the intellect of Muslim philosopher Averroes, which denied the afterlife of individual souls. These theories were formally censored by episcopal decrees in Paris in the 1270s. The prohibitions both threatened punishment of adherents and criminalized the ideas themselves, by labelling them as errors against faith. As we shall see, had the ideas been pronounced merely to be false (untrue), they would not have been transgressive; but an idea declared to be an error—​or indeed heretical—​was criminal. The notion of an idea being criminal in this context is associative. The terms “error” and “heretical” were used to define the ideas, but implicit in them was the threat of punishment to adherents; to observers that threat tainted the ideas themselves as criminal. Even prior to the prohibitions, scholastic philosophical and theological discussions used these criminal labels for the most controversial theories, marking them early in their reception history as deviating from the norm of Christian belief. The criminal aspects in this story—​the ideas and the culprits or suspects, as well as the authorities and potential victims—​were located in medieval universities and in relation to the Church. Some of the theories in the controversy, including the two mentioned, were occasionally discussed outside the academic environment, but they circulated mostly in the scholarly world of universities and monasteries.2 The people holding them or suspected of holding them in some form were scholastic philosophers and theologians; the latter were experts in both fields, having been trained in philosophy before proceeding to theology. Formal prohibitions, as well as investigations of ideas and their proponents, took place in the 1270s and 1280s at the universities of Paris and Oxford, and news of the measures spread through the European academic world. These two universities operated under episcopal authority. The measures were carried 2 A rare example of contemporary discussion in a non-​academic environment of the theories at issue is the late thirteenth-​century Lucidario of King Sancho IV of Castile and Léon (d. 1295) which considers, in Spanish, Aristotle’s theory of the eternity of the world: Sancho IV, Lucidario, ed. Richard P. Kinkade, Los ‘Lucidarios’ españoles (Madrid: Editorial Gredos, 1968), 157. While the discussion below concerns issues that largely remained within the university, academics did discuss matters concerning society, such as marriage and money; and in the case of Lollardy ideas formed by academics fuelled dissent in society, resulting in censorship of both the ideas and people holding them, see, e.g.: Ian P. Wei, Intellectual Culture in Medieval Paris: Theologians and the University, c. 1100–​1330 (Cambridge: Cambridge University Press, 2012), chaps. 5 and 6; Kantik Ghosh, “Logic, Scepticism, and ‘Heresy’ in Early Fifteenth-​Century Europe: Oxford, Vienna, Constance,” in Uncertain Knowledge: Scepticism, Relativism, and Doubt in the Middle Ages, ed. Dallas G. Denery II, Kantik Ghosh, and Nicolette Zeeman (Turnhout: Brepols, 2014), 261–​83; Ghosh, “University-​ Learning, Theological Method, and Heresy in Fifteenth-​Century England,” in Religious Controversy in Europe, 1378–​1536: Textual Transmission and Networks of Readership, ed. Michael Van Dussen and Pavel Soukup (Turnhout: Brepols, 2013), 289–​313; Rita Copeland, Pedagogy, Intellectuals, and Dissent in the Later Middle Ages: Lollardy and Ideas of Learning (Cambridge: Cambridge University Press, 2001).

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48 Ann Giletti out by senior Church and university officers working together, out of concern over the spread of the ideas among university members. This was not a simple “us vs them” scenario: the prohibitions were issued by bishops who had themselves been trained at the universities and had taught or held office there; and in some cases the collection of suspect statements of opinion or investigation of contentious ideas was carried out by panels of university theologians. The prohibitions established that it was a crime to articulate the ideas as valid. In the university environment, expression constituted dissemination, as it took the two forms of oral presentation in lessons and public debates attended by colleagues and students, and written works read by the same audience. The crime lay in dissemination, though the culprits’ guilt was rooted deeper, in their intellectual conviction that the theories were sound. If criminalization implies the presence of victims, they were, from the point of view of the Church, both these same scholars, who potentially jeopardized the salvation of their own souls by holding the ideas,3 and people who witnessed or read their philosophical demonstrations and found them persuasive—​particularly young and impressionable students who, it was feared, could easily be led into error. Yet while the prohibitions, and the few investigations of individuals we know about, sought primarily to control expression of ideas, these measures were taken not to silence mention of them or their discussion altogether, but to prevent scholars from professing they were true. The most famous prohibition in this controversy—​and one of the most notable acts of censorship of the late Middle Ages—​was the Condemnation of 1277 at the University of Paris. This decree would hamper free discussion in the oral and written activities of the University of Paris well into the 1290s, and would be discussed and referred to long after that. It was issued by the bishop of Paris, Étienne Tempier, who had studied theology at the university and had served as its chancellor. The decree banned 219 philosophical principles collected by a panel of theologians at the university. The principles were probably drawn from scholars’ written works and perhaps also oral teaching and public presentations. These ideas were formally criminalized in the diocese of Paris when the decree condemned them as “errors” against faith and threatened the punishment of excommunication to any scholars disseminating them.4 In this way, the crime was 3 On the perpetrator being the victim, see Ian Forrest’s chapter in this volume.

4 Condemnation of 1277, edition and French translation in David Piché, La condemnation parisienne de 1277 (Paris: Librairie Philosophique J. Vrin, 1999); previously edited in Heinrich Denifle and Emile Chatelain, eds., Chartularium universitatis Parisiensis, 4 vols. (Paris: Delalain, 1889–​1897), 1:543–​55. See also: Roland Hissette, Enquête sur les 219 articles condamnés à Paris le 7 mars 1277 (Leuven: Publications Universitaires, 1977); John F. Wippel, “The Parisian Condemnations of 1270 and 1277,” in A Companion to Philosophy in the Middle Ages, ed. Jorge J. E. Gracia and Timothy B. Noone (Oxford: Blackwell, 2003); Luca Bianchi, Censure et liberté intellectuelle à l’Université de Paris (XIIIe-​ XIVe siècles) (Paris: Belles Lettres, 1999), 1–​52; J. M. M. H. Thijssen, “What Really Happened on March 7, 1277? Bishop Tempier’s Condemnation and Its Institutional Context,” in Texts and Contexts in Ancient and Medieval Science, ed. Edith Sylla and Michael McVaugh (Leiden: Brill, 1997), 84–​114. Regarding censorship in the academic environment, see, e.g. Gregory Moule, Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200–​1400 (Leiden: Brill, 2016);

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defined as dissemination, and the criminals as the scholars who did this. At the same time the ideas, outlawed as “errors,” bore with this branding the weight of threatened punishment, and in this way became categorized as criminal. Underpinning these condemnations was the Church’s responsibility for the spiritual well-​being of the Catholic community. These ideas did not capture widespread popular adherence, but drew great attention in the scholarly world. That world—​particularly the University of Paris and its renowned theology faculty—​was important to Catholic society in that it not only produced officers of the Church but also was a testing ground for new ideas and evolving religious doctrine, in addition to being a promoter of the testing system itself (the scholastic method). It was through university debate, for example, that questions regarding the beatific vision were analysed from various angles before the matter reached the level of a papal pronouncement;5 and in the papal court some of the discussion of doctrinal questions took place among theologians using the method of their university training. Given the importance of the university, it is not surprising that strict measures were imposed, by Church and university officers working together, to maintain the integrity of the institution as well as to correct its members and, in doing so, protect them.

Dangerous Ideas

The ideas at issue in this controversy were part of a wider system of thought that caused a scientific revolution in the thirteenth century. The source was Aristotle’s works on natural William J. Courtenay, “Inquiry and Inquisition: Academic Freedom in Medieval Universities,” Church History 58 (1989): 168–​81; Andrew E. Larsen, The School of Heretics: Academic Condemnation at the University of Oxford, 1277–​1409 (Leiden: Brill, 2011); François-​Xavier Putallaz, “Censorship,” in The Cambridge History of Medieval Philosophy, ed. Robert Pasnau, 2 vols. (Cambridge: Cambridge University Press, 2010), 1:99–​113; Luca Bianchi, “Nulla lex est vera, licet possit esse utilis. Averroes’s ‘Errors’ and the Emergence of Subversive Ideas about Religion in the Latin West,” in Irrtum –​ Error –​Erreur, ed. Andreas Speer and Maxime Mauriège (Berlin: de Gruyter, 2018), 325–​47. On the lasting impact of the Condemnation of 1277, see John F. Wippel, “Godfrey of Fontaines at the University of Paris in the Last Quarter of the Thirteenth Century,” in Nach der Verurteilung von 1277: Philosophie und Theologie an der Universität von Paris im letzten Viertel des 13. Jahrhunderts /​ After the Condemnation of 1277: Philosophy and Theology at the University of Paris in the Last Quarter of the Thirteenth Century, ed. Jan A. Aertsen, Kent Emery, Jr, and Andreas Speer (Berlin: de Gruyter, 2001), 359–​89, at 386–​89; Edward P. Mahoney, “Reverberations of the Condemnations of 1277 in Later Medieval and Renaissance Philosophy,” in Verurteilung, Aersten et al., 902–​30, at 909–​11; John E. Murdoch, “1277 and Late Medieval Natural Philosophy,” in Was ist Philosophie im Mittelalter?, ed. Jan A. Aertsen and Andreas Speer (Berlin: de Gruyter, 1998), 111–​21; Luca Bianchi, “1277: A Turning Point in Medieval Philosophy?,” in Philosophie, Aertsen et al., 90–​110; Luca Bianchi, Il vescovo e i filosofi. La condanna parigina del 1277 e l’evoluzione dell’Aristotelismo scolastico (Bergamo: Lubrina, 1990), 25–​30; Edward Grant, “The Effect of the Condemnation of 1277,” in The Cambridge History of Later Medieval Philosophy, ed. Norman Kretzmann, Anthony Kenny, and Jan Pinborg (Cambridge: Cambridge University Press, 1982), 537–​39. 5 This process is examined in Christian Trottmann, La vision béatifique: Des disputes scolastiques à sa définition par Benoît XII (Rome: École Française de Rome, 1995).

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50 Ann Giletti philosophy, the soul or intellect, and metaphysics. Latin readers studied these books together with interpretations of them by great Muslim thinkers, such as the Andalucian Averroes (d. 1198) and the Persian Avicenna (d. 1037), as well as the Andalucian rabbi Maimonides (d. 1204). This corpus of works by Aristotle and his interpreters became available in Latin translation in the twelfth and early thirteenth centuries, transmitted in a great part via Spain, where Arab courts had promoted philosophical exploration.6 The science of this corpus was accepted by the Latin academic community. However, it contained theories and principles which could not be tolerated in a Christian society—​ issues addressed previously by Muslim and Jewish thinkers who had also grappled with conflicts between this philosophy and their religions. Two theories at the heart of the controversy in Latin scholarly circles, and which featured in the Condemnation of 1277, had to do with the world’s origins and the human intellect. One was Aristotle’s theory of the eternity of the world, an idea conflicting with Genesis, which taught that the world was newly created by God. Aristotle had proved in his Physics that the world was eternal, based on principles he established in this book regarding how time, matter, and motion function. If one accepted their underlying principles, there was no reason to posit a beginning to any one of them; and, since the principles also showed how all three were interconnected, all of them—​and therefore the world—​ had to be eternal.7 Alongside Aristotle’s theory, scholastics discussed another theory on the world’s eternity, eternal creation. It centred on Neoplatonic and metaphysical principles showing that the world was eternally created by God, and as a result was itself eternal. Latin readers were already familiar with the theory of eternal creation through early Christian discussions, such as Augustine’s City of God and Confessions, and now encountered strong arguments in its favour in the thinking of Avicenna as explained in his Metaphysics.8 Since Latin scholastics accepted the principles of physics and metaphysics, which provided a convincing account of how the world worked, this was not a matter of simply dismissing the arguments but rather of studying 6 On the translation and transmission of Aristotle and his interpreters, see Marie-​Thérèse D’Alverny, “Translations and Translators,” in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable (Oxford: Clarendon Press, 1982), 421–​62, reprinted in her La transmission des textes philosophiques et scientifiques au moyen âge (Aldershot: Variorum, 1994), Article II; Bernard G. Dod, “Aristoteles Latinus,” in The Cambridge History of Later Medieval Philosophy, Kretzmann et al., 45–​79. 7 For an explanation of the theory of the eternity of the world, see Herbert A. Davidson, Proofs for Eternity, Creation and the Existence of God in Medieval Islamic and Jewish Philosophy (Oxford: Oxford University Press, 1987), 9–​48.

8 Augustine, De civitate Dei X, 31, XI, 4–​6 and XII, 15–​16 (regarding the human race), in Corpus Christianorum Series Latina, vols. 47–​48 (Turnhout: Brepols, 1955), 308–​9, 323–​26, and 369–​72; Confessiones XI, 10, in Corpus Christianorum Series Latina, 27 (Turnhout: Brepols, 1981), 200. Latin scholastics read Avicenna’s discussion of eternal creation in his Metaphysics, VI, 2, VIII, 3 and IX, 1; see Avicenna, The Metaphysics of the Healing, ed. and English trans. Michael E. Marmura (Provo, UT: Brigham Young University Press, 2005), 203, 272, and 300. For an explanation of eternal creation, see Davidson, Proofs for Eternity, 49–​85.

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whether they could be undermined. Scholars engaged in the controversy took various positions on whether the theories could be proved, disproved, or shown to be merely a philosophical possibility (a view discussed below). In 1270, an initial condemnation in Paris banned the idea that the world was eternal; and in 1277 the major condemnation included multiple articles against Aristotle’s theory and eternal creation.9 The other central issue in the controversy concerned the theory that there is one intellect shared by all of humanity. The theory had evolved from Aristotle’s brief explanation of the human intellect (the “intellective soul”) in On the Soul, through interpretations and elaborations by Greek and Muslim thinkers, notably Avicenna and Averroes. Averroes’s theory provoked outrage in Latin circles because it denied the immortality of individual souls. It was an interpretation according to Aristotle’s principles, particularly that matter accounted for how things could be divided and exist individually. Drawing on interpretations by earlier Greek and Arabic philosophers including Avicenna, Averroes reasoned that, applied to the explanation of the intellect, this meant there could not be individual intellects separated from one another without human bodies (matter), and thus that people’s individual intellects existed only during their lifetimes. After the body’s death, the personal intellect was reabsorbed into the single intellect. While Avicenna’s thinking raised concerns among thirteenth-​century Latin scholastics, after the mid-​century Averroes’s teaching stood at the centre of the controversy.10 In Christian (and Muslim) terms, by denying the immortality of individual souls, it denied their judgement by God as good or bad, and their reward or punishment in heaven or hell. The initial condemnation in Paris in 1270 banned the idea of a unified intellect; and the Condemnation of 1277 proscribed several aspects of the theory.11 At this time, the label “Averroist” came to be applied to radical Aristotelian scholars who accepted the unicity of the intellect. A few medieval writers would use it to refer as well to scholars defending other theories in the controversy, and many historians have done similarly. Two figures historians have traditionally called “Averrroists” are arts faculty masters Siger of Brabant, for defending the unicity of the intellect (a view he later rejected), and Boethius of Dacia, who held a controversial opinion on the world’s eternity (that it was theoretically possible, though not demonstrably true), and who defended a position historians have examined in connection with “Double Truth” (both 9 Condemnation of 1270, Art. 5, in Denifle and Chatelain, Chartularium, 1, 487. The Condemnation of 1277 proscribed Aristotle’s theory of the eternity of the world in Arts. 88, 89, 90, 91, 98, and 205, and eternal creation in Arts. 26, 39, 48, 87, and 99; see Piché, La condemnation parisienne de 1277, 86, 90, 94, 106, 110, 208, and 142. 10 Aristotle’s explanation of the intellect referred to active and passive aspects accounting for the acquisition of knowledge. Avicenna posited a single active intellect for all of humanity, and passive intellects for individuals; Averroes held that the passive intellect also must be unified. For an explanation of Avicenna and Averroes on the unicity of the intellect, see Herbert A. Davidson, Alfarabi, Avicenna, and Averroes, on Intellect: Their Cosmologies, Theories of the Active Intellect, and Theories of Human Intellect (Oxford: Oxford University Press, 1992), 74–​126, 258–​314, and 315–​56. 11 Condemnation of 1270, Art. 1, in Denifle and Chatelain, Chartularium, 1, 487; Condemnation of 1277, Arts. 27, 32, and 187, in Piché, La condemnation parisienne de 1277, 88 and 136.

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52 Ann Giletti matters are discussed below). Casting Boethius as an Averroist according to any use of the label seems inaccurate, given that he did not accept that either the unicity of the intellect or eternity of the world was demonstrably true. Modern use of the term “Averroist” presents difficulties because it is used loosely to refer to scholars supporting any of the theories in the controversy (regardless of whether Averroes was a proponent), and does not follow a meaning clearly established in the Middle Ages. Many historians prefer expressions such as “radical Aristotelians” and “heterodox Aristotelians” to describe medieval scholars supporting theories in this controversy.12

Criminalizing Ideas—​Official Measures

The condemnations of the 1270s formally outlawed the ideas at the centre of the controversy. In the major decree of 1277, they were identified as errors in a long list of articles, and the punishment of excommunication was threatened for any scholars disseminating them, as well as anyone who witnessed a transgressor and failed to report him to the bishop or university chancellor within a week.13 This measure might seem to criminalize only people and not the ideas themselves, but as discussed above criminal implications were attached to the term “error” and coloured the ideas themselves. A survey of the measures aiming to block adherence to the ideas will sharpen our understanding. Censorship of ideas and people holding them in the late Middle Ages could take many forms, such as prohibiting the reading of certain books, burning them, condemning specific ideas, and pursuing proponents of already banned or new controversial ideas.14 The Condemnation of 1277 marks the culmination of a range of efforts in Paris to combat the issues raised by Aristotelian philosophy. Over the arc of the thirteenth century, prohibitions were issued, evolving from banning the reading of a corpus of books to the identification and censoring of certain ideas pronounced in or derived from them. Already at the start of the century, measures had been taken at the university. In 1210, a synodal decree addressing several matters (ordering among other things the burning of a book by the pantheist David of Dinant) banned the reading of Aristotle’s books on natural philosophy and commentaries on them on pain of excommunication. Orders in 1215 by papal legate Robert of Courçon reiterated the prohibition, adding Aristotle’s Metaphysics to the proscription. Towards mid-​century, however, the material in these books was absorbed into general scientific thinking and was being handled by 12 On the label “Averroist,” see Dragos Calma, Études sur le premier siècle de l’averroïsme latin. Approches et textes inédits (Turnhout: Brepols, 2011), 11–​21; Dag Nikolaus Hasse, “Averroica Secta: Notes on the Formation of Averroist Movements in Fourteenth-​ Century Bologna and Renaissance Italy,” in Averroes et les averroismes juif et latin, ed. J.-​B. Brenet (Turnhout: Brepols, 2007), 307–​31; Sylvain Piron, “Olivi et les Averroïstes,” Freiburger Zeitschrift für Philosophie und Theologie 53 (2006) : 251–​309. See also n. 36. 13 Piché, La condamnation parisienne de 1277, 74–​76.

14 On forms of censorship, see e.g., Bianchi, Censure et liberté, 21–​52; Putallaz, “Censorship,” 107–​9.

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university scholars. Consequently, the prohibitions changed so that, rather banning the books, orders in 1231 by Pope Gregory IX (himself Paris trained) were to purge them of ideas incompatible with Christianity before they could be studied. A decade later, in 1241, the university chancellor and theology masters, mandated by Bishop William of Auvergne (an expert in philosophy, and a Paris theology master earlier in his career), singled out and rejected ten errors against theology, many of which were grounded in philosophy. With this measure the approach to censorship of Aristotelian philosophy in Paris altered to identifying offensive principles and putting the ideas themselves under interdict. In 1270, Bishop Étienne Tempier condemned a list of thirteen errors, on pain of excommunication, including the theories discussed above. These theories were also included when Tempier issued the Condemnation of 219 philosophical ideas on March 7, 1277, again threatening excommunication. That same month, the bishop and the papal legate Simon of Brion (another product of the university, and future Pope Martin IV) called a meeting of theology masters to examine the controversial theory of the unity of the human substantial form, a thesis having implications regarding Christ’s human nature and the Eucharist. In 1285 or 1286, Paris theologians would again be summoned to examine the theory, this time by Tempier’s successor, Ranulphe de la Houblonnière (who had been involved in preparing the Condemnation of 1277). In both meetings the theologians did not conclude that the theory was an error. While the theory was not banned in Paris, in Oxford it was. Just over a week after the Paris Condemnation of 1277, the archbishop of Canterbury, Robert Kilwardby (who had studied in Paris and had taught at both Paris and Oxford) issued a prohibition of a different set of ideas at the University of Oxford, including the unity of form thesis.15 In addition to books and ideas, several people were pursued regarding their philosophical opinions. In contrast with the large scale of the controversy, these cases were relatively few, and it appears that the Condemnation of 1277—​its severity, threat of punishment, and publicity—​had a decisive impact in curbing offenses.16 Although limited evidence survives, we know of cases of university masters who were summoned in Paris around the time of the Condemnation. In November 1276, arts master Siger of Brabant was summoned by inquisitor Simon 15 Prohibitions of 1210 and 1215: Denifle and Chatelain, Chartularium, 1, 70, and 78–​79; regarding the measures addressing David of Dinant, see Gerard Verbeke, “Philosophy and Heresy: Some Conflicts between Reason and Faith,” in The Concept of Heresy in the Middle Ages (11th–​13th c.), ed. W. Lourdaux and D. Verhelst (Leuven: Leuven University Press, 1976), 172–​97, at 194. Gregory IX, Parens scientarum (1231): Denifle and Chatelain, Chartularium, 1, 136–​39, at 138. Condemnation of 1241: Denifle and Chatelain, Chartularium, 170–​71; analysed (with English translation in Appendix) in Deborah Grice, Church, Society and University: The Paris Condemnation of 1241/​4 (Abingdon: Routledge, 2020). In 1255, the arts faculty syllabus included Aristotle’s natural philosophy books: Denifle and Chatelain, Chartularium, 1, 277–​79, at 278. Condemnation of 1270: Denifle and Chatelain, Chartularium, 486–​87. Paris Condemnation of 1277: see n. 4. Oxford Condemnation of 1277: Denifle and Chatelain, Chartularium, 1, 558–​59. On the meetings of Paris theologians in 1277 and 1285/​86 to discuss the unity of form, see n. 27 below. 16 See n. 4 regarding the impact of the Condemnation of 1277.

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54 Ann Giletti du Val to appear for investigation. It remains unclear whether this was in connection with his philosophical view: while he had earlier held the theory of the unicity of the intellect, he had abandoned it around 1274/​76, and no record of the charges against him survives. The investigation did not go forward because Siger fled Paris to seek help in the papal court and died not long after.17 In March 1277, the Augustinian Giles of Rome was summoned to answer charges of error in his theological writing. Of the fifty-​one statements attributed to him in the charges, three concerned his view on the philosophical possibility of the world’s eternity (a story returned to below).18 Also in March 1277, eminent theologian Henry of Ghent, who had served on the panel that prepared the Paris Condemnation of 1277, was summoned by the bishop of Paris and the legate Simon of Brion to explain his thinking on the unity of form theory, because his view, though different from the theory, seemed too close to it. His answers satisfied his questioners, and that same month he sat on the panel of theologians examining the theory for error.19 In Oxford, a theology master would be singled out for censure in 1286, also in connection with the unity of form. Richard Knapwell, who supported the theory, was excommunicated by Archbishop of Canterbury John Pecham. However, as Knapwell was a Dominican, an objection was made that Pecham could not excommunicate him because only the pope had jurisdiction over the Order, apart from in cases of heresy. Two days later, Pecham declared the unity of form to be heretical, listing in his pronouncement the same ideas listed in the excommunication. This measure would, as we shall see presently, provoke sharp objection by Paris theologians. Knapwell, for his part, did not appear when summoned for excommunication, but instead fled to the papal court to seek support. He was unsuccessful, and would die a few years later.20 17 Siger of Brabant held the unicity of the intellect in his Quaestiones in tertium De anima of ca. 1265; and his thinking evolved until he abandoned it in his Quaestiones super librum De causis of 1274/​76: Siger of Brabant, Quaestiones in tertium De anima, Q.9, ed. Bernardo Carlos Bazán, Siger de Brabant. Quaestiones in tertium De anima, De anima intellectiva, De aeternitate mundi (Leuven: Publications Universitaires, 1972), 25–​29, esp. 26 and 28–​29; Siger of Brabant, Quaestiones super librum De causis, ed. Antonio Marlasca (Leuven: Publications Universitaires, 1972), Q.27, 108–​17, at 112. On Siger’s views, see Bernardo Carlos Bazán, “Siger of Brabant,” in A Companion to Philosophy in the Middle Ages, Jorge J. E. Gracia and Timothy B. Noone (Oxford: Blackwell, 2002), 632–​40, at 633 and 637–​38; François-​Xavier Putallaz and Ruedi Imbach, Profession: philosophe: Siger de Brabant (Paris: Éditions du Cerf, 1997), 34–​39, 47–​55, and 149–​58; Fernand van Steenberghen, Maître Siger de Brabant (Leuven: Publications Universitaires, 1977), 339–​83. On Siger’s investigation, see Putallaz and Imbach, Profession: philosophe, 169–​73. 18 Giles of Rome, Apologia, Arts. 30–​31 and 50, in Aegidii Romani Opera Omnia, 3.1 (Florence: Olschki, 1985), 55 and 59. On Giles’s investigation, see the introduction by Wielockx in Aegidii Romani Opera Omnia, 69–​120. For his opinion and what transpired, see the text accompanied by n. 44 below. 19 On the summons of Henry of Ghent, see Robert Wielockx, “Henry of Ghent and the Events of 1277,” in A Companion to Henry of Ghent, ed. Gordon A. Wilson (Leiden: Brill, 2011), 25–​61, at 30–​32. 20 See n. 26 and the text it accompanies.

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The decrees criminalizing the holding of certain ideas (actions by people) at the same time criminalized the ideas themselves through the terminology used. The prohibitions banned these ideas by defining them as errors against Catholic faith. The term “error” applied directly to the ideas, and only in a secondary sense to anyone holding them (a person guilty of error was guilty of holding an erroneous idea). Theological censures at this time were gradated, with labels to indicate that some ideas were more deviant than others. Generally speaking, an idea could be found false, erroneous, or heretical. Falsity was an evaluation of the truth value of a stated view in rational/​philosophical terms: this was the least offensive in that something found false did not necessarily concern a matter of faith. An idea that was merely false was not criminal. An idea became an error if it was declared so by the Church, or if Church officers or theologians on a panel investigating a suspect’s views or beliefs determined that it was. Some theologians regarded as erroneous any view that was false (philosophically) and which also conflicted with Catholic faith, even in the absence of a formal declaration of error. Heresy, the worst of the offences, was a serious crime that, if the proponent obstinately refused to recant, could be punished by deprivation of property, incarceration or death. An idea was heretical if it denied teachings in Scripture or dogma established by a papal or conciliar decree, or if it had been specifically condemned as heresy by the Church. Censured ideas were sometimes given categories evaluating the manner in which they offended against Catholic belief. In investigation proceedings against individuals in the late thirteenth and fourteenth centuries, a range of qualifying terminology developed for censoring ideas extracted from their writings. For example, an idea not classed as an outright error could be found to be ill-​sounding (male sonans), rash (temeraria), or repugnant to Catholic faith (fidei catholicae repugnans). These labels seem not to have had rigid definitions, and sometimes multiple labels were applied in evaluating a single idea.21 The prohibitions of 1241 and 1277 in Paris classified the ideas as errors in order to censor them. In the ban of 1241, the ideas were presented in a list, each identified as an error, followed by an explanation of how it erred against faith. The Condemnation of 1277 explained in its preamble that it was a response to the university’s faith-​reason controversy and the risks to untrained students that the dangerous ideas posed. In the preamble, the term “error” was embellished, with the condemned ideas referred to as 21 Regarding these labels, see Bianchi, Censure et liberté, 5; Putallaz, “Censorship,” 105–​7; Courtenay, “Inquiry and Inquisition,” 174; J. M. M. H. Thijssen, Censure and Heresy at the University of Paris 1200–​1400 (Philadelphia: University of Pennsylvania Press, 1998), 2; Thijssen, “Academic Heresy and Intellectual Freedom at the University of Paris, 1200–​1378,” in Centres of Learning: Learning and Location in Pre-​Modern Europe and the Near East, ed. Jan Willem Drijvers and Alasdair A. MacDonald (Leiden: Brill, 1995), 217–​28, at 222; Larsen, School of Heretics, 12; Bernard McGinn, “ ‘Evil-​Sounding, Rash, and Suspect of Heresy’: Tensions between Mysticism and Magisterium in the History of the Church,” The Catholic Historical Review 90 (2004): 193–​212, at 193.

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56 Ann Giletti “execrable errors” (execrabiles errores) and “gentile errors” (errores gentilium), recalling their ancient Greek/​pagan and medieval Muslim heritage.22 The ideas at issue were proscribed because they were offensive to Christian faith, but the Paris and Oxford decrees of the 1270s did not condemn them as heretical. Nor did the threat of excommunication in the Paris censures of 1270 and 1277 make them so. Excommunication was a punishment that could be applied to a range of kinds of disobedience to the Church.23 Furthermore, legal competence to declare an idea heretical did not rest with bishops. A declaration of heresy was an order excluding an idea from the entire Catholic community, whereas episcopal decrees applied only to the diocese where they were issued. Bishops had the authority to find individuals guilty of having committed heresy by denying dogma, but not to declare that ideas were heretical. That the jurisdiction of the Paris prohibitions did not reach outside the diocese was confirmed in subsequent discussions. Given that the theories had been banned on the grounds of trespassing on faith, scholastics in distant locations considered whether there was an obligation abroad to obey the Condemnation of 1277, but concluded that the ban did not “cross the sea” to England or “cross the mountains” to Spain and Italy.24 The competence to declare an idea heretical and to prohibit all Catholics from holding it, as established by tradition, rested with the pope and general Church councils, whose authority extended throughout the Catholic world. When Archbishop Robert Kilwardby, who had issued the Oxford Condemnation of 1277, was asked about his action, he responded that he had not declared the ideas to be heretical, but had merely banned the teaching of them.25 This limit of episcopal authority was tested when Kilwardby’s successor, John Pecham, pursued the matter of the unity of form. Pecham, who had opposed it in his early career teaching at Paris and Oxford, responded to persistent support of the theory by Richard 22 Paris Condemnations of 1241 and 1270 and Oxford Condemnation of 1277: Denifle and Chatelain, Chartularium, 1, 170–​71, 486, and 558. Paris Condemnation of 1277: Piché, La condemnation parisienne de 1277, 72–​76.

23 Condemnation of 1270: Denifle and Chatelain, Chartularium, 1, 486. Condemnation of 1277: Piché, La condemnation parisienne de 1277, 74–​76. Regarding excommunication and heresy, and medieval opinions on whether excommunication made one a heretic, see Elizabeth Vodola, Excommunication in the Middle Ages (Berkeley: University of California Press, 1986), 28–​33, 83–​84, and 179; Othmar Hageneder, “Il concetto di eresia nei giuristi del XII e XIII secolo,” in Il sole e la luna. Papato, impero e regni nella teoria e nella prassi dei secoli XII e XIII, ed. Maria Pia Alberzoni (Milan: Vita e Pensiero, 2000), 69–​130. 24 Bianchi, Il vescovo e i filosofi, 36 and 57–​58 nn 170–​174 and 177–​78; 52nn113–​14; Bianchi, Censure et liberté, 218; Bianchi, “1277: A Turning Point in Medieval Philosophy?” 96–​97. Even the later adoption of the Condemnations by several other universities (Bologna, Vienna, Cologne, Erfurt) in essence confirmed the geographical limit to the original decree. 25 Robert Kilwardby, Letter to Peter Conflans, Archbishop of Corinth, ed. Franz Ehrle, “Der Augustinismus und der Aristotelismus in der Scholastik gegen Ende des 13. Jahrhs,” Archiv fur Literatur-​und Kirchengescruchte des Mittelalters, 5 (1889): 603–​35, at 614, reprinted in Gesammelte Aufsätze zur Englischen Scholastik (Rome: Edizioni di Storia e Letteratura, 1970), 18–​54, at 18.

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Knapwell and others at the University of Oxford, and in 1286 he declared it heretical.26 A group of twelve Paris theologians reacted immediately. Having met recently to examine the unity of form, they wrote a letter to Pecham insisting that the theory had never been found erroneous or heretical.27 In sum, the various episcopal prohibitions did not produce universal declarations of heresy or bans reaching across the Catholic community. Outside Paris scholars were not prohibited from holding the eternity of the world and unicity of the intellect; and scholars outside England were not blocked from holding the unity of form. One question regarding heresy remains. Given that some theories in the controversy denied central Christian beliefs, we might ask whether they were heretical. As noted above, an idea was heretical if it denied a statement in the Bible or a dogmatic decree by a pope or general Church council, or if a pope or Church council had formally declared it heretical. The theory of the unicity of the intellect clashed with the central Christian belief in salvation and damnation, but it did not contradict a biblical or dogmatic statement. Much later, at the Fifth Lateran Council of 1513, it would be declared heretical.28 If it had already had this status, the measure would not have been necessary. Of the two controversial theories on the world’s eternity, Aristotle’s could be said to contradict the act of creation by God as described in Genesis; whereas eternal creation, in the view of several prominent theologians, did not. Eternal creation posited an act of creation by God, and could be shown—​as Thomas Aquinas did famously in his On the Eternity of the World (De aeternitate mundi, ca. 1270/​72)—​to involve eternal creation ex nihilo and thus not to constitute heresy (as long as one held this as merely a philosophical possibility).29 Last, if the theories had been manifestly heretical, it would not have been necessary to condemn them, as proponents could have been silenced directly on these grounds; nor would it have been expedient to censor them merely as errors. 26 For this history and issue, see Larsen, School of Heretics, 57–​63; Wielockx, “Henry of Ghent and the Events of 1277”; Gordon A. Wilson, “Henry of Ghent and John Peckham’s Condemnation of 1286,” in Henry of Ghent and the Transformation of Scholastic Thought, ed. Guy Guldentops and Carlos Steel (Leuven: Leuven University Press, 2003), 261–​75; Alain Boureau, Théologie, science et censure au XIIIe siècle. Le cas de Jean Peckham (Paris: Belles Lettres, 2008), 7–​38; Daniel Angelo Callus, “The Problem of the Unity of Form and Richard Knapwell, O.P.,” in Mélanges offerts à Étienne Gilson (Toronto: Pontifical Institute of Medieval Studies, 1959), 123–​60.

27 Paris theologians met twice, in 1277 and 1286/​87; see Godfrey of Fontaines, Quodlibet III, Q.5, in M. De Wulf and A. Pelzer, eds., Les quatre premiers Quodlibets de Godefroid de Fontaines (Leuven: Institut Supérieur de Philosophie de l’Université, 1904), 207–​8; Henry of Ghent, Quodlibet X, Q.5, ed. R. Macken, Henrici de Gandavo. Quodlibet X in Henrici de Gandavo Opera Omnia, 14 (Leiden: Leuven University Press, 1981), 127, notes; Wielockx, introduction to Giles of Rome, Apologia, 221–​23; Wielockx, “Henry of Ghent and the Events of 1277.” 28 Decrees of the Fifth Lateran Council (1513), in Norman P. Tanner, Decrees of the Ecumenical Councils, 2 vols. (Washington: Georgetown University Press, 1990), 1:605.

29 Aquinas, De aeternitate mundi, in Sancti Thomae de Aquino Opera Omnia, 43 (Rome: Editori di San Tommaso, 1976), 85–​89; and see n. 42 and the text it accompanies.

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Criminal Taint—​Rhetoric and Perception Among Scholastics The remarks above concern the theories’ legal status. However, rhetoric and perception among philosophers and theologians offer a different perspective. In this group we find scholars referring to various theories in terms of their legal status once they had been condemned, but also as “errors” before the condemnations and “heretical” throughout the controversy. The fact that the theories had been condemned, and that transgression bore the punishment of excommunication, made a strong impression. Well into the next century, scholars touching on the controversial topics would refer to the fact that the ideas had been condemned in 1277, sometimes using the shorthand “condemned articles” or even “excommunicated articles” (articuli damnati, condemnati, or excommunicati).30 In recalling the punishment prescribed for proponents, the expression articuli excommunicati (originating in manuscript copies of the decree), applied to ideas an adjective pertaining to people. These labels in scholastic discussion signalled the perceived legal status of the ideas themselves as criminal. Yet scholastic labelling of the controversial theories as criminal pre-​dated their formal condemnation. Over the same period that prohibitions evolved from book banning to censoring ideas as errors, discussion in philosophical and theological works targeted the ideas as deviating from fundamental religious beliefs. Many scholastics opposing the ideas stigmatized them moreover as criminal, through the use of the labels “error” and “heretical” even before the declarations in the 1270s that made them errors. For example, Bonaventure, writing in Paris before the decrees, characterized the eternity of the world and unicity of the intellect as two of the worst “errors” philosophers made against faith.31 The graver label “heresy” appeared already in early discussions. In the 1220s, Robert Grosseteste, the great philosopher, theologian, first chancellor of Oxford, and bishop of Lincoln, who translated from Greek into Latin several of Aristotle’s works, called the theory of the eternity of motion and therefore the world “heretical” in a commentary on Aristotle’s Physics. In his Hexaemeron (after 1231), he applied the term to proponents, angrily calling “heretical” not only scholastic contemporaries who tried to make the theory fit with Christianity, but even Aristotle himself. In the following decades, before and after the censures of the 1270s, the label “heretical” was applied to the controversial theories by several noted scholastics. These were theologians and philosophers of various positions on the controversial theories, and on the relationship between philosophy and faith. The eternity of the world was called “heretical” by Thomas Aquinas; and radical Aristotelian 30 For discussion and examples, see Bianchi, Il vescovo e i filosofi, 35, 52n113, 55n144, 57n169, 58n177; Bianchi, Censure et liberté, 35–​36; Bianchi, “1277: A Turning Point in Medieval Philosophy?” 96.

31 Bonaventure was writing in the 1260s: Bonaventure, Collationes de decem praeceptis, Collatio 2, in S. Bonavanturae Opera Omnia, 5 (Quarrachi: Typographia Collegii S. Bonaventurae, 1891), 507–​32, at 514; Collationes de septem donis Spiritus Sancti, Collatio 8, in S. Bonavanturae Opera Omnia, 457–​503, at 497–​98; and see (from 1273) Collationes in Hexaemeron, Collatio 6, in S. Bonavanturae Opera Omnia, 329–​449, at 361.

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Boethius of Dacia called its proponents heretical. Eternal creation, or aspects of it, was called “heretical” by the somewhat conservative theologian Henry of Ghent, Aquinas (his early thought), and Giles of Rome when defending himself against accusations of error on this subject.32 The unicity of the intellect was called “heretical” by conservative theologian Matthew of Aquasparta, Aquinas, and radical Aristotelian Siger of Brabant when he came to reject the theory.33 The use of these labels often seems to have been rhetorical, to highlight the offense to Christian belief, or strategic, to distinguish a provocative position from a related view which was clearly at odds with faith (as noted in the next section).34 Taken together, however, this term use shows how strongly these theories were perceived to deviate from fundamental Catholic beliefs, including by people who, as we shall see presently, accepted their theoretical possibility.

Behaviour Regarding Criminal Ideas—​Censure and Criticism

In connection with the criminalization of ideas in this story, there are some significant aspects to be considered concerning how the ideas were held. Here we shift focus from the notion of criminal ideas to that of possible criminal behaviour/​people in connection with them; but the question of criminality of people in this respect is very much conditioned by the criminal status of the ideas themselves. That is, even if these people were not outright proponents of the ideas, or they did not deny the religious beliefs the ideas conflicted with, the ideas’ pejorative status raised the question of whether these people had committed serious transgressions. In approaching this subject, there is an important distinction to be made between scholars who held controversial philosophical opinions and Catholics who held religious beliefs that contradicted Church doctrine, such as Cathars. Both held ideas deviating from Catholicism, but while the religious deviant rejected the doctrine his 32 Regarding the eternity of the world: Aquinas, Commentum in quatuor libros Sententiarum, II, Dist. 1, Q.1, Art. 5, in Sancti Thomae Aquinatis Opera Omnia, 6 (Parma: Typis Petri Fiaccadori, 1856), 390–​95, at 392; Boethius of Dacia, De aeternitate mundi, ed. Niels Jørgen Green-​Pedersen, Boethii Daci opera. Topica–​Opuscula, 6.2 (Copenhagen: Gad, 1976), 336 and 346–​47. Regarding eternal creation: Henry of Ghent, Quodlibet I, Q.7–​8, ed. Raymond Macken, in Henrici de Gandavo Opera Omnia, 5, 27–​46, at 30, also published in Macken, “La temporalité radicale de la créature selon Henri de Gand,” Recherches de Théologie Ancienne et Médiévale, 37 (1971): 211–​72, at 260; Aquinas, Quaestiones disputatae De veritate, Q.2, Art. 14, 2, in Sancti Thomae de Aquino Opera Omnia, vol. 22, part 1.2 (Rome: Editori di San Tommaso, 1970), 91; Aquinas, Quaestiones disputatae De potentia, Q.1, Art. 1, 8, in Quaestiones disputatae, 2 vols. (Turin: Marietti, 1953), 2: 7–​10, at 8; Giles of Rome, Apologia, 55.

33 Regarding the unicity of the intellect: Matthew of Aquasparta, Quaestiones disputatae de anima, ed. A. J. Gondras (Paris: Librairie Philosophique J. Vrin, 1961), Q.7, 117–​35, at 127; Aquinas, Commentum in quatuor libros Sententiarum, II, Dist. 17, Q.2, Art. 1, 532–​36, at 533; Siger of Brabant, Quaestiones super librum De causis, 112.

34 On the complexities of using the “heresy” label (for people and behaviour), see Ian Forrest’s chapter in this volume.

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60 Ann Giletti or her beliefs challenged, the scholars continued to profess them. The Cathar heretic embracing dualism was thought genuinely to believe that there were two eternal divine principles, good and evil, rather than the one God of Scripture. The scholars, however, to whatever degree they embraced Aristotelian thinking, continued to believe the Catholic teachings with which their theories clashed. Any controversial opinion they might hold as a valid conclusion in philosophical discourse did not undermine their sincere belief in the higher, divine truths of their faith. Two kinds of opinion presented problems in this respect, and will be discussed below. One was the view that a certain theory had been proved demonstratively, and so was true according to philosophy. That is, it was the logical outcome of arguments based on the principles in a philosophical system such as physics or metaphysics, and so “true” within that system. In connection with this view and the simultaneous belief in religious doctrine it opposed, we will touch on the position historians call “Double Truth.” The other problematic opinion was that such a theory could not be proved or disproved, but remained theoretically possible within a philosophical system. That is, it was not necessarily true according to philosophy, but it was still possible. In the thirteenth-​century faith-​reason controversy, both opinions were attacked as provocative. What follows is a discussion of the ways human behaviour and people could be criminalized or suspected of criminality in connection with criminalized ideas, even if the proponents remained steadfast in their religious beliefs. In examining these views, we should bear in mind a difference between holding something through rational demonstration and belief in something without evidence or explanation. To hold that something was demonstrable, or “true” philosophically, was to hold it as a conclusion arrived at rationally and according to principles within philosophy. To believe something was to hold it without philosophical considerations. Some scholastics, such as Bonaventure, maintained that divine truths such as Creation could be demonstrated rationally as well as believed; others, such as Aquinas, disagreed. They believed in religious doctrines without rational explanation. Yet what happened if such a scholar concluded that a controversial or prohibited theory was demonstrable, or instead that it was not demonstrable but remained philosophically possible, yet in either case nevertheless believed that the Christian doctrine it opposed was true? Was he a criminal? For Church and university authorities in Paris in the 1270s, the opinion that a controversial theory was demonstrable was a position that denied Christian teaching. To say, for example, that the world is eternal and not created by God is demonstrably true according to the Aristotelian system of physics, would seem to contradict Genesis. Indeed, taken on its own, it does. Yet if someone holding the theory simultaneously holds that the world was newly created by God, that person is not obstinately denying Scripture. According to remarks in the preamble to the Paris Condemnation of 1277, expressed in tones of severe anger, this type of position was an alarming trend among philosophy scholars in the arts faculty.35 Already in 1270, in his treatise On the Unicity 35 Piché, La condemnation, 72–​74: “Ne autem, quod sic innuunt asserere uideantur, responsiones ita palliant quod, dum putant uitare scillam, incidunt in caripdim. Dicunt enim ea esse uera

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of the Intellect (De unitate intellectus), Thomas Aquinas had fumed against an unnamed opponent for taking it when defending what he called the “Averroist” position on the unified intellect.36 Historians call the position “Double Truth” and, drawing on an insinuation made in both the Condemnation and Aquinas’s treatise, they describe Double Truth as entailing that the two truths, one philosophical and one religious, are both held as the products of rational demonstration. Historical study, however, has not discovered an example of a scholastic holding this position during the controversy, and the consensus among historians is that no one held it.37 Yet there are cases of scholastics who held, or promoted the position of holding, a controversial theory as the product of philosophical demonstration simultaneously with possessing a devout belief, without demonstration, in the religious truth with which it conflicted. This is how historians characterize both Siger of Brabant, during the period he held the unicity of the intellect, and a position put forward by Boethius of Dacia, in his On the Eternity of the World (De aeternitate mundi, ca. 1270/​72). Boethius did not hold that the world’s eternity was demonstrable (as noted above, he called proponents of this opinion “heretical”), but he defended the philosopher’s right in general to follow philosophical inquiry to logical conclusions. In his view, Christian philosophers preserved both aspects of their identity if, when coming to a philosophical conclusion clashing with faith, they nevertheless believed (without demonstration) the religious truth it opposed. He presented this position as a viable means for them to pursue rigorous philosophical enquiry while remaining devout in their faith.38 secundum philosophiam, sed non secundum fidem catholicam, quasi sint due contrarie ueritates, et quasi contra ueritatem sacre scripture sit ueritas in dictis gentilium dampnatorum.”

36 Thomas Aquinas, De unitate intellectus, in Sancti Thomae de Aquino Opera Omnia, 43 (Rome: Editori di San Tommaso, 1976), 291–​314, at 314: “Adhuc autem grauius est quod postmodum dicit ‘Per rationem concludo de necessitate quod intellectus est unus numero, firmiter tamen teneo oppositum per fidem.’ Ergo sentit quod fides sit de aliquibus quorum contraria de necessitate concludi possunt; cum autem de necessitate concludi non possit nisi verum necessarium, cuius oppositum est falsum impossibile, sequitur secundum eius dictum quod fides sit de falso impossibili, quod etiam Deus facere non potest: quod fidelium aures ferre non possunt.” For Aquinas’s use of the expression “Averroist,” see p. 294. 37 For an analysis of Double Truth and scholarship on it, see Luca Bianchi Pour une histoire de la “double vérité” (Paris: Librairie Philosophique J. Vrin, 2008); and see Richard C. Dales, “The Origin of the Doctrine of the Double Truth,” Viator 15 (1984): 169–​79. Historians infer that both truths in Double Truth must be held according to philosophy/​reason because of the word “contrary” in the statements in the Condemnation and Aquinas’s treatise. The word suggests that culprits hold a contradiction, which in philosophical terms can only be formed if the two truths are produced by the same rational system. However, that the culprits hold a contradiction is an angry insinuation in the documents, not an account of what scholars actually said.

38 For Siger of Brabant’s philosophical view, see n. 17; and see Bazán, “Siger of Brabant.” For Boethius of Dacia’s position, see his De aeternitate mundi, 347–​57, esp. 350–​53; and see John F. Wippel’s introduction to his English translation, Boethius of Dacia: On the Supreme Good, On the Eternity of the World, On Dreams (Toronto: Pontifical Institute of Mediaeval Studies, 1987), 4, 9, 14, and 17; Luca Bianchi’s introduction to his Italian translation of Boethius of Dacia’s De aeternitate

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62 Ann Giletti The position may have been held in full sincerity, but one can imagine the outrage and frustration of authorities proscribing the theories. Not surprisingly, the Paris Condemnation of 1277 cast proponents as hypocritical for denying philosophically the Christian truths they claimed to believe. On a practical level, in terms of implementing the decree, denunciation of the position prevented future suspects investigated for breaching the ban from persisting in the outlawed views while maintaining that they did not deny Christian beliefs. Without recourse to this position, they would have to recant their philosophical opinion or risk censure. The other kind of problematic opinion, that a contentious theory could not be proved true or false but remained philosophically possible, featured in the debate over the world’s eternity. This was a conclusion produced in terms of what philosophical reasoning could show, usually arrived at in the following way: it is not possible to prove that the world is eternal (because the author accepts rebuttals to the arguments used to prove it); nor, by contrast, is it possible to prove that the world is not and cannot possibly be eternal (because these arguments can also be rebutted); therefore, if the world’s eternity cannot be shown to be impossible, it remains theoretically possible, even if it did not actually happen. A scholastic taking the position of philosophical possibility was exploring what could be said on a philosophical level, independently from what he believed as a Christian. However, it seemed to some contemporaries as shockingly close to holding that the world actually was eternal.39 This was the view held by Boethius of Dacia, Aquinas, and Giles of Rome, who all took care to distance it from that of the world’s actual eternity. Boethius presented this position in his On the Eternity of the World. Aware that it was controversial, he was prudent in making his case to label proponents of the world’s actual eternity as “heretical.”40 Aquinas presented the position in his Summa theologiae and Summa contra mundi in Sull’eternità del mondo, sui sogni, sul sommo bene (Milan: La Vita Felice, 2017), 14–​15 and 39–​46; Bianchi, “From Pope Urban VIII to Bishop Étienne Tempier: The Strange History of the ‘Doctrine of Double Truth’,” Freiburger Zeitschrift für Philosophie und Theologie 64 (2017): 9–​26. I have suggested elsewhere that, based on the phrasing of the contemporary objections, the “Double Truth” they described was probably not one of two truths produced through reason, but the position described in the paragraph above, for which we can find proponents: Ann Giletti, “The Double Truth: How Are We to Look at It?” Recherches de Théologie et Philosophie Médiévales 88 (2021): 89–​141. 39 William de la Mare said this in reacting against Aquinas’s support of this conclusion; see his Correctorium fratris Thomae, edited along with the response of Richard Knapwell in Palémon Glorieux, ed., Le Correctorium Corruptorii “Quare” (Kain: Le Saulchoir, 1927), Art. 7, 40–​45, at 41 (speaking of eternal creation); and see Art. 6, 30–​40, at 31–​34 (criticizing Aquinas for not demonstrating the impossibility of the world’s eternity).

40 In a departure from the case for philosophical possibility described above, Boethius made the case that both the world’s eternity and the impossibility of its eternity could not be demonstrated (arguments for either side could be undermined), but unrebuttable arguments could be put forward for its possibility; for the arguments supporting its possibility, see Boethius of Dacia, De aeternitate mundi, 339–​40. On his labelling proponents of the actual eternity of the world “heretical,” see n. 32 above.

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gentiles, where he argued that Creation could not be demonstrated but had to be taken in faith.41 When he later showed in his On the Eternity of the World that the strongest arguments against the world’s eternity did not stand, he was evidently concerned that his opinion could be vulnerable to grave accusations: in the introduction, he spoke at length about how his conclusion could not be regarded as heretical.42 After his death in 1274, his opinion came under attack by colleagues at the University of Paris. Contemporaries also thought that the Condemnation of 1277 targeted some of his views; his well-​known opinion on the world’s eternity may have been one they had in mind, given that critics saw it as close to the actual eternity of the world. The eventual solution preserving his reputation covered any such ambiguity. After Aquinas was canonized as a saint in 1323, an episcopal decree annulled the articles of 1277 that touched on, or seemed to touch on, his teaching (without naming the articles).43 Boethius of Dacia and Aquinas wrote their treatises in 1270/​72, the time of the Paris Condemnation of 1270. In the following years the tense climate worsened. Almost simultaneous with the Condemnation of 1277, Giles of Rome was summoned for investigation regarding a collection of errors found in his writing. Included in the list was the possibility of the world’s eternity. Giles replied in his defence that the crime in this issue would be to hold the world actually was eternal, an opinion he called “heretical.”44 Giles’s career was interrupted for years by this investigation, and he had to leave Paris during this period. Although he would be restored to the university and would go on to a brilliant career in the Church—​his writings would become the official teaching of the Augustinian Order and he would be made archbishop of Bourges—​in his later works he remained cautious on the subject of the world’s eternity. The Condemnations of 1277 in Paris banned the holding of certain ideas because they conflicted with Catholic faith; yet the two positions described above also became dangerous, even though the proponents devoutly held the Christian beliefs the theories challenged. Once the theories had been outlawed, holding them even in a moderated way became risky. The first position we looked at, that of holding two truths, was outlawed by the Condemnation: one could no longer claim to be a devout and obedient Catholic who truly believed in Creation and the afterlife of souls if one also professed that in philosophical terms the eternity of the world or the unicity of the intellect was demonstrable. The other position we examined, that of philosophical possibility, was not officially condemned, but became highly risky when the theories were outlawed: even if one held that the world’s eternity was not demonstrable (not true) 41 Aquinas, Summa theologiae, I, Q.46, Arts. 1–​2, in Sancti Thomae Aquinatis Opera Omnia, 4 (Rome: Typographia Polyglotta, 1888), 478–​82; Summa contra gentiles, II, chaps. 32–​38, in Sancti Thomae Aquinatis Opera Omnia, 13 (Rome: Typis Riccardi Garroni, 1918), 344–​56. 42 Aquinas, De aeternitate mundi, 85.

43 William de la Mare led the attack on Aquinas’s thinking; see n. 39. Revocation of articles of the Condemnation of 1277 touching on the teaching of Aquinas (1325): Denifle and Chatelain, Chartularium, 2, 280–​81, at 281.

44 See nn. 18 and 32.

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64 Ann Giletti but merely theoretically possible for lack of an effective proof of the contrary, one risked being regarded as criminal, notwithstanding the fact that this position was neither an endorsement of the theory nor a denial of Scripture. In the decades following the Condemnation of 1277, the decree remained in force. While holding the demonstrability of the condemned theories remained a crime, the position of philosophical possibility was not. Nevertheless, many scholars taking the position were mindful of perceptions of the view, and took care in how they discussed it.

Conclusion

Criminality in this controversy over philosophy concerned both the ideas and the action of holding them. Holding the ideas was a crime, but the ideas themselves were also labelled as criminal, both in official measures and in scholastic discussion about them. The danger lay in the philosophical ideas because they denied other ideas fundamental to Catholic faith—​even if the person holding them probably did not deny those Catholic teachings but truly believed them. Thus, while the aspect of human behaviour was a component of the characterization of these ideas as criminal, the ideas taken on their own were not considered neutral. They were seen as possessing or being imbued with a pejorative value or status. If we are to say that ideas could be criminal or deviant, we must ask one last question. Could an idea be classed this way if it was not held by a person? Yes, if we include the possibility that someone might hold it. Even when ideas had in the past been outlawed but were no longer alive in current thought, their danger lay in the possibility of their being held by someone. Most of the early Christian heresies listed in Isidore of Seville’s Etymologies, codified into canon law, and named in medieval works on heresy had not been held by Christians for hundreds of years.45 Yet it remained relevant to refer to these dead heresies not only to preserve the history of the Church, but also to have on record accounts of ideas which were already proscribed, should anyone dare to revive them. Where, then, on the spectrum of deviance to criminality do we place the theories at the centre of this controversy? Clearly there was a sense in the academic community, independently from the official measures, that they were deviant in that they did not conform to faith. In this environment they could be labelled as criminal, even by scholars accepting their philosophical possibility. Yet the criminality of the ideas was more than a matter of perception in the jurisdictions of the condemnations. Here this became their legal status in practice, for it was only on the grounds of this status that authorities could question not just someone actually holding them (now an illegal action) but also someone not holding them and merely accepting their possibility.

45 Isidore of Seville, Etymologiae, VIII, chap. 5; Decretum, II, C.24, Q.3, chap. 39. For an example of a medieval work recalling this list of heresies (analysed along with Augustine’s list of heresies), see Guido Terreni, Summa de haeresibus (Cologne: Petrus Brachel, 1631), 70–​95.

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Selected Secondary Sources Bianchi, Luca. “1277: A Turning Point in Medieval Philosophy?” In Was ist Philosophie im Mittelalter?, edited by Jan A. Aertsen and Andreas Speer, 90–​110. Berlin: de Gruyter, 1998. Copeland, Rita. Pedagogy, Intellectuals, and Dissent in the Later Middle Ages: Lollardy and Ideas of Learning. Cambridge: Cambridge University Press, 2001. Courtenay, William J. “Inquiry and Inquisition: Academic Freedom in Medieval Universities.” Church History 58 (1989): 168–​81. Larsen, Andrew E. The School of Heretics: Academic Condemnation at the University of Oxford, 1277–​1409. Leiden: Brill, 2011. Moule, Gregory. Corporate Jurisdiction, Academic Heresy, and Fraternal Correction at the University of Paris, 1200–​1400. Leiden: Brill, 2016. Putallaz, François-​Xavier. “Censorship.” In The Cambridge History of Medieval Philosophy, edited by Robert Pasnau, 1:99–​113. Cambridge: Cambridge University Press, 2010. Thijssen, J. M. M. H. Censure and Heresy at the University of Paris 1200–​1400. Philadelphia: University of Pennsylvania Press, 1998. Wei, Ian P. Intellectual Culture in Medieval Paris: Theologians and the University, c.1100–​1330. Cambridge: Cambridge University Press, 2012.

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MEDIEVAL SUICIDE Alexander Murray Suicide plays havoc with any legal or moral system it touches. In law it is a kind of homicide. But it is the only kind where perpetrator and victim are the same, where the perpetrator therefore cannot be cross-​examined or, if convicted, punished—​except symbolically by punishing his relations or, in the imaginations of the living, by tortures no less extreme for escaping verification. Ethics fares no better. Most moral rules are there to restrain egoism, in the interests of social harmony and general well-​being. But suicide eliminates the “ego” altogether, so on that logic, it should be the most virtuous of imaginable acts. Indeed it can sometimes look like that, as in a war hero, or a self-​sacrificer like Captain Oates, walking out into the snow when rations fell short on Scott’s Antarctic expedition.1 But these acts are not suicide. Death must be the intention, not an incidental risk, to qualify as suicide. If Captain Oates had found a pork pie in the snow he would have eaten it or gone back to share it with the others. And whether an act with the doer’s own death as the intention really does serve social harmony and general well-​being has always the core of debate about it. Historical assessments of suicide have tended to polarize. Either it has been deemed wicked beyond words, or it has produced pity and sympathy whilst not in itself (as distinct from any harmful consequences it may have, like leaving a family unprotected, or killing a dance-​hall full of teenagers) condemned as heinous. Some medieval commentators treated suicide as the worst conceivable crime, worse than killing your own daughter or, in Judas, worse than his betrayal of Christ.2 At the other end of the scale, a play by the Roman philosopher Seneca has a character—​probably ventriloquizing for the author—​ declare that to stop a person from committing suicide is worse than to kill him, because it robs him of the one freedom granted to all human beings at birth; the freedom, that is (in the image of another Roman philosopher), to “leave the room if it gets too smoky.”3 1 Leonard Huxley, ed., Scott’s Last Expedition: The Journals, 2 vols. (London: Smith, Elder, 1913), 1:462.

2 Alexander Murray, Suicide in the Middle Ages, 2 vols. (Oxford: Oxford University Press, 1998–​ 2000), 2:331.

3 Seneca the Younger, “Hercules,” in Tragedies, Volume I: Hercules. Trojan Women. Phoenician Women. Medea. Phaedra, John G. Fitch, ed. and trans., LCL 62 (Cambridge, MA: Harvard University Press, 2002, rev. 2018), 14–​127; Epictetus, Discourses, Books 1–​2, W. A. Oldfather, ed. and trans., (Cambridge, MA: Harvard University Press, 1925, repr. 1998), 158–​59. See also John M. Rist, Stoic Philosophy (Cambridge: Cambridge University Press, 1969), 247.

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This polarization is not just European. Early twentieth-​century anthropologists tried to discover views on suicide among tribes far from European influence.4 Even tribes occupying contiguous territories, they found, could hold opposite views on suicide. One saw it as just regrettable, the other, as so “polluting” as to call for elaborate cleansing rituals—​ some eerily reminiscent of analogues in medieval Europe (like pulling a suicide’s house down).5 It is medieval Europe that concerns us here; and yes, there was suicide, and, almost universally, the act was seen as “deviant” (though I have not found that word); and to be strongly discouraged in any number of ways. How much suicide there was, and in what ways it was to be discouraged, are clearly questions for the historical sources. Historians wishing to study medieval suicide resemble astronomers investigating elusive stars. They have to spend a lot of their research time polishing and adjusting telescopes. A full Quellenkritik for medieval suicide would burst the present chapter. But a few of its lessons can be summarized. Because suicide was taboo, tending to hide itself, a researcher has to cast a wide net for documents, to embrace categories commonly studied on their own, like miraculous literature, legal writings of various kinds, letters, chronicles, and more. This variety is both a danger and an opportunity: a danger, because one category of document can give a perspective peculiar to itself, and hence a bias, in need of correction; a blessing because, once corrections are made, a synthesis of all perspectives gives a picture with all the marks of verisimilitude. Two examples, chosen almost at random, will illustrate this. Several late medieval European jurisdictions both treated suicide as an offence and kept court records, so these mention suicide. The English “eyre rolls” are the best example.6 They treat suicide as a kind of felony, a felonia de se. Comparable records survive from France, Germany, and Italy. But all yield slight differences in patterns of chronology and incidence. Do these differences reflect differences in the suicide they record or only in the creation of the sources? And Italy is an exception. Juridical records of Italian communes, over much the same centuries as those of the English eyre rolls, do not mention suicide, yet we know from elsewhere that suicide happened.7 The best explanation of the court records’ silence is that communes did not treat suicide as an offence; and the best explanation of that, in turn, would be influence from early Roman law (on which more later), together with, perhaps (as an additional motive or even independently), the reluctance of a communal elite to add occasions for confiscations of property, occasions over and above, that is, the many already provided by chronic faction-​fighting. 4 For example: Jean La Fontaine, “Homicide and Suicide among the Gisu”; and L. A. and M. C. Fallers, “Homicide and Suicide in Busoga,” both in African Homicide and Suicide, ed. Paul Bohannan (Princeton: Princeton University Press, 1960), respectively 94–​129 and 65–​93. 5 See Murray, Suicide in the Middle Ages, 2:57–​63.

6 David Crook, Records of the General Eyre (London: His Majesty's Stationery Office, 1982), particularly 12–​50. 7 See Murray, Suicide in the Middle Ages, 1:238–​39.

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68 Alexander Murray Yet we also happen to know that suicide was punished in the contrada, in much the same period and area as those taciturn communal court records. We know it from a different category of source. The Miracles of St. Nicholas of Tolentino tell of the wife of man who had hanged himself. She expects his corpse to be buried “in a ditch” (or more probably the ditch—​“in fossam”—​that is, the local refuse dump).8 No communal court records that or any other punishment; yet, away from those courts, apparently, it could happen. You will be glad to know that this particular husband was revived. This was what saints were for. Miracula, as a genre, record very few actual suicides, but many attempts. Modern psychologists would distinguish attempted suicide, as an act, from its completed version—​however hard the two may be to tell apart. The two types of act, they say, have different configurations of motive, and a different gender distribution: more women attempt suicide than men. To find the same gender difference in the miracle stories is striking. Our comparative reading of sources may not be deceiving us. So much for polishing telescopes, then. But what do they reveal about, first, the general incidence of suicide, relative to contemporary population? Medievalists get used to impossible questions. That one is hard to answer even today: modern suicide statistics are always frayed round the edges. Did the owner of that body fished from the river jump in, or fall, or were they pushed? For the Middle Ages the question is many times harder. I once tried, choosing a category of document, and a sub-​category within it, as high as possible on the reliability spectrum: the eyre rolls for Essex in 1285.9 Using every resource and making every “allowance” to reach a trustworthy figure, the highest annual suicide rate these rolls could be made to yield was less than one per 100,000 population: a tenth, or less, of the more reliable figures for European countries in the nineteenth century.10 That is no reason to disbelieve it: suicides happened, but not nearly so many as later. An alternative approach is via subjective impressions. A Toledo council in 693 spoke of a “contagion of despair” among men sentenced to custody, who were committing suicide.11 Men like those, under sentence, may be a special group. At other 8 Nicolas Occhioni, ed., Il processo per la canonizzazione di S. Nicola di Tolentino (Rome: École Française de Rome, 1984), 279. 9 The National Archives (TNA): JUST 1/​242, mm. 65–​II2d. 10 Murray, Suicide in the Middle Ages, 1:419.

11 Toledo Vives, ed., Concilios visigóticos e hispano-​romanos, with Tomás Marín Martínez and Gonzalo Martínez Díez (Barcelona: Consejo Superior de Investigaciones Científicas, Instituto Enrique Flóres, 1963), 501: “Ad hoc sacerdotalis institutio debet sine dubio promulgari, ut et vitia inolita austerissima falce poenitentie desecet et ulcus, quod subito in membrorum compagibus exortum sauciat ac serpit rigidae invectionis conatu usquequaque detruncet”; “Quorundam etenim hominum tam grave inolevit disperationis contagium, ut dum fuerint pro qualibet negligentia aut disciplinae censura multati aut pro sui purgatione sceleris sub poenitentiae satisfactione custodia [e]mancipati, incumbente disperationis incommodo se ipsos malunt [a]ut laquei suspendio enecari aut ferro vel aliis mortiferis casibus interimere, et nisi praebenti cujuslibet rei occasione suam nihilominus diabolus in eis perficit voluntatem.”

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times, we find less specific impressions that suicide is increasing. “The violent against themselves” are punished in Canto xiii of Dante’s Inferno.12 Soon after Dante’s death, in 1321, commentators on that canto explain that there had been an abnormal number of suicides in Florence in Dante’s lifetime—​an impression confirmed, to the historian’s benefit, by a contemporary Tuscan source not commenting on Dante.13 A comparable subject of impressions is England. The eighteenth-​century French regarded England as the Promised Land of suicide: the English were always doing it.14 Medieval French literary references to the English bear no trace of that view. The first evidence we have of it is from a Venetian nobleman writing home in 1562. He admires the merchants of the City of London, but remarks on their proclivity for throwing themselves down wells.15 There are independent signs, both from England and elsewhere, that suicide rates were rising shortly before and after 1500.16 What with Renaissance Florence, and Tudor London, might we not take another look at Max Weber on capitalism? Haste would be out of order. Even in the darkest of the “dark” ages, with not much capitalism around—​ that seventh-​century Toledo council tells us—​there were suicides. Not many, perhaps, but some. This assurance must lead to our second question. How did everyone else react to suicide, and why? Almost universally, I repeat, they strongly disapproved. Why was this? The role of “the Church” was of course crucial, but what in this context, might the word “Church” actually mean? We begin with doctrine.

Church Doctrine

Ecclesiastical doctrine was meant to be based on the Bible. What does the Bible say on suicide? Its narratives tell of at least eight deaths by suicide (the exact number depending on definition; and I exclude the Gadarene swine in Matthew 8:32). The narratives treat suicide as a “bad death,” as befitting a “bad” character and thus implying, one supposes, that suicide is itself bad. For medieval Christians the supreme example would be Judas. The Middle Ages were a bad time for Judas. A society held together by personal loyalty 12 Dante, La Divina Commedia, ed. Giorgio Petrocchi, 3 vols. (Turin: Einaudi, 1966–​68), 1 [Inferno]. See Murray, Suicide in the Middle Ages, 2:289–​322.

13 See Murray, Suicide in the Middle Ages, 1:88–​89, which discusses the comments of the poet Cecco Angiolieri and the lawyer-​poet Cino of Pistoia. 14 “Suicide, ou homicide de soi-​même,” in Voltaire, Dictionnaire Philosophique, ed. Raymond Naves with introduction by Julien Benda (Paris: Éditions Garnier Frères, 1954).

15 Caroline Barron, Christopher Coleman, and Claire Gobbi, eds., “The London Journal of Alessandro Magno, 1652,” London Journal 9 (1983): 136–​52, at 146: “Many [Englishmen] find themselves driven to hang themselves, or to throw themselves into a well and drown.” See also John McManners, Death and the Enlightenment (Oxford: Clarendon Press, 1982); Murray, Suicide in the Middle Ages, 1:376. 16 Murray, Suicide in the Middle Ages, 1:368–​78.

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70 Alexander Murray gave traitors short shrift. (Look at poor Ganelon in The Song of Roland.)17 Judas made it worse by hanging himself. At least, that was one thing medieval readers were certain about. Actually, St. Jerome, in translating the New Testament from Greek to Latin, had “reconciled” two accounts of Judas’s death.18 Matthew 27:5 says that he hanged himself. Acts 1:18 says only that his guts burst out in a field. Jerome took a translator’s liberty with the Acts passage, to make the key Greek word mean suspensus, giving medieval readers no choice. (Not that they asked for one.) Judas was both a traitor and, for a certainty, hanged himself. No one could deserve Hell more. Those other seven or eight biblical suicides raised questions of their own. A knotty one was Samson. The book of Judges hails him as the great killer of Philistines. But ­chapter 16, verse 28, reveals how Samson died. He pulled down a building on himself and everyone in it, thereby killing more Philistines, the author proudly tells us, than he ever had before; but also, as a minor detail, himself. And this was intentional. Just before heaving at the pillars, Samson had said “let me die with the Philistines.” Do not ask how anyone knew this, since all concerned were dead. Narrators are omniscient, especially in the Bible. And it is too late to warn Samson that he need not have spoiled his case by those last words. Samson was a suicide-​bomber, or what an older generation called a kamikaze (after Japanese suicide-​pilots). Samson’s puzzling example might have been left to moulder in the Old Testament, like most of the others, if St. Paul, no less (then believed to have written the book of Hebrews) had not praised Samson to the skies as a paragon of faith (Heb. 11:12). On suicide, then, we have to conclude, the Bible gave an ever-​so-​slightly uncertain sound. The task of firming it up would fall to St. Augustine. Augustine addressed the suicide question in several places, notably when distinguishing it from martyrdom. But his classic utterance on the topic was in a series of twelve chapters in The City of God: Book 1, ­chapters 16–​27.19 Like many of its author’s writings, The City of God was polemical. In 410 Visigoths had sacked Rome. Old-​school Romans added this to a tally of disasters which had befallen the Empire since Christianity had become the Empire’s official religion. It was Christianity’s fault. Augustine wrote The City of God to answer this charge. Why suicide came into the question was that, in putting their anti-​Christian case, the critics I described as old-​school Romans had heaped praise on those Roman women who, in 410, to avoid rape by Goths, had thrown themselves to their deaths in the Tiber. These women were so many Lucretias. That was high praise. The chaste Lucretia, everyone knew, had been raped by a son of King Tarquin, and had stabbed herself to death on the ground that she preferred death to dishonour—​all this assigned to a date corresponding to our 509 BC. Why Lucretia’s ordeal still mattered, nine centuries later, 17 Aubé, Edmond, ed., La Chanson de Roland (Paris: Classiques Garnier, 1945; repr. 2014). 18 Murray, Suicide in the Middle Ages, 2:338.

19 Augustine, De Civitate Dei, ed. B. Dombart and A. Kalb, 2 vols., 47–​48 (Turnhout: Brepols, 1955), 1:17–​28.

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was that it had occasioned the revolt which overthrew of the Roman monarchy and established the republic. Later, on the more trustworthy date of 46 BC, Lucretia’s status would be fortified by a matching suicide at the end of the republic, when the younger Cato had then killed himself—​theatrically, in Plutarch’s long account—​rather than submit to dictatorship by Julius Caesar. Lucretia and Cato had both lived lives of conspicuous virtue, essential for republics. (With no one to give orders, republics fall to pieces if citizens are not virtuous.) So here, then, were two martyrs, at the beginning and end of the republic. Or not quite the end. As the targets of Augustine’s polemic, they show that the republican ideal, though put out of office by the principate, had lived on as a belief, among citizens in or out of power, identifying the unique virtues justifying Rome to rule the world. Faced with these martyrs, Augustine had to tackle a suicide ethic which we can loosely call “Stoic.” I say “loosely,” because some other Roman philosophical schools exculpated suicide and not all Stoics thought quite the same. Why Augustine “had to” tackle that ethic was by reason of the epoch into which he had been born, in 345. That was not long after Constantine had established Christianity as the Empire’s official religion. It fell to Augustine’s genius to adapt Christian ethics for new circumstances. Before Constantine, the utmost witness Christians could give to their faith was martyrdom. But for that, others had to kill them. The triumph of Christianity had weakened that opportunity and thrown up, instead, a need for Christian ethics appropriate, first, to the millions who were not martyr-​material, and, second (a different though related matter), for their effective government. Ethical adjustments were necessary. The Stoic legitimation of suicide was one casualty. Augustine handled it with gusto. Distinguishing pollution from guilt, he said Lucretia had not been dishonoured by rape. She had only suffered, and suffering was an essentially honourable condition if patiently borne. Lucretia’s only sin was her suicide. The same for Cato. He would have been more virtuous to survive and endure despotism.20 In rhetorical momentum, Augustine’s anti-​suicide chapters are worthy of their author. Their forensic coherence is less impressive. Augustine built his anti-​suicide case on the commandment “thou shalt not kill.” But this was the same Augustine who—​again to meet the ethical needs of the converted Empire—​had argued for the “just war” and for religious persecution, both of which involved killing. And then there was Samson. Augustine was a nimble tackler, and met the Samson problem with an expression he must have learned (though he did not say so) from his Stoic education. Samson must have had a “special divine command” to kill himself with the Philistines.21 His example is not for everyone. Politically, a more sensitive problem was virgins. Lucretia had killed herself after rape. But what of virgins who killed themselves to avoid rape—​like those virgin-​suicides 20 Augustine, De Civitate Dei, respectively Book 1:19, 23, and 24.

21 1.31.39 of Augustine, “Contra Gaudentium,” in Scriptorum contra Donatistas Pars III, ed. Michael Petschenig, 53 (Vienna and Leipzig: Tempsky and Freytag, 1910), 199–​278, at 238–​39.

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72 Alexander Murray in the sack of Rome. The political difficulty here was that virgins of this type had already been acknowledged as saints, as in Eusebius of Caesarea’s History of the Church (ca. 300),22 and, nearer Augustine’s time, by his senior contemporary Jerome. Jerome had written that, although suicide is normally forbidden, an exception is made if it is the only way to defend virginity.23 Seven centuries later that disagreement between Jerome and Augustine, recorded in writing, would catch the sharp eye of Peter Abelard, who put the contradictory opinions side by side in his Sic et non.24 Even as St. Augustine wrote, the moral mood of the Empire was changing, against the Stoics. To name just one philosophical current on the rise, Neoplatonism brought its own objections to suicide. Plato’s Phaedo had mentioned a Pythagorean notion that we human beings are put on earth as sentries or soldiers, and must not leave our posts until relieved.25 Latin readers did not have to read this in the Phaedo, since another of Augustine’s senior contemporaries, Macrobius, had endorsed that Pythagorean doctrine in writing; and had done so with all the more confidence for its agreement with an even more influential Roman neoplatonist, Porphyry (234–​ca.305).26 Porphyry had taught that our moral goal must be to free ourselves from passion. When we have achieved this, we are ready to die. But Porphyry insisted that we must on no account die by an act of our own. To do so would be an act of passion, undoing our previous achievements; which is why—​Porphyry added, in one of the priceless “asides” occurring in these philosophical writings—​the ghosts of suicides loiter around the place where they did it, or their former homes.27

The Stoic-​Christian Dialectic

From a contemporary viewpoint, then, Augustine’s anti-​suicide chapters were as much a symptom as a cause of a change of moral mood in the late Empire. Looking back, we can see his arguments as an anticipation of a Christian-​Stoic dialectic which would revive in the twelfth century and outlast the Middle Ages (“Reformation” and “Renaissance” were part of it). Its twelfth-​century revival can be attributed to what I would like to call the Gregorian paradox: that is, an unintended consequence of the Church reform inspired by Gregory VII. The paradox was that, if the Church was to be a unity, as distinct from 22 Eusebius, Ecclesiastical History, trans. Kirsopp Lake, 2 vols., LCL 153 and 265 (Cambridge, MA: Harvard University Press, 1926–​32), 2:308–​11; Murray, Suicide in the Middle Ages, 2:112–​113. 23 Jerome’s long and well-​known letter to Eustochius: Epist. 22 in Epistulae, ed. Isodorus Hilberg and Margit Kamptner, 3 vols., 54–​56 (Vienna: Österreichischen Akademie der Wissenschaften, 1996), 1:143–​211. 24 ca. 155 in Peter Abelard, Sic et non: A Critical Edition, ed. Blanche Boyer and Richard McKeon (Chicago: Chicago University Press, 1977).

25 Plato, Phaedo: interprete Henrico Aristippo, ed. Raymond Klibansky, Plato Latinus 2 (London: Institutum Warburgianum, 1950), vii–​xix. 26 Macrobius, Commentarii in Somnium Scipionis, ed. J. Willis, 2nd ed. (Leipzig: Teubner, 1970). 27 Macrobius, In Somnium Scipionis, 1:13.

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widely-​scattered expression of local polities, it had to use a single language. This language had to be Latin, both because it was in situ and because it was far more sophisticated than any vernacular. Whence all those schools for “grammar,” that is to say, Latin. Where the unintended consequence came in was that the best Latin had been formed in the late Roman republic and early Empire, before Christianity had been heard of. The best linguistic exemplars had cultivated, in competition with Greek and in debt to it, a language whose excellence could match that of all other Roman achievements. Typical were Cicero and Seneca. But not only had they never heard of Christianity. They had an ethical system of their own, which, inter alia, condoned suicide. So when Christianity did finally arrive, with an ethics based on different principles, it set in motion the to-​ and-​fro just sampled in St. Augustine’s suicide chapters; and when the same dialectic re-​emerged in the “twelfth-​century renaissance,” it shaped the treatment of suicide in early scholasticism. And it did so all the more vigorously for the broad areas of ethical agreement between Stoic and Christian. Stoic ethics were less ambitious. Devotees did not have to “turn the other cheek” or give all their goods to the poor. But what Stoic ethics lost in ambition it gained in appeal: tell the truth, seek honour rather than riches, be loyal to friends—​all practicable ideals, perfectly wholesome for Christians; and—​the decisive factor—​more “marketable” than the gospels’ ambitious counsels. Over the twelfth and thirteenth centuries, consequently, handbooks of moral wisdom culled from the “philosophers” became vade mecums for Christian teachers and preachers. Diplomatically, these handbooks omitted Stoic doctrines on suicide. What they achieved, however, was the habituation of Latin readers to the philosophers’ moral authority. This meant that, when a Christian scholar did confront the philosophers’ indulgence of suicide, it came as an embarrassment. John of Salisbury’s Policraticus (ca. 1159) is an example. John is busy admiring Diogenes—​a Cynic, safely pre-​Stoic, but with a similar suicide ethic. John presents Diogenes, in his barrel, as a model of poverty and indifference to fame, worthy of contemporary imitation. Suddenly, John remembers that Diogenes had died by suicide—​committed, according to the standard account, with ostentatious nonchalance, to show it was morally indifferent. Suddenly, John has to improvise Christian anti-​suicide arguments, and fall back, faute de mieux, on longer or shorter quotations from St. Augustine’s chapters. In the early scholastics we sense a reluctance to engage with the subject of suicide at all, as if, what with Sic et non, and the weak spots in Augustine’s chapters, they did not know quite what to say. But around 1250, help arrived from an unexpected quarter. Aristotle’s Ethics became fully available in Latin. Aristotle had always set store by the ethical claims of the polis—​which we can read here as “society.” Suicide was wrong, he said, because it injured the polis, “which is why,” he finished, in another of those priceless philosophers’ “asides,” the Athenians cut off the feet of a suicide’s corpse before they bury it.28 28 Book V, 1138, ll.11–​14 in Aristotle, Nicomachean Ethics, ed. H. Rackham, LCL 73 (Cambridge, MA: Harvard University Press, 1926), 318–​19. For the Latin translation by Robert Grosseteste

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74 Alexander Murray Aristotle’s promotion of the polis was near enough to the Bible’s commandment to “love thy neighbour” to recommend the Aristotelian text to Christian moralists. They fell on it like a hungry man on a sandwich, lost any previous embarrassment in handling the suicide at all, and put Aristotle regularly at the heart of their answer. That, in a few words, is what churchmen thought and taught. It does not say what they did. Like all questions about what people do, this one subdivides into two: what they were meant to do, and what they actually did. Let us look at the first question first, and begin with canon law.

Canon Law

Canon law said very little on suicide, but went on saying it for centuries. The core of its teaching was a resolution of the first Council of Braga, in 561.29 It is quoted in Gratian’s Decretum, composed ca. 1140 and destined to be a standard textbook for canonists for the rest of the Middle Ages. This is how Gratian quotes the Braga resolution: It pleased the council that those who voluntarily put themselves to death by iron [blade], or poison, or falling [from a height], or by hanging, or in any other way, no commemoration shall be made for them in the offerings, neither with psalms when their bodies are taken for burial. For many [priests] have been wrongly doing this through ignorance. The same applies to those executed for their crimes.30

Besides adding explanatory words in square brackets, my translation tries to preserve the grammatical irregularity of the original—​an anacoluthon—​as a possible guide to its history. The canon has other telltale irregularities. First, it instinctively defines suicide by method, condemning those who “sibi ipsis aut per ferrum aut per venenum … inferunt mortem.” The final phrase, “those who put themselves to death … violently by any means,” is an afterthought. In his book Mimesis, Erich Auerbach identified this concentration on observed fact, with no abstraction or question of motive, as characteristic of the period, as illustrated in Gregory of Tours’ Histories, all but contemporary with the Braga council.31 commonly used from the mid-​thirteenth century onwards, see R. A. Gauthier, ed., Ethica Nicomachea, fasc. 3: Translation Lincolniensis. Recensio pura, Aristoteles Latinus 26 (Leiden: Brill, 1972), 250.

29 Vives, ed., Concilios visigóticos e hispano-​romanos, 10: “Item placuit, ut hi, qui sibi ipsis aut per ferrum aut per venenum aut per praecipitium aut suspendium vel quolibet modo violentam inferunt mortem nulla illis in oblatione commemoratio fiat neque cum psalmis ad sepulturam eorum cadavera deducantur: multi enim hoc sibi per ignorantiam usurparunt. Similiter et de his placuit, qui pro suis sceleribus puniuntur.” 30 Decretum c.12 C.22 q.5 (=​canon 12 of question 5 in Causa 22 of part II—​“Placuit”), col. 935.

31 Erich Auerbach, Mimesis: The Representation of Reality in Western Literature (Princeton: Princeton University Press, 1953), 78. The particular subject of the comment is Gregory’s description of the quarrel between Sicharius and Chramnesindus in 7.47 and 9.19 of Historiarum libri X, ed. Bruno Krusch and Wilhelm Levison (Hanover: Hahn, 1965). See also Murray, Suicide in the Middle Ages, 2:429.

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This focus on the fact as experienced, without moral qualification or abstraction, is characteristic also of a medieval word sometimes used for suicide: biothanatos. The word had begun in Greek; or rather, a word like it had begun in Greek: biaothanatos, literally meaning “violent death.” That could mean falling off a ladder or being gored by a bull, or, indeed, also, suicide. By the time the word entered Latin, in the third and fourth centuries AD, it had metamorphosed into biothanatos, literally the oxymoron “life-​death”; and also, by then, the word’s suicidal connotation had become predominant. It would remain so when it passed into medieval Latin. But the original connotation was asleep, not dead. Reporting the death of William Rufus in 1100, Orderic Vitalis says that the Winchester monks refused him a church burial because his was a biothanatos.32 We know William’s death was not suicide. He was killed by a chance arrow. But the king’s known impieties, and the suddenness of the death, must have fitted that word. It took our forebears a strikingly long time to form a clear idea of suicide as deliberate self-​killing. The word “suicide” is a seventeenth-​century English neologism, later exported to other languages.33 A reason for the slowness may be taboo, a reluctance to dignify the repulsive with a name. But another, surely, is a slowness in forming the appropriate conceptual distinctions. The wording of I Braga 16 has more other lessons than can delay us here. But one we cannot miss is what it decrees. It says that some priests have been giving suicides formal burial “through ignorance.” Ignorance of what? The council expects the public to know. Classical Roman literature contains hints that, below the social rank of those suicide-​ minded philosophers and soldiers, popular ritual may have banned suicides from normal burial. Some of those hints relate to Spain. Most of it was by now ruled by the Visigoths—​ descendants or collaterals of the sackers of Rome in 410. But they remained a tiny ruling minority, unlikely to have disturbed ancient rituals. Nor would the Visigoths themselves have introduced a suicide ban. They had other preoccupations, and no pre-​Christian Germanic people leaves us evidence of anti-​suicide customs; rather the opposite. Suicide after military defeat was not uncommon, and we even read hints—​again, no more than hints—​of what can conveniently be called the “Old Age Pension” suicide. If you were old and infirm you were meant to jump to your death from a certain rock—​unless, that is (yet another mere hint), you were ritually murdered first. There is a stronger line of speculation, in the career of St. Martin of Braga (ca. 520–​ 579), organizer of the Braga council. After exchanging his soldierly career for a religious one, Martin had made a pilgrimage to Palestine and Egypt. Having got to Egypt, he would hardly have failed to visit the monastic communities founded near Thebes by Pachomius (d. 346); and it just happens—​or is it more than chance?—​that it is precisely these 32 Book 10, c.15 of The Ecclesiastical History of Orderic Vitalis, ed. Marjorie Chibnall, 6 vols. (Oxford: Clarendon Press, 1969–​80), 5:292. 33 Andreas Bähr, “Between ‘Self-​Murder’ and ‘Suicide’: The Modern Etymology of Self-​Killing,” Journal of Social History 46 (2013): 620–​32.

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76 Alexander Murray Pachomian communities that leave us, from Pachomius’s lifetime, our earliest evidence for Christian denial of formal burial to suicides.34 Whether the rule had long existed in Spain or was Martin’s introduction, the priests needed “reminding.” That gentleness again has Martin’s stamp. So, indeed, does the rule of which its public was “reminded.” Burial prayers—​psalms, in this case—​were normally public. So it was only public prayers that the suicides were denied. The ban respected local communities (of which I shall say more later). Private prayers were not banned. Some medieval voices would speak as if all prayer for suicides would be useless because suicides were damned anyway. But other voices, as or more authoritative, stated in so many words that private prayers were allowed. No small difference, for the dead party. To linger for a moment more with the Braga canon, the word “voluntarie (voluntarily)” appears in Gratian’s version. It was not in the original. Its absence in the 561 original illustrates Auerbach’s theory again. It is the self-​hanging that matters, not the free will behind it. Soon after Braga, another council, at Auxerre, would pass its own anti-​suicide laws, and this time include the phrase propria voluntate.35 The authorities were learning. They went on learning, so that at some unknown date, before Gratian, the word voluntarie was smuggled into the Braga text. Among influences which put it there, one, beyond doubt, must have been the Irish-​inspired genre known as the penitentials.36 As a genre, they would eventually be cold-​shouldered out of canon law, partly because they implied that you could sin and repent and then sin again, and partly because they lacked conciliar authority. But the penitentials, by their very nature, recognized intention as of the essence of an offence—​ as also, consequently (if the person who had attempted suicide was not already dead), its openness to repentance. Intention and repentance were to enjoy twin recognition in the genre which succeeded the penitentials, the Summa confessorum. These handbooks told parish priests how to conduct sacramental confession, whose regular performance had become a preoccupation of bishops in the thirteenth century. A Summa confessorum would 34 Two incidents, evidenced in The Lausiac History of Palladius: A Critical Discussion Together with Notes on Early Egyptian Monachism, ed. Cuthbert Butler, 2 vols. (Cambridge: Cambridge University Press, 1898–​1904), 2:97, 1106A; and John Cassian, Collationes XXIIII, ed. Michael Petschenig, 13 (Vienna: Österreichen Akademie der Wissenschaften, 2004), 2.5 (“De discretione”), 44–​45. 35 Charles de Clercq, ed., Concilia Galliae, 2 vols. (Turnhout: Brepols, 1963), 267.48–​51: “Quicumque se propria voluntate aut in aqua jactaverit aut collum ligaverit aut de arbore praecipitaverit aut ferrum percusserit aut qualibet occasione voluntate sua se morte tradiderit istorum oblata non recipiatur.” See also Jean Hardouin, Gabriel Cossart, and Philippe Labbe, eds., Acta conciliorum et epistolae decretales, ac constitutiones summorum pontificum, 11 vols. (Paris: Ex typographia Regia, 1714–​1715), 3:443.

36 Ludwig Bieler, ed., The Irish Penitentials, translated with an appendix by D. A. Binchy (Dublin: Dublin Institute for Advanced Studies, 1975), 260. See also Cyrille Vogel, Les “Libri paenitentiales,” Typologie des sources du Moyen Âge occidental 27 (Turnhout: Brepols, 1978); Allen J. Frantzen, The Literature of Penance in Anglo-​Saxon England (New Brunswick, NJ: Rutgers University Press, 1983).

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normally quote the Braga text in accordance with Gratian, that is to say, with its allusion to free will.37 They soon added another qualification, inherited from the penitentials: “if [the offender] does not repent.” As if to build still further on the mental background of suicide, they were also soon adding specifications of motive. One influential Summa confessorum by the Dominican John of Freiburg, datable around 1300, spells out motives that make a suicide culpable: “desperatio, indignatio vel iracundia (despair, resentment or anger).”38 These were distinct from the motives which excuse suicide: “secus si ex furore, vel a casu (frenzy or mischance).” There was room for judgement here. Judges would make use of it. Psychology was coming of age. That, then, was what the clergy were supposed to do—​or not do. What, in hard fact, did they do—​or abstain from doing? As for most categories of human being, the answer partly reflected what everyone else did. So let us now look at the non-​clerical laws on suicide, and begin with laws which the Middle Ages inherited from the Roman Empire.

Roman Law

By the “Gregorian paradox,” the reformers’ promotion of Latin exposed their young to pre-​Christian moral principles, friendly to suicide. Some of these young were similarly exposed to pre-​Christian law, in the same suicide-​friendly sense. Nor, actually, were philosophy and law the only fields whose gate had been left dangerously open by those grammar schools. If our subject were imagination rather than (Auerbach-​style) hard fact, we could chronicle the at first slow, but soon disastrous, invasion of poetry by a pre-​ Christian suicide ethic, as embodied by those hardy best-​sellers about Dido, Pyramus, and Thisbe. In the event, however, law, like philosophy (if for different reasons), resisted most of the suicide-​friendly influence it might otherwise have absorbed from Roman law. Let us see why. In the middle of the eleventh century the first of Justinian’s four great collections of Roman law, the Digest, had been “rediscovered.” (It had been there all along but no one was interested. Some towns were now interested because they wanted to curb their own bishops.) Once the “rediscovery” of Justinian had begun it could not be stopped. It had something for everyone. By the time Gratian—​himself not uninfluenced by Justinian’s codifying example—​had gathered his canon law in the Decretum, all four of Justinian’s codifications, of non-​canon law, were being copied, lectured on, glossed, and debated, and were beaming forth their crisp legal principles into every cranny with space and will to accept them.39 37 For example, see Josef Raith, ed., Die altenglische Version des Halitgar’schen Bussbuches (sog. Poenitentiale pseudo-​Ecgberti), 2nd ed. (Darmstadt: Wissenschaftliche Buchgesellschaft, 1964), 77. See also Murray, Suicide in the Middle Ages, 2:270. 38 John of Freiburg’s commentary is printed in the margins of the 1603 edition of Raymond of Peñafort’s Summa de poenitentia (Rome, 1603). For the relevant passage, see lib. 1, tit. 16, §2; Murray, Suicide in the Middle Ages, 2:275. 39 See Murray, Suicide in the Middle Ages, 2:152–​88.

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78 Alexander Murray Some the principles concerned suicide; and some were “Stoic.” But only some. It is a matter of dates. Justinian’s collections had been completed in 533. When they were “rediscovered” they were six centuries old. A lot had happened in those centuries. We have seen some of it, in that change in the Empire’s moral mood. Today’s legal historians divide Roman law into two periods, classical and post-​classical, separating around 300. Early Roman lawyers were as emphatic as any Stoic philosopher in treating suicide as innocent. In fact these lawyers thought they were philosophers, practising a philosophy truer than its speculative senior because law, unlike speculative philosophy, put its principles into practice. This view had been particularly strong under the Antonine Emperors (117–​235). Now we know what Roman philosophers thought of suicide. It was not guilty. So in principle it should be no business of law. But in fact it entered by a side door. The door was capital crime, a class of crime commonly punishable by death and confiscation. That word “confiscation” had a terrifying ring. It meant that the emperor’s insatiable “fisc” (a private money-​box modelled on a feature of eastern despotisms) could take all a citizen’s property. Prisoners accused of a capital crime, foreseeing their own execution but caring for their families, had been sharp-​witted enough to commit suicide in prison before a sentence could be passe. That would save their estates. Predictably, lawyers for the fisc reacted. They claimed that suicide, however “innocent” in itself, amounted to a confession of guilt on the main charge. It would be out of place here to chronicle the long cat-​and-​mouse game played by lawyers for and against the fisc on this issue. But a patient reading of their exchanges exposes an error in the assumption of these lawyer-​philosophers that law can be a kind of philosophy, their radical difference being that philosophy can, as law cannot, choose how social it wants to be—​with all the complications which social obligation brings with it, to do (in law) with courts, witnesses, rules of evidence, procedure, motive, and more.40 The “classical” Roman lawyers, favourable to suicide, were thus already losing their force before the Empire’s mood switched against suicide as such. Later contributions to Justinian’s collections thus include some strong anti-​suicide texts. One describes even an attempted suicide as the mark of a desperado, who must capable of anything, intrinsically a criminal.41 Despite this defeat, the written deposit of these early Roman lawyers remained in Justinian’s codifications. So it bequeathed to medieval law students another sheaf of suicide-​friendly texts, to augment any they remembered from grammar school. I suggested earlier that texts of this kind may have played a part in the decriminalization of suicide by Italian communes. Elsewhere they had next to no effect. But this was due, not just to written texts, for or against suicide; rather, to a combination between, on one 40 Murray, Suicide in the Middle Ages, 2:158–​63.

41 Digesta, ed. Theodor Mommsen and Paul Krueger, Corpus Iuris Canonicis 1, 21st edn (Dublin: Weidmann, 1970–​1972 ca. 1967–​1968), 48.21.3 (6).

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hand, certain minority provisions in that otherwise suicide-​friendly early Roman law, and, on the other hand, changes in social structure. These minority provisions in question concerned slaves and soldiers. Whatever philosophers might say, the suicide of a slave or low-​ranking soldier was a loss to his superiors. Either he had been useless in the first place or his death was a loss. The buyer of slave lost his money by the slave’s suicide. Because the suicide slave could not be punished afterwards, his owner had to assess beforehand the risk of his doing so. Even in classical Roman law, the vendor of a slave who had attempted suicide had to reveal the blemish or pay compensation.42 The rules were similar for a soldier, but more drastic. Moral questions apart, a soldier’s suicide reduces the force of his unit. Since a low-​ranking soldier had no property to speak of, and a soldier who killed himself could not be “punished,” all the weight went on to attempt. Roman law was normally shy of attempts. But not here. The complexity of responses to suicide is nowhere better encapsulated than by the Roman penalty for attempted suicide by a soldier: death—​the completion, that it is to say, of an act the mere attempt at which had been the sum total of the soldier’s offence.43 Roman law on slaves and soldiers mattered more in the Middle Ages than in Roman times for a simple reason. Over most of medieval Europe, for most of the period, most people were dependents. Perhaps not in Italian communes, whence the exception. But elsewhere, again despite moral niceties, the suicide of a dependent was a loss to the lord to whom he owed homage. So the lord punished suicide, by confiscation of the dead person’s property and disgraceful burial, sometimes with mutilation of the corpse. This may explain what might otherwise be another paradox. In some polities—​ France the best example—​Roman law promoted the late medieval monarch as a Roman princeps, ruling over subjects personally free. Yet classical Roman law excusing suicide did not revive. The old seigneurial punishments for a suicide remained, because—​this is speculation—​the king’s ancestral rights qua lord had passed upwards, undisturbed, into his rights qua king. Philip IV of France had Roman lawyers all round him. But those Antonine philosopher-​lawyers might never have lived. One of Philip’s chancellors quoted Roman law to snort a quick answer to the question what to do with an attempted suicide, by a soldier or anyone else. No question: he should be hanged. Christian principles, it may be added, bore next to no part in creating these secular laws—​apart, perhaps, from their invocation by Alfred the Great in creating the grave type of offence he called “felony.”44 But since the laws did not clash with the Church’s condemnation of suicide and refusal of formal burial, there was no quarrel. No open one, that is to say. But we are bound to ask, as our next question, whether all these laws, where known (as not, apparently, by those Braga priests), were strictly enforced. Or were they broken, or bent? Let us call the witnesses. 42 Digestum 2.1.1 (1); see also 21.1. §43 (4). 43 Digestum 48.19.38 (12).

44 T. B. Lambert, Law and Order in Anglo-​Saxon England (Oxford: Oxford University Press, 2017).

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Enforcers, Breakers, and Benders of the Law Judicial records usually confirm their authors’ eagerness to enforce law: whatever they might think of its merits (if they thought at all), they enforced the law to defend their jurisdiction, and its resulting profit. The English eyre rolls were kept in the Exchequer from both motives. Again, whatever Christian principles might say, the same motives could operate also in Church institutions. The key example is that of certain abbeys near Paris.45 From the late thirteenth century, the Paris prévôt was extending his jurisdiction at the expense of senescent ones roundabout. These latter included seigneurial jurisdictions granted to certain abbeys, long before, by their Merovingian founders. To resist the prévôt’s encroachment, now, the abbeys kept criminal registers giving details of criminal cases. They make grim reading, for any but afficionados of medieval criminal procedures. They record how criminals’ bodies were “dragged,” alive, to the gallows, and their corpses mutilated and disgracefully disposed of. Suicides are among them—​lucky to be dead already. These abbeys are the prime example. But less grim ones can appear elsewhere, for instance in the register of a fifteenth-​century bishop of Lincoln, anxious to keep diocesan jurisdiction against encroachment, this time, by the crown.46 A comparable motive seems to underlie the legalistic protests of some parish clergy, again in the fifteenth century, at the privileges of certain religious orders, notably Hospitallers or Dominicans, who have allowed suicides normal burial in their institutions’ graveyards. Other parish clergy, by contrast, did not just bend but broke the law, or tried to (the ones we know about were caught, and their offence recorded). The English eyre rolls have a fair number of cases where a suicide’s widow has persuaded the parish priest to give him normal burial and conceal the manner of death –​both culprits to be punished afterwards. As to the attempted suicides of miraculous literature, there is never a breath about punishment, only of pastoral admonition and extra care. Even when miracle stories record an actual suicide, as they do rarely, no punishment is mentioned. Many enforcers of the law were sufficiently motivated to do so by love of their jurisdictions and their income. But another source of enthusiasm for law enforcement lacked these motives, and deserves all the more attention for that reason. Its role is well illustrated by a case in a Zürich chronicle for the year 1417.47 A member of the town’s ecclesiastical chapter had killed himself and been given normal buried in the 45 Louis Tanon, Histoire des justices des anciennes églises et communautés monastiques de Paris (Paris: Larose et Forcel, 1883).

46 Margaret Archer, ed., The Register of Bishop Philip Repingdon, 1405–​1419, 3 vols. (Hereford: Lincoln Record Society, 1963–​1982).

47 Markus Schär, Seelennöte der Untertanen. Selbstmord, Melancholie und Religion im Alten Zürich, 1500–​1800 (Zurich: Chronos, 1985), 47; the case was also recorded by Eduard Osenbrüggen, Studien zur deutschen und schweizerischen Rechtsgeschichte (Schaffhausen: Fr. Hurter’schen Buchhandlung, 1868), 339: “unser eidgenossen und gemein land dar uf schryen.”

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chapter’s privileged churchyard. A few days later the mayor led a deputation from the town to ask the canons to remove the corpse from holy ground. He explained that “our fellow citizens and the whole region are protesting,” that this burial had caused bad weather, and ruined the harvest. The chapter had no choice. If they had not dug up the corpse, someone else would have done so. Graveyards were normally unguarded at night, and while clergy might have the say-​so about prayers and ritual, graveyards, in fact (whatever the theory), were the community’s province. People wanted to know who was to be buried next to their grandmothers. That Zürich case is like a light-​signal at night. It alerts us to the presence of an entity too easy to miss: the local community. Once alerted, we see it everywhere. When we find a judicial record revealing that a widow and her parish priest have colluded to conceal a suicide, we now wonder, who reported them? Someone must have done so—​and with no fear of ostracism by the local community for “telling.” The “savaging” of a suicide’s corpse—​to borrow a term from some city-​bred Italian judges (who say their courts did not “savage” suicides’ corpses, as if others did)—​could not have happened against community protest, of a kind sometimes raised against the burning of heretics. Knowing all this, we turn to evidence of rituals which teach the same lesson. I mentioned en passant, at the beginning of this chapter, the practice of one African tribe in destroying a suicide’s house. The same practice is recorded as a long-​standing practice—​with additions (the suicide’s orchard is also uprooted)—​in a fourteenth-​ century of Anjou customary.48 Even more suggestive are references to the removal of a suicide’s body from a house otherwise than over the threshold, for instance through a hole in the roof.49 We have twelve references to this ritual, and they can be mapped. All are on the northern European mainland, east of the Germanic-​Romance linguistic border as it stood for a time, linguists assure us, in the sixth century. No Merovingian or 48 Charles-​Jean Beautemps-​Beauprès, ed., Coutûmes et institutions de lʼAnjou et du Maine anté rieures au xvie siècle: textes et documents, avec notes et dissertations, 8 vols. (Paris: Durand et Pedone-​Lauriel, 1877), 1:430: “Les maisons doibvent estre fondues [ou descouvertes du cousté du grand chemin], les prez ars, les vignes tranchées et estrepées, et les boys tranchez a haulteur de homme, et lʼappelle on ravaire.” The term “holder of High Justice” translates as “le comte ou baron.” Robert Caillemer, Études sur la confiscation et l’administration des successions par les pouvoirs publics au Moyen Âge, 2 vols. (Lyon: Rey, 1901), 1:29–​30 quotes an Angevin code later in date but perhaps more primitive, since it allows no modification either to the house destruction or the felling of trees, and adds the devastation of fields (“les prez arrestz”). See Murray, Suicide in the Middles Ages, 2:57–​58.

49 For example, the mid-​fourteenth-​century statutes of Goslar whose text is quoted by Jacob Grimm, Deutsche Rechtsalterthümer, 4th ed. (Leipzig: Dieterich, 1899), 2:326: “de ok sek sulven dodet, dene schal man to der rechten doren nicht utbringen, mer under deme sülle schall me one utbringen, eder ut dem venstere”; see also Ossip Bernstein, Die Bestrafung des Selbstmords und ihr Ende (Breslau: Schlettersche Buchhandlung, 1907), 4. Or consider what a case from Utrecht in 1548, discussed in Joseph Bernard Cannaert, Bydragen tot de kennis van het oude strafrecht in Vlaenderen (Ghent: Gyselynck, 1835), 281; and in M. J. Noordewier, Nederduitsche Regtsoudheden (Utrecht: Kemink en Zoon, 1853), 31. See also Murray, Suicide in the Middle Ages, 2:23–​24.

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82 Alexander Murray Carolingian legislator, clerk or lay, was behind that. Nor behind a similar ritual recorded more recently in India (from near Chennai).50 There is plenty more to be said about those Zürich peasants’ belief that unpurged suicide brings bad weather. And there is a little more—​surprisingly little, actually, strictly datable to the Middle Ages rather than before or after (that is, with the exception of Porphyry)—​ about a belief that suicides come back as ghosts.51 Clerical doctrine, then; clerical law; Roman and secular law; and now, last, pressure from the uneducated local communities. The upshot, as often, is a difference in modes of expression, between the haves and have-​nots of the best education their epochs could offer. But they shared a position. Suicide was wrong. One human category expressed that view in actions, not words; another, though university-​trained masters of words, fell back on a pre-​Christian Athenian to explain their stance. Looking back at these ancestors of ours, we have to try harder, to suggest rationales for the position shared by these two categories. So here is a suggestion—​or two, one for each category. What mattered to the educational have-​nots, unconsciously, was that suicide is contagious. Durkheim’s demonstration of that has often been confirmed since.52 Indeed we saw the word “contagion” already in used by that seventh-​century Toledo council, about prisoner-​ suicides. Do Darwinian principles not suggest that a species with no taboo against suicide would end by destroying itself? From the well-​educated clergy we might expect a more articulate case. These clergy are bound by, indeed may cordially embrace, the Christian obligation to sympathize with suffering—​the suffering of the suicide before the act, and the suffering of those, if any, who loved him or her before. But these clergy must still condemn the act. There was and is a rationale which any of them could read, and many did read, in works like St. Anselm’s Cur deus homo, or Ubertino da Casale’s Arbor vitae crucifixae: the antithesis which suicide represents, that is to say, to the death of Christ himself, who—​as a dozen and such medieval writings reflected—​suffered all that a human being could be expected to suffer (including a sense of abandonment by his divine Father) and, precisely by doing so, fulfilled the mission for which he had been born.53 50 Gillian Evison, “Indian Death Rituals. The Enactment of Ambivalence,” PhD diss., University of Oxford, 1989, 168. In this case, the Brahmins may abandon the whole house for three to six months, or at least seal up the room where the death happened. [Until 1996, Chennai was known as Madras, and is referred to as such in Evison’s work.]

51 It would be otherwise in the seventeenth century, but that was a different world. The date-​ profile of suicide hauntings can be judged from the entry “Selbstmord”; in Hanns Baechtold-​Stäibli, Handwörterbuch des deutschen Aberglaubens (Berlin: de Gruyter, 1927–​1942). 52 Émile Durkheim, Le Suicide: Étude de sociologie, 2nd ed. (Paris: Presses universitaires de France, 1967), 128, 131–​42. See, for example, D. P. Phillips, “The Influence of Suggestion on Suicide: Substantive and Theoretical Implications of the Werther Effect,” American Sociological Review 39 (1974): 340–​54.

53 Anselm of Canterbury, Cur deus homo, in S. Anselmi Cantuariensis archiepiscopi opera omnia, ed. Franciscus Salesis Schmitt, 6 vols. (Edinburgh: Nelson, 1946–​1961), 2:39–​133; Ubertinus de Casale, Arbor vitae crucifixae Jesu, ed. Charles Till Davis (Turin: Bottega d’Erasmo, 1961).

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Select Secondary Sources Crook, David. Records of the General Eyre. London: His Majesty’s Stationery Office, 1982. Durkheim, Émile. Le Suicide: Étude de sociologie. 2nd ed. Paris: Presses universitaires de France, 1967. Evison, Gillian. “Indian Death Rituals. The Enactment of Ambivalence.” PhD diss., University of Oxford, 1989. Fallers, L. A., and M. C. Fallers. “Homicide and Suicide in Busoga.” In African Homicide and Suicide, edited by Paul Bohannan, 65–​93. Princeton: Princeton University Press, 1960. Frantzen, Allen J. The Literature of Penance in Anglo-​ Saxon England. New Brunswick, NJ: Rutgers University Press, 1983. Lambert, T. B. Law and Order in Anglo-​Saxon England. Oxford: Oxford University Press, 2017. Murray, Alexander. Suicide in the Middle Ages. 2 vols. Oxford: Oxford University Press, 1998–​ 2000. A third volume, on (potentially) suicidal emotions, is in preparation. Rist, John M. Stoic Philosophy. Cambridge: Cambridge University Press, 1969. Schär, Markus. Seelennöte der Untertanen. Selbstmord, Melancholie und Religion im Alten Zürich, 1500–​1800. Zürich: Chronos, 1985. Tanon, Louis. Histoire des justices des anciennes églises et communautés monastiques de Paris. Paris: Larose et Forcel, 1883. Vogel, Cyrille. Les “Libri paenitentiales,” Typologie des sources du Moyen Âge occidental 27. Turnhout: Brepols, 1978.

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ATTITUDES TO SAME-​SEX SEXUAL RELATIONS IN THE LATIN WORLD* Ruth Mazo Karras Same-​sex sexual relations

were once considered in some ways the very definition of the problematic term “deviant”—​in fact the Oxford English Dictionary still gives “homosexual” as a secondary and offensive meaning of “deviant.”1 This chapter will discuss the persecution and state violence that this behaviour encountered in the Middle Ages. This is not to deny that there were also other, more affirming attitudes. Scholars of medieval literature in particular, but also historians, have shown that there were in the Middle Ages subcultures of same-​sex sex, love, and desire, whether expressed through identity, writing (including rich traditions of love poetry in many medieval languages), or action.2 Stories like Roger of Hoveden’s report that Richard the Lionheart and Philip Augustus of France were such good friends that they shared a bed—​if it is indeed evidence of sexual activity—​demonstrate that the term “deviant” is very problematic here.3 The same is true of other examples of same-​sex friendships: whether or not they involved what moderns would consider sexual activity, medieval people did not necessarily see anything wrong with them.4 There has been a great deal of scholarly and popular discussion over whether sexual identities or orientations existed before the modern era, or whether premodern * This chapter is an adaptation of an article that appeared previously: Ruth Mazo Karras, “The Regulation of ‘Sodomy’ in the Latin East and West,” Speculum 95 (2020): 969–​86, https://​doi.org/​ 10.1086/​710​639, © 2020 Medieval Academy of America.

1 Lexico, www.lex​ico.com/​en/​def​init​ion/​devi​ant (accessed September 29, 2019).

2 See e.g. Tom Linkinen, Same-​Sex Sexuality in Later Medieval English Culture (Amsterdam: Amsterdam University Press, 2015), 281–​99; Richard Zeikowitz, Homoeroticism and Chivalry: Discourses of Male Same-​sex Desire in the 14th Century (New York: Palgrave, 2003), 17–​99; The Lesbian Premodern, ed. Noreen Giffney, Michelle M. Sauer, and Diane Watt (New York: Palgrave, 2011).

3 Richard and Philip are discussed in C. Stephen Jaeger, Ennobling Love: In Search of a Lost Sensibility (Philadelphia: University of Pennsylvania Press, 1999), 11–​13, who suggests that this is not an instance of “homosexuality”; see William Burgwinkle, Sodomy, Masculinity, and Law in Medieval Literature: France and England, 1050–​1230 (Cambridge: Cambridge University Press, 2004), 73–​85.

4 Helmut Puff, “Same-​Sex Possibilities,” in The Oxford Handbook of Women and Gender in Medieval Europe, ed. Judith M. Bennett and Ruth Mazo Karras (Oxford: Oxford University Press, 2013), 379–​95.

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societies focused entirely on acts rather than identities.5 For present purposes it is quite clear that, whether or not sexual identity or orientation existed, what was criminalised was behaviour.6 Preference could be considered unusual and in some cases deviant, but here we shall be concerned with “same-​sex behaviour” rather than “homosexuality.” Even “same-​sex behaviour,” of course, is not a medieval term, but rather a modern rubric that I use to cover what might in the Middle Ages have been called “sodomy,” or a variety of other terms or euphemisms. The term “sodomy” was multivalent. It could be used to denote any sort of sexual intercourse other than penis-​in-​vagina, man-​on-​top. It could also be used in a more generalized way to mean not specific activities but rather a general miasma of sexual sin.7 It thus has to be considered carefully in context. Mark Jordan argued that it does not have a stable meaning in medieval theology, but is associated with outsiders, and easily slips into metaphors of contagion.8 It rarely appears as a legal category, but when it does it most often refers to sex between two men, rather than the more varied meanings.9 The history of how same-​sex relations become deviant or criminal, then, is in part how it became a legal category. To discuss same-​sex relations as a sin in an ecclesiastical context, as in the enumeration of the various branches of lechery by late medieval moralists, writers most often used euphemisms: “sin against nature” or “unspeakable sin,” the former of longer standing and the latter coming into use in the twelfth or thirteenth century.10 Very often, however, even in legal records, the behaviour did not have a special name. One person is said to have had sex with or copulated with (copulare) another, and if the two were of the same sex, this would be recognized by their names rather than by a particular label on their activity. 5 This dichotomy was formulated by Michel Foucault; see discussion in David M. Halperin, How to Do the History of Homosexuality (Chicago: University of Chicago Press, 2002), esp. 26–​32.

6 I have argued that it is possible to speak of sexual identity in the Middle Ages, but that the identities we can note then are quite different from those in the modern era. Ruth Mazo Karras and Katherine E. Pierpont, Sexuality in Medieval Europe: Doing Unto Others, 4th ed. (Abingdon: Routledge, 2023), 13. 7 Examples in Puff, “Possibilities,” 379–​95, who discusses the confused and confusing nature of the category, arguing that it is not possible to find an origin of the punitive use of the term “sodomy” because “Censorious discourses about same-​sex sexual acts, including theological ones, are riddled with contradictions,” 379. 8 Mark D. Jordan, The Invention of Sodomy in Christian Theology (Chicago: University of Chicago Press, 1997), 7. 9 Jordan, Invention of Sodomy, 9.

10 On these terms—​and making the argument that the unspeakability of the sin coincides chronologically with the requirement of the Fourth Lateran Council for annual confession—​ see Larry Scanlon, “Sex and Sexuality,” in The Oxford Handbook of Medieval Latin Literature, ed. Ralph J. Hexter and David Townsend (Oxford: Oxford University Press, 2012), 447–​64, at 455–​61. Dyan Elliott discusses the emergence of the “sin against nature” and “unspeakable sin” in her The Corrupter of Boys: Sodomy, Scandal, and the Medieval Clergy (Philadelphia: University of Pennsylvania Press, 2020), 114–​20.

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The by now standard narrative about the crime/​sin/​deviant behaviour of same-​ sex intercourse shows us that the gender of one’s partner was not always what made the behaviour objectionable. Sex acts could have very different meanings based on the relative status of the two actors, and on the roles (“active” or “passive”) they played; and non-​reproductive acts could be equally sinful if performed by two people of the same or of different sexes. The story goes somewhat as follows. In classical Rome, slaves (whether one’s own, if one had them, or belonging to a brothel owner, for the less wealthy) were available to be penetrated. A free man could get into considerable trouble for having sex with the wife or daughter of another free man, but his preferences for his non-​marital activities did not matter as long as he indulged these appetites among the unfree (and did not allow himself to be penetrated). Christianity changed this situation, teaching that sex outside of marriage was a sin for men as well as for women.11 Augustine of Hippo was the first prominent Christian writer in a long line of pronatalists: the idea that reproduction was one of the important goals of marriage, and the only thing that redeemed sexual activity, became dominant in late antiquity and the Middle Ages. Thus intercourse between members of the same sex (or gender; the two concepts are not distinguishable in the Middle Ages) was deemed sinful because it was outside marriage and not potentially reproductive. A corollary of the condemnation of non-​reproductive sex generally, stressed by writers such as James Schultz and Karma Lochrie, is that there was no such thing as “heterosexuality” in the Middle Ages any more than there was “homosexuality.”12 Non-​ reproductive practices were wrong regardless of the genders of the people performing them. If a man married and fathered children and also had sex with another man or boy, this did not mean he was “bisexual,” it meant that he had both sinful and non-​sinful (or only venially sinful) sex. There are, to be sure, medieval texts that that criticize men for a preference for other men or boys over women, but they frame this in terms of not fulfilling a natural obligation to reproduce (as in Alain of Lille) or the norms of courtly society (as in the Old French Roman d’Aeneas or Marie de France’s Lanval).13 This lack of special condemnation enabled John Boswell to argue that up until the twelfth-​century same-​sex desire and activity (writing in the late 1970s he used the

11 On the man who chooses to be penetrated by other men see Amy Richlin, “Not Before Homosexuality: The Materiality of the Cinaedus and the Roman Law Against Love Between Men,” Journal of the History of Sexuality 3 (1993): 523–​73.

12 James A. Schultz, “Heterosexuality as a Threat to Medieval Studies,” Journal of the History of Sexuality 15 (2006): 14–​29; Karma Lochrie, “Presidential Improprieties and Medieval Categories; The Absurdity of Heterosexuality,” in Queering the Middle Ages, ed. Glenn Burger and Steven F. Kruger (Minneapolis: University of Minnesota Press, 2001), 87–​96, and “Configurations of Gender and Sexuality in Medieval Europe,” in The Cambridge History of Gay and Lesbian Literature, ed. E. L. McCallum and Mikko Tuhkanen (Cambridge: Cambridge University Press, 2014), 89–​106. 13 Alain of Lille, The Plaint of Nature, trans. James J. Sheridan (Toronto: Pontifical Institute of Medieval Studies, 1980), 67–​68, 133–​35; Burgwinkle, xi–​xii, 5–​7, 162–​63, 170–​99.

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terms “homosexuality” and “gay people”) were not a major concern to the church or to lay society.14 When Peter Damian wrote his Book of Gomorrah sometime around the middle of the eleventh century, the first major blast against same-​sex relations among the clergy, the Pope declined to act on it.15 Boswell argued that this changed in the thirteenth century, when legal systems began to adopt strict penalties (and sometimes enforce them) and churchmen, following in particular the lead of Thomas Aquinas, used the discourse of “nature” to cast any non-​reproductive sex as deeply deviant. As Boswell recognized, this language was not new; Charlemagne’s Admonitio Generalis of 789 cited the Council of Ancyra (314) enjoining penance on priests who sin “against nature” with males or quadrupeds, and a prohibition on “incontinence against nature” was first included in a general council of the church at the Third Lateran Council in 1179.16 Joan Cadden has demonstrated that the discourse of “nature” was far from unitary. “Nature” could be understood in different ways, and medical commentators thought that it was in some men’s natures to desire penetration; but while this demonstrates that the concept of “natural” was indeed very complicated, these writers had to work against a backdrop of church doctrine.17 R. I. Moore adopted Boswell’s argument and connected it to a larger framework of the “formation of a persecuting society.”18 This was the era in which the church set up legal frameworks to investigate heretics and Jews, not, Moore suggests, because heretics were becoming a worse problem, but because it could. He argues these apparatuses were a way for the emerging secular powers, in concert with the church, to establish and exert authority. The categorizing and persecution of religious and sexual deviance was thus part of the logic of developing institutions of power. Moore suggests that the persecution of what he calls “male homosexuality” came somewhat 14 John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (Chicago: University of Chicago Press, 1980). The scholarly reception of this work was somewhat mixed; see the historiographical reappraisal by Mathew Kuefler, “Homoeroticism in Antiquity and the Middle Ages: Acts, Identities, Cultures,” American Historical Review 123 (2018): 1246–​66.

15 On Peter Damian, see Jordan, 45–​66; Robert Mills, Seeing Sodomy in the Middle Ages (Chicago: University of Chicago Press, 2015), 64–​80; Larry Scanlon, “Unmanned Men and Eunuchs of God: Peter Damian’s Liber Gomorrhianus and the Sexual Politics of Papal Reform,” New Medieval Literatures 2 (1998): 38–​64; Burgwinkle, Sodomy, Masculinity, and Law, 53–​65.

16 Boswell, Christianity, Social Tolerance, and Homosexuality, 150–​51, 277; Admonitio generalis, c.49, in Capitularia regum Francorum, ed. Alfred Boretius (Hannover: Hahn, 1883), 1:57; Third Lateran Council, c.11, in Conciliorum Oecumenicorum Decreta, eds. Giuseppe Alberigo, Perikle-​P. Joannou, Claudio Leonardi, and Paulo Prodi, 3rd ed. (Bologna: Ediziani Dehoniane, 1991), 217–​18.

17 Joan Cadden, Nothing Natural is Shameful: Sodomy and Science in Late Medieval Europe (Philadelphia: University of Pennsylvania Press, 2013), passim. 18 R. I. Moore, The Formation of a Persecuting Society, 2nd ed. (Oxford: Blackwell, 2007), 85–​88. See the historiographical discussion of Moore’s work in John H. Arnold, Persecution and Power in Medieval Europe, review of The Formation of a Persecuting Society, by R. I. Moore, American Historical Review 123 (2018): 165–​74.

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later than that of heretics and Jews, but he notes the council of Nablus in the early twelfth century (see below) and the connection of sexual deviance with Islam as with heresy. As this chapter will show in more detail, this connection was indeed central to the shift in the central Middle Ages towards the persecution of same-​sex activity by secular authorities. As far as male same-​sex behaviour within the church was concerned, condemnation by authorities did not mean that the behaviour was not practised, or indeed that the church did anything about it when it was. Dyan Elliott has recently argued that the latitude given to a free man in the ancient world to have sex with slaves as he wished created not only a culture of rape, but a culture of child rape. While it is not clear that everyone called a puer or puella was in fact a child, many were, and men who desired other adult men were considered unusual.19 After the coming of Christianity, she argues, it continued to be the expectation that desire for the same sex would focus on the young. Pronouncements of the early church—​in the Didache and the Council of Elvira—​criticize men who have sex with boys, not with other men. Elliott argues that this was the common pattern of same-​ sex relations throughout the medieval period. In the context she discusses, the monastery and episcopal court, it seems that this was so, or at least that these relationships were the ones that were framed as temptations, while friendship between adult monks was less dangerous although sometimes suspect. In male monastic houses, where women were completely banned, boys served as objects of temptation: as Elliott puts it, “By insisting on absolute chastity, the church was, in essence, constructing a capacious closet which accommodated all manner of sexual behaviors.”20 Whether this was because of the cultural expectations that shaped desire—​that one partner would be active and the other passive—​ or because of the fact that adult men were and are not as vulnerable to sexual predation as women or boys might be, this was the prevalent pattern in these masculine spaces. Medieval sexual activity was, in general, understood as one person (a man, or a woman behaving in a masculine manner, perhaps with a dildo) doing something to another person; there was little sense of mutuality. The concept of consent was, therefore, very unelaborated. It is often difficult for scholars to determine whether a given case involving a man and a woman was rape or abduction, because of the semantic ambiguity of the term raptus.21 A woman who consented to her own abduction might be punished, but it did not make the crime of her abductor any less; her consent fundamentally did not matter.22 Although physically violent rape could be prosecuted (sometimes), other sexual relations, however coerced, would not be. This would have applied to men and 19 See Richlin, Not before Homosexuality. 20 Elliott, Corrupter of Boys, 61.

21 Caroline Dunn discusses the different uses of the term in Stolen Women in Medieval England: Rape, Abduction, and Adultery, 1100–​1500 (Cambridge: Cambridge University Press, 2013), 18–​51. The meaning of the term “raptus” is at issue in recent re-evaluations of the life of Geoffrey Chaucer; see The Case of Geoffrey Chaucer and Cecily Chaumpaigne: New Evidence, special issue of The Chaucer Review vol. 27, issue 4 (2022). 22 This is a blunt statement of a complicated issue: see chapter in this volume by Gwen Seabourne for the nuances.

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boys as well as to women and girls, with the added complication that to be known to have been raped would have been a serious source of shame for all, but in different ways. We ought not to be surprised that age-​asymmetry was the common expectation for same-​sex relations given how common it was for opposite-​sex relations not only in the ancient world but in the medieval and early modern period, especially in Italy. Boys and girls could legally consent to marriage at age fourteen and twelve respectively; marriages were not supposed to be consummated before menarche. For the most part people did not marry this young, but some did, especially among the aristocracy. A child of fourteen could also take a binding vow of chastity in a monastery, could become an apprentice, could (if male) attend a university. If it were merely a matter of teenagers being considered adults for many purposes including the sexual, medieval Europe would not be so much different from many other world societies. But particularly striking here was the imbalance between the ages of the partners. When we get good age numbers, in fifteenth-​century Tuscan cities, for example, the mean age at first marriage was nine years apart for men and for women.23 This meant that the man was likely to be the senior partner in the union not only on gender but also on age and experience grounds. Given this pattern it is not entirely surprising that there was also an age gap between male same-​sex partners, although again good data does not come until fifteenth-​century Florence.24 In most of the cases we know outside the monastery, the “boy” is more likely to have been a teenager, albeit a young one, than a younger child; rape according to modern laws and attitudes, but far from being considered as such in the medieval period for either boys or girls. Elliott finds that much of the sexual activity within monasteries was the abuse of young boys by somewhat older boys. This could of course have been the same in the secular world, but the sources are less forthcoming about it; our evidence comes mainly from legal records and there are not that many of them. The church’s opposition to same-​sex sexual behaviour did become more vocal from the thirteenth century onwards, but despite occasional screeds, enforcement was not vigorous. As Helmut Puff puts it, “under analytic scrutiny, it appears that religious precepts are equivocal on the matter of same-​sex relations.”25 Examples of church prosecution are few and far between. Peter Damian’s Book of Gomorrah—​which, as Elliott suggests, was directed against the profanation of the sacraments more than against the abuse of boys—​accomplished little, and Damian refocused his efforts on clerical concubinage. Arnaud de Verniolles, the cleric whose testimony appears in the fourteenth-​century inquisition register of Jacques Fournier, was questioned on suspicion of heresy as well as sodomy, but condemned for hearing confessions when he

23 David Herlihy and Christiane Klapisch-​Zuber, Tuscans and Their Families: A Study of the Florentine Catasto of 1427 (New Haven: Yale University Press, 1985), 205.

24 On men’s ages see Michael Rocke, Forbidden Friendships: Homosexuality and Male Culture in Renaissance Florence (New York: Oxford University Press, 1996), 87–​111, 171, and Appendix 2. 25 Puff, “Same-​Sex Possibilities,” 379.

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was not, in fact, a priest.26 In a 1320 case in Avignon, a man and a thirteen-​year-​old boy were condemned to burn for sodomy, but the Virgin Mary was said to have rescued the younger, passive partner from the flames.27 Dante has his sodomites suffer in Hell, not prosecuted in this life.28 Sexual accusations as political tools against those in power were of course known in the Middle Ages, and not limited to same-​sex relations. Henry IV, enemy of Pope Gregory VII and the church reform movement, was accused by churchmen of both hetero-​ and homosexual sins.29 These were rhetorical rather than practical accusations: the pope adopted them in more restrained language referring to generalized sin and debauchery. It is hard to know how much real concern with behaviour was behind them, and how much they merely reflect partisan mud-​slinging; but this sort of mud was available to sling, whether because Henry was already associated in people’s minds with this behaviour or because it was thought of as being common or plausible.30 Similarly, when Orderic Vitalis complains about the sodomy rampant at the Anglo-​Norman court, it cannot be taken as a true account of the behaviour there, but it is noteworthy that it is sodomy rather than some other form of debauchery of which he chooses to accuse William Rufus’s courtiers—​a choice made clearer by the fact that he accuses the king of heterosexual debauchery.31 It is not clear exactly what he means by sodomy; the only specifics he gives are about effeminate habits of dress and carriage. In any case, political accusations in this period, the eleventh to twelfth centuries, did not bring with them 26 Le registre d’inquisition de Jacques Fournier, évêque de Pamiers (1318–​1325), ed. Jean Duvernoy (Toulouse, 1965), 3:14–​50. His testimony in translation may be found in Michael Goodich, The Unmentionable Vice: Homosexuality in the Later Medieval Period (Santa Barbara: ABC-​Clio, 1979), Appendix, 89–​123.

27 Bernhard Degenhart, “Das Marienwunder von Avignon,” Pantheon 33 (1975): 191–​203.

28 Dante Alighieri, Inferno, Canto 11 and 15, ed. and trans. Robert M. Durling (New York: Oxford University Press, 1996), 172–​73 and 231–​33. Virgil explains to Dante in Canto 11 that this circle contains the sodomites, but this is not discussed further when Dante meets the individual men in the circle. He also places some sodomites in Purgatory (Canto 26) whose sin is excessive love rather than violence against nature. 29 Elliott, Corrupter of Boys, 90.

30 This is not a “no smoke without fire” argument. Rather, I would argue that historically, political accusations of homosexual activity do not achieve anything rhetorically unless there is an audience who thinks that the activity is a sin or crime and is predisposed to believe that a person in power may commit it. An example might be the right-​wing fringe accusations of Hilary Clinton and Huma Abedin’s being lovers. People who hated and resented Clinton for being left-​wing (by their standards) and feminist were predisposed to believe that she was a lesbian because it was part of an idea complex that they connected with feminism.

31 The Ecclesiastical History of Orderic Vitalis, ed. Marjorie Chibnall (Oxford: Clarendon Press, 1983), 4, 187–​91. See Goodich, Unmentionable Vice, 5; Mathew Kuefler, “Male Friendship and the Suspicion of Sodomy in Twelfth-​Century France,” in Gender and Difference in the Middle Ages, ed. Sharon Farmer and Carol Braun Pasternack (Minneapolis: University of Minnesota Press, 2003), 163 [145–​81]; Mills, Seeing Sodomy, 182–​83.

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prosecution. Secular law up through the central Middle Ages for the most part was not especially concerned with same-​sex behaviour.32 Thus far, I have followed what has become the standard chronology based on the work of Boswell and Moore. I suggest, however, that we see things change a bit earlier than the late twelfth or thirteenth century when they see the rise of persecution. Harsh punishments in secular law come well before Boswell’s invocation of Aquinas as causal. A council at Nablus in the Frankish Kingdom of Jerusalem in 1120 provided for exile, mutilation, or death for a number of sexual offenses including adultery, inter-​religious sex, and sodomy. This council was attended by secular officials as well as ecclesiastical. Benjamin Kedar has demonstrated that the canons presented in the council resemble Byzantine legal issuances, knowledge of which may have come from the local Greek Christian population; castration as punishment was known there, though not specifically for the offenses for which the Nablus canons prescribe it. The punishment for adulteresses—​having the nose cut off—​resembles a Byzantine one.33 Klaus van Eickels points out that castration was practised in Norman realms, although nowhere else, as a punishment for political offenses, and many of the crusader lords and ecclesiastics would have been familiar with it from there.34 Neither there nor in the canons of Nablus, however, is it prescribed for sodomy, which is to be punished by burning. This suggests that it was considered the most serious of the offenses, although burning was specified only for the third offense; the first could be expiated with penance, the second with penance and expulsion from the kingdom. The canons made a distinction between the active and the passive partner, although only to emphasize that both were to be subject to punishment (if adults). There is no automatic assumption that the passive partner would be a boy but there is a recognition that regardless of age the passive partner could be a victim of rape, and in this case the rapist only was to be burnt. The reasons for the great concern here about the offense of sodomy may include its convenience as a source of blame and opprobrium on the Muslim Other and on Christians who imitated their customs. Although Kedar assumes that the canons of Nablus went into effect until they were superseded, van Eickels argues persuasively that their purpose may have been largely symbolic, a realignment of the community with God by placing extremely harsh punishments on behaviour believed to contradict God’s 32 Visigothic law from 653 provided castration and perpetual imprisonment for men who had sex with other men (masculorum concubitores). We know little about the enforcement of such a law, or indeed the motivations behind it. Leges Visigothorum, ed. Karl Zeumer, Monumenta Germaniae Historica, Leges (Hannover: Hahn, 1902), 1:163, 3.5.4; John Boswell, Christianity, Social Tolerance, and Homosexuality, 175–​76.

33 Benjamin Z. Kedar, “On the Origins of the Earliest Laws of Frankish Jerusalem: The Canons of the Council of Nablus, 1120,” Speculum 74 (1999): 310–​35.

34 Klaus van Eickels, “Gendered Violence: Castration and Blinding as Punishment for Treason in Normandy and Anglo-​Norman England,” Gender & History 16 (2004): 588–​602.

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law.35 John Tolan ties the strictures in Nablus against Muslims wearing Frankish garb to the Fourth Lateran Council a century later, which required that Muslims and Jews be distinct in their dress and specified the reason as the avoidance of inter-​group sex.36 It is noteworthy in Nablus, as in so many other contexts, that the only sexual behaviour by women that is a matter of explicit concern in this legislation is with men, particularly men of other groups. The one surviving copy of the canons of Nablus, in a manuscript from Sidon, ended up in the library of the Avignon popes, possibly brought by Rostagnus Candola, the last bishop of Sidon, who is known to have been in Avignon between 1319 and 1327.37 Other copies (or knowledge of the canons) may have ended up in Europe too. I am not suggesting that same-​sex eroticism was imported to Europe from the Middle East, nor even that it became more common in the twelfth century. Rather, I suggest that medieval western Europeans identified it with the Muslim Middle East. It is not a coincidence that this legislation appears so early in a frontier society where public order was tied to morality. The first secular (or joint church-​secular) legislation on homosexual behaviour, which may have influenced that elsewhere in Europe, was born out of an Islamophobic context. Recent Crusade scholarship has begun to question the segregationist paradigm that dominated in the 1970s, suggesting that there was something of a “rough tolerance” in Christopher MacEvitt’s phrase.38 While this was the case especially in the thirteenth century, there was also daily contact during the early years of the kingdom, although much of it hostile. Christians often did connect sodomy with “Saracens.”39 A letter purporting to come from the Byzantine emperor Alexios Comnenos and recruiting westerners for a crusade blamed Muslims for not only raping women but also raping, or at least engaging in sodomy with, men from boys up to old 35 Klaus von Eickels, “Die Konstruktion des Anderen. (Homo)sexualles Verhalten als Element des Sarazenenbildes zur Zeit des Kreuzzüge und die Beschlüsse des Konzils von Nablus 1120,” in “Die Sünde, der sich der tiuvel schamet in der helle”: Homosexualität in der Kultur des Mittelalters und der frühen Neuzeit, ed. Lev Mordechai Thoma and Sven Limbeck (Ostfildern: Thorbecke, 2009), 43–​61.

36 John Tolan, Saracens: Islam in the Medieval European Imagination (New York: Columbia University Press, 2002), 196–​97.

37 On this manuscript and others see Miriam Rita Tessera, “Dalla liturgia del santo sepolcro alla bibliotheca di Sidone: Note sulla produzione libraria latina di oltremare nel XII-​XIII secolo,” Aevum 79 (2005): 407–​15, at 413–​15; Anneliese Maier, “Die Handschriften der ‘Ecclesia Sidonensis’,” Manuscripta 11 (1967): 39–​45, at 44.

38 “Segregationist” paradigm associated with Joshua Prawer, The Crusaders’ Kingdom: European Colonialism in the Middle Ages (New York: Praeger, 1972). MacEvitt’s “rough tolerance” refers specifically to eastern Christians, but he applies the paradigm to Muslims as well: Christopher MacEvitt, The Crusades and the Christian World of the East: Rough Tolerance (Philadelphia: University of Pennsylvania Press, 2008). For examples of interaction see Jonathan Riley-​Smith, “Government and the Indigenous in the Latin Kingdom of Jerusalem,” in Medieval Frontiers: Concepts and Practices, ed. David Abulafia and Nora Berend (Aldershot: Ashgate, 2002), 121–​31. 39 Gregory Hutcheson places the “sodomitic Moor” in the later Middle Ages, suggesting that this was not as much of a concern earlier in Iberia: “The Sodomitic Moor: Queerness in the Narrative of Reconquista,” in Burger and Kruger, Queering the Middle Ages, 99–​122.

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men and even bishops, one bishop having voluntarily engaged in this sin.40 This text most often circulated together with copies of the important crusade chronicle Historia Hierosolomitana of Robert the Monk, and likely reflects western attitudes more than Byzantine ones; Einar Joransson suggests that it was part of an anti-​Byzantine crusade recruiting campaign in 1106.41 Robert the Monk’s account of Urban II’s call to crusade shares many details with the letter, but says nothing about the rape of men (and only alludes to the rape of women).42 Guibert of Nogent, however, does mention Saracen rape of men: “The execrable and profoundly intolerable crime of sodomy, which they committed against men of middle or low station, they also committed against a certain bishop, killing him.”43 Guibert wrote sometime before 1109 and used the pseudo-​Alexius letter as a source for some passages.44 Not only in relation to sodomy, sexual activity was often seen as a place where a line must be drawn in terms of intercultural contact.45 As Tolan points out, Christians were more often concerned with Muslims’ heterosexual appetites, including especially the rape of Christian women.46 However, the connection with sodomy is significant. The participants at Nablus may have been concerned about Christians adopting what was seen as being a Saracen habit, as well as wishing for ostentatious statements of purity. Harsh punishment is prescribed in the Livres de jostice et de plet, written in the thirteenth century in the Orléans region. In this respect, the text is reminiscent of the 40 Translated in Boswell, Christianity, Social Tolerance, and Homosexuality, 368–​69, and in Carol Sweetenham, Robert the Monk’s History of the First Crusade, Crusade Texts in Translation 11 (Aldershot: Ashgate, 2005), 219–​22.

41 Einar Joranson, “The Problem of the Spurious Letter of Emperor Alexius to the Count of Flanders,” American Historical Review 55 (1950): 811–​32; this conclusion is still upheld by Sweetenham, Robert the Monk, 217. The text was edited by Paul E. D. Riant, Alexi I Comneni Romanorum imperatoris ad Robertum I Flandriae comitem epistola spuria (Geneva: Fick, 1879); see also his Inventaire critique des lettres historiques des croisades (Paris: Leroux, 1880), 1:71–​89; and Peter Schreiner, “Der Brief des Alexios I. Komnenos an den Grafen Robert von Flandern und das Problem gefälschter byzantinischer Kaiserschreiben in den westlichen Quellen,” in Documenti medievali greci e latini: Studi comparativi, ed. Giuseppe de Gregorio and Oto Kresten (Spoleto: Centre italiano di studi sull alto medioevo, 1998), 111–​40. According the letter more plausibility is Peter Frankopan, The First Crusade: The Call from the East (London: Vintage, 2013), 60–​61. 42 Sweetenham, Robert the Monk, 80.

43 Guibert of Nogent, Dei gesta per Francos et cinq autres textes, ed. R. B. C. Huygens, Corpus Christianorum Continuatio Medievalis 127A (Turnhout: Brepols, 1996), 102; and trans. Robert Levine, The Deeds of God Through the Franks (Woodbridge: Boydell, 1997), 37. See discussion in Jay Rubenstein, Nebuchadnezzar’s Dream: The Crusades, Apocalyptic Prophecy, and the End of History (Oxford: Oxford University Press, 2019), 38. 44 Huygens, Introduction to Dei gesta per Francos, 12.

45 See David Nirenberg, “Conversion, Sex, and Segregation: Jews and Christians in Medieval Spain,” American Historical Review 107 (2002): 1065–​93.

46 Tolan, Saracens, 93–​94, 146, 226, and 238. See also Suzanne Conklin Akbari, Idols in the East: European Representations of Islam and the Orient, 1100–​1450 (Ithaca: Cornell University Press, 2009), 283.

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canons of Nablus, and I suggest that this thirteenth-​century development in French law may have been directly influenced by laws and attitudes in the crusader kingdom, even though the punishments are different: castration is in the canons, but not for sodomy. The text is furthermore noteworthy as the first example of secular law explicitly prohibiting women’s same-​sex activity.47 It is striking, though, that the term “sodomy” is used here to cover both men and women, suggesting that women should be understood as included elsewhere when the term is used. The canons of Nablus use masculine forms in talking about sodomy, but it is possible it is intended in a non-​gender-​specific way. Similarly phrases like “sin against nature” as used in normative texts can apply to both men and women, although the large majority of cases we have in practice involve men, and modern historical work reflects this. Although Boswell’s book title referred to “gay people” he mainly discusses men. Judith Bennett considers some of the reasons historians have given why same-​sex relationships between women do not appear very often in the sources: they did not bother people because they did not prevent women from bearing children to legal husbands, because they did not involve penises, because they did not involve sperm, and because of pervasive misogyny that made anything women did not matter very much.48 Bennett argues forcefully for a wider concept of what she calls “lesbian-​like” in order to recover from the sources more about women’s lives. When it comes to sources of legal practice, however, much of the evidence for criminalization refers to men. Helmut Puff has identified several cases involving women, but in the one he discusses in most detail, the offense was only described, not labelled either “sodomy” or anything else.49 Edith Benkov argues that we do not see more cases involving women because they were largely erased or subsumed into male “sodomy” and that even in the Livres de jostice et de plet women are only mentioned as an afterthought.50 Both male and female same-​sex relations were assimilated to a cross-​sex pattern where one partner played the male and one the female role. The Livres prescribed castration and then loss of member for men involved in same-​ sex acts, and loss of a member for women. “Those who are proven sodomites must lose their testicles. And if he does it a second time he must lose his member. And if he does it the third time, he must be burnt. A woman who does it must lose a member each time, 47 Louis Crompton, “The Myth of Lesbian Impunity: Capital Laws from 1270 to 1791,” Journal of Homosexuality 6 (1980–​1981): 11–​25.

48 Judith M. Bennett, History Matters: Patriarchy and the Challenge of Feminism (Philadelphia: University of Pennsylvania Press, 2006), 111–​12. This chapter uses material from her article “ ‘Lesbian-​Like’ and the Social History of Lesbianisms,” Journal of the History of Sexuality 9 (2000): 1–​24.

49 Helmut Puff, “Female Sodomy: The Trial of Katherina Hetzeldorfer (1477),” Journal of Medieval and Early Modern Studies 8 (1997): 165–​95. 50 Edith Benkov, “The Erased Lesbian: Sodomy and the Legal Tradition in Medieval Europe,” in Same Sex Love and Desire Among Women in the Middle Ages, ed. Francesca Canadé Sautman and Pamela Sheingorn (New York: Palgrave Macmillan, 2001), 101–​22.

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and the third she must be burnt. And all their goods go to the king.”51 The member is not specified; one may assume that it is the penis for men. Louis Crompton suggests that the juxtaposition of the passages on men and women indicate that the woman would lose an “equivalent member” to the man’s castration.52 The Nablus canons indicate that the woman’s facial mutilation might be considered the equivalent, but as she is to lose one member each for the first and second offense, it may also be a breast, or a limb, and conceivably a man could be condemned to lose a limb too. The text is not an official compilation, although it claims to be the laws of the kingdom of France; it may have been made by a student or scholar for his own use. Much of it is a translation of Justinian’s Digest. The provision on sodomy is found in a set of punishments said to be current in the duchy of Orléans, interpolated into the Digest. The punishments are not Roman ones, nor is it clear they reflect current French practice. There are other crimes listed as punishable by death, a few by burning but most by hanging. The only other one for which the punishment is mutilation, however, is where someone has caused someone else to lose a member, and is punished by the loss of one. The idea both of castration as punishment for sexual crime and of secular punishment for sodomy could well have come from crusader ideas. The Coutumes de Beauvaisis, compiled in the thirteenth century by Philippe de Beaumanoir—​again, a work intended for legal scholars and students, not a promulgated code—​like the canons of Nablus, prescribed burning for sodomy. After listing drawing and hanging as punishment for treason, murder, manslaughter, or rape, and hanging for arson and theft, it provides: “Whoever errs against the faith and does not wish to return to the way of truth, or who commits sodomy, he must be burned and forfeit all his goods.”53 Alfonso of Castile’s mid-​thirteenth century Siete Partidas, which did not go into practice as the law of Castile, also provided death for sodomy. Alfonso’s code was characterized by harshness generally; it did provide a tolerated status for Muslims and Jews, but provided the death penalty for a Muslim or Jewish man who had sex with a Christian virgin, wife or widow.54 The section on sodomy is quite brief as to the penalty, but goes into much more detail with regard to the definition of sodomy (a sin which men do with each other; women do not come into it) and the extent to which God hates it.55 Alfonso may have used sodomy along with treason as an accusation against his political enemies. Roberto J. González-​Casanovas cites a line from Alfonso’s Cantigas 51 Li livres de jostice et de plet, ed. P.-​N. Rapetti (Paris: Firmin Didot, 1850), 279–​80 (18:24:22). 52 Crompton, “Myth of Lesbian Impunity,” 13.

53 Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. A. Salmon (Paris: Alphonse Picard, 1899), 1:431 (30:833). Translation here mine, but see F. R. P. Akehurst (trans.), The “Coutumes de Beauvaisis” of Philippe de Beaumanoir (Philadelphia: University of Pennsylvania Press, 1992), 305. It is possible that women are intended to be included here in the use of the male pronoun. 54 Tolan, Saracens, 191.

55 Las siete partidas del Rey don Alfonso el sabio (Madrid: Emprenta Real, 1807), 3: 664–​65 (7:21).

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de Santa Maria: “Just as the candle burns, so also burned the flesh of those who did not want woman.”56 In the later Middle Ages, although the church still claimed jurisdiction over sexual offenses, towns increasingly legislated about sexual activity. Many towns regulated sex work as part of their maintenance of public order.57 They punished adultery although this was something strictly within the purview of the church.58 These punishments for sexual crime were conceptually if not explicitly related to the idea of public health, which G. Geltner has demonstrated was important in Italian towns already in the thirteenth century.59 Civic authorities were responsible for regulations that promoted the moral health of the city, for example, fixing weights and measures and in other ways ensuring that trade took place in an honest manner. The attempt to maintain the “honesty” (Latin honestas) of sexual behaviour was part and parcel of this. There can be a great difference from what towns (or other jurisdictions) proclaim in their legislation, which can be a symbolic statement of moral righteousness, and the behaviour that they actually enforce on their population; scapegoating of a particular group often accompanies or leads to state violence, but the relationship is not linear. The late Middle Ages were punctuated by periodic moral panics in various places leading to persecutions by secular authorities, although it is not always clear which were instigated by the church and which were attempts to wield the weapon of morality in order to get rid of a political enemy.60 Many towns, especially in Italy, legislated about sodomy, providing various sorts of punishment, including maiming and death, or more moderately fines or exile. Helmut Puff notes that German-​speaking cities generally did not have specific anti-​sodomy legislation, although they behaved as though they did, 56 Roberto J. González-​Casanovas, “Male Bonding as Cultural Construction in Alfonso X, Ramon Llull, and Juan Manuel: Homosocial Friendship in Medieval Iberia,” in Queer Iberia: Sexualities, Cultures, and Crossings from the Middle Ages to the Renaissance, ed. Josiah Blackmore and Gregory S. Hutcheson (Durham, NC: Duke University Press, 1999), 157–​92, at 167.

57 On the regulation of sex work see Jamie Page, Secret Women, Common Daughters: Prostitution and Subjectivity in Late Medieval Germany (Oxford: Oxford University Press, 2021); Leah Lydia Otis, Prostitution in Medieval Society: The History of an Urban Institution in Languedoc (Chicago: University of Chicago Press, 1985); Ruth Mazo Karras, Common Women: Prostitution and Sexuality in Medieval England (Oxford: Oxford University Press, 1996); Richard Trexler, “La prostitution florentine au XVe siècle: patronages et clientèles,” Annales: Economies, sociétés, civilisations 36 (1981): 983–​1015; Peter Schuster, Das Frauenhaus: Städtische Bordelle in Deutschland (1350–​1600) (Paderborn: Ferdinand Schöningh, 1992); Guy Dupont, Maagdenverleidsters, hoeren en speculanten. Prostituie in Brugge tijdens de Bourgondische periode (1385–​1515) (Bruges: Van de Wiele, 1996). 58 Leah Otis-​Cour, “ ‘De jure novo’: Dealing with Adultery in the Fifteenth-​Century Toulousain,” Speculum 84 (2009): 347–​92; Sara McDougall, “The Opposite of the Double Standard: Gender, Marriage, and Adultery Prosecution in Late Medieval France,” Journal of the History of Sexuality 23 (2014): 206–​25. 59 G. Geltner, Roads to Health: Infrastructure and Urban Wellbeing in Later Medieval Italy (Philadelphia: University of Pennsylvania Press 2019).

60 Mark Boone, “State Power and Illicit Sexuality: The Persecution of Sodomy in Late Medieval Bruges,” Journal of Medieval History 22 (1996): 135–​53.

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alluding on occasion to Roman law.61 Lucca, Venice, and Florence later created special legal structures in the fifteenth century to manage sodomy accusations. While this legislation was secular, it may be that it represented the adoption by secular authorities of the church’s position on the wrongness of sodomy as well as concerns about public order. When Orvieto issued a statute against sodomites in 1308 it was explicitly in support of the church’s strictures.62 There are still not a huge number of cases of prosecution for same-​sex activity in the late Middle Ages in most places; even the numerous accusations made to the Office of the Night in Florence were not prosecuted to the extent that the law provided.63 But we find more in civic than in ecclesiastical records. This could be because churchmen who would have led investigations were complicit themselves; this did not, however, stop church officials from prosecuting opposite-​sex behaviour of which they must occasionally have been equally guilty. More important as a reason seems to be the increasing involvement of city governments in regulating sexual (and other moral) behaviour of all kinds. The evidence we have of enforcement in late medieval urban courts may be due to better record survival in the fourteenth and fifteenth centuries than earlier. However, prosecutions would not have been possible without the new legal apparatus set up at this time. It is not simply a matter of secular authorities being at the call of ecclesiastical ideas. Civic fathers (for it was indeed the fathers) may have taken language and ideas from the church’s teaching, they may have been influenced by popular preaching as seems to have been the case in Florence, but the enforcement activity was their choice. There are, of course, some cases of very harsh punishment: for example from the Office of the Night in Venice in 1348 where two servants, Pietro de Ferrara and Giacomello de Bologna, were accused of anal sex and the “active” partner, Pietro, was burned at the stake.64 Giacomello claimed that he had been raped, although the court doubted this because he returned repeatedly to share a bed with Pietro. In any case, he did penance and was released; there is no indication of their ages. The best data about patterns of practice and enforcement comes from Florence, on which Michael Rocke’s work is crucial. Rocke provides not only a detailed analysis of Florentine same-​ sex activity in the fifteenth century, but also a solid statistical database developed from the records of the Office of the Night—​cases of 4062 individuals from 1478 to 1502. Prior to the creation of the Office of the Night, enforcement of existing laws had been infrequent and limited to cases involving rape, especially of young children. The establishment of the Office meant a new regime of surveillance and punishment based 61 Helmut Puff, Sodomy in Reformation Germany and Switzerland 1400–​1600 (Chicago: University of Chicago Press, 2003), 27–​28. 62 Didier Lett, “L’Occident médiéval,” in Une histoire des sexualités, ed. Sylvie Steinberg (Paris: Presses universitaires de France, 2018), 140–​41. 63 Rocke, Forbidden Friendships, 61–​65. 64 Lett, “L’Occident médiéval,” 141–​42.

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on anonymous denunciations and a special court to deal with them, responding to an awareness that Florence was a particular site of same-​sex activity, although it is not entirely clear whether the sexual subcultures of Florence and other Italian cities were all that different from elsewhere or whether the ability to establish new legal processes in an urban context made (and still makes) it appear that way.65 There are fewer examples of women prosecuted in late medieval towns for same-​ sex behaviour than there are men, but Helmut Puff has discussed at length the case of Katherina Hetzeldorfer, put to death in Speyer in 1477. Katherina clearly played a masculine role in their sexual relationship, dressing in men’s clothing and using a dildo.66 Indeed, we might question whether this is in modern terms a case of same-​sex sexual behaviour, or rather a relationship between a trans man and a cis woman. The same question arises in the case of Eleanor/​John Rykener in London in 1394. Rykener was prosecuted—​although it is not clear whether and how they were punished—​for sexual activity with a number of men while dressed as a woman and “calling themself Eleanor” [the Latin reflexive is gender-​neutral].67 This case is unique for London and it is noteworthy that the same-​sex behaviour that was punished involved a crossing of gender boundaries even more marked than the distinction between active and passive sexual activity.68 In a case from Cisneros in Castile in 1486, Juan de Abastas was accused of “the abominable sin of sodomy” with another man, although Juan was the passive partner who “acted as a woman” and was “carnally known” by the other man.69 Here we have a number of common medieval elements: the term “sodomy” meaning sex between two men, the gendered distinction between the penetrating and the penetrated partner, although it is notable here that the “passive” partner was prosecuted (only the first name of the other partner was given). The statement that Juan was behaving as a woman does not mean that they were transgender, although that is possible; rather the phrase reflects the medieval association of top or “active” with male and bottom or “passive” with female. Urban jurisdictions were concerned with public order, and often adopted ecclesiastical rhetoric about sin as a way of expressing this concern. The particular connection of sodomy with sin and social disorder was given added strength by the 65 Rocke, Forbidden Friendships, 3–​84.

66 Helmut Puff, “The Trial of Katherina Hetzeldorfer.”

67 David Lorenzo Boyd and Ruth Mazo Karras, “The Interrogation of a Male Transvestite Prostitute in Fourteenth-​Century London,” GLQ: A Journal of Lesbian and Gay Studies 1 (1995): 459–​65; Carolyn Dinshaw, Getting Medieval: Sexualities and Communities, Pre-​and Postmodern (Durham: Duke University Press, 1999), 100–​142; Ruth Mazo Karras and Tom Linkinen, “John/​Eleanor Rykener Revisited,” in Founding Feminisms: Essays in Honor of E. Jane Burns, ed. Laine E. Doggett and Daniel E. O’Sullivan (Cambridge, UK: Brewer, 2016), 111–​21; P. J. P. Goldberg, “John Rykener, Richard II, and the Governance of London,” Leeds Studies in English 45 (2014): 49–​70 suggests that this is not the record of an actual case but rather a political satire. 68 See Linkinen, Same-​Sex Sexuality, 75–​83 on English law. 69 Lett, “L’Occident médiéval,” 142.

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repercussions of encounters with the religious other in the central Middle Ages. Besides the connection with Islam discussed above, sodomy could be demonized through a connection with blasphemy and heresy. The major cause célèbre involving same-​sex practices was the trial of the Knights Templar in France beginning in 1307, in which many of the accused testified to having seen anal sex as part of the order’s initiation ritual or to having been told that it was acceptable between brothers, although they all denied having participated in it themselves. It is highly unlikely that this practice was part of the order’s ritual, and the fact that these confessions were elicited under torture (and that none were elicited in regions where torture was not used) is significant. The main accusation that was brought was blasphemy, and scholars generally accept that it was a false one. The combination of blasphemy and sodomy points towards the connection between heresy and sodomy, used rhetorically to emphasize the evil and otherness of the accused, but there is also a connection to Islam, as the idol the Templars were alleged to worship was called Baphomet. We should allow the possibility that same-​sex relationships were in fact tolerated among the Templars, for the avoidance of scandal.70 It is worth noting, however, that whether or not the accusations were plausible, they involved behaviour between adult men, not between men and boys. The relation of heresy and sodomy may seem again to point the finger back at the church, since heresy was of course first and foremost a crime against God and the church. But secular authorities were concerned with heresy too, again possibly because they wished to support the church or because they viewed heresy as a threat to social order, and probably both. Groups or individuals labelled by the church as heretical had been accused of deviant sexual behaviour since the beginning of the Christian era—​ indeed, even early Christians themselves were accused by pagans. It was a handy and sometimes plausible accusation; since the church was the main disseminator of ideas about sexual morality, a challenge to the church could also be seen as a challenge to that morality. In thirteenth-​century France bougre, derived from “Bulgarian” (the supposed source of the Cathar heresy), meant a heretic but may have come to mean someone who engaged in same-​sex relations (hence the English “bugger”).71 The term ketzerei, denoting heresy, was also used as a term for sex between men in Germany, such that it is sometimes not possible to tell from the court records which offense someone is being accused of.72 The man executed in Navarre around 1290 for “committing heresy with his body” was probably another example.73 Tom Linkinen discusses the connection in 70 Ruth Mazo Karras, “Knighthood, Compulsory Heterosexuality, and Sodomy,” in The Boswell Thesis: Essays on Christianity, Social Tolerance, and Homosexuality, ed. Mathew Kuefler (Chicago: University of Chicago Press, 2006), 273–​86, at 277–​79.

71 Boswell, Christianity, Social Tolerance, and Homosexuality, 284, suggests that it may have never had a specific sexual denotation but merely have been sufficiently vague to have been used to cover them. 72 Puff, Sodomy, 13–​14.

73 Katherine Crawford, European Sexualities, 1400–​ 1800 (Cambridge: Cambridge University Press, 2007), 156.

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England, which went both ways: accusations of “sodomitical acts” against Richard II may have had to do with heresy,74 but on the other hand John Wyclif and the Lollards accused the orthodox church of promoting sodomy, perhaps metaphorically in Wyclif’s case, but quite literally in the case of the Lollard Twelve Conclusions, which suggested that clerical celibacy promoted sodomy.75 While the connection with heresy underscored the deviance of the act—​and made the borrowing of an ecclesiastical category for the civic authorities to punish offenders all the more understandable—​it was not the only factor in the development of a late medieval discourse around same-​sex behaviour as criminal. Nevertheless, the shift to the criminalization of same-​sex activity could well have been triggered by the encounter with cultural and religious difference in the kingdom of Jerusalem in the twelfth century. The question of whether the Islamic societies of the Middle East had a more welcoming attitude towards same-​sex behaviour cannot be answered here.76 What is clear is that western Europeans thought they did, and did not consider this a good thing.77

Select Secondary Sources

Akbari, Suzanne Conklin. Idols in the East: European Representations of Islam and the Orient, 1100–​1450. Ithaca: Cornell University Press, 2009. Benkov, Edith. “The Erased Lesbian: Sodomy and the Legal Tradition in Medieval Europe.” In Same Sex Love and Desire Among Women in the Middle Ages, edited by Francesca Canadé Sautman and Pamela Sheingorn, 101–​22. New York: Palgrave Macmillan, 2001. Bennett, Judith M. “ ‘Lesbian-​Like’ and the Social History of Lesbianisms.” Journal of the History of Sexuality 9 (2000): 1–​24. Boswell, John. Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century. Chicago: University of Chicago Press, 1980. Burgwinkle, William. Sodomy, Masculinity, and Law in Medieval Literature: France and England, 1050–​1230. Cambridge: Cambridge University Press, 2004. Cadden, Joan. Nothing Natural is Shameful: Sodomy and Science in Late Medieval Europe. Philadelphia: University of Pennsylvania Press, 2013. Crawford, Katherine. European Sexualities, 1400–​1800. Cambridge: Cambridge University Press, 2007. Elliott, Dyan. The Corrupter of Boys: Sodomy, Scandal, and the Medieval Clergy. University of Pennsylvania Press, 2022. 74 Linkinen, Same-​Sex Sexuality, 142. See Goldberg, “John Rykener,” 67–​69, suggesting that John Rykener is a stand-​in for Richard II. 75 See Dinshaw, Getting Medieval, 55–​99.

76 See for example J. J. Wright and Everett Rowson, eds., Homoeroticism in Classical Arabic Literature (New York: Columbia University Press, 1997).

77 By contrast, there was remarkably little (none, to my knowledge) criticism of Jews for same-​ sex activity in western Europe, although there were plenty of attacks for other things, including immoderate opposite-​sex activity.

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Jordan, Mark D. The Invention of Sodomy in Christian Theology. Chicago: University of Chicago Press, 1997. Karras, Ruth Mazo. “Knighthood, Compulsory Heterosexuality, and Sodomy.” In The Boswell Thesis: Essays on Christianity, Social Tolerance, and Homosexuality, edited by Mathew Kuefler, 273–​86. Chicago: University of Chicago Press, 2006. Karras, Ruth Mazo, and Tom Linkinen. “John/​Eleanor Rykener Revisited.” In Founding Feminisms: Essays in Honor of E. Jane Burns, edited by Laine E. Doggett and Daniel E. O’Sullivan, 111–​21. Cambridge: Brewer, 2016. Karras, Ruth Mazo, and Katherine E. Pierpont. Sexuality in Medieval Europe: Doing Unto Others, 4th ed. Abingdon: Routledge, 2023. Kedar, Benjamin Z. “On the Origins of the Earliest Laws of Frankish Jerusalem: The Canons of the Council of Nablus, 1120.” Speculum 74 (1999): 310–​35. Lochrie, Karma. “Configurations of Gender and Sexuality in Medieval Europe.” In The Cambridge History of Gay and Lesbian Literature, edited by E. L. McCallum and Mikko Tuhkanen, 89–​106. Cambridge: Cambridge University Press, 2014. Mills, Robert. Seeing Sodomy in the Middle Ages. Chicago: University of Chicago Press, 2015. Tolan, John. Saracens: Islam in the Medieval European Imagination. New York: Columbia University Press, 2002.

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MARRIAGE AND SEXUALITY IN CHINA, 960–​1368 CE* Christian de Pee The Song

(960–​1279) and Yuan (1271–​1368) dynasties regulated betrothals and marriage in order to secure a lasting social order among the living and the dead. Marriage reconfigured boundaries of kinship and thereby altered rights and obligations of persons living and deceased: rights to property and sexual intercourse, enhanced and reduced punishments for criminal offenses against kin, the status of offspring, and obligations of mourning, burial, and sacrifice. The Song Penal Code (Song xingtong, 963 CE), like the code of the Tang dynasty (618–​907) on which it was based, laid out a comprehensive, universal hierarchy of moral obligations. Because marriage changed the status of individuals within this hierarchy, the Song Penal Code precisely defines the stages by which their new rights and obligations took effect as well as the stages by which they became obsolete upon divorce or death. The Yuan court, however, rejected the universal moral hierarchies of the Song code. Founded by the Mongol Khan Khubilai (r. 1260–​1294), the Yuan dynasty protected the power and prestige of Mongols by replacing the universal moral hierarchy of Song law with a hierarchy of ethnic groups, each with its own customs and laws: Mongols, miscellaneous aliens (such as Persians and Central Asians), Han (subjects of the former Jin dynasty, defeated in 1234), and Southerners (subjects of the former Song dynasty, defeated in 1276). Although the Yuan court gradually enacted most of the marriage laws from the Song code, the moral universality of those earlier laws became circumscribed as a mere ethnic characteristic of the Han and the Southerners. The Yuan moreover regulated practices that had not been regulated before. It formulated ritual protocols and sumptuary regulations for weddings, prohibited customs deemed to deviate from proper ethnic practice, and addressed common but non-​canonical practices such as charivari, wedding banquets, and uxorilocal marriage. Apart from producing and reproducing the ethnic hierarchy of the Yuan Empire, its marriage laws assisted the Yuan court in its more general ambition to extract revenue, limit mobility, and prevent litigation. In spite of their important ideological differences, the marriage laws of the Song and the marriage laws of the Yuan (for Han and Southerners) treated sexuality as an element of a patrilineal, virilocal property regime. Marriage mainly changed the status of the bride, from a daughter to a married woman, and from a temporary member of her natal * This chapter is based on ­chapter 4, “Legal Codes, Verdicts, and Contracts: Universal Order and Local Practice,” in Christian de Pee, The Writing of Weddings in Middle-​Period China: Text and Ritual Practice in the Eighth through Fourteenth Centuries, (Albany: State University of New York Press, 2007), 179–​220. I am grateful to the State University of New York Press for its permission to reuse parts of that chapter.

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family to a permanent member of her husband’s ancestral cult. The laws therefore treat sexual intercourse with an unmarried woman as an offense against her parents and paternal grandparents, because it might reduce the range of potential matches and the size of the betrothal sum, and sexual intercourse with a married woman (and adultery by a married woman) as an offense against the husband, because it might result in the diversion of property and ritual authority to illegitimate offspring. Apart from laws against fornication and adultery, the laws of this period do not regulate male sexuality, nor do they prohibit same-​sex relations, being concerned solely with reproductive sex. Only in the sixteenth century was consensual male-​male intercourse prohibited by law.1 The population, however, may not have known or understood imperial law. From Song-​dynasty verdicts and Yuan-​dynasty precedents—​the main evidence of infractions on imperial law—​it appears that the residents of towns and villages, from Shandong to Sichuan, from Shaanxi to Fujian, had their own customs to determine the circle of marriageable kin and the markers of a binding engagement, and their own criteria for permissible sexual behaviour and a proper divorce. Present knowledge of those customs and criteria, however, depends entirely on the transmitted writings of literati who distorted the coherence and denied the meaning of local practices, whether in verdicts or in records of “local customs” (fengsu).2 Because classical writing derives its authority and its meaning from the assumption of a universal civilization that instantiates cosmic order, local difference could only be written as deviance, as a denial of sense that was either laughable or dangerous. In the verdicts of the Song and the precedents of the Yuan, therefore, the imposition of imperial law at the same time preserves and distorts fragments of local practice, such as the marriage of an aunt to her nephew or the rental of wives. Verdicts and precedents in the first place document legal practice, not local ritual. The dearth and unevenness of legal texts from this period, however, make it difficult even to understand the common practice of law and the changes in legal practices across time. “A circuit such as Fujian comprises 2 commanderies, 6 prefectures, and 45 counties, administered by 180 officials. The number of legal cases amounts to several thousand each year,” wrote Chen Xiang (1017–​1080) during the 1040s, and Hu Taichu (1200–​1260) warned that rampant litigation threatened to confine a county magistrate to his courtroom every single day of his tenure.3 Yet of the millions of plaints, verdicts, petitions, appeals, memorials, and edicts none survives that was not printed. From the Song survive the Song Penal Code, two supplementary collections of laws and 1 See Matthew H. Sommer, Sex, Law, and Society in Late Imperial China (Stanford: Stanford University Press, 2000), 114. According to Sommer, sexual behaviour became subject to extensive regulation only in the eighteenth century, as the imperial government of the Qing dynasty (1636–​1912) attached sexual behaviour to gender performance rather than to status performance. 2 On the discourse of “local customs,” see de Pee, The Writing of Weddings, 5–​13.

3 Chen Xiang 陳襄, Guling xiansheng wenji 古靈先生文集, Beijing tushuguan guji zhenben congkan edition [ca. 1135] (Beijing: Shumu wenxian, 1988–​1991), 7.10ab; Hu Taichu 胡太初, Zhoulian xulun 晝簾緒論, Congshu jicheng chubian edition [1235] (Shanghai: Shangwu yinshuguan, 1935), 7.

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statutes, a few dozen verdicts in the collected works of Huang Gan (1152–​1221) and Liu Kezhuang (1187–​1269), and 473 verdicts in A Collection of Enlightened Verdicts by Famous Authors (Minggong shupan qingming ji, 1261, 1569). From the Yuan survive four legal compendia—​two partial manuscripts of imperial compendia and a complete commercial imprint of two reference works—​that contain laws explained and illustrated by precedent cases, as well as some miscellaneous fragments. The small number of these texts prohibits an understanding of general legal practice, while the succession of genres—​a tenth-​century code, thirteenth-​century verdicts preserved due to their literary merit, and fourteenth-​century precedents offered as legal guidance—​gives a false impression of change over time. The shift in imperial ideology from the Song to the Yuan, however, makes it possible to estimate, by triangulation, the distance that separated local understandings of marriage and sexuality from the universal categories that condemned them. Because the Yuan court stipulated distinct marriage practices for the four ethnic groups (e.g., permitting polygamy and levirate marriage to Mongols, but forbidding them to Han and Southerners), it was apt to recognize the coherence of local practices, even if it prohibited them. Practices that Song verdicts condemned as perverse individual violations of a universal moral order, Yuan precedents interpret as elements of a strategic, transactional approach to betrothal and marriage, and perhaps to sexuality. If imperial law regarded female sexuality as a patrimonial treasure, to be preserved and increased by chastity and fidelity, the defendants in verdicts and precedents appear to expend it for monetary gain, by bartering a daughter, by prostituting a wife, by betraying a husband.

Marriage and Universal Order: The Song Penal Code

In 650, Emperor Gaozong (r. 649–​683 CE) of the Tang dynasty ordered Zhangsun Wuji (d. 659) and other high officials to edit all the numerous legal materials promulgated under his two predecessors and to excise from these materials everything that caused unnecessary complication. The efforts of Zhangsun Wuji and his assistants resulted in the Annotated Tang Code (Tanglü shuyi), promulgated in 653.4 In its thirty fascicles, the Annotated Tang Code laid out a transparent hierarchical structure in which official rank, degree of kinship, and age determined the rights and obligations of all imperial subjects. Transgression of these rights and neglect of these obligations warranted punishment in proportion to the crime, reckoned by “the five punishments” (wuxing: blows with the light rod, blows with the heavy rod, penal servitude, exile, and death), in twenty careful gradations.5 4 See Liu Xu 劉煦 et al., Jiu Tang shu 舊唐書, Baina edition [941–​945] (Taipei: Taiwan shangwu yinshuguan, 1937), 50.1a–​6a.

5 See Zhangsun Wuji 長孫無忌, Tanglü shuyi 唐律疏議 [653] (Beijing: Zhonghua shuju, 1983), 1.3–​6. Several of these punishments were nominal. Penal servitude was automatically converted into strokes with the heavy rod, and strokes with the light and the heavy rod were automatically converted into lower numbers.

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Although Gaozong’s successors supplemented this code with a continuous flow of edicts, and although subsequent dynasties promulgated their own legal codes, the Annotated Tang Code provided an enduring legal structure, its laws emended but its categories unchanged.6 The emperor’s word was law and “all officially enacted law … derived its force from the emperor, even if it had not been handed down directly by him.”7 The decrees dispensed in the routine course of government therefore amended the legal code and required regular compilation into ordered volumes that apprised officials throughout the realm of the law that was “the latest relevant expression of the imperial will.”8 Such amendments, however, did not alter the fundamental structure laid down in the Tang. As Liu Yun wrote in his preface to a 1327 reprint, the Annotated Tang Code afforded a clear view of a timeless, sacred legal order: Although the laws were established in the Tang, they possess a quality that penetrates and exhausts the unstable configurations of human circumstances and legal principles, and that quality has not perished with the Tang. The present dynastic house [i.e., the Yuan] has firmly established the cosmic patterns. It has attained to virtue and treads the Way. … Its reliance on the Tang is inevitable, since the Tang fathomed the Way and found its middle course.9

Although created in recent times by fallible men, imperial law conformed to heavenly patterns and therefore matched the timeless truth of the classical (“Confucian”) scriptures. Just as the scriptures allowed the scholar to recover the Way of the ancients and to embody their moral rectitude, so the “middle course” of imperial law enabled officials to attain universal justice and thereby to protect the centred moral hierarchy that reached down from the imperial temple to the ancestral altars of filial subjects. The marriage laws in the Song Penal Code (as in the Annotated Tang Code) seek to ensure the continuity of this universal moral order, in which the legal rights and obligations of all subjects are at all times determined.10 Precise definitions of the stages of marriage negotiations (hunyin) chart the shifts in legal boundaries caused by betrothals and weddings, and stipulate the punishments for those who transgress them. The betrothal and the wedding divide marriage negotiations into three stages: the period prior to legal engagement (wei ding, “not yet engaged”), the period from the legal engagement to the wedding day ([yi] ding, “[already] engaged” or wei cheng, “not 6 On the dependence of the Song Code on the Tang Code, see Toghto 脫脫 ed., Songshi 宋史, Baina edition [1345] (Taipei: Taiwan shangwu yinshuguan, 1937), 199.2a; Dou Yi 竇儀, Song xingtong 宋刑統 [963] (Beijing: Zhonghua shuju, 1984), 5–​6.

7 Brian E. McKnight, “From Statute to Precedent: An Introduction to Sung Law and Its Transformation,” in Law and the State in Traditional East Asia: Six Studies on the Sources of East Asian Law, ed. Brian E. McKnight (Honolulu: University of Hawai’i Press, 1989), 113. 8 McKnight, “From Statute to Precedent,” 114.

9 Zhangsun Wuji, Tanglü shuyi, 663–​64, paraphrasing Lunyu, XI.16. On the laws as cosmic truth, cf. Dou Yi, Song xingtong, 5, 502–​4; Zhangsun Wuji, Tanglü shuyi, 577–​79, 616. 10 See Dou Yi, Song xingtong, 13.212–​14.229. The marriage laws in the Tang and Song codes are virtually identical.

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yet completed”), and legal marriage (yi cheng, “already completed”). The submission of a wedding contract by the bride’s family to the groom’s family or the acceptance by the bride’s family of the betrothal sum marks a binding engagement. Although the submission of a contract or the acceptance of the betrothal sum by the bride’s family makes the agreement legally enforceable, it does not yet alter the boundaries of kinship. The two families are obliged to arrange a wedding in due time, but otherwise they remain “strangers” (fanren).11 The wedding (jiaqu, chengqin) introduces the bride (and to a lesser extent the groom) into new mourning circles, and this change of ritual status inaugurates new rights and obligations. Her membership in her husband’s ancestral cult obliges a wife to assist in its perpetuation, and obliges her husband and his family to mourn her death, to bury her corpse, and to sacrifice to her ancestral tablet.12 The dissolution of a marriage, whether by divorce or by her husband’s death, disengages the wife from the mourning circles of her husband’s ancestral cult. The preparation of official documents for divorce or the fulfilment of her mourning obligations towards her deceased spouse make her a stranger once more and allow her to be remarried.13 The Song Penal Code presumes that families are universally patrilineal and virilocal, and therefore understands marriage as the transfer of a bride from the family of her parents to the family of the groom. The resulting androcentrism produces a marked asymmetry in the rights and obligations of wives and husbands.14 First, because it regards the reproduction of the patriline as the sole purpose of female sexuality, the code treats female sexuality as an attribute of men and of women who represent the patriline (especially widowed mothers and grandmothers). It condemns fornication as a crime against a woman’s parents and adultery as a crime against a woman’s husband.15 Male sexuality, by contrast, is restricted by the claims of other men, but not by marriage, and the Song Penal Code permits men to have concubines. Because the Song code is concerned only with reproductive sex, it has nothing to say about same-​sex relations. Second, the code stipulates enhanced punishment for acts by which a wife threatens the continuity of the patriline. Verbal abuse, battery, and murder of her husband carry higher penalties than the perpetration of these same crimes against the same victims by a stranger. By contrast, a husband who injures his wife (and a wife who injures a concubine or a servant) receives a punishment two degrees lower than would a stranger.16 Third, the code imposes narrower restrictions on intermarriage between patrilineal kin than on intermarriage between matrilineal kin. It not only prohibits marriage between all 11 Undue postponement of the wedding voids the betrothal. See Dou Yi, Song xingtong, 14.227. 12 See Dou Yi, Song xingtong, 13.214–​16, 14.223.

13 See Dou Yi, Song xingtong, 1.13, 13.216, 14.223–​24, 14.227–​28.

14 On the androcentrism of the law, cf. Patricia B. Ebrey, The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period (Berkeley: University of California Press, 1993), 47–​50. 15 See Dou Yi, Song xingtong, 26.421.

16 See Dou Yi, Song xingtong, 1.8–​9, 1.12–​13, 17.273–​75, 22.345–​46.

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persons with the same surname, but the law against marriage to close kin also excludes a range of patrilineal kin that exceeds the range of proscribed matrilineal kin.17 That the Song Penal Code considers female sexuality the property of parents or of a lawful husband is evident also from its stipulations about unlawful unions. The code condemns as void marriages to improper persons (e.g., close kin, someone already betrothed or married, an escaped convict, one’s own concubine or servant), marriages consummated during inauspicious periods (e.g., during a mourning period for a parent or for a husband), and marriages contracted by intimidation or by unauthorized individuals (e.g., by an official within his own jurisdiction).18 A man and a woman who continue their cohabitation in defiance of compulsory separation are liable to prosecution for fornication, since the unlawfulness of their union has left them strangers, and has left the woman’s sexuality the property of her parents or grandparents.19 Because unlawful unions placed the very bodies of brides and grooms in defiance of the moral order of the empire, they were not eligible for imperial pardon. The emperor could forgive fraud, robbery, and murder, but not the transgression of the boundaries of “human relations” (renlun).20 Combining canonical exegesis with the examination of legal precedents, the compilers of the Annotated Tang Code and the Song Penal Code devised a legal structure that would protect and restore the cosmic order of the empire by meting out appropriate punishments for the transgression of universal, inherent boundaries: “Where the rites do not provide, there serve the laws; they tend toward leniency, but combat the cruel. A hundred kings improved upon one another by deletions and additions; all within the Four Seas now find herein their spirit-​level and plumb-​line.”21 Within this universal order, weddings afforded to females their necessary place in an ancestral cult and ensured the proper reproduction of the boundaries of kinship and class. Within the patrilineal hierarchy of the family, the degrees of mourning obligations determined rights to financial support, to property, to the use of violence, and to burial and sacrifice.

Local Practice and Universal Law: Song Verdicts

From the few hundred verdicts that survive from the Song dynasty, it appears that subjects of the Song empire did not share the ideology of imperial law, and that they may not have known or understood it. Time and again, plaintiffs and defendants appear in court to resolve a dispute, only to find that the judge denies the claims of both parties and 17 See Dou Yi, Song xingtong, 14.218–​20.

18 See Dou Yi, Song xingtong, 13.214–​14.227.

19 See Dou Yi, Song xingtong, 14.227–​28. Only parents and grandparents possess the legal authority to remarry a widowed daughter or granddaughter against her will. See Dou Yi, Song xingtong, 14.220–​21. 20 See Dou Yi, Song xingtong, 14.227. 21 Dou Yi, Song xingtong, 5.

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rearranges their families and their property by laws unknown to either party. Because county magistrates, the lowest-​ranked officials in the imperial hierarchy, governed territories of several hundred square kilometres and thousands of households, they did not have leisure to inquire about infractions upon imperial law and depended instead on complaints brought by residents themselves. Ordinary people, however, avoided the magistrate’s court if they could, not only because of the cost of the journey to the county seat, the fees, and the bribes, but also because of the uncertainty of the outcome: The great majority of the farmers in the fields and villages have never set a foot inside the court of a prefect or a magistrate, or set an eye on the face of a clerk. Their tongues are ill trained in argument and their hands are unaccustomed to the brush.22

The wealthy and the powerful tried to use the magistrate’s court for gain, overcoming their opponents either by defeating them in legal argument or by ruining them with legal fees, but most others turned to the magistrate only as a last resort, when they could not settle their dispute in their own community. Verdicts are the written traces of the resulting confrontations between the lettered official and the illiterate population, between the transparent order of imperial law and the confusing variety of local practice, between the centre and the periphery. Through hereditary privilege, recommendation, and written examinations, the emperors of the Song dynasty recruited officials capable of interpreting the imperial will, of speaking in the imperial voice, and of performing the rituals of local government as extensions of the imperial body. These officials instantiated the imperial presence at the temple of the City God, at the altar of Soil and Grain, and on the bench of their court of law. Their voice and their bearings projected the awesome, remote authority of the Son of Heaven as they enforced the transparent stipulations of the imperial code. In their official compounds, modelled on the palace, they confronted the feuds induced by jealousy and greed, the victims of intimidation and deception, the perversion of local customs, the violence of the periphery.23 The plaintiffs and defendants, however, were apt to perceive these courts of law as opaque rather than transparent, and as violent rather than benevolent: When those people see the prefect or the magistrate seated on the dais, holding his brush, with the clerks and runners arrayed on either side, and the whips and cangues displayed in front, they are struck with fear and lose heart. How do such people imagine the capital where the Son of Heaven lives?24

Through the allusive prose of extant verdicts, however, one does not descry a raucous court of law or discern the rustic speech of plaintiffs or defendants. For on the written page, the presiding official—​“seated on the dais, holding his brush”—​has 22 Minggong shupan qingming ji 名公書判清明集 [1261, 1569] (Beijing: Zhonghua shuju, 1987); hereafter: Qingming ji, 12.479. 23 See the analysis of manuals for local government in de Pee, The Writing of Weddings, 183–​86.

24 Su Xun 蘇洵, Jiayou ji jianzhu 嘉祐集箋注 [ca. 1066] (Shanghai: Shanghai guji chubanshe, 1993), 4.100.

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arranged the pertinent facts, arguments, and laws into a graceful essay, rendering uncertain colloquial action into meticulous classical prose.25 This translation of local practices into the universal terms of imperial law distorts regional conceptions of morality and justice, quite often resulting in the condemnation of a plaintiff or in sentences for a crime unsuspected by either the plaintiff or the defendant. And yet, as the authors of these verdicts attempt in their judgments to reduce the entangled feuds of their jurisdiction to the transparent order of imperial law, unrepentant litigants, brutal clerks, incompetent or conniving officials, indomitable strongmen, and ignorant commoners driven by vulgar greed intrude upon the precarious order of the written page. Local networks of power and local customs contest the universal authority of imperial law and the moral imperative of the ancient scriptures. And verdicts must preserve in writing the actions that imperial law condemns, as justification for the punishment inflicted. In many of the marital cases, defendants appear to have wilfully disobeyed the law, relying on violence and false promises to obtain forcible advantages that they feebly protect in court with lies and contradictory depositions. The impecunious Jiang Baisan who has sold his betrothed daughter to become a servant; the ambitious Instructor Qiu who forced his impoverished son-​in-​law to divorce his daughter when his own fortunes improved; the eager Wei Ruji who acted as his own guarantor in his marriage to a courtesan; the mendacious Madam Zhang who seeks to divorce her husband with the assertion that he is a paraplegic; the lowly Zheng Yingzhen who dressed up as a scholar to seduce with a false marriage contract a girl of imperial ancestry, and others, all betray their bad faith by their reliance on deception.26 In such cases, it remains for the judge “merely to sort out the crooked and the straight,” exposing the falsehoods that emerge from the evidence and from the defendant’s own inconsistencies, “and to identify and impose the relevant law.”27 In other verdicts, however, a rift becomes visible between imperial law and local customs. The townsmen or villagers who have gone to court to seek adjudication in a tenacious dispute find that the presiding official, citing imperial law, redistributes their property and rearranges their families in ways that defy the claims of all parties. Accepted negotiation practices and established forms of intermarriage prove offensive to the universal norms of law and scripture, resulting in forced separations and unfamiliar allocations of rights and obligations. Conversely, the universality of imperial law is compromised by unburied bodies and contested lands which cannot be rightfully assigned to any party, and especially by marital conflicts in which enforcement of the relevant law would lead to battery, suicide, or murder: “Litigation about marriage negotiations differs from other kinds of lawsuits, since in such cases the disputes and 25 On the genre of the verdict, see Christian de Pee, “Cases of the New Terrace: Canon and Law in Three Southern Song Verdicts,” Journal of Sung-​Yuan Studies 27 (1997): 27–​61. 26 See Qingming ji, 9.345–​46, 9.356, 10.379, 12.442.

27 Qingming ji, 12.443, quoted slightly out of context.

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accusations between two families will not be brought to an end overnight. And if one forces them to share the nuptial cup, one merely plants the seeds of disaster.”28 From judgments in the Enlightened Verdicts it appears that local practice imposed fewer restrictions on matrimonial strategy than did imperial law. The cancellation of the betrothal of a daughter by marrying her off to another family appears to have been common, as does the practice of divorcing a wife by marrying her off to another man. But imperial officials voided such marriages when made aware of them. A man named Ye Si, for example, had arranged to divorce his wife, Madam Shao, and to marry her off to Lü Yuanwu. (Married women are always referred to by their maiden name.) After “Lü Yuanwu and his father paid him 300 strings of cash in official bank notes,” Ye Si regretted his decision and wanted to annul the arrangement. Lü Yuanwu filed a complaint with the authorities to enforce the contract. Magistrate Weng Fu, however, justifies neither Ye Si nor Lü Yuanwu. Because the law prohibits a husband from marrying off his own wife, Weng Fu voids both marriages, confiscates the betrothal sum, and condemns the two men and Madam Shao to “100 blows of the heavy rod” (i.e., twenty blows on the buttocks).29 Ye Si’s contract, Lü Yuanwu’s ungrudging commitment of a very large sum of money, and especially Lü Yuanwu’s confident reliance on the assistance of the magistrate for the enforcement of the agreement suggest that this divorce and remarriage of Madam Shao accorded with established custom. Only the invitation of official arbitration disrupts the common course of action by allowing Weng Fu to impose the terms of imperial law, which condemns the arrangement as bigamous.30 A few suggestive cases provide insufficient evidence to argue that the legal restrictions against marriage during a mourning period or marriage across social boundaries conflicted with local custom.31 But strong evidence exists that local practice allowed marriages (and sexual relations) that imperial law prohibited as incestuous. Wu Qian’er, for example, married a woman who shared his surname and only later married her off, fearing prosecution. The judge annuls both marriages, the first because of the shared surname, the second because Wu Qian’er, lacking any relationship to Madam Wu, did not have the right to arrange a second marriage for her.32 Weng Fu in one verdict voids posthumously a marriage between maternal cousins, although he condones such a marriage elsewhere.33 In a third verdict, a Madam Lu has filed a lawsuit against her son-​in-​law, Yang Zizhi, who has squandered all his possessions and left Madam Lu’s daughter destitute. Judge Weng Fu, however, discovers that the daughter is a widow who has married the brother of her late husband, and that the property they have 28 Qingming ji, 9.351. Cf. Qingming ji, 9.343. 29 Qingming ji, 9.352.

30 Cf. Qingming ji, 7.230–​32, 7.234–​35, 9.343, 9.344, 9.348, 10.384–​85; Zhuang Chuo 莊綽, Jilei bian 雞肋編 [1133] (Beijing: Zhonghua shuju, 1983), 2.58. 31 See Qingming ji, 6.177–​80, 7.230–​32, 7.234, 8.273, 8.294–​95, 9.344, 9.348, 10.377, 10.389.

32 See Qingming ji, 9.348.

33 See Qingming ji, 5.14–​22, 13.501–​3.

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squandered belonged to that first husband, Yang Zicheng. He therefore annuls the marriage, condemns the second husband to exile, and returns the son from the first marriage to the patriline, along with the land that was illegally sold. The judge is aware that none of the parties expected this outcome, and that the only person sensitive to the universal morality of imperial law may be the dead husband: If the dead are conscious, Yang Zicheng must be writhing in anger below in the Nine Springs. The present plaint submitted by Madam Lu, the mother of Madam Shao, finally presents me, as the responsible official, with the opportunity to investigate this matter to the smallest detail. Madam Lu is not concerned with lending a voice to Zicheng’s grievances but apparently has conspired with her daughter to request that the authorities restore the proper meaning to words and divorce her from Zizhi merely because he has squandered everything, to the last coin, leaving Madam Shao without any support. She abandons her own and thrusts herself upon another for money, but when the money is spent, she rejects once more what she has and casts about for something new—​such is Madam Shao’s inhuman calculation.34

Weng Fu’s verdict identifies the patrilineal family of imperial law with the moral structure of Heaven and the underworld. The relations of Yang Zizhi and Madam Shao violate inherent cosmic boundaries and thereby void the very meaning of words: Yang Zizhi is not a brother, Madam Shao is not a mother, not a wife. Yet the plaint of Madam Lu, not filed until four years after her daughter’s marriage, indicates that Weng Fu’s universal boundaries existed only vaguely besides boundaries that informed local practice. Like Qu Tianyou, who intended to use his knowledge of the impropriety of his niece’s marriage to a maternal cousin merely to lay hands on her dowry, Madam Lu invokes the boundaries of imperial law only to have dissolved a marriage that has become hateful to her for other reasons. The patrilineal structure perceived by Weng Fu in the nature of things existed for Qu Tianyou and Madam Lu only as a set of rules to which they might turn for the enforcement, by means of manacles and penal servitude, of their selfish advantage. Yet at times the encompassing structure of law and classical canon fails. The universal boundaries cannot accommodate the endless variety of local marriage practices, and the angry, suffering men and women who appear in court resist the places assigned to them by the Song Penal Code. Judges realize that plaintiffs who insist on the marriage of their daughter to a reluctant groom will in the end be ill served by the enforcement of their claim, however firmly supported by the law.35 Similarly, judges recognize the need to grant a divorce even to those who seek it with false accusations since the wronged spouse, too, could hardly desire a forcible reunion.36 In a few verdicts, the judge is forced to seek an expedient solution for a case that exceeds the foresight of the laws. Liu Kezhuang, for example, decides to recognize the third of Madam Wu’s three illegal 34 Qingming ji, 10.389–​90. Cf. Qingming ji, 11.415.

35 See Qingming ji, 9.346–​51.

36 See Qingming ji, 10.379–​81.

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marriages since its annulment would lead to endless litigation about the child she has conceived in that last union.37

Local Practice and Ethnic Hierarchy: Yuan Precedents

Literary merit, not legal accomplishment, has protected from oblivion the few hundred Song verdicts in the Enlightened Verdicts and in the collected works of Huang Gan and Liu Kezhuang. Commercial printers have thereby preserved a more erratic selection of judgments than would have imperial editors concerned with the illustration of legal technicalities. The minute fragments of local lives preserved in these Song verdicts therefore differ from those retained in the precedents collected in the compendia of imperial archives preserved from the Yuan. The gradual regeneration, during that period, of a legal code through ad hoc rulings, and a new concern with the regulation of ethnic customs bring into view practices not encountered in the sources of the Song. The shifting perspective reveals some unknown customs and allows a better estimate of the distance that separates legal reasoning from local practice, but it does not offer local practice itself to closer scrutiny. During the years prior to the promulgation of the Yuan dynasty in 1271, the court of Khubilai anticipated with a protracted series of new laws the abolition of the Annotated Taihe Code (Taihe lüyi, 1202) that the Mongol rulers had adopted in 1234 from the defeated Jin dynasty (1115–​1234).38 At the time of its founding, however, the Yuan Empire did not have a comprehensive code of law. Only in 1323 did the court gather in one authoritative compendium the laws, ordinances, and precedents it had created in five decades of deliberations: the Comprehensive Statutes of the Great Yuan (Da Yuan tongzhi).39 Of the Comprehensive Statutes, proud accomplishment of Yuan law, now remain only twenty-​two discontinuous fascicles of precedents.40 Although Su Tianjue (1294–​1352) had hoped that the Comprehensive Statutes would stand as an enduring model of consistency and simplicity, the present version contains many a case that 37 See Qingming ji, 9.348–​49. Cf. Huang Gan 黃榦, Mianzhai xiansheng Huang Wensugong wenji 勉齋先生黃文肅公文集, Beijing tushuguan guji zhenben congkan edition [1315, ca. 1221] (Beijing: Shumu wenxian, 1988–​1991), 40.9b–​10b; Qingming ji, 5.144. 38 See Bettine Birge, Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan dianzhang (Cambridge, MA: Harvard University Press, 2017), 36–​77; Paul Ch’en, Chinese Legal Tradition under the Mongols: The Code of 1291 as Reconstructed (Princeton: Princeton University Press, 1979), 13–​15; Yuandai falü ziliao jicun 元代法律資料輯存, ed. Huang Shijian 黃時鑒 (Hangzhou: Zhejiang guji, 1988), 254. 39 See Huang Shijian, Yuandai falü ziliao jicun, 85.

40 The Comprehensive Statutes originally comprised four parts: laws, precedents, decrees and amnesties, and miscellaneous ordinances. See Tongzhi tiaoge 通制條格 [late fourteenth century; 1323] (Beijing: Huawen shuju, 1930), 1930 preface, 1; Huang Shijian, Yuandai falü ziliao jicun, 87, 260–​64. The 1333 and 1340 editions of the encyclopedia A More Comprehensive Record of A Forest of Facts (Shilin guangji [1333, 1340]) contain a condensed rendition of the laws in the Comprehensive Institutions. See Chen Yuanjing 陳元靚 (attr.), Xinbian zuantu zenglei qunshu leiyao Shilin guangji 新編纂圖增類群書類要事林廣記 [1330–​1333] (Kyoto: Zhongwen, 1988); hereafter: Shilin guangji 1333, IV.3.1a–​9a; Chen Yuanjing 陳元靚 (attr.), Zuantu zengxin

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suggests continuous, undue appeals to the highest authorities, such as a verdict by the Ministry of Rites, dated as late as 1305, that allows a family to remarry a daughter whose prospective groom was exiled for a severe crime before the betrothal sum was paid.41 Apart from prefaces and fragments from other compendia, a 1322 imprint survives of two practical compendia published to assist officials and clerks in deciding legal cases: the Imperial Canon of the Sacred Governance of the Great Yuan (Da Yuan shengzheng guochao dianzhang, 1317) and the Precedents of the Zhizhi Reign: A New Collection of the Imperial Canon of the Sacred Governance of the Great Yuan (Da Yuan shengzheng dianzhang xinji Zhizhi tiaoli, 1322).42 The laws and precedents pertaining to weddings and marriage exemplify the characteristics of Yuan law: the gradual re-​enactment through ad hoc decisions of stipulations from the codes of previous dynasties, and the attempt to inscribe imperial subjects into a rigid hierarchy of segregated classes and ethnic groups.43 In time, the Yuan court adopted most of the familiar marital laws of the Tang and the Song. A signed contract or the acceptance of a betrothal sum constituted a binding engagement, to be consummated within five years.44 The wedding rites introduced the bride into a patrilineal grid that determined her rights and obligations in life and in death, unless a valid divorce or remarriage (upon completed mourning for her late husband) extricated her from these.45 Yuan law also voided marriages contracted by improper persons and marriages consummated at improper times.46 qunshu leiyao Shilin guangji 纂圖增新群書類要事林廣記 [1340] (Beijing: Zhonghua shuju, 1999); hereafter: Shilin guangji 1340, V.1.20a–​26b. 41 See Tongzhi tiaoge, 4.2a; Su Tianjue 蘇天爵, Zixi wengao 滋溪文稿 (Beijing: Zhonghua shuju, 1997), 26.434–​35. Cf. Tongzhi tiaoge, 4.2b, 4.3a. In the latter case, a prefect in fact receives a humiliating rebuke for memorializing about an obvious case.

42 See Da Yuan shengzheng guochao dianzhang 大元聖政國朝典章 [1317] (Taipei: National Palace Museum, 1976); hereafter: Yuan dianzhang; Da Yuan shengzheng dianzhang xinji 大元聖政典章新集 [1322] (Taipei: National Palace Museum, 1976); hereafter: Yuan dianzhang xinji. For prefaces and fragments, see Chen Yuanjing 陳元靚 (attr.), Xinbian qunshu leiyao Shilin guangji 新編 群書類要事林廣記 [1699; 1325] (Beijing: Zhonghua shuju, 1999); hereafter: Shilin guangji 1699, IX.1.5a–​11b; Huang Shijian, Yuandai falü ziliao jicun, 9–​34, 53–​58, 87–​90; Song Lian 宋濂 ed., Yuanshi 元史, Baina edition [1370] (Taipei: Taiwan shangwu yinshuguan, 1937), fascicles 102–​5. 43 Cf. Birge, Marriage and the Law, which includes an annotated translation of the chapter on marriage in the Imperial Canon of the Sacred Governance.

44 For binding betrothals see, for example, Yuan dianzhang, 18.1b, 18.11a–​12a, 45.13a; Shilin guangji 1333, IV.3.5ab; Shilin guangji 1340, V.1.23b. For the expiration of betrothals see, for example, Yuan dianzhang, 18.2b, 18.11a–​12a; Tongzhi tiaoge, 4.1a; Shilin guangji 1333, IV.3.5b; Shilin guangji 1340, V.1.23b–​24a.

45 For the rights and obligations of marriage, see the mourning tables and tables of penal measures in Yuan dianzhang, 30.4a–​7b, 42.1a–​2b, 42.20b, 45.1ab; Huang Shijian, Yuandai falü ziliao jicun, 53–​58. For divorce, see Yuan dianzhang, 18.1b, 18.6a–​7a, 41.21b; Tongzhi tiaoge, 4.7ab, 4.12ab; Shilin guangji 1333, IV.3.5b–​6a; Shilin guangji 1340, V.1.24a; Song Lian, Yuanshi, 103.24a.

46 See, for example, Yuan dianzhang, 17.7b, 18.1a–​2b, 18.4a, 18.9a, 18.14a–​15a, 18.16a–​17a, 18.29a–​33b, 41.17ab; Yuan dianzhang xinji, hunyin.1a–​3b; Tongzhi tiaoge, 3.17a, 3.20b–​25b, 4.1a,

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The ethnic differentiation of law and morality under Yuan rule, however, obliterated the universal moral claims of the laws adopted from the Tang and Song codes, leaving their inherent patrilineal boundaries mere arbitrary lines for the circumscription of Han subjects. The exemption of Mongols and miscellaneous aliens from the laws against polygyny, for example, and the prohibition of the practice of levirate marriage among Han, evince that Yuan rulers did not regard the marital laws as instantiations of an inherent moral order but rather as means to establish and perpetuate a hierarchy of ethnic groups.47 The imposition of a fixed protocol for Han weddings, the enactment of sumptuary laws for wedding banquets, the attempt to create semi-​official go-​betweens, and other marital regulations served as means to mark weddings as a site of ethnic difference, and of Mongol privilege.48 The prescription of proper ethnic custom in turn constituted part of the court’s ambition to exert unprecedented power over the bodies of its subjects. Although some of its officials invoked the scriptural rhetoric of sacred bonds and moral obligations, the Yuan court itself designed its regulations and prohibitions to eliminate causes for litigation.49 It therefore extended its laws to areas that the Song code had left uncharted, such as the regulation of uxorilocal marriage, the right to the betrothal sum in case of the death of one of the betrothed, and the procurement of wives for officials serving far from their native region.50 In familiar areas of controversy, such as the remarriage of widows, the Yuan court narrowed its laws to reduce occasions for plaints, transferring the right to remarry widows from parents and grandparents to the parents-​in-​law, and tersely prohibiting in 1303 remarrying widows (and divorcées) from taking their dowry into a second marriage.51 4.1b, 4.6b–​7a, 4.20ab; Shilin guangji 1333, IV.3.5b, V.1.23b; Shilin guangji 1340, V.1.23b; Shilin guangji 1699, IX.1.5b; Huang Shijian, Yuandai falü ziliao jicun, 36–​37, 66.

47 For the laws on levirate marriage and other ethnic distinctions in marital law, see Tongzhi tiaoge, 3.14b–​15a, 3.18a–​20b, 4.1b, 4.8a; Yuan dianzhang, 18.1a, 18.21ab, 18.23a–​28a, 18.26b, 18.33a; Yuan dianzhang xinji, hunyin.4ab. Several precedents void marriages to close kin—​such as an aunt marrying a nephew—​that would be acceptable among Mongols and aliens but that among Han “throw into disorder the great relations” and “greatly harm proper customs.”

48 On multi-​ethnicity in Yuan law, see Birge, Marriage and the Law; Ch’en, Chinese Legal Tradition. For the concern with litigation, see Yuan dianzhang xinji, hunyin.1a; Tongzhi tiaoge, 4.16a, 16.3a; Hu Qiyu 胡祇遹, Zazhu 雜著 [late 13th c.], in Lixue zhinan 吏學指南, ed. Xu Yuanrui 徐元瑞 [1673, 1301] (Hangzhou: Zhejiang guji, 1988), 195–​264, at 256, 258; Huang Shijian, Yuandai falü ziliao jicun, 18, 34, 39, 89; Wang Jie 王結, Shansu yaoyi 善俗要義 [ca. 1336], in Xu Yuanrui, Lixue zhinan, 357–​58; Xu Yuanrui, Lixue zhinan, 52, 90, 147–​48. 49 For canonical rhetoric on marriage see, for example, Yuan dianzhang, 18.7b–​8a, 18.11ab, 18.16b, 18.33a; Tongzhi tiaoge, 3.2a–​3a, 4.18b. On litigation, see Yuan dianzhang xinji, songsong.1a (“How to Stop Litigation”).

50 See Yuan dianzhang, 17.7ab, 18.1a, 18.2b–​3a, 18.5b–​8a, 18.15a–​16b, 18.18a, 18.21ab, 34.4b; Tongzhi tiaoge, 2.16b–​18a, 2.26a, 3.16a, 4.3a–​4b, 4.6b–​7a, 4.8b–​10b. 51 See Yuan dianzhang, 8.14ab, 18.22a; Tongzhi tiaoge, 3.17a.

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The transformation of the universal, moral boundaries of Song law into pragmatic ethnic laws did not diminish the conflict between law and local practice. Nevertheless, the often unadorned prose of the precedents, intended to inform higher authorities about local circumstances, contrasts with the moral rhetoric of the Enlightened Verdicts, and the precedents do at times identify with some precision conflicts between imperial law and local practice that Song verdicts represent as conflicts between universal morality and ignorant perversion. Officials throughout the realm reported with dismay on accepted customs that filled their courts with irreconcilable plaintiffs. In 1313, for example, Route Commander Shi Jiayi called for the strict prosecution of parents who broke wedding contracts in order to marry their daughter to a family that offered a larger betrothal sum.52 Cases dated 1278, 1290, 1292, 1295, and 1302 assert that by established practice husbands in Shandong, Anhui, Jiangsu, Zhejiang, and Jiangxi rented out their wives to serve other men as a wife, concubine, or servant for a period of three to five years. A Surveillance Commissioner in Zhejiang writes of this custom, “unheard of even among poor people in the Central Plain,” According to the official laws, a man who consents to his wife’s adultery in exchange for money is liable to severe punishment. The ignorant people of the South openly accept money in renting out their wives to others for several years, allowing them to live as man and wife. This should of course require a heavier punishment than forcing one’s wife to violate the law a single time. I propose that the rental of married women be prohibited. If a husband and a wife rent themselves out together, without separating, they should be permitted to do so.53

Officials in Shaanxi, Hubei, Hunan, Guangdong, and Guangxi denounced the wide­ spread practice of “divorce by sale” (maixiu) or “marriage by sale” (jiamai), in which men divorced their wives by marrying them off for a betrothal sum.54 An edict dated 1309 responds to reports from many regions about the betrothal of widows during the mourning period for their late husband, “remarrying on their own initiative.”55 Officials writing in 1286, 1295, 1306, and 1321 expressed their horror about weddings that not only violated mourning obligations, but took place in the presence of a corpse. Wang Zhang of Suzhou stored away his mother’s body during his son’s wedding banquet, to bury her a few days later, but other defendants openly displayed

52 See Yuan dianzhang, 18.11a–​12a; Yuan dianzhang xinji, hunyin.1ab.

53 Yuan dianzhang, 57.8b–​9a. Cf. Yuan dianzhang, 57.8a–​10a; Tongzhi tiaoge, 4.17b—​19a; Song Lian, Yuanshi, 103.21b. Cf. also the “rampant urban phenomenon” of husbands prostituting their wives. See Yuan dianzhang, 45.7a–​8a; Shilin guangji 1333, IV.3.3a; Shilin guangji 1340, V.1.22a.

54 See Yuan dianzhang, 18.12b–​13b, 18.19ab; Tongzhi tiaoge, 4.7b–​8a, 4.19a; Song Lian, Yuanshi, 103.21b, 103.23a, 103.24a.

55 Yuan dianzhang, 18.14a. Cf. Yuan dianzhang, 18.9ab, 18.15b–​16a, 18.33ab, 41.17ab; Yuan dianzhang xinji, hunyin.3ab; Tongzhi tiaoge, 4.5b.

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the deceased relative during wedding ceremonies in which the groom and the bride “crossed the threshold, bowed to the spirit, and consummated the marriage.”56 Despite its stated commitment to the preservation of ethnic custom, the Yuan court forbade the above practices and annulled most of the resulting marriages. In contrast to the verdicts surviving from the Song, however, Yuan precedents recognize unlawful marital strategies as coherent practices. Covetous negotiation tactics, the rental of wives, “divorce by sale,” the immediate remarriage of widows, and “bowing to the corpse” appear not as individual aberrations of perverse minds, but as widespread, established regional conventions. Although some of the officials condemn these practices as violations of universal, sacred bonds of marriage, the Yuan court prohibited them because they resulted in litigation. In some cases, however, the concern with order and the prevention of unending suits resulted in the acceptance of an illegal marriage or divorce. Like certain authors in the Enlightened Verdicts, the Yuan court reasoned that a marriage with children should not be disbanded to honour a binding betrothal belatedly remembered by a prior party, and that a husband’s accusation of adultery voided a marriage, even when false.57 In several cases, moreover, it confiscated the betrothal sum of a marriage contracted during a mourning period or through “divorce by sale” but declared the match itself to be valid.58 Two cases preserved in the Comprehensive Statutes, however, suggest the hopelessness of enforcing marriage laws. In 1278 and 1303, imperial officials stood accused of enticing women and girls in their jurisdiction by means of false contracts, with the aim of either selling them as slaves or taking them into their own household for the duration of their tenure: “When travelling officials arrive at their post, they [often] deceive the commoners in their jurisdiction. They ask around about girls and women, then write up void wedding contracts, trump up a betrothal sum, and take them as wives or concubines. This truly harms the Sacred Transformation [of imperial governance].”59 Like the universal boundaries of Song law, the intricate structure of Yuan marital regulations does not represent ritual practice, nor even legal practice, but the 56 See Yuan dianzhang, 18.33ab; Yuan dianzhang xinji, hunyin.3b. Sources throughout imperial times record instances of weddings in the presence of a corpse, occurring under different names in all parts of the empire. Such rites either rely on the auspicious powers of weddings to drive out the inauspicious airs of disease and death, or attempt to draw on the powers of the inauspicious event of death. See Ma Zhisu 馬之驌, Zhongguo de hunsu 中國的婚俗 (Taipei: Jingshi shuju, 1981), 23–​27. 57 See Yuan dianzhang, 18.9b–​10a; 45.9ab.

58 See Yuan dianzhang, 18.9ab, 18.12b–​13a. For other condonations of irregular betrothals and marriages, see Yuan dianzhang, 18.4ab, 18.10a–​11a, 42.20–​21a. In 1279, the Censorate refused to persecute a widow for fornication during the mourning period for her late husband, because “her body now belongs to her second husband and it has become impossible to prosecute her.” Yuan dianzhang, 45.13a (emphasis added). 59 Tongzhi tiaoge, 4.6b–​7a. Cf. Tongzhi tiaoge, 3.23a–​24a.

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practice of the legal text, with its vision of a society ordered by ethnic hierarchy and comprehensive laws.

Conclusion

A verdict mediates between the transparent structure of imperial law and the disorderly variety of local practices, and becomes thereby the written trace of the position of the local official—​the rhetoric and allusions his robes, the citations of the code and the final sentence his prisons and his instruments of sanctioned violence. In the ritualized space of the county seat, the judge translates local practice into the written language of the imperial order. In the margins of his verdict, at the fingertips that hold the official’s brush (the extremities of imperial power), become visible the lavish banquets of wedding nights, the violence of interrupted bridal processions, the marriage of cousins and other forbidden kin, the rental and sale of wives, and grooms and brides bowing to a corpse. Changes in the practice of legal writing and the uneven transmission of legal texts bring into view a shifting array of local practices. In the Enlightened Verdicts and in the collected works of Huang Gan and Liu Kezhuang, literary merit has preserved routine judgments condemning local violence and greed. The ad hoc decisions of the Yuan imperial court and its ambition of a fixed ethnic order have yielded terse reports on unlawful regional practices. The shifting legal categories and the incommensurability of the sources create a false sense of change. Divorce by sale, rental of wives, marriage to close kin, levirate marriage, mercenary negotiation strategies, and other unlawful practices belonged to enduring repertoires of unwritten local practices—​not unchanging, perhaps, but independent of changes in imperial law and legal practice. The distance between the legal text and local practice is the distance Liu Kezhuang remembers of surveys of losses caused by droughts: Whenever I have witnessed, in the counties and prefectures where I have served, an official investigation into damage done by a drought, the officials and clerks would visit with the rich and powerful wherever they went. All exemptions would be awarded to formidable families of means, while the poor and downtrodden would rarely share in their beneficence. In every township and in every village, moreover, there are evil, unscrupulous persons who share their deceitful schemes with the clerks and accountants dispatched by the officials. Even worthy officials of discriminating intelligence are rarely able to perceive their fraud. If one adds to this the consideration that even the landowners and local elders are sometimes unable to identify with certainty which of the countless plots of land—​stretching as far as the eye can see—​had poor yields, which abundant, one may imagine the unlikelihood that the responsible official, unfamiliar with local customs, will assess the situation accurately with one quick glance. He merely sits in his sedan chair, dependent entirely on the oral reports of his runners and the village clerks, which he then writes up in his documents.60

60 Liu Kezhuang 劉克莊, Houcun xiansheng da quanji 後村先生大全集, Sibu congkan edition [1272] (Shanghai: Shanghai shudian, 1984–​1985), 192.6ab.

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Select Secondary Sources Birge, Bettine. Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan dianzhang. Cambridge, MA: Harvard University Press, 2017. Ch’en, Paul. Chinese Legal Tradition under the Mongols: The Code of 1291 as Reconstructed. Princeton: Princeton University Press, 1979. de Pee, Christian. The Writing of Weddings in Middle-​Period China: Text and Ritual Practice in the Eighth through Fourteenth Centuries. Albany: State University of New York Press, 2007. Ebrey, Patricia B. The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period. Berkeley: University of California Press, 1993. Ma Zhisu 馬之驌. Zhongguo de hunsu 中國的婚俗. Taipei: Jingshi shuju, 1981. McKnight, Brian E. “From Statute to Precedent: An Introduction to Sung Law and Its Transformation.” In Law and the State in Traditional East Asia: Six Studies on the Sources of East Asian Law, edited by Brian E. McKnight, 110–​31. Honolulu: University of Hawai’i Press, 1989. Sommer, Matthew H. Sex, Law, and Society in Late Imperial China. Stanford: Stanford University Press, 2000.

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USURY AS DEVIANCE IN MEDIEVAL EUROPE Julie Mell

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

European Jews were first collectively labelled, then criminalized as “usurers”

between the twelfth and sixteenth centuries. Even when involved in financial loans, Jews were only engaged in the same economic activities as Christian “merchants” who were valued as contributing to the public good. In fact, large numbers of Jews were too poor to have actively traded or loaned. Ironically, this new category of Jewish deviance originated out of a social movement to reform Christian usury. The labelling of Jews as usurers is the end result of a campaign against Christian usurers and Christian usury. In the mid-​twelfth century, church councils decreed new legislation against usury aimed at lay Christians—​not Jews. But by the sixteenth century, large numbers of Jewish communities had been expelled from western Europe under the charge of usury, and those that remained in the more politically fragmented Holy Roman Empire and Italian peninsula were being expelled from city centres and enclosed in suburban ghettos. Late medieval Christian economic thought resulted in a new dualism: “Christian merchants” versus “Jewish usurers” immortalized in Shakespeare’s Merchant of Venice. The merchant was an upright member of the civic commune and Christian community, whose business increased the wealth of the community by circulating wealth. The moneylender was an enemy of Christ, his church, and the Christian community, whose lending drained the wealth of the commune and hoarded it for private ends.1 Sociological theories of deviance offer a useful way to analyse the social construction and criminalization of Jews as usurers.2 The social status of the individual in a society tends to determine whether their rule-​breaking is considered deviant or not; stigmatization both propels, and results from, the labelling. This paradigm fits well late medieval Italy where Jewish merchant-​bankers were labelled “faithless usurers” hoarding wealth, because they were Jews, and Italian merchant-​bankers were labelled “Christian merchants” increasing the wealth of all, because they were Christian citizens. However, this was a process of dynamic historical change. The very categories of “usury” and “usurer” shifted over several hundred years. To further complicate matters, the category of “the Jew,” considered religiously deviant since late antiquity, was applied 1 Parts of this article overlap with my “Jews and Money: The Medieval Origins of a Modern Stereotype,” in Cambridge Companion to Antisemitism, ed. Steven Katz (Cambridge: Cambridge University Press, 2022). But this article takes a broader perspective, examining both Christian and Jewish usury in relation to social deviance. Both articles build on my Myth of the Medieval Jewish Moneylender, 2 vols. (New York: Palgrave MacMillan, 2017–​2018). 2 Valerie Jenness and Phillip Goodman, “Deviance,” in The Cambridge Dictionary of Sociology, ed. Bryan Turner (Cambridge: Cambridge University Press, 2006), 136–​41.

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to Christians as a means of marking the category of usurer as deviant.3 Only by tracking historical shifts in these markers of deviance can we answer our principal puzzle: how and why the deviant labels of “usurer” and “usury” came to be particularly (but not exclusively) linked to Jews, Jewishness, and Judaism in the High Middle Ages.4 I shall argue that there were three waves in the new discourse on usury, centred on labelling, regulating, and expelling. Between ca. 1140 and 1200, the first canons were issued against lay Christian usurers at Lateran II (1139) and Lateran III (1179), and the first rhetorical associations between Jews and usury appeared. After 1200, Jewish usury became the subject of legislative regulation and administrative surveillance by both secular lords and clergy, above all the papacy, and the canonical legislation on Christian usury was broadened and tightened. From the 1270s, canon law ordered the expulsion of foreign Christian usurers, and from the 1280s, secular rulers began the large-​scale mass expulsions of Jews, justified in part by charges of usury. The geographic centre of these changes was Capetian France and surrounding Francophone areas, in particular Angevin England. Each phase was led by a different social group: the first by monastic leaders; the second by the papacy informed and aided by the scholastics at the University of Paris; the third by kings encouraged and aided by the friars. Jews, Jewishness, and Judaism were coupled with economic deviance and came to represent that deviance, whether enacted by a Jew or a Christian. This was underpinned by the high medieval church’s intolerance for religious difference, rooted in their championing of the crusades, eradication of heterodox Christianities, and insistence on the authority of the Church. All these, in turn, were rooted in two Christian religious movements: the eleventh-​century ecclesiastical reform movement and the twelfth-​and thirteenth-​century evangelical awakening. But before putting some meat on these bones, it is necessary to lay to rest some misconceptions about usury in medieval economic thought and about moneylending by Christians and Jews.

Usury and Medieval Economic Thought

“Usury” is often incorrectly glossed as a pejorative, premodern term equivalent to “interest,” and “usurer” as “moneylender.” Usury, then as today, referred to exploitive and illegal profit as defined by custom, culture, and law. The precise connotations changed over time: a loose twelfth-​century concoction of extortion, theft, fraud, unjust price, and receiving more-​in-​return-​than-​given shifted to a narrower thirteenth-​and fourteenth-​ century designation of a particular type of loan contract: the mutuum. This shift freed 3 In addition to the twelfth-​ and thirteenth-​century examples discussed below, see especially Myriam Greilsammer, L’usurier chrétien, un juif métaphorique? Histoire de l’exclusion des prêteurs lombards (XIIIe–​XVIIe siècle) (Rennes: Presses universitaires de Rennes, 2012).

4 I use the term “usury” as an ethical-​religious category embedded in economy, not as a pure economic category; and I use the term “Jewish usury” as a shorthand for three overlapping meanings: Jews as usurers, usuries by Jews, and usury as “Judaizing” whether practiced by Jews or Christians.

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from the taint of usury the investment loan contract known as the commenda, a centre-​ piece of medieval commerce. Today, too, we have economic practices ranging from immoral to illegal: insider trading, predatory lending, credit default swaps and usury. Typically, modern usury laws define a licit rate of interest to prevent greedy individuals exploiting others; but in practice the exemptions for credit card companies in US states and the systemic injustices underlying exploitive credit in Europe and the US result in a fluid meaning for usury today.5 Usury is therefore best understood as a shifting ethical-​ legal zone of immoral, illicit, and illegal economic practices marking deviance whose exact boundaries must be defined at specific historical junctures for specific agents. Ethical concerns did not obstruct economic growth in medieval Europe any more than they do today. Credit stood at the heart of the medieval commercial revolution. In probing the ethical and legal limits of just profit, medieval religious authorities –​Jewish, Christian, and Muslim –​ all developed sophisticated economic thought on markets and prices, contracts, loans, and interest, currency exchange and commercial investment. More precise definitions of usury appeared, and at the same time, more permissive attitudes to profit. Both were driven by a sense of divine law, with particular concern for the biblical precepts on usury. Two concepts exemplify this process. First, the term “interest” was created by medieval Christian theologians and canon lawyers to define permissible profit on a loan due to loss, damage or injury. Second, investment loans were permitted by Jewish, Christian, and Muslim law when the investor shared risks as well as profits with the agent, as in the contracts known as iska, commenda, and muḍārabah,6 respectively. Moreover, credit was used widely across social ranks. From peasants to popes, Christians of all social and religious statuses relied on it and many supplied it. Local merchants, moneychangers, and bankers were found in every corner of Europe, along with foreigners working in trade and the money trade. Mendicant friars set up loan and pawn shops, which had to charge some interest to stay open. The Templars and Hospitallers served as bankers and lenders for popes and kings, providing the finances necessary for war and crusade. Interest-​bearing credit was so widely practised that secular rulers often set an officially sanctioned rate of interest: In Provence a rate of “five pennies per month per pound” (=​ 24 percent) was established by legislation in 1245. This rate still held there in 1453, while in Marseilles the rate was even lower, three pennies per month per pound. In Aragon, … King James I … fixed it at a level of 20 percent … In England in the twelfth century, by contrast, where economic conditions must have been different, the rate was much higher: two

5 See, for example: Doris Neuberger and Udo Reifner, “Systemic Usury and the European Consumer Credit Directive,” Thünen Series of Applied Economic Theory, Universität Rostock, www.econs​tor.eu/​ bitstr​eam/​10419/​209​120/​1/​wp161​thue​nen-​rev.pdf; and Richie Bernardo, “Usury Laws by State,” Wallet Hub, https://​wallet​hub.com/​edu/​cc/​usury-​laws/​25568/​#state.

6 Muḍārabah, or profit sharing, is also referred to as muqaraḍah by Hanafi and Hambali scholars and as qirad by Maliki and Shafie scholars. (Noraina Mazuin Sapuan, “An Evolution of Mudarabah Contract: A Viewpoint from Classical and Contemporary Islamic Scholars,” Procedia: Economics and Finance 35 (2016): 349–​58, esp. 350–​51.)

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pennies per week per pound (=​43–​1/​3 percent) was legal. The same rate was decreed in Konstanz in Germany in 1383. Also in Germany, Bishop Otto of Minden, in 1270 considered a rate of four pennies per week as perfectly “moderate,” and such was also the case in Burgundy in the late fourteenth century, where a rate of 86–​1/​3 percent was charged. In remote eastern parts of Europe, the going rates were reported to have been even higher.7

More recently, scholars have begun calculating actual medieval interest rates, confirming both these numbers as well as widespread recognition of interest-​bearing credit.8 The open practice of interest-​bearing credit throughout Europe raises even more sharply the question of why Jews were tagged as deviant vis-​à-​vis usury. We turn now from this glimpse of practice back to the discursive zone of religious law and theology.

Deviance Defined: Labelling Usury (ca. 1140–​1200)

The first wave of the anti-​usury movement saw the condemnation of lay Christian usurers by canonical decrees and the rhetorical labelling of Jews as usurers. Usury was not discussed as an economic act per se, but condemned rather for the moral attitude of the usurer. In the canon law of late antiquity, usury had been prohibited to clergy, but never to lay persons. This changed in the late 1130s and 1140s when lay Christian usury was attacked at the Second Lateran Council (1139). The decree condemned the “detestable, shameful, insatiable rapacity of lenders (detestabilem et probrosam … insatiabilem feneratorum rapacitatem)” severed these “usurers (usurarios)” from the “consolations of the Church,” such as Christian burial, and labelled them as “infamous.”9 Infamy labelled one deviant and came with legal consequences. Usury here is not defined by the economic act per se, but by the inexhaustible greed of the lender. It is a moral, not an economic category, as Gratian’s Decretum (ca. 1140s), the new textbook on canon law reveals. Three passages in the Decretum are often cited as evidence for the rejection of credit by the medieval Church –​Distinctions 46 and 47, and Causa 14.10 But when these passages are examined closely, they reveal a more complicated, ambiguous, and limited 7 Joseph Shatzmiller, Shylock Reconsidered: Jews, Moneylending, and Medieval Society (Berkeley: University of California Press, 1990), 53–​54 and the sources cited there.

8 See, for example, Stephen Nicolussi-​Köhler, “The price of money: Interest Rates in Medieval Sources: Examples from Tirol 1287–​1406,” Working Paper, https://​eur​hisf​irm.eu/​wp-​cont​ent/​ uplo​ads/​2020/​09/​nicolu​ssi-​koeh​ler-​the-​price-​of-​money-​work​ing-​paper.pdf (accessed May 18, 2022); Adrian Bell, Chris Brooks, and Tony Moore, “Interest in Medieval Accounts: Examples from England, 1272–​1340,” History 94, no. 4 (2009): 411–​33. 9 Norman Tanner, ed. Decrees of the Ecumenical Councils, 2 vols. (Washington, DC: Georgetown University Press, 1990), 1:200. 10 Decretum, D.46 cc.8–​10, col. 169; D.47 cc.1–​5, cols. 169–​71; C.14. qq.3–​6, cols. 732–​44.

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concept of usury as a moral attitude. Distinctions 46 and 47 probe the reasons why candidates for clerical ordination shall not be “quarrelsome or covetous (non litigiosum non cupidum)” as specified in 1 Tim. 3:3.11 Clerical usury is mentioned in three of the eight proof texts, but not lay usury. The only reference to lay usury is found in Causa 14, which concerns whether canons (clergy attached to a cathedral or collegiate church) can sue in court on behalf of their church’s estates and invest church property with merchants for benefits (emolumenta). Both these topics are closely related to the reform movement’s aim of recovering and protecting church property. Gratian raises here four questions which concern usury: q.3. Whether such would be extracting usuries? q.4. Whether it is permissible for clergy or laypeople to expect any usuries? q.5. Whether alms can be made from usuries? q.6. Whether usurers can effectively do penance, unless they have made restitution for that which they wrongly accepted?12

In answer to question three, Gratian defines usury as expecting (expetit) anything more than was given, whether in relation to money or anything else.13 This has been interpreted inaccurately as evidence that the Church throughout the Middle Ages rejected all forms of credit. But usury here refers to the intention of the actor, to expecting something, not to a specific economic act. Question four queries whether lay Christians are also forbidden from expecting any benefit, and Gratian answers, yes. But clerical usury remains the primary issue. The first group of canons settle these issues: clergy should abstain from mercantile lawsuits; clergy should not lend, not pursue business, not accept more than given, and so on. The following canons, in the words of Gratian, address lay usury, and introduce theological concepts which we shall see developed later in canon law: c.8. [7.] Usury by laypeople is also condemned. c.9. Shameful profit (“turpe lucrum”) is sought when one buys for less in order to sell for more. c.10. One who receives usury, a robbery makes. c.12. The one from whom we are able to exact usury, him we injure legally.14

In sum, usury in the canon law of the 1140s was defined as covetousness—​as the desire of the lender for more. Usury is a moral vice, which rests in the appetites and intentions 11 In the first recension of the Decretum, dating to the 1140s, usury is mentioned in three of the eight canons brought as proof texts for these distinctions—​all from early Church councils. Decretum, D.46 c.8, col. 169; and D.47 cc.1–​2, col. 253. For the contents of the first recension, see Anders Winroth, The Making of Gratian’s Decretum (Cambridge, UK: Cambridge University Press, 2000), 197–​227. 12 Decretum, C.14 q.4–​q.6.

13 Decretum, C.14 q.3, cols. 734–​35. 14 Decretum, C.14 q.4, cols. 737–​38.

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of the actors. The economic practices attached to it are fluid and ambiguous, but can include profit on loans. A third source from the 1140s relates directly to profit on loans. It is also closely tied to the reform movement through crusading and protection of church property. When the County of Edessa fell in 1144 and Pope Eugenius III called for the Second Crusade, the pope granted a new privilege for crusaders: usury on old debts was not to be paid and oaths to pay usury on new debts were dissolved.15 By doing so, he extended the reform movement’s protection of church property to her crusaders. In time, this protection would be extended to all Christians over against Jews—​a crucial step in the sociological construction of Jewish deviance. The first references to Jewish usury were made ca. 1140–​1146 by three of the greatest spiritual and intellectual figures of the mid-​twelfth century—​the theologian, philosopher, and logician, Peter Abelard; the head of the Cistercian order, Bernard of Clairvaux; and the head of the Benedictine house of Cluny, Peter of Montboissier (also known as Peter the Venerable). All three arose out of the new campaign against lay Christian usury, and drew upon the Augustinian doctrine of Jewish exile and subjugation. All highlight as well the theological difference between rabbinic law and canon law, concerning Deuteronomy 23:20–​21 (Vulg. 23:19–​20). You shall not lend upon interest to your brother (‫ )אח‬interest on money, interest on food, or interest on anything that is lent for interest. To a stranger (‫ )נוכרי‬you may lend on interest, but to your brother you shall not lend upon interest, so that the Lord, your God, will bless you in all you undertake in the land which you are about to enter and possess.16

Medieval rabbinic commentators agreed that the verse gave European Jews permission to give and take usury from Christians, although earlier Talmudic interpretations varied greatly.17 But medieval Christian commentators disagreed. They regarded Deut. 23 as subordinate to general moral statements in the Hebrew Bible, such as a righteous man “shall not lend money on usury” (Ps. 15:5, Vulg. 14:5). Or, they argued that “stranger” did not refer to Christians.18 The theological framework within which these references to Jews and usury are embedded shows them to be the result of Christian religious history, not of Jewish economic history. In a “Dialogue between a Philosopher, a Jew, and a Christian” (ca. 1130–​1142), Abelard’s Jew, like Shakespeare’s Shylock, laments the difficulties of Jewish life in a long 15 Peter Rassow, “Der Text der Kreuzzugsbulle Eugens III,” Neues Archiv des Gesellschaft für ältere deutsche Geschictskunde 45 (1924): 300–​305; an English translation is available in Louise Riley-​ Smith and Jonathan Riley-​Smith, The Crusades: Idea and Reality (London: Arnold, 1981), 57–​59. 16 My translation remains close to that of the Hebrew-​English Tanakh published by the Jewish Publication Society (Philadelphia, PA: Jewish Publication Society, 1999) and the Revised Standard Tanakh. More traditional Jewish interpretations understand the phrase “you shall not lend” as a causative, i.e. “you shall not cause your brother to lend on interest.” 17 Bava Metzia 70b–​72a.

18 Mell, Myth of the Medieval Jewish Moneylender, 2:30–​41.

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monologue. Paraphrased it runs something like this: We are persecuted for having killed the Christians’ God. We are in exile, and in constant fear for our lives and livelihood. “So, the only way we can maintain our miserable existence is by making a profit (lucrum) lending to strangers (alienigenis fenerantes). And this makes us hateful to all.”19 The word lucrum evokes the phrase “shameful profit (turpe lucrum)” in the Decretum, and the word fenerantes echoes “the insatiable rapacity of lenders (insatiabilem feneratorum rapacitatem)” from Lateran II. “Lending to strangers” evokes the rabbinic interpretation of Deut. 23:20–​21 (Vulg. 23:19–​20).20 But Abelard is ventriloquizing the Jewish subject. This is not an accurate historical picture of Jews in twelfth-​century France.21 Jews were being used totemically to make a point about Christian theology: Jewish exile and servitude in the Augustinian theological framework. The same kind of logic resurfaces in a crusading context. In preaching the Second Crusade, both Peter of Montboissier and Bernard of Clairvaux22 feared a repeat of the massacres of Jewish communities which occurred in the Rhineland during the First Crusade (1096–​1099). Some crusaders were claiming that European Jews should be killed before Muslims because Jews “blaspheme, abuse, and trample on Christ” and the sacraments. In response, Peter of Montboissier argued that Jews were spared by God for “a life worse than death.”23 Like Cain, they suffer a life of hardship and wandering for the crime of spilling Christ’s blood. Writing to Louis VII of France, Peter of Montboissier 19 Peter Abelard, Collationes, ed. and trans. John Marenbon and Giovanni Orlandi (Oxford: Clarendon Press, 2001), 16–​21. 20 The Vulgate reads Non fenerabis fratri tuo ad usuram pecuniam […] sed alieno. Emphasis mine.

21 Constant Mews, “Abelard and Heloise on Jews and Hebraica Veritas,” in Christian Attitudes Toward the Jews in the Middle Ages, ed. Michael Frassetto (New York: Taylor & Francis, 2007), 83–​108, at 84–​87.

22 Bernard of Clairvaux, “Epistola 363,” in Sämtliche Werke: lateinisch/​ deutsch, ed. Gerhard B. Winkler, Alberich Altermatt, and Denis M. Farkasfalvy, 10 vols. (Innsbruck: Tyrolia, 1990–​ 1999), 3:311–​22; Letter 130 in Giles Constable, ed., The Letters of Peter the Venerable, 2 vols. (Cambridge, MA: Harvard University Press, 1967), 1:327–​30. On their attitudes towards Jews and Judaism, see David Berger, “Attitude of St. Bernard of Clairvaux toward the Jews,” Proceedings of the American Academy for Jewish Research 40 (1972): 89–​108; Robert Chazan, “Twelfth-​ Century Perceptions of the Jews: A Case Study of Bernard of Clairvaux and Peter the Venerable,” in From Witness to Witchcraft: Jews and Judaism in Medieval Christian Thought, ed. Jeremy Cohen (Wiesbaden: Harrassowitz, 1996), 187–​201; Jeremy Cohen, Living Letters of the Law: Ideas of the Jew in Medieval Christianity (Berkeley: University of California Press, 1999), 219–​70; Gilbert Dahan, “Bernard de Clairvaux et les Juifs,” Archives juives 23 (1987): 59–​64; Yvonne Friedmann, “An Anatomy of Anti-​Semitism: Peter the Venerable’s Letter to Louis VII, King of France (1146),” Bar-​Ilan Studies in History 1 (1978): 87–​102; Giacomo Todeschini, “The Origins of a Medieval Anti-​Jewish Stereotype: The Jews as Receivers of Stolen Goods (Twelfth to Thirteenth Centuries),” in The Jewish-​Christian Encounter in Medieval Preaching, ed. Jonathan Adams and Jussi Hanska (New York: Routledge, 2014), 240–​52. 23 Constable, ed., Letters of Peter the Venerable, 1:328. The translation follows Friedmann, “Anatomy of Anti-​Semitism,” 93.

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offers this “counsel and aid”: spare their lives, but take (auferre) their money.24 The money of blasphemous Jews will aid the Christians in wiping out the infidelity of the Saracens.25 This is just retribution for the crimes of the Jews, according to Peter of Montboissier. What is more just than that these who fraudulently have made a profit (fraudulenter lucrati sunt) shall be left destitute; those who wickedly have stolen like thieves, and what is worse with audacity and impunity, shall be stolen from? What I say has been noted by all. For it is not by simple farming, nor lawful military service, nor by any other honest and useful occupation that [Jews] have filled their barns with crops, their cellars with wine, their purses with coins, their chests with gold and silver as much as, as I said, by cunningly taking them from Christians, by stealthily buying from thieves [and] acquiring at a cheap price what is high-​priced.26

Charged with fraudulent profit, stealing with audacity, dishonesty, and cunning, Jews are described with multiple attributes of usurers—​not usury as it will later be defined, but usury according to the Decretum’s diffuse definition in the 1140s. But the real crime is being Jewish. Jewish possession of wealth—​any wealth—​is contrary to the proper subjugation of the Jewish people to Christians as laid out in the Augustinian doctrine. Peter of Montboissier maps onto usury anti-​Semitic tropes of Jewish hatred of Christ and violence against sacred vessels.27 He develops a wildly anti-​Semitic narrative by playing on the close association of robbery with usury made in the Decretum—​“one who receives usury, a robbery makes.”28 A Christian thief breaks into a church, steals holy vessels, and sells them to Jews, “the synagogues of Satan.” The thief sells the vessels for Christ’s body and blood to those who killed His body and to those who poured out the blood of Christ, [those vessels] by which means now He [Christ] dwells among mortals, and with as much abuse and injury as they are able to afflict, on He who now sits in the majesty of divine eternity, they dare with blasphemous words to assail [Him] without ceasing. Christ clearly feels in these sacred vessels, which are not themselves sentient, the Jewish abuses of Christ. Because, as I have heard from truthful men, to the shame of Christ and ourselves, these wicked ones [Jews] apply

24 The verb auferre can mean “carry off,” “seize,” or “rob.” See R. E. Latham et al., eds., Dictionary of Medieval Latin from British Sources (London: Oxford University Press, 1975), 160.

25 Constable, ed., Letters of Peter the Venerable, 1:329. This point is repeated at the close of the letter (1:330), where Peter writes that it would be insulting to God if this holy expedition were financed wholly by Christian property, without using the money of the “profane ones” to a greater extent.

26 Constable, ed., Letters of Peter the Venerable, 1:329–​30; the translation follows Todeschini, “Origins of a Medieval Anti-​Jewish Stereotype,” 241. 27 This is an early example of what Miri Rubin terms the “narrative assault” on Jewish communities whereby anti-​Semitism is fuelled with fictitious stories of Jews desecrating the eucharist host: Miri Rubin, Gentile Tales: The Narrative Assault on Late Medieval Jews (New Haven: Yale University Press, 1999). 28 Decretum, C.14 q.4 c.8, col. 737.

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these celestial vessels to uses, which are horrible to contemplate and detestable to speak of.29

The emphasis here is on Jews acquiring these vessels and “abusing Christ” through them, rather than on the theft by Christians. The “venerable” Peter, in abusing Jews, has seamlessly slid from fraudulent profit (i.e., usury) to theft and from theft to desecration. Jewish usury is fused with religious desecration, because usury is a theological concept rather than a purely economic one. As one Jewish historian has said, “the underlying issue is surely not economic; the underlying issue is the alleged contemporary Jewish hatred and abuse of Christianity.”30 Peter of Montboissier marks “the transition from an earlier sense of Jews as an abstract historical enemy to this perception of contemporary Jewish neighbours as devoured by hatred, poised at every moment to bring harm on the Christian society.” The most accurate gauge for the development of these new stereotypes may be the rapid emergence and spread of the accusation of ritual murder, which coincided with the Second Crusade.31 In contrast to Peter of Montboissier, Bernard of Clairvaux insists that Jews have already paid “a just penalty” for “the crime of killing Christ” in as much as they have been exiled, subjugated, and scattered among the nations. Yet, he, like Peter of Montboissier, fuses the economic and theological. Bernard of Clairvaux’s letter begins by metaphorically “selling” the crusade: “My words to you concern the business of Christ (de negotio Christi).”32 The Lord wants to “pay to those performing military service wages—​the remission of sins and eternal glory.” This is “truly the jubilee”—​the year of debt remission for the Israelites. Bernard even embellishes the mercantile metaphors deployed by the Apostle Paul: “to conquer is glorious, to die is profit (lucrum) (Phil. 1:21). If you are a prudent merchant, a seeker after the things of the world (1 Cor. 1:20), I show you some great market deals (nundinas), which you should not pass up.”33 The crusade and its players are archetypes in the drama of salvation history.34 Bernard of Clairvaux emphasizes that the Jews, having rejected Christ, have been superseded by Christians. Christians are the new, spiritual Israel; Jews, the carnal Israel. Nevertheless, Jews should not be persecuted, slaughtered, nor driven away, in accord with the long-​accepted Augustinian interpretation of Psalm 59: “Slay them not!” For Jews are signs of Christ’s 29 Constable, ed., Letters of Peter the Venerable, 1:329.

30 Robert Chazan, Medieval Stereotypes and Modern Antisemitism (Berkeley: University of California Press, 1997), 51.

31 Robert Chazan, “From the First Crusade to the Second: Evolving Perceptions of the Christian-​ Jewish Conflict,” in Jews and Christians in Twelfth-​Century Europe, ed. Michael A. Signer and John Van Engen (Notre Dame: University of Notre Dame Press, 2001), 46–​62, at 50. 32 Bernard of Clairvaux, “Epistola 363,” in Sämtliche Werke, 3:311.

33 Bernard of Clairvaux, “Epistola 363,” in Sämtliche Werke, 3:314–​15. Bernard is playing here on Phil. 1:20–​1: Christ shall be magnified in my body, whether it be by life or by death. For to me, to live is Christ and to die is gain (“lucrum”). 34 Cohen, Living Letters of the Law, 241.

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passion.35 At the end of days, a remnant of the Jews will be converted as the Apostle Paul foretells in Romans. In the midst of laying out this salvation history, Bernard makes this aside: I pass over in silence that wherever [Jews] are wanting, we are sorry to say that Christian lenders (christianos feneratores) Judaize worse—​if they should be called Christians and not baptized Jews.36

The Latin phrase christianos feneratores links this statement directly to the canon made at the Second Lateran Council of 1139 denouncing Christian lenders’ greed.37 But “Judaize” is a strange term to use. From late antiquity to the twelfth century, Christian discourse has used “Judaizing” to refer to the adoption of Jewish religious practices, never to refer to economic practices. In what way then were the Christian lenders following Jewish religious practice? By receiving usury from Christians, as Jewish law permits based on Deut. 23:20–​21, these people practise Judaism! Or rather, they do worse. They loan to their “brothers,” which even Jews do not. The purpose of Bernard’s comment, when seen in the larger context of the letter, is to deflect criticism away from Jews by pointing out that Christian lenders act even worse. Bernard’s logic can be inferred from the concluding lines of the letter: the pope has released crusaders from paying interest, but Jews are not subject to canon law and hence are not required to release crusaders from their debt. The passage demonstrates the ways in which the wrongful taking of interest was being mapped onto Jewish communities.38 Over the next forty years, the church successfully established usury as a disreputable profession. The legal concept of “infamy” inherited from Roman law was used to tag individuals as deviant. Lateran II (1139) had ordered that greedy lenders “should be considered infamous,” while Lateran III (1179) specifically targeted infamous usurers. It was this formulation that became the cornerstone of medieval legislation against usury: “we declare that notorious usurers (usurarii manifesti) should not be admitted to communion of the altar or receive Christian burial if they die in sin,” and any clergy receiving infamous usurers shall be suspended from office.39 The concept of infamy was elaborated with the revived study of Roman law in the twelfth and thirteenth centuries, and particularly expanded in new and creative ways in canon law.40 Two types of infamy came to be distinguished in this period. One was roughly similar to the Roman concept 35 Paula Fredriksen, Augustine and the Jews (Yale University Press: New Haven, 2008), 290–​352; Jeremy Cohen, Living Letters of the Law (Berkeley, CA: University of California Press, 1999), 23–​71. 36 Bernard of Clairvaux, “Epistola 363,” in Sämtliche Werke, 3:316. 37 Tanner, ed., Decrees of the Ecumenical Councils, 1:200.

38 Bernard of Clairvaux, “Epistola 363,” in Sämtliche Werke, 3:317. 39 Tanner, ed., Decrees of the Ecumenical Councils, 1:223.

40 Edward Peters, “Wounded Names: The Medieval Doctrine of Infamy,” in Law in Mediaeval Life and Thought, ed. Edward B. King and Susan J. Ridyard (Sewanee, TN: Press of the University of the South, 1990), 43–​89, at 44. On Roman and medieval concepts of infamy, see also: Vincent Tatarczuk, Infamy of Law: A Historical Synopsis and a Commentary (Washington, DC: Catholic University Press, 1954); and A. H. J. Greenidge, Infamia: Its Place in Roman Public and Private Law (Oxford: Clarendon Press, 1894).

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of legal infamy. The other reflected “general reputation, popular opinion, the doctrines of scandalum and notoriety, which although not secular crimes, nevertheless stain the individual conscience and necessarily come before an ecclesiastical judge.”41 This latter, known as “infamy of fact (infamia facti),” became a crucial tool for social control by the church. Among the fifteen classes of infamous persons listed in the Decretum were usurers, thieves, and robbers. These categories of persons were seen as threats to the aims of the ecclesiastical reform movement, and over the thirteenth century these various types of notoriety became associated with each another in ways that would be puzzling except for the linkage through the category of “infamy of fact.” Some, if not all, of these categories were applied to European Jews, as well. Two novel developments underlay the development of “infamy of fact.” First, mortal sins were linked with crime and punished with juridical penalties, and second, infamy was created by widespread public knowledge, “not through statutory offense, the declaration of a judge, or the performance of an infamous act.”42 Public knowledge in effect substituted for eyewitness testimony. “Infamy of fact” created a juridical condition without the action of a court or the sentence of a judge. The profound effect this had on the prosecution of individuals, particularly those accused of heresy, has long been recognized. Less well understood are the effects which it had on the status and social labelling of Jews.43 Peter the Chanter, a prominent theologian, ecclesiastical arbitrator and judge delegate, who attended Lateran III, described the proceedings over the new usury decree. His comments illustrate both how “infamy of fact” provided judgment without court action and the limits of this mechanism: When those at the council asked, “who and what sort should be punished by the sentence given,” the response of one prelate was “only the notorious ones.” And when the question was put forward, “who is to be considered notorious,” it was said, “Whoever publicly admits to be usurers, or those who indicate this by some designated sign, for example, those who publicize their willingness to lend money by [hanging] a money-​bag from the top of a pole.”44

By targeting usurers who publicly proclaimed their profession, the canonical legislation could be applied quickly and clearly by the clergy. No court needed to determine that an individual was a notorious usurer: it was public knowledge. But the use of “infamy 41 Peters, “Wounded Names: The Medieval Doctrine of Infamy,” 67. 42 Peters, “Wounded Names: The Medieval Doctrine of Infamy,” 69.

43 The role of “infamia facti” in the construction of Jews as usurers has been discussed by Giacomo Todeschini, “The Incivility of Judas: ‘Manifest Usury’ as a Metaphor for the ‘Infamy of Fact’ (infamia facti),” in Money, Morality, and Culture in Late Medieval and Early Modern Europe, ed. Juliann M. Vitullo and Diane Wolfthal (Farnham: Ashgate, 2010), 33–​52.

44 Peter the Chanter, Verbum adbreviatum textus conflatus, ed. Monique Boutry, CCCM 196 (Turnhout: Brepols, 2004), 325–​26; and his Verbum adbreviatum textus prior, ed. Monique Boutry, CCCM 196A (Turnhout: Brepols, 2012), 293.

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of fact” also limited a more rigorous prosecution of lay Christian usury. As a radical reformer, Peter the Chanter railed against the “shameful prelates of our time” who used “infamy of fact” to undercut Pope Alexander III’s decree which was intended to discipline all forms of Christian usury, not just the professionals who advertised their service in the market place. He bitterly commented on the proceedings described above: “And, so, it is that this decree is blown away; and by this means, meaning is turned on its head.”45 Peter the Chanter’s comments give us a rare insight, too, into the construction of Jews as usurers ca. 1190. A fair number of ecclesiastical princes and prelates, he complains, were retaining usurers at their courts as chamberlains. Worse still, these “moneybags” and “horseleeches” were promoting their sons to positions in the church with money made through usury. “Such ones,” he bemoans, “even have adopted the name of Jews!”46 He continues his comments on the label of Jew: For, princes who protect them do not allow them to be accused of any crime, saying, “Such ones are our Jews.” But, on the contrary, they are worse than Jews! Because a Jew, according to the prescription of the law, shall not lend to his brother (Deut. 23), but only to [one who is] a stranger from the promise [to Israel]. But these, however, lend both to those closest [to them, i.e. Christians] and to foreigners, contrary to the precepts of the Lord.47

The label of “our Jews” removes the “horseleeches” from the jurisdiction of canon law. Religious difference, or deviance, carries with it immediate legal consequences, as does “infamy of fact.” Peter the Chanter, like Bernard of Clairvaux, pushes back against the appropriation of the category of “Jew” by deploying the rabbinic interpretation of Deut. 23—​these Judaizing Christians act worse than Jews. There is no direct condemnation of Jewish usury here, but the label “Jew,” like “notorious usurer,” is a coin with two sides: it carries with it immediate, detrimental status of “usurer” and yet resists a broader, more sweeping attack on the practice of usury. If the dissonance between rabbinic and canonical interpretations of Deuteronomy 23 has not yet made all Jews infamous by virtue of being Jewish, it shortly will.

Deviance Controlled: Usury Regulated (ca. 1200–​1270)

At the turn of the thirteenth century, the school of Peter the Chanter (d. 1197) stood at the forefront of the campaign against usury.48 Peter the Chanter himself had led the development of a new practical theology aimed at the moral reform of Christian life through preaching and penance. His students Robert de Courçon and Thomas de 45 Peter the Chanter, Verbum adbreviatum textus prior, 293.

46 Peter the Chanter, Verbum adbreviatum textus conflatus, 324–​25; Verbum adbreviatum textus prior, 292. 47 Peter the Chanter, Verbum adbreviatum textus prior, 292.

48 John Baldwin, Masters, Princes, and Merchants: The Social Views of Peter the Chanter and His Circle, 2 vols. (Princeton: Princeton University Press, 1970), 1:3–​59, 261–​311.

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Chobham composed extensive tractates on usury as part of their summae on penance, which have been considered the first substantial medieval works in economic thought.49 In these works, the concept of usury was transformed from “a desire for more” to a specific type of loan contract found in Roman law, the mutuum. This simultaneously allowed for the legitimation of other forms of contract and credit, such as the investment partnership (commenda).50 Many in the Chanter’s circle were appointed to positions of ecclesiastical power as papal legates, bishops, and cardinals, through one of their own, Pope Innocent III. A preaching campaign deploying churchmen from this network was launched by Innocent III for the linked purposes of crusade and moral reform.51 Usury was one of the key issues on which these preachers and theological reformers focused. While Christian usury remained the main focus, growing references to Jewish usury appear in theological writings and in papal bulls and conciliar legislation. Innocent III, in the early years of his reign, urged kings and nobles to regulate Jewish usury, and some monarchs put in place systems of royal surveillance over Jews’ loans to Christians.52 In calls for the Fourth and Fifth Crusades, Innocent III remitted interest on crusaders’ loans from Jews, as well as from other Christians.53 And during Innocent III’s pontificate, the first canonical rulings against Jewish usury were issued. The first canon to rule on Jewish usury was a local council at Paris (1200), not surprisingly, the centre of theological study and the school of Peter the Chanter. The canon sought to radically break all commercial exchange between Christians and Jews, not simply usurious ones. Priests shall prohibit publicly to the laity under anathema to do commerce with Jews, to receive money by loan (mutuo) from them for the sake of usury [or] anything, to sell

49 Odd Langholm, Economics in the Medieval Schools: Wealth, Exchange, Value, Money and Usury According to the Paris Theological Tradition (Leiden: Brill, 1992), 37–​62, especially 37. 50 For the thirteen types of permitted profit, see T. P. McLaughlin, “The Teaching of the Canonists on Usury,” Mediaeval Studies 1 (1939): 81–​147 and 2 (1940): 1–​22.

51 Jessalyn Bird, “Reform or Crusade? Anti-​Usury and Crusade Preaching during the Pontificate of Innocent III,” in Pope Innocent III and his World, ed. John Moore and Brenda Bolton (Aldershot: Ashgate, 1999), 165–​85.

52 Rebecca Rist, “The Power of the Purse: Usury, Jews, and Crusaders, 1198–​1245,” in Aspects of Power and Authority in the Middle Ages, ed. Brenda Bolton and Christine Meek (Turnhout: Brepols, 2007), 197–​213; Kenneth Stow, “Papal and Royal Attitudes toward Jewish Lending in the Thirteenth Century,” AJS Review 6 (1981): 161–​84; Robert Chazan, “Pope Innocent III and the Jews,” in Pope Innocent III and his World, ed. John Moore and Brenda Bolton (Aldershot: Ashgate, 1999), 187–​204; Solomon Grayzel, The Church and the Jews in the XIIIth Century: A Study of their Relations During the Years 1198–​1254, rev. 2nd ed., 2 vols. (New York:Hermon, 1966), 1:104–​9, 126–​31.

53 Jessalynn Bird, Edward Peters, and James Powell, eds., Crusade and Christendom: Annotated Documents in Translation from Innocent III to the Fall of Acre, 1187–​1291 (Philadelphia: University of Pennsylvania Press, 2013), 28–​37, 107–​12, 124–​29; Tanner, ed., Decrees of the Ecumenical Councils, 1:267–​71.

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to them or to give them by loan, or from them to acquire; where there is a disparity of worship, there ought to be no community of spirit.54

This canon notably is directed at Christian lay persons, not Jews. But within a few years, Robert de Courçon would argue directly against the rabbinic interpretation of Deuteronomy 23, writing, “today Jews ought not lend to us who are to them strangers. For in Exodus, If a stranger is delayed among you, do not oppress him with usury. Remember indeed that you were once strangers in the land of Egypt.”55 The anxiety over usury—​Christian and Jewish—​rose markedly at the turn of the century. Christian economic thought became more developed. Robert de Courçon’s tract on usury (ca. 1204–​1208) illustrates why usury—​Christian and Jewish—​threatens the social fabric. He discusses two cases which each make use of an invented etymology for the word mutuum (loan). In the first case, a prince has collected taxes and dues from usurers and had this bullion made into new coins. These coins are then circulated in the market among merchants and moneychangers in order to make a profit. It is known with certainty that this coinage was violently stolen from four towns, which have petitioned the lord to restore it. Is it lawful, Robert de Courçon asks, to make a contract in this market by means of this money? No. For ownership passes from one person to another through a contract of loan, of purchase, or of sale, or through a freely given gift. But this is not the case when usury is involved. But by none of these means is he who holds this money able to transfer the ownership of it to you, because he is not able to sell [it, that is, he cannot] say: “I give you a mutuum (loan) from this money; I make mine (meo) yours (tuum),” nor can he rightly say: “This is mine.” Likewise, when it is not his, he is not able to transfer that to you in any type of contract or by any kind of gift, when the rightful owner protests.56

If this is done, he concludes, “then all market contracts will cease.” Robert de Courçon next discusses a parallel case involving “a Jew who has nothing except what he has from usury.” This presupposition will appear as an important logical assumption in later thirteenth-​century policies on Jews. As with Christian usurers, Jewish usurers cannot transfer property lawfully: When for instance the Jew says to someone to whom he is going to make a loan: “I give to you a mutuum, that is, I make mine yours,” he himself speaks falsely, because it is another’s property which he gives in a loan or in a contract or in a gift; and you know this with certainty; therefore knowing [this] and being prudent, you ought not receive from a Jew any kind of loan either in a contract or as a gift.57

Usury renders market contracts invalid, and defective acquisition undermines the social fabric of the market. The principal difference between Jewish usury and Christian is 54 Grayzel, The Church and the Jews 1198–​1254, 300–​301, citing Exodus 12:49. Translation my own. 55 Robert de Courçon, Le Traité “De usura,” ed. Georges Lefèvre (Lille: Siège de l’Universitè, 1902), 3, 5. He is loosely quoting Ex. 22:25 and 22:21. 56 Robert de Courçon, De usura, 51. 57 Robert de Courçon, De usura, 53.

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that in the first the theologian speaks of Jews collectively as usurers and in the second of individual, Christian usurers. Although Robert de Courçon does not assume that Jews generally have nothing except what has been acquired from usury, the Parisian legislation of 1200 made under Odo de Sully only makes sense with this kind of assumption. For Innocent III, Jewish usury was a particular affront, and crusading provides important context explaining why. Regarded as the enemies of Christ and Christians, Jews were thought to gain dangerous economic power over the Church, its crusaders, and ultimately all Christians. The relationship of Jewish lender to Christian borrower inverted the “proper relationship” between the “slave” and the “free,” established in Augustine’s doctrine. Moreover, Jewish lending injured Church property and power, which itself was identified with the body of Christ. Innocent III wrote to Philip Augustus in 1205: the Jewish Dispersion should live … under Christian princes … nevertheless, Princes who prefer the sons of the crucifiers … to the heirs of the Crucified Christ, and who prefer the Jewish slavery to the freedom of those whom the Son freed are exceedingly offensive in the eyes of God. … Know then that the news has reached us … that in the French kingdom the Jews have become so insolent that by means of their vicious usury, even usury on usury, they appropriate ecclesiastical goods and Christian possessions.58

Jewish usury was not disassociated from other “Jewish outrages.” Innocent III complained that Jews have Christian servants and nurses. Jewish testimony and documents are given preference over Christian witnesses in court. Jews have built a new synagogue at Sens that towers over the church, where they pray “with great shouting.” Jews blaspheme God’s name and publicly insult Christians saying that Christians “believe in a peasant who had been hung by the Jewish people.” Jews are receivers of stolen goods and murderers of those housing them. In conclusion, Innocent III exhorts Philip Augustus: Lest through them the name of God be blasphemed, and Christian liberty become less than Jewish servitude, we admonish the Royal Serenity and exhort [you] in the Lord, and grant [you] the remission of sins, that you restrain the Jews from their presumptions in these and similar matters, that you try to remove from the French Kingdom abuses of this sort.59

By promising remission of sins—​a standard crusader privilege—​Innocent III equates action against Jews with a crusade, a supposition strengthened by the fact that the concluding lines tack on a charge “to remove heretics from the French Kingdom.” A year and a half after Innocent III’s letter of 1205, Philip Augustus made the first ordinance on Jewish loans, which established a rate of interest, limited compound interest, and set up a new system of seals on Jewish loans.60 (The royal supervision 58 Grayzel, The Church and the Jews, 1:104–​9, at 106–​7. Emphasis is mine.

59 Grayzel, The Church and the Jews, 1:108–​9. I have altered the translation.

60 Henri-​François Delaborde, ed., Recueil des actes de Philippe Auguste, 6 vols. (Paris: Imprimerie nationale, 1916–​1979), 2:549–​51; translated by Robert Chazan, in Church, State, and Jew in the Middle Ages (New York: Behrman House, 1980), 206–​7.

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of Jewish debts must have begun between 1198, when Jews were readmitted to the lands of the French royal domain, and 1204, when the order for “new seals” was issued.) Philip Augustus also addressed Innocent III’s concerns over Jews receiving stolen goods, church vessels and ornaments as pawns, and church lands as gages.61 The establishment of the Capetian system of seals was roughly contemporaneous with the establishment of the archae under Richard I in England in 1194.62 Neither the English loan chests nor the French seals were effective tools for a king to exploit Jewish loans.63 As Robert C. Stacey has recently argued for the archae in England, the seals would have offered little or no economic advantage to the king, only protection to the borrower.64 (Only later, when the debts were enrolled, could the rolls have been used as a basis for taxation or as a means for seizing unpaid taxes. Even then, Stacey regards the loan chests as an ineffective system for exploitation.) Philip Augustus further refined the system regulating Jewish loans in a letter addressed to all bailiffs in the royal domain and in Normandy.65 Dating the document is difficult, but if it dates to around 1212–​1213, as some historians suggest, it would be contemporaneous with Robert of Courçon’s attack on usury in northern France undertaken in conjunction with preaching the Fifth Crusade. The document orders Philip Augustus’s bailiffs to appoint two lawful men as keepers of the seal, who would seal all debts between Christians and Jews worth sixty shillings or more, and retain a record for the king’s use. Presumably, Christian usurers were handled effectively by ecclesiastical courts. By tying the success of the crusades to the moral reform of Christendom, the Chanter’s circle effectually sacralized Christian Europe. The first step in this direction had been taken in the mid-​twelfth century when Pope Eugenius III placed crusader possessions under the Church’s protection. A further step was taken by Innocent III when Jews were forbidden from exacting heavy usury from all Christians, not just crusaders: to protect Christians … so that they will not be excessively oppressed by Jews, we order by synodal decree, that when … Jews extort oppressive and excessive usuries from Christians, associating with Christians shall be denied them, until they shall have made sufficient amends.66

61 Mell, Myth of the Medieval Jewish Moneylender, 2:58–​65.

62 Roger of Hoveden, Chronica magistri Rogri de Houedene, ed. William Stubbs, 4 vols. (London: Longman, 1868–​1871), 3:266–​67; translated in Annals of Roger of Hoveden, trans. Henry T. Riley, 2 vols. (London: Bohn, 1853), 2:338–​39. 63 William Chester Jordan, The French Monarchy and the Jews: From Philip Augustus to the Last Capetians (Philadelphia: University of Pennsylvania Press, 1989), 65; Robert C. Stacey, “The Massacres of 1189–​90 and the Origins of the Jewish Exchequer, 1186–​1226,” in Christians and Jews in Angevin England: The York Massacre of 1190, Narratives and Contexts, ed. Sarah Rees Jones and Sethina Watson (York: York Medieval, 2016), 106–​24, especially 117–​18. 64 Stacey, “Massacres of 1189–​90,” 117–​18.

65 Delaborde, ed., Recueil actes de Philippe Auguste, 4:190–​91; Chazan, Church, State, and Jew, 207–​8. 66 Tanner, ed., Decrees of the Ecumenical Councils, 265. Translation my own.

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Lateran IV justified the novel step of legislating directly on Jewish usury by claiming that success in the campaign against Christian lay usury led to the escalation of Jewish usury: The more Christian religion (religio) is restrained from usurious exactions, that much more oppressive (gravius) in these [exactions] grows the treachery (perfidia) of the Jews, so that in a short time the Jews exhaust the resources of Christians.

Like the letter of Peter of Montboissier, the decree defines Jews as the internal enemy who cunningly extorts and extracts Christian wealth, out of a nefarious intent to harm all things Christian. By 1215 Peter of Montboissier’s ruthless mid-​twelfth-​century perspective had been canonized. His dark fantasy of Jewish desecration of the holy vessels had morphed into the bizarre crime of host desecration by the mid-​thirteenth century. Over the thirteenth century, the legislation on Jewish usury would be reaffirmed and extended.67 Philip Augustus’s successors, Louis VIII (r. 1223–​1226) and Louis IX (r. 1226–​1270), extended and expanded his legislation, making it apply beyond the French royal domain to the French realm as a whole. In 1223, with the assent of the archbishops, bishops, counts, barons, and knights of the realm, Louis VIII forbade future loans incurring usury and forbade enforcing agreements to pay usuries to Jews. In 1228, he introduced the use of chirographs for recording debts within the royal domain, as was practised in England, and prohibited the enforcement of usury. Louis IX, in a council of barons, had his father’s legislation reaffirmed in 1230, prohibited newly contracted debts from being repaid to Jews, and established a three-​year moratorium on old debts. By 1235, Louis IX ordered Jews to make a living by labour or trade. All current loans to Jews were to be repaid to the lord within three years, all future Jewish loans were to be “enrolled,” that is recorded in an administrative record by their lords.68 The new French claims for Jewish serfdom helped make this legislation work. As the papacy in the first quarter of the thirteenth century tentatively began to extend canonical jurisdiction over Jews while encouraging monarchs to implement papal objectives in secular law, secular rulers began to make claims for Jewish serfdom.69 They seem to have adapted to secular rule the theological idea of Jewish servitude. But European leaders, whether secular or sacred, were moved not only by power politics; they deeply believed in the religious program that called for the repression of Judaism and the Jews. Over the thirteenth century, secular rulers’ policies on Jews came to be shaped by the theological category of the Jew imagined as one “who has nothing except what he acquired from usury.” In the late 1230s, years after Louis IX had forbidden Jewish usury, he was haunted by the spectre of monies tainted by usury—​Christian and Jewish. Pope Gregory IX gave him “an out” by directing him to put these funds towards “pious 67 Narbonne (1227), Béziers (1246), Vienna (1267); Albi (1254), Béziers (1255), Montpellier (1258); Liège (1287), Cologne (1287), Wurzburg (1287), Mainz (1310), Bergamo (1311). Mell, Myth of the Medieval Jewish Moneylender, 2:14–​22. 68 Chazan, Church, State, and Jew, 211–​12.

69 Mell, Myth of the Medieval Jewish Moneylender, 1:285–​95.

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causes,” in short, ones connected with crusading.70 In 1270, Margaret of Constantinople, Countess of Flanders, sought Thomas Aquinas’s guidance on whether it was permissible to tax Jews in her realm. Aquinas replied, yes, on the basis both of the medieval Church’s Augustinian doctrine and the political ideology of Jewish serfdom: “the Jews because of their guilt are bound in slavery in perpetuity, and thus their property belongs to the earthly lord to take as his own. Still this servitude should be moderated” so that Jews can survive.71 Aquinas surmised, however, that the real cause of her doubt was the situation envisioned by Robert de Courçon where Jews seem “to have nothing but what they have acquired through the depravity of usuries (usurariam pravitatem).” Aquinas proposed that if restitution is impossible, the ruler could use the money for pious purposes “or even for the common benefit (communem utilitatem) of the land, if poverty threatens it or utility demands it.” Aquinas used here a new economic concept, the “common good,” which would play a decisive role in the third phase of the Jewish usurer. The economic implications of the common good were explored by the new mendicant orders of Franciscans and Dominicans (Aquinas belonged to the latter), whose commitment to voluntary poverty led to innovative thinking about ownership, property use, and communal wealth. These same religious orders were those who preached to the laity, prosecuted heretics, and pursued knowledge of Judaism and Islam in their efforts to convert the infidel. The Augustinian doctrine of tolerance for the practice of Judaism within Christian Europe was undermined by these friars. Rabbinic Judaism with the Talmud at its core was attacked as a perversion of biblical Judaism, as perfidy, blasphemy, and a close equivalent to Christian heresy. Jews and Judaism were attacked in public disputations. Cart loads of Talmuds were burned, and the eradication of Judaism through conversion became a goal, supplanting Augustine’s vision of a subjugated, but protected Judaism.72

Deviance Eradicated: Expelling Usurers (ca.1270–​1310)

Over the thirteenth century, pressure on Christian usurers increased. Councils stiffened requirements for restitution, made excommunication public, denied the validity of usurers’ wills, and refused Christian burial. Not only clergy were forbidden to minister to usurers, but merchants, clerics, notaries, attorneys, landlords, and judges were 70 Michael Lower, The Tunis Crusade of 1270: A Mediterranean History (Oxford: Oxford University Press, 2018), 157.

71 Thomas Aquinas, “De regimine Iudaeorum (Epistola ad ducissam Brabantiae),” in Sancti Thomae de Aquino Opera Omnia 42, ed. H.-​F. Dondaine (Rome: Editori di San Tommaso, 1979), 357–​ 78, at 374–​78. On the identification of the addressee, see Leonard E. Boyle, “Thomas Aquinas and the Duchess of Brabant,” in Proceedings of the Patristic, Mediaeval, and Renaissance Conference 8 (1983): 25–​35; reprinted in Facing History: A Different Thomas Aquinas (Turnhout: Brepols, 2000), 107–​21.

72 Jeremy Cohen, The Friars and the Jews: The Evolution of Medieval Anti-​Judaism (Ithaca: Cornell University Press, 1982).

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forbidden to serve them. Even wives, heirs, and servants of usurers were to be penalized. The second general Council of Lyons (1274) ordered the expulsion of infamous, foreign usurers in the canon known by its opening words “the abyss of usury.”73 [No communal institution or individual] may permit foreigners and others not originating from their territories who publicly lend money, or wish to do so, to rent houses, or even to have rented [houses] or otherwise to dwell in their territories for this [purpose]; rather they shall expel all manifest usurers from their territories within three months.74

In 1311, at the Council of Vienne, anyone who claimed that usury was not a sin was declared a heretic.75 Expulsion developed into a central tool for social control in medieval Europe over the later twelfth and thirteenth centuries. Originating with political expulsions of foreigners and foreign merchants-​bankers, it was used in the thirteenth to the fifteenth centuries against diverse groups including lepers, prostitutes, the poor, and Jews.76 The first wave of large-​scale territorial expulsions of Jews began fifteen years after Lyons II. But in a reversal of the papal-​royal dynamic at the turn of the thirteenth century, now kings and counts advised by Franciscans and Dominicans sought to remove Judaism and Jews from their territories through expulsion, if not conversion. From the late 1280s into the 1310s, large-​scale expulsions of Jews were conducted in French and English regions. Edward I of England expelled the Jews from his French province of Gascony in 1287 and from England in 1290. Charles II of Naples expelled the Jews from his French territories of Maine and Anjou in 1289, shortly after Edward I and Pope Nicholas IV arranged Charles’s release from imprisonment by Peter III of Aragon. The Count of Nevers expelled the Jews in 1294. Philip IV expelled the Jews from the French royal domain in 1306, though this expulsion would only become final in 1394 under Charles VI. Spain and Portugal would expel their Jewish populations in 1492 and 1496, with the Portuguese expulsion commuted to forced conversion in 1497. Provence, now part of France, would expel its Jewish population in 1501.77 Throughout the fourteenth and fifteenth centuries expulsions were carried out on a local scale in Central Europe and the Italian Peninsula. From the late fifteenth century, expulsions from the centre of a town began to be paired with ghettoizations as in Frankfurt (1462) and Venice (1516). Jewish usury regularly figured among the justifications for expulsion, not as a pure economic category, but rather as a manifestation of Jewish enmity and deviance 73 Rowan William Dorin, “Banishing Usury: The Expulsion of Foreign Moneylenders in Medieval Europe, 1200–​1450,” PhD diss., Harvard University, 2015. 74 Tanner, ed., Decrees of the Ecumenical Councils, 1:329. Translation my own. 75 Tanner, ed., Decrees of the Ecumenical Councils, 1:384–​85.

76 Rowan Dorin, No Return: Jews, Christian Usurers, and the Spread of Mass Expulsion in Medieval Europe (Princeton: Princeton University, 2023). 77 For references, see my Myth of the Medieval Jewish Moneylender, 2:74–​79. There were, also, a spate of local expulsions from 1230s–​1270s, and some early outliers in the late twelfth century.

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which developed in crusading ideology. The Anjou and Maine order—​our oldest full expulsion document—​describes Jews as the “enemies of the life-​giving Cross and of all Christianity,” perfidiously subverting Christian truth, responsible for “crimes odious to God” and “abhorrent to Christianity,” who despoil Christians “of their movable and immovable goods by their devious deceits and by the endless abyss of usury.”78 The language here tellingly evokes the expulsion of Christian usurers from Lyons II, and in fact, Charles incorporates Lyons II later in the proclamation, expelling “all Lombards, Cahorsins, and other foreigners who engage in public usury without public contracts and are properly considered usurers.” However, Jews are not foreigners, nor expelled principally on account of usury, but because Judaism is deemed deviant. Charles of Anjou promises that no Jew or Jewess shall be resettled “whether he engages in usury or not.” Deeply imbued with crusading ideology, Charles II sees it as his “responsibility to purge the territories” of evil. His act is a religious one: “we, pierced by the arrow of compassion, have consulted … with the reverend father the bishop and with many clerics.” He acts “with the assent of God.” “Exhibiting zeal for the life-​giving Cross” and “the honour of God,” he expelled the Jews. Edward I, while recovering from illness in Gascony, made an oath to undertake a new crusade and ordered the expulsion of Gascon Jewry in 1287.79 In England, he had prohibited Jewish usury in 1275 when he returned from the Tunis crusade. Now he claimed that Anglo-​Jews cunningly invented a new kind of usury, which justified their expulsion as traitors.80 In the third year of our reign, We, moved by solicitude for the honour of God and the wellbeing of the people of our realm, did ordain and decree that no Jew should thenceforth lend to any Christian at usury … and whereas the said Jews did thereafter wickedly conspire and contrive a new species of usury … to the abasement of our said people … We, in requital of their crimes and for the honour of the Crucified, have banished them [from] our realm as traitors.81

Edward I voices a similar theological ideology to that of Charles II of Naples: Jews as killers of Christ, Jews as enemies of Christ and Christians, Jewish usury as a means of injuring Christians and dishonouring God. By expelling their Jewish subjects, these rulers went beyond the bounds of the Augustinian doctrine—​something no pope ever did (or will do). They criminalized Jews by coupling the traditional emphasis on Jewish servitude as punishment for killing Christ with claims of usury exacted in defiance of royal decrees. These expulsions were first and foremost acts of royal piety. 78 Chazan, Church, State, and Jew, 314–​17.

79 Robin R. Mundill, England’s Jewish Solution: Experiment and Expulsion, 1262–​ 1290 (Cambridge: Cambridge University Press, 1998), 269–​70. 80 Mundill, England’s Jewish Solution, 108–​45.

81 J. M. Rigg, Select Pleas, Starrs, and Other Records from the Rolls of the Exchequer of the Jews, A.D. 1220–​1284 (London: Quaritch, 1902), xli.

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In 1291, Philip IV expelled Jews newly arrived from England and renewed his father’s order expelling Jews from villages and small towns. In 1306, he expelled the Jews from all royal domains.82 Although we do not have Philip IV’s expulsion order, a clue to the motives behind the expulsion may be found in his 1299 decree instituting an inquest by royal justices into the so-​called blasphemy and maleficence of Jews.83 He charged that Jews that were inciting Christians to “heretical depravity” and by their “great cunning (astuciis), deceiving” them and “luring them with gifts and promises.” Even more, with “their wicked hands” they dared to “handle the sacred body of Christ and to blasphemy other sacraments of our faith.” They receive and hide fugitive heretics, they build new synagogues in which their loud voices disturb ecclesiastical offices, and they teach the “hateful book called Talmud, containing innumerable blasphemies about the glorious Virgin Mary,” to the degradation of the Christian faith. The ecclesiastical anti-​Judaic program has become the subject of royal justice administered by secular judges. The subsequent expulsion must have been in part effected by charges of blasphemy such as these.84 These kings and counts, Charles of Anjou, Edward I of England, Louis I Count of Nevers, and Philip IV, assumed the mantle of a Christian king, took up the ecclesiastical anti-​Judaic program, applied it to their subject Jews, and ultimately went beyond the strict bounds of ecclesiastical doctrine in expelling their Jewish populations. The anti-​ Judaism program shifted over the thirteenth century from a program led by the papacy in concert with the Parisian theologians to one led by the kings and counts in western Europe advised by Franciscan and Dominicans. This change occurred in the 1280s and 1290s because of the confluence of political contests between rulers, disputes between secular and mendicant masters at the University of Paris, and fractious struggles within the Franciscan order. Out of these contests emerged Franciscan definitions of rights and ownership grounded in “necessary use” and the “common good.”85 The “common good” in particular functioned as a legitimating criterion for political power, royal and ecclesiastical, even when pitted against one another. Because the common good legitimated public credit institutions, as well as political power, public interest (utilitas publica and utilitas populi) came to stand in contrast to personal gain—​the first civic and Christian, the latter individual and outside the community. This new concept of an economic common good was built on the back of Augustine’s Christianized version of the Ciceronian concept of common good which melded Roman pietas with biblical caritas (charity). Political legitimacy for Augustine was “intrinsically connected to ‘true’ Christian justice, to the ‘righteousness (iustitia)’ which can only be achieved through a correct relation towards God and, more 82 Chazan, Medieval Jewry, 183, 187–​188.

83 Gustave Saige, Les Juifs du Languedoc antèrieurement au XIVe siècle (Paris, 1881), 235. 84 Mell, Myth of the Medieval Jewish Moneylender, 2:79.

85 Matthew Kempshall, The Common Good in Late Medieval Political Thought (Oxford: Clarendon Press, 1999), 6–​25, at 7.

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significantly, through a correct relation towards His Church and His Vicar on earth.”86 In the Italian civic centres was born the duality of the Christian merchant whose circulation of wealth was seen as aiding the common good versus the Jewish moneylender whose lending was seen as despoiling the Christian community in the interests of private greed. The image of the deviant Jewish usurer did not end with the mass expulsions in western Europe. In medieval Italy, where mass expulsions did not occur due to its fragmented political territories, citizenship and the economic common good were linked with a community of believers. “Franciscans presented the market as a system of relationships based on reciprocal trust and credibility.”87 The commerce of merchants, who were the social elite ruling the civic body and, as right-​believing Christians, joined to the church and lay community through membership in Christ’s body, was a social and economic good: it put money into circulation, and thereby created wealth for the civic community. The social standing of the merchant guaranteed his credibility. Counterposed to the just merchants who were members of the civic community, were the outsiders—​ Jews, usurers and foreigners, hoarders, heretics and the poor—​who were not seen as part of the Christian market, either because they were not citizens, not believers, or not wealthy enough to contribute to the common good. The distinction between the usurer and the merchant-​banker was now codified as a distinction “between individuals outside of the economic community of Christians and the groups forming this civic community.”88 The transformations of the Jewish usurer will continue, but we shall leave our story here, where the Church campaign against Christian usury has evolved into a binary split between the Jewish moneylender and the Christian merchant—​between Shakespeare’s Shylock and Antonio.

Conclusion

Over 150 years, the categories of Christian usurers and Jewish usury emerged and developed as prominent medieval markers of deviance. A central part of this story was the way in which the deviant categories of Jewishness and usury, originally separate, were made to resonate with each other and amplify the other’s degree of deviance. The coupling of Jews and usury, begun as a strategy for the social control of deviant Christians in the twelfth century, became a cause for eradicating Jews and Judaism through expulsion by the fourteenth. By the sixteenth century, the civic Christian merchant stood opposed to the Jewish usurer (and the foreign usurer). I have argued that the sociological theory of labelling provides a crucial instrument for understanding the creation of the category of deviance called “usurer” and “usury,” but the dynamic historical changes in the labels themselves require deeper historical 86 Kempshall, The Common Good, 20.

87 Giacomo Todeschini, Franciscan Wealth: From Voluntary Poverty to Market Society, trans. Donatella Melucci, ed. Michael F. Cusato, Jean François Godet-​Calogeras, and Daria Mitchell (Bonaventure, NY: Franciscan Institute, 2009), 105–​96, at 152–​53. 88 Todeschini, Franciscan Wealth, 155.

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explanations. I have proposed that the fundamental causes lie in a series of Christian religious movements grouped under the headings of “eleventh-​century reform” and “medieval reformation”—​not in Jewish economic activities or European economic change. To summarize, the category of deviance known as “usury” originated in the twelfth century’s chapter of the (so-​called) eleventh-​century reform movement, which was centred in the papacy. That movement aimed at (1) freeing the church, and its material property, from lay influence, (2) reforming the Christian clergy and laity, and (3) granting the Roman church precedence over all Christian communities by means of councils and crusades. The usury campaign aided the first goal, and became tied to crusading, when crusader property was taken under the wing of the church. The later twelfth century saw a surge in lay religiosity accompanied by the papacy’s heightened persecution of heresy. This new religiosity spurred and was spurred by the practical theological movement around Peter the Chanter to focus on penance and reform among both laity and clergy. Through this theological school, the first extensive tracts in economic thought were written as an outcome of concern over usury. This line of intellectual thought which continued through the thirteenth, fourteenth, and fifteenth centuries legitimized numerous forms of credit and profit while defining and condemning usury. Under the leadership of Innocent III, the reform of European Christians became tightly bound to the success of the crusades. With Innocent III, all Christians’ property was treated like that of crusaders vis-​à-​vis European Jews. The Christian usury campaign was extended to Jews first through the papal pressure on secular rulers to regulate Jewish loans to Christians, then through the careful stretching of canonical jurisdiction to Jewish issues which impacted Christian populations. The position of Judaism and Jews crumbled over the century between 1140 and 1240 through a combination of endemic crusading, which projected an image of Jews as enemies of Christ, Christians, and the Christian Church; the development of fantastical accusations of Jewish ritual murder, host desecration, and blood libel; and attacks on Rabbinic Judaism as a Jewish heresy by the friars. From the later thirteenth through the fifteenth century, Franciscans and Dominicans developed Christian economic thought as a consequence of their commitment to the apostolic life of preaching and poverty. Out of monastic models of communal ownership, the friars developed notions of the common good which legitimated not only public credit instruments but Christian merchant-​bankers as contributors to the wealth of the Christian commune. As a necessary corollary, the infidel was demarcated as unfaithful in economic matters, as in religious beliefs. The Jewish usurer so labelled in the twelfth century because of a dissonance between rabbinic and canonical interpretation of Deuteronomy 23, now became a quintessential characteristic of Jews as obstinate unbelievers in Christian truth. From the late thirteenth century into the sixteenth, Jewish communities were expelled from kingdoms, counties, and towns across western and central Europe. The Augustinian doctrine which defended the continued existence of Judaism, while defining Jews as enemies of the Church subjugated to Christians, was transformed into movements to eradicate Judaism and Jews through conversion and expulsion. The Church campaign against Christian usury concluded with the acceptance of the Christian merchant and the denunciation of the Jewish usurer. The modern stereotype was born.

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Select Secondary Sources Baldwin, John. Masters, Princes, and Merchants: The Social Views of Peter the Chanter and His Circle. 2 vols. Princeton: Princeton University Press, 1970. Bird, Jessalyn, Edward Peters, and James Powell, eds. Crusade and Christendom: Annotated Documents in Translation from Innocent III to the Fall of Acre, 1187–​1291. Philadelphia: University of Pennsylvania Press, 2013. Chazan, Robert. Church, State, and Jew in the Middle Ages. New York: Behrman House, 1980. Cohen, Jeremy. Living Letters of the Law: Ideas of the Jew in Medieval Christianity. Berkeley: University of California Press, 1999. Grayzel, Solomon. The Church and the Jews in the XIIIth Century. 2 vols. New York: Jewish Theological Seminary in America. Detroit: Wayne State University Press, 1966. Jordan, William Chester. The French Monarchy and the Jews: From Philip Augustus to the Last Capetians. Philadelphia: University of Pennsylvania Press, 1989. Kempshall, Matthew. The Common Good in Late Medieval Political Thought. Oxford: Clarendon Press, 1999. Langholm, Odd. Economics in the Medieval Schools: Wealth, Exchange, Value, Money and Usury According to the Paris Theological Tradition. Leiden: Brill, 1992. McLaughlin, T. P. “The Teaching of the Canonists on Usury.” Mediaeval Studies 1 (1939): 81–​147. ——. “The Teaching of the Canonists on Usury,” Mediaeval Studies 2 (1940): 1–22. Mell, Julie. Myth of the Medieval Jewish Moneylender. 2 vols. New York: Palgrave Macmillan, 2017–​2018. Mundill, Robin R. England’s Jewish Solution: Experiment and Expulsion, 1262–​ 1290. Cambridge: Cambridge University Press, 1998. Rist, Rebecca. “The Power of the Purse: Usury, Jews, and Crusaders, 1198–​1245.” In Aspects of Power and Authority in the Middle Ages, edited by Brenda Bolton and Christine Meek, 197–​213. Turnhout: Brepols, 2007. Todeschini, Giacomo. Franciscan Wealth: From Voluntary Poverty to Market Society. Saint Bonaventure: Saint Bonaventure University, 2009.

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PART TWO

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INTRODUCTION Hannah Skoda Categories of deviance are so often bound up with articulations of political

power. They work practically to control and manage, but also often draw on political ideologies for their logic. As this section shows, however, political ideologies cannot be disentangled from other normative frameworks: the religious, the moral and ethical, the economic and so on. This part opens with an article by Michael Hope on treason in the Mongol empire. “Treason” of course fails to translate the precise critical concepts. Hope focuses on the idea of bulqa, which encompasses rebellion, chaos, and disorder. This could be caused by the betrayal of oaths, by breaking laws, or by challenging the social hierarchy: in other words, it was at once an offence against individuals, against a political system, and against social order more generally. The importance of avoiding bulqa was underpinned by a sense of the heavenly mandate—​not just an earthly order, but a cosmologically-​ordained order was at stake. The importance of the “great principle” both sustained, and was sustained by, the political ideology of the Mongol empire. Hope explains that order and disorder were articulated in terms of respect for Chinggis Khan’s legacy, the great Khan whose actions had unified the peoples of Inner Asia from 1206. He claimed that he needed to impose order because otherwise things fall apart as with “women who have no husbands; as horses who have no pastures.” The normative force of this legacy in defining deviance was threefold: Chinggis’s edicts were to be respected, his precedents were apparently sacrosanct, and reverence for his family was to underpin political behaviour. Actions which transgressed any of these three could cause bulqa, and were offences of the most heinous kind. The temporal dimension of this is really important: notions of treasonous deviance were rooted in genealogical respect for this founder of the Mongol dynasty. But, as Hope points out, the temporality of legal authority here was more complex, as most of these rules actually pre-​dated Chinggis and originated with the seventh-​century precedents of the Törü. This was a normative system, then, which combined the authority of ancient lore with a strong sense of dynastic loyalty. Indeed, concepts of loyalty and obedience underpinned Mongol notions of treason. Crimes which were punished involved disobedience. Readers might ask whether such stringency arose in part from the requirements of a nomadic empire. Comparison might be sought, for example, with the expanding Malian empire and its “fractious negotiations of power” in the context of uncertain succession and rapidly shifting political forms.1 1 Michael Gomez, African Dominion: A New History of Empire in Early and Medieval West Africa (Princeton: Princeton University Press, 2018), particularly p. 100.

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In the Malian context, judging betrayal and honour was set in relief against strident attempts at legitimation in a religious sense, notably through pilgrimage. Strikingly, Hope shows that this could work both ways. Khans could also violate the “great principle” through entirely self-​serving, corrupt, or irrational behaviour. If they did so, followers could, in some circumstances, licitly rebel. This could produce some surprising outcomes, as the notion of the “great principle” looked different depending on where one was standing. For instance, Hope outlines one case where followers of Chinggis’s former ally-​turned-​enemy tried to hand over their leader: their actions, though, amounted to disobedience, so they were brutally punished. Tensions between respect for hierarchy, and respect for political norms and rules, could produce conflict. The following chapter by Emily Hutchison continues with the theme of treason from a European perspective, focusing on France and England. Here too, treason could look very different depending on one’s perspective. Weighing up the importance of obedience and respect for social order, against the importance of other ideological principles and the wider common good might look somewhat intractable. These were complex categories. Hutchison outlines the brutality and spectacular nature of executions of traitors: these executions made legal categories of deviance visible. One wonders where such theatre was necessary precisely to mask the complexity and tensions thrown up by the category of treason: this was not as clear-​cut as these spectacles tried to pretend. Hutchison outlines a key distinction between the betrayal of one’s lord, which she sees as predominant in older Germanic legal conceptions and actually contractual in nature; and the Roman law emphasis on injury to the dignity of the sovereign and threat to the well-​being of the polis. Treason was a term which could be instrumentalized in the interests of sovereign power: monarchs could claim that an attack on their person was an attack on social order and a wider ideological undermining of trust. But the term could also be weaponized by opponents asking whether monarchs themselves were above the law or could also be accused of treason if failing to act in the best interests of the political community: one might look to late fourteenth-​century England as a powerful example here. Treason in all these iterations revolves around the idea of betrayal. This might involve just words, individual violence, or collective violence. Betrayal mattered so much not just because of its practical implications, but because, without trust, social, political, and economic order are perceived to break down. The stakes were very high indeed, and Hutchison shows a striking triangulation of groups producing these definitions: she outlines the intertwined roles of the people, lawyers, and the king in defining treason. She shows how those involved in potentially treasonous acts defined their own actions in terms which asserted their belief that they were the ones truly protecting the political order; how the language of treason could be used to attack enemies on an interpersonal level; how jurists in theory and then in practice during trials and pardons attempted to delineate the contours of treason; and how kings tried to assert power by defining treason, but were often responding to a sense of fragility. Semantics prove revealing here. Hutchison shows that accusations of treason levelled at “ordinary” people often

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used a whole constellation of terms (sedition, betrayal, rebellion), so that the category would make sense also in an extra-​legal context. Hutchison’s chapter adds a very important gendered dimension to the analysis. It is usually assumed that treason is a male category, and indeed she explores the connections between these kinds of political threats and constructions of masculinity. However, the readers’ attention is drawn to the many occasions on which women were actively involved in contesting political authority. Women also contested the definitions of treason and the boundaries of what was and was not deviant. For example, the “Jacquelines” were women involved in the famous revolt of 1358 in France: as Justine Firnhaber-​Baker has shown, rebels defined themselves as the ones defending the common good and justifiably participating politically.2 Interestingly, it appears that assumptions about women and treason could cut both ways: on the one hand, women had to shout louder to be heard (by contemporaries and by historians); on the other hand, they might use the general sense that they could not possibly be involved in such matters to pass the blame on to others, as did Lady Constance Despenser as Hutchison shows. Treason, then, was a capacious concept, deemed a threat not only to a particular political authority but to political and social order more generally. Rebellions could also be conceived of in such terms. The language of treason and betrayal provided a richly resonant way to condemn rebels. It also provided a language for rebels themselves to articulate their goals and to justify their actions. The next chapter by Nassima Neggaz, on the subject of revolts in the medieval Middle East, explores just how definitions of political betrayal—​treason writ large—​could provide a way for rebels to present themselves as guardians of a just order. But, of course, it also provided a way to condemn rebels as appalling threats to political order and stability. This volume does not include essays on revolts in Europe, but the voluminous historiography on the subject points to similar strategies by rebels presenting themselves as legitimate defenders of the common good. Patrick Lantschner in particular has underlined the polycentricity of medieval towns, so that political authority was located at multiple sites thus both provoking and providing a kind of framework for political participation and protest.3 Indeed revolts have been described as a kind of extension of “normal” political processes.4 Neggaz shows that discussions about the deviance of medieval revolts once again need to be understood as a sort of triangulation between the rebels themselves, the 2 Justine Firnhaber-​Baker, The Jacquerie of 1358: A French Peasants’ Revolt (Oxford: Oxford University Press, 2021), particularly pp. 268–​72. For an analysis of women in English revolts, see Alice Raw, “Gender and Protest in Late Medieval England, c.1400–​c.1532,” The English Historical Review 136, no. 582 (2021): 1148–​63. 3 For example, see the essays in Justine Firnhaber-​Baker and Dirk Schoenaers, The Routledge History Handbook of Medieval Revolt (London: Routledge, 2017); Patrick Lantschner, The Logic of Political Conflict in Medieval Cities (Oxford: Oxford University Press, 2015). 4 Firnhaber-​Baker, “Introduction” in Routledge History, particularly 4–​5.

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Sultans, and the ’ulamā’. All three groups were keen to delineate what was right and wrong about political protest, and drew on the same language and logic to reach radically different conclusions. The stakes were even higher because the whole was underpinned by a sense of the religious rightness or wrongness of the categories and actions. What emerges is a set of very careful delineations and a good deal of ambivalence. Importantly, Neggaz reminds us that the very sources which tell us about the actions of the rebels, notably Arab historians, helped to construct notions of deviance and legitimacy. In many ways, this is resonant with terminology of revolts in Europe, wherein words themselves became a battleground as chroniclers and authorities decried rebels, whilst protestors themselves recast their actions in legitimate language.5 Neggaz outlines the role of classical jurists in drawing careful distinctions between different kinds of rebels, some more deviant than others. Importantly, these jurists often argued that rebels should not simply be killed but their concerns addressed. This was driven both by a concern for political order, and for religious rightness. Jurists drew distinctions between bughā and brigands, arguing that the former deserved to have their concerns taken seriously: political protest was not necessarily an act of betrayal, it could be an important act of political participation. Neggaz’s analysis distinguishes between rebellions which contested the very structures of power, and those which focused more often on economic grievances and remained careful to articulate their loyalty to the sultan. In these latter rebellions, protestors are shown to have chosen carefully how they defined and framed the elites against whom they were protesting: they were delineating categories of deviance very carefully, trying to show that they themselves were the ones defending rightful order. Neggaz shows that the political ideologies underpinning these contested legitimacies were tied to particular political configurations. A key moment was the break-​up of the Abbasid empire from the fifth/​eleventh century to the sixth/​twelfth century. She explains that jurists developed a more capacious sense of when rebellion was allowed following the disintegration of the empire. It was increasingly possible to frame rebels as the guardians of the just order, in a volatile set of political circumstances where it was thought the wrong people could easily come to power. Neggaz explores the ways in which these juridical discussions intersected with the chroniclers’ framing of the behaviour of rebels, and the ways in which rebels themselves presented their actions in ways which could be deemed legitimate. They tried to show their actions to be rooted in their Islamic duty to condemn wrongfulness. The legality of killing a tyrannical official was much debated: different parties contributed to the framing of such events, and interpretations were contested. The notions of social and political order, and Islamic duty mapped onto one another, but produced tensions. That ambivalence comes across not just in the ways in which rebels were talked about juridically, but also in the responses with which they met. 5 Jan Dumolyn and Jelle Haemer, “Takehan, Cokerulle, and Mutemaque: Naming Collective Action in the Later Medieval Low Countries,” in Routledge Handbook, ed. Firnhaber-​Baker, 39–​54.

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Neggaz shows that accusations of heresy could also often be levied against rebels (there is perhaps an interesting comparison here with English attempts to define Lollard heretics as traitors, with the political implications of the Hussite heresy in Bohemia, or with the formal crusade declared against the Stedinger revolt about property rights in Bremen in 1233–​1234).6 This is striking on multiple levels. It shows the overlaying of various normative frameworks. It also bears witness to the degree of ambivalence regarding rebellion. We might expect straightforwardly hardline condemnations, but the need to overdetermine responses by claiming heresy or apostasy indicates a kind of anxiety that rebellion on its own might be insufficient to condemn those involved. Interestingly, the ’ulamā’ fairly often acted as negotiators between rebels and other authorities: this process of negotiation looks very different to the draconian responses in the two articles explicitly treating treason, and implies a far more processual sense of how categories of deviance are formed. Critically, the process reminds us that categories of deviance are bound up not just in expressions of power, but in political participation writ large. As Neggaz reminds us, rebels were exercising their political voices and their bargaining power is often striking. Rebellion and definitions of something like treason were not just about contesting or bolstering power, but about more widespread political participation. Key themes and questions emerge from these three chapters on such very different political configurations. The political ideologies underpinning categories of political deviance prove to have been highly flexible: they were overlaid upon other normative frameworks, so often gaining traction because of their cosmological or theological underpinnings. Most importantly, they were flexible in the sense that they could be turned against those in existing positions of authority. These categories of deviance did not just bolster existing power structures, but often provided the discursive weaponry to those protesting and challenging those structures. All three chapters complicate the notion of treason further by indicating that there were degrees of deviance. In the Islamic context, careful distinctions were made between different kinds of rebels. In the western European context, there were different forms of treason, some more serious than others. Sometimes, it was unclear whether someone had actually been treasonous, or merely spoken drunkenly out of turn. And strikingly, one could sometimes be pardoned for treason. These were not simply crimes which were so heinous that they could never be put right. We so often know about French cases because the pardon letters or letters of remission survive, and we also know that sometimes pardoning a crime like this was actually the most striking demonstration of power. The fact that the ’ulamā’ could negotiate between rebels and authorities also suggests that these were fluid categories. The sense of dialogue underpinning these categories is striking given that all the cases discussed revolve around the twin themes of order and trust. Trust is a quality 6 Ian Forrest’s chapter. Megan Cassidy-​Welch, “The Stedinger Crusade: War, Remembrance, and Absence in Thirteenth-​Century Germany,” Viator 44, no. 2 (2013): 159–​74.

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at the heart of social order: it underpins economic well-​being, it lies at the heart of religious world views, it makes political hierarchy and power possible. Multiple forms of law underpinned these categories, even when claims were being made about a single source (as with Chinggis Khan). Hutchison shows the overlaying of Roman law, Germanic law, customary law, and local understandings, and demonstrates how this was illustrated semantically also. Hope shows that ideas of treason were underpinned by ultimate respect for Chinggis Khan’s legacy, but by also older law codes with their sense of universal authority through timelessness. Neggaz shows various juridical understandings in dialogue one with another. All this sounds terribly serious, and indeed the risks to the social order and to its participants and its critics could not be greater. Nevertheless, it is striking how often little elements of humour are injected into these events and discussions. Hutchison discusses the Duke of Burgundy’s distress that he was being mocked by the “menu peuple” and made the subject of jokes as a traitor. Neggaz points to the use of “dark irony” by some of the Arab historians she discusses. What might humour have to do with categories of deviance? At the very least, humour is a useful reminder that there were cracks and fissures. These were not straightforwardly static categories, but ones which were beset by tension and instrumentalized in the complexities of political life. I have always been struck by the playfulness of medieval European rebels, and the insertion of jokes into protests during which lives were at stake.7 I did not come across any Mongol jokes in Hope’s article (!), but was nonetheless struck by the poeticism of the Mongol oaths. Why be lyrical when a simple statement would have done? Perhaps lyricism indicates a sense of the to-​ing and fro-​ing of life and its irreducibility to simple categories. The second section of this part of the book turns to the idea of political community. If political ideologies generated categories of treasonous deviance, both discursively and in terms of behaviours, then they also often relied upon and drove processes of scapegoating. The construction of categories of deviance is altogether more cynical viewed in this light: the denigration of certain groups as deviant in order to produce a particular vision of political order. Amira Bennison explores the ways in which the Almohad regime constituted a sense of political community by identifying all opposition with apostasy. She shows how these categories shifted and were contested over time: as ever, the categories of deviance cut both ways across time and space. And as Bennison points out, religious and political ideas cannot be disentwined in this period. She begins with the Almoravid crack-​down on ideas which could be defined as deviant, notably with book burnings in 1109 and 1143. The condemnation of al-​Ghazālī’s ideas on personal spiritual development was driven in part by those jurists who felt themselves threatened by his accusation that they were driven by venality. The very notion of how righteousness and wrongfulness 7 See for example, the mock trials held by rebels in Ipswich in 1344, or when rebels in 1381 attached a rabbit to the pillory in St Albans (the sources are edited in Anthony Musson, and Edward Powell, “ ‘Popular’ concepts of law and justice,” in Crime, Law and Society in the Later Middle Ages (Manchester: Manchester University Press, 2013), numbers 2.3 and 2.7 respectively).

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can be distinguished was at stake, with (very broadly speaking) a more mystical and individualized approach pitted against a more legalistic one. This persecution, whilst constructing categories of deviance, also provided a stimulus to those same believers. Various mystical groups appeared, including the Almohads. This group originated with the Berber tribesman Ibn Tūmart, an eschatological Muslim figure who would apparently restore true religion with the help of indigenous Berbers. This was a position integrating law and theology, with a powerful sense that it was the responsibility of individual Muslims to work for their salvation. It was given added impetus by a sense that the whole world was in fact deviant: these were apparently terrible times, and the appearance of Ibn Tūmart answered a desperate spiritual need, making him the mahdī or spiritual guide who would restore the Muslim community. As Bennison points out, the politico-​religious order instituted by the Almohads was so powerful and striking because it admitted no religious difference at all. Whoever held different views was by definition an apostate. To hold different beliefs was to be religiously deviant; to rebel was also to be a criminal. The rhetoric of righteous empire rested on the idea that this was the only true way. But, as Bennison points out, these are contested categories. Other groups can also claim that they represent the only true way, and so they did. The figure of al-​Hādī became a kind of counter mahdī to Ibn Tūmart, and the rebellion which coalesced around him rested on the same kinds of claims to true religious belief and political community. This kind of counter-​narrative is explored powerfully via hagiographical sources. Bennison explores a collection of individual hagiographical biographies collected by Ibn al-​Zayyāt al Tādilī. Communities are shown appealing to holy men, who served as a kind of holy legitimation of violent resistance to the state. The same logic of categories of deviance was being turned against the Almohads. In one extraordinary story, a holy man prays against a corrupt tax official who promptly dies. The story revolves around a re-​appropriation of categories of right and wrong, and produces a sense of religious duty to oppose those who are corrupting the welfare of religio-​political society. The discussion turns more explicitly to the idea of scapegoating with Rebecca Rist’s article about the persecution of Jewish communities in medieval Europe. She provides an overview of the ways in which this persecution developed and the horrible suffering it produced. She points once again to the overlaying of law and religion, using the fifth-​ century Theodosian code, and the writings of St. Paul and later of St. Augustine as foundational texts. However, most interestingly, she shows that the Christian politico-​ religious community which appeared to be constituted through exclusion of a minority group was actually rather unclear on what it was trying to do. A good deal of ambivalence about Jewish communities persisted. Popes were keen to protect Jews, even within a profoundly anti-​Semitic framework. In an Augustinian sense, Jews were apparently necessary reminders of the story of the Crucifixion. Whereas legists were increasingly keen to demonize Jews, partly on the basis of usury, popes such as Gregory I (590–​604) or Alexander II (1061–​1073), were more pragmatic as Rist shows. Nevertheless, certain key moments stand out: the rules and exclusions imposed by the third and fourth Lateran councils of 1179 and 1215 respectively. Rulers displayed a similar ambivalence,

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not least driven by the economic benefits of protecting Jewish communities within their territories. But Rist shows that, if anything, this kind of top-​down ambivalence and mixed-​messaging actually raised the stakes for communal persecution of Jews. The lack of a clear sense of how communities were to interrelate meant that official hostility towards Jews could rapidly translate into violent persecution on the ground. Once again, she shows this process to have been intensified by a crusading context. It is tempting then to draw parallels with further forms of “othering” which emerged in the context of crusades, but Rist importantly warns the readers against conflating processes of “othering” too closely. Certainly, these were societies whose own constitution of community particularly from the late eleventh century seemed to rest upon the exclusion of those deemed different and deviant. This much is clear from many of the chapters in this volume. But to equate all these processes is to deny the particularities of each community and, crucially, it is to deny them agency. Indeed, as Rist shows, Jewish communities responded with profound eloquence to the horrific persecution to which they were subjected. Jewish chroniclers produced articulate accounts, and Jews were encouraged to adopt a range of responses. One might also mention the lyrical and emotional responses explored in the work of Susan Einbinder.8 Victimhood need not imply passivity, and those who suffer deserve to have their voices listened to first. Indeed, in some senses, this was also a battle of ideas. Rist shows Jewish communities fighting back, at least on a discursive level. The burning of the Talmud after a lengthy trial in 1240 was followed by the Disputation of Barcelona in 1263, and the Disputation of Tortosa in 1413–​1414 in Aragon. These episodes of extreme censorship took place in a context of very strong Jewish identity, both social and intellectual. Jews discussed and defended their texts, and Christians debated them. It is telling and dispiriting to find that, as Rist observes, in many cases more knowledge about a religious Other can increase levels of persecution rather than diminish them. The more Christians found out about Jewish thought, the more intense persecution seems to have become. One might ask whether similar observations characterize other forms of censorship. Giletti’s work on censorship of ideas with Christian European universities shows religious authorities responding in part to anxiety about Islamic ideas, all the while being intrigued by the rich intellectual opportunities they afforded.9 As is well known, the assault on the Jews also often took a narrative turn.10 Bizarre conspiracy theories involving ritual murder and blood libels were evoked and provided intensified momentum for the physical persecution of Jewish communities. The development of these stories fed hatreds. Rist shows that these narrative assaults and 8 Susan Einbinder, Beautiful Death: Jewish Poetry and Martyrdom in Medieval France (Princeton: Princeton University Press, 2002), particularly pp. 1–​24. 9 See Giletti’s chapter.

10 See Miri Rubin, Gentile Tales: The Narrative Assault on Late Medieval Jews (New Haven: Yale University Press, 1999).

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processes of scapegoating can nonetheless be analysed whilst paying close attention to Jewish agency. The Jews’ own emphasis on ritual martyrdom was increasingly powerfully articulated: in many instances suicide martyrdom appeared to be a heroic alternative to conversion.11 Rist argues that these kinds of agency and identity fed into Christian fears and hatreds, partly in associating Jews with complex rituals which could then be wilfully misconstrued. It is clearly a very fine line to tread to reconstruct the ways in which whole communities were horrifically persecuted and utterly unjustly condemned as deviant, whilst retaining a sense of the agency of those communities. It is also a fine line to retain a sense of the horror of these processes, whilst acknowledging the kinds of ambivalence which underpinned them. Far less fraught is the kind of thinking about political and social community which underpinned the final chapter in this section. G. Geltner and Gregory Roberts turn to late medieval towns in western Europe to argue that a form of policing emerged in this early period. This is an important corrective to a Foucauldian narrative of later developments of policing of public life. They describe such processes of policing as focused upon “matter out of place,” and demonstrate the ways in which it could focus on behaviours, animals, objects, and buildings.12 The goal of these processes was once again to ensure the well-​being of the community. Policing need not mean a singular police force, but the processes by which life could be regulated systematically and coercively. They describe this phenomenon as mainly urban, though not exclusively so. As such, it represents a vision of political well-​being which is not just about top-​down power but about social community. Much of this focused on issues of healthcare and hygiene. Medieval regulators—​whether the municipality, guilds or charitable institutions—​are shown to have had a sense of what could be done prophylactically to ensure the well-​ being of the citizens collectively. The very physical and spatial sense of regulation here is striking: deviance in its etymological sense, that which is wayward, lies at the heart of the process. Geltner and Roberts outline the ways in which these processes intensified in later medieval Europe, with fifteenth-​century London, late medieval Paris, and the towns and cities of Italy representing key examples. They accompanied the development of more sophisticated statecraft in these polities, but also the intensification of trade and the growth of these towns and cities. Importantly, they claim that this was not just a European phenomenon, but something which can be traced in Islamic cities (mostly via the activity of the charitable institutions, the waqf); in China and Japan; with the Mayans and Aztecs; and in Byzantium. Anxiety about the poor underpinned many of these regulations, and many of these societies expressed a tension between moral concern for the well-​being of the poor, and disgust about their potentially polluting effect. 11 See Simha Goldin, The Ways of Jewish Martyrdom (Turnhout: Brepols, 2015), particularly pp. 341–​48. 12 The phrase is that of Mary Douglas: Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Praeger, 1966), 35.

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The ways in which this tension was worked out provide a striking point of comparison: from Islamic injunctions to charity combined with anxiety about disorder, to medieval European Christian intensification of hostility to beggars and disingenuous attempts to distinguish between the deserving and the undeserving poor.13 Taken together, these chapters continue to provide us with ways to probe the major themes of this volume. How far were political ideologies bolstered by categories of deviance? To what extent was this an entirely cynical process? When can the construction of multiple categories of deviance be seen as part of a single process? Whilst framed in political terms, all these categories of deviance demonstrate the impossibility of teasing apart different discursive frameworks. The religious, the political, and the economic were overlaid one upon another. This was never just about top-​down power: again and again, this seems to be as much about horizontal community as it is about vertical imposition of authority. Particularly dispiritingly, several of the chapters reveal that more knowledge about other groups does not stop people from labelling one another as deviant: indeed, in some cases, as Bennison shows with the Almohads and Rist with Jewish communities, this might stimulate fear. Categories of deviance were never static, but always in process and always contested. It is in these moments of contestation that the agency and subjectivity of those involved tends to be most prominent. No one passively accepts their categorization as deviant. People not only argued back, but turned the labels back on accusers. This provides important insight into the nature of communities and political participation.

Select Secondary Sources Cassidy-​Welch, Megan. “The Stedinger Crusade: War, Remembrance, and Absence in Thirteenth-​Century Germany.” Viator 44, no. 2 (2013): 159–​174. Douglas, Mary. Purity and Danger: An Analysis of Concepts of Pollution and Taboo. New York: Praeger, 1966. Einbinder, Susan. Beautiful Death: Jewish Poetry and Martyrdom in Medieval France. Princeton: Princeton University Press, 2002. Firnhaber-​Baker, Justine. The Jacquerie of 1358: A French Peasants’ Revolt. Oxford: Oxford University Press, 2021. Firnhaber-​Baker, Justine and Schoenaers, Dirk (eds.). The Routledge History Handbook of Medieval Revolt. London: Routledge, 2017. Goldin, Simha. The Ways of Jewish Martyrdom. Turnhout: Brepols, 2015. Gomez, Michael. African Dominion: A New History of Empire in Early and Medieval West Africa. Princeton: Princeton University Press, 2018. 13 See respectively Adam Sabra, Poverty and Charity in Medieval Islam: Mamluk Egypt, 1250–​1517 (Cambridge: Cambridge University Press, 2000), 13 and Robert Jutte, Poverty and Deviance in Early Modern Europe (Cambridge: Cambridge University Press, 1994).

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Jutte, Robert. Poverty and Deviance in Early Modern Europe. Cambridge: Cambridge University Press, 1994. Lantschner, Patrick. The Logic of Political Conflict in Medieval Cities. Oxford: Oxford University Press, 2015. Musson, Anthony, and Edward Powell (eds). Crime, Law and Society in the Later Middle Ages. Manchester: Manchester University Press, 2013. Raw, Alice. “Gender and Protest in Late Medieval England, c.1400–​c.1532,” The English Historical Review 136, no. 582 (2021): 1148–​63. Rubin, Miri. Gentile Tales: The Narrative Assault on Late Medieval Jews. New Haven: Yale University Press, 1999. Sabra, Adam. Poverty and Charity in Medieval Islam: Mamluk Egypt, 1250–​1517. Cambridge: Cambridge University Press, 2000.

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EL AND BULQA: BETWEEN ORDER AND CHAOS IN THE FORMATIVE YEARS OF THE MONGOL EMPIRE (1206–​1259) Michael Hope In 1206 Chinggis Qan unified the previously warring people of eastern Inner Asia to create the “Great Mongol State” (Yeke Mongγol Ulus). By conquering or subduing his rivals, he removed competing sources of loyalty and concentrated political power in his own hands. This centralization of power was praised by observers, both Mongol and foreign alike, who juxtaposed the Chinggisid state, characterized by a stable government and a well-​defined military hierarchy, with the supposedly more volatile and centrifugal tendencies of the earlier aristocratic households (ayimaqs), often referred to as “tribes.” The Persian historian and bureaucrat, Juvaynī, noted that the Mongols of old had been so poor that they viewed metal stirrups as a sign of wealth and nobility, whilst the Secret History of the Mongols—​an anonymous biography of Chinggis Qan, most likely compiled during the reign of his successor Ögödei before undergoing later revision—​ devoted many lines to the lack of leadership on the Inner Asian steppe prior to 1206. The anonymous Chinese history of Chinggis Qan’s early campaigns, Shengwu qingsheng lu (聖武親征錄), which was completed during the reign of Qubilai Qa’an (r. 1260–​1294), characterized those who submitted to Chinggis Qan as “women who have no husbands; as horses who have no pastures.”1 In short, they lived in a state of disorder and poverty, which was only rectified by the creation of a strong government under Chinggis Qan’s leadership. These undoubtedly exaggerated accounts of turmoil amongst the Inner Asian nomads, written well after Chinggis Qan’s rise to power, were surely intended to discourage disloyalty to the new regime. They obliged readers to consider the great power the Mongols enjoyed under Chinggisid rule and to think of any attack against their leadership and laws as a return to the chaos of the past. Indeed, to turn away from the precepts and edicts of Chinggis Qan was considered an attack on the political and social order of the Mongol Empire itself. Those guilty of such crimes were often described as being in a state of bulqa, a term that was initially employed to refer to “rebellious people” (bulqa irgen), but was later glossed in the Persian histories with 1 Histoires des campagnes de Gengis Khan: Cheng-​wou Ts’in-​Tcheng Lou, trans. and annot. Paul Pelliot and Louis Hambis (Leiden: Brill, 1951), 141; ‘Alā al-​Dīn ‘Atā Malik Juvaynī, The History of the World-​Conqueror, trans. John Andrew Boyle, 2 vols. (Manchester: Manchester University Press, 1958), 1:15; Igor de Rachewiltz, The Secret History of the Mongols: A Mongolian Epic Chronicle of the Thirteenth Century, 2 vols. (Leiden: Brill, 2004), 7.

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the Arabic fitna (chaos, disorder). By breaking the laws of Heaven and the precedent of their ancestors, those who attacked the Chinggisid regime were engaging in unnatural, perverse, and ultimately destructive behaviour which caused conventional hierarchies to be replaced by a state of war. Those guilty of bulqa were, therefore, almost always aggressively condemned in the historical sources. The present study will focus on three specific forms of bulqa pertaining to the betrayal of oaths, laws, and social hierarchy to further elucidate Mongolian conceptions of loyalty (el) and treason in the thirteenth century. These three types of loyalty, reinforced by an imperial ideology of heavenly mandate, provided the foundation of the Mongol state. Their nominal purpose was to preserve the Mongol Empire as it had existed during Chinggis Qan’s lifetime (1162/​67–​1227). His proclamations and edicts (jasaq) provided the empire with a legal and administrative framework; his precedents (yosun) enshrined the traditional bonds of a subject to his master and regulated the system of oaths (üge baraldu); whilst his family, the altan uruq, formed an elite aristocracy at the apex of Mongolian society, from which all of its rulers were chosen. Mongols and non-​Mongols alike were expected to submit to these principles of government, since any attack against them represented a serious threat to the integrity of the Mongolian political order. The greatest concentration of information on the theme of bulqa can be found in the Secret History of the Mongols and the texts derived from the Altan Debter. These sources, written in the decades after Chinggis Qan’s death, highlight examples of loyalty and rebellion against the Chinggisid order for didactic purposes, providing Chinggis Qan’s successors and their senior advisors with a clear sense of how acts of bulqa were defined as deviant. This guidance would have played a critical role in informing notions of legitimate political authority in the formative years of the Mongol Empire. It should, however, be noted that the line separating those who were loyal (el) from those who were bulqa was often not clear. Most conflicts within the Mongol Empire saw both sides accuse one another of trampling the legacy of Chinggis Qan and it was only through the triumph of one party that blame was apportioned to the other. This ambiguity regarding the perpetrators of bulqa should not blind us to the existence of standards of loyalty and treason within the Mongol Empire, albeit that punishing them became increasingly difficult as the empire began to fragment after 1259.

The Legacy of Chinggis Qan The Mongol Empire was built upon the charismatic authority of Chinggis Qan, whose unique good fortune and heavenly mandate were thought to have brought the Mongols wealth and success during his lifetime. The Mongol army was commanded by generals hand-​picked from amongst his companions; the bureaucracy of the Mongol Empire was an extension of his household staff; and loyalty to Chinggis Qan provided the basis for Mongol political identity within the new state (ulus). With so much depending on Chinggis Qan, it is no surprise that his followers did everything they could to preserve his political legacy after his death in 1227. The great qan was gone, but his career was studied and debated to produce a rationale for the organization of Mongol society and

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158 Michael Hope government over the subsequent three decades. This Chinggisid legacy was ostensibly derived from Chinggis Qan’s Jasaq (laws/​edicts), his yosun (traditions/​precedent), and his biligs (sayings). These three relics of the golden age of Chinggis Qan’s government were honed by his successors to not only serve as the philosophical foundation of the Mongol Empire, but also as an object of loyalty and veneration in their own right. Violation of these principles would render an offender unfit for power and, perhaps more important, a danger to the Mongol Empire. The most esteemed component of Chinggis Qan’s political legacy was arguably his Great Jasaq (law). There is no extant copy of the Jasaq in its entirety, which makes it very difficult for historians to assess its contents and significance. Nevertheless, it seems that the term “jasaq” was initially applied to the edicts and orders of the ruling qan, which assumed the status of law. For example, in 1202 Chinggis Qan is described “issuing the following edict (jasaq): ‘If we overcome the enemy, we shall not stop for booty. When victory is complete, that booty will surely be ours and we will share it among ourselves.’ ”2 The decree was given to his soldiers before a battle with the Tatar ayimaq, but it was subsequently treated as legislation, which all Mongol armies were expected to abide by in their future campaigns. The same principle applied when Chinggis Qan ordered his soldiers to loosen their horses’ cruppers and avoid exhausting them during the pursuit of the Merkit ayimaq. Though the initial order pertained specifically to the conflict with the Merkit, the author of the Secret History observed that the proclamations of Chinggis Qan were sacrosanct, “thus making this a matter of law (jasaqlaju).”3 Chinggis Qan was the ruler chosen by Heaven to govern the Mongols and his subjects were obliged to obey every one of his decrees as though they were divine law. These individual jasaq were later compiled into a coherent body of law, which gave order to the empire after Chinggis Qan’s death. Hence, we read that Chinggis Qan would often award his most devoted followers with exemption from punishment for disobeying the Jasaq. Such immunity, known as darkan, is almost inconceivable unless we assume that Chinggis Qan’s edicts and proclamations had assumed the character of a common law. Similarly, Chinggis Qan warned his bodyguards (kešikten) of the punishment they would receive in the event that any of them “breaks the law (Jasaq).”4 Those who did 2 De Rachewiltz, Secret History, 76; §153. For the Jasaq, see Denise Aigle, “Loi mongole vs loi Islamique: entre mythe et réalité,” Annales 59, no. 5/​6 (2004): 97–​996; David O. Morgan, “The ‘Great Yâsâ of Chingiz Khân’ and Mongol Law in the Ilkhânate,” Bulletin of the School of Oriental and African Studies 49, no. 1 (1986): 163–​76; “The ‘Great Yasa of Chinggis Khan’ revisited,” in Mongols, Turks and Others, ed. Reuven Amitai and Michal Biran (Leiden: Brill, 2005), 291–​308; Igor de Rachewiltz, “Some Reflections on Činggis Qan’s J̌asaγ,” East Asian History 6 (1993): 91–​104; David Ayalon, “The Great Yāsa of Chingiz Khān. A Re-​Examination,” Studia Islamica 33 (1971): 97–​140; Paul Ratchnevsky, “Die Rechtsverhältnisse bei den Mongolen im 12.–​13. Jahrhundert,” Central Asiatic Journal 31, no. 1–​2 (1987): 64–​110 at 84–​86; George Vernadsky, “The Scope and Contents of Chingis Khan’s Yasa,” Harvard Journal of Asiatic Studies 3 (1938): 337–​60. 3 De Rachewiltz, Secret History, 127; §199.

4 De Rachewiltz, Secret History, 156; §227.

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disobey the law or who betrayed the qan were said to have been “conveyed to the Jasaq” (Pers. Bi yasa risāndan), implying that they had been executed in accordance with the sanctions outlined in the Jasaq.5 It is unclear when the Mongols began to compile Chinggis Qan’s Jasaq, but his heir Ögödei (r. 1229–​1241) most certainly ratified them during his coronation in 1229, so they must have been collected into a manageable format by that date.6 The importance attributed to Chinggis Qan’s legacy by the early Mongols meant that violations of his Jasaq were perceived as an attack on the very foundation of the Chinggisid state and were to be avoided at all costs. The Persian scholar-​bureaucrat, Rashīd al-​Dīn Fadl Allāh, recorded that Chinggis Qan himself once stated: If there are people whose sons do not listen to the wisdom of their fathers, whose younger brothers do not heed the words of their elder brothers, whose husbands do not trust their wives, whose wives do not obey their husbands, whose mothers-​in-​law do not like their daughters-​in-​law, whose daughters-​in-​law do not respect their mothers-​ in-​law, whose adult sons do not support their children, whose young persons do not accept the advice of their elders, whose masters do not seek the affection of their slaves, and who do not comprehend their yosun and yasaq with intelligence and competence—​ among such people thieves, brigands, and robbers spring up and drive them from their homes—​that is, they pillage and plunder them.7

In other words, the violation of the Jasaq and the natural hierarchy of the realm would lead to chaos and lawlessness. Indeed, Chinggis was said to have predicted that the empire would fall when the great champions serving his family did not observe the Jasaq, thereby causing the destabilization of the empire and its eventual collapse. The implicit dichotomy between the Jasaq and chaos (fitna) contained in these statements was also made by the Persian official, Vaṣṣāf-​i Haḍrāt, who stated that failure to adhere to the Jasaq after the death of Geikhatu Qan in 1295 had led to a “time of fitna.”8 Fear of the disorder that would follow an abandonment of the Jasaq undoubtedly accounts for why many sources report the almost fanatical devotion of the Mongols to the Great Jasaq throughout the empire. Yet the Jasaq of Chinggis Qan was not exhaustive and his successors were entitled to supplement his laws by making their own jasaq (edicts). Ögödei’s will, for example, was regarded as law and when his descendants refused to honour it by placing his chosen heir, Shiremün, on the throne, they were accused of “changing the ancient jasaq.” The same language was employed to refer to a decree by Ghazan Qan in Iran at the end of the 5 Roman Yulianovich Pochekaev, “Political Repressions in the Mongol Empire, Golden Horde and Other Turkic-​Mongol states, and Their Justifications,” Golden Horde Review no. 3/​5 (2014): 103. 6 De Rachewiltz, “Some Reflections,” 94.

7 Rashīd al-​Dīn, Rashiduddin Fazlullah’s Jami’u’t-​ tawarikh: Compendium of Chronicles, trans. Wheeler M. Thackston, 2 vols. (Cambridge, MA: Harvard University Printing Office, 1998), 1:293. 8 ‘Abd Allāh ibn Fazl Allāh Vaṣṣāf al-​Hazrāt, Taḥrīr-​i tārīkh-​i Vaṣṣāf, ed. ‘Abd al-​Muḥammad Ayatī [1346] (Tehran: ‘Ilmī, 1967), 193.

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160 Michael Hope thirteenth century, in which he ordered (jasaq dādan) the qāḍī of Nishapur to be put to death for spreading sedition (arājīf).9 The existence of both a Great Jasaq promulgated by Chinggis Qan and subsequent jasaqs issued by his successors often makes it difficult to ascertain which body of law was being referenced at any one time. But authorship may not have been a serious concern for the Mongols, who seem to have observed both types of jasaq with equal reverence. In any case, the fact that each ruler’s orders had the authority of law meant that observance of the qan’s jasaq (laws) became indivisible with obedience (el) to the qan himself. The qan’s law became the embodiment of his rule and an object of loyalty in its own right, whilst rebellion against the qan was often couched in the language of the jasaq. It was for this reason that the Secret History recorded members of the Naiman ayimaq complaining that “the jasaq (rule) of our queen Gürbesü has become harsh,” before she was overthrown.10 Similarly, the association between the qan and his jasaq in the Ilkhanate of Iran was highlighted by the deposition of Aḥmad Tegüder Qan in 1284. In the final days of his rule, he suffered a rebellion on the part of a commander named Buqa, who when questioned about his behaviour, noted that “until today we moved in accordance with Aḥmad’s jasaq and now, by the orders (farmān) of Hülejü (a rival prince) we have killed Alinaq.”11 That is to say that Buqa was no longer loyal to the jasaq of Aḥmad, and had rebelled against him in favour of Hülejü. The qan and his jasaq were indivisible. Much of the Chinggisid Jasaq was borrowed from the earlier precedents of the Törü, which provided an ethical framework for regulating interactions between lords (ejen) and subjects (bo’ol) prior to Chinggis Qan’s rise to power. The Törü was first mentioned by the Orkhon Inscription of the seventh century and appears to have been comprised of the edicts, oaths, and generally accepted standards of decency held by the nomads of Inner Asia. By the twelfth century, this body of custom and precedent was taken as a divinely inspired code of political conduct, and its core principles provided a framework for many of Chinggis Qan’s later edicts.12 The Secret History often refers to the Törü as the “yeke yosun” (the great principle), which governed relations between rulers and their subjects. The essence of this precedent was that a subject should dutifully obey his ruler, and that in return a ruler should provide protection and support for his subjects. 9 Rashīd al-​Dīn Faḍl Allāh Hamadānī, Jāmiʽ al-​Tawārīkh, ed. Muḥammad Rawshan and Muṣṭafa Mūsavī, 4 vols. [1373] (Tehran: Alburz, 1994), 1:69; Rashīd-​Karīmī, “Jāmi‘al-​Tawārīkh,” 865. 10 De Rachewiltz, Secret History, 2: 683. 11 Vaṣṣāf, “Tahrīr-​i ta’rīkh-​i waṣṣāf,” 78.

12 Paul D. Buell and Judith Kolbas, “The Ethos of State and Society in the Early Mongol Empire: Chinggis Khan to Güyük,” Journal of the Royal Asiatic Society 26 (2016): 43–​64, at 47; Roman Yulianovich Pochekaev, “Törü: Ancient Turkic Law ‘Privatised’ by Chinggis Khan and His Descendants,” Inner Asia 18, no. 2 (2016): 182–​95, at 183; Caroline Humphrey and Altanhuu Hürelbaatar, “Regret as a Political Intervention: An Essay in the Historical Anthropolohy of the Early Mongols,” Past & Present 186 (2005): 3–​45, at 25–​26; İsenbike Togan, Flexibility and Limitation in Steppe Formations: The Kerait Khanate and Chinggis Khan (Leiden: Brill, 1998), 148.

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Transgressions of this natural order would cause political relationships to be severed and a state of bulqa to ensue. The Törü and the Jasaq were not simply used to prop up the power of the Chinggisid dynasty. Qans who failed to observe their responsibilities to their subjects were regularly censured by the contemporary sources. One of the first examples of a qan exciting bulqa among his subjects came during the early years of Chinggis Qan’s career, when his former companion-​come-​rival, Jamuqa, is reported to have seized a number of enemy soldiers and cooked them in vats of boiling water. Historians have speculated that this gruesome form of execution was intended to prevent the spirits of the dead from reaching the afterlife; something which Jamuqa’s subjects regarded as utterly reprehensible. In fact two divisions of his army took it as grounds to abandon his union and seek a new master, thereby temporarily weakening Jamuqa.13 Another instance of a qan inspiring bulqa was encountered when Chinggis Qan’s grandson, Ariq Bökö, contested the throne with his brother Qubilai after the death of Möngke Qa’an in 1259. Ariq Bökö initially seemed to have the advantage over Qubilai, in so far as he held possession of Mongolia and had obtained the support of many of Möngke’s senior commanders. Yet he squandered any good will that he might have enjoyed by massacring a troop of Möngke’s former soldiers, who had refused to acknowledge his authority. He subsequently suffered the desertion of his troops, who explained that “(when) the Mongol army, which Chinggis Khan formed, suffers such cruelty, how can we not become bulghaq (i.e. rebel)?”14 In both instances, the behaviour of the rulers was held to have violated the “great principle” and so it was licit for their followers to abandon them and find another leader. The war between Ariq Bökö and Qubilai also demonstrates how the contents and meaning of the Jasaq could often be hotly contested. Ariq Bökö was described by Rashīd al-​Dīn as being in a state of bulqa for his refusal to acknowledge the claim of his brother, Qubilai, to the throne. The two brothers fought one another for nearly four years, at the end of which Qubilai triumphed and imprisoned Ariq Bökö, retroactively deeming his actions as bulqa. It is, however, likely that Qubilai would have been equally culpable of bulqa in the event that Ariq Bökö had won the war of succession. He is said to have admitted as much when Ariq Bökö was brought before him as a captive. Seeing his brother for the first time in many years, Qubilai embraced him and asked which one of them had been in the right? Ariq Bökö’s pragmatic answer was that “on that day it was us, today it is you.”15 Qubilai’s victory on the battlefield confirmed that he was the true heir to Möngke and, therefore, the purveyor of the jasaq and yosun, which he employed to condemn his brother. Similar controversy broke out in 1295, when a group of commanders deposed Geikhatu Qan (r. 1291–​1295) “in accordance with the Jasaq of Chinggis Khan” on the basis that he had “ignored the affairs of the khanate and rose 13 De Rachewiltz, Secret History, 54; §129–​30.

14 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 2:884. 15 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 2:886.

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162 Michael Hope [to commit] acts that were unworthy of the sultanate.”16 The qan was alleged to have had improper relations with the children of commanders and to have mismanaged the treasury of the empire, amongst other crimes. He had failed to heed the “great principle” of the Törü and was therefore illegitimate in the eyes of the commanders. Yet their claim was contested by Geikhatu’s nephew, Ghazan, who argued that the overthrow of a qan was itself a violation of the Jasaq and the duty of obedience owed by a subject to a lord in the Törü. Somewhat surprisingly, the subsequent victory of Ghazan did not rehabilitate the reputation of Geikhatu in the Persian and Armenian sources, which provide great detail on his transgressions.17 Ambiguity and overlap within the Jasaq could therefore lead to conflict between a lord and his subject in which both sides could claim to be defending the Jasaq against corruption. The absence of any impartial mediator meant that violence was the only means of testing the truth of the contestants’ arguments.

Social and Political Hierarchies

In addition to the Jasaq, the Mongols were also expected to uphold the social and political hierarchies that had been created during Chinggis Qan’s lifetime. The most important group within the Mongol imperial hierarchy were undoubtedly the family of Chinggis Qan, the altan uruq (Golden Kin), from whose members the qa’an (supreme qan) was to be chosen. The first step in consolidating Chinggis Qan’s political legacy was, therefore, to ensure that his family remained in power on a hereditary basis. Devotion to the qa’an and his family was incumbent upon all people, Mongol and non-​Mongol alike, whilst attacks against the altan uruq were regarded as an attack on the natural order of Mongol society. The distinction between noble and base people was stressed heavily in the earliest sources on the Mongol Empire and may have been a legacy from the earlier ayimaqs (aristocratic households). During the twelfth century, the Inner Asian steppe was divided between a number of rival ayimaqs, which competed for the control of people, pastures, and animals. Each ayimaq was ruled by its own dynasty, which governed a mixed population of hereditary servants (bo’ol) and vassals (nökör). Chinggis Qan and his successors clearly believed themselves to belong to one of these noble households. His genealogies, contained in the Secret History and the Altan Debter, traced his descent from a heavenly beam of light and tied him into the lineage of the former qans of the Mongols. The same sources make it clear that other ayimaq leaders claimed a similar 16 Vaṣṣāf, “Tahrīr-​i ta’rīkh-​i waṣṣāf,” 193.

17 Vaṣṣāf, “Tahrīr-​i ta’rīkh-​i waṣṣāf,” 161; Hamd Allāh Mustawfī Qazvīnī, Ẓafarnāma, ed. M. Sharīfzādah [1387] (Tehran: Institute for Humanities and Cultural Studies, 2009), 216; The Chronography of Gregory Abû’l Faraj, the son of Aaron, the Hebrew Physician, commonly known as Bar Hebraeus: being the First Part of his Political History of the World, ed. Ernest A. Wallis Budge, 2 vols. (London: Oxford University Press, 1932), 2:494; Stephanos Orbélian, Histoire de la Siounie, ed. and trans. Marie-​Félicité Brosset, 2 vols. (St Petersburg: Académie Impériale des Sciences, 1864–​6), 1:260.

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descent, entitling them to the support and devotion of the subject population over whom they ruled. Those who violated this natural order were accused of falling into bulqa and were severely punished. Chinggis Qan developed a reputation for enforcing the hierarchy between noble and common people throughout his career. The most notable occasion came when Chinggis’s one-​time ally, Jamuqa, was seized by his own soldiers and handed over to Chinggis. Upon arrival at Chinggis’s camp, Jamuqa appealed to Chinggis, saying “black crows have gone so far as to catch a Mandarin duck, black skins and slaves have gone so far as to raise their hands against their lord.” Chinggis responded firmly by stating that those who raise their hands against their masters should not live.18 A similar situation unfolded when Senggüm, the heir to the Kereyit ayimaq, was apprehended by his own equerry whilst trying to escape from Chinggis. Though Senggüm had done great harm to Chinggis, he had the equerry put to death, saying, “in this manner [he] abandoned his rightful lord, who would now trust such a man and take him for a companion?”19 These statements, whilst almost certainly apocryphal, were inserted by Chinggis Qan’s followers at a later date to stress the duty of the commoners to obey their masters. The chief distinction between the ayimaqs and the Mongol Empire was that Chinggis Qan had either removed or demoted all other noble lineages and substituted them for his own family, the altan uruq. As members of the ruling dynasty, the altan uruq were entitled to a share of the revenues, animals, and pastures that had been accrued by the Mongol conquests. Moreover, the ruling qa’an was obliged to consult with them on matters of policy in large annual gatherings, known as quriltais. All those not related to the altan uruq were known simply by the epithet of “qaraču,” or “blackhead,” which contrasted with the supposedly noble “white-​bone” of the Chinggisids.20 The unique charisma of Chinggis Qan and his family made it incumbent on all other people to obey and serve them. The altan uruq were at the apex of the Mongol imperial hierarchy and those who failed to acknowledge this fact were seen to be guilty of fomenting bulqa. One of the most instructive examples of a qaraču transgressing the duty of obedience to the Chinggisid family came during the Mongol campaign against the Qipchaqs and 18 De Rachewiltz, Secret History, 129; §200. 19 De Rachewiltz, Secret History, 110; §188.

20 On the qarachu, see Uli Schamiloğlu, “The Qaraçi Beys of the Later Golden Horde: Notes on the Organisation of the Mongol World Empire,” Archivum Eurasiae Medii Aevi 4 (1984): 283–​97; Christopher P. Atwood, “Ulus Emirs, Keshig Elders, Signatures, and Marriage Partners: The Evolution of a Classic Mongol Institution,” in Imperial Statecraft: Political Forms and Techniques of Governance in Inner Asia, Sixth-​Twentieth Centuries, ed. David Sneath (Bellington, WA: Center for East Asian Studies, 2006), 141–​74; Michael Hope, “ ‘The Pillars of State’: Some Notes on the Qarachu Begs and the Kešiksten in the Īl-​Khānate (1256–​1335),” Journal of the Royal Asiatic Society 27, no. 2 (2017): 181–​99. Any etymology of these terms can only be speculative, but it is likely that the association between the commoners and the colour black was intended to contrast them with the divine colour white, often associated with Eternal Heaven (Tenggeri). There is evidence that qaraču was a pejorative term in the late Ilkhanate, though it may also refer to the fact that the non-​ Chinggisid officials made use of a black seal (tamgha) to certify documents.

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164 Michael Hope Eastern Europe (1236–​1242). The campaign degenerated into an argument between three senior princes—​Güyük, Buri, and Batu—​regarding precedence and one of the leading Mongol commanders, Harqasun, joined in the argument. By weighing-​in on the side of Güyük and criticizing Batu, Harqasun had failed to observe the hierarchy that distinguished him from the princes. Batu complained of his behaviour to Ögödei Qa’an, who demanded to know on “whose counsel does this mean creature fill his mouth with talk against a person senior to him?” Furthermore, upon Harqasun’s return, Ögödei questioned why he had filled his mouth with boastful talk “against Our family” and how he “has turned against the bosom of a person who is senior (aqa) to him.” Ögödei even went so far as to say that he wanted to kill Harqasun, but for the fact that he might be accused of partiality, in so far as he had no intention of executing his own son, Güyük. The Secret History claims that Ögödei dispatched Harqasun to Batu for punishment, though it is unclear what happened to him.21 In any event, Ögödei had made his point; the qaraču were to defer to the Chinggisids and avoid public shows of defiance. To harm or even overthrow a member of the altan uruq was naturally viewed as an even more heinous violation. It is, therefore, no surprise that the qaraču would typically only rebel against a ruling qan if they had another Chinggisid prince to lead them. Even a deposed prince would only be killed by their relatives. The murder of a prince by a non-​ Chinggisid commander was treated as bulqa and provoked condemnation from the altan uruq. Such was the case in 1295, when Prince Ghazan accused the qaraču commanders in Iran of overthrowing the Chinggisid ruler, Geikhatu Qan. The fact that they had done so in the name of another prince, Baidu, was not in the least bit convincing to Ghazan, who stated that “it was not in the Yasa of Chinggis Qan that the qaraču commanders could lay hands on [a member of] his dynasty. Now a group of commanders have killed Geikhatu. We demand that they be sent for questioning and that the Jasaq be applied to them accordingly (i.e. they should be executed).”22 To be assaulted or even killed by a member of the qaraču was apparently a great indignity for the Chinggisids, as demonstrated by an incident during the succession struggle between Qubilai and Ariq Bökö. During the conflict, Ariq Bökö’s forces, under the command of his nephew, Asutai, had assaulted a band of Mongols loyal to Qubilai in East Turkistan and a Chaghadaid (descended from Chinggis’s second son, Chaghadai) prince had been killed. When Ariq Bökö eventually surrendered to Qubilai, Asutai was confronted by prince Achiqi, the brother of the dead Chaghadaid, who accused him of murder. Asutai replied caustically that Achiqi should be happy that his brother had been killed by him and not a humble qaraču.23 Clearly the altan uruq enjoyed a special status within the Mongol Empire and the idea that the qaraču could rise up against them was regarded with contempt. The division between the altan uruq and the qaraču was such that their transgressions were treated separately by the qa’an and his court. If the Secret History and Rashīd al-​Dīn 21 De Rachewiltz, Secret History, 206–​7; §275–​76. 22 Vaṣṣāf, “Tahrīr-​i ta’rīkh-​i waṣṣāf,” 193.

23 Ratchnevsky, “Die Rechtsverhältnisse,” 81.

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are to be believed, this separation was instituted by Chinggis Qan himself, who ordered his commander, Sübe’etei, to “send to Us those who transgress Our order if it looks that they are personally known to Us; as for the many who are not known to Us, just cut them down on the spot.”24 Rashīd al-​Dīn also quoted one of Chinggis Qan’s biligs (sayings) that if one of his family broke his jasaq, on the first occasion he should only be spoken to; on the second occasion he should be banned from court; on the third occasion he should be sent on a mission to a remote location; and that only if he transgressed the jasaq for a fourth time should he be shackled and beaten. By contrast, when a qaraču commander named Taghachar disobeyed Chinggis’s orders during the Mongol invasion of Khurasan in 1220, the qa’an planned to depose him from his command before he was killed in battle.25 A double standard existed between the Chinggisids and the qaraču, which meant that the qaraču were often made the scapegoats for the behaviour of their Chinggisid princes. The qa’ans often appear at pains to excuse the behaviour of their relatives, even after the clearest cases of transgression. The most egregious example of such partisan behaviour occured in 1251, when Chinggis’s grandson, Möngke, took the throne of the empire. He was opposed by his nephews, the descendants of Ögödei and Güyük, who believed that the throne should continue to be held in their line. This group planned to ambush Möngke during the coronation celebrations, but their plans were discovered and they were apprehended on the way to court. The Persian official, Juvaynī, who visited Möngke shortly after the aborted coup, noted that the qa’an treated the Ögödeid princes with great courtesy and hospitality, initially saying nothing of the allegations against them. Their qaraču companions, by contrast, were apprehended and tortured to discover the extent of their plotting. The qaraču confessed to their guilt and Möngke concluded that “the wicked amirs (commanders) aforementioned had kept the princes to these paths and involved them in these abysses and crimes.” Indeed, Juvaynī summised that the Chinggisid princes had been duped by “the promptings of wicked teachers and the suggestions of impious amirs.” The princes received very different treatment. Juvaynī noted that “Wishing to chasten but not to torture them he [Möngke] gave command that in conformity with the tradition, ‘travel that ye may gain,’ they should for a while set foot upon the road of exile.” The idea that the rebel princes were either ignorant of their fault or that they were less guilty than their commanders is highly improbable. Juvaynī certainly made it clear earlier in his account that the princes wilfully tried to undermine the nomination of Möngke to the throne because they believed that they had a superior claim.26 Nevertheless, Juvaynī and his masters were reluctant to lay the blame for the uprising at the feet of the Chinggisid princes. The sub-​text of his account is that disorder (bulqa) will result when commanders obtain undue influence over Chinggisid princes. Such a situation was an inversion of the natural order and would result in chaos. 24 De Rachewiltz, Secret History, 127; §198.

25 Ratchnevsky, “Die Rechtsverhältnisse,” 104; Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 1:521. 26 Juvaynī, “History of the World Conqueror,” 50, 62–​63, 567.

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Customary Obligations Both precedent and the Great Jasaq ensured that the altan uruq occupied a pre-​eminent position above their qaraču commanders. But this hierarchy was also sustained by a series of customary obligations, which loosely outlined the duties and responsibilities of a lord to his subject and vise-​versa. These obligations (üile) pre-​dated the rise of Chinggis Qan and were derived from the oaths of fealty (üge baraldu) taken by a subject (bo’ol) to his lord (ejen). Failure to meet the obligations outlined in one’s oath of fealty, or the violation of these oaths, placed a subject in a state of bulqa. Yet it should be noted that these oaths also placed reciprocal obligations upon the qa’ans. The Chinggisids were expected to meet certain standards of comportment with regard to their subjects and failure to do so could result in the qaraču launching legitimate rebellions against their masters. Oaths were an important means of binding a lord to his subjects on the Inner Asian steppe in the twelfth century, well before Chinggis Qan’s rise to power. They served as an essential tool for building trust at a time when no single ruler or government could regulate behaviour. The importance of these oaths meant that they took on an almost ceremonial character in which certain etiquette needed to be observed.27 The junior party would most commonly begin by swearing fealty to a lord and promising to provide military support and tribute. In return, the qan would promise to provide his subject with protection and a livelihood. This exchange of oaths (üge baraldu) is encountered regularly in the Secret History of the Mongols, which recalls Chinggis Qan’s early career and rise to power. It describes how Temüjin, the future Chinggis Qan, first received an oath of fealty from his relatives when they decided to name him their qan, saying: “When you, Temüjin, become qan, we as vanguard shall speed after many foes; fine-​looking maidens and ladies of rank, palatial tents, and from foreign people, ladies, and maidens with beautiful cheeks, and geldings with fine croups at the trot we shall bring …”28 A similar oath was sworn by one of Chinggis’s companions, Jebe, who swore that “For the Qa’an I will charge forward so as to rend the deep water, so as to crumble the shining stone. For him I will charge forward so as to split the blue stone in the place which I am told to reach, so as to crush the black stone at the time when I am told to attack.”29 Such statements clearly outlined the services that newly submitted subjects were expected to perform for their lord. Yet oaths were not restricted to qans and freemen, they were also evidently taken by hereditary servants as well. In one example, Gü’ün U’a of the Jalayir, the hereditary servants of Chinggis’s family, enthralled his sons, Muqali and Buqa, to Chinggis, saying “Let these sons of mine be the slaves of your threshold; if they stray from your threshold, cut off their heel tendons! Let them be the personal slaves of your door; if they abandon your door, cut out their livers and 27 Udo B. Barkmann, “Einige Bemerkungen zum Problem des Eides in der ‘Geheime Geschichte der Mongolen’,” Central Asiatic Journal 35 (1991): 200–​208. 28 De Rachewiltz, Secret History, 49; §123. 29 De Rachewiltz, Secret History, 69; §147.

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cast them away!”30 Oaths were a means for the qan to clearly delineate the duties and services required from his subjects and to bind them to these obligations as a condition of their membership of the polity. The oaths linking a qan and his subjects were, like any agreement, built upon trust and honour. Failure to adhere to oaths could risk jeopardizing one’s reputation and in turn compromise the ability of an individual to enter future alliances and relationships of fealty. Rashīd al-​Dīn highlighted the example of a commander of the Mangqut, who was subject to the Kereyit ayimaq, known as Taghai “kuharin,” which he translates to mean “Taghai the Liar.” He observed that Taghai suffered greatly as a result of his reputation for duplicity and that he was shunned by his compatriots.31 A similar situation befell Chinggis Qan’s boyhood companion, Jamuqa, whose reputation for disloyalty earned him condemnation and caused him to be shunned. In his final years, he was described wandering between different ayimaqs, engaging in acts of sedition, which prompted Ong Qan of the Kereyit to warn his son Senggüm that Jamuqa “has a glib tongue” and that his words should not be trusted.32 A range of idioms were employed by the Secret History to convey the morally reprehensible nature of oath-​breaking. It has Chinggis Qan refer to those who pretended to be allies, but who turned against their oaths as “a snake with venomous teeth,” a term which was equally applied to liars and slanderers. Chinggis also described the followers of the rebellious shaman, Teb Tenggeri, as “the people of nine tongues,” thereby conveying a sense that their words could not be trusted.33 Yet it seems that the most frequent characterization of such duplicitous behaviour was “[one who] does not live up to their word” or who is an “enemy of their word (i.e. oath, üge).” This was the term applied by the Mongols to the Ja’urat who betrayed Chinggis, thereby becoming “enemies of their own words” and to the treacherous relatives of Chinggis, who betrayed him in favour of Ong Qan of the Kereyit and therefore “did not live up to their words.”34 In a society based upon oaths and trust, being unable to live up to one’s word was one of the most serious accusations that could be levelled at a person. It put them outside normal society and made it difficult for them to find new patrons, as they could not be relied upon to meet their obligations. The severity with which such betrayals were regarded is highlighted in the oaths themselves, which typically contained clauses outlining the sanctions due to the party that went back on their word. The oath sworn by Chinggis’s bo’ol, Gü’ün U’a, quoted earlier in this piece, included such a verse, as did most oaths sworn to Chinggis and his allies. It is noted that when one of Chinggis’s companions, Chila’un Qayichi, came 30 De Rachewiltz, Secret History, 59–​60; §137.

31 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 1:196.

32 De Rachewiltz, Secret History, 85; §167; Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 1:382.

33 De Rachewiltz, Secret History, 170; §245 (II), 595; Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” i, 332; Rashīd-​Karīmī, “Jāmi‘al-​Tawārīkh,” 246. 34 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 1:378.

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168 Michael Hope forward with his sons, he swore, “I give you these sons of mine; if they depart from your golden threshold, put an end to their lives and cast them away … If they desert your wide door, kick them in the pit of the stomach and cast them away!”35 Death was the most common sanction for someone who broke an oath of loyalty to their lord, thereby activating the punishments outlined in their initial submission. The most salient example of such sanctions being enacted came when Chinggis Qan arrested the leaders of the Jürkin household for looting his camp whilst he was absent. When confronted with their crimes, the captured Jürkin said simply, “we did not keep to the words we spoke. Now make us comply with them!”36 They were swiftly put to death in Chinggis’s presence and their punishment served as an allegory for betrayal and justice among later generations of Mongols. Oaths of fealty continued to be taken well after the rise of Chinggis Qan to power and the destruction or subordination of the other ayimaqs. Maria Subtelny has noted that these oaths tended to be sworn at the time that a new qa’an was nominated by the assembly of notables (quriltai). During the first three decades of the Mongol Empire, the spoken oath was replaced by a written signature, affirming the commitment of the senior commanders, princes, and viziers to obey the qa’an. This signature was known as the möchälgä and was said to have been made on gold, though spoken oaths persisted in the Ilkhanate, where kumis or another alcoholic beverage was consumed to seal the agreement. By the second half of the thirteenth century many of these commanders had converted to Islam, so they swore on the Quran, rather than consuming alcohol. Subtelny noted that such “binding pledges” were subsequently taken by the notables of the realm to support individual matters of policy. Viziers were obliged to sign that they would accumulate the requisite revenues for the state, whilst commanders were compelled to sign that they would pay their soldiers their full entitlements in a timely fashion.37 Oaths therefore continued to be an important tool for delineating the rights and responsibilities of subjects and rulers, even after Chinggis Qan established the pre-​ eminence of the altan uruq. Very little is known about the content of the oaths that were taken after Chinggis Qan’s death, but we may assume that they followed the model established by the households of the twelfth century. Chinggis Qan’s second son, Chaghadai, the nominal guardian of Chinggis Qan’s laws and traditions, is noted to have taken these oaths incredibly seriously. Though his loyalty to Ögödei was never doubted, at one point he confessed to having broken his oath of fealty after beating his brother in a wager on a horse race. Chaghadai reflected on the seemingly trivial matter by saying that he had violated his oath to obey Ögödei and not to resist or rise up against him. Rashīd al-​Dīn claimed that 35 De Rachewiltz, Secret History, 60; §137. 36 De Rachewiltz, Secret History, 59; §136.

37 Maria E. Subtelny, “The Binding Pledge (möchälgä): A Chinggisid Practice and Its Survival in Safavis Iran,” in New Perspectives on Safavid Iran, Empire and Society, ed. Colin P. Mitchell (London: Routledge, 2011), 9–​29, 11, 17, 19, 20.

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Chaghadai spoke of himself as being at “fault” (gunāh) and that he should be “conveyed to the jasaq” (i.e. executed). Ögödei, though slightly embarrassed by his brother’s display of loyalty, forgave him in an assembly of notables and rewarded him with a gift of horses and the care of his eldest son, Güyük. This rather bizarre interpretation of the obligations imposed by the oath was most likely simply a piece of political theatre, intended to demonstrate his loyalty to Ögödei.38 In any case, Chaghadai’s brother Tolui is also reported to have given an oath to Ögödei during Chinggis Qan’s lifetime: I shall remind him of what he has forgotten, I shall wake him up when he has fallen asleep. I shall become a friend of the word “yes” And the whip of his chestnut horse. Not being absent from the ranks, I shall go forth for him on a long campaign Or fight in a short fight.39

The Secret History does not mention whether Tolui’s oath contained sanctions in the event that he failed to fulfil his vow, but Chaghadai’s statement may hint at the existence of such a clause. The same oaths that bound qaraču commanders and princes to serve the qa’an also required the qa’an to protect his subjects and to provide them with offices and a livelihood. When Temüjin, the future Chinggis Qan, swore to serve Ong Qan of the Kereyit ayimaq, he also received a promise from Ong Qan that “I shall unite for you your scattered people. Just as the place of the kidneys must be in the back, that of good faith must be in the breast!” Ong Qan was soon obliged to act on this oath, as Temüjin’s wife, Börte, was kidnapped by the rival Merkit ayimaq and Temüjin came to demand that his qan fulfil his pledge. Ong responded by saying, “Did I not say this? I shall now fulfil that promise …” and the pair joined forces to obtain Börte’s return.40 Similarly, when Chinggis was joined by the Ja’urat people, he told them that “I slept deeply and, seizing me by the hair, you’ve awakened [me]. I was sitting and stroking my beard, you made me get up. Your words reach the bottom of my thought. Go to your troops and carts, I’ll help you with all my strength.” He is subsequently described providing the Ja’urat with animals, pots, pans, and other items that they needed by taxing his own people.41 Other examples from the Secret History make it clear that the qan could meet his oath to protect and nurture his followers by awarding them positions in his household, the command of armies, or pastureland.42 Such rewards encouraged loyalty amongst the qan’s followers and reinforced the bond of mutual obligation between the ruler and his vassals. 38 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 1:765. 39 De Rachewiltz, Secret History, 188; §255.

40 De Rachewiltz, Secret History, 30 and 34; §96 and 104. 41 Pelliot and Hambis, “Histoires des campagnes,” 141. 42 Subtelny, “The Binding Pledge,” 18.

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170 Michael Hope On the other hand, qa’ans who failed to care for their subjects inevitably suffered rebellion (bulqa). In these instances, blame for the bulqa lay squarely with the qa’an. Chinggis Qan’s one-​time friend and later rival, Jamuqa, was taken by the Secret History and the Altan Debter as the archetypal master who repeatedly lost the trust and confidence of his subjects through the mistreatment of his men. According to Rashīd al-​ Dīn, following the defeat of Jamuqa’s armies, he turned on his own people and plundered their homes and animals, causing them to turn against him. Such revolts appear to have been a common occurrence under Jamuqa’s leadership, with Chinggis Qan’s wife, Börte, observing that Jamuqa had a reputation as being someone who quickly grew tired of his friends.43 In other words, he did not fulfil his oaths to his supporters and would betray their trust if he spotted an advantage. This departure from accepted norms of government made it licit in the eyes of later Mongol historians for his sworn vassals to abandon Jamuqa. In the absence of any violation, a subject could not break the oath to his lord under any circumstances. When, for example, Chinggis Qan invited the Ja’urat to defect from the Tayiči’ut ayimaq and join his armies, he was initially rejected by the commander, Maqui Yadana, who said that the Tayiči’ut had done no harm to them and asked how they could turn against their masters without any reason. He rebuffed Chinggis Qan’s offer and remained loyal to his lord.44 If the Tayiči’ut had done nothing to break their oath to the Ja’urat, then Maqui Yadana did not want to be accused of failing to meet his oath of service to them. In the same way, when Ghazan Qan’s (r. 1295–​1304) companions complained to him that his chief commander, Nawrūz Aqa, was not a trustworthy person, he responded that he was aware of Nawrūz’s reputation, but that he could not violate the oath he had made by attacking his subject. It was only when Nawrūz came out in open revolt (‘iṣyān va fitna) that Ghazan felt he could move against him.45 Had Ghazan made a pre-​emptive strike against Nawrūz, he would have opened himself up to criticism from his other commanders and potentially undermined confidence in his contracts with other vassals. Evidence was needed that Nawrūz had broken their vow before Ghazan could safely move against him. To betray one’s oaths was not simply a source of instability, it was perceived to be a deviation from the “great principle,” the Törü. Hence, when Ong Qan betrayed his sworn servant, Chinggis, he was reproached for his behaviour and subsequently admitted that, “by abandoning my son [i.e. Chinggis] I abandoned the norm (Törü); by parting from him I parted from my duty (üile).”46 By the same token, when the servant named Naya’a decided to defect from the defeated Tayiči’ut and join with Chinggis, he initially contemplated seizing his lord, Tarqutai, and betraying him to Chinggis. He decided not 43 De Rachewiltz, Secret History, 46; §118; Rashīd-​Karīmī, “Jāmi‘al-​Tawārīkh,” 279.

44 “Mawou Yatana” in Pelliot and Hambis, “Histoires des campagnes,” 141; Rashīd-​Karīmī, “Jāmi‘al-​ Tawārīkh,” 246. 45 Rashīd/​Rawshan-​Mūsavī, “Jāmiʽ al-​Tawārīkh,” 2:1345. 46 De Rachewiltz, Secret History, 101; §178.

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to do so, saying that a person who betrays his sworn master cannot be trusted. He was subsequently praised by Chinggis for refusing to break his bond to his rightful lord and his oath to his master. Chinggis observed that Naya’a was “mindful of the yeke Törü (great principle).”47 To break one’s oaths and obligations was a violation of the natural order and those who did so were vilified in the Secret History of the Mongols.

Conclusion

The examples discussed above clearly point to the Chinggisid legacy as the ultimate object of loyalty within the Mongol Empire. The Great Jasaq of Chinggis Qan, his dynasty, and the oaths and obligations that bound a subject to a lord were all essential components in sustaining social and political hierarchies within the Mongol state. These institutions imposed a duty of service upon the commoners (qaraču), who were expected to obey the qan and his edicts. Yet the same system placed restrictions and obligations upon the Chinggisid princes, which, if transgressed, made it licit for the qaraču to nominate a new ruler. In theory this system would impose discipline and order over the previously warring nomads of Inner Asia, but it was difficult to attribute blame without resorting to conflict in the absence of an independent arbiter. Under these circumstances, bulqa increasingly came to be identified with fitna (chaos) and a return to the divisions that existed prior to Chinggis Qan’s rise to power.

Select Secondary Sources Ayalon, David. “The Great Yāsa of Chingiz Khān. A Re-​Examination.” Studia Islamica 33 (1971): 97–​140. Barkmann, Udo B. “Einige Bemerkungen zum Problem des Eides in der ‘Geheime Geschichte der Mongolen’.” Central Asiatic Journal 35 (1991): 200–​208. Buell, Paul D., and Judith Kolbas. “The Ethos of State and Society in the Early Mongol Empire: Chinggis Khan to Güyük.” Journal of the Royal Asiatic Society 26 (2016): 43–​64. de Rachewiltz, Igor. The Secret History of the Mongols: A Mongolian Epic Chronicle of the Thirteenth Century. 2 vols. Leiden: Brill, 2004. Hope, Michael. “ ‘The Pillars of State’: Some Notes on the Qarachu Begs and the Kešiksten in the Īl-​Khānate (1256–​1335).” Journal of the Royal Asiatic Society 27, no. 2 (2017): 181–​99. Morgan, David O. “The ‘Great Yâsâ of Chingiz Khân’ and Mongol Law in the Ilkhanate.” Bulletin of the School of Oriental and African Studies 49, no. 1 (1986): 163–​76. Pochekaev, Roman Yulianovich. “Political Repressions in the Mongol Empire, Golden Horde and Other Turkic-​Mongol States, and Their Justifications.” Golden Horde Review no. 3/​5 (2014): 103–​20. Pochekaev, Roman Yulianovich. “Törü: Ancient Turkic Law ‘Privatised’ by Chinggis Khan and His Descendants.” Inner Asia 18, no. 2 (2016): 182–​95. 47 De Rachewiltz, Secret History, 151; §220.

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172 Michael Hope Schamiloğlu, Uli. “The Qaraçi Beys of the Later Golden Horde: Notes on the Organisation of the Mongol World Empire.” Archivum Eurasiae Medii Aevi 4 (1984): 283–​97. Subtelny, Maria E. “The Binding Pledge (möchälgä): A Chinggisid Practice and Its Survival in Safavis Iran.” In New Perspectives on Safavid Iran, Empire and Society, edited by Colin P. Mitchell, 9–​29. London: Routledge, 2011. Togan, İsenbike. Flexibility and Limitation in Steppe Formations: The Kerait Khanate and Chinggis Khan. Leiden: Brill, 1998. Vernadsky, George. “The Scope and Contents of Chingis Khan’s Yasa.” Harvard Journal of Asiatic Studies 3 (1938): 337–​60.

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TREASON IN FRANCE AND ENGLAND IN THE LATER MIDDLE AGES Emily Hutchison In June 1382, Raoulet Mathei from Chierlie (France) was at the Lendit fair just north of Paris.1 After he and four men from his hometown shared a meal, they began drinking. The discussion soon turned to politics and specifically to the “guerres, impositions, gabelles, subsides & autres charges (wars, dues, salt tariffs, subsidies, and other charges).” They collectively commented on the “grant turbulacions (great troubles)” that were causing the merchants to be “moult grevez et oppressez (very overwhelmed and oppressed).” One of the men claimed that the late Charles V (d. 1380) had hoarded wealth while alive, but after his death “moult de charges, aides & subsides avaient este remises & pardonnez (many of the charges, taxes and subsidies were returned and pardoned),” to which Raoulet drunkenly added that it would have been better if the king had died ten years earlier. One of the men present, Robert de Beaumont, who the pardon asserts was Raoulet’s “hayneux (enemy),” pointed out that Raoulet “disoit mal contre la magesté royal (spoke ill of royal majesty)” and he intended to report it.2 The others begged him to reconsider, insisting that all of them had said what they had only because they were drinking, and if he reported it Raoulet would receive “griesve punicion (grave punishment).” They added that Raoulet already regretted his words. Robert was unmoved and Raoulet was arrested at some unknown point in time.3 Ultimately, he was pardoned on the condition that he pay for thirty masses for the soul of Charles V at Notre-​Dame-​des-​Carmes in Paris within three months. This pardon for lèse majesté (“high treason”) is intriguing for several reasons. First, it is important to note that it was a political discussion that led Raoulet to err. As the merchants they complained were most affected by the king’s fiscal policies, men like Raoulet were deeply invested in politics. However, merchants were not the only non-​nobles engaging in these types of conversations. Another pardon from 1387 indicates that a group of shepherds in the Limousin region were also discussing high level politics, and specifically the peace Charles VI was about to sign with Richard II.4 1 For this and what follows, see Archives Nationales de France: JJ 136, fols. 13v–​14r, no. 27.

2 It is unclear whether he called these “witnesses” to the discussion on the very same day, or at some later point. 3 Frustratingly, the pardon does not indicate exactly when the arrest occurred, or whether he was imprisoned during the seven-​year-​long gap between the incident in June 1382 and the pardon granted in July 1389. 4 For this and what follows, see AN: JJ 132, fols. 87v, no. 156 bis.

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174 Emily Hutchison They had learned this news from a merchant in Limoges who had just returned from Paris. One of the shepherds, Marcial de Verit, criticized Charles VI saying he did not believe the peace would occur and he encouraged the others to be equally cynical. He added that the king had laid waste to Flanders and would do the same to Paris.5 He was arrested for uttering words “insensibly” against the king and pardoned two years later. Together, these two cases remind us that even lower standing members of this society—​ including shepherds—​were interested and involved in politics, they were informed, they had opinions about it, and could, as did both Marcial and Raoulet, cross the line when they aired their views. In civic law, treasonous speech was a critical element of laesa majestatis.6 However, neither pardon uses the label lese majesty, nor any other term specifying treason. The closest we come to it in Marcial’s pardon was its precision that it was his paroles (“words”) that were being forgiven.7 Raoulet’s pardon offers even stronger hints as to the nature of the charge.8 The most obvious clue was the claim that his speech harmed the king’s royal majesty. This line of thinking was drawn directly from legal discourse on laesa majestatis and was therefore likely an injection by either the lawyer who had the pardon drafted or the clerk recording it. But even if Raoulet’s enemy did not use those words specifically in the incident, he nevertheless understood what Raoulet had said was a betrayal of the king. Perhaps he interpreted it this way through a cultural lens, perceiving Raoulet’s speech as an act of disloyalty; or, perhaps he genuinely recognized it as a legal category. Evidently the three others also understood Raoulet had gone too far, and he would suffer harsh punishment if discovered. Indeed, the typical punishment for lese majesty was execution.9 Together, the two pardons indicate that at least where speech was concerned, people from different social groups understood very well that attacking the person of the king was a crime of some magnitude. It is the line that everyday people crossed when they expressed treasonous words or committed treasonous deeds that is of greatest interest to the present study. How important were the labels to them? How much autonomy did 5 Presumably the shepherd was referring to the royal campaign to suppress the Flemish uprising (led by Philip van Artevelde), which culminated in the Battle of Roosebeck (November 1382). The young Charles VI joined Louis II, Count of Flanders, and the royal army included Charles VI’s uncles, the dukes of Berry, Burgundy, and Bourbon, along with lord of Coucy and many other nobles. Marcial named Coucy specifically in his critique. 6 This point is developed in greater depth in the first section of this chapter.

7 “[Nous] quictons, remectons, & pardonnons les paroles dessuz dictes (We acquit, remit, and pardon the above said words).” AN: JJ 132, fol. 87v, no. 156 bis. 8 AN: JJ 136, fols. 13v–​14r, no. 27.

9 For participation in rebellions against the king, one might instead face banishment. For example, Philipot Val, candlemaker, was banished for his involvement in the 1382 Maillotins revolt. AN: JJ 135, fols. 123v–​124r.

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they have in determining for themselves what acts were deviant, and what influences shaped their interpretations? In what follows I examine the complex interaction between ruling authorities, the law and the courts, and the people as they each grappled with the meaning of treason or lese majesty and their application. While there was a significant power differential between the king and his subjects, which was mediated through the law and the courts, each group nonetheless contributed to producing feasible and enforceable meanings in real times and spaces. Treason was constructed, challenged, and reproduced through a reciprocal and dialogical relationship between these three parties. Kings relied on cooperation from below for enforcement, but they and their legal systems also incorporated cultural meanings of treason shared among the people. Foremost among them was the concept of treachery, which incorporated betrayal, loyalty, honour, and duty. These mixed with the legal or political concepts which the populace was fed through royal ordinances and other pronouncements, the laws, court verdicts, and ritualized executions, all of which were heavily gendered. The former privileged the bonds between men and set the parameters separating the “true man” from the “false” (the traitor) according to Amanda McVitty.10 The latter necessarily privileged a body politic that was configured exclusively as male, and for which the king, as an embodied male himself, represented its head.11 In both France and England, only men occupied formalized political roles, and, therefore, only men constituted the various parts of the body politic (based on social status).12 Nevertheless, it is becoming ever clearer that women of the lower classes were involved in politics in their local communities, and engaged in rebellion and other forms of protest.13 Women observed acts of treason or lese majesty, they informed on it, committed it, and were sometimes charged, condemned, or defended themselves against the accusations. They too drew on the aforementioned intersecting discourses and values that informed broader understandings of the crime, and like their male counterparts, were able to engage directly with the concepts. Some women were even able to manipulate the gendering of treason to their advantage, as will be shown below. While some women who committed 10 E. Amanda McVitty, Treason and Masculinity in Medieval England. Gender, Law and Political Culture (Woodbridge: Boydell, 2020). 11 McVitty, Treason and Masculinity.

12 This is best exemplified in Christine de Pizan’s Livre du corps de la policie (1405). The work is edited and translated as The Book of the Body Politic, ed. Kate Langdon Forhan (Cambridge: Cambridge University Press, 1994).

13 Jelle Haemars and Chanelle Delameillieure, “Women and Contentious Speech in Fifteenth-​ Century Brabant,” Continuity and Change 32 (2017): 323–​47; Justine Firnhaber-​Baker, “The Social Constituency of the Jacquerie Revolt of 1358,” Speculum 95 (2020): 706–​14; Samuel Cohn Jr, “Women in Revolt in Medieval and Early Modern Europe,” in The Routledge History Handbook of Medieval Revolt, ed. Justine Firnhaber-​Baker with Dirk Schoenaers (London: Routledge, 2017), 208–​19.

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176 Emily Hutchison treason might well have had their political acts diminished or erased in the legal records and courts due to a patriarchal legal system, it is time for us to acknowledge the full range of their contributions. There are already ample studies on elite treason trials.14 In what follows I focus instead on how the non-​nobility were engaging with the changing meanings of lese majesty/​treason, and through their actions contributed directly to its construction. This chapter focuses on France, whilst offering some comparisons with England. We begin with a brief overview of some of the most pertinent legal and constitutional tenets of lese majesty and treason in France and England. We then turn our attention to some of the strategies the royal administration relied on to communicate those ideas, primarily through executions and royal letters patent. Both forms of communication betray the tension between the royal government’s attempts to impose its sovereignty over the people on the one hand, and its flexibility on the other. In the second part of the essay, I scrutinize a range of evidence that speaks to non-​noble peoples’ experiences with treason. However brief each narrative might be, they offer valuable evidence everyday practices of individuals. When taken together, the bricolage of peoples’ stories fill in the details of what Michel de Certeau called a “theatre of action”—​the plane on which the invisible shifts into the concrete.15 It is within the “theatre of action” that ideas and values crystalize into social norms, laws, and judicial systems. It is here, also, where we observe people doing things, including resisting royal interference in their communities, or policing the activities of their peers. In this section, we examine the peoples’ material contributions to constructing different meanings of treason, and how they were applied in real situations. 14 Most notably, perhaps, are John G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge: Cambridge University Press, 1970); and Simon H. Cuttler, The Law of Treason and Treason Trials in Later Medieval France (Cambridge: Cambridge University Press, 1981). See also: McVitty, Treason and Masculinity; as well as her “ ‘My name of a trewe man’: Gender, Vernacularity, and Treasonous Speech in Late Medieval England,” Parergon 33 (2016): 91–​111; and “False Knights and True Men: Contesting Chivalric Masculinity in English Treason Trials, 1388–​1415,” Journal of Medieval History 40 (2014): 458–​77. See also: Jean-​Marie Moeglin, “Le rituel de la corde au cou et le crime de lèse-​majesté,” Académie des inscriptions et belles-​lettres 2 (2016): 741–​75; Katherine Royer, The English Execution Narrative, 1200–​1700 (London: Pickering and Chatto, 2014); Jean Dunbabin, “Treason, Sodomy, and the Fate of Adenolfo IV, Count of Acerra,” Journal of Medieval History 34 (2008): 417–​32; Danielle Westerhof, “Amputating the Traitor: Healing the Social Body in Public Executions for Treason in Late Medieval England,” in The Ends of the Body: Identity and Community in Medieval Culture (Toronto: University of Toronto Press, 2013), 177–​92; and her “Deconstructing Identities on the Scaffold: The Execution of Hugh Despenser the Younger, 1326,” Journal of Medieval History 33 (2007): 87–​106; Jacques Chiffoleau, “Le crime de majesté, la politique et l’extraordinaire. Note sur les collections érudites de procès de lèse-​majesté du XVIIe siècle Français et sur leurs exemples médiévaux,” in Les procès politiques (XIVe–​XVIIe siècle), ed. Yves-​Marie Bercé (Rome: École Française de Rome, 2007), 577–​662; Michael Jones, “ ‘Bons Bretons et Bons Francoys’: Language and Meaning of Treason in Later Medieval France,” Transactions of the Royal Historical Society 32 (1982): 91–​112. 15 Michel de Certeau, The Practice of Everyday Life, trans. Steven F. Rendall (Berkeley: University of California Press, 1988), 119–​29.

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Top-​Down Discourses on Treason and Lese Majesty Medieval treason has been a prolific area of study since the late nineteenth century, especially for France and England.16 The existing scholarship on medieval treason has predominantly focused on how jurists, chanceries, and higher courts articulated and reinforced royal sovereignty through these criminal categories. Considerably less attention has been given to how the king’s subjects were absorbing and engaging with the concepts of high treason that circulated in political and legal discourses, or how their own cultural understanding of treachery interacted with those concepts to shape their interpretation(s). Scholars have mainly overlooked the agency the populace had in determining “deviant” behaviours at street level, and what role the people played in reifying treason as both a felony and a political act. Fortunately, an analytical model is already in place to guide our study. Over the last few decades, legal and political historians alike have emphasized the agency and autonomy with which lower ranking people negotiated their legal systems and made significant contributions to political culture.17 Decades ago, Barbara Hanawalt demonstrated that 16 On France, see Jolanta N. Komornicka, “Contra signum nostrum: the Symbolism of Lèse-​Majesté Under Philip IV Valois,” in Crime and Punishment in the Middle Ages and Early Modern Age: Mental-​ Historical Investigations of Basic Human Problems and Social Responses, ed. Albrecht Classen and Connie Scarborough (Berlin: de Gruyter, 2012), 189–​223; and Jolanta N. Komornicka, “The Parlement of Paris and Crimes of Lese Majesty in France, 1328–​1350,” unpublished PhD diss., Boston University, 2013; and Jacques Chiffoleau, “Sur le crime de majesté medieval,” in Genèse de l’état modern en méditerranée: Approches historique et anthropologiques des pratiques et des représentations. Actes des tables rondes internationales tenues à Paris les 24, 25, et 26 septembre 1987 et les 18 et 19 mars 1988 (Rome: École Française de Rome, 1993), 183–​213. On England, see Karen Bosnos, “Treason and Politics in Anglo-​Norman Histories,” in Feud, Violence and Practice. Essays in Medieval Studies in Honor of Stephen D. White, ed. Belle S. Tuten and Tracey L. Billado (Farnham: Ashgate, 2010), 293–​306; Stephen D. White, “The Ambiguity of Treason in Anglo-​ Norman-​French Law, c.1150 to c.1250,” in Law and the Illicit in Medieval Society, ed. Ruth Mazo Karras, Joel Kaye, and E. Ann Matter (Philadelphia: University of Pennsylvania Press, 2008), 89–​102; Maurice Keen, “Treason Trials under the Laws of Arms,” Transactions of the Royal Historical Society 12 (1962): 85–​103; and Frederick Pollock and Frederic W. Maitland, The History of English Law before the Time of Edward I (Cambridge: Cambridge University Press, 1895). 17 For a select list of growing studies on how the people were using the laws and the courts agentively, consult: Barbara E. Hanawalt, “Of Good and Ill Repute”: Gender and Social Control in Medieval England (Oxford: Oxford University Press, 1998); Daniel Lord Smail, The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–​1423 (Ithaca: Cornell University Press, 2003); Warren Brown, Violence in Medieval Europe (Harlow: Longman, 2011), 195–​220; Susan McDonough, Witnesses, Neighbors, and Community in Late Medieval Marseille (New York: Palgrave MacMillan, 2013); Marie A. Kelleher, “Later Medieval Law in Community Context,” in The Oxford Handbook of Women and Gender in Medieval Europe, ed. Judith M. Bennett and Ruth Mazo Karras (Oxford: Oxford University Press, 2016), 133–​47; and her The Measure of Woman. Law and Female Identity in the Crown of Aragon (Philadelphia: University of Pennsylvania Press, 2010); Kenneth Duggan, “The Ritualistic Importance of the Gallows in Thirteenth-​Century England,” in Crossing Borders: Boundaries and Margins in Medieval and Early Modern Britain. Essays in Honour of Cynthia J. Neville, ed. Sara M. Butler and Krista J. Kesserling (Leiden: Brill, 2019), 195–​215.

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178 Emily Hutchison in England, “village communities and towns worked out their own hierarchy of the crimes that they thought were most serious.”18 Legal scholars have built on this idea, proving that the legal systems were contingent upon an exchange between top-​down authority and those over whom it was imposed. For example, regarding the crime of infanticide Sara McDougall explained that while the law threatened execution “It is not correct to assume that these laws were necessarily followed.”19 Justice for crimes like these was not solely the product of inflexible legal prescriptions; rather, it was achieved through a process of interaction with relevant social and cultural norms.20 For her part, Claude Gauvard demonstrated that in France, royal punishment of high crimes was constrained to some extent by the will of the people because strong, vocal reactions against his decisions undermined his authority very publicly.21 Kings were disinclined to execute, which probably explains the high number of pardons.22 The royal government was tacitly aware of how volatile the populace was and it was, consequently, forced into a complicated and delicate relationship of mutual, though unequal, dependency.23 Treason was no exception to the rule. Treason owes its name in part to the Latin “traditio, traditor” and its connection to personal betrayal, especially towards one’s lord. This dimension of its meaning was derived from feudal conventions ordering power relationships and which were contingent upon ties of mutual obligation and devotion between lord and vassal.24 For McVitty, the primary axis of this frame is the homosocial bonds between men.25 However, we should note here that, given women could hold land titles in both England 18 Hanawalt, “Of Good and Ill Repute,” 1–​17, at 11.

19 Sara McDougall, “Pardoning Infanticide in Late Medieval France,” Law and History Review 39 (May 2021): 229–​53, at 232. 20 McDougall, “Pardoning Infanticide,” 231.

21 Claude Gauvard, “De grace especial”: Crime, état et société à la fin du Moyen Âge (Paris: Publications de la Sorbonne, 1991), 142.

22 McDougall, “Pardoning Infanticide,” 231, especially n. 4. On pardons more generally, consult Gauvard, Condamner à mort au moyen âge. Pratiques de la peine capitale en France XIIIe-​XVe siècle (Paris: PUF, 2018), 187–​213. Gauvard tabulated that there were 3752 pardons issued between 1380 and 1424. This roughly corresponds to Charles VI’s reign (1380–​1422). De grace especial, 62.

23 See also Emily J. Hutchison, “Passionate Politics: Emotion, Affect, and Identity Formation among the Menu Peuple in Early Fifteenth-​Century France,” in Affective and Emotional Economies in Medieval and Early Modern Europe, ed. Andreea Marculescu and Charles-​Louis Morand-​Métivier (London: Palgrave MacMillan, 2017), 19–​50.

24 Bellamy, The Law of Treason in England, 1; Cuttler, The Law of Treason and Treason Trials, 4–​5. For McVitty, a more appropriate way of thinking about the cultural values informing definitions of treason is as “chivalric” virtues, or the virtues associated with knighthood. These terms are deployed throughout the study. Treason and Masculinity in Medieval England.

25 McVitty, Treason and Masculinity in Medieval England. On the importance of masculinity in defining treason, see also Westerhof, “Deconstructing Identities on the Scaffold: The Execution of Hugh Despenser the Younger, 1326,” Journal of Medieval History 33 (2007): 87–​106.

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and France, the feudal conventions and the bonds between lords and vassals were never exclusively male. In polities like the kingdom of France or the city states of Italy, where Roman law strongly influenced juristic thought and practice, we observe a prominence of laesa maiestatis rather than treason in juristic thought. The former refers to an injury to the majesty, dignity, and person of the king.26 Under Roman law, lese majesty was tightly connected to perduellio (hostility to the Roman people, the “State”) and equally associated with conspiracio (conspiracy) and seditio (sedition), and also proditio (betrayal or treachery).27 As scholars have abundantly shown, continental rulers progressively incorporated imperial notions of sovereignty, and especially the idea that they were emperors in their own realms. As they did so, the two Roman laws, the lex Julia maiestatis and lex Quisquis, became fundamental to the task. They gave jurists the tools to better articulate royal pretentions to sovereignty by establishing that any attacks against the king, his family, his officers, and later, the “common good” harmed his royal dignity. Attacks included physical harm (or conspiracies to execute this) including armed risings, revolts, or verbal attacks. This explains why Raoulet Mathei and Martial Verit were prosecuted for the words they uttered against the king.28 The Roman precedents were fully incorporated into jurisprudence such that by the early fourteenth century the learned law differentiated between charges of lese majesty and of treason. The former was an attack against the crown (or public authority) and thus against royal majesty, and the latter remained anchored to the notion of treachery. It underscored personal betrayal of the highest magnitude, a breach of faith that subverted social order and caused social disruption. Consider, for example, the conviction of Jehan Jouye for lèse majesté and that of Denisot Fromont for traïson (“betrayal”) of the king, both of which are found the only surviving criminal trial register of the Grand Châtelet of Paris (1389–​1392).29 The first produced and circulated fake coins with his accomplices, Robinet Le Cauchois, orfèvre (“metalsmith”), and his wife Jehanne, and Alips Nicole, a moneychanger.30 We should note that two of his accomplices were women, a point to which we return below. Jehan Jouye was boiled to death in the pig market outside the Gate of St. Honoré in Paris because the crime “est de leze-​magesté & contre le bien publique (is lese majesty and against the public good).”31 On the other hand, Denisot Froment was a royal sergeant of the “eaues et 26 Jean-​Marie Carbassse, Histoire du droit pénal et de la justice criminelle, 3rd ed. (Paris: PUF, 2014), 59–​60, 343–​44; Chiffoleau, “Le crime de majesté,” 599–​600; Jones, “ ‘Bons Bretons et bons Francoys’,” 96–​97; Cuttler, The Law of Treason, 2, 6–​15. 27 Carbasse, Histoire du droit pénal, 59. 28 See above, nn. 1 and 4.

29 Henri Duplès-​Agier, ed., Registre criminel du Châtelet de Paris, du 6 septembre 1389 au 18 mai 1392, 2 vols. (Paris: Lahure, 1864), 1:480–​93; 2:66–​71. 30 Registre criminel, 1:480–​93.

31 We do not know what happened to his accomplices. Registre criminel, 1:492.

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180 Emily Hutchison forêts (Water and Forests)” who had forged a royal letter to raise money in the king’s name for his own use. He was convicted of theft and hanged as a thief, but in his sentencing, they added that he had committed “traïson et faulseté (treachery and dishonesty)” in using his royal office to manipulate the king’s subjects.32 There are clear parallels between the two, namely that they both undermined royal authority, both challenged the king’s sovereignty, and they were both socially disruptive. Yet, the legal nuances differentiated between them. Minting or interfering with royal currency unambiguously fell under the umbrella of lese majesty and was, as noted in the sentencing, an attack on the public good. Misrepresenting royal authority for the purpose of theft was less black and white. This explains the more grievous crime and sentence Jouye was given, but it is important to pause on Froment’s conviction nonetheless. The tribunal emphasized his treachery; it was a central component of his sentencing. As a royal officer who abused his position of power and trust, his was a more personal betrayal than Jouye’s deeds. In the hierarchy of crimes, Froment’s was less severe, but the tribunal wanted people to know he was just as treacherous as Jouey, or perhaps more. The practice of justice was far more complicated than the ink on parchment suggests. In England where common law dominated, lese majesty was less influential but not inconsequential. J. G. Bellamy faithfully traced the dialogue between Latin and early English influences in shaping what ultimately remained a rather nebulously defined legal category.33 Legal treatises such as those drafted by Glanvill or Bracton included some Latin concepts, such as laesa maiestatis, seditio, and proditio. However, Bellamy argued “the full Roman law doctrine of lese-​majesty was never accepted in England.”34 Most scholars agree that there was far greater baronial pressure on English kings than elsewhere.35 Karen Bosnos and Katherine Royer both demonstrate that the barons of England who ultimately determined the form of the treason trial of a peer, or indeed whether there should be one at all.36 Edward I made more forceful and successful attempts to punish attacks against the king’s supreme authority, but Edward II’s executions of treason are demonstrative of his weakness.37 Richard II, also, struggled during the Merciless Parliament (1388) to assert his sovereignty and his kingly virility. He and his supporters faced repeated humiliations as claims of treason were weaponized against them. He retaliated in the 1390s, drawing on Roman law and lese majesty to convict his old enemies. His strategies included elevating himself above the 32 Registre criminel, 2:70. For the whole trial, see 2:66–​70.

33 Bellamy, The Law of Treason in England, 4–​10, 14; Royer, The English Execution Narrative, 3–​4. 34 Bellamy, The Law of Treason in England, 11.

35 Bellamy points to the Magna Carta as evidence of their relative cohesion, which prevented English kings from establishing theocratic rule like their continental peers. The Law of Treason in England, 11.

36 Royer, The English Execution Narrative, 18; Bosnos, “Treason and Politics in Anglo-​Norman Histories,” 293–​306. 37 Royer, The English Execution Narrative, 27.

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law, asserting the “indivisibility of king and crown in his own person,” and whereby any insults or denigration of his person, as a man and as a king, was an act of treason “against the public authority he embodied.”38 These ideas are manifest in the 1398 the Extension of the Law on Treason.39 This statute was repealed immediately upon Henry IV’s usurpation, but as McVitty has shown, elements including harmful speech against the king were later taken up again. The treason trials of 1397 and later under Henry IV demonstrate the point at which these concepts were martialed effectively, but which converge also with “customary themes of personal betrayal, false speech, and true manhood performed or undermined through the keeping and breaking of oaths.”40 In the trials, “the charges drew power from the interpretation of treason as lèse majesté but they simultaneously portrayed the accused as violators of chivalric honour and the values of true manhood.”41 One of the most effective tools for communicating with the populace about treason was through public executions. Executions marked the bodies differently according to the crime with the express purpose of constructing a recognizable set of somatic signifiers. For example, in Paris, men guilty of lese majesty were dragged through the streets, beheaded in the Halles market, and brought to the Montfaucon gibbet to hang until their body decomposed; women were burned at the stake in the pig market outside of the St. Honoré gate. Men and women who were accused of treachery against their masters, mistresses, or clients alongside their other capital crimes died according to the latter.42 As Katherine Royer argued, the condemned body on the scaffold “conveyed meaning, for that body was more than just the object of a technology of power.”43 Beheading and distributing the limbs of convicted traitors in England was symbolic as much as it was functional.44 The traitor was cast as a diseased part of the social body that had to be amputated.45 According to Royer, Edward I distributed body parts around the realm to stand as signs of imperial cohesion. The limbs provided the opportunity 38 McVitty, Treason and Masculinity, 53–​57.

39 “Extension of the Law of Treason, 1398,” in English Historical Documents (EHD), ed. A. Myers (London: Routledge, 1996), www.eng​lish​hist​oric​aldo​cume​nts.com/​docum​ent/​view.html?id=​1125 (accessed November 19, 2019). 40 McVitty, Treason and Masculinity, 52–​53.

41 McVitty, Treason and Masculinity, 58.

42 Male thieves were hung with their hands tied behind their backs, and female thieves were buried alive; male murderers were hung with their hands tied in front after being dragged through the street, and female murderers were burned alive. Female thieves were presumably buried alive at the foot of Montfaucon gallows, and murderesses were burned alive in the pig market outside the St. Honoré gate. See Emily J. Hutchison, “Knowledge, Sex, and the ‘Women of Sin’ in the Registre Criminel du Châtelet de Paris (1389–​92),” Gender & History 32 (2020): 131–​48, at 146–​48. Regarding the location of the burials, see Gauvard, Condamner à mort, 230. 43 Royer, The English Execution Narrative, 1–​2.

44 Westerhof, “Deconstructing Identities on the Scaffold,” 87–​106. 45 Westerhoff, “Amputating the Traitor,” 178.

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182 Emily Hutchison for everyone under the king’s rule, particularly in the fringes of his growing empire, to witness the disciplining of those who had sought to disrupt that cohesion.46 Whether the townspeople and peasants understood this nuance is less clear, for the evidence is silent on the matter. However, they would certainly understand the gravity of the punishment because it was different, more severe, and more solemnly ritualized than a regular hanging for theft or murder. Indeed, executions of traitors in England were mainly consistent in form, with only slight variations. The consistency made them more recognizable. A great number of traitors were drawn, hanged, and subsequently beheaded. In the aftermath of the failed “plot to seize the king” in January 1414, led by Sir John Oldcastle, Lord of Cobham, of sixty-​nine traitors condemned to capital punishment, forty-​three men in total were “damned for treason,” and all hung after being drawn.47 A few were burned upon the gallows as both heretics and traitors. John Ball, infamous for his leadership in the Peasants’ Revolt of 1381, was sentenced to be drawn, hanged, beheaded, and disembowelled and quartered.48 The public nature of the trials in England also helped to make the legal nuances more legible. They took place under the King’s High Bench and they were open to the public, used the English vernacular and were open to the British people.49 It was in this space that English traitors could contest the accusations and cast themselves as the “trewe” and loyal servants of the king. Those accused had some agency in how they would shape their defenses.50 Having a space to dispute the charges was particularly crucial for elite men close to the kings, whose treason might include all the typical accusations of deceit, unfaithfulness, and manipulation, or far worse, namely of perverting chivalric bonds by attempting to seduce the king, and even of sodomy.51 Indeed the Court of Chivalry permitted noblemen accused of high crimes like treason to prove themselves through a trial by combat. These events were, naturally, heavily coded masculine performances; men were here able to contest the insults to their manly honour.52 Although it was not possible for women to prove their loyalty and honour themselves via trial by combat, they could nonetheless engage in the process. When Lady Constance Despenser was caught organizing a plot against Henry IV in 1405 her betrayal of the king, her crimes were 46 Royer, The English Execution Narrative, 24.

47 “The Rebellion and Execution of Sir John Oldcastle, 1414 and 1417,” in EHD, www.eng​lish​ hist​oric​aldo​cume​nts.com/​docum​ent/​view.html?id=​1423 (accessed November 19, 2019).

48 “John Ball,” in EHD, www.eng​lish​hist​oric​aldo​cume​nts.com/​docum​ent/​view.html?id=​958 (accessed November 19, 2019). 49 McVitty, “ ‘My name of a trewe man’,” 96–​98.

50 This argument is first introduced in McVitty, Treason and Masculinity in Medieval England, 16, 19. 51 McVitty, “False Knights,” 458–​77. For accusations of treason and sodomy against a high-​standing nobleman in Naples, see Dunbabin, “Treason, Sodomy, and the Fate of Adenolfo IV,” 417–​32. 52 McVitty, Treason and Masculinity in Medieval England, 87.

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apparently “refigured as the violation of bonds between men.”53 Constance’s brother, Edward, Duke of York, stood accused of organizing the conspiracy. However, when he denied the charges, Constance asked if any man was willing to prove her charges by battling Edward. She asserted she was willing to surrender herself and be burnt alive if the charges were unproven by loss. Constance’s choices were far from passive; these were the acts of a politically savvy person who knew how to use the legal system. As noted above, executions in France were equally useful opportunities to convey the right ideas about treason/​lese majesty, especially among the nobility. However, they could also leave room for confusion and tensions to emerge. In October 1409, the Provost of Paris arrested the Grand Master of the Royal House, Jean Lord of Montaigu. The royal chronicler claimed that upon his arrest, the Provost of Paris declared aloud and in public: “I have arrested you, disloyal traitor (Teneo te, proditor infidelis).”54 As noted above, proditio was just one element of several constituting lese majesty according to Roman law. However, that was not what the chronicler chose to focus on in this dramatic scene. Here instead Montaigu is publicly labelled a disloyal traitor. The qualifier was redundant, but it served its purpose: it underscored the depth of betrayal this intimate of the king had ostensibly committed. This narrative suggests that the term of traitor had far more weight than anything relating to lese majesty within these public contexts. Indeed, it would have weakened the author’s scene to have the provost arrest Montaigu with a more cumbersome phrase, especially if it involved labels that did not resonate with those observing the arrest unfold. It is important to point out that as the master of the king’s household, Montaigu held a position of trust, one that meant he had the king’s ear. The spurious charges against Montaigu held that he had conspired with the king’s late brother, Louis Duke of Orleans (d. 1407), and the two together committed lese majesty by attempting to kill the king and his heirs. Although Louis of Orleans was never convicted posthumously of the crimes for which he was accused, John of Burgundy was absolved in the wake of the justification he gave in which he accused him of lese majesty directly (March 8, 1408).55 Montaigu’s arrest reanimated the debate, and according to the House of Orleans, when Montaigu

53 For this and what follows, see McVitty, Treason and Masculinity in Medieval England, 102–​4.

54 Michel Pintoin, ed., Chroniques du Religieux de Saint-​Denys contenant le règne de Charles VI de 1380–​1422, trans. Louis Bellaguet (Paris: Imprimerie de Crapelet, 1852), 2:272.

55 The content of the duke of Burgundy’s justification for the assassination given in March 1408 is well analyzed. For recent studies, see Hutchison, “Defamation, a Murder More Foul? The ‘Second Murder’ of Louis, Duke of Orleans (d. 1407) Reconsidered,” in Medieval and Early Modern Murder: Legal, Literary and Historical Contexts, ed. Larissa Tracy (Woodbridge: Boydell, 2018), 254–​80, at 255n5, 267; and also my “Winning Hearts and Minds in Early Fifteenth-​Century France: Burgundian Propaganda in Perspective,” French Historical Studies 35 (2012): 3–​30, at 18–​19. See also, Bertrand Schnerb, Les Armagnacs et les Bourguignons. La maudite guerre (Paris: Perrin 2001), 78–​83; Bernard Guenée, Un meurtre, une société. L’assassinat du duc d’Orléans, 23 novembre 1407 (Paris: Éditions Gallimard, 1992), 189–​201; Richard Vaughan, John the Fearless: The Growth of Burgundian Power (reprint, Woodbridge: Boydell, 2002), 69–​72.

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184 Emily Hutchison was condemned and executed as a traitor, Orleans was effectively tried in absentia.56 The bonds that both Montaigu and the king’s own brother were alleged to have broken were the greatest injury of all. For his alleged crimes, Montaigu was condemned and executed as a traitor who committed lese majesty; he had his property confiscated as traitors did. It is becoming clearer that regardless of the legal traditions framing the legal and constitutional meanings of high treason and lese majesty, the notion of betrayal remained at its core.57 Indeed for Westerhof, treasonous acts by the high nobility of England were primarily framed as a breach of loyalty.58 This foundational concept came from a variety of sources, which might explain the weight it carried. As observed above proditio (“betrayal, treachery”) was a long-​standing dimension of laesa majestatis in Roman law. It was also central to defining a failed bond between lord and vassal, one that was contingent on mutual loyalty and honour. Finally, trust and honour were central values in medieval communities. For example, murders were always framed as acts of treachery between community members.59 In his compilation of customary law of Beauvaisis in thirteenth century, jurist Philip de Beamanoir explained, “there is no murder without treachery.”60 Regardless of their form, betrayal was legible as socially deviant in medieval communities. It is not difficult to imagine, therefore, that an act of betrayal of a lord, especially the king, would also be widely interpreted as transgressive, dishonourable, and disruptive. Interestingly, the spectators reacted very badly to the execution of Jean de Montaigu.61 Specifically, they were angry because Montaigu seized the opportunity on the scaffold to deny the charges against him and the duke of Orleans. He apparently showed them his torture wounds, insisting that his confession was coerced. Because the crowd was agitated, the executioner failed to read out his sentence as was typical in the ritual, and instead beheaded him without due course. The scene is instructive. First, it is a good example illustrating the legibility of executions as coded rituals, but whose meanings were derived in part by the spectators. As royal acts, they could be effective in 56 Hutchison, “The Politics of Grief in the Outbreak of Civil War in France, 1407–​1413,” Speculum 9 (2016): 422–​52, at 445.

57 They included betrayal of the king, of a lord, of family members, of the community (the kingdom, a particular city, or a local community), and even of God. W. R. J. Barron, “The Penalties for Treason in Medieval Life and Literature,” Journal of Medieval History 7 (1981): 187–​202, at 187–​88. Larissa Tracy summarizes Barron’s arguments succinctly in “Introduction: The Shameful Business of Betrayal and Treason,” in Treason: Medieval and Early Modern Adultery, Betrayal, and Shame, ed. Larissa Tracy (Leiden: Brill, 2019), 1–​24, at 9. 58 Westerhof, “Deconstructing Identities on the Scaffold,” 87–​106.

59 Jolanta N. Komornicka, “Treacherous Murder: Language and Meaning in French Murder Trials,” in Medieval and Early Modern Murder, ed. Larissa Tracy (Woodbridge: Boydell, 2018), 96–​114.

60 Philippe de Beaumanoir, The Coutumes de Beauvaisis of Philippe de Beaumanoir, ed. and trans. F. R. P Akehurst (Philadelphia: University of Pennsylvania Press, 1992), 303. See also Hutchison, “Defamation, a Murder More Foul?” 262n33. 61 Pintoin, Chroniques du Religieux de Saint-​Denys, 2:272.

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conveying the extent of the king’s authority and his rights over its subjects.62 Executions like Montaigu’s follow established scripts wherein all those participating, including the condemned, the executioner, and the spectators, know exactly what to expect and their particular roles.63 However, this execution exemplifies the fraught nature of these public rituals that could threaten royal authority if the spectators were not supportive. Indeed, the crowd’s growing dismay as Montaigu revealed his torture wounds caused them to doubt the legitimacy of the claims of lese majesty; in that moment they challenged the official interpretation of the acts. This is precisely why the executioner felt compelled to seize control before the event was lost entirely to the spectators. There were other ways of communicating with the people about royal visions of sovereignty and treason, namely through royal letters patent or edicts. However, it seems that the French chancery were reluctant to use the term lese majesty in royal ordinances. As Michael Jones explained, the charge of lese majesty was “a catch-​all, so that the actual word ‘treason’ is often absent from documents concerning traitorous behaviour.”64 Indeed a majority of extant legal records of practice appear to rely more often on terms such as “rebellion, disobedience, and excesses.”65 These concepts reflected the cultural values that predominated amongst the people relating to loyalty/​ treachery, honour/​dishonour, and duty/​indifference. For example, on July 21, 1388, Charles VI issued a letter patent to all the royal officers of the kingdom, officers called baillis and sénéchaux, and prevosts et justiciers, prohibiting his subjects from resisting them in their functions, particularly as it related to punishing crime.66 The document first explains that many subjects in Paris and around the realm were committing numerous “crimes, excesses, evil deeds, and infractions (crimes, excez, maléfices et deliz),” but when the king’s representatives try to arrest or punish them, or confiscate their property, they resist violently.67 The letter denounces those who impede the royal officers of justice, often beat them, and sometimes kill them, which were “serious rebellions and disobediences (greigneurs rebellions et desobéissances).” These, the letter stipulates, are “a bad example, and have been done in great scandal and lesion on justice and in erring and offending in many ways our sovereignty and royal majesty.”68 Crucially, it demands that the king’s representatives, the baillis, sénéchaux, and prêvôts, as well as the noblemen and the communities, police these behaviours together. 62 Gauvard, Condamner à mort, 160–​94.

63 Gauvard, Condamner à mort, 215–​28. Also Danielle Westerhof, “Amputating the Traitor,” 178.

64 Jones, “ ‘Bons Bretons et Bons Francoys’,” 98. See also McVitty, Treason and Masculinity, especially 79–​167. 65 Royal letter patent, July 20, 1411; edited in Denis-​François Secousse, ed., Ordonnances des rois de France de la troisième race, vol. 9 (Paris: Imprimerie Royale, 1755), 635–​37, at 636.

66 François-​André Isambert, Recueil général des anciennes lois françaises, depuis l’an 420 jusqu’à la Révolution de 1789, vol. 6: 1380–​1400 (Paris: Belin-​Leprieur and Verdrière, 1824), 631–​35. 67 Isambert, Recueil général, 632. 68 Isambert, Recueil général, 632.

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186 Emily Hutchison It is evident from the invocation of royal majesty and from the notion that royal officers were extensions of the king that Roman law shaped the document. It affirms Jacques Chiffoleau’s argument that even where the words failed, Roman legal precedents gave the law its form.69 However, whereas Roman law was the skeleton of the ordinance, its matter consisted of more accessible, more relevant, and more resonant language for the people. Indeed, by using more straightforward, less contentious terms like “rebel” and “disobedient” repeatedly rather than the more complicated “traitor” they simplified the semantic field. Moreover, they centred the more socially current notion of betrayal.70 This strategy was particularly important because this ordinance was directing Charles VI’s royal representatives and his subjects to cooperate, to police, and to punish the rebellions and disobediences they observed. The ordinance held all subjects legally and morally obligated to root out the deviance and see it punished “so that it may stand as an example to all.” Here, the king expected cooperation from below to reify lese majesty and make it more applicable to the real lives of people. The ordinance may have exaggerated the extent of the animosity and resistance among the populace to the king’s justice, but their claims were not unfounded. Scholars have shown that royal officers were experiencing violent challenges in Paris and elsewhere.71 There were numerous attempts during Charles VI’s rule to address the abuses and rebuild trust with the localities, but most were in vain. The people’s ongoing hostility towards royal officers of justice suggests that the latter’s intervention in local affairs was often perceived negatively, as acts of interference. It also suggests that local communities did not necessarily consider refusals to submit to royal officers as deviant or criminal behaviour.72 Rather, they might have seen them as productive tactics for defending the common good. This reality signals the autonomy with which the local communities reacted to top-​down discourses about rebellious acts. 69 These ideas are drawn directly from the lex Julia majestatis and lex Quisquis. See Carbasse, Histoire du droit pénal, 59–​60, and Chiffoleau, “Le crime de majesté,” 609.

70 The two terms were connected five times in the document. One time the phrase included “injures.” Obedience is mentioned on its own once, and disobedience alongside “excez ou injures.” Isambert, Recueil général, 633, 643.

71 Attacks on the king’s men were common in Paris. See Bronisław Geremek, The Margins of Society in Late Medieval Paris, trans. Jean Birrell (Cambridge: Cambridge University Press, 2006), 23–​24. In the arrest records of the Grand Châtelet of Paris in 1412, there are at least two cases where sergeants were attacked. See Alfred Soman, Claude Gauvard, Mary Rouse, and Richard Rouse, “Le Châtelet de Paris au début du XVe siècle d’après les fragments d’un registre d’écrous de 1412,” Bibliothèque de l’école des chartes 157 (1999): 565–​606. The two examples are no. 24, 597–​98, and no. 50, 602.

72 This support’s Hanawalt’s argument that in England, popular attitudes towards the illicit and the rebellious were not always negative. This could include high felonies, including murder or rape, and in some cases, treason. Hanawalt, “‘Of Good and Ill Repute,’”14. See also Tracy, “The Shameful Business of Betrayal and Treason,” 4–​5.

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Bottom-​Up Experiences with Treason It is the autonomy with which non-​noble communities operated that occupies our attention hereafter. Our first example is the situation of John Duke of Burgundy in February 1414. At this point, he and his followers were officially labelled by the royal government “rebelles et désobeissants, infracteurs et violateurs de la paix, et conséquemment ennemis et adversaires de notre personne, de l’État, et de tout notre royaume (rebels and disobedients, breakers and violators of the peace, and consequently enemies and adversaries against our person, the state, and all of our realm).”73 Here again, the labels remained broad but the meaning was clear. During his exile what apparently bothered the duke the most that he was being ridiculed by the menu peuple (“the common people”). According to the royal chronicler, they were apparently sharing jokes and satirical songs denigrating him publicly as a traitor (“proditorum publice nominabant”).74 The very fact that the people were engaging in political satire about these issues is further evidence that they were taking interest in current events, and they recognized the most salient legal criteria regarding disloyalty, betrayal, and attacks on the king’s sovereignty, but all through their own cultural lens. It was they who specified that he was a traitor, not the royal letters patent about the duke. Furthermore, their interpretations of his deeds—​ which amounted to public opinion of the duke—​were important enough to distress one of the most powerful noblemen in the realm. It should be noted that the rumours were spreading during an extraordinary political moment in time: the civil war between the “Burgundian” and the “Armagnac” factions (1411–​1435). Townspeople across the realm, and especially Parisians, were very well informed about all the political news relating to the conflict.75 They received their information in part through letters patent that were cried out in the streets explaining the many odious crimes of betrayal both parties ostensibly committed against the king, the realm, and the common good. These were stereotypical wartime crimes that everyone in the realm could easily recognize, namely: pillaging the countryside; destroying and stealing from churches; and abducting and harming virgins, priests, and innocents. The stereotypes were expedient in building the traitor trope because they touched on the concerns of the wider populace for their safety and social stability, and their livelihood, and they were fears that were rooted in lived experience during war.76 Cast as individuals who cared little about the concerns of the rest of the community, traitors, then, were effectively social deviants; they were unnatural and irrational 73 Pintoin, Chroniques du Religieux de Saint-​Denys, 3:266.

74 Pintoin, Chroniques du Religieux de Saint-​Denys, 3:278. 75 Hutchison, “Passionate Politics.”

76 Gauvard, “Rumeur et stéréotypes à la fin du moyen âge,” in La circulation des nouvelles au moyen age. Actes du XXIVe Congrès de la SHMES (Avignon, juin 1993) (Rome: École Française de Rome, 1994), 157–​77. For more detailed analysis of the stereotypes in practice during this conflict, see Hutchison, “Winning Hearts and Minds,” 17–​22.

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188 Emily Hutchison people.77 This discursive strategy flagged their chosen path of deviance and ultimately ostracized them.78 Try as they might, the partisans of the factions regardless of their status had substantial negative stereotypes to overcome if they wished to challenge the labels marring their reputations in the streets. Notwithstanding the threats to their lives and property, partisans from the highest nobleman to the poorest tradesperson wore symbols of allegiance to their faction openly and proudly.79 These visible markers created anti-​communities, which became the party of the traitors. For example, the 1412 intake records of the Grand Châtelet, include the arrests of two men connected to the signs of the Armagnac party, who, at that time, were labelled “enemies of the king.”80 They left behind two white bands in a hostel they stayed in.81 The record is clear that they were arrested “for suspicion that they hold the party against the king our lord (pour souspeçon que ilz ne tiengnent ledit party contre le roy nostre sire).” Although neither lese majesty nor treason is invoked, the record does specify that the men were “against the king our lord.” Here again the specific labels they chose were of lesser importance than identifying that an act of disobedience to the king. Presumably it was the hostel owner who denounced them rather than turning a blind eye. Another example of community policing emerges in a pardon granted to the entire town of Caen. They had destroyed the house of Bernard Campion after identifying him as an Armagnac supporter back in 1412. They asserted that they had simply followed the orders of the king to denounce and confiscate the property of any of the king’s enemies (October 1411).82 The letter describes Bernard as having given aid and comfort to the Armagnacs. Hence, Campion showed himself publicly as an “ennemie desobeissant et rebelle de nous et de nostre royaume (enemy, disobedient and rebel against us and our realm).” The pardon then explains that, because he had in fact committed lese majesty, the town responded with a “grant hayne (great hatred)” for Campion. They tore down his home to widen the street, erected a stone cross, and built a fountain. Although it was most likely the clerk recording the incident in the pardon who specifically connected rebellion and disobedience with lese majesty, the townspeople had initiated the incident based on their interpretation of his allegiances. Here they privileged the collective over any one individual, which suggests that at least superficially there was some community agreement on how to interpret traitors and their behaviour. When 77 For their connection to disease in the social body and to beasts, particularly wolves and dogs suffering from rabies, see Komornicka, “The Parlement of Paris and Crimes of Lese Majesty,” 54–​59. 78 Komornicka, “The Parlement of Paris and Crimes of Lese Majesty,” 54–​63, 76–​78.

79 Emily J. Hutchison, “Partisan Identity in the French Civil War, 1405–​1418: Reconsidering the Evidence on Livery Badges,” Journal of Medieval History 33, no. 3 (2007): 250–​74. 80 For both, see Soman, Gauvard, Rouse, and Rouse, “Le Châtelet de Paris au début du XVe siècle,” no. 31: 599, and no. 45: 602. 81 Soman, Gauvard, Rouse, and Rouse, “Le Châtelet de Paris au début du XVe siècle,” no. 31: 599. 82 AN: JJ 165, fols. 65r–​65v.

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they policed their peers in this way, people in the towns and villages, such as the burgesses of Caen, the Parisian hostel owner, the merchant visiting the Lendit fair, or the shepherd who informed on Marcial Verlit, reified royal definitions of treason. They were full participants in regulating, denouncing, and punishing those who the crown cast as deviant, disloyal subjects. However, the populace determined for themselves whether to support the royal efforts by either denouncing or defending each other from the interventions of the outsiders. We observe similar patterns in England among the lower classes in unstable political crises. Streets, taverns, and marketplaces were critical loci for the exchange of politically charged ideas in English towns just as they were elsewhere.83 During Henry IV’s reign, urban centres like London were hotbeds of resistance to Lancastrian rule.84 Ideas were shared in the form of speeches, handbills, petitions. Treasonous ideas were circulated within the male urban networks that brought lawyers, taverners, and guild members into contact with one another, and bills were often posted on the doors of important places like St. Paul’s and Westminster Hall in London. For McVitty, “bill casters drew on the shared values of civic manhood and on the geopolitical potential of urban space to enact their resistance to the Lancastrian regime while claiming to be loyal subjects defending law and right order.”85 For example, John Sperhauk was executed as a traitor in April 1402 after repeating verbatim a series of political criticisms he heard from a tailor’s wife.86 He rehearsed her critique in the village of Morden in Cambridgeshire, to “John Taylor and to a poor beggar and his wife and many others of the said village.” Her/​his complaints included declarations that King Henry IV was “not the rightful king,” that he was not the natural son of John Duke of Lancaster but was, rather, “the son of a butcher of Ghent,” that the king “had not kept his covenant with his commons” relating to the taxes raised for war, and that he instead “collected much wealth from his commons and done nothing with it to the profit of the realm but only for all his lords and many other gentlemen.”87 For repeating her words to others, John was accused and condemned for “inciting and arousing the people … against their aforesaid liege lord.”88 There is no evidence to suggest, however, that the woman who had first shared the views was arrested.89 Someone reported him. Although we do not know who, we can offer reasoned hypotheses to try to put together the “theatre of action.” We know he told someone 83 For this point in England, see McVitty, Treason and Masculinity, 107, 115, 137–​67. 84 McVitty, Treason and Masculinity.

85 McVitty, Treason and Masculinity, 149.

86 McVitty analyzed this case in depth. Treason and Masculinity, 114–​18. For the archival notation, see TNA: KB 9/​189/​27; and TNA: KB 27/​564 Rex m. 12. 87 TNA: KB 27/​564 Rex m. 12; cited in McVitty, Treason and Masculinity, 114.

88 TNA: KB 27/​564 Rex m. 12; cited in McVitty, Treason and Masculinity, 116.

89 For McVitty, this is one of several examples of women’s roles in treason being wilfully erased. McVitty, Treason and Masculinity, 114–​18. We will return to this discussion later in this chapter.

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190 Emily Hutchison named John Taylor. Perhaps given he was the only one named, it was this man who informed the authorities. Otherwise, Sperhauk shared the information with a beggar and his wife. It is possible that their shared status gave him the confidence to discuss politics so openly. He also shared it with “other villagers.” Although we don’t know how many or in what circumstances, it must have been a relatively social exchange, for these were rather lengthy points to share that would have taken more than a few minutes. It is likely, therefore, that these ideas were shared in a tavern setting or in the village market square. It is, moreover, important to note already that at least two women were involved in these exchanges: first the wife of the tailor whose ideas he was repeating, and second, the wife of the beggar who heard them. There were doubtless other women among the villagers even if they are not specifically named. As Haemars and Delameillieure have argued for Brabant, women were as involved as men in discussing, debating, and disseminating political ideas in town and village settings.90 There is little reason to doubt the same was true in England given how well-​informed the tailor’s wife was. We can find further evidence of women’s involvement in political dissent by briefly examining the Lollards. They, too, were implicated in treason, spreading their political ideas as widely as they could.91 Importantly, the records relating to the Lollard treachery, namely their spreading of “novelties and falsities,” include women.92 This is evident in a petition presented to Parliament by the Commons regarding the Lollards issued in the on December 22, 1406: And there are many other people, some dwelling within various privileged places to which numerous men and women repair, and some travelling throughout the country, who try in other ways to sow dissension, divisions and discord amongst the aforesaid lords spiritual and temporal and the faithful lieges and subjects of your said kingdom. Some of these evil men and women say, and by false oaths and evidence, wickedly publish and cause it to be broadcast erroneously amongst the people of your realm, that Richard, formerly king of England, who has been called to God, and on whose soul may God in his grace have mercy, is still alive. (My italics.)

The issues of greatest concern are plain. Men and women were ostensibly travelling around sowing divisions in the realm by arguing Richard II was still alive. According to this description, the women’s speech was as problematic as was the men’s; female Lollards were identified as equal participants in sedition. This argument echoed one included in a petition submitted to the king and approved by Parliament regarding 90 Haemars and Delameillieure, “Women and Contentious Speech,” 325, 335–​40. 91 McVitty, Treason and Masculinity, 139–​45.

92 For this and what follows, see “Henry IV: March 1406, Part 1,” no. 62, “Contre les Lollardes,” in PROME, British History Online, www.brit​ish-​hist​ory.ac.uk/​no-​ser​ies/​par​liam​ent-​rolls-​medie​val/​ march-​1406-​pt-​1 (accessed July 18, 2021).

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Lollard heretics back in January 1401.93 Here, too, women were recognized as possible transgressors. The petition asked that if caught preaching, organizing assemblies, writing books or “teaching, informing or inciting people,” that every one of those people “of whatever sex, status or condition they may be,” should be arrested and imprisoned in the diocesan prisons. Similarly, in response to the 1406 petition, the statute that was passed on the same day forbade all Lollards, whether male or female, from participating in spreading the “falseties.” It clearly stated that “if any man or woman, of whatever status or condition they may be … preaches, publishes, or openly maintains that Richard, formerly king, who is dead, lives … each and every one of them should be arrested, captured and thrown into prison without being released on bail or otherwise.”94 These narratives offer numerous clues regarding the reality of the “theatre of action,” even if the particulars remain behind the curtain. They suggest that women were actively involved in spreading these problematic, treasonous ideas—​or at the very least, that they could engage in this activity. These narratives offer important clues as to the political (and religious) work that women were indeed undertaking at ground level. They were active, they were interested, they were invested, and they, too, took risks. Interestingly however, in the wake of the statute, only men were indicted as traitors for these offenses. This reality led McVitty to conclude that it “follows the gendered pattern established in previous treason proceedings where women’s words were dismissed as politically impotent gossip while men’s public speech was constructed in law as a material act of treason.”95 One of those examples was that of the tailor’s wife whose words John Sperhauk had repeated verbatim. Another was the example of Constance, Lady Despenser.96 It was she who organized a conspiracy, pinned the blame on her brother, and challenged him to trial by combat when he denied the charges. Constance’s story complicates the argument that combative words and armed combat to prove trueness (that is, manly loyalty) were exclusively masculine performatives. There is little doubt that when men fought in the Court of Chivalry or used their speech acts to assert their loyalty as “true men,” they were asserting their virility in very public ways. However, Constance’s assertive speech acts are important to this story. Although she drew from a heavily gendered process by calling on a male defender to prove her 93 “Henry IV: January 1401,” no. 48, “Petitio cleri contra hereticos,” in PROME, British History Online, www.brit​ish-​hist​ory.ac.uk/​no-​ser​ies/​par​liam​ent-​rolls-​medie​val/​janu​ary-​1401 (accessed July 19, 2021).

94 “Henry IV: March 1406, Part 1,” no. 62, “Contre les Lollardes,” in PROME, British History Online, www.brit​ish-​hist​ory.ac.uk/​no-​ser​ies/​par​liam​ent-​rolls-​medie​val/​march-​1406-​pt-​1 (accessed July 18, 2021). 95 McVitty, Treason and Masculinity, 144. 96 See above, n. 54.

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192 Emily Hutchison claims, her role in this conspiracy from start to end does not suggest she played the quiet passive feminine role we would expect her to embody in her station. Rather, she manipulated the systems available to her, pushing hard against the boundaries of the gendered expectations for noble women. Her courage and willingness to die were the very masculine virtues her male peers drew on to establish their “true manhood,” and thus, their loyalty to the king. She was also very political: whatever her motivations, she led the plot against the king by mobilizing a group of men to do what she asked of them. When caught, it was she who flipped the narrative to exculpate herself. To first organize the men under her and subsequently to distance herself from it indicates that she knew how to draw on the legal and cultural norms underpinning notions of treason and to strategically use the legal proceedings to her advantage, even when she was at a clear disadvantage based on her sex. In addition to participating in political discussions and uttering seditious words, women also participated in other calculated, subversive political acts. When the Avignon Pope, Gregory XI, made his formal entry into Rome in 1377, the city collectively showed its anger and repudiation of the newly elected pontiff by inverting all the usual rituals of the “adventus.”97 Women were as involved as men. For example, they lined the streets and threw biscuits at him rather than the usual roses.98 In the 1413 uprising of the Cabochiens in Paris, the anonymous chronicler, the Bourgeois de Paris, noted that some women were also wearing hoods as signs of allegiance to the rebels.99 There were also two women included on the list of banished Cabochiens pronounced on Thursday, December 13, 1413.100 Justine Firnhaber-​Baker’s work on the “jacquelines” of the Jacquerie revolt of 1358 provides further clues as to women’s engagement in political dissent. Her analysis on the social constituency of the revolt confirms McVitty’s assessment that when it came to prosecuting women involved, the legal system was gendered. Women are certainly harder to locate. Yet, for Firnhaber-​Baker, historians have been too quick to reproduce the same gender bias that appears in the legal sources. In so doing, we reduce women to “an imaginary component of their society: overlooked and ignored 97 Joëlle Rollo-​Koster and Alizah Holstein, “Anger and Spectacle in Late Medieval Rome: Gauging Emotion in Urban Topography,” in Cities, Texts and Social Networks, 400–​1500: Experiences and Perceptions of Medieval Urban Space, ed. Caroline Goodson, Anne E. Lester, and Carol Symes (Farnham: Ashgate: 2010), 149–​74, especially 162–​73. 98 Rollo-​Koster and Holstein, “Anger and Spectacle in Late Medieval Rome,” 170.

99 Journal d’un Bourgeois de Paris, 1404–​1449, ed. Alexandre Tuetey (Paris: Champion, 1881), 31.

100 Damoiselle Marguerie, wife of Guillaume Barrau, and Marguerite, wife of Guillaume des Bordes. For the complete Coville banishment list, see Louis Claude Douët d’Arcq, ed., Choix de pièces inédites relatives au règne de Charles VI (Paris: Jules Renouard, 1863), 1:367–​69. See also AN: X1a, 8602, fols. 282v–​282r; Louis Guillaume de Vilevaut and Louis-​Georges Oudart Feudrix de Bréquiny, eds., Ordonnances des rois de France, vol. 10 (Paris: Imprimerie Royale, 1763): 163–​65; Isambart, ed., Receuil des anciennes lois, no. 551: 398 (August 29, 1413).

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by the scholarship, their presence … is assumed to be unreal.”101 There was a variety of reasons why women’s rebellious activities might be overlooked, including some of their more remarkable or violent deeds being subsumed into the activity of their male family members. However, they also took on supporting and related acts, such as feeding rebels, or pouring boiling water on the king’s men when they attacked a stronghold; they might have found other ways of resisting that would not register as “treasonous” but that were nonetheless symbolic acts of resistance, like stealing and wearing the clothes of their noble superiors. It is possible that during the Cabochien Uprising there were women took up similar types of supporting roles, whereas the two wives who found their names on the banishment list were contributing to more obvious male-​oriented activities. Additionally, we must consider that in the examples provided above, the women who were sharing political ideas found people who would listen to them and who took their ideas seriously—​men included. There is little reason to assume the tailor’s wife only spoke these words to John, a stranger and a vagrant. It is far more likely that she shared these ideas with her family, her neighbours, and friends, and perhaps also other strangers. And they were listening too, as was the case in the village where John Sperhauk spread the information. Finally, as the trial of Jean Jouye indicates, women were involved in other complicated treasonous plans.102 Jean Jouye had three accomplices, two of whom were women. The first was Jeanne, the wife of his male accomplice, Robinet. The second was Alips Nicole, a moneychanger in her own right. The depositions recorded in the trial explain that Jeanne was not only aware of the forgery, but she also assisted her husband and his friend in smoothing out the fake coins. For her part, Alips put them in circulation knowing full well that they were fraudulent. Without Alips, the whole project would have failed; as the moneychanger, it all rested on her. Together, the evidence indicates that regardless of what roles they fulfilled, women did engage in seditious speech, they did participate at least to some extent in organized rebellion, and they involved themselves in political conspiracies. Their actions were taken seriously, whether they were acting against the king or informing on their neighbours. Ultimately, women contributed actively to constructing treason as a cultural, political, and legal category just as their male counterparts.

Conclusion

The precise legal meaning assigned to lese majesty or high treason at the highest levels of government, issues that scholars have traditionally tried to resolve, was in fact unnecessary to the wider populace in both France and England. When we consider how the king’s subjects were consuming legal theories, we learn more about how people, 101 Firnhaber-​Baker, “The Social Consituency of the Jacquerie,” 708, citing Sylvia Frederico, “The Imaginary Society: Women in 1381,” Journal of British Studies 40 (2001): 159–​83, at 159. 102 For this and what follows, see Registre criminel, 1:480–​94. See above, n. 32.

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194 Emily Hutchison their attitudes towards legal categories, and the behaviours or acts they participated in shaping the very concepts in the real lives and experiences of everyday people. The conflation between the legal nuances articulated through the learned law that sought to capture the specific essence of either lese majesty or high treason on the one hand, and the broader notions of betrayal, disloyalty, and disobedience on the other, was not merely the product of ignorance among the populace. Rather, royal institutions attempted to render the concepts more tangible, more cogent, and more concrete through ambiguity. This encouraged reciprocity between political elites and society at large. Indeed, the king’s subjects in France and England—​and both men and women—​actively contributed to developing the concepts in the later Middle Ages, either in policing the deviancy they observed among their peers or by resisting it when they felt the label “traitor” did not fit. For this reason, the chanceries and the courts remained flexible and nimble, aware that for their theories of sovereignty to gain traction, there had to be some integration of broader cultural understandings of betrayal, rebellion, and disobedience. Treason was, therefore, contingent upon reciprocity with the populace, whether they were noble or non-​noble, cleric or layperson, male or female. It was the place where legal theory met with both the acts and the responses of the wider populace that high treason took on its concrete form.

Select Secondary Sources Bellamy, John G. The Law of Treason in England in the Later Middle Ages. Cambridge: Cambridge University Press, 1970. Chiffoleau, Jacques. “Sur le crime de majesté medieval.” In Genèse de l’état modern en méditerranée: Approches historique et anthropologiques des pratiques et des representations. Actes des tables ronde internationals tenues à Paris les 24, 25, et 26 septembre 1987 et les 18 et 19 mars 1988, 183–​213. Rome: École Française de Rome, 1993. Cutler, Simon H. The Law of Treason and Treason Trials in Later Medieval France. Cambridge: Cambridge University Press, 1981. Firnhaber-​Baker, Justine. “The Social Constituency of the Jacquerie Revolt of 1358.” Speculum 95 (2020): 689–​715. Gauvard, Claude. “De grace especial”: Crime, état et société à la fin du Moyen Âge. Paris: Publications de la Sorbonne, 1991. Hutchison, Emily J. “Defamation, a Murder More Foul? The ‘Second Murder’ of Louis, Duke of Orleans (d. 1407) Reconsidered.” In Medieval and Early Modern Murder: Legal, Literary and Historical Contexts, edited by Larissa Tracy, 254–​80. Woodbridge: Boydell, 2018. Jones, Michael “ ‘Bons Bretons et Bons Francoys’: Language and Meaning of Treason in Later Medieval France.” Transactions of the Royal Historical Society 32 (1982): 91–​12. Keen, Maurice. “Treason Trials under the Laws of Arms.” Transactions of the Royal Historical Society 12 (1962): 85–​103. McVitty, E. Amanda. Treason and Masculinity in Medieval England. Gender, Law and Political Culture. Woodbridge: Boydell, 2020.

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Tracy, Larissa. “Introduction: The Shameful Business of Betrayal and Treason.” In Treason: Medieval and Early Modern Adultery, Betrayal, and Shame, edited by Larissa Tracy, 1–​24. Leiden: Brill, 2019. Vaughan, Richard. John the Fearless: The Growth of Burgundian Power. Reprint, Woodbridge: Boydell, 2002. Citations refer to the Boydell Press edition. Westerhof, Danielle. “Amputating the Traitor: Healing the Social Body in Public Executions for Treason in Late Medieval England.” In The Ends of the Body: Identity and Community in Medieval Culture, edited by Suzanne Conklin Akbari and Jill Ross, 177–​92. Toronto: University of Toronto Press, 2013.

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REVOLTS IN THE LATE MEDIEVAL MIDDLE EAST, 1200–​1500* Nassima Neggaz In the Middle East, the late medieval period was characterized by an increasing number of richly documented revolts: Bedouin riots, slave revolts,1 popular revolts of an economic nature led by commoners,2 military revolts led by generals and local governors (amīrs), rebellions of a religious or sectarian nature, among others. Whether in late Abbasid Baghdad, or in the large Mamluk cities of Cairo and Damascus, these revolts and the ways in which they are reported in the historical chronicles demonstrate critical trends and patterns, making their examination in a comparative perspective all the more compelling. How were these revolts dealt with by the political and legal authorities of the time? Were rebels always condemned and criminalized, or were they * This chapter benefited from a FIAS fellowship at the Paris Institute for Advanced Study (France). It has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-​Curie Grant Agreement No. 945408, and from the French State programme “Investissements d’avenir,” managed by the Agence Nationale de la Recherche (ANR-​11-​LABX-​0027-​01 Labex RFIEA+​).    For transliteration, the chapter uses the IJMES Arabic system, except for terms that are common in English language. For dating, it uses both a Hijri/​Islamic (AH) and Common Era (CE) calendar.

1 A good overview of slave revolts and Bedouin bandits is offered in Carl F. Petry, The Criminal Underworld in a Medieval Islamic Society: Narratives from Cairo and Damascus under the Mamluks (Chicago: University of Chicago, 2016), 37–​42, 47–​51. See also Jean-​Claude Garcin, “La révolte donnée à voir chez les populations civiles de l’Etat militaire Mamluk (XIIIe-​XVe s.),” in Autour du Regard: Mélanges Gimaret, ed. Eric Chaumont (Leuven: Peeters, 2003), 261–​78.

2 The term commonly used in the medieval chronicles is al-​‘āmma or a‘wāmm (plural), meaning the masses, or commoners, as opposed to al-​khāṣṣa, the elites. The term al-​‘āmma is often used pejoratively in the sources to denote turbulent, uneducated crowds. M. A. J. Beg, “al-​Khāṣṣa wa ’l-​ʿĀmma,” in Encyclopaedia of Islam (EI2), 2nd edn (Online Resource), eds. P. Bearman, T. Bianquis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Brill: Leiden) (https://​ref​eren​cewo​rks.bril​ lonl​ine.com/​bro​wse/​encycl​opae​dia-​of-​islam-​2), accessed February 6, 2023. Another possible translation is the term “non-​elites” used by scholar Amina Elbendary to denote the non-​ruling/​ non-​Mamluk classes, including common people. To define this large group, Elbendary cites the medieval historian al-​Maqrīzī’s (d. 845/​1442) categorization of society into seven groups: the rulers; the rich merchants and the wealthy; the retailers and small shopkeepers; the peasants; those who receive a stipend (al-​fuqarā’, or the poor); the artisans and salaried persons; and finally, the needy, paupers, beggars living off the charity of others. She further argues that protests were a form of political participation that gave negotiation power to the masses. Amina Elbendary, Crowds and Sultans: Urban Protests in Late Medieval Egypt and Syria (Cairo: American University in Cairo Press, 2015), 6.

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considered deviant based on specific criteria? Did popular riots have the power to influence political decisions, and was violence their only means? In order to answer these questions, this chapter focuses on two sets of revolts identified in the sources: on the one hand, revolts that directly challenged the authority of the ruler; on the other hand, revolts that called to redress a perceived wrong without challenging the ruler’s legitimacy. This difference, it is argued, is key in order to understand the ways in which revolts were framed politically and legally. These revolts are examined in a dynamic perspective by focusing on the interactions between three social groups or actors: the rebels (be they civilians or military figures), the Sultan (ruler), and the religious scholars/​jurists/​judges (’ulamā’) who often acted as negotiators between rebels and political authorities. The chapter sheds light on the legal and political processes through which rebels were either demonized or absolved of any wrongdoing, often through the use or manipulation of legal concepts. The chapter focuses on the cities of Cairo and Damascus during the Mamluk Sultanate (648–​923/​ 1250–​1517), with a few examples included from Abbasid Baghdad and Mongol Persia.3 “To examine a crime is in effect to examine the way in which certain acts were perceived and labelled by those who sought to control and curtail them.”4 This includes not only the legal and political authorities of the time described in the sources, but also the authors who often coloured their accounts with their own ideological and theological perspectives. This is directly related to the nature of our source material. The sources used are primarily Mamluk historical chronicles, which exist in an abundance not seen for prior periods; biographical dictionaries, voluminous as well;5 and legal literature including fatāwā manuals.6 There is little record of sultanic decrees and policies (siyāsa/​qānūn) in the Mamluk sources: criminal registers and archival records of Sharī‘a (Islamic Law) court cases only appear decades after the establishment of the Ottoman Empire.7 That being said, although the Sultan’s policies (siyāsāt) did not come with an extensive body of literature, they may be known through the Mamluk historical chronicles, which provide detailed descriptions of revolts and their judicial treatment.8 Not only are the Mamluk-​era chronicles abundant and highly detailed (more so than

3 Though the focus of the chapter is the Mamluk empire, similar patterns can be observed in Ayyubid (565–​658/​1169–​1260) and Abbasid (132–​656/​750–​1258) revolts.

4 Introduction to Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker (London: Europa, 1980), 4.

5 On the importance of biographical literature for the Mamluk period, see Carl F. Petry, The Civilian Elite of Cairo in the Later Middle Ages (Princeton: Princeton University Press, 1981), 5–​14. 6 Fatāwā (legal advice) literature for the pre-​Ottoman period presents limitations addressed in Petry, The Criminal Underworld, 3. 7 Galal H. El-​Nahal, The Judicial Administration of Ottoman Egypt in the Seventeenth Century (Minneapolis: Bibliotheca Islamica, 1979), 9–​10. 8 Sultanic proclamations and decrees are sporadically mentioned in the chronicles.

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198 Nassima Neggaz official registers), they also offer precious contextual data and analytical commentary.9 Their analysis allows to uncover both the motives of those who rebelled, by giving a voice to the marginalized, as well as the ideological position of the chroniclers, who were often openly critical of the authorities of their time. The comparison of narratives of a single event by various chroniclers allows us to identify the part of commentary or bias. While some chroniclers tended to be closer to power structures, others were writing to highlight the incapacities of the authorities through their description of protests. As such, they did not shy away from commenting on issues of state fraud and corruption, although they also openly condemned protestors for creating chaos when the motives of their revolt were not considered legitimate. The study of revolts, this chapter argues, highlights the dialectic processes between protestors and power structures. Protestors carefully chose how they defined and framed the elites against whom they protested. They used a variety of strategies and symbols and targeted particular officials and policies rather than the regime as a whole. The jurists (’ulamā’) and political authorities considered and framed each revolt differently depending on a variety of factors and with a view to maintain a degree of peace and stability. More than uncompromising acts of violence against state authority, revolts allowed for adjustments to be made on the part of political and religious structures. In that sense, they testify to the bargaining power of the people often wrongly labelled as powerless. A first section will examine the legal discourse on revolt and its evolution up from the second/​eighth to the seventh/​thirteenth century. While rulers had their own siyāsāt or qānūn (sultanic decrees and policies) as instruments, they also relied heavily on Sharī‘a as a source of legitimacy for their rule.10 A second section will delve into the political and legal framing of rebels depending on the challenge they represented to the state: revolts against the authority of the Sultan, and revolts that did not impinge on his authority.

Framing Rebellion in Islamic Law (Second/​Eighth–​Seventh/​ Thirteenth Centuries)

Understanding political attitudes towards rebels requires an examination of the legal attitudes. Political views and discourses on rebels were deeply rooted in Islamic 9 In the words of Petry, “Mamluk-​era chronicles are acknowledged as troves of information and commentary about a wide range of events in medieval Egypt and Syria”; Petry, The Criminal Underworld, 3. While their authors certainly had agendas, they were also serious commentators concerned by the social disturbances of their time. Most of them had served in a legal capacity, often as a judge, in a Sharī‘a court or a secular tribunal.

10 As Kristen Stilt argued, both fiqh (Islamic jurisprudence) and siyāsā were integrated rather than working independently in the Mamluk context. This means that what we refer to as “Sharī‘a” often encompassed fiqh and siyāsā. Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (New York: Oxford University Press, 2012). See also Yossef Rapoport, “Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks,” Mamlūk Studies Review 16 (2012): 71–​102.

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law: religious authority (jurists) and political authority (rulers) cooperated, and both regime officials and Sharī‘a judges presided over cases.11 Political ideologies and legalism intersected in the figures of the ’ulamā’, upholders of religious law and guarantors of the rulers’ legitimacy. This section examines the legal developments in the discourse on revolts from the early Islamic period to the seventh/​thirteenth century, highlighting how jurists offered a nuanced and technical discourse on the right to revolt. Revolt denotes an action undertaken by a person or a group with the aim of breaking away or rising against constituted authority. A rebel is a person who refuses allegiance to, resists, or rises in arms against the ruler or political authorities.12 Revolt is understood here in its widest definition, encompassing not only people who called for a downfall of the government or the imperial ruler, but also activities that involved smaller acts of resistance to the established order, for instance challenging specific sets of laws, or the legitimacy of local governors. In Arabic, the term “revolt” can be translated in a variety of ways: tamarrud, thawra, ‘aṣiyān, but the key terms used in the Islamic medieval chronicles and legal manuals are the concepts of fitna13 (encompassing various meanings including sedition and revolt against God and the divine law) and baghy (rebellion against the ruler) or khurūj. The etymology of these terms sheds light on the meanings associated with revolt in the Islamic historical tradition. On the one hand, fitna has a highly pejorative connotation, denoting trial, temptation, sedition, affliction, but also civil war. In the dictionary of Qur’anic usage, Badawi and Abdel Haleem define the term as meaning “to purify gold and silver by smelting them; to burn; to put to the test, to afflict, to disrupt the peace of a community; to tempt; to seduce, to allure, to infatuate.”14 Fitna became defined as a state of rebellion against the divine Law, bringing with it the seeds of disturbances and civil war. The ḥadīth15 literature emphasizes this meaning, announcing the many troubles (fitan, plural of fitna) that would affect the community of believers after Muḥammad.16 11 On the cooperative relationship between the rulers (Caliphs) and the ’ulamā’ under the Abbasids, see Muhammad Qasim Zaman, Religion and Politics under the Early ‘Abbāsids: The Emergence of the Proto-​Sunni Elite (Leiden: Brill, 1997), especially 70–​118; for the Mamluk period, an overview of scholarly arguments is offered by Yaacov Lev, “Symbiotic Relations: Ulama and the Mamluk Sultans,” Mamlūk Studies Review 13 (2009): 1–​26. On the ’ulamā’’s loss of autonomy between the Bahri and Circassian periods, see Petry, The Civilian Elite, 20–​21. 12 I will use the terms “revolt” and “rebellion” interchangeably, given the very slight nuances between the two terms, and the broad overview of rebellion activities examined in this chapter. 13 Louis Gardet, “Fitna,” in EI2.

14 El-​Said M. Badawi and Muhammad Abdel Haleem, Arabic-​English Dictionary of Qur’anic Usage (Leiden: Brill, 2008), 692; “Your goods and children are fitna” (Qur’an, 8:28; 64:15).

15 In the Islamic tradition, a ḥadīth (plural, aḥādīth) is a record of the sayings and deeds of Prophet Muḥammad.

16 Ibn Baṭṭa (d. 387/​997) mentions the following ḥadīth: “After me there shall break forth such troubles (fitan) that the believer of one morning will, by evening, be an infidel, while the believer of the evening will, the next day, be an infidel—​save only for those whom God will strengthen through knowledge.” H. Laoust, La profession de foi d’Ibn Baṭṭa, traditionniste et jurisconsulte musulman

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200 Nassima Neggaz On the other hand and similarly, the term “baghy” comes from the Arabic verb baghā, which could mean to transgress, to act outrageously; to desire or seek something; to fornicate or cause corruption; or to envy and commit injustice.17 The Qur’an and the ḥadīth traditions are the main sources jurists have relied on to establish their laws regarding the offence of baghy. The negative connotations associated with the terms fitna (to a large degree) and baghy (to some extent) are directly linked to the early history of rebellions in the Islamic world. Revolts plagued the early Caliphates of Abū Bakr, ‘Uthmān ibn ‘Affān, and ‘Alī ibn Abī Ṭālib. The very first fitna took place in 35/​656, twenty-​four years after the death of Prophet Muḥammad (d. 11/​632) who had enjoined his community to stand together and love their brothers in faith as themselves. Many other revolts and seditions (fitan) followed suit, in particular during the Umayyad Empire (41–​132/​661–​750), leading to its downfall, and throughout the Abbasid Caliphate (132–​656/​750–​1258). Revolts constituted the greatest challenge to political rule and power during the first two Islamic centuries. This history shaped both political and religious attitudes to revolts in the Islamic world in the late Middle Ages. The severity of the early revolts and their consequences for the early Muslim community led Muslim jurists to attempt to define clear boundaries as to when a revolt was justified and legal, and when it was condemnable. An entire legal discipline ensued, called “aḥkām al-​bughā,”18 which developed largely from the second/​eighth to the fifth/​eleventh centuries, while the later periods saw interesting changes and departures from the classical tradition. The main sources for the law of rebellion were the Qur’an and the conduct of ‘Alī ibn Abī Ṭālib (d. 40/​661) when faced with rebels.19 While revolts were considered as potentially very harmful for the community of believers as they held within them the seeds of discord and violence, their legal treatment was far more complex than outright condemnation of all revolts. The work of the jurists revolved around the balanced fulfilment of two goals: preventing civil strife (fitna) on the one hand, and on the other ensuring a just order while avoiding corruption (fasād) and checking the rulers’ power. In broad terms, classical jurists favoured stability and banned most challenges to the established ruler, based on the rule expressed in Qur’an 4:59, “Obey God and the Messenger and those in authority among you” as well as numerous aḥādīth. This included rulers who had come to power through illegitimate means. Disobedience to a ruler was only permitted when the latter contravened Islamic law, in accordance with the ḥadīth: “No obedience to the created in opposition to the Creator.” Even in such instances, it was deemed better to counsel and patiently admonish the ruler than to rebel by force. d’école hanbalite, mort en Irak à ‘Ukbarâ en 387/​997 (Damascus: Institut Français de Damas, 1958), 10, 19. 17 Badawi and Abdel Haleem, Arabic-​English Dictionary, 104–​6. 18 The person who commits baghy is a bāghī, plural bughā.

19 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 34. The references to ‘Alī’s conduct explain why Sunni and Shi‘i laws of rebellion do not differ significantly. On non-​Sunni positions, see Abou El Fadl, Rebellion, 295–​320.

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Only when a ruler abandoned Islamic law altogether or became an apostate were his Muslim subjects entitled to overthrow him by force. Stability and order constituted the backbone against which the law could be applied: “better one hundred years of tyranny (unjust rule) than one day of fitna,” said al-​Ghazālī (d. 505/​1111). This did not mean, however, that jurists were not nuanced in their legal discourse on rebels. As Khaled Abou El-​Fadl points out in his study on Islamic laws of rebellion, jurists were cautious not to give rulers “unfettered discretion in dealing with rebels,”20 and often sympathized with those who fought for a more just political order. For instance, Muslim jurists opposed the Umayyad and Abbasid rulers who wanted to apply the ḥirāba21 verse when dealing with rebels, insisting on the different legal categories of brigands and rebels. Islamic law is stricter when it comes to the treatment of ḥirāba and apostasy, than it is on rebels. In classical legal manuals, bughā (rebels) were distinguished from mere brigands and afforded a higher status.22 Classical jurists invoked the precedent of the early Companions who had rebelled against ‘Alī in order to establish that rebellion is not always evil, nor a crime. In order to constrain the state’s ability to use force against rebels, they established a series of legal qualifications that distinguished a rebel from a mere brigand, apostate, or robber. A rebel formally withdrew from the Muslim community by disavowing allegiance to the ruler (khurūj); provided a reasonable religious pretext for their disobedience, rooted in a plausible interpretation of Islamic religious texts (ta’wīl); and constituted a group with demonstrated power to challenge the state (shawka).23 Aḥkām al-​Bughā only applied to dissidents that fulfilled these criteria.24 What set bughā apart from muḥāribūn was that they strove to replace an existing system they deemed illegitimate and unjust by relying on a legal justification called ta’wīl.25 20 Abou El Fadl, Rebellion, 230.

21 Ḥirāba can be translated as brigandage or robbery. The “ḥirāba verse,” Qur’an 5:33, reads: “The punishment of those who wage war against Allāh and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter” (translated by Yūsuf ‘Alī). Abou El Fadl explains that according to Muslim jurists, other than fighting the unbelievers, there are three types of combat (qitāl): 1) fighting apostates (murtaddūn); 2) fighting brigands (muḥāribūn); 3) fighting rebels (bughā). Abou El-​Fadl, Rebellion, 32.

22 These views reflect the classical position of medieval jurists including Al-​Muzanī (d. 264/​878). “Even the jurists such as the Ḥanafīs, who did consider rebellion a sin, were not willing to declare rebellion a punishable crime.” Abou El Fadl, Rebellion, 232.

23 Sohail H. Hashmi, “Rebellion,” in The Princeton Encyclopedia of Islamic Political Thought, ed. Gerhard Bowering (Princeton: Princeton University Press, 2013), 459–​60. 24 For a defense of Mu‘āwiya (d. 60/​680) against apostasy charges because he was seen as a bāghī, see Ibn Taymiyya (d. 728/​1328), Su’āl fī Mu‘āwiya ibn Abī Sufyān Raḍiya Allāh ‘anh, ed. Ṣalāḥ al-​Dīn al-​Munajjid (Beirut: Dār al-​Kitāb al-​Jadīd, 1979). 25 On the different treatment of rebels, see al-​Māwardī, Al-​Aḥkām al-​Sulṭāniyya (Cairo: Dār al-​Ḥadīth, 1427/​2006), 101–​3.

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202 Nassima Neggaz If determined to be on unjust ground, baghy falls under the doctrine of fasād fī ’l-​arḍ (“disturbing peace and order in the land”). The Qur’anic injunction to enjoin right and forbid wrong requires Muslims to suppress fasād (corruption).26 The Sultan, as the guarantor of peace and stability, has prerogatives to do so under the doctrine of siyāsa.27 Siyāsa is defined by the Ḥanafī jurist Ibn Nujaym (d. 969/​1563) as “the act of the ruler on the basis of maṣlaḥa (public interest), even if no specific text [of the Qur’an or the Sunna] can be cited as the source of that act.”28 This means that the ruler has discretionary powers to take measures to safeguard what is deemed as the public interest. Depending on how rebels’ motives and actions were defined by the authorities, the state might take punitive actions including the death penalty.29 The more numerous records from the Ottoman period, in particular the Ḳānūn-​nāme of Mehemmed II, demonstrate the high use of siyāsāt in the realm of physical punishments for offences against the state. The jurists often validated various legislative and administrative measures taken by the Ottoman Sultans and forming the Qawānīn (plural of Qānūn).30 By the fifth/​eleventh century, the legal discourse on Aḥkām al-​Bughā was firmly established, with only minor differences between schools of thought.31 In his work Al-​Aḥkām al-​Sulṭāniyya (The Laws of Islamic Governance), Al-​Māwardī (d. 450/​1058) established the eight ways rebels should be treated as opposed to brigands, infidels, and apostates, as summarized by Soheil Hashmi: the intent is to deter rather than kill rebels; they should not be pursued when they are retreating; their injured may not be killed; captured rebels may not be killed; their property may not be seized and their women and children may not be enslaved; the aid of dhimmīs (protected communities) cannot be sought in fighting rebels; the Muslim commander may not give them assurances of an indefinite truce or conclude a peace treaty in return for monetary payment; and their homes and farms may not be despoiled. Clearly, the goal of these strictures was to rehabilitate rebels back into the body politic as quickly and completely as possible.32

26 Qur’an, 9:112.

27 On the doctrine of siyāsa, see Ibn Taymiyya, al-​Siyāsa al-​Shar‘iyya fī Islāḥ al-​Rā‘ī wa al-​Ra‘iyya (Jeddah: Majma‘ al-​Fiqh al-​Islāmī, n.d.). 28 Ibn Nujaym, al-​Baḥr al-​Rā’iq Sharḥ Kanz al-​Daqā’iq, 9 vols. (Beirut: Dār al-​Ma‘rifa, n.d.), 5:11.

29 An early example of how caliphs could interpret what constituted an act of apostasy rather than a rebellion is the Arab tribes’ refusal to pay the zakāt after the death of Prophet Muḥammad. Caliph Abū Bakr interpreted the refusal as an act of ridda, that is, apostasy.

30 Mohammad Hashim Kamali, “Judicial Authority,” in Encyclopaedia of Islam (EI3) 3rd edn (Online Resource), eds. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, Devin J. Stewart (Brill: Leiden, 2018), accessed February 6, 2023; Sadia Tabassum, “Combatants, Not Bandits: The Status of Rebels in Islamic Law,” International Review of the Red Cross 93 (2011): 121–​39. The jurists had authority to declare a ruler’s siyāsa as “‘ādila” (good) or “ẓālima” (unjust), see Ibn ‘Ābidīn al-​Shāmī (d. 1252/​1836), Radd al-​Muḥtār ‘alā al-​Durr al-​Mukhtār (Cairo: Maṭba‘t Muṣṭafā al-​Bābī al-​Ḥalabī, n.d.), 3:308. 31 Abou El Fadl, Rebellion, 230.

32 Hashmi, “Rebellion”; al-​Māwardī, Al-​Aḥkām al-​Sulṭāniyya, 90–​91.

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Classical jurists insisted that rebels should be asked about their grievances and warned before being fought—​if they express a clear injustice, then the latter must be redressed.33 From the fifth/​eleventh to the sixth/​twelfth centuries onward, the new political landscape with the break-​up of the Abbasid empire and the divisions of the Islamic world led to changes in the legal theory of rebellion. The inherited doctrines were deemed unfit to the new political realities. Jurists reworked classical concepts and vocabulary in order to further legitimize rebellion against unjust rulers. An epitome of this conversation is represented by the Syrian jurist Ibn al-​ʿAdīm (d. 660/​1262) in his Bughyat al-​Ṭalab fī Tārīkh Ḥalab. Jurists exhibited a considerable degree of independence in their treatment of rebellion, leading to a great variety of positions within the same school of thought. While a traditional trend supported the earlier Aḥkām al-​Bughā, with the goal of preventing rebellion, a revisionist trend continued to demand lenient treatment of rebels and deemphasized the centrality of ta’wīl: even a group without a plausible ta’wīl cannot be held accountable for life and property destroyed during a rebellion. Some jurists went even further, arguing that if the ruler is deemed unjust, this alone makes for a valid ta’wīl. Critically, it was argued that if a rebellion responded to an injustice, then the said rebels should not be considered bughā at all: they do not qualify for any status since they have not committed an infraction. The implications were that “(1) the ruler does not have the right to even fight the rebels; (2) Muslims, at a minimum, should not assist the ruler against the rebels.”34 An example of this revisionist tendency is the Damascus Ḥanafī qāḍī (judge) Najm al-​Dīn al-​Ṭarsūsī (d. 758/​1357) and his mirror for princes work entitled Kitāb Tuḥfat al-​Turk fī mā yajību ‘an yu‘mal fī l-​mulk (Present made to the Turks’ Authority on the subject of what is to be done when exercising sovereignty). Al-​Ṭarsūsī argues that those who rebel for legitimate reasons against an oppressive government are not to be considered rebels. Rather, if they were true rebels, it would be illicit to qualify them as oppressed.35 Zaydī (a branch of Shi‘ism) jurists, for their part, established that rebellion against an unjust ruler was not only legitimate but also obligatory.36 An important figure in this conversation was the famous Ḥanbalī (Sunni school of law) jurist Ibn Taymiyya (d. 728/​1328). Ibn Taymiyya distinguished between political wars (fitan) he considered unlawful and theological wars (bughā) he saw as necessary and legal. He could be considered a revisionist in so far as he declared jihād (armed rebellion) against the Mongol rulers obligatory, even after their conversion to Islam, since

33 Abou El Fadl, Rebellion, 159.

34 Abou El Fadl, Rebellion, 287–​88.

35 Najm al-​Dīn al-​Ṭarsūsī, Kitāb Tuḥfat al-​Turk. Oeuvre de Combat Hanafite à Damas au XIVe siècle, ed. and trans. M. Menasri (Damascus: IFEAD, 1997), 185–​88. See also Garcin, “La révolte donnée à voir chez les populations,” 273–​74. 36 Certain limitations applied, including the viability of the rebellion and the evaluation of the chaos it might cause. Abou El Fadl, Rebellion, 302–​6.

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204 Nassima Neggaz they ruled by the Yāsā, their tribal law code, rather than by the Sharī‘a.37 However, he castigated rebellions against Muslim rulers over political grievances and blamed earlier jurists for having invented aḥkām al-​bughā, and opening the door for all types of people to rebel.38 He insisted that the state was the guarantor of stability and order: the state, he argued, must refrain from fighting political foes and focus on combating unorthodox groups (including Fatimids, Nusayris, Isma‘ilis, and others), whom he framed as heretics rather than rebels, applying the concept of kufr (unbelief). This view is reflected in his position against the Shi‘is of Kisrawan who revolted against their Buhturid overlords in 704/1305: while the Mamluk Sultan was concerned with political rebellion and Mongol advances, Ibn Taymiyya viewed religious heterodoxy as a graver matter, as expressed in his fatāwā.39

Revolting in the Late Medieval Middle East: Politico-​Religious Attitudes and Discourses

If the Islamic law of rebellion developed against a rich historical context, it was meant to answer a variety of cases and offer checks and balances to the political authorities in place. As we will see, the complex web of protests in the late medieval period demonstrates how reality went beyond this legal and theoretical framework. A dialectical approach is applied here, looking at the various forms and means revolts encompassed in this period, and the responses from political rulers who often relied on religious authorities. Political Rebellions Against the Authority of the Sultan: Apostasy and Takfīr

Mamluk Sultans relied and depended heavily on powerful local amīrs (governors) whose interests and ambitions could at times clash with the Sultan’s. It was not uncommon for violence to erupt during successions of amīrs.40 In fact, most rebellions against the authority of the Sultan were led by local Mamluk amīrs who organized a mutiny 37 Ibn Taymiyya, Majmūʿ fatāwā, ed. ʿAbd al-​Raḥmān ibn Muḥammad ibn Qāsim al-​Najdī al-​ Ḥanbalī (Riyadh/​Mecca: 1961–​1967, reprinted Beirut: Dār al-​Kutub al-​‘Ilmiyya, 1995), 28:543–​53. 38 Abou El Fadl, Rebellion, 62–​63.

39 See Stefan H. Winter, “Shams al-​Dīn Muḥammad ibn Makkī ‘al-​Shahīd al-​Awwal’ (d. 1384) and the Shi‘ah of Syria,” Mamlūk Studies Review 3 (1999): 149–​82; Ibn Taymiyya, Majmūʿ fatāwā, 5:149–​60.

40 See Ira M. Lapidus, Muslims Cities in the Later Middle Ages (Cambridge, MA: Harvard University Press, 1967), 19; Nimrod Luz, The Mamluk City in the Middle East: History, Culture, and the Urban Landscape (Cambridge: Cambridge University Press, 2014); J. van Steenbergen, Order Out of Chaos: Patronage, Conflict and Mamluk Socio-​Political Culture, 1341–​1382 (Leiden: Brill, 2006). On the internal conflicts and competition between amīrs and the role of conciliation (ṣulḥ) often practised by the Sultan himself, see Clément Onimus, “La conciliation dans les conflits entre émirs du sultanat mamelouk au tournant des xve et xvie siècles,” Revue des mondes musulmans et de la Méditerranée 140 (2016): 21–​226.

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of soldiers. Often, these inter-​Mamluk revolts involved the wider population, be it by attempting to directly co-​opt people or by their impact on markets and supply routes. Crucially, political rulers treated these revolts under the banner of kufr, or unbelief.41 Watt defines kufr as “that which characterizes non-​ Muslims or rather opponents of the Islamic community, and also that which changes a Muslim into an opponent of the community.”42 The Umayyad Caliphs had previously equated atheism (ilḥād) with rebellion (baghy): ilḥād denoted desertion against the community of the faithful and rebellion against the legitimate Caliphs.43 The Abbasid Caliphs also used accusations of ilḥād and zandaqa44 against rebels and opponents.45 In Mongol territory, similar patterns can be observed: treason by local governors was punishable by death under the Yāsā, the Mongol law code.46 A good example is the revolt of the amīrs in 719/​1319, during which the rebels were assassinated.47

41 On this topic see Eliyahu Ashtor, “L’inquisition dans l’état mamlouk,” Rivista degli studi orientali 25 (1950): 11–​26; Anne F. Broadbridge, “Apostasy Trials in Eighth/​Fourteenth Century Egypt and Syria,” in History and Historiography of Post-​Mongol Central Asia and the Middle East, ed. Judith Pfeiffer and Sholeh A. Quinn (Wiesbaden: Harrassowitz, 2006), 363–​82; and the very good dissertation by Hanaa H. Kilany Omar, “Apostasy in the Mamluk Period: The Politics of Accusations of Unbelief,” unpublished PhD diss., University of Pennsylvania, 2001, 301. Kilany Omar demonstrates how takfīr was a “lethal weapon wielded by the sovereign in order to quell rebels, and by religious scholars to silence opponents and those who defied their authority.” Kilany Omar argues that accusations of takfīr were the outcome of socio-​political and economic instability, and presents evidence of cases both in modern-​day Egypt and under the Mamluks. Kilany Omar argues that “takfīr was not involved so much in preserving Islam against internal dangers, as in serving the interests of the elite in the community” (8). I would nuance this argument by suggesting that when takfīr accusations were used by political rulers and Sultans, they most often served a political interest. When cases involved individuals and legal scholars, the findings are more nuanced. Takfīr could at times serve the accuser and his position, but this was not automatically the case. The period is characterized by real and intricate concerns over Islam following the Mongols’ conversions. On this, see the work of Anne Broadbridge, Kingship and Ideology in the Mongol and Islamic Worlds (Cambridge: Cambridge University Press, 2008); and Michael Chamberlain, Knowledge and Social Practice in Medieval Damascus, 1190–​1350 (Cambridge: Cambridge University Press, 1994), 167–​75. 42 Montgomery Watt, “Conditions of Membership of the Islamic Community,” Studia Islamica 21 (1964): 5–​12, at 11; Kilany Omar, “Apostasy in the Mamluk Period,” 37. 43 W. Madelung, “Mulḥid,” in EI2. 44 F. C. De Blois, “Zindīḳ,” in EI2.

45 For a history of this practice, see the first chapter of Kilany Omar, “Apostasy in the Mamluk Period,” 12–​81.

46 On conceptions of loyalty and treason in the early Mongol empire, see Michael Hope’s chapter in this volume. 47 See Charles Melville, “Abū Sa‘īd and the Revolt of the Amīrs in 1319,” in L’Iran face à la Domination Mongole, ed. Denise Aigle (Tehran: Institut français de recherche en Iran, 1997), 89–​120; Ann K. S. Lambton, Continuity and Change in Medieval Persia: Aspects of Administrative, Economic and Social History, 11th–​14th Century (Albany: Persian Heritage Foundation, 1988).

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206 Nassima Neggaz The Mamluk Sultans frequently used the legal instrument of takfīr48 (declaring someone an infidel) against any challenger to their authority. This was particularly the case under the Burji/​Circassian dynasty (784–​923/​1382–​1517), which saw dire political and economic conditions and a larger number of amīr revolts. In this process of labelling the rebels as unbelievers, the Sultans were aided by the jurists in an attempt to suppress opposing political and intellectual competitors as well as offenses deemed heretical (for instance the vilification of prophets and companions,49 or claims of prophethood). This means that charges of takfīr were levelled not by the government directly, but by either clerics or individuals, following the principle of ḥisba (“commanding good and prohibiting evil,” according to the Qur’anic injunction 3:104). This is despite the fact that the Qur’an and aḥādīth clearly prohibited accusations of kufr against Muslims. The legal consequences of these accusations are important: rather than the laws of baghy (aḥkām al-​bughā) applying to them, it was the rules of apostasy and heresy (aḥkām al-​ridda wa al-​zandaqa) that applied to them.50 “Rebellion against the established political order (i.e., the Sultans) was analogous to rebellion against God and was deemed to require the death penalty,”51 explains Hanaa H. Kilany Omar. One notes that takfīr accusations were usually referred to a judge of the Mālikī school of law, because of the harshness of the sentence this legal school applied for matters of unbelief, that is, the death penalty.52 Many examples are found in the sources, two of which are described below. In his account of the events of the year 661/​1263, al-​Maqrīzī’s Kitāb al-​Sulūk describes how Sultan Baybars (r. 658–​675/​1260–​1277) had the ruler of Karak al-​ Mughīth ‘Umar ibn al-​Kāmil arrested and killed for rebellious behaviour and treason. Al-​Mughīth was accused of having corresponded with Hulegu and invited him to invade the Levant (“al-​Shām”). Baybars summoned a number of local amīrs and legal scholars for the meeting including the chief judge Shams al-​Dīn Aḥmad ibn Khallikān who came from Damascus, as well as soldiers, Frankish ambassadors, and other witnesses. 48 Walther Bjorkman, “Kāfir,” in EI2.

49 Al-​Subkī (d. 756/​1355), Fatāwā al-​Subkī, 2 vols. (Beirut: Dār al-​Ma‘rifa, 2000), 2:584–​85.

50 One shall note that many cases of kufr and zandaqa did not lead to the death penalty when the individuals accused were not considered threatening to the regime and the community. “Persons accused of religious deviance with the intent to proselytize were considered especially threatening to the community of believers, and they faced commensurately serious penalties. In contrast with the lenience evident in the … cases of ‘simple’ heresy, these cases resulted in the most frequent death sentences imposed on Muslims,” Petry, The Criminal Underworld, 179. By opposition, popular religious figures who were at risk of defiling the community were put to death. Ibn Ḥajar al-​ ‘Asqalānī, Inbā’ al-​Ghumr bi-​Anbā’ al-​‘Umr, ed. Ḥasan Ḥabashī, 4 vols. (Cairo: Lajnat Iḥyā’ al-​Turāth al-​Islāmī, 1969), 3:316. 51 Kilany Omar, “Apostasy in the Mamluk Period,” 324.

52 On the position of the Mālikī legal school on apostasy, see Kilany Omar, “Apostasy in the Mamluk Period,” 86–​88; 323. Petry hypothesizes on the possible exploitation of Mālikī jurists by the political authorities “to act as indirect executioners,” noting that the legal school “emerged as one of the noticeable factors in litigation around these cases.” Petry, The Criminal Underworld, 199–​200.

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The letters showing correspondence between Mughīth and the Mongols were read to the public, upon which the amīr Atabek declared “the Sultan said that this is the only reason that made him arrest Mughīth.” Al-​Maqrīzī explains that the Sultan obtained “fatāwā of the jurists ordering to fight him (qitālihi),”53 when Ibn Kathīr (d. 774/​1373) uses a different form of the root (qatala) and writes “the Sultan presented the fatāwā of the jurists commanding his killing (qatlihi).”54 There are different possible explanations for this nuance, which is far from trivial. Ibn Kathīr, as a Damascene jurist, might have adopted a stauncher position regarding those accused of helping the Mongol conquerors. Moreover, the Damascene jurist might have wanted to emphasize the role played by the ’ulamā’ in decision making. Against this position, al-​Maqrīzī was an Egyptian chronicler more focused on Egyptian affairs and a critic of the Sultanate. Al-​Maqrīzī was very vocal in placing the blame for various crises on the rulers and corruption, particularly in his treatise Ighāthat al-​umma bi kashf al-​ghumma (Helping the Community by Revealing the Causes of its Distress). Another case took place in 793/​1391. Sultan Barqūq (r. 784–​791 and 792–​801/​ 1382–​1389 and 1390–​1399) summoned his governor in Cairo and the head of the divans to bring charges of kufr against two Mamluk amīrs in front of a court headed by the Mālikī qāḍī al-​quḍāt Shams al-​Dīn al-​Rakrākī. The two amīrs, al-​Tunbughā al-​Ḥalabī and al-​Tunbughā Jandamur, had rebelled against the Sultan. They were first incarcerated for a month until a council of four chief judges and the senior chamberlain gathered at the Ṣāliḥiyya madrasa confirmed the charges of kufr.55 The amīrs were beheaded and their heads set “on the highest spears of the city.”56 In other instances, the Sultan was able to instigate accusations of unbelief preemptively, as a safety measure to protect his power. Ibn Iyās (d. 928/​1522) describes how, in 842/​1438, Sultan Jaqmaq (r. 842–​857/​1438–​1453) sent in an agent to accuse Qurqamās al-​Sha‘bānī of rebelling against the Sultan and waging war against God and his messenger.57 The agent argued, on behalf of the Sultan, that Qurqamās shall be killed for the sake of public interest, because jailing him could lead to unrest. The chief judge of Cairo, the Mālikī Shams al-​Dīn al-​Bisaṭī (d. 842/​1439), ordered the killing of Qurqamās after hearing the testimony of several amīrs. Al-​Maqrīzī is very critical of the Sultan and the judge al-​Bisaṭī for the painful execution of a distinguished amīr, describing it as a political elimination under the guise of a Sharī‘a legal procedure.58 53 Al-​Maqrīzī, Kitāb al-​Sulūk li-​Ma‘rifat Duwal al-​Mulūk, 8 vols. (Beirut: Dār al-​Kutub al-​‘Ilmiyya, 1997), 1:550–​551. 54 Ibn Kathīr, Al-​Bidāyā wa al-​Nihāyā, 14 vols. (Beirut: Maktabat al-​Ma‘ārif, 1988), 13:238.

55 Ibn al-​Ṣayrafī (d. 900/​1495), Nuzhat al-​Nufūs wa al-​Abdān fī Tawārīkh al-​Zamān, ed. Ḥasan Ḥabashī, 4 vols. (Cairo: Maṭba‘at Dār al-​Kutub, 1970), 1:326; Ibn Ḥajar, Inbā’ al-​Ghumr, 1:418. 56 Ibn al-​Ṣayrafī, Nuzhat al-​Nufūs, 1:329.

57 Ibn Iyās, Badāʾiʿ al-​Zuhūr fī Waqāʾiʿ al-​Duhūr, ed. Muḥammed Muṣṭafā, 2 vols. (Wiesbaden: Franz Steiner, 1972), 2:195–​216. 58 Al-​Maqrīzī, Sulūk, 7:394.

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208 Nassima Neggaz Against these examples, we see various cases where a rebellion by Mamluk recruits (julbān) against a member of the regime does not lead to punishment. On 13 Rabī‘ II 835/​Thursday 7 December 1431, during the reign of Sultan Barsbāy (r. 825–​841/​ 1422–​1438), a group of julbān left the Cairo citadel barracks in direction of the house of the vizier, al-​Ṣāḥib Karīm al-​Dīn ibn Kātib al-​Munākh, with the aim of killing him.59 Although the assassination attempt failed, the prefect al-​Tāj called for these “pimps” (mu‘ārrasīn) to be dissected. The Sultan retorted: “Is the execution of Muslims without cause permissible?” Al-​Tāj rejoined: “These are Muslims?” to which the Sultan replied: “Yes, they are.” The Sultan put the prefect under arrest and did not punish the troops, which had rebelled over a reduction of their stipends. The conversation around the Muslim identity of the soldiers put forth by the Sultan highlights the importance of religious identity and orthodoxy perceptions. In this example, the Sultan did not want to risk alienating his troops or creating popular discontent over their killing. Since the troops had rebelled against a member of the regime rather than the Sultan’s authority, takfīr did not apply. As the Mamluk economy deteriorated, julbān rebellions and acts of violence became more frequent, and the chroniclers are not shy to condemn them as criminal.60 Another example is a rather “peculiar incident” as noted by Ibn Taghrībirdī and Ibn Iyās, “the like of which was never heard before” according to Ibn al-​Ṣayrafī:61 it took place in Dhū’l-​Ḥijja 849/​March 1446 in Giza. A group of slaves declared themselves independent from their masters, set up an imitation Mamluk court,62 and elected their own “sultan,” all of this in a Nawrūz-​like atmosphere. There are differences between the various accounts given.63 Ibn Iyās for instance mentions a tent built for the “sultan” on which a banner was raised as a sign of rebellion, while the 59 Ibn Taghrībirdī (d. 874/​1470), Al-​Nujūm al-​Zāhira fī Mulūk Miṣr wa al-​Qāhira, 16 vols. (Cairo: Wizārat al-​Thaqāfa wa al-​Irshād al-​Qawmī al-​Mu’assasa al-​Miṣriyya al-​`Āmma, 1963), 14:356. 60 Sultan Barsbāy designated specific punishments for acts of violence and rebellion by the amīrs’ soldiers. Ibn Taghrībirdī left us detailed commentaries on these soldiers’ actions, their use of chaos to commit crimes, as well as their interference in judicial proceedings. Ibn Taghrībirdī, Ḥawādith al-​Duhūr fī Madā ‘l-​Ayyām wash-​Shahūr, ed. William Popper, University of California Publications in Semitic Philology 8 (Berkeley: University of California Press, 1930–​1942), 301–​16.

61 Ibn al-​Ṣayrafī was of a modest background (his father was a money-​changer), a trend in this period that saw writers from more diverse socio-​economic backgrounds write about the events of their time and share their opinions. Some historians were mamluks who had witnessed battles, for instance Ibn Iyās who belonged to the fourth generation of a mamluk military family. Elbendary notes that the latter uses more vernacular expressions in his writings, as sign of the popularization of history in the late Mamluk period. Elbendary, Crowds and Sultans, 15, 83. 62 Ibn Taghrībirdī, Ḥawādith al-​Duhūr, pt. 1, 19–​20. Parodies of the Mamluk political state were not uncommon during revolts, and singers and poets could be prosecuted for their satirical lines on political authorities; see Garcin, “La révolte donnée à voir chez les populations,” 267–​73. 63 This particular episode, as well as the differences between the accounts of al-​‘Aynī, Ibn Taghrībirdī, al-​Sakhāwī (d. 902/​1497), and Ibn Iyās, are treated in detail in Nur Sobers Khan, “Slaves, Wealth and Fear: An Episode from Late Mamluk-​Era Egypt,” Oriens 37 (2009): 155–​61.

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group of slaves had imposed taxes on surrounding landowners.64 When the incident was reported to the Sultan,65 he queried whether the slave “sultan” had intended to induce the common people in protest. When he received a negative answer to his question, the Sultan dismissed the case.66 The chroniclers are overwhelmingly critical of the Sultan’s inertia; al-​‘Aynī quotes the Sultan declaring “let them kill each other,” before adding that such behaviour was never seen before. Here again, the lack of a threat to the Sultan’s power led to inaction. Last but not least, spreading false rumours of rebellion against the Sultan was considered a grave offense and severely punished.67 In the summer of 792/​1390, in the Citadel of Cairo it was rumoured that the amīr Baṭṭā, dawatdar68 of the Sultan Barqūq, was planning a fitna, explains al-​Maqrīzī.69 Upon hearing the news, the Mamluks prepared for war. The amīr Baṭṭā presented himself in front of the Sultan and said: “I have heard what is being rumoured about me, and here I am.” Putting down his sword and wrapping a scarf around his neck, he surrendered to the Sultan ready to die, writes al-​Maqrīzī. After confronting the other amīrs and requesting a full-fledged investigation, the Sultan found out that Baṭṭā had been unjustly accused by two of his political competitors. The Sultan ordered beating and imprisonment for two Mamluks who had spread the false rumours, announcing: “Such is the punishment of those who sow dissension by spreading rumours [of fitan] among the amīrs.”70 A striking element is the absence of the legal term baghy in the source material as a category for these rebellions. Instead, it is the term fitna that is chosen to describe them. While the term may have been used arbitrarily at times, in several instances it seems to have been intentional. The sources indicate that not only the chroniclers, but also the Sultans and his legal advisers used the term fitna to describe political revolts deemed unlawful and potentially dangerous. In a letter addressed to the ruler of Karaman ‘Alā’ al-​Dīn, Sultan Barqūq used the terms fitna and fatana five times as a warning. Was this terminology intended to take away from the military nature of the conflict? Legally, the 64 Ibn Iyās, Badāʾiʿ al-​Zuhūr, 2:253.

65 Ibn al-​Ṣayrafī, Nuzhat, 4:327; al-​ʿAynī (d. 855/​1451), ʿIqd al-​Jumān fī Tārīkh Ahl al-​Zamān (Cairo: Maktabat al-​Zahrāʾ li-​lʿĀlam al-​ʿArabī, 1989), 646; Ibn Taghrībirdī, Ḥawādith al-​Duhūr, pt. 1, 19–​20; al-​Sakhāwī, Kitāb al-​Tibr al-​Masbūk fī Dhayl al-​Sulūk, ed. Najwā Muṣṭafā Kāmil and Labība Ibrāhīm Muṣṭafā (Cairo: Dār al-​Kutub wa al-​Wathā’iq al-​Qawmiyya, 2002), 1:267–​68; Ibn Iyās, Badāʾiʿal-​Zuhūr, 2:253.

66 Ibn Iyās’s version is also the only one in which the Mamluk Sultan retaliated against the slaves by breaking up their rebellion and arresting them. Ibn Iyās, Badāʾiʿ al-​Zuhūr, 2:253.

67 On disinformation and its punishment in the late Mamluk period, see Clement Ominus, Les Maitres du Jeu: Pouvoir et violence politique à l’aube du sultanat mamlouk circassien 784–​815/​ 1382–​1412 (Paris: Editions de la Sorbonne, 2019), 281–​84. 68 A dawatdar was a senior position in the inner circles of a Caliph or Sultan. 69 Al-​Maqrīzī, Sulūk, 5:293.

70 Al-​Maqrīzī, Sulūk, 5:293; Ibn Taghrībirdī, Al-​Nujūm, 12:13–​14.

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210 Nassima Neggaz term certainly took away from the armed rebellion and suggested the superior status of the Sultan.71 In most cases, the ’ulamā’ used their influence to keep political stability. They informed the amīrs and Sultans of rebel Mamluks for instance.72 In rarer cases, rebellions against the Sultan could lead the ’ulamā’ to side with the rebel amīrs, especially when the latter were seen as more suitable for political office. This was the case during the civil war (791/​1389–​794/​1392) between Sultan Barqūq, known as the first Circassian Mamluk, and his amīr Minṭāsh, the governor of Malatya, who had joined the rebel amīr Yalbughā al-​Nāṣirī, then governor of the province of Aleppo.73 The rebellious faction denounced the favouritism the Sultan showed towards Mamluks of Circassian origin. The event is described by Ibn Ḥajar al-​‘Asqalānī (d. 852/​1449) as one that impacted the entire Sultanate and Damascus in particular.74 The rebels were joined by an important Bedouin tribe in Damascus, the Banū Faḍl, and in Cairo they were supported by the zu‘ar.75 The crowds of Damascus tended to support Minṭāsh because of their own grievances against the regime.76 When Minṭāsh’s troops took over the city, the crowds attacked and plundered the homes of Mamluk officials, including the Mamluk governor Ṭurunṭāy and the fiscal agents al-​Haydabānī as well as Ibn al-​ʿAlāʾī. The growing rebellious movement received the endorsement of the puppet Caliph in Cairo, the four chief judges who signed a fatwā denying the legitimacy of the Sultan, including the notable figure of Ibn Khaldūn. Barqūq was temporarily deposed and imprisoned in the citadel of al-​Karak in 791/​1389; he regained the throne in 792/​1390. The above examination has shown that rebelling against the authority of the Sultan during the Mamluk period was, in most cases, deemed a rebellion against God and punishable under the legal instrument of takfīr. However, revolts that did not challenge the authority of the Sultan directly were met with less harshness. 71 While two kinds of fitna are noted in the sources, fitnat shubuhāt or fitna on the basis of doubt, and fitnat shahawāt or fitna on the basis of strong desires, it is the latter that is the most commonly used category during this period.

72 Ira Lapidus, Muslims Cities, argues that the ’ulamā’ had little power against the Mamluk Sultans to whom they showed commitment. Amina Elbendary, Crowds and Sultans, challenges this argument, explaining that the ’ulamā’ had many means to resist the regime they were serving. Lapidus, Muslim Cities, especially 141–​42. 73 Gaston Wiet, “Barḳūḳ,” in EI2.

74 Ibn Ḥajar, Inba’, 1:368–​97. Ibn Khaldūn (d. 808/​1406) was involved in the event, granting his support to Minṭāsh and signing the fatwā against Barqūq. See Robert Irwin, Ibn Khaldun: An Intellectual Biography (Princeton: Princeton University Press, 2018), 90–​91. 75 The zu‘ar were gangs of criminals and beggars benefiting from violence in the main cities, particularly in Damascus and Cairo where they were also called “harafis.” Garcin, “La révolte donnée à voir chez les populations,” 265. 76 Grievances about fiscal exactions often directly turned against officials who were assigned the collection of specific taxes, confiscations, or the enforcement of forced purchases as part of their payment.

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Popular Rebellions Which Did Not Challenge the Authority and Legitimacy of the Sultan: Negotiation, Violence, and Punishment Most revolts of the period were of an economic nature and led by the people. They were linked to the price of food items, taxes, and means of livelihood more generally. Revolts involved a wide variety of actors and methods, from non-​violent resistance to open attacks. Many of them involved the zu‘ar, young gangs of criminals who benefited from the chaos caused by rebellions.77 In his expansive work on the Mamluks, Ira Lapidus explains the impact of the political administration of Mamluk cities on popular revolts and mob violence: The established order of Mamluk cities was based on a condominium of two elites. The local notables were guardians of the values of Islamic society and were entrusted with the intricacies of local affairs, while the tasks of defense and control of the urban economy were vested with the Mamluks. … The absence of centralized governmental institutions, the weakness of economic associations, and the imperfect inclusion of both internal urban communities and lumpen proletarian groups generated pressures for which the Mamluk-​ulama order afforded no regular outlet …. Mass political violence ranged from protests against food shortages and high prices, to resistance to fiscal exploitation, to outright rebellion.78

This was the case in Damascus and Cairo, where the people used revolts to resist higher authorities and preserve their socio-​political autonomy. Because of its remoteness from the Sultan’s headquarters in Cairo, Damascus was more prone to massive revolts and had powerful militias. Protesting in Cairo entailed several risks: a heavier military presence, a more intense sultanic power, and the risk of being considered as rebelling directly against the Sultan. Several edicts attempted to curve this violence, but Damascene gangs were heavily armed and fighting between the districts of al-​Qubaybāt, Maydān al-​Ḥaṣā, and al-​Shaghūr was incessant.79 Since they had no formal means or regular spokesmen to make representations to the Sultan, people often protested by closing down shops in the markets, striking and gathering in symbolic sites, such as the gates of the Cairo citadel, the Umayyad Mosque in Damascus, the residences of Mamluk officials, or the markets and neighbourhoods at stake. In the markets, “riots crystallized around the bread shops, the ovens, the docks, and guards had to be posted to prevent disturbances and the pillage of supplies.”80 77 On the role of the Damascus and Cairo zu‘ar, see Lapidus, Muslim Cities, 153–​63; 173–​78. 78 Lapidus, Muslim Cities, 143.

79 Ibn al-​Ḥimṣī (d. 934/​1527), Ḥawādith al-​Zamān wa-​Wafayāt al-​Shuyūkh wa’l-​Aqrān (Beirut: al-​Maktaba al-​‘Aṣriyya, 1999), 1:300–​301; Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​ Zamān (Cairo: ‘Isā al-​Bābī al-​Ḥalabī, 1962–​1964), 1:92, 179–​80, 219, 258. On factions and street violence in Mamluk Damascus, see James Grehan, “Street Violence and Social Imagination in Late-​ Mamluk and Ottoman Damascus (ca. 1500–​1800),” International Journal of Middle East Studies 35, no. 2 (2003): 215–​36; Miura Toru, “Urban Society in Damascus as the Mamluk Era was Ending,” Mamlūk Studies Review 10, no. 1 (2006): 157–​93. 80 Lapidus, Muslim Cities, 145.

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212 Nassima Neggaz In most cases, the threat of plunder forced the shopkeepers to reopen. In front of the Cairo citadel, protestors would call on the Sultan to alleviate their misery and replace a specific market inspector. Among the factors mentioned in the sources, the most common are arbitrary and excessive taxation, cases of robbery by Mamluks who took supplies without paying for them, currency devaluation, and above all shortages of food and high prices. The chroniclers frequently speak of ẓulm (oppression) stemming from corruption of office. Another aspect of popular revolts is their asking for the intervention of their local religious leaders, such as the imāms and khaṭībs (Friday preachers) of the Umayyad Mosque in Damascus, as the examples will demonstrate. Several features of these economic revolts deserve comment. First, while popular revolts were at times answered by a redress of the issue at stake, such as satisfying an immediate grievance, often they were punished for “creating disturbance and insulting the Sultan.”81 A lack of both inner organization and representatives made these revolts weak and susceptible to manipulation by both state authorities and gangs such as the zu‘ar, a process the chroniclers were aware of and highlighted in their histories. The Mamluks could turn the mobs against one another, but also win the notables back to cooperate with them. Second, most of these revolts were answered by state authorities with policies that allowed a quick fix, for instance the decrease of the price of bread or taxes. Third, political authorities did not consider these rebels as bughā; rather, it is again the term fitna that is commonly used in the sources. This choice of terminology serves two purposes: it emphasizes the illegitimate character of the revolts, and labels them as local disturbances of a temporary nature. They were not considered as challenges to the Sultan’s authority and often were attached to a concrete set of demands. In the chronicles, as well as in the state authorities’ statements mentioned, the protesting common people (al-​‘āmma) are often viewed as irrational actors fomenting chaos and fitna. The punishments varied depending on the revolt and the damages caused, ranging from a fine to imprisonment or the death penalty, but protestors were not systematically punished. Despite these challenges, rebels were often strategic and understood political realities. They knew that the ways in which they framed their revolt could be a determining factor into how it was received by the political authorities. They were careful not to attack the legitimacy of the Sultan; rather, they covered their revolt with signs of loyalty to his person. A common feature of popular revolts in this period is that they carefully attacked a specific governor or official without impugning the regime. Rare are the cases of outright rebellion against the person of the Sultan, especially in the capital Cairo.82 81 Lapidus, Muslim Cities, 146.

82 Lapidus, Muslim Cities, 149. A debate in the field distinguishes scholars such as Lapidus who argue that “rebellions sought never to change the government but only to ameliorate specific wrongs” (Muslim Cities, 184), from other scholars such as Elbendary and Lantschner, who view protests as playing a larger role beyond the realm of economic grievances, often serving as sophisticated acts of negotiations. Elbendary, Crowds and Sultans, 124; Patrick Lantschner, “Invoking

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It was common during the Mamluk period for common people to revolt against and violently attack or scare off a government official deemed corrupt. The populace would directly attack the officials or their homes, sometimes murdering them. This was particularly the case for the market inspectors (muḥtasibs), who were frequently attacked and injured by protestors during economic riots. They were required by the populace to put pressure on grain hoarders and other officials committing exactions in the market. During a great famine in 775–​776/​1373–​1374, a delegation of important commoners in Cairo petitioned the Sultan to remove the muḥtasib, considered responsible for their ills. State authorities were in a sense complicit in offering scapegoats to the angry rebels.83 Government agents were routinely held responsible and murdered, leaving the larger administration unscathed. On many occasions, such murders of local officials were not punished by the Sultan or the higher administration. This is despite the fact that, often, these murders took place in central areas of the city, such as in front of the Umayyad Mosque. In 893/​1488, Ibn Ṭūlūn (d. 953/​1456) describes the stabbing to death of an official in this central site by an angry mob; the agent was bringing to Damascus a royal decree stipulating a levy on grain middlemen—​his body was eventually burnt.84 Similarly, a few years prior in 885/​1480, in Aleppo, a mob killed the governor who had wished to levy taxes to pay for an infantry expedition into Mardin. The mob also killed the wakīl who had advised the tax.85 The lack of reaction or punishment on the part of the Sultan indicates that these killings were a convenient way to use scapegoats to calm the crowds. In Dhū’l-​Ḥijja 820/​January–​February 1418, the prefect of Damietta was killed in a violent attack by a group of fishermen who took care to read the list of abuses he had committed in front of the local judiciary. The regime did not punish the fishermen, allowing them to seek justice by their own hand.86 and Constructing Legitimacy: Rebels in the Late Medieval European and Islamic Worlds,” in The Routledge History Handbook of Medieval Revolt, ed. Justine Firnhaber-​Baker and Dirk Schoenaers (London: Routledge, 2017), 168–​88.

83 On this point see Elbendary, Crowds and Sultans, 181. It is important to note that oppression of the people by local officials did take place and often constituted an issue for the regime. Sultanic edicts and proclamations attempted to curb these practices, for instance in Dhū’l-​Qa‘da 726/​ October 1326 when a statement was read from the mosque pulpits in Cairo against excise taxes and certain flogging practices by officials. Al-​Jazarī (d. 739/​1338), Ḥawādith al-​Zamān, 3 vols. (Beirut: al-​Maktaba al-​‘Aṣriyya, 1998), 2:122; Petry, The Criminal Underworld, 90. On the other hand, the regime was at times complicit in the collection of oppressive taxes and often refused to prosecute the collectors. Sultan Barqūq, for instance, only prosecuted tax collectors when their actions became widely denounced by the population. For a discussion on the parallels between medieval Europe and the Muslim world: Petry, The Criminal Underworld, 99–​100. 84 Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān (Beirut: Dar al-​Kutub al-​’Ilmiyya, 1998), 81.

85 Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān, ed. Muḥammad Muṣṭafā (Cairo: al-​Mu‘assasa al-​Miṣriyya al-​‘Āmma, 1962–​1964), 1:24. 86 Al-​Maqrīzī, Sulūk, 6:454–​55.

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214 Nassima Neggaz On a legal level, the legality of killing a tyrannical official was debated. Legal manuals of the period discuss the permissibility for the zu‘ar to assassinate a corrupt official, attesting to the commonality of these occurrences.87 The zu‘ar were organized gangs and bands, often carrying arms, and particularly active in resisting heavy taxation. They sometimes encompassed representatives of the ’ulamā’ or artisans in large cities such as Damascus. The zu‘ar played an active role in many of the revolts on various levels, either by instigating them and distributing money to commoners, or by getting involved in the violence after a revolt started. The thieves in their ranks benefited from the chaos and disruptions brought about by revolts to steal. Despite their involvement in violence, their treatment in the sources is not always pejorative and highlights the reluctance of some of the jurists to condemn their crimes against the subordinates of tyrants. In 907/​1501, the zu‘ar took part in a bloody revolt during which they killed tax officials and burnt their corpses.88 They were retaliating against the imposition of murder fines on their neighbourhood, by killing the officials in charge of their collection. Governors routinely imposed this penalty tax on neighbourhoods when an unknown killer committed a murder. While this was in principle an extension of the Islamic law prescription of blood money, murder fines were abused by local administrators who financially benefited from them. Defining the status of rebels was both a legal and a political matter, and it was a more complex one when the people rebelled for economic reasons. Indeed, takfīr was not applied in this case, and state authorities often had to take into account the views of the ’ulamā’. The goal of the latter, while being tied to the regime they served, was also to sustain the well-​being of all social groups. The ’ulamā’. themselves belonged to different social classes, their knowledge of Islamic law being their common denominator. Hence, many ’ulamā’ sought to protect the interests of the people, particularly when the financial pressures were considered unjust and aberrant. Another kind of intervention was their denial of the imposition of certain penalties on the people. In Dhū’l-​Ḥijja 899/​ September 1494, the inhabitants of al-​Ṣāliḥiyya, a suburb north of Damascus, were holding a banquet to celebrate the dismissal of two oppressive officials who had been serving in Damascus. Ibn Ṭūlūn explains that the inhabitants of this suburb had killed another official deemed corrupt and had been threatened with a punishment of five hundred dinars by the city’s governor.89 The inhabitants of the suburb protested to the chief judge Ibn Furfūr, a highly reputable judge in Damascus, against the imposition 87 Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān, ed. Muḥammad Muṣṭafā (Cairo: al-​ Mu’assasa al-​Miṣriyya al-​‘Āmma, 1962–​1964), 1:181–​82; Patrick Lantschner, “Fragmented Cities in the Later Middle Ages: Italy and the Near East Compared,” English Historical Review 130 (2015): 546–​82, at 573. 88 Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān, ed. Muḥammad Muṣṭafā (Cairo: al-​Mu’assasa al-​Miṣriyya al-​‘Āmma, 1962–​1964), 1:232. 89 Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān, 1:160. See also Patrick Lantschner, “Invoking and Constructing Legitimacy,” 168–​88.

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[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

of the fine. Ibn Furfūr prevented the fine from being imposed. In other instances, the ’ulamā’ acted as negotiating intermediaries between the people and the regime. Rather than condemning the rebels outright, the ’ulamā’ could mitigate responses and lead resistance to the state in order to protect the rights of the common people.90 This mediating role was viewed as being part of the ’ulamā’’s mission; ‘Abd al-​Wahhāb al-​ Sha‘rānī explains that a Sufi shaykh’s role is to intercede on behalf of ordinary Muslims.91 During the previously mentioned riot in Damascus in Jumādā I 907/​November 1501, four judges as well as Taqī al-​Dīn ibn Qāḍī ‘Ajlūn were sent by the viceroy of Damascus as part of a delegation to negotiate with rebel leaders. The protestors had been rebelling against the aggressive fiscal policies of the new governor, Qānsūh al-​Burj.92 While the crowd was originally asking for revenge through the killing of three officials, the negotiations led to a different outcome where the people obtained the abolishment of the monthly mushahara market levy as well as other levies deemed unjust.93 The mediation of the ’ulamā’ allowed for the resolution of grievances and reparation of a wrong. It was common for the ’ulamā’ to be relied on by state authorities in order to relieve tension and mediate with dissenting crowds. As Amina Elbendary notes, “There is a recurring pattern of a negotiating delegation that is sent to intercede between a rebelling crowd and the authorities, which suggests a local mechanism for dealing with urban crises.”94 Ibn Ṭūlūn, who narrates the event, insists that the ruling elites were responsible for oppressing the common people, hence causing the revolt and the violence. 90 An example of such an intervention to protect the rights of a social group, the merchants, is examined in Joel Blecher, “Scholars, Spice Traders, and Sultans: Arguing over the Alms-​Tax in the Mamluk Era,” Islamic Law and Society 27 (2020): 53–​82. Blecher argues that the ’ulamā’ opposed the Sultan’s will to impose an alms tax on merchandize called zakāt al-​tijāra in order to protect zakāt from forms of taxation they deemed unlawful. This was despite the abundance of support for such a tax within the classical tradition of Islamic law. A similar example is the refusal by al-​Sulamī (d. 1262) to issue a fatwā in favour of an extraordinary tax to finance Mamluk counter-​campaigns in Syria. See a more detailed discussion in Rasmus Bech Olsen, “Just Taxes? Tracing 14th Century Damascene Politics through Objects, Space an Historiography,” unpublished PhD diss., Birkbeck College, University of London, 2017, 67. Baybars’s taxes were also routinely criticized as illegal by the ’ulamā’ including al-​Suyūṭī.

91 ‘Abd al-​Wahhāb al-​Sha‘rānī, The Guidebook for Gullible Jurists and Mendicants to the Conditions for Befriending Emirs and The Abbreviated Guidebook for Gullible Jurists and Mendicants to the Conditions for Befriending Emirs, ed. by Adam Sabra (Cairo: IFAO, 2013), 13, 15. See also Elbendary, Crowds and Sultans, 126–​27.

92 On Sultan Qānsūh al-​Ghawrī and his early rule, see Carl Petry, Twilight of Majesty: The Reigns of the Mamlūk Sultans al-​Ashraf Qāytbāy and Qānsūh al-​Ghawrī in Egypt (Seattle: University of Washington Press, 1993), 132–​36.

93 Ibn Ṭūlūn is rather positive regarding the actions of the rebels, who had the law on their side. Ibn Ṭūlūn, Mufākahat al-​Khillān fī Ḥawādith al-​Zamān, ed. Muḥammad Muṣṭafā (Cairo: al-​Mu’assasa al-​Miṣriyya al-​‘Āmma, 1962–​1964), 1:250–​52. Ibn Iyās, Badā’i‘, 5 vols. (Cairo: Al-​Hay’a al-​Miṣriyya al-​‘Āmma li’l-​kitāb, 1982–​1984) 4:23–​24. 94 Elbendary, Crowds and Sultans, 126–​27.

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216 Nassima Neggaz One of the most astonishing elements about popular revolts is the strategies rebels used in order to showcase their legitimacy, which in turn could impact the ways in which these protests were framed by political and legal authorities.95 Popular revolts in this period used religious symbols and were structured around the theme of justice within an Islamic framework.96 For instance, rebels shouted slogans including the phrase Allāhu Akbar (God is Greater), which was a common call to rioting. The time, location, and route chosen for revolts are relevant: they usually took place on Fridays, often right after the communal prayer, which was a perfect way to build a following. Both practicality and legitimacy concerns were fulfilled in these choices. Many revolts started at the Umayyad Mosque in Damascus, if they did not take place before the residences of Mamluk officials, and walked towards the citadel. Protestors sometimes climbed the minarets of the mosque to proclaim their message to the public. Occasionally, rebels also disrupted the holding of communal prayers: they stopped muezzins from issuing the call to prayer, or they refused to attend such prayers outright. These tools allied practicality with legitimacy signals to attract support. Rebels maintained the legitimacy of their actions by not admitting that they were guilty of disobedience; rather, they often acted in cooperation with legal professionals and chose their practices according to the legal framework of their city. The basic Islamic duty of commanding right and forbidding wrong was a powerful legitimizing tool for protestors who believed in the lawfulness of their claims. Two revolts in Damascus showcase all the aspects discussed above, in particular the leadership of the ’ulamā’ based on popular demand, and their risk of being punished by the authorities. The first is a revolt on 13 Jumādā I 711/​September 27, 1311 in Damascus97 against a tax of 750,000 dirhams imposed on the population a month earlier to fund a garrison 95 As Lantschner noted, “Amina Elbendary, Konrad Hirschler, Boaz Shoshan, and James Grehan have studied a whole range of possible vocabularies, such as shutting shops or rioting out of a sense of ‘moral economy’ about the unfair distribution of food supplies, or using state courts to petition the sultan or other officials about their grievances in the context of the Mamluk state’s own promise to deliver justice.” Siyāsa courts increased towards the late Mamluk period, showing the role of rebels in pushing for ways to legally attack the state: “towards the end of the Mamluk period the availability of such courts also drastically increased, often precisely in order to respond to the growing numbers of petitions from disgruntled commoners about supposedly tyrannical officers. As Yossef Rapoport has recently suggested, such courts, although ostensibly based on the authority of siyāsa, also took account of, invoked, and even transformed the application of Islamic law.” Lantschner, “Invoking and Constructing Legitimacy,” 183–​84.

96 Patrick Lantschner’s study examines the idea of justice in popular revolts in a comparative perspective looking at Bologna and Damascus, see Lantschner, “Fragmented Cities.” Common to both Latin Europe and the Islamic world were ideas about the so-​called circle of justice according to which the king at the top of society was dependent on the peasants at the bottom: they could only provide him with revenue if he was able to provide justice.

97 Al-​Yūnīnī (d. 726/​1326), Dhayl Mirʾāt al-​Zamān: Tārīkh al-​Sanawāt h697–711/m1297–1312, ed. Ḥamza A. ʿAbbās (Abu Dhabi: Hayʾat Abū Ẓaby lil-​Thaqāfa wa-​al-​Turāth, al-​Majmaʿ al-​Thaqāfī, 2007), 1430–​40. A thorough analysis of the revolt can be found in Olsen, “Just Taxes?” The dissertation also

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expansion. The threat of an external invasion being relatively low and the tax high, protests organized to denounce the tax. During the routine Monday inspection parade, Sayf al-​Dīn Karāy al-​Manṣūrī (d. 719/​1319), the Mamluk governor of Damascus and viceroy of Syria, gathered his troops and led them on a procession from al-​Maydān al-​Akhḍar (The Green Hippodrome) in the West to Sūq al-​Khayl (The Horse Market) in the North. There the parade was interrupted by a procession of civilians accompanied by religious figures, notably the imām and khaṭīb (Friday preacher) of the Umayyad Mosque Jalāl al-​Dīn al-​Qazwīnī (d. 739/​1338), who had agreed to present a complaint to the governor the preceding Friday. The sources describe how the participants used symbolic artifacts such as a copy of the ‘Uthmānic Qur’an, the Sandal of Prophet Muḥammad (worn during his night journey), and the black banners of the Umayyad Mosque, all of which expressed a Damascene communal identification.98 The protest was dismissed and the crowd dispersed. Because the Qur’an had fallen on the ground during the event, the protestors attacked the governor’s troops with rocks. The following day, the governor convoked al-​Qazwīnī, the grammarian and Qur’an recital expert ʿImād al-​Dīn al-​Tūnisī (d. 718/​ 1319), as well as the Shāfiʿī Chief Judge (qāḍī) of Damascus Najm al-​Dīn Ibn Ṣaṣrā (d. 724/​ 1324). All three were abused verbally, while al-​Tūnisī and al-​Qazwīnī were jailed. It took the intervention of a group of professional witnesses (shuhūd) to obtain their release. The following Friday, new protests pushed the negotiations, and the governor agreed to lower the tax and postpone its collection. Two weeks later however the governor was accused of treason and sent to jail, most probably due to an unrelated political purge, making it impossible to know whether his promise would have materialized. Three weeks later, the tax was abolished by sultanic decree. There are several elements that deserve attention. First, the protest was organized and premeditated several days earlier, and did not happen spontaneously. Second, the protest relied on a set of urban networks, in particular religious figures such as the mosque khaṭīb. Third, and importantly, the protest was structured around a repertoire of not only Islamic symbols of legitimacy, but also local ceremonial practices. It did not use violence from the onset, but it was rather the response from the authorities (and the fact that the holy book had fallen to the ground) that led to rocks being thrown at the troops. This example shows how common people used protest as a form of political participation through which they may challenge political decisions they deemed unreasonable or unjust. Fourth, the ways in which the narrative is reported in the chronicles varies in interesting ways. While Syrian authors (al-​Birzālī, Ibn Kathīr, al-​Dhahabī) tend to focus on the governor’s oppressive actions as the main cause for his downfall in a local context, the Egyptian historians (Ibn al-​Dawādārī and al-​Manṣūrī) rather interpret his fate through the lens of imperial tackles the differences and nuances between the accounts of the period in their description and interpretation of the event.

98 For a discussion of the symbolic meaning of these objects within the framework of the repertoire of ceremonial practices of Damascus, see Olsen, “Just Taxes?,” especially 46–​58. The dissertation applies Charles Tilly’s social movement theory to the 711 protest in order to demonstrate the salience of the repertoire of collective action as well as the meaning of the symbolic objects used.

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218 Nassima Neggaz politics and his involvement in a coup attempt against the Sultan.99 This is typical of the historiography of the period and the difference between the Egyptian and the Syrian schools.100 Egyptian accounts do not systematically describe protests in Damascus, even when the chronicler is aware of the event. When they do so, the focus of their narrative tends to be on the actions of the Sultan, the arrest of governors, matters of concentration of power, and so on. By contrast, Syrian accounts have other agendas: they focus on the agency of Damascenes and the power of their local scholarly community, in particular the Shāfi‘īs. Often, authors were also stakeholders in their accounts, and refusing a salary was a common trope in their narratives.101 The second example is the Damascus revolt of Jumādā II 895/​April 1490. Rebels gathered to protest the injustices committed by a Mamluk tax collector with the name of Qarqamās. Ibn Ṭūlūn, a Damascene chronicler, describes the events in detail in his Mukāfahat,102 a work focused on Damascus events during the last decades of Mamluk rule and written with a sense of dark irony. Another chronicler is the Damascene notary Ibn Ṭawq (d. 915/​1509) who offers insight in his Ta‘līq, written in the style of a diary of daily events in Damascus, along with commentary on the author’s personal affairs. The riot started at the Umayyad Mosque on Friday the 11th of Jumādā II, “right after prayer and while people were still making supplications.” A pious man known as Yūsuf al-​Bahlūl, from Maydān al-​Ḥaṣā, shouted: “Woe to Islam! Where is our Islamic honour when this khassaki (official)—​I mean Qarqamās—​despoils the people?”103 He then finished his supplications and headed towards the Bāb al-​Khiṭāba (door) of the mosque and shouted again. He was joined and supported by the followers of a Sufi shaykh named Faraj. Crowds from the Bāb al-​Khiṭāba started shouting too. The takbīr (Allāhu Akbar; God is Greater) could be heard. The presence of many dignitaries, including the said Qarqamās, was a key factor. The chief judges (qāḍīs), but also the grand chamberlain (ḥājib al-​ḥujjāb), the commander of the pilgrimage (amīr al-​ḥajj), the viceroy’s treasurer (khazindar), and the market inspector (muḥtasib) were all in attendance. As more crowds joined in the protest, the dignitaries feared for their safety and retired to chambers in the mosque. As for Qarqamās, he had fled the mosque after the first shouting to hide in 99 Olsen, “Just Taxes?,” 164–​219.

100 Donald P. Little, An Introduction to Mamluk Historiography: An Analysis of Arabic Annalistic and Biographical Sources for the Reign of al-​Malik an-​Nasir Muhammad ibn Qalawun (Wiesbaden: Steiner, 1970). 101 Konrad Hirschler, Medieval Arabic Historiography: Authors as Actors (London: Routledge, 2006), 31–​32.

102 Ibn Ṭūlūn, Mufākahat (Beirut: Dār al-​Kutub al-​‘Ilmiyya, 1998), 104–​5; Ibn Ṭawq, Al-​Taʿlīq: Yawmiyyāt Shihāb al-​Dīn Aḥmad b. Muḥammad (Damascus: IFPO, 2000), 2:951–​52; Lantschner, “Invoking and Constructing Legitimacy,” 180. More information on Ibn Ṭawq can be found in Boaz Shoshan, Damascus Life 1480–​1500: A Report of a Local Notary (Leiden: Brill, 2020).

103 He was calling for action against the confiscation of people’s properties and assets by Qarqamās.

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his home. The following day, a Saturday, the crowd gathered again, led by another shaykh this time, Ibrāhīm al-​Nājī. The protestors started a procession chanting Allāhu Akbar from Maydān al-​Ḥaṣā to the Umayyad Mosque, in a reverse procession to the one they had done a day earlier. The crowd then headed towards the residence of Qarqamās, still chanting takbīrāt in front of his gates, “at which point the Mamluk soldiers faced them with the archers; a great deal of evil took place.”104 Ibn Ṭawq’s narrative is shorter, less detailed, and contains different elements from Ibn Ṭūlūn’s account.105 Ibn Ṭawq explains that Qarqamās’s residence was attacked because of what had been done to shaykh Faraj—​the latter had been captured after praying ‘aṣr at the mosque on Friday. Brought to the residence of Qarqamās, he had been interrogated and beaten brutally, despite some attempts to stop it. “It was said that he received about sixty blows,”106 writes Ibn Ṭawq, adding “there is no power nor strength except with Allāh,” to emphasize his disapproval. At this point, the crowd was seeking two outcomes: addressing the treatment of shaykh Faraj, as well as the tax collection issue. To do so, the crowd raised banners belonging to Sufi ṭuruq, thus signalling the wrong done to the Sufi shaykh. Ibn Ṭawq explains that Damascus was in chaos and that some people were killed and others wounded.107 In his account, the crisis is brought to an end by the intervention of a group of dignitaries, including a judge, who settled the crowds, called for the immediate release of prisoners, and a stop to oppression. Ibn Ṭūlūn however explains that an intercession of several of the ’ulamā’ took place, including a judge, several merchants, and political authorities, all of whom partook in negotiations. Later, a royal decree was sent to the area, stipulating the arrest of some of the participants in the riot. The local judges decided to ignore it; doing so, after all, would reignite the fitna. The crisis ended with a lack of arrests and the protestors were able to walk free. This revolt demonstrates a number of features that were common in this period. First, a plurality of actors was involved in a protest. Urban social networks played a particularly important role. In this example, the local leadership of Sufi shaykhs provided guidance, while ’ulamā’ figures acted as intercessors. Neighbourhoods and suburbs acted as major players in these revolts, in this case the two suburbs of Maydān al-​Ḥaṣā and al-​Qubaybāt. Second, the revolt was built upon an Islamic rhetoric, vocabulary, and symbolism. The Umayyad Mosque was a starting point to the revolt, during a Friday prayer, while the protestors chanted Islamic slogans emphasizing the legitimacy of their protest against unjust practices. Third, the city’s chief judges refrained from further investigations out of fear of discord (fitna), acting as mediators and putting a limit to state power. Finally, 104 Ibn Ṭūlūn, Mufākahat (Beirut: Dār al-​Kutub al-​‘Ilmiyya, 1998), 105.

105 Ibn Ṭawq, Al-​Taʿlīq: Yawmiyyāt Shihāb al-​Dīn Aḥmad b. Muḥammad, ed. Shaykh Ja‘far al-​Muhājir (Damascus: IFPO, 2000), 2:951–​52. 106 Ibn Ṭawq, Al-​Taʿlīq, 2:951.

107 Ibn Ṭawq, Al-​Taʿlīq, 2:951.

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220 Nassima Neggaz this example illustrates the negotiating power of protestors who carefully chose how to define and frame the elites against whom they were protesting. The protestors never attacked the legitimacy of the Mamluk regime, but they rather focused their protest against a tax collector who was going to confiscate more of their properties. Similar patterns can be seen in Baghdad during the late Abbasid Caliphate. Popular revolts of an economic and religious/​sectarian nature were increasingly common from the mid-​fourth/​tenth century onwards. They often centred around a specific figure, whose home was attacked. Religious riots often took place between neighbourhoods, in particular Karkh and Bāb al-​Baṣra, respectively inhabited mostly by Shi‘a and Ḥanbalīs.108 These revolts were often linked with the right to perform certain religious rituals, or were straightforward reactions to confessional provocations, such as Shi‘a groups taking part in chants insulting the Companions and wives of Prophet Muḥammad. These revolts were always categorized as fitna and dealt with as such by political and legal authorities. A feature is the leniency towards many of these rebelling groups; the authorities seem to have been concerned with appeasing them rather than punishing their actors. At times, the ’ulamā’ who were acting as negotiators on behalf of the protestors had to leave their neighbourhood for fear of retaliation. During the reign of al-​Musta‘ṣim (r. 640–​656/​1242–​1258), these riots increased and reached a climax in 653/​1255 and 654/​1256. In 653/​1255, Ibn al-​Fuwaṭī (d. 723/​1324)109 describes an intense fitna between the inhabitants of al-​ Ruṣāfa on the one hand, and the people of Abī Ḥanīfa and al-​Khudayriyyin on the other. These two quarters attacked al-​Ruṣāfa, pushing its residents to the quarter’s gate, and killing around thirty people. The two teams also besieged the quarter and prevented goods from entering it, including water from the Tigris. People from Bāb al-​Baṣra went in to help al-​Ruṣāfa, while people of Karkh joined to help their co-​ religionists in al-​Khudayriyyin. The situation worsened and soldiers were sent in. A year later, in 654/​1256, a new episode of violence took place, between Karkh and Bāb al-​Baṣra.110 During the month of Dhū’l-​Ḥijja, the people of Karkh killed a Sunni man from Qaṭafta. A group of workers went to complain to the Caliph, bringing news of the killing, and asking for an immediate response. Soldiers were sent to Karkh, and the people followed them; there they destroyed and burnt property, and insulted the women. Many were killed during the violence that took place, until the Caliph intervened, ordering that looted merchandise shall be brought to Bāb al-​Nūbī where it would be marked for redistribution to its owners. In spite of the Caliph’s efforts to make amends, periodic violence continued until the Mongol conquest. 108 Nassima Neggaz, “Al-​Karkh: The Development of an Imāmī-​Shīʿī Stronghold in Early Abbasid and Būyid Baghdad (132–​447/​750–​1055),” Studia Islamica 114 (2019): 265–​315.

109 Ibn al-​Fuwaṭī, Al-​Ḥawādith al-​Jāmi‘a wa al-​Tajārub al-​Nāfi‘a fī al-​Mā’i al-​Sābi‘a (Beirut: Dār al-​Kutub al-​‘Ilmiyya, 1424/​2003), 216–​17. 110 Ibn al-​Fuwaṭī, Ḥawādith, 225–​26.

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Conclusions The examination of revolts in the Middle East in the period 1200–​1500 demonstrates the presence of a dialectic process between protestors and power structures: the protestors carefully chose how they defined and framed the elites against whom they protested, while the jurists and political authorities considered and framed each revolt differently depending on a variety of factors and with a view to maintain a degree of peace and stability. Economic revolts, for instance, often led the ’ulamā’ to act as negotiators between the protestors and higher political power. Not only did they not automatically frame the protests as illegitimate nor illegal, but they often took the stance of protestors when their grievances were seen as genuine and sound. In the case of revolts against corrupt practices or a corrupt official, the ’ulamā’ acted as a check and balance to the power of political authorities, through the protestors’ actions. In this sense, revolts ensured that proper norms and behaviours were in place and not transgressed; protestors were the very guardians of a just order. In the case of revolts of a political nature against the Caliph or the Sultan, the ’ulamā’ most often considered the rebels as having crossed the boundary of belief: by rebelling against a sacred authority, they became unbelievers. That being said, there are a few rare cases when the ’ulamā’ granted legitimacy to a political opponent who seemed more fit for power. To justify their view, the ’ulamā’ relied on a large body of classical works which framed the legal boundaries of protests and rebellions. The chroniclers of the time increasingly made clear their own criticism of political power, be it at the level of the Sultan or his local administrators. Issues such as unreasonable taxation levels, unjustified confiscations of people’s property, the manipulation of awqāf, just to name a few, are discussed by the chroniclers in a manner that highlights their reproval of state corruption. Revolts in the late medieval Middle East demonstrate the sophistication not only of the legal process devised to condemn or protect protestors and rebels, but also of the attitudes and strategies of the common people. As such, revolts offer us a unique window to understand political participation in the late medieval Middle East.

Selected Secondary Sources

Abou El-​Fadl, Khaled. Rebellion and Violence in Islamic Law. Cambridge: Cambridge University Press, 2001. Chamberlain, Michael. Knowledge and Social Practice in Medieval Damascus, 1190–​1350. Cambridge: Cambridge University Press, 1994. Elbendary, Amina. Crowds and Sultans: Urban Protests in Late Medieval Egypt and Syria. Cairo: American University in Cairo Press, 2015. Garcin, Jean-​Claude. “La révolte donnée à voir chez les populations civiles de l’état militaire mamluk (XIIIe-​XVe s.).” In Autour du Regard: Mélanges Gimaret, edited by Eric Chaumont, 261–​78. Leuven: Peeters, 2003.

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222 Nassima Neggaz Grehan, James. “Street Violence and Social Imagination in Late-​Mamluk and Ottoman Damascus (ca. 1500–​1800).” International Journal of Middle East Studies 35, no. 2 (2003): 215–​36. Hashmi, Sohail H. “Rebellion.” In The Princeton Encyclopedia of Islamic Political Thought, edited by Gerhard Bowering, 459–​60. Princeton: Princeton University Press, 2013. Irwin, Robert. Ibn Khaldun: An Intellectual Biography. Princeton: Princeton University Press, 2018. Kilany Omar, Hanaa H. “Apostasy in the Mamluk Period: The Politics of Accusations of Unbelief.” Unpublished PhD dissertation, University of Pennsylvania (2001). Lambton, Ann K. S. Continuity and Change in Medieval Persia: Aspects of Administrative, Economic and Social History, 11th–​14th Century. Albany: Persian Heritage Foundation, 1988. Lantschner, Patrick. “Fragmented Cities in the Later Middle Ages: Italy and the Near East Compared.” English Historical Review 130 (2015): 546–​82. Lapidus, Ira M. Muslims Cities in the Later Middle Ages. Cambridge, MA: Harvard University Press, 1967. Lev, Yaacov. “Symbiotic Relations: Ulama and the Mamluk Sultans.” Mamlūk Studies Review 13 (2009): 1–​26. Luz, Nimrod. The Mamluk City in the Middle East: History, Culture, and the Urban Landscape. Cambridge: Cambridge University Press, 2014. Petry, Carl F. The Criminal Underworld in a Medieval Islamic Society: Narratives from Cairo and Damascus under the Mamluks. Chicago: University of Chicago, 2016. Rapoport, Yossef. “Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks,” Mamlūk Studies Review 16 (2012): 71–​102.

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POWER, SCAPEGOATING, AND THE MARGINALIZATION OF JEWS IN WESTERN EUROPE IN THE HIGH MIDDLE AGES (ELEVENTH–​FOURTEENTH CENTURIES) Rebecca Rist As a minority, Jews were one of several “Others” in medieval Christian society. Yet they were in a unique position because of the complex historical relationship between Judaism and Christianity. This article argues that it was a combination of three types of power—​the power of Christian society, the power of the Church and the power of civil authorities, combined with a fourth type of power, rooted in the perceived danger of Jewish agency, which allowed for the marginalization and scapegoating of Jews. It explores how power structures constructed deviance and responded to the agency of a distinctive minority. However, this article is not only about the marginalization of Jews as an “Other” through constructions of deviance. It is also about the particular ways in which Jews and their behaviour were constructed as deviant, as part of a wider process of “othering” religious minority groups by those who held power in medieval society. Jews living in medieval Europe during the High Middle Ages were a very small percentage of the overall population.1 Although there were periods of relative calm which allowed for the flourishing of Jewish culture, life for Jews was often dangerous. In some parts of Europe, increasing limitations on what public roles they could perform in the “Societas Christiana” ensured that they gravitated towards commercial activity; at times they were the victims of grass-​roots mob violence and of the clergy and civil authorities who imposed on them a range of penal restrictions. Instances of anti-​Jewish feeling in Europe took many forms: for example clerics often preached vicious sermons attacking Jews which focused on the role they were believed to have played in the death of Christ; or, for example, kings not infrequently ordered the arrest, despoilation, and increasingly even expulsion, of Jews in their territories. Charges more and more levied against Jews included ritual murder, host desecration, blood libel, ritual cannibalism, and well-​poisoning.2 The onset of the crusades was highly 1 John Friedman, Jean Connell Hoff, and Robert Chazan, eds. and trans., The Trial of the Talmud: Paris, 1240, Mediaeval Sources in Translations, 33 (Toronto: Pontifical Institute of Mediaeval Studies, 2012), 6; Rebecca Rist, Popes and Jews, 1095–​1291 (Oxford: Oxford University Press, 2016), 66.

2 Anna Abulafia, Christian-​Jewish Relations 1000–​1300: Jews in the Service of Medieval Christendom (New York: Routledge, 2011), 167–​93; Miri Rubin, Gentile Tales: The Narrative Assault on Late Medieval Jews (Philadelphia: University of Pennsylvania Press, 1999), 7–​39.

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dangerous and bore the potential for arousing anti-​Jewish animus since fear of the Muslim enemy in the Near East encouraged hostility towards Jews as another “infidel” group.3 When in the fourteenth century the Black Death struck Europe (1347–​1351), people had no idea what caused it, and many blamed the Jews.4

The Power of Christian Society

Christian society encouraged both the scapegoating of Jews and the mechanisms to do so. The “Societas Christiana” presented Jews with a mixed message about their status in society, and therefore also gave Christians a mixed message about how they should be treated. Jews were granted some measure of protection, yet at the same times their rights in Christian society were severely restricted. This complex mixture of protection and restriction originated many centuries earlier with the fifth-​century Theodosian Code, which prohibited Jews from some activities, but also protected basic rights of life and religious freedom.5 It therefore had a basis in Roman law. It also derived from the writings of St. Paul and the Church father St. Augustine of Hippo (354–​430), both of whom had emphasized that Jews must be allowed to live unharmed in Christian society because they were witnesses to the truth of the Old Testament, and therefore indirectly to the New.6 It was therefore not only a legal, but also a theological, construct. Indeed, according to St. Paul in Romans 11, Jews were to be reconciled to Christianity at the end of time when a Remnant of their number would be saved; their conversion at that point would signal the beginning of a new era which had been predicted by the Old Testament Prophets.7 St. Augustine took these ideas further. In both the De civitate Dei and the Contra Iudaeos, he described Jews as living, albeit unwitting, testimony to the truth of Christianity and therefore, by implication, witnesses to Christ.8 These texts assigned Jews a specific role in the divine plan for the development of human society since they themselves provided compelling arguments for preaching Christianity to pagans. That Jews accepted the Old Testament was a sure witness to the historical basis of biblical Christological prophecy, thereby implying that they were living witnesses of Christianity’s truth. Furthermore, their suffering as a result of the destruction of the Temple and their dispersion over Europe and the Near East, was proof that God had punished them for their rejection of Christ and that they were responsible for 3 Abulafia, Christian-​Jewish Relations, 135–​66; Jonathan Riley-​Smith, The First Crusaders, 1095–​ 1131 (Cambridge: Cambridge University Press, 1997), 41–​42. 4 Samuel K. Cohn, “The Black Death and the Burning of the Jews,” Past and Present 196 (2007): 3–​36. 5 Abulafia, Christian-​Jewish Relations, 12–​14. 6 Abulafia, Christian-​Jewish Relations, 4–​8.

7 Romans 11:11–​12, and 11:25–​26; see also Rist, Popes and Jews, 73. 8 Abulafia, Christian-​Jewish Relations, 4–​8.

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His death. Again, their dispersion was taken to be a witness to Judaism’s error and Christianity’s truth.9 Jews also apparently served as a daily reminder to Christians of the old carnal Israel as opposed to the new Spiritual Israel. Citing Genesis 25:23, the elder shall serve the younger, St. Paul had argued that God’s new Covenant with Christians superseded His old Covenant with the Jews. It followed that Jews should be subservient to Christians since, whereas the latter were saved by Grace, the former, who lived by the Torah (the first five books of the Old Testament—​Genesis, Exodus, Leviticus, Numbers, Deuteronomy) were in no such state.10 Indeed, since Jews had come to symbolize carnality and sin, they continually reminded Christians that evil was part of the human condition from which man in this life could never completely escape.11 These ideas were behind the complex mixture of protection and restriction we find in the Theodosian Code (483) which had been promulgated as early as the fifth century. Hence the original theological underpinnings of ambivalence towards Jewish communities were now expressed within a legal framework. A comprehensive compilation of imperial constitutions from Constantine I (272–​337) to Theodosius II (401–​450), the Theodosian Code prohibited the building of new synagogues, declared that Jews who denigrated Christianity forfeited their privileges, and restricted them from keeping Christians as slaves. Yet it also safeguarded basic rights for Jews, including affirming citizenship, enabling them to set their own financial regulations, emphasizing that they had power over their own rituals and rites, allowing access to independent judges in civil matters, outlawing the desecration of synagogues, granting of due legal process, prohibiting Christians summoning them to the law courts on the Jewish Sabbath, and forbidding any annulment of their legal rights.12 Hence a blend of theological underpinnings and legal prerogatives formed a normative framework of both protection and restriction which many Jews faced daily in medieval society. Such ambivalent attitudes at a theological and legal level resulted in an increase in societal violence against Jews. In particular, the crusades—​one of the more dramatic manifestations of medieval Christian power—​ were an important factor in the deterioration of medieval Christian-​Jewish relations. In response to crusader violence against Jewish communities, some popes issued letters of protection, but this did little 9 For the idea of Jewish dispersion, see Augustine, De civitate Dei, ed. Bernhardt Dombart and Alfons Kalb (Stuttgart: Teubner, 1981), 2:328–​29; 1:188–​89. 10 For the idea of Jews as blind to Scripture, see Augustine, De civitate Dei, 2:328–​29.

11 For his polemic against the Jews, see Augustine, “In Answer to the Jews (Adversus Judaeos),” trans. Marie Liguori, in Treatises on Marriage and Other Subjects, ed. Roy J. Deferrari, The Fathers of the Church, 27 (Washington, DC: Catholic University of America Press), 391–​414; see also Rist, Popes and Jews, 73–​74. 12 Jacques Godefroy, Codex Theodosianus 16, 8, 1–​29, ed. and trans. Renate Frohne (Bern: Lang, 1991), 84–​159; Rist, Popes and Jews, 74.

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to help. As crusaders marched on the First Crusade, dreadful pogroms against Jews soon broke out, perpetrated not by the knightly classes targeted by Pope Urban II (1088– 1099) at the Council of Clermont in 1095, but rather by those involved in the “Peasants’ Crusade.” This violence was not condoned by ecclesiastical or secular authorities, but since, as we have seen, theological ideas and legal strictures generated ambivalence, they helped to foster hatreds which were then stimulated by the emotive context of crusading. The “Peasants’ Crusade” was led by Peter the Hermit and others such as the preacher Walter the Penniless, the clergymen Gottschalk and Volkmar, and the nobleman Count Emicho of Leiningen, all of whom led marauding groups across France, Germany, and Hungary to the seat of Byzantine power at Constantinople. Indeed, many of these crusaders reached only as far as the Balkans, but this did not prevent hideous persecutions of Jews which included deaths and forcible conversions, particularly in France, Bavaria, and Bohemia, and among communities in the Rhineland, in Speyer, Worms, and Mainz.13 Terrible pogroms against Jews in France, Germany, and England also arose from the Second and Third Crusades, the events of which are recorded in Hebrew crusade chronicles as well as in Catholic sources.14 Subsequently, crusaders continued to be responsible for many appalling actions against Jews. During the reign of Louis IX (1226–​1270), anti-​Jewish persecutions occurred in the western provinces of France. On the eve of the so-​called Barons’ Crusade in 1236, crusaders attacked Jewish communities in Anjou and Poitou and attempted to baptize all Jews. Jews who offered resistance were killed; the death toll may have reached between 2,500 and 3,000 Jews.15 Those taking part in the Barons’ Crusade were explicitly condemned for their anti-​Jewish activities by Pope Gregory IX (1227–​1241), but too late to prevent the massacres.16

13 Jeffrey Richards, Sex, Dissidence and Damnation: Minority Groups in the Middle Ages (London: Routledge, 1991), 91; Rist, Popes and Jews, 111–​12.

14 Schlomo Eidelberg, ed. and trans., The Jews and the Crusaders. The Hebrew Chronicles of the First and Second Crusade (Madison: University of Wisconsin Press, 1977); August C. Krey, The First Crusade: The Accounts of Eyewitnesses and Participants (Princeton: Princeton University Press, 1921), 33–​66, passim; Chapters 9 and 10 in William of Newburgh, “The First Four Books of Historia Rerum Anglicarum,” in Chronicles of the Reigns of Stephen, Henry II, and Richard I, ed. Richard Howlett, Rerum Britannicarum Medii Aevi Scriptores (London: Longman, 1884), 1:316–​17, 320–​22.

15 Michael Lower, The Barons’ Crusade. A Call to Arms and its Consequences (Philadelphia: University of Pennsylvania Press, 2005), 118–​20; Rist, Popes and Jews, 121–​22.

16 Gregory IX, “Lachrymabilem Judeorum in” (September 5, 1236), in Solomon Grayzel, The Church and the Jews in the Thirteenth Century. A Study of their Relations during the Years 1198–​ 1254, based on the Papal Letters and the Conciliar Decrees of the Period (New York: Hermon, 1966), 226–​28; and in Shlomo Simonsohn, The Apostolic See and the Jews, Documents 492–​1404 (Toronto: Pontifical Institute of Medieval Studies, 1988), 1:163–​64; Gregory IX, “Lachrymabilem Judeorum in” (September 5, 1236), in Grayzel, The Church and the Jews, 228–​30; and in Simonsohn, The Apostolic See, 1:165.

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Pogroms were also associated with “popular” crusades.17 During the thirteenth and fourteenth centuries there were a series of movements of crusading enthusiasm which drew their support from the young, rootless, and rural labouring poor. It seems that the borderlands between France and Germany were especially affected by such popular piety. Although these crusades were but a few months’ duration, and failed to reach their target (the Near East), they often precipitated attacks on Jews. Hence, for example, a mob involved in the Shepherds’ Crusade of 1251, after leaving Paris, created disturbances in Rouen, Tours and Orleans, while at Amiens and Bourges mobs also attacked Jewish communities. Or, another mob associated with the Shepherds’ Crusade of 1320, marched to Paris and then south, besieging fortifications and attacking royal officials, clergymen, and outcasts such as lepers, but most of all Jews. In Avignon, Pope John XXII (1316–​ 1334) gave orders that the crusaders must be stopped. In Spain, James II of Aragon (1291–​1327) forbade their entrance to his kingdom, and when they did enter, instructed his nobles that all Jews must be safeguarded. Yet, at the fortification of Montclus in Barcelona, over 300 Jews were massacred and James’s son Alfonso was ordered to bring those responsible for the deaths to justice.18 Hence here we see examples of “popular” persecutions of Jews being met with a robust response from both ecclesiastical and secular authorities. For the former, protection was a theological necessity; for the latter, it was a political imperative to counter a turbulent social situation. If crusaders were attacking Jews for being a religious “other,” there was also another reason for the deterioration of Christian-​Jewish relations, but with an economic underpinning, itself rooted in theology. This was the association of Jews with usury, regarded as not only a crime but as a serious theological sin.19 The degree to which medieval Jews partook in moneylending at interest is problematic and discussed further in Julie Mell’s article in this volume, but the strict prohibition the clergy imposed on Christians practising usury may explain why the number of Jewish moneylenders seems to have increased in the High Middle Ages.20 It was also the case that some rabbis in Europe justified their communities exacting usury from Christians on the grounds of necessity caused by poverty, the exclusion of Jews from farming, heavy taxation, and as a way of fending off persecution. It is clear that the clergy became increasingly concerned by the large profits made by Jews and other usurers, as we see from influential writers such as Bernard of Clairvaux (1090–​1153) and Peter the Venerable (ca. 1092–​1156), 17 Gary Dickson, The Children’s Crusade: Medieval History, Modern Mythistory (Basingstoke: Palgrave Macmillan, 2007); Gary Dickson, “The Advent of the Pastores (1251),” Revue belge de philologie et d’histoire 66 (1998): 249–​67; reprinted, Religious Enthusiasm in the Medieval West: Revivals, Crusades, Saints (Aldershot: Variorum, 2000), 6:249–​67; Gary Dickson, “The Genesis of the Children’s Crusade (1212),” in Religious Enthusiasm in the Medieval West: Revivals, Crusades, Saints (Aldershot: Variorum, 2000), 4:1–​52, at 25; Rist, Popes and Jews, 132. 18 Rist, Popes and Jews, 133–​35.

19 Kenneth Stow, “Papal and Royal Attitudes toward Jewish Lending in the Thirteenth Century,” American Jewish Studies Review 6 (1981): 161–​84, at 169; Rist, Popes and Jews, 140–​41. 20 See Julie Mell’s contribution to this volume.

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and charismatic preachers who composed sermons against usury such as Robert of Courçon (ca. 1160/​70–​1219) and Fulk of Neuilly (d. 1201).21 Certainly, from the pontificate of Innocent III (1198–​1216) onwards, popes increasingly believed that a growing number of Christians owed debts to Jews and that, if they could not pay off these debts, this potentially threatened to undermine papal calls for crusades. In 1198 Innocent tackled Jewish moneylending in his general crusading letter Post miserabile.22 His statement was made in the context of a general prohibition on moneylending, but a specific reference to the Jews followed: Jews, not just Christians, were ordered to remit usury to crusaders. This statement was repeated in a subsequent letter of Innocent III: Graves orientalis terrae and Nisi nobis dictum, both concerned with the Fourth Crusade (1204), and in his general letter Quia maior (1213) calling for the Fifth Crusade.23 Furthermore, he did not confine his pronouncements about moneylending to crusades to the Near East, but also extended them to the Albigensian Crusade in the south of France. Yet during Innocent’s pontificate the definitive statement on the problem of usury was expressed not in the pope’s letters, but in the legislation of the Fourth Lateran Council (1215). Constitution 67 of that council decreed that Christian lenders were completely forbidden to lend at interest, but it made no such statement about Jews. Rather, Jews were not to exact heavy and immoderate usury, implying that they might still expect to receive a reasonable rate of interest from Christians. Furthermore, Ad liberandam, Constitution 71 of the council, primarily concerned with the recovery of the Holy Land, decreed that crusaders—​as a special group—​were to be released from their oaths to pay interest and that Jews were to remit them not only any interest which they had accrued once they had taken the Cross, but all interest for all past debts.24 This was a significant statement. Furthermore, Ad liberandam stated that Christians ought to be excommunicated if they contracted business with Jews who exacted usury from crusaders. Importantly, 21 John Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle (Princeton: Princeton University Press, 1970), 1:18, 20–​22, 36; Jessalyn Bird “Reform or Crusade? Anti-​Usury and Crusade Preaching during the Pontificate of Innocent III,” in Pope Innocent III and His World, ed. John C. Moore and Brenda Bolton (Aldershot: Ashgate, 1999), 165–​85; John C. Moore, “Pope Innocent III and Usury,” in Pope, Church and City: Essays in Honour of Brenda Bolton, ed. Frances Andrews, Christoph Egger, and Constance M. Rousseau, The Medieval Mediterranean, 56 (Leiden: Brill, 2004), 59–​75, at 60; Rist, Popes and Jews, 149.

22 Innocent III, “Post miserabile(m) Hierusolymitanae” (August 17/15, 1198), in Grayzel, The Church and the Jews, 86; and in Simonsohn, The Apostolic See, 1:71.

23 Innocent III, “Graves orientalis terrae” (December 31, 1199), in Grayzel, The Church and the Jews, 98; and in Simonsohn, The Apostolic See, 1:78; Innocent III, “Nisi nobis dictum” (January 4, 1200), in Grayzel, The Church and the Jews, 98; and in Simonsohn, The Apostolic See, 1:78–​79; Innocent III, “Quia maior nunc” (April 22, 1213), in Grayzel, The Church and the Jews, 136, and in Simonsohn, The Apostolic See, 1:97. 24 Norman P. Tanner, ed., Decrees of the Ecumenical Councils, Nicaea I—​Lateran V (London: Sheed & Ward, 1990), 1:269.

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crusaders’ debts to Jews were not to be cancelled but rather postponed along with the interest until they returned from crusade. It made provision for vifgages—​living pledges or security—​by which property was held by the lender as security for repayment by the borrower. If Jews held crusaders’ property as security for repayment of debts, the revenues which they received from such property must be included, following deduction of necessary expenses, into the principal which the crusaders were to repay. Again, this significant statement about usury and crusading was re-​emphasized in Constitution 5 of the First Council of Lyons (1245).25 Papal preoccupation with Jewish usury and its effects on crusading continued during subsequent pontificates, with Innocent III’s successors echoing the legislation of their predecessor regarding Jewish lending to crusaders, who were to be given special protection from Jewish moneylending, while allowing Jews the eventual right to collect interest on crusaders’ debts. Popes were keen to express concern about Jewish moneylending, but equally keen to ensure that credit networks remained intact because they were so crucial in funding crusades. So, the papacy used its power as the ultimate spiritual authority in Christian society both to defend the interests of crusaders and to afford some measure of protection to Jewish moneylenders. Yet we know from their decretal collections that such a compromise displeased and disconcerted canon lawyers who, like many other clergymen, would have preferred that Jews not be allowed to charge any interest at all.26 Hence, popes followed a less harsh line in the matter of Jewish moneylending than many clergy advocated. Nevertheless, once again Jews found themselves both needed, but also decried, in medieval society.

The Power of the Church

Such tension between papal protection and restriction of Jews was also reflected in the medieval Church more widely. As we have discussed, popes were committed to the protection of Jews as witnesses to the Old Testament and because of the Pauline idea that at the end of days a Remnant of their number would be saved. Nevertheless, throughout the Middle Ages, a series of restrictive Church councils, concerned about the rightful place of Jews in Christian society, led to a deterioration in their status. We find particularly punitive measures against Jews being passed at great councils in Rome, whose legislation then filtered down to councils at a more local level. Influenced by 25 Tanner, Ecumenical Councils, 1:269, 299; Rist, Popes and Jews, 14–​54.

26 “Compilatio tertia,” 5.10.2 (“Per miserabilem”), in Quinque compilationes antiquae: nec non collectio canonum lipsiensis, ed. Emil Friedberg (Leipzig: Tauchnitz, 1882), 131; see also James Brundage, Medieval Canon Law and the Crusader (Madison: University of Wisconsin Press, 1969), 76; and Gilbert Dahan, Les Intellectuels chrétiens et les juifs au Moyen Âge (Paris: Éditions du Cerf, 1990), 116. “Liber extra decretalium,” 5.19.12 (“Post miserabilem”), in Corpus iuris canonici, ed. Emil Friedberg and Aemilius Ludwig Richter, vol. 2 (Leipzig: Teubner, 1881), cols. 814–​15; see also James Brundage, Medieval Canon Law (London: Longman, 1995), 215, 222; and Rist, Popes and Jews, 160–​163.

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Gregory I the Great (590–​604), Legislation of the Third Lateran Council (1179) during the pontificate of Alexander III (1159–​1181) banned Jews from employing Christian servants.27 As we have already noted, Lateran IV (1215) severely curtailed Jewish freedom, through stipulations prohibiting Jewish usury.28 It also forbade Jews from holding public office,29 and ordered them to wear distinguishing clothing.30 Furthermore, once the papal inquisition headed by the friars had begun its work in the thirteenth century, Jews became more and more associated with heretics—​which led clergymen increasingly to believe that they were proper targets for proselytization. Indeed, we need to examine to what extent Jews and their behaviour were frequently constructed as deviant as part of a wider process of “othering” in medieval society. Recent trends in the historiography of outcasts have tended to emphasize this wider process. Perhaps most famously, in his seminal work The Formation of a Persecuting Society, Robert Moore argued that the victims of that persecution were not only heretics, but also other groups including lepers, homosexuals, and Jews.31 To many Christians, Jews, like heretics, remained a potentially dangerous and subversive “Other” in their midst: an easy target for setbacks and misfortunes. These are ideas to which we shall return. But what does papal correspondence in particular reveal about popes’ attitudes to Jews? The pope who, long before our period, had originally set the blueprint for the treatment of Jews was Gregory I (590–​604). He was surprisingly mild in his attitude towards Jews. Over twenty of his letters expressed approval of their protection as articulated by the Theodosian Code.32 Furthermore, in his seminal pronouncement on the issue, his famous letter “Sicut Iudaeis,” he urged that although Jews should not be granted any liberties beyond those permitted in civil law, yet also, in accordance with that law, they should not be discriminated against. Jews must not be coerced by violence to accept baptism and only those who wanted to become Christians of their own free will and religious conviction were to be baptised. Any conversion must be through 27 “Liber extra,” 5.6.19 (“Nulli Iudaeo baptizatum”), col. 778; see also Tanner, Decrees, 1:223–​ 24; “Liber Extra,” 5.6.5 (“Iudaei sive Sarraceni”), col. 773. See also Dahan, Les Intéllectuels, 116; James Parkes, The Conflict of the Church and the Synagogue: A Study in the Origins of Antisemitism (Cleveland, PA: World Publishing Co.: Jewish Publication Society of America, 1961), 214–​15; Rist, Popes and Jews, 164–​65. 28 Robert Chazan, “Pope Innocent III and the Jews,” in Pope Innocent III and his World, ed. John C. Moore and Brenda Bolton (Aldershot: Ashgate, 1999), 184–​204, at 193; Tanner, Decrees, 1:265; “Liber extra,” 5.19.18 (“Quanto amplius Christiana”), col. 816; Dahan, Les Intellectuels, 116; Rist, Popes and Jews, 151. 29 Tanner, Decrees, 1:266–​67; “Liber Extra,” 5.6.16 (“Quum sit nimis”), col. 777; Rist, Popes and Jews, 174–​75.

30 Tanner, Decrees, 1:266; Rist, Popes and Jews, 127, 169–​70.

31 R. I. Moore, The Formation of a Persecuting Society: Authority and Deviance in Western Europe, 950–​1250, 2nd ed. (Oxford: Blackwell, 2007), 4–​5.

32 Godefroy, Codex Theodosianus, 84–​159; Alexander II, “Placuit nobis” (1063), in Simonsohn, The Apostolic See, 1:36; Rist, Popes and Jews, 74–​75.

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persuasion alone—​a pronouncement regarded as so important that it was later included in Gratian’s Decretum (1140).33 Such ideas, which emphasized both correct Christian theology and an idea of Christian clemency, are also obvious in the correspondence of Alexander II (1061–​ 1073), another important pope in the history of medieval Jewish-​Christian relations. In his letter “Placuit nobis” of 1063, Alexander praised Spanish bishops for restraining those campaigning against Muslims in Spain from also attacking Jewish communities. He emphasized that Jews must be protected because, unlike Muslims in Spain who expelled Christians from their territories, Jews were everywhere prepared to serve them. This reference to the idea of Jewish subservience perhaps reinforced the stipulation of the Theodosian Code that Jews who manifested contempt for Christianity forfeited their privileges and were enemies of Christ. Nevertheless, the fact that Alexander did not refer explicitly to the Theodosian Code in this letter suggests that above all he wanted to stress Christian clemency. Indeed, he reaffirmed the traditional teaching of the Church derived from the writings of St. Paul and St. Augustine: Jews were to live safely in Christian communities to facilitate their reconciliation to Christianity when a Remnant of them at the end of the world, having recognized Christ as the Messiah, would be saved. Alexander cited Gregory I who had forbidden Christians from harming Jews and declared that God in His mercy had spared the latter so that they might live, albeit scattered, throughout the world. By emphasizing Gregory’s disapproval of the forced conversion of the Jews, Alexander signalled his commitment to reaffirming the Church’s policy of comparative toleration. His letter was regarded as an important milestone in the history of the treatment of Jews, so much so that it was also later included by Gratian in his Decretum.34 Nevertheless, despite the milder papal tradition, in the Iberian peninsula, where there was a comparatively large Jewish population, Visigothic church councils urged much harsher treatment of Jews throughout the Middle Ages, and these tended to cancel out the pronouncements of Gregory I. The Councils of Toledo were a series of eighteen Church councils held in the Spanish city, beginning in the fourth century and ending shortly before the Muslims conquered Spain in 711. Canon 57 of the Fourth Council of Toledo of 633 condemned the principle of forced baptism, but also compelled Jews who had been baptised in the past to remain within the Christian fold.

33 Gratian, “Concordia discordantium canonum [Decretum],” D.45 c.3 (“Qui sincera intentione”), in Corpus iuris canonici, ed. Emil Friedberg and Aemilius Ludwig Richter, vol. 1 (Leipzig: Teubner, 1879), cols. 160–​161.

34 Decretum, C.23 q.8 c.11 (“Dispar nimirum est”), col. 955; see also Dahan, Les Intellectuels, 115, 114; Heinz Schreckenberg, Christlichen Adversus-​ Iudaeos-​ Texte und ihr literarisches und historisches Umfeld (1.-​11. Jh.), (Frankfurt am Main: Lang, 1982), 149, 145; Gregory I, “Scribendi ad fraternitatem” (June 591), in Simonsohn, The Apostolic See, 1:4–​5; Decretum, D.45 c.3 (“Qui sincera intentione”), cols. 160–​1; Parkes, The Conflict of the Church and the Synagogue, 210–​211; Rist, Popes and Jews, 75–​76.

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This much more negative decree was also included in Gratian’s Decretum and thereby given significant status. That Jews who had already been forcibly baptised should be compelled to remain within the faith seemed to undermine Gregory I’s testimony against forced baptism. Yet, later, in the twelfth century, Pope Alexander III (1159–​1181) stated in his general letter to the faithful, “Sicut Iudaeis,” “Jews ought not to be forced to accept baptism,” thereby deliberately recalling the teaching of his predecessor Gregory I.35 This statement of Alexander III was the first extant issue we possess of the “Constitutio pro Iudaeis,” the great edict of papal protection for Jews issued by a number of popes during the High Middle Ages. Furthermore, Innocent III in his own re-​issue of “Sicut Iudaeis” in 1199 entitled “Licet perfidia Iudaeorum,” also echoed the statement of Gregory I—​no Christian should use violence to force Jews into baptism and only Jews who willingly and with religious conviction sought refuge among Christians should be baptised.36 Nevertheless, despite this emphasis, in a later letter “Maiores ecclesiae causas” of 1201, Innocent attempted to reconcile Gregory I’s position with the harsher decrees of the Toledan Council of 633.37 He declared that it was contrary to Christianity for anyone completely opposed to baptism to be compelled to adopt and observe it. Yet at the same time he also now claimed an important distinction between different kinds of willingness. He argued for a distinction between those who had received baptism because they feared violence and wished to avoid loss of property—​who should be forced to observe the Christian faith since some had expressed conditional willingness to embrace Christianity—​and those who had never consented and wholly objected to their baptism—​who should not be forced to remain Christian. So, during Innocent’s pontificate we see a hardening of the papal line towards Jews which was negatively to influence that of his successors. Whether this was a reactive response—​due to societal changes—​or proactive—​due to Innocent’s own character and beliefs, is very difficult to determine and remains an ongoing subject of debate.

The Power of Civil Authorities

So far we have examined both the power of the “Societas Christiana” and the power of the medieval Church, spearheaded by the papacy, to affect Jewish communities. A third reason for the marginalization and scapegoating of Jews in medieval society derived from the attitude of civil rulers and the power they too wielded. Civil authorities believed and exploited the theological idea of Jewish servitude—​that the people of the 35 Alexander III, “Sicut Iudaeis” (1159–​81), in Simonsohn, The Apostolic See, 1:51–52; Rist, Popes and Jews, 79.

36 Innocent III, “Licet perfidia Judeorum” (September 15, 1199), in Grayzel, The Church and the Jews, 92–​94; and in Simonsohn, The Apostolic See, 1:74–​75; Rist, Popes and Jews, 77.

37 Innocent III, “Maiores ecclesie causas” (September–​October 1201), in Grayzel, The Church and the Jews, 100–​102; and in Simonsohn, The Apostolic See, 1:80–​81; also printed in “Liber Extra,” 3.42.3, cols. 644–​46. Rist, Popes and Jews, 77.

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Old Testament must serve the people of the New—​to justify and endorse their actions against Jewish communities. Civil power over Jews manifested itself in a number of ways, but it was always underpinned by the idea that they were the rightful servants of Christians. During the High Middle Ages, Jews in many countries were the literal property of kings and emperors, and were therefore under their authority, and so supposedly, protection.38 This “Chamber serfdom”—​Jews in the service of medieval rulers—​meant Jews were particularly socially and economically dependent upon kings and emperors, which was then justified because it was theologically important that they be seen as subservient to Christians.39 A famous example of this was the “privilege” of the German emperor Frederick II (1220–​1250) to Vienna in 1237 which decreed that Jews were not allowed to hold government offices because imperial authority rightly imposed perpetual servitude on the Jews for their crucifixion of Christ.40 In reality, the extent of Jewish royal or imperial service varied according to the level of protection provided by kings and emperors and the taxation they exacted in return for that protection.41 During the period this attitude of civil authorities was heightened by their growing knowledge of Judaism through circulating Jewish texts, most notably the Talmud, which was increasingly targeted by these authorities and led to further scapegoating. The Talmud, a central text of Rabbinic Judaism, refers to the collection of writings on halakha (law), ethics, and Philosophy comprising two components: the Mishnah ca. 200 AD, a written compendium of Rabbinic Judaism’s Oral Torah and the Gemara, ca. 500 AD. The Disputation of Paris (1240) which took place at the court of Louis IX under the supervision of the French queen, Blanche of Castile, was a result of the machinations of Nicholas Donin, a Jewish convert to Christianity, who translated the Talmud and made thirty-​five charges against it to Gregory IX (1227–​41) by quoting blasphemous passages about Jesus, Mary, and Christianity. Donin represented the Christian side of the debate and Church officials. By contrast, four of France’s distinguished rabbis, including Rabbi Yechiel of Paris, represented the Jewish side of the argument. As a result of the Talmud’s trial it was condemned, and copies burnt.42 This significant episode must of course be understood in the context of a wider condemnation of controversial texts and ideas during the period, but it seems that Christians’ increasing knowledge that Jews had another sacred text besides the Old Testament, and one that could not lead them to 38 Robin R. Mundill, England’s Jewish Solution. Experiment and Expulsion, 1262–​ 1290 (Cambridge: Cambridge University Press, 1998), 260; Rist, Popes and Jews, 219.

39 David Abulafia, “Ethnic Variety and Its Implications: Frederick II’s Relations with Jews and Muslims,” in Intellectual Life at the Court of Frederick II Hohenstaufen, ed. William Tronzo (Washington, DC: National Gallery of Art, 1994), 213–​24; reprinted, Mediterranean Encounters, Economic, Religious, Political, 1100–​1500 (Aldershot, Burlington, 2000), 16: 213–​24, at 219; Rist, Popes and Jews, 219. 40 Abulafia, “Ethnic Variety,” 219; Rist, Popes and Jews, 219.

41 Abulafia, Christian-​Jewish Relations, 54; Rist, Popes and Jews, 219.

42 Judah Rosenthal, “The Talmud on Trial. The Disputation at Paris in the Year 1240,” Jewish Quarterly Review 47 (1956): 58–​76, 14–​69; Rist, Popes and Jews, 22, 194–​204.

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acceptance of the New, was an important reason for the burning of the Talmud and the consequent scapegoating of Jews.43 The Disputation of Paris was followed not long after by the Disputation of Barcelona in 1263, another formal debate between representatives of Christianity and Judaism regarding whether Jesus was the Messiah. Held at the royal palace and in the presence of James I of Aragon (1213–​1276), his court consisted of prominent clergy and knights, but its major protagonists were the Dominican Friar Paul Christian (Pablo Christiani), a convert from Judaism to Christianity, and Rabbi Nachmanides, a famous Jewish scholar and philosopher.44 Decades later, another such formal debate, the Disputation of Tortosa, was held between 1413 and 1414 in the Crown of Aragon.45 In the long term the result of the attitude and power of civil authorities was that Jews were expelled from parts of Europe by a succession of monarchs including Capetian, English, and Spanish kings. Although European monarchs varied greatly in their toleration and treatment of Jews, and often depended on them, these expulsions revealed that powerful authorities could not be trusted to protect their interests. We have seen that this was for a number of reasons: an implementation of theological ideas, a fulfilment of legal requirements, a wish to foster the concept of a “Societas Christiana,” a desire for economic advantage, and a more nebulous, but nevertheless visceral, dislike of the “Other.”46 The situation for Jews in France was particularly dangerous during the reign of Philip II Augustus (1180–​1223), who justified his hated of Jews on religious grounds, but whose actions—​as with other monarchs—​were largely inspired to generate income for the Crown. Almost immediately after his accession, Philip imprisoned a number of Jews in the Kingdom of France and demanded a loan for their release. Later, in 1181 he annulled all loans made by Jews to Christians and claimed a percentage of these; in 1182 he confiscated Jewish property and expelled the Jews from Paris,47 only allowing them to return in 1198.48 43 See also Ann Giletti’s contribution to this volume.

44 Jeremy Cohen, The Friars and the Jews. The Evolution of Medieval Anti-​Judaism (Ithaca: Cornell University Press, 1982), 108–​22; Rist, Popes and Jews, 213–​14. 45 Hyam Maccoby, ed. and trans., Judaism on Trial: Jewish-​Christian Disputations in the Middle Ages (Cary: The Littman Library of Jewish Civilization, 1984), 168–​86, 187–​215; Rist, Popes and Jews, 43n77, 113n58. 46 Susan Einbinder, Beautiful Death. Jewish Poetry and Martyrdom in Medieval France (Princeton: Princeton University Press, 2002), 30–​45, 46–​71.

47 Robert Stacey, “Crusades, Martyrdom and the Jews of Norman England 1096–​1190,” in Juden und Christen zur Zeit der Kreuzzűge, Vorträge und Forschungen 47, Konstanzer Arbeitkreis fűr mittelalterliche Geschichte, ed. Alfred Haverkamp (Sigmaringen: Thorbeke, 1999), 233–​51, at 245; Rist, Popes and Jews, 148. 48 William Chester Jordan, The French Monarchy and the Jews: From Philip Augustus to the Last of the Capetians (Philadelphia: University of Pennsylvania Press, 1989), 44; Gavin I. Langmuir, Toward a Definition of Anti-​Semitism (Berkeley: University of California Press, 1990), 142–​43; Rist, Popes and Jews, 148.

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The situation was no better for Jews when, in 1240, during the reign of Louis IX, Jews were expelled from Brittany. Then in 1254 Louis expelled Jews from the whole of France, confiscating their property and synagogues, although they were allowed to return a few years later.49 Next, in 1290, Jews were expelled from England by Edward I (1272–​1307).50 The French Crown allowed Jews that survived this expulsion from England to enter France, yet, following the accession of Philip IV “the Fair” (1285–​1314) to the throne in 1285, in 1306 Jews were imprisoned, their property confiscated and an estimated 100,000 expelled.51 Louis X (1314–​1316), allowed the Jews to return in 1315,52 but between 1338 and 1347 Jewish communities in Alsace were the target of violence. There were also massacres in France, especially in the west and southeast (1348–​1349) which led Pope Clement VI (1342–​1352) to intervene to protect communities in Avignon and the Comtat Venaissin. In 1380 there were also attacks on Jews in Paris and Nantes and in 1394 Charles VI (1380–​1422) issued a definitive expulsion of the Jews from France.53

Christian Reaction to the Agency of Jewish Communities

We have seen that persecution of Jews in medieval Europe stemmed from a complex mixture of dependency, hatred, and greed justified by theological and legal ambivalence. But what about Jewish communities themselves? Yet another reason for marginalization and scapegoating arose from Christian reaction to the agency of these communities. During the High Middle Ages, despite persecution and expulsions, there were periods of comparative calm and toleration in which Jewish culture could develop and areas of Europe such as the Isle-​de-​France, Champagne, the Loire Valley, Languedoc, and Provence flourished as centres of Jewish scholarship. Jews pursued the study of the liberal arts including grammar, linguistics, philosophy, and science, were committed to the learning of foreign languages, and translated both religious and secular Arabic and Latin texts into the vernacular.54 49 Richards, Sex, Dissidence and Damnation, 113; Rist, Popes and Jews, 154–​55.

50 Michael Prestwich, Edward I (London: Methuen, 1988), 343–​46; Rist, Popes and Jews, 68. 51 Abulafia, Christian-​Jewish Relations, 61; Rist, Popes and Jews, 70.

52 Abulafia, Christian-​Jewish Relations, 84; Rist, Popes and Jews, 70.

53 Abulafia, Christian-​Jewish Relations, 84; Jody Enders, “Dramatic Rumors and Truthful Appearances. The Medieval Myth of Ritual Murder by Proxy,” in Rumor Mills. The Social Impact of Rumor and Legend, ed. Gary Alan Fine, Véronique Campion-​Vincent, and Chip Heath (New Brunswick, NJ: Aldine Transaction, 2004), 15–​29, at 21; Rist, Popes and Jews, 70.

54 Peter Schäffer, “Jews and Christians in the High Middle Ages: The Book of the Pious,” in The Jews of Europe in the Middle Ages (Tenth to Fifteenth Centuries). Proceedings of the International Symposium held at Speyer, 20–​25 October 2002, ed. Christoph Cluse (Turnhout: Brepols, 2004), 29–​42, at 30; Anna Abulafia, “Christians and Jews in the High Middle Ages: Christian Views of Jews,” in The Jews of Europe in the Middle Ages (Tenth to Fifteenth Centuries). Proceedings of the International Symposium held at Speyer, 20–​25th October 2002, ed. Christoph Cluse (Turnhout: Brepols, 2004), 19–​28, at 24; Ephraim Kanarfogel, Jewish Education and Society in the High Middle Ages (Detroit: Wayne State University Press, 1992), 15–​17.

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Yet power structures in western society often responded adversely to the Jewish communities they encountered. Certain features common to the Jewish communities of western Europe: their lack of assimilation with their Christian neighbours; their knowledge, but rejection, of Christian texts; their powers of disputation; their rituals and practices; their community coherence; their refusal to convert to Christianity, all encouraged those in authority, whether religious or civil, to marginalize and scapegoat them, and reinforced deep-​seated negative and stereotypical ideas. In response to such Christian persecution, Jews continued to forge their own identity. This agency of Jewish communities is strikingly manifested in the writings of contemporary Jewish chroniclers. Although not all Hebrew chronicles were contemporary to the events they described, many provide ample evidence for Christian-​Jewish interaction. The writers of these chronicles were interested in how relations with Christians affected their own Jewish communities, and although they often absorbed new material into older traditions and narrative structures rather than emphasizing the significance of new events,55 and held a variety of agendas and perspectives, they nevertheless all had a common goal in protecting their own communities and safeguarding Judaism.56 Indeed their chronicles have often been viewed as being as much educational and didactic texts deliberately written for the benefit of local communities as historical accounts,57 and as literary adaptations of Jewish polemic against Christian values and in particular the idea of crusade.58 These Hebrew chroniclers emphasized the impact of the crusades on Jewish communities who feared forced conversion at the hands of crusaders. For example, the First Crusade chronicler Shelomo bar Shimshon (Solomon bar Simson) was usually hostile in his portrayal of Christianity, an understandable reaction to persecution, but also because he wished to defend his community against Christian forces whom he believed threatened Jewish identity. Such chroniclers emphasized the importance of martyrdom or qiddush ha-​Shem—​“sanctifying the name of God”—​particularly to the 55 Yosef Yerushalmi, Zakhor. Jewish History and Jewish Memory (Seattle: University of Washington Press, 1982), 36; Rist, Popes and Jews, 40.

56 Elisheva Carlebach, “Between History and Myth: the Regensburg Expulsion in Josel of Rosheim’s Sefer ha-​miknah,” in Jewish History and Jewish Memory: Essays in Honour of Yosef Hayim Yerushalmi, ed. Elisheva Carlebach, John M. Efron, and David N. Myers (Hanover, NH: University Press of New England for Brandeis University Press, 1998), 40–​53; Rist, Popes and Jews, 40. 57 Simha Goldin, “The Socialisation for Kiddush ha-​Shem among Medieval Jews,” Journal of Medieval History, 23 (1997): 117–​38; Rist, Popes and Jews, 98.

58 Jeremy Cohen, “A 1096 Complex Constructing the First Crusade,” in Jews and Christians in Twelfth-​Century Europe, ed. Michal A. Signer and John Van Engen (Notre Dame: University of Notre Dame Press, 2001), 13, 19; Jeremy Cohen, Sanctifying the Name of God: Jewish Martyrs and Jewish Memories of the First Crusade (Philadelphia: University of Pennsylvania Press, 2006), 39; Rist, Popes and Jews, 99.

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Rhineland Jews, through their representation of women who were prepared to sacrifice themselves and their children to protect their faith.59 Hence Jewish chroniclers of the First Crusade such as Kalonymos bar Yehuda and Eliezer ben Nathan used the events against Jewish communities in the Rhineland to give support to the practice of qiddush ha-​Shem and to emphasize the importance of Jewish resistance to Christianity, even if this led to Jewish deaths.60 Thus, during the mass suicide of Rhineland Jews in 1096 to avoid forced conversion by crusaders bound for Jerusalem, we read how approximately 1200 Jews practised qiddush ha-​Shem;61 children as well as adults died, including one mother Rachel who even allowed her own children to be killed to prevent their forced baptism.62 So, Shelomo bar Shimshon narrated how at Worms “bridegrooms slew their betrothed, and merciful women their only children” in order to prevent forced baptism by crusaders,63 and how at Mainz mothers slaughtered children to avoid their conversion.64 Certain prayers used in synagogues seem to have referred to such acts of parents performing qiddush ha-​Shem on their children,65 although it seems that the practice was not universally accepted, and that from the first half of the twelfth century onwards, debates continued in Jewish communities as to whether suicide was the best solution to the threat of forced baptism.66 How did Christians respond to such Jewish agency? The emergence of accusations of ritual murder, blood libel, host desecration, and charges of well-​poisoning against 59 Alfred Haverkamp, “The Jews of Europe in the Middle Ages: By Way of Introduction,” in The Jews of Europe in the Middle Ages (Tenth to Fifteenth Centuries). Proceedings of the International Symposium Held at Speyer, 20–​25th October 2002, ed. Christoph Cluse (Turnhout: Brepols, 2004), 1–​16, at 6; Abulafia, “Christians and Jews in the High Middle Ages,” 21, 25; Schäffer, “Jews and Christians in the High Middle Ages,” 33; Yerushalmi, Zakhor, 49; Bernhard Blumenkranz, “The Roman Church and the Jews,” in Essential Papers on Judaism and Christianity in Conflict: From Late Antiquity to the Reformation, ed. Jeremy Cohen (New York: New York University Press, 1991), 193–​230, at 214; Jeremy Cohen, “The Hebrew Crusade Chronicles in their Christian Cultural Context,” in Juden und Christen zur Zeit der Kreuzzüge, ed. Alfred Haverkamp, Vortäge und Forschungen, 47 (Sigmaringen: Thorbecke, 1999), 17–​34; Einbinder, Beautiful Death, 30–​71; Avraham Grossman, Pious and Rebellious. Jewish Women in Medieval Europe, trans. Jonathan Chipman (Waltham, MA: Brandeis University Press, 2004), 198–​211; Rist, Popes and Jews, 113–​14. 60 Goldin, “Socialisation,” 117–​38; Rist, Popes and Jews, 99. 61 Goldin, “Socialisation,” 117–​38; Rist, Popes and Jews, 98.

62 Goldin, “Socialisation,” 117–​38; Rist, Popes and Jews, 98; see also Alexander Murray’s contribution to this volume. 63 Eidelberg, The Jews and the Crusaders, 23; Rist, Popes and Jews, 98.

64 See, Jeremiah 31:15. See also Peggy McCracken, The Curse of Eve, the Wound of the Hero: Blood, Gender and Medieval Literature (Philadelphia: University of Pennsylvania Press, 2003), 62; Rist, Popes and Jews, 98. 65 Eidelberg, The Jews and the Crusaders, 29, 35–​37; Rist, Popes and Jews, 98.

66 Goldin, “Socialisation,” 117–​38; Rist, Popes and Jews, 98.

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Jews in the eleventh, twelfth, thirteenth, and fourteenth centuries coincided with and even encouraged a developing notion that Jews might be capable of, and willing to plot, violence against Christian communities. It is likely that as Christians became increasingly aware of and conversant in the works of Jewish writers, this influenced their perception of Jews: it is interesting that as the Hebrew crusade chronicles began to circulate in Western Europe, the first accusations of ritual murder began to emerge. Although in their descriptions of mass suicide, the Hebrew crusade chroniclers narrated acts of violent self-​harm to their own communities, rather than violence against Christians, it is possible that these chronicles only helped to fuel Christian ideas of Jews as a potential threat to the “Societas Christiana.” Hence Christian reaction to Jewish agency often manifested itself in grass-​roots physical violence and scapegoating. At a more intellectual level, Jewish agency and Christian reaction to it can be seen from the evidence of Jewish polemical literature, which flourished alongside Christian polemical writing during the High Middle Ages. Jewish anti-​Christian polemic became more prevalent, spearheaded by well-​known writers including Joseph Kimi, Jacob ben Reuben, Meir ben Simeon of Narbonne, Joseph ben Nathan Official, his father Nathan Official, Moses of Salerno, Mordecai of Avignon, Nachmanides, Yacov of Venice, Abraham Abulafia, and the anonymous author of the Sefer Nisahon Yashan, all of whom were emboldened to present to their communities a coherent case against Christian narratives.67 In turn, and in response to their increasing knowledge of the Talmud, Christians also turned to polemics and disputations to safeguard their own narratives. From the twelfth century onwards, anti-​Jewish polemic questioned and even contested traditional notions of the theological role the Jews were believed to play in the history of Christian society.68 The period saw a growing number of anti-​Jewish polemics in circulation, including Walter of Châtillon’s Dialogus contra Iudaeos (1170), Alain of Lille’s De fide catholica contra hereticos (Book 3 of which was entitled Contra Iudaeos (1180–​90)), Peter of Blois’s Contra perfidiam Iudaeorum (end of the twelfth century), and William of Bourges’s Bellum Domini contra Iudaeos et contra Iudaeorum hereticos (1230). In these works, Christians responded to Jewish agency by scapegoating Jews and by re-​enforcing negative, stereotypical ideas. Furthermore, it is also no coincidence that ideas of blood libel, host desecration, ritual murder, ritual cannibalism, and well-​poisoning began to appear in chronicles from the twelfth century, at a period when certain Christian beliefs such as devotion to the Eucharist and the cult of the Virgin Mary were being further developed.69 Nor that, moving into the later Middle Ages we also find the propagation of a further chimerical 67 David Berger, The Jewish-​Christian Debate in the High Middle Ages: A Critical Edition of the Nizzahon Vetus (Philadelphia: Jewish Publication Society of America, 1979), 16; Rist, Popes and Jews, 46. 68 Amos Funkenstein, Perceptions of Jewish History (Berkeley: University of California Press, 1993), 172–​89, especially 172; Rist, Popes and Jews, 45–​46. 69 Abulafia, Christian-​Jewish Relations, 171, 174.

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fantasy—​the image of the Judensau—​which depicted Jews in obscene contact with a large female pig, an unclean animal in Judaism—​appearing in Germany and other European countries from the thirteenth century onwards.70

Conclusion: Jews as “Other”

A combination of four major factors led to the marginalization of Jews in Christian Europe. We have seen how power structures both constructed deviance, and also responded to the agency of a distinctive minority. Jews were marginalized as an “Other” through such constructions of deviance. However, as we have already suggested, we also need to ask ourselves to what extent Jews and their behaviour were constructed as deviant as part of a wider process of “othering” in medieval society. As also already noted, recent trends in the historiography of outcasts have tended to emphasize this wider process. In The Formation of a Persecuting Society Robert Moore provocatively claimed that persecution increased in the eleventh and twelfth centuries, so that we see the rise of “persecution mentalities,” that Europe became a persecuting society, and that there was deliberately sanctioned violence by majority groups against minority ones. He argued that the victims of that persecution were not only heretics, but also other groups including lepers, homosexuals and Jews.71 Indeed, in The Formation of a Persecuting Society, Moore argued strongly for the inter-​changeability, as far as society’s elites were concerned, of different outcast groups such as heretics and Jews, who, he believes, were viewed as the “Other.”72 It is certainly possible that fear of heretics as a threat to orthodox Christianity increased hostility to Jews as another potential enemy in Europe. From Innocent III onwards, papal re-​issues of the aforementioned “Constitutio pro Iudaeis,” the papal promise of protection for Jews, contained the additional and significant final statement that only Jews who did not plot against the Christian faith were to be protected.73 This suggests that, to a greater or lesser extent, popes increasingly viewed Jews, like Cathars and other heretics, as potential enemies, and believed that the Church must be defended against them, as it must also be defended against Muslim foes in the Near East. It is even possible that concern over the threat of heretics augmented papal sensitivities to the idea of heresy within Judaism which, as we have seen, they came to believe was manifested in the Talmud. Certainly, although we should not infer that popes systematically collapsed the categories of heretics and Jews into one overarching “Other,” nevertheless the concept of “internal” enemies is not merely a modern construct, developed by recent historians to group together non-​Christians living in medieval 70 Simonsohn, The Apostolic See, 1:47; Rist, Popes and Jews, 256. 71 Moore, Formation, 4–​5.

72 Moore, Formation, passim.

73 Innocent III, “Licet perfidia Judeorum,” in Grayzel, The Church and the Jews, 94; and in Simonsohn, The Apostolic See, 1:75; Rist, Popes and Jews, 80.

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Europe.74 To some extent it reflects ideas and concerns shared in particular by popes from Innocent III onwards, who increasingly from the thirteenth century declared that they had authority over the souls of all who lived in Christian society. So, despite their shared heritage of the Old Testament, to medieval Christians the practices and religious rites of their Jewish neighbours seemed alien and strange. Although learned Christians and Jews continued to engage each other in rigorous intellectual discourse about their respective faiths at a highly sophisticated level, such debates did not usually touch the lives of unlearned men and women. As we have already noted, to many Christians, Jews, like heretics, remained a potentially dangerous and subversive “Other” in their midst: an easy target for misfortunes and setbacks. Ironically, over time, papal calls for crusades could only foster the idea of Jews as “internal” enemies of Christian society, despite repeated papal calls for protection. Yet how should we compare ideas about Jews with another medieval “Other”: Muslims? Crusaders’ fear of the Muslim enemy in the Near East almost certainly encouraged hostility towards Jewish communities. Christians thought of Jews, like Muslims, as “infidels,” and it is not surprising that the infidel living in one’s midst was often viewed as a similar threat—​sometimes perhaps even a more dangerous one—​to the infidel living far away in the Near East. Peter the Venerable summed up this mentality when he said of the crusades that it was no use travelling to the Near East to fight infidel Muslims when Christians allowed other “infidels” (the Jews), who he believed were very much more guilty in their behaviour towards Christ, to live.75 Yet we have seen that the papacy’s treatment of Jews, so clearly expressed in the correspondence of Alexander II, was very different to that of Muslims. We should note that although Jews were a minority non-​Christian group, popes never authorized crusades against them as they did against Muslims.76 Indeed, they repeatedly proclaimed and endorsed the traditional Pauline-​Augustinian theology which emphasized that Jews must be protected, although with limited rights, in mainstream Christian society. Hence, there are problems with Moore’s position for two reasons. There is the problem of over-​emphasis on the inter-​changeability of one “outgroup,” be they heretics, lepers, Muslims, or Jews, with another, when in fact the groups were both quite different from each other and were perceived as such. Hence he undermines the agency of such groups themselves, since they appear as passive victims of political and social forces rather than specific communities which articulated their own identities and responded to persecution in particular ways. There is also the problem that his position encourages the tendency to embrace a conspiracy theory which posits the idea of the elites of medieval society working together in a combined effort all at the same time 74 Moore, Formation, passim; Rist, Popes and Jews, 102.

75 Peter the Venerable, The Letters of Peter the Venerable, vol. 1, ed. Giles Constable (Cambridge, MA: Harvard University Press, 1967), 328; Richards, Sex, Dissidence and Damnation, 92; Rist, Popes and Jews, 108. 76 Rist, Popes and Jews, 101.

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against all minority groups all in the same way; this, although theoretically possible, seems practically highly implausible.77 The elites, just like the persecuted, had different agendas at different times in different places. By contrast to Moore, in Communities of Violence, David Nirenberg argued against the idea of examining such “collective mentalities” over the longue durée. Rather, he suggested that violent action against minorities, whether lepers, Muslims, or Jews, is better understood as a form of social conflict expressed through particular discourses and within particular social, political, and cultural contexts.78 Hence he argued the history of minorities must be understood in relation to ideas which are central to our understanding of medieval society: kingship, fiscality, money, disease, sex, theology;79 only thus can we demonstrate the importance of minorities in constructing the medieval world.80 This thesis is persuasive. Indeed, as we have argued in this chapter, it is only by understanding the context of the complex powerplays—​both Christian and Jewish—​ within medieval life, and at both an elite and popular level, that we can understand the reasons for the marginalization and scapegoating of Jews in the High Middle Ages.

Selected Secondary Sources

Abulafia, Anna. Christian-​ Jewish Relations 1000–​ 1300: Jews in the Service of Medieval Christendom. New York: Routledge, 2011. Abulafia, David. “Ethnic Variety and Its Implications: Frederick II’s Relations with Jews and Muslims.” In Intellectual Life at the Court of Frederick II Hohenstaufen, edited by William Tronzo, 213–​24. Washington, DC: National Gallery of Art, 1994. Baldwin, John. Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle. 2 vols. Princeton: Princeton University Press, 1970. Brundage, James A. Medieval Canon Law. London: Longman, 1995. Chazan, Robert. “Pope Innocent III and the Jews.” In Pope Innocent III and His World, edited by John C. Moore and Brenda Bolton, 187–​204. Aldershot: Ashgate, 1999. Cohen, Jeremy. Sanctifying the Name of God: Jewish Martyrs and Jewish Memories of the First Crusade. Philadelphia: University of Pennsylvania Press, 2006. Cohen, Jeremy. The Friars and the Jews. The Evolution of Medieval Anti-​Judaism. Ithaca: Cornell University Press, 1982. Einbinder, Susan L. Beautiful Death: Jewish Poetry and Martyrdom in Medieval France. Princeton: Princeton University Press, 2002.

77 Robert Chazan, “The Deteriorating Image of the Jews—​Twelfth and Thirteenth Centuries,” in Christendom and its Discontents: Exclusion, Persecution, and Rebellion, ed. Peter D. Diehl and Scott L. Waugh (Cambridge: Cambridge University Press, 1996), 220–​33, at 224–​25, especially n. 11.

78 David Nirenberg, Communities of Violence: Persecution of Minorities in the Middle Ages (Princeton: Princeton University Press, 1996), 6–​7, 68. 79 Nirenberg, Communities, 15.

80 Nirenberg, Communities, 16.

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Jordan, William Chester. The French Monarchy and the Jews: From Philip Augustus to the Last of the Capetians. Philadelphia: University of Pennsylvania Press, 1989. Kanarfogel, Ephraim. Jewish Education and Society in the High Middle Ages. Detroit: Wayne State University Press, 1992. Maccoby, Hyam. Judaism on Trial: Jewish-​Christian Disputations in the Middle Ages. Cary: The Littman Library of Jewish Civilization, 1984. Nirenberg, David. Communities of Violence: Persecution of Minorities in the Middle Ages. Princeton: Princeton University Press, 1996. Rist, Rebecca. Popes and Jews, 1095–​1291. Oxford: Oxford University Press, 2016. Rosenthal, Judah. “The Talmud on Trial. The Disputation at Paris in the Year 1240.” Jewish Quarterly Review 47 (1956): 58–​76; 145–​69. Rubin, Miri. Gentile Tales: The Narrative Assault on Late Medieval Jews. Philadelphia: University of Pennsylvania Press, 1999.

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ARTICULATING AND CONTESTING POWER IN THE TWELFTH-​CENTURY MAGHRIB Amira K. Bennison This chapter explores the rise of the Almohads, a radical religious movement

that arose in the 1100s, but had an impact that resonated down through the ensuing centuries. By looking at North Africa (the Maghrib) and Islamic Iberia (al-​Andalus), it provides a medieval Muslim case study showing how one regime defined religious deviance, the political implications of that, and its contestation by other social actors who inverted the narrative in sometimes radical ways. The Almohad definition of a true Muslim and a just religio-​political order resonated widely through twelfth-​century Maghribī society but like any such discourse it could be appropriated and modified, particularly by other claimants to religious authority and charisma appearing at the time. The competition between monarchs and holy men to control narratives of righteousness versus deviance, and determine what was or was not criminal, initiated in this crucial phase was to become a long-​standing feature of religio-​political life in the western Maghrib. It is important to recognize at the outset that the developmental trajectory of Islam very quickly became imperial and, therefore, differed significantly from the early Christian experience. The Prophet Muḥammad formed a new social and political as well as religious community and early Muslims set about founding an empire before the religious and legal edifice of Islam was fully formed. As Aziz Al-​Azmeh has shown, Islamic ideas about the imbrication of the religious and the political were deeply rooted in a variety of models of Near Eastern kingship which infused the monarch with a divine aura and entwined religion and politics in a manner that shared much with the Byzantine vision.1 For this reason it can be difficult to disentangle religious and political ideologies in the Islamic context and we often speak of the “religio-​political” because religious reform or new interpretations of Islam tended to dovetail with the formation of new political structures in keeping with the paradigm laid down by Muḥammad. This generated contested categories with new movements claiming religious rectitude while their opponents perceived their position as heterodox and deviant.2 If they had the military 1 See Aziz al-​Azmeh, Muslim Kingship: Power and the Sacred in Muslim, Christian and Pagan Polities (London: Tauris, 1997).

2 I am avoiding the term “heretical” because the Arabic term zandaqa, sometimes translated as heresy, derives from the Persian word for Manichaeism and became a near synonym for a cluster of other terms indicating deviation from right belief, apostasy or unbelief, such as mulḥid, murtadd, kāfir, rather than heresy in the Christian sense. See François C. de Blois, “Zindīk,” Encyclopedia of Islam, 2nd ed., ed. by P. Bearman et al. (Leiden: Brill, 2012). Consulted online on July 30, 2019 http://​dx.doi.org/​10.1163/​1573-​3912​_​isl​am_​C​OM_​1​389.

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244 Amira K. Bennison might, however, such minority movements could become ruling powers, able to impose their political will upon the territories they acquired. The paradigm of a religious ideology plus military might leading to the formation of empires was articulated most famously by the fourteenth-​century Maghribī courtier and intellectual, Ibn Khaldūn, using the example of the rise of Islam itself and several religio-​political movements supported by tribal confederations that had arisen in medieval North Africa.3 Such confederations could not always impose their religious ideology on the mass of their subjects, a reality that was often rationalized in terms of a narrative of an elect (khāṣṣa) with true religious knowledge and the general Muslim populace (ʿāmma) who lacked such enlightenment.4 However, such disjunctures between rulers and ruled could also lead to violent confrontations in which religious deviance could be invoked as a justification. As we shall see in this chapter, the Almohad stance towards the promulgation of their religious ideology was particularly violent in the discursive sphere through its strident definition of the majority of Muslims as “deviant” and in need of rectification through conversion to “true” Almohad Islam. In the ensuing sections, I shall provide some context on the rise of the Almohads, before exploring Almohad ideology and the way in which it rendered the religious beliefs of the majority of the population deviant, criminal, and liable to be punished by force of arms. I shall then discuss two examples which engage with notions of religious deviance and crime in different ways. The first example is the resistance movement of the charismatic al-​Hādī, a “counter-​mahdī” to Ibn Tūmart, in the late 1140s, which was bitterly denounced as false belief and a criminal attack on the nascent empire, conceptualized as the true “city of God,”5 in various Almohad and post-​Almohad Arabic chronicles. The second example will move from the macro to micro level when the mature Almohad empire had overlaid its initial messianic message with a centralizing state apparatus, dedicated in the official narrative to the maintenance of Islamic justice and order but viewed rather less positively by communities faced with the material 3 Ibn Khaldūn, The Muqaddimah: An Introduction to History, ed. and trans. by Franz Rosenthal, 3 vols. (New York: Pantheon, 1958), vol. 1, chaps. 2–​3. There is a massive secondary literature on Ibn Khaldūn, exploring his oeuvre, his intellectual position, and his life. In many ways he is all things to all men and his theory has remained one of the most significant explanatory frameworks for the medieval Maghrib.

4 The best known North African example of a divide between a religious elect, as well as a political or social elite for which the term is also khāṣṣa, occurred with the Fāṭimids, an Ismāʿīlī Shīʿī dynasty which created an empire centred in Ifrīqiya (Tunisia) in the tenth century in which the ruling elite subscribed to Ismāʿīlī Shīʿīsm while the majority of the population continued to practice “mainstream” Islam. See Michael Brett, The Rise of the Fāṭimids: The World of the Mediterranean and the Middle East in the Fourth Century of the Hijra, Tenth Century CE (Leiden: Brill, 2001). 5 The Arabic phrase used by Ibn al-​Qaṭṭān is actually al-​madīna al-​fāḍila, the “virtuous city” which comes from the Islamic philosophical tradition, and ultimately Plato. However, in the Almohad context, “virtue” depends upon the leadership of the mahdī who acts in the world at God’s behest. Ibn al-​Qaṭṭān, Naẓm al-​jumān li-​tartīb mā salafa min akhbār al-​zamān, ed. Mahmoud Ali Makki [1410] (Beirut: Dar al-​Gharb al-​Islamī, 1990), 103–​5.

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consequences of the new regime. It will consider how the hagiographies of local holy men and women, depicted in a twelfth-​century hagiographical dictionary of Sufis, al-​Tashawwuf illā Rijāl al-​Taṣawwuf (A Loving look at the Men of Sufism), written by Ibn al-​Zayyāt al-​Tādilī,6 hint at the ways in which the population resisted the Almohad order; how they implied that it was the empire and its representatives who were acting against the Divine will rather than the mass of the subject population; and how they inverted normative notions of crime in startling ways in the process.

The Religio-​Political Context

The Almohads appeared on the scene at a time of ferment, both political and social, in the lands bordering the western Mediterranean. In the Iberian peninsula, the long, drawn-​out collapse of the Umayyad caliphate from 1008 to 1031 and the emergence of numerous small Muslim city states allowed the northern Christian kingdoms and principalities to push southwards. The changing political balance in the peninsula was confirmed by the Castilian capture of Toledo in 1085 which triggered Muslim appeals for support to the largest Islamic power in the vicinity, the empire of the Ṣanhāja Berber Almoravids (al-​Murābiṭūn) in North Africa. An Almoravid-​Andalusī coalition defeated the Castilians at Zallāqa (Alarcos) in 1086 and during the 1090s and 1100s the Almoravids went on to conquer the Andalusī principalities and impose Almoravid rule on them. From the political perspective, this overturned the previous relationship between the shores of the Straits of Gibraltar in which al-​Andalus had functioned as the metropole and the Maghrib as a province. From a religious and legal perspective, however, the Almoravids remained deferential to the Andalusī jurists (fuqahāʾ) who favoured the Mālikī school of Islamic law which the Almoravids had adopted as an idiom of empire.7 Simultaneously, the deeper Islamization of the largely tribal population of the western Maghrib and the socio-​political dislocation occurring in al-​Andalus fostered the spread of a different, more mystical approach to Islam. Islamic mysticism, commonly called Sufism, is a capacious term encompassing a wide range of pietistic, ascetic, spiritual, and theosophical practices with the individual soul’s search for the Divine at its heart. It is likely that the rise in this kind of religiosity in the Maghrib indicated the reconceptualization of ancient indigenous religious practices as ‘Islamic’ as part of the long-​term process of Islamization that culminated during this phase.8 It also 6 See n. 11 for publication details.

7 See Camilo Gómez-​Rivas, Law and the Islamization of Morocco under the Almoravids: The Fatwas of Ibn Rushd al-​Jadd to the Far Maghrib (Leiden: Brill, 2015).

8 There are problems with this approach to religiosity in the western Maghrib as succinctly noted by Vincent Cornell, “Ribāṭ Tīt-​n-​Fitr and the Origins of Moroccan Maraboutism,” Islamic Studies 27, no. 1 (1988): 23–​36, at 23–​24.

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246 Amira K. Bennison marked growing resistance to the juridical establishment whose wealth and power lay in their alliances with rulers and urban elites as well as their mastery of the substantial Arabic Islamic textual corpus. As a charismatic, person-​based approach to Islam which did not necessarily demand such extensive book learning, Sufism offered opportunities to the poor, illiterate, and otherwise marginalized groups in society to gain status among their peers as charismatics and thus conduits of Divine beneficence (baraka) to other Muslims. Although it would be an over-​simplification to see the juridical establishment and those of a more ascetic or mystical bent as completely separate groups in either the Maghrib or al-​Andalus, Muslims, whether educated or not, who cultivated pietistic practices came to be seen as a welcome contrast to more worldly jurists. The tensions between representatives of the two tendencies were most clearly manifested in two episodes of book-​burning in 1109 and 1143.9 The text which was targeted was al-​Ghazālī’s Iḥyāʾ ʿUlūm al-​Dīn (Revival of the Religious Sciences) which provided a controversial synthesis of the Islamic religio-​legal tradition, with Ashʿarī theology, and personal Sufism. Al-​Ghazālī was deeply critical of venal jurists who made money from religious positions and saw the cultivation of personal spiritual development as the antidote which would “revive” Muslim private and public life. This struck a chord with many jurists and religious scholars but others took it as a sharp indictment of their way of life. Among the latter was Ibn Ḥamdīn, an eminent jurist in Córdoba, who persuaded the Almoravid amīr, ʿAlī b. Yūsuf, of the dangers of al-​Ghazālī’s Iḥyāʾ and secured the order for the public immolation of copies of the work in the great mosques of the empire. This order was re-​issued in 1143 as the Almoravid empire began to face increasing ideological challenges from within.10 Prior to issuing the order, ʿAlī b. Yūsuf also summoned the mystics Ibn Barrajān, Ibn al-​ʿArīf, and Abū Bakr al-​Mayūrqī to Marrakesh for interrogation based on the premise that their activities were subversive.11 The elderly Ibn Barrajān and Ibn al-​ʿArīf were taken to Marrakesh in chains and the former soon died as a result of his maltreatment. Ibn al-​ʿArīf was restored to favour, only to die shortly afterwards with rumours of poisoning by the Mālikī judge of Almería floating in the air.12 9 Janina Safran, “The Politics of Book Burning in al-​Andalus’, Journal of Medieval Iberian Studies 6, no. 2 (2014): 148–​68, esp. 155–​62. https://​doi.org/​10.1080/​17546​559.2014.925​134 10 Amira K. Bennison, The Almoravid and Almohad Empires (Edinburgh: Edinburgh University Press, 2016), 242–​44.

11 The thought of Ibn Barrajān and his peers has been analysed in depth in Yousef Casewit, The Mystics of al-​Andalus: Ibn Barrajān and Islamic Thought in the Twelfth Century (Cambridge: Cambridge University Press, 2017). See also, J. Bellver, “Ibn Barrajān, Mahdism and the emergence of learned Sufism in the Iberian Peninsula,” Journal of the American Oriental Society 133, no. 4 (2013): 659–​81. 12 One version of the story (biography 18) is to be found in the biographical dictionary of Sufis that forms the basis for the third section of this chapter. Ibn al-​Zayyāt al-​Tādilī, Kitāb al-​Tashawwuf ilā Rijāl al-​Taṣawwuf, ed. Ahmed Taoufiq (Rabat: Kuliyyat al-​Ādāb wa’l-​ʿUlūm al-​Insāniyya, 2014), 118–​23.

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The Almohad movement, which derived its support predominantly from the Maṣmūda Berbers of the High Atlas mountains, emerged from this ferment, alongside other uprisings of a similarly messianic character in al-​Andalus and the Maghrib such as the murīdīn movement led by Ibn Qasī in western al-​Andalus (Portugal). The Almohad movement’s figurehead was a rural religious scholar called Muḥammad b. Tūmart from the Sūs valley south of the High Atlas. What we know of Ibn Tūmart’s career comes from an early source, the so-​called Kitāb Akhbār al-​Mahdī Ibn Tūmart written by one of his followers, Abū Bakr b.ʿAlī al-​Ṣanhājī, known as al-​Baydhaq.13 This account was composed under the aegis of the first Almohad Caliph, ʿAbd al-​Muʾmin, and functions as much to legitimize him as to provide a record of the life of Ibn Tūmart. The text is important, however, for its hagiographical tone that highlights Ibn Tūmart’s mahdistic status as the ideological lynchpin of the Almohad order and clearly identifies opponents to that order as rebels against Islam itself. Later Almohad sources demonstrate the maturation of this narrative in the hands of a series of scribes and chroniclers who describe the Almohad movement as true Islam and thus construct opposition to it as deviation and indeed apostasy rather than political resistance. However, the very presence of such “deviants” in these narratives reveals how the discursive frame constructed by the Almohads could be turned against them.

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

The Almohad Religio-​Political Narrative of Righteousness

As many scholars have noted, the Almohad movement was both radical and revolutionary. It marked the apex of a series of charismatic and mahdistic movements which spread across the western Maghrib and al-​Andalus in the mid-​twelfth century and had an enduring impact on religion and politics for centuries afterwards.14 The first part of the Kitāb Akhbār al-​Mahdī (Book of the Tales of the Mahdi) is lost (or perhaps never composed) but other sources, such as the Naẓm al-​Jumān (String of Pearls), written by Ibn al-​Qaṭṭān, assert that Ibn Tūmart was a studious and religiously inclined child from the rural Sūs valley south of the High Atlas mountains, a region inhabited by Maṣmūda Berber tribes, who travelled to Córdoba and then the Islamic east on a typical medieval Muslim ṭalab al-​ʿilm or “search for knowledge.”15 Although several sources assert that he met the great Islamic theologian Abū Ḥāmid al-​Ghazālī, whose book the Almoravids had ordered to be burnt, in Baghdad (or Syria) this encounter almost certainly did not take place: later Muslim scholars had their doubts and it has been rejected as a chronological 13 Abū Bakr b.ʿAlī al-​Ṣanhājī, known as al-​Baydhaq, Kitāb Akhbār al-​Mahdī Ibn Tūmart, ed. ʿAbd al-​Ḥamīd Ḥājiyāt [1395] (Algiers: al-​Sharika al-​Waṭaniyya li’l-​Nashr wa’l-​Tawzīʿ, 1975).

14 Maribel Fierro, The Almohad Revolution: Politics and Religion in the Islamic West during the Twelfth-​Thirteenth Centuries (Aldershot: Ashgate Variorum, 2012). For a longue durée perspective on the messianic impulse in the Islamic West, see Mercedes García-​Arenal, Messianism and Puritanical Reform: Mahdīs of the Muslim West (Leiden: Brill, 2006). 15 Ibn al-​Qaṭṭān, Naẓm al-​jumān, 63–​66.

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248 Amira K. Bennison impossibility by most modern scholars.16 However, the purported meeting dramatized and personalized Ibn Tūmart’s religious position which was “Ghazālian” in terms of its attention to the integration of law, theology, and Sufism and its emphasis on the personal responsibility of the individual Muslim to work actively for his/​her own salvation and for the betterment of society. Accounts of the meeting often also legitimized Ibn Tūmart’s religio-​political mission to overthrow the Almoravids as an objective endorsed by al-​Ghazālī himself.17 In the Kitāb Akhbār al-​Mahdī, al-​Baydhaq takes up the story in Tunis when Ibn Tūmart was on his return to the western Maghrib and presents him as a firebrand preacher of a puritanical bent, harshly critical of ignorant religious scholars, jurists, and political authorities, and determined to inculcate normative Islamic behaviour in the general population of the Maghrib.18 The consumption of alcohol, the public mixing of men and women, the playing of musical instruments all became targets of his ire, and vigilante interventions by his band of disciples.19 He also set his acolytes the task of repairing and building mosques and other religious facilities in the rural areas through which they passed.20 The group sheltered with local communities and in the growing number of suburban mosques or ribāṭs which housed ascetic and pietistic communities.21 Once the group arrived in Marrakesh, the Almoravid capital, Ibn Tūmart started to directly harangue the ruling amīr ʿAlī b. Yūsuf. A disputation between a reputed Almoravid jurist Mālik b. Wuhayb and Ibn Tūmart only heightened the tension and eventually the latter was exiled from the city. He continued to preach in nearby Aghmāt until an Almoravid army was sent to capture him and he fled across the High Atlas mountains to his natal region, the Sūs valley. According to Almohad sources, this period of exile marked Ibn Tūmart’s metamorphosis from preacher to mahdī, transforming his reformist message from one interpretation of Islam to the one true monotheism, tawḥīd, and rendering his adherents the true “monotheists” or “unitarians,” al-​muwaḥḥidūn, a term which became “Almohads” in European languages. The notion of the mahdī, the divine guide who would restore the Muslim community at the end of days, was not unique to Almohadism. It was shared, albeit in different forms, by Sunnī and Shīʿī Muslims and overlapped to an extent with 16 Bennison, Almoravid and Almohad Empires, 63.

17 Ibn al-​Qaṭṭān, Naẓm al-​Jumān, 72–​73; ʿAbd al-​Wāḥid al-​Marrākushī, al-​Muʿjib fī Talkhīṣ Akhbār al-​Maghrib, ed. Muḥammad Saʿīd al-​Aryān (Cairo, 1963), 245–​46.

18 For more detail on Ibn Tūmart’s approach, see Vincent J. Cornell, “Understanding is the Mother of Ability: Responsibility and Action in the Doctrine of Ibn Tūmart,” Studia Islamica 66 (1987): 71–​103. 19 Al-​Baydhaq, Akhbār al-​Mahdī, 52.

20 Al-​Baydhaq, Akhbār al-​Mahdī, 44.

21 Al-​Baydhaq, Akhbār al-​Mahdī, 51, 54, 56. For a summary of al-​Baydhaq’s reports on these aspects of Ibn Tūmart’s mission, see Bennison, The Almoravid and Almohad Empires, 247–​51. Al-​Marrākushī mentions Ibn Tūmart’s sojourn at the Mosque of ʿUbbād outside Tlemcen, an area frequented by ascetics. al-​Marrākushī, al-​Muʿjib, 250–​51.

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Shīʿī beliefs in a line of infallible imams culminating in the return of the last imam-​mahdī. As Fierro has noted, political conditions in the twelfth century, including the unexpected advance of Christian powers into Muslim lands, lent themselves to apocalyptic notions and the Almohads and other mahdistic movements emphasized the notion of the times being out of joint, of rampant sin and ignorance, and of true Muslims being “strangers” (ghurabāʾ) in a deviant world.22 In such a situation, the appearance of the mahdī was a natural, and desperately needed, event. In the Kitāb Akhbār al-​Mahdī and other Almohad sources, Ibn Tūmart’s “recognition” as the awaited mahdī by the Maṣmūda initiated a phase of active community building centred on the High Atlas town of Tīnmāll and then direct military opposition to the Almoravids in the late 1120s. This phase coincided with the last decade of Ibn Tūmart’s life, and it is recounted as a calque on the life of the Prophet Muḥammad and thus a replay of the original Islamic drama with the Maṣmūda and other Almohad tribes taking over the role of chosen people, played by the Arab tribes in the original rise of Islam.23 Over the next forty years, the Almohads led by one of Ibn Tūmart’s disciples, ʿAbd al-​Muʾmin, gradually conquered the High and Middle Atlas mountains, the Atlantic plains and their cities, and then moved inexorably eastwards across the Maghrib and north across the Straits of Gibraltar into the Iberian peninsula. By ʿAbd al-​Muʾmin’s death in 1163, a Maṣmūda-​dominated confederation of tribes had created a vast empire inspired by the Almohad interpretation of Islam which ʿAbd al-​Muʾmin and his caliphal successors maintained through the construction of a new Almohad scholarly class, the ṭalaba, and Almohad cadres, the ḥuffāẓ, who were the ideological and military mainstay of the empire. The exigencies of government necessitated the absorption of other elements into the bureaucracy and the military, some of whom subscribed to Almohadism and some of whom probably dissembled for the sake of lucrative employment but the Berber tribes remained at the heart of the enterprise. A distinctive feature of the movement was an atypical refusal to countenance other forms of Islam, or indeed indigenous Christianity and Judaism, as valid from the moment of the new Almohad dispensation. Although revivalist religio-​ political movements had occurred in other times and places, for example the above-​mentioned Ismāʿīlī Fatimid mission in ninth to tenth-​century North Africa, rarely were they predicated on totalitarian conversion of the entire population to a fresh monotheistic revelation. I have argued elsewhere that the Almohads, as a medieval empire, simply did not have the reach or the resources to forcibly convert the entire population of the Maghrib and al-​Andalus to Almohadism and “obedience” (ṭāʿa) may often have been enough but in key urban centres, especially those where they faced stiff resistance, they seem to have adopted unusually harsh policies and insisted on the religious corruption, deviance, 22 See Maribel Fierro, “Spiritual Alienation and Political Activism: The ghurabāʿ in al-​Andalus During the Sixth/​Twelfth Century,” Arabica 47, no. 2 (2000): 230–​60.

23 Montgomery Watt saw this as an attempt to create an entirely new religion out of the Islamic fabric to hand. See W. Montgomery Watt, “The Decline of the Almohads: Reflections on the Viability of Religious Movements,” History of Religions 4, no. 1 (1964): 23–​29.

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250 Amira K. Bennison and thus criminality of non-​Almohads.24 Their opponents hotly contested such charges and deployed a similar rhetorical armoury as they struggled to push back against the relentless Almohad armies ravaging their lands and retain their religious and political independence from the new hegemonic order. One locus of opposition emerged on the Atlantic coastal plains in the late 1140s, the area to which we shall now turn.

The Uprising of the Counter-​mahdī al-​Hādī

During the eleventh to twelfth centuries, the plains running alongside the long Atlantic coast had become the site of a burgeoning network of rural settlements knowns as ribāṭs that provided foci for practitioners of ascetic and other pietistic practices. The best known were Ribāṭ Māssa south of modern Agadir and Ribāṭ Tīṭ-​n-​Fiṭr south of modern Casablanca. These communities may have had links to similar pietistic groups settled on the fringes of towns such as Marrakesh, Salé, Fes, and Tlemcen. Ibn Tūmart himself had been part of this network in his lifetime, seeking shelter and camaraderie with such communities as he travelled across North Africa, as mentioned above. As this suggests, the religious position of the ribāṭ communities were not necessarily that far from Almohadism but recognition of Ibn Tūmart as the mahdī and the fact that the empire being built in his name was dominated by the Maṣmūda generated considerable resentment and opposition. The Barghawāṭa of the central Atlantic coast proved resistant, as did the Ṣanhāja tribes associated with the previous Almoravid empire and the Jazūla, the tribe of Ibn Yāsīn, the original ideologue of the Almoravid movement, located further south. After the fall of Marrakesh in 1147, their simmering recalcitrance flamed into full-​ scale armed resistance. The relationship between different centres of opposition along the Atlantic seaboard is not entirely clear. Our closest source, al-​Baydhaq, speaks of a series of “rebellions” down the coastal plains and he focuses on an individual called ʿUmar b. al-​Khayyāṭ of the Jazūla tribe, who encouraged the tribes of the Ḥāḥa plain to “apostasize” (irtadda), triggering a wave of rejection of the new Almohad religio-​ political programme up the Atlantic coast to the Straits of Gibraltar where the towns of Ceuta and Tangiers joined the uprising. Al-​Baydhaq does not mention a figure called al-​Hādī, leaving it unclear as to the nature of the relationship, if any, between him and ʿUmar b. al-​Khayyāṭ. It is perhaps not surprising that the author of the Mahdī’s biography does not report the existence of a counter-​claimant to his charismatic aura. However, he alludes to the seriousness of the uprising by reporting that ʿUmar was caught, killed, and carried to Marrakesh on a mule before being exposed on a cross at the Sharīʿa Gate,25 a post-​mortem humiliation used for dangerous and challenging opponents. 24 Amira K. Bennison, “Almohad tawḥīd and its implications for religious difference,” in “Religious Minorities under the Almohads,” in idem and María Angeles Gallego (eds), Religious Minorities under the Almohads, Special Issue of The Journal of Medieval Iberian Studies 2, no. 2 (2010): 195–​216. 25 Al-​Baydhaq, Kitāb Akhbār al-​Mahdī, 121.

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Other sources identify Almoravid elements involved in the uprisings, led by the Almoravid prince Yaḥyā b. al-​Ṣaḥrāwiyya who returned from the Iberian peninsula to join the opposition and the pro-​Almoravid judge of Ceuta, Qāḍī ʿIyāḍ. In the Dukkāla area south of modern Casablanca, Ribāṭ Tīṭ-​n-​Fiṭr, headed by the Banū Amghār, may have acted as another node in the rebellion.26 Further south, however, tribesmen coalesced around the mysterious figure of al-​Hādī, a word that comes from the same Arabic root as mahdī (h-​d-​y) and was virtually synonymous with it.27 In other words, al-​Hādī was a nom de guerre that clearly positioned its holder as a counter-​mahdī to Ibn Tūmart and the righteous leader of a rival set of tribes. The uprising is described in some detail by the late twelfth-​to early thirteenth-​century historian Ibn ʿIdhārī al-​Marrākushī who reports that al-​Hādī’s name was Muḥammad b. ʿAbd Allāh b. Hūd al-​Māssī, indicating that he had, or claimed to have, the same name as the Prophet Muḥammad, a necessary qualification for the mahdī which Ibn Tūmart had achieved through parallel Berber and Arab genealogies. He then gives an pro-​Almohad account of the uprising, full of negative stereotypes but also indications of the intensity of the opposition. This devious ideologue was a fuller who worked on the bank of Salé’s estuary, and his father was a market haggler. Then he claimed divine guidance (hidāya) and called himself al-​Hādī and settled at Ribāṭ Māssa in Shawwāl 542 (March 1147). He welcomed people from every place who were beguiled by him, and a great gathering joined him in his mischief. Word of him spread to the horizons and wayfarers spoke together of him. They multiplied around him and linked themselves to him, and an innumerable throng joined his mission. He revealed the “sword of Truth” to them and brought forward their destruction. His deceitful mission reached the entire ʿUdwa (i.e. the Maghrib) until only Marrakesh and Fes remained while every other town apostasized.28

Ibn ʿIdhārī delegitimizes al-​Hādī by referring to his humble origins and by using a range of adjectives relating to deceit, deviousness, beguilement which culminate in his assertion that those who followed al-​Hādī had “apostasized.” In his discussion of the military campaigns against al-​Hādī, he describes its proponents as “hypocrites” (munāfiqīn), a loaded term used to describe those who had secretly opposed the Prophet Muḥammad in Medina.29 It is also of note that al-​Hādī’s claim to religio-​political 26 In an important article on Ribāṭ Tīt-​n-​Fiṭr, Vincent Cornell surmised that the Banū Amghār were probably supportive of Almohad doctrine. However more recent scholarship argues for greater tension between Sufism and Almohadism and more acceptance of Ashʿarī theology among the Almoravids than previously supposed. Given that the tribes of the region included many Ṣanhāja elements, it is equally likely that the denizens of Ribāṭ Tīṭ-​n-​Fiṭr were among the opponents of the Almohads. Vincent J. Cornell, “Ribāṭ Tīt-​n-​Fitr and the Origins of Moroccan Maraboutism,” Islamic Studies 27, no. 1 (1988): 23–​36, at 31.

27 The uprising is briefly discussed in García-​Arenal, Messianism, 193–​95; Bennison, Almoravid and Almohad Empires, 72–​73.

28 Ibn ʿIdhārī al-​Marrākushī, al-​Bayān al-​Mughrib fī Akhbār al-​Andalus wa’l-​Maghrib, ed. ʿAbd Allāh Muḥammad ʿAlī, based on the edition of E. Lévi-​Provençal and G. S. Colin, 4 vols. (Beirut: Dār al-​Kutub, 2009), 4:108. 29 Ibn ʿIdhārī, Bayān, 4:110.

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252 Amira K. Bennison leadership was linked to his move to Ribāṭ Māssa which, in later myths at least, was identified as the place where the mahdī would appear,30 and that the ascetic communities along the coast encouraged the population to support him.31 The first Almohad army sent to deal with al-​Hādī suffered a humiliating defeat. The veteran general, Abū Ḥafṣ ʿUmar al-​Hintātī, then mobilized a second Almohad army which finally managed to quell al-​Hādī’s uprising. Several fourteenth-​century sources provide some of the text of the letter announcing Abū Ḥafṣ ʿUmar’s victory to the Almohad Caliph, ʿAbd al-​Muʾmin, composed by the scribe Ibn ʿAṭiyya.32 As in the chronicle of Ibn ʿIdhārī, notions of “apostasy” and “corruption” dominate the narrative. This vocabulary was not new and was already part of the Andalusī Umayyad lexicon used to delegitimize rebellion in the provinces of al-​Andalus in previous centuries.33 Ibn ʿAṭiyya, although born and raised in Almoravid Marrakesh, was educated in Andalusī Arabic bureaucratic and literary culture and deployed this lexicon in writing to ʿAbd al-​Muʾmin announcing victory over al-​Hādī, a letter incidentally which is credited in the sources with leading to his integration into the Almohad elite after a period in the army during which he had concealed his previous service to the Almoravids.34 The section describing the rebel movement reads as follows: Those misguided apostates revelled in hostility and oppression, and they partook of unbelief in word and deed and God allowed them to multiply their sins … Interlocutors came to him from far and wide and messengers arrived from the distant peaks, and everyone believed in him with great wonder. The thing that led them to this, and brought them to this deadly pass, was the arrival on those shores of men who adopted practices of withdrawal from other people in the preceding years, and busied themselves according to their inclinations with fasting and praying, day and night. They garbed themselves in the outward show of religion, and clad themselves with the cloak of hypocrisy but God did not open the gateway of success for them.35

After describing the hard-​won battle, Ibn ʿAṭiyya juxtaposes the God-​given Almohad victory with the retribution exacted against their opponents, saying, “The whole area was filled with their corpses … and God destroyed them for their unbelief and 30 G. S. Colin, “Māssa,” Encyclopedia of Islam, 2nd ed., ed. P. Bearman et al. Consulted online on July 30, 2019 r. 31 García-​Arenal, Messianism, 194–​95.

32 As noted by García-​Arenal, sections of the letter appears in al-​Nāṣirī’s Kitāb al-​Istiqṣā, and Ibn al-​Khāṭīb’s Iḥāṭa fī Akhbār Gharnāṭa, ed. A. Inān, 2 vols. (Cairo: Maktabat al-​Khānjī, 1973–​1977), 1:269–​70. 33 The most famous example of this lexicon occurs in the narration of the rebellion of ʿUmar b. Ḥafṣūn and his sons, centred on Bobastro.

34 Amira K. Bennison, “Tribal Identities and the Formation of the Almohad Élite: The Salutory Tale of Ibn ʿAṭiyya,” in Biografías magrebíes. Identidades y grupos religiosos, sociales y políticos en el Magreb medieval, ed. Mohamed Meouak (Madrid: Consejo Superior de Investigaciones Científicas, 2012), 245–​72. 35 Ibn al-​Khaṭīb, al-​Iḥāṭa, 1:269.

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corruption.”36 History is written by the victors and the adhesion of the label of religious and political deviance was contingent upon the military outcome of the conflict. The Almohads used their victory to frame the opposition the young empire faced at this critical juncture in the starkest terms, accusing al-​Hādī’s movement not only of deviance but of apostasy, unbelief, and corruption. In contrast we have little record of how al-​Hādī and his supporters envisaged their religio-​political programme, even though the sources concur that he secured massive support across the western Maghrib. The very title “al-​Hādī,” however, points to the development of a movement explicitly positioned against Almohadism and its mahdī, or perhaps more accurately against the imperial ambitions of ʿAbd al-​Muʾmin, the mahdī’s Caliph. This extensive wave of opposition, and indeed the movement of Ibn Qasī in western al-​Andalus around the same time, offered competing visions of right guidance, hidāya, a noun from the same Arabic root as mahdī and hādī, as well as a call to arms to resist the new political configuration. Deviance and criminality in this period of upheaval were thus contested and contingent on military success. Despite these serious challenges, ʿAbd al-​Muʿmin’s armies conquered most of the Maghrib, Ifrīqiya, and parts of al-​Andalus over the next fifteen years and his successors, the Muʾminid Caliphs, ruled these areas for much of the twelfth and early thirteenth centuries. Their empire was probably the first to introduce centralized forms of governance and taxation in parts of the Maghrib which, in themselves, were issues that often generated narratives and counter-​ narratives about justice and righteousness. A decree recorded in Ibn al-​Qaṭṭān’s Naẓm al-​Jumān, dated to around the time of al-​Hādī’s uprising, points towards ʿAbd al-​Muʾmin’s emergent rhetoric of righteous empire. Again penned by Ibn ʿAṭiyya, the letter describes the flowing forth of divine beneficence (baraka) after a time when its wellsprings had run dry, and depicts ʿAbd al-​Muʾmin commanding the good and prohibiting wrong across his domains.37 This position was reiterated in later missives and the performances of just behaviour attributed to caliphs such as ʿAbd al-​Muʾmin’s grandson, Yaʿqūb al-​Manṣūr (r. 1184–​ 1198), in dynastic historiography which expressed the dynasty’s sense of its role as giver and maintainer of Islamic justice. However, the world of religious charismatics, the “friends of God” (awliyāʾ Allāh), from which the movement had arisen, remained a space in which such hegemonic claims could be contested in small daily incidents when more dramatic and large-​scale rallying of opposition such as the uprising of al-​Hādī was not desirable or possible.

Divine Retribution in Ibn al-​Zayyāt al-​Tādilī’s Kitāb al-​Tashawwuf ilā Rijāl al-​Taṣawwuf

The Kitāb al-​Tashawwuf ilā Rijāl al-​Taṣawwuf, is a hagiographical dictionary of Maghribī holy men and women that catalogues the moment when Islamization in the rural 36 Ibn al-​Khaṭīb, al-​Iḥāṭa, 1:270. The word used is fasād, meaning not simply corruption but corruption of the body politic and by extension, rebellion. It is thus similar to the term fitna. 37 Ibn al-​Qaṭṭān, Naẓm al-​Jumān, 190. The full letter runs over several pages.

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254 Amira K. Bennison Maghrib, and the associated spread of popular mysticism and pietistic practices, intersected with the consolidation of Sufism in the Islamic East. The author, al-​Tādilī, introduces the notion of eastern Islamic Sufism to a Maghribī audience while at the same time presenting the ascetic, charismatic and mystical practices of the Maghrib to an eastern Islamic audience as part of the wider Islamic Sufi tradition.38 The work includes long entries on the doyens of Maghribī mysticism such as Ibn al-​ʿArīf, ʿAlī b. Hirzihim, and most famously, Abū Madyan, but also entries on their networks, locally recognized “friends of God” and even anonymous men and women (majhūl/​majhūla) perceived to possess beneficent power (baraka) which they exercised on behalf of their communities. The biography I wish to consider here is that of a holy man from the northern High Atlas town of Aghmāt Warīka, Abū ʿAbd Allāh Muḥammad b. Ismāʿīl al-​Hawwārī (d. 1185), which contains two stories that suggest an inversion of the Almohad administration’s claim to religio-​political legitimacy and probity and the use of holy men to create a counter-​narrative of righteous, rather than deviant and criminal, opposition to that administration. As we shall see, these anecdotes from Aghmāt, whether true or not, show how local communities imagined subverting the Almohad narrative of righteous rule descending from God to the mahdī and his caliphs through the agency of local holy men and women, the very group which had originally nurtured Ibn Tūmart and produced his rival al-​Hādī. According to his biography, Muḥammad b. Ismāʿīl was a pious and literate man. He had copied out the Kitāb al-​Iḥyāʾ of al-​Ghazālī and used the litanies within it, and spent most of his time praying in the great mosque of Aghmāt. In addition, he lived simply, avoided owning property, and recited eight sections (aḥzāb) from the Qurʿān daily.39 These tropes are found in many hagiographies and established the saint’s credentials, after which al-​Tādilī reports Muḥammad b. Ismāʿīl’s miracles (karāmāt), Abū’l-​Ḥasan ʿAlī b. ʿĪsa told me: The judge Abū Ḥafṣ b. ʿUmar sent for Abū ʿAbd Allāh Muḥammad b. Ismāʿīl as they were friends. When he arrived, the judge said, “I have spent three days during which no food has had any appeal for me.” He said to him, “Why is that?” He replied, “Because the tax inspector recorded the pious endowments of the mosque in order to confiscate them and I tried to persuade him not to do that but he obdurately persisted and recorded them in his file.” Abū ʿAbd Allāh said, “You are defending God Most High from someone at war with Him and someone like you must be aided, for the one who sorts sound from bad coin is perspicacious and protects his home.”40 He then prayed against the tax inspector and that very night he was afflicted with a blood clot

38 See Daphna Ephrat, “In Quest of an Ideal Type of Saint: Some Observations on the First Generation of Moroccan Awliyāʾ Allāh in Kitāb al-​Tashawwuf,” Studia Islamica 94 (2002): 67–​84.

39 The Qurʾān is divided into 30 parts (juzʾ) of two sections (ḥizb). This reference to eight sections indicates Abū ʿAbd Allāh’s unusual dedication to reciting the Qurʾān while at prayer and implies that he had memorized it.

40 In Edward W. Lane’s Arabic-​English Lexicon (London: Williams and Northgate, 1863), nāqid is given as one who sorts good coin from bad or good poetry from bad. The gist here seems to be that the judge is a man of insight and sound judgement, protecting his domain.

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and died, and was borne back to Marrakesh. I went out that evening and I heard his freed woman say, “Our entry to Aghmāt was ill-​omened!” while she wailed over her master.

Abū’l-​Ḥasan said: There was a man in Aghmāt who spied on people to find out about their properties so the people came to Abū ʿAbd Allāh while he was in the mosque and complained to him, so he prayed against him. He tarried for three days. That man spent the night with a group of people and they killed him and God Most High relieved them of him.41

These two examples of popular perceptions of the holy man’s miraculous powers are distinctive from the perspective of the light they shed on how communities manoeuvred under the Almohad yoke. In the first story, Abū ʿAbd Allāh found his friend the judge of Aghmāt in a state of depression and anxiety because an Almohad tax collector had been making notes of the mosque’s pious endowments, which provided the income for its running and upkeep. The judge feared that these assets would be seized by the state; Abū ʿAbd Allāh reassured him and promised that, as a defender of God’s rights, he would be aided, while describing the Almohad tax collector as being “at war” with God, an obvious inversion of the state’s religio-​political narrative. The holy man then “prayed against” the tax collector, a phrase synonymous with invoking a divine curse on him, which appeared to have been fulfilled when the tax collector died suddenly that evening from a blood clot, thereby relieving the judge of his depredations. It is a challenge to know what happened in Aghmāt that night or if the anecdote even has a factual basis, which is a moot point in hagiographic literature. What we can say is that in such a popular work of hagiography, the community, their holy man and God stood on the same side against a rapacious official whose behaviour was deemed un-​Islamic and thus criminal from the community perspective, despite Almohad claims to the contrary. The second shorter anecdote about Abū ʿAbd Allāh’s powers is rather more explicit. Again, investigation into community assets by a stranger triggered anxiety and concern among the inhabitants of Aghmāt. While by no means conclusive, the juxtaposition of the story with that of the tax collector and his fate suggests that the stranger was operating in an official Almohad capacity or was suspected to be doing so. This is made more likely by his identification as an outsider to the community, an unknown “man.” The people went to Abū ʿAbd Allāh in a state of high anxiety and he again “prayed against” the man. This time divine intervention did not take the form of illness but the murder of the man by the local people with whom he was staying, three days after the curse. In normal circumstances such an act would have constituted a serious normative and religio-​legal breach. It flouted the social norms of hospitality, and was a crime from the perspective of both the Sharīʿa and customary law (ʿurf). However, it is framed here as the working of God’s will in response to Abū ʿAbd Allāh’s imprecation and, in the face of external “spying,” the apparently cold-​blooded murder of an investigator becomes a miraculous release of the community from threat. As with the previous example, we 41 Al-​Tādilī, Kitāb al-​Tashawwuf, 270–​71.

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256 Amira K. Bennison cannot ascertain the historicity of this event, but we can identify a popular narrative which not only inverted Almohad claims to righteousness but also transformed an evidently criminal act into something quite different using the charismatic Abū ʿAbd Allāh as a prism through which to reflect an altered reality. Although retribution against individuals for maltreatment of the saints is a fairly common feature of the hagiographies in the Kitāb al-​Tashawwuf and violence could be a facet of sainthood as well as political authority, these particular examples stand out for their juxtaposition of the holy man and the community against the Almohad order and its officials, who are interpreted as being at war with God through their malpractices.42 As noted at the start of the chapter, the twelfth century was a pivotal moment in the religio-​political life of the Maghrib as Islam became the religious idiom of the population as a whole and the cluster of ascetic, pietistic, and spiritual practices, identified in the Islamic east as Sufism, became widespread in both town and countryside. This heralded the later development of the distinctive western Maghribī form of religiosity known in secondary literature as maraboutism, from the Arabic murābiṭ, meaning an affiliate of a ribāṭ.43 At the same time the geo-​politics of the era fostered the emergence of new Maghribī empires that not only endeavoured to hold the Islamic territories in the Iberian peninsula but also to establish a framework for government across areas previously rather lightly touched by such extractive, centralizing activity. The Almohads justified their empire and its tentacles through recourse to mahdism and the associated inauguration of a new era of justice and true religion. This was a powerful message that secured significant support but, at the same time, other claimants to religious authority and charisma, alternative mahdīs and the “friends of God” also appeared, establishing a pattern that persisted well into the early modern period of rival claims to religio-​ political authority emanating from monarchs and holy men. This took different shapes and forms over time, but historical chronicles show the persistent power of competing narratives of righteousness versus deviance as one mode of contesting not only religious but also political, social, and economic activity.

Selected Secondary Sources

al-​Azmeh, Aziz. Muslim Kingship: Power and the sacred in Muslim, Christian and Pagan Polities. London: Tauris, 1997. Bellver, José. “Al-​Ghazālī of al-​Andalus: Ibn Barrajān, Mahdism and the Emergence of Learned Sufism on the Iberian Peninsula.” Journal of the American Oriental Society 133, no. 4 (2013): 659–​81. 42 Mediano discusses the social dimensions of sainthood and the construction of anecdotes about the “friends of God.” See Fernando R. Mediano, “L’amour, la justice et la crainte dans le récits hagiographiques marocains,” Studia Islamica 90 (2000): 85–​104. 43 See Vincent J. Cornell, The Realm of the Saint: Power and Authority in Moroccan Sufism (Austin: University of Texas Press, 1998).

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Bennison, Amira K. The Almoravid and Almohad Empires. Edinburgh: Edinburgh University Press, 2016. Bennison, Amira K., ed. The Articulation of Power in Medieval Iberia and the Maghrib. Oxford: Oxford University Press, 2014. Casewit, Yousef. The Mystics of al-​Andalus: Ibn Barrajān and Islamic Thought in the Twelfth Century. Cambridge: Cambridge University Press, 2017. Cornell, Vincent J. The Realm of the Saint: Power and Authority in Moroccan Sufism. Austin: University of Texas Press, 1998. Fierro, Maribel. The Almohad Revolution: Politics and Religion in the Islamic West during the Twelfth–​Thirteenth Centuries. Aldershot: Ashgate, 2012. García-​Arenal, Mercedes. Messianism and Puritanical Reform: Mahdīs of the Muslim West. Leiden: Brill, 2006. Montgomery Watt, W. “The Decline of the Almohads: Reflections on the Viability of Religious Movements.” History of Religions 4, no. 1 (1964): 23–​29. Ridgeon, Lloyd, ed. The Cambridge Companion to Sufism. Cambridge: Cambridge University Press, 2015.

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SOCIAL AND ENVIRONMENTAL POLICING* G. Geltner and Gregory Roberts

Introduction On July 2, 1293, the notary Redolfo da Guercio went through the city of Bologna searching for anyone contravening the statutes under his remit. Redolfo was in charge of the fango office, which broadly speaking oversaw the commune’s infrastructure, sanitation, and public spaces. He was a foreign official—​part of the podestà’s retinue, which local elites hired to administer justice for a term of six months—​and took two of the podestà’s soldiers (berrovarii) with him on patrol. Recording the occasion in his official register, Redolfo listed a number of the statutory violations he looked for. Some of them concerned what Mary Douglas, in her classic adage, would call “matter out of place”: physical obstructions in the piazzas and city streets, and waste dumped in the piazza and other “prohibited places.”1 Others had to do with behaviours out of place: butchers slaughtering animals where it was prohibited, pedlars (tricoli) selling unregulated foodstuffs, and gamblers playing outside of designated gaming areas. Still others concerned persons who, according to the civic statutes, had no place at all within the city walls. These included lepers, the blind, and those who pretended to be such, as well as charlatans, purse-​cutters, amputees, soothsayers, and “other persons who beg falsely.” Over the next six months, Redolfo went on to compile a register filled with “discoveries” (inventiones) of apparent violations: gamblers playing on the stairs of the communal palace, residents dumping water from their balconies, stationers skinning animals to make parchment under their porticoes, stray pigs roaming the streets, taverns serving wine in measures that did not conform to the communal standard, and porticoes not high enough to allow people on horseback to pass underneath. Redolfo even investigated reports that three blind men were living with their families in the parish of San Giuliano, on the edge of town.2 Far from exceptional, Redolfo’s activities would have seemed perfectly ordinary to local residents. He stood among the first in a long line of fango notaries in Bologna who compiled registers of their discoveries, which * G. Geltner wishes to thank Janna Coomans and Claire Weeda for their comments on an earlier draft of this text. 1 Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Praeger, 1966), 35.

2 Archivio di Stato di Bologna, Podestà, Fango 5, 1293 II (80 fols.). On the office more broadly see, most recently, G. Geltner, Roads to Health: Infrastructure and Urban Wellbeing in Later Medieval Italy (Philadelphia: University of Pennsylvania Press, 2019), 85–​112.

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survive in abundance from 1285. Moreover, officials who oversaw roads, sanitation, and urban well-​being were a staple feature of municipal government across and beyond Italy by the later thirteenth century.3 As such, they served as de facto police forces well before the modern era, when historians tend to locate their rise. Perhaps the most striking feature of the records of the fango notaries and similar offices is their homogenizing effect on disparate things, people, and activities. In the formulaic language of the registers, diverse phenomena are reduced to the category of a statutory violation, to be disciplined accordingly. This chapter contends that such regulatory activities are typical and emblematic of an important and generally unremarked development in medieval urban history, namely the growth of institutionalized policing. The process was neither a uniquely Italian phenomenon nor the exclusive province of governments. Indeed, different stakeholders exercised power through a broad constellation of organizations besides governments, including guilds and the church.4 The effort was, however, marked by newly expansive regulatory schemes that treated people and things as objects to be managed for the sake of the public good. Over time, the regulation of daily life through rule-​making became a defining feature of urban governance in western Europe. Public rules increasingly governed who and what was permitted in virtually all aspects of urban life, creating new forms of criminality and deviance in the process. This chapter describes the many ways in which police—​understood broadly as governance by regulation—​strove to discipline urban communities. The first section shows how the management of various things, spaces, and activities created a detailed catalogue of deviant behaviour and subjected otherwise law-​abiding citizens to public authority. The second section shows how elite concerns over social deviants such as beggars and habitual gamblers inspired new police techniques that in turn reinforced these social identities. A third section highlights the similarity between the environmental and social policing of the previous two sections, and how they served elites’ claims to promote good governance. In the conclusion, we point out examples of urban policing in the premodern world beyond western Europe to suggest the fundamental (but not exclusive) link between urbanization and the growth of policing. Overall, this sketch will suggest that policing was a driving force behind the growth of the administrative state

3 Annemarie Kinzelbach, “Infection, Contagion, and Public Health in Late Medieval German Imperial Towns,” Journal of the History of Medicine and Allied Sciences 61 (2006): 369–​89; Carole Rawcliffe, Urban Bodies: Communal Health in Late Medieval English Towns and Cities (London: Boydell, 2013); Janna Coomans, Community, Urban Health and the Environment in the Late Medieval Low Countries (Cambridge: Cambridge University Press, 2021). 4 For the state as an “organization of organizations” including the government, see Douglass C. North, John Joseph Wallis, and Barry R. Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History, rev. ed. (Cambridge: Cambridge University Press, 2013), 31; John Joseph Wallis, “Rules, Organizations, and Governments,” Atlantic Economic Journal 43 (2015): 69–​86.

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in western Europe well before the nineteenth century, and as such its history challenges a common understanding of the pre/​modern divide. Before turning to the empirical evidence, a few words on our choice of “policing” as an interpretive framework. After all, professional police forces (as distinct from military forces) did not exist in medieval Europe and the word “police” hardly appears in the sources. Moreover, “police” today is virtually synonymous with the internal security forces of polities or very large organizations; “policing” typically refers to the efforts of such forces to prevent and detect crime, enforce the laws, and maintain public order. In this narrow sense, “the police” is commonly said to be an invention of industrial modernity—​in particular early nineteenth-​century London.5 Historians are aware that “police” had a much broader meaning in early modern Europe, from roughly the fifteenth to eighteenth centuries. The word “police” first appeared in thirteenth-​century French as a translation of the Latin politia (state or administration); by the fifteenth century, “police” had come into wider continental usage to signify both the ideal of good order and the aspects of public administration that fostered it, including commerce, urban planning, health, safety, and morals. Polities in early modern Germany, for example, sought to create “good police” (gute Policey)—​meaning something like a well-​ordered state—​through police ordinances (Polizeiordnungen). By the eighteenth century, German states had even developed an academic discipline called “police science” (Polizeiwissenschaft) for the administration of internal order, broadly perceived,6 yet it was only in the nineteenth century that the word “police” came to denote the agents of the state who enforced these regulations, more so than the function of governance itself.7 In practice, however, numerous polities and especially municipal governments exercised police power long before it became an administrative or academic discipline. Our approach, then, deliberately aims to show that the traditional periodization of police as a “modern” institution does not hold up to scrutiny. It underscores how premodern polities addressed archetypal “police” concerns, such as vagrancy and what English common law would term public nuisances. By interpreting the regulation of people and things as part of an overarching project of governance, we also hope to break down traditional barriers in the historiography. There are rich literatures on social marginals, commercial activities, and urban planning in medieval cities, 5 For a textbook example, see John S. Dempsey and Linda S. Forst, An Introduction to Policing, 7th ed. (Clifton Park, NY: Delmar Cengage Learning, 2014), 8. For a more nuanced study, see Elaine A. Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–​1830 (Stanford: Stanford University Press, 1998).

6 Andrea Iseli, Gute Policey: öffentliche Ordnung in der frühen Neuzeit (Stuttgart: Ulmer, 2009); Thomas Simon, “Gute Policey”: Ordnungsleitbilder und Zielvorstellungen politischen Handelns in der Frühen Neuzeit (Frankfurt: Klostermann, 2004); Georg-​Christoph von Unruh, “Polizei, Polizeiwissenschaft und Kameralistik,” in Deutsche Verwaltungsgeschichte, ed. Kurt G. A. Jeserich, Hans Pohl, and Georg-​Christoph von Unruh, vol. 1 (Stuttgart: Anstalt, 1983), 388–​427. 7 Reynolds, Before the Bobbies, 1.

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and budding literatures on public health and environmental regulation as well.8 Few have noted, however, that all were objects of similar policing techniques. Likewise, for all the richness of the literatures on violence, crime, and justice in medieval cities, few scholars have understood the growth of public justice as a function (in part) of a growing police apparatus.9 We contend that elites’ efforts to regulate urban communities—​both their social fabric and physical environment—​through expansive statute collections and new means of enforcement were fundamental to defining and disciplining crime and deviance.

Constructing Deviance through Policing

Due to the strong association of the public health movement with the Industrial Revolution, the rise of nation states, and other processes of modernization, earlier civilizations are seldom credited with developing population-​ level prophylactics. However, not only are the latter well-​documented for numerous premodern societies and groups, the environmental policies they promoted served as a major arena for defining deviance and developing policing practices. As this section demonstrates, threats to public health included disorderly people, dangerous animals, hazardous sites, and broken or simply misplaced things. As such, their identification, monitoring, deterrence, and prosecution helped hone governance policies and practices, also on the basis of then-​current medical theory. Indeed, who defines “matter out of place” and how to treat it depends on a capacity to assert legitimate power, rather than any inherent quality of things or an ideal spatial relation. That much was true for medieval civilizations as well. Daily interventions meant to return things to their proper place (or prevent them from being dislodged from it) were part and parcel of many political projects well before the rise of the modern nation state. Such was the very premise, for instance, of London’s assize of Nuisance and numerous town and neighbourhood courts.10 Across western Europe, similar claims were integral to the notion of the public good, whose defense and promotion defined the boundaries of legitimate government action. To be sure, such boundaries were constantly contested 8 For representative selections, see Frank Rexroth, Deviance and Power in Late Medieval London, trans. Pamela Selwyn (Cambridge: Cambridge University Press, 2007); Oscar Gelderblom, Cities of Commerce: The Institutional Foundations of International Trade in the Low Countries, 1250–​1650 (Princeton: Princeton University Press, 2013); and Carole Rawcliffe and Claire Weeda, eds., Policing the Urban Environment in Premodern Europe (Amsterdam: Amsterdam University Press, 2019).

9 For example, Daniel Lord Smail casts the growth of public courts as a consumer-​driven phenomenon in The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–​1423 (Ithaca: Cornell University Press, 2003); and Legal Plunder: Households and Debt Collection in Late Medieval Europe (Cambridge, MA: Harvard University Press, 2016).

10 Helena M. Chew and William Kellaway, eds., London Assize of Nuisance 1301–​1431: A Calendar (London: HMSO, 1973); Christine L. Winter, “The Portsoken Presentments: An Analysis of a London Ward in the 15th Century,” Transactions of the London & Middlesex Archaeological Society 56 (2005): 97–​161.

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or simply ignored, be it from the direction of individual households, urban guilds, the church, and even rural residents, including animals.11 These tensions can accordingly be observed in terms of daily interactions between a) non-​human things, including animals; b) people; and c) the places the first two categories jointly occupied, which could both buttress or undermine cities’ health. Though not exclusive to cities, sanitary policies were especially important tools for urban polities to regulate their complex economies and populations. Managing waste was seen by urban residents and governments as key to the ordering of disorder; as a manifestation of power, they paid constant attention to it. Tensions emerged, however, over the question of boundaries and clashing micro-​agendas. For while households and workshops certainly developed preventative practices, also in order to promote health and labour safety among their members, they may have placed a smaller premium on aligning their needs with those of the urban community as a whole. Where certain artisans practised their trade and how people disposed of their waste, especially beyond private and corporate thresholds, were therefore a constant source of friction. Notably, matters believed to induce miasma, especially animal blood, entrails, and corpses, as well as human faeces and animal dung, hazardous smoke from lime kilns, chemicals used in leather production and dyeing, grease involved in candle making, and any process employing sharp tools or wood-​burning ovens were broadly seen as dangerous nuisances threatening entire populations. In this sense, private citizens, households, and guilds could face allegations from their neighbours, visitors, and city officials for their activities’ impact on their environs. Urban regimes accordingly sought to regulate the quality and movement of things, also in or on the boundaries of domiciles and workshops, as a way to fight disease, reduce public harm, and facilitate commerce. They often construed such activities in terms of policing waste disposal. For example, after a 1328 flood left Valencia’s streets choked with debris, municipal authorities ordered all residents to spend the next two days cleaning the city.12 And in Ghent, an official known as the “King of Dirt” served as a factotum specifically enabling urban flows.13 From officialdom’s perspective, even seemingly innocent artifacts could become matter out of place. A loose cart, a protruding work bench, a discarded utensil, a pile of bricks: each could present danger and cause injury, however unintentionally.14 Broadly speaking, misplaced things risked 11 G. Geltner, “Rural Policing in the Long Trecento: An Urban Project and Its Obstructions,” English Historical Review 137 (2022): 47–​79.

12 Abigail Agresta, The Keys to Bread and Wine: Faith, Nature, and Infrastructure in Late Medieval Valencia (Ithaca: Cornell University Press, 2022), 166.

13 Janna Coomans, “The King of Dirt: Public Health and Sanitation in Late Medieval Ghent,” Urban History 46 (2019): 82–​105.

14 Ernest L. Sabine, “City Cleaning in Mediaeval London,” Speculum 12 (1937): 19–​43; Roberto Greci, “Il problema dello smaltimento dei rifuiti nei centri urbani dell’Italia medieval,” in Città e servizi sociali nell’Italia dei secoli XII-​XV (Pistoia: Centro Italiano di Studi di Storia e d’Arte Pistoia, 1990), 439–​64; Ercole Sori, La città e i rifiuti. Ecologia urbana dal Medioevo al primo Novecento

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interrupting the flow of people, animals, goods, and matter considered essential for community health and cities’ metabolism, not merely from an economic perspective, but especially for ensuring well-​aired and water-​evacuated spaces pro maiore sanitate hominum, for people’s greater health.15 Furthermore, through practicing urban planning and zoning, regimes determined the location of production sites and areas for collective waste disposal outside the city, downriver, and downwind, where polluting matter would not be out of place. These interventions literally prepared the ground for integrating new and existing infrastructures (vehicles for the movement and location of things) into the public domain and presented them and their monitoring as a health-​promoting pursuit belonging to the remit of local governments. Galenism directed such efforts towards keeping at-​risk sites traversable and clean, efforts directed from multiple sources and stakeholders in the city. Both privately employed and government guards, for instance, were tasked with ensuring the safety and productivity of fields and certain hinterland infrastructures such as ponds and mills. Guilds and other professional groups policed production and retail sites within the city, including furnaces, weaving and dyeing workshops, meat halls, tanneries, and bakeries.16 From a municipal perspective, these sites were interconnected stations in the workflow of certain goods, including nodal points such as roads, canals, gates, and of course markets. Municipalities’ eyes, ears, and especially noses led efforts at supervising these places, expressly to preserve population health, once again using both centralized officers and incentivizing self-​policing. The division of labour between these agents was always in flux, but broadly speaking the former group were tasked with creating and maintaining public infrastructures, while the latter focused primarily on human behaviours and product quality. But slippage (and thus tension) between jurisdictions was common, and just as market inspectors could fine fishmongers for selling subpar merchandise, butchers too could opt to settle a professional dispute by appealing to a local court. And almost anyone could complain (Bologna: Il Mulino, 2001); Thomas A. Spitzers, “Archaeological Evidence and Models of Waste-​ Disposal and the Infrastructure of Deventer,” in Lübecker Kolloquium zur Stadtarchäologie im Hanseraum IV: Die Infrastruktur, ed. Manfred Gläser (Lübeck: Schmidt-​Römhild, 2004), 117–​36; Chloé Deligne, “Stedelijke vervuiling in het verleden: een inleading,” Jaarboek Ecologische Geschiedenis (2007): 73–​81; John Henderson, “Public Health, Pollution, and the Problem of Waste Disposal in Early Modern Tuscany,” in Le interazioni fra economia e ambiente biologico nell’Europa preindustriale. Secc. XIII-​XVIII, ed. Simonetta Cavaciocchi (Florence: Firenze University Press, 2010), 373–​82; Elisabet Schager, Cathrine Andersson, Astrid Lennblad, and Maria Paring, “Waste Management in Nya Lödöse,” International Journal of Historical Archaeology 22 (2018): 401–​22. 15 Lara Sabbionesi, “ ‘Pro maiore sanitate hominum civitatis … et borgorum’: lo smaltimento dei rifiuti nelle città medievali dell’Italia settentrionale,” PhD diss., Università Ca’Foscari di Venezia, 2016; Lori Jones, ed., Disease and the Environment in the Medieval and Early Modern Worlds (New York: Routledge, 2022).

16 Carole Rawcliffe, “Health and Safety at Work in East Anglia,” in Medieval East Anglia, ed. Christopher Harper-​Bell (Woodbridge: Boydell, 2005), 130–​151.

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about individuals and government officials neglecting to maintain public amenities such as sewers and walls or sanitary services such as removing waste or keeping canals flowing.17 Indeed, enforcing prophylactic practices was a difficult task, and rulers accordingly used a variety of methods to achieve compliance. Accusers of environmental offenders, for instance, were usually entitled to some part of the fine levied pursuant to a successful prosecution, a regular feature of medieval justice systems based on the accusatorial process. (Conversely, accusers could be held liable for the accused’s legal expenses if the charge was not proven.)18 Beyond providing direct financial incentives, rulers also opted for (or conceded to) the inclusion of neighbourhoods in shaping policy and its execution, for instance by appointing local representatives as enforcing agents.19 Last but not least, rulers created policing agencies with powers to monitor, fix, and create infrastructures, which often entailed fining those who threatened to damage them through poor planning, neglect, intentional damage, and unwanted animal behaviour, including littering, trampling, and blockage. Records left behind by these officials, especially their summary justice procedures, are often the most compelling proof for the existence of earlier environmental policing and the lengths to which governments would go to implement them. Positioning themselves as arbitrators in such nuisance-​related issues, royal, princely, and urban regimes sought, albeit in the face of constant resistance, to encroach upon decidedly private spaces or expand the remit of public ones and establish people’s health and safety as a defining feature of legitimate power.20 The disciplining of things extended to the governance of animals, often defined in terms of their spatial relation to humans and their property (stray, yoked, caged, tied) and the ramifications their behaviours could have for the well-​being of other humans, animals, and of course things. As with other menacing or potentially deviant entities, seasonality and topography played a central role in determining when matter was out of place, with due attention to animals’ breeding periods and by drawing clear distinctions between urban spaces. For instance, whereas dogs, goats, and pigs presented hazards usually issuing forth from private households and menacing children, smaller animals, and certain wares, pack animals tended to arrive from beyond the walls and could 17 Ernest L. Sabine, “Butchering in Mediaeval London,” Speculum 8 (1933): 335–​53; Sabine, “Latrines and Cesspools of Mediaeval London,” Speculum 9 (1934): 303–​21; Dolly Jørgensen, “Cooperative Sanitation: Managing Streets and Gutters in Late Medieval England and Scandinavia,” Technology and Culture 49 (2008): 547–​67; Jørgensen, “ ‘All Good Rule of the Citee’: Sanitation and Civic Government in England, 1400–​1600,” Journal of Urban History 36 (2010): 300–​315.

18 Massimo Vallerani, Medieval Public Justice, trans. Sarah Rubin Blanshei (Washington, DC: Catholic University of America Press, 2012), esp. chap. 2. 19 On the complex politics of representation in the era more broadly see Mario Damen, Jelle Haemers, and Alastair Mann, eds., Political Representation: Communities, Ideas, and Institutions in Europe (c. 1200–​c.1690) (Leiden: Brill, 2018).

20 Rawcliffe and Weeda, Policing the Urban Environment.

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pose a graver danger to residents and structures when left untethered.21 In the urban hinterland, even temporarily unsupervised animals could cause major damage, as loose horses and cattle broke through fences, ate and trampled produce, and impeded the flow of traffic and waterways on both private owners’ property as well as common infrastructures such as public meadows, millraces, fountains, canals, and bridges.22 It did not take much devastation, including of fragile crops and animals themselves, to place the health of entire communities at risk, an eventuality that preventative programs sought to address. In rare cases, animals required policing as perceived vectors of disease, threatening humans and especially other animals.23 Animals could even be legally prosecuted as criminals, tried, and punished by a public court (usually for homicide), as seen in a number of cases from late medieval Burgundy.24 Food and drink comprised a final group of policed things, items whose supply and quality crucially impacted the intertwined physical and economic well-​ being of populations. Producers and sellers of raw and processed foods, as well as those who purchased and consumed them, operated under stringent regulations. Unlike byproducts of artisanal workshops, which could generate air or water pollution, food and drink entered human bodies directly and could enhance but also weaken humoural balance, the medieval definition par excellence of health. Health regimen literature, elaborating on the Classical Hippocratic and Galenic corpus, accordingly had much to say on discerning the quality of food and drink,25 while occupational groups such as greengrocers and butchers developed rigorous procedures to ensure them, including a common prohibition on resale.26 At the municipal level, policing agents, often the very 21 Jamie Kreiner, “Pigs in the Flesh and Fisc: An Early Medieval Ecology,” Past & Present 236 (2017): 3–​42. 22 Geltner, “Rural Policing.”

23 Timothy P. Newfields, “Epizootics and the Consumption of Diseased Meat in the Middle Ages,” in Religione e istituzioni religiose nell’economia europea, 1000–​1800, ed. Francesco Ammannati (Florence: Firenze University Press, 2012), 619–​39; Philip Slavin; “Flogging a Dead Cow: Coping with Panzootics on the Eve of the Black Death,” in Coping with Crisis: Re-​evaluating the Role of Crisis in Economic and Social History, ed. Alex Brown, Andy Burn, and Rob Doherty (Woodbridge: Boydell and Brewer, 2015), 111–​35.

24 Lesley B. MacGregor, “Criminalising Animals in Medieval France: Insights from Records of Executions,” Open Library of Humanities 5, no. 1 (2019) https://​olh.open​libh​ums.org/​artic​les/​ 10.16995/​olh.319/​; Jen Girgen, “The Historical and Contemporary Prosecution of Animals,” Animal Law Review 9 (2003): 97–​133. 25 Marilyn Nicoud, Les régimes de santé au Moyen Âge: naissance et diffusion d’une écriture médicale, XIIIe-​XVe siècle, 2 vols. (Rome: École française de Rome, 2007); Christopher A. Bonfield, “The Regimen sanitatis and its Dissemination in England, c. 1348–​1550,” PhD diss., University of East Anglia, 2006; Wolfram Schmitt, Medizinische Lebenskunst. Gesundheitslehre und Gesundheitsregimen im Mittelalter (Hamburg: Lit, 2013).

26 Dennis Romano, Markets and Marketplaces in Medieval Italy, c. 1100 to c. 1440 (New Haven: Yale University Press, 2015), 153–​220; Janna Coomans, “Policing Female Food Vendors in the Late Medieval Netherlands,” Yearbook for Women’s History 36 (2017): 97–​113.

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same men enforcing curfew and monitoring other urban infrastructures, roamed local markets and workshops, and guards spread across urban hinterlands and customs agents on bridges and at gates were tasked with letting the right produce and products come into and leave the city.27 Promoting healthy cities and economies, officials defined matter out of place not only spatially, by deterring and prosecuting sales offsite, but also temporally by enforcing market hours and, in the case of taverns, curfew laws, which often prohibited the sale of wine after nightfall. Both types of deviance were justified at least partly by arguing that offenders were operating outside the established protocols for quality control, thus not only compromising economic stability, but also, and in some cases especially, posing intertwined risks to urban order and health. Taverns were deemed dangerous places also thanks to the fare their owners served, be it drink or cooked food. Both guests and city officials (who were often forbidden from patronizing taverns for fear of being bribed) could charge innkeepers with using illicit measures of ale and wine and selling dubiously sourced or simply old dishes, risking people’s health and harming a city’s reputation. But taverns were also commonly associated with prostitution, gambling, and general rowdiness, especially where foreign merchants, travellers, and soldiers converged. The consumption of alcohol, the availability of sex workers, cramped quarters, and the absence of moderating influences such as kin, meant that inns too developed a scandalous reputation. Once again, health and morality combined to construe an urban institution as a site vulnerable from many angles, and whose policing required the engagement of diverse stakeholders.28 Bathhouses too were suspicious sites. In the absence of domestic running water, medieval bathhouses provided an essential service to numerous residents. Yet precisely as a focal point for sanitary services baths posed particular risks.29 On the one hand, within the reigning medical paradigm, bathing did not necessarily agree with everyone’s condition, and dirty or stagnant water was prone to creating miasmas impacting entire populations. On the other, public bathhouses developed a reputation for sexual promiscuity, and indeed were often characterized by the presence of prostitutes or the vicinity of brothels.30 Bathhouses, then, posed a dual risk to individuals’ humoural 27 For examples from northern Italy see Gregory Roberts, Police Power in Communal Italy, 1228–​1326 (Amsterdam: Amsterdam University Press, 2019). For urban police forces, including market police, across late medieval Europe, see David Nicholas, The Later Medieval City: 1300–​1500 (New York: Routledge, 2014), 155–​57. 28 Hannah Skoda, Medieval Violence. Physical Brutality in Northern France, 1270–​1330 (Oxford: Oxford University Press, 2013), 88–​118.

29 Lynn Thorndike, “Sanitation, Baths, and Street-​Cleaning in the Middle Ages and Renaissance,” Speculum 3 (1928): 192–​203; James F. Powers, “Frontier Municipal Baths and Social Interaction in Thirteenth-​Century Spain,” American Historical Review 84 (1979): 649–​67; Guy Dupont, Maagdenverleidsters, hoeren en speculanten: Prostitutie in Brugge tijdens de Bourgondische periode (1385–​1515) (Bruges: Van de Wiele, 1996), 154–​56. 30 Hope P. Weissman, “Why Chaucer’s Wife is from Bath,” The Chaucer Review 15 (1980): 11–​36; Leah L. Otis, Prostitution in Medieval Society: The History of an Urban Institution in Languedoc

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balance, which according to the medical literature of the day could be compromised by promiscuous behaviour as much as unclean air.31 The combination of physical and moral threats lent itself, here as elsewhere, to strict regulation rather than a prohibition on operating bathhouses: an indication that municipalities preferred to manage risks rather than eliminate an important service. The above sketch should hardly be taken as exhaustive. The role of church officials and especially the mendicant orders and lay confraternities in policing urban health, for example, would deserve treatment in a fuller discussion. We hope it will be clear, however, that governing elites adopted similar regulatory techniques to address perceived threats to urban order, whether they were human or non-​human, moral or physical, social or environmental.

Constructing Deviants through Policing

The previous section dealt with things, places, and activities that urban regimes deemed in need of regulation for reasons of public health, morals, and commerce. Such environmental regulations created deviants of city residents and visitors insofar as they were responsible for those unlawful things and activities. Yet other regulations sought to discipline and control persons whose very social identity made them deviants, individuals whose (reputed) habits placed them in a state of social deviancy. The mere or unregulated presence of such people in the city was unacceptable to urban elites, and they took measures to identify and manage these unwelcome populations for the physical and moral health of society. From a public health perspective, living human beings were seldom seen as a major hazard requiring preventative supervision in the Middle Ages. For while sick people could exhale or exude noxious vapours that polluted the air, they were not considered as major infectious agents, since diseases lacked an autonomous existence outside a human (or animal) body. Prevalent Hippocratic and Galenic etiologies traced the efficient causes of disease in most cases to decaying and miasma-​inducing matter or other environmental factors such as climate or the position of certain stars, which in turn operated upon people’s imbalanced humours.32 There was little reason then to banish or abandon lepers and plague victims, despite the persistent modern stereotype that medieval society shunned such individuals. Indeed, the foundation of leprosaria was inspired by inclusive charitable impulses rather than fear of contagion or epidemic, (Chicago: University of Chicago Press, 1985), 98–​99; Ruth Mazo Karras, “The Regulation of Brothels in Later Medieval England,” Signs: Journal of Women in Culture and Society 14 (1989): 399–​433. 31 Rawcliffe, Urban Bodies, 57.

32 Vivian Nutton, “The Seeds of Disease: An Explanation of Contagion and Infection from the Greeks to the Renaissance,” Medical History 27 (1983): 1–​34; Jacques Jouanna, “Air, Miasma, and Contagion in the Time of Hippocrates and the Survival of Miasmas in Post-​Hippocratic Medicine (Rufus of Ephesus, Galen and Palladius),” in Greek Medicine from Hippocrates to Galen. Selected Papers of Jacques Jouanna, ed. Philip van der Eijk, trans. Neil Allies (Leiden: Brill, 2012), 121–​36.

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and their denizens could have considerable involvement in social and economic life beyond their walls.33 In the early fourteenth century, the governors of Chieri, a thriving town in northwest Italy, appointed four ricercatores infirmorum (“seekers of the sick”) and tasked them with identifying and promptly ejecting ill people from their respective neighbourhoods.34 But the office was unique across the peninsula, and possibly throughout western Europe before the sixteenth century.35 Nevertheless, persons of ill repute—​a broad and flexible category that included vagabonds, pimps, prostitutes, gamblers, magicians, and beggars who pretended to be physically impaired, to say nothing of more infamous types of criminals and heretics—​ were widely feared as hazards to their surrounding communities. As such, they were routinely confined or chased out of cities by local officials, especially when they were foreign.36 Although we generally lack detailed sources to reconstruct the operation of urban officials like Chieri’s ricercatores—​Bologna’s fango officials are a notable exception—​the bylaws of numerous other cities instructed officials to identify, seize, and remove people with certain impairments, such as blindness, and at least limit the movement of others, such as lepers. Such regulations derived in no small part from fears about idle persons and what the English legal tradition calls “sturdy beggars,” that is, able-​ bodied individuals who ostensibly did not work for a living. Such idlers and charlatans were presumed to collect alms dishonestly, typically by impersonating the physically infirm or impaired, and to squander what little money they had in taverns and brothels.37 Prostitutes, seen as morally as well as physically dangerous, were frequently confined to certain urban or suburban areas and occasionally expelled from them entirely. A similar fate could befall Jews and heretics, occasionally targeted as disseminators of disease, 33 Carole Rawcliffe, Leprosy in Medieval England (Woodbridge: Boydell, 2006); François-​Olivier Touati, Maladie et société au Moyen Âge: la lèpre, les lépreux et les léproseries dans la province ecclésiastique de Sens jusq’au milieu du 14e siècle (Paris: De Boeck & Larcier, 1998). 34 Statuti civili del Comune di Chieri (1313), ed. Francesco Cognasso, Biblioteca della Società Storica Subalpina, 76.2 (Pinerolo [Pavia]: Cajo Rossetti, 1913), 17, at 7. The legislation is confirmed by the council minutes from later years: Gli Ordinati del Comune di Chieri, 1328–​1329, ed. Paolo Brezzi (Turin: Regia Deputazione di Storia Patria, 1937), 53–​55, at 54 (December 31, 1328); 99–​104, at 102 (April 30); and 250–​252, at 251 (May 8). 35 Richelle Munkhoff, “Searchers of the Dead: Authority, Marginality, and the Interpretation of Plague in England, 1574–​1665,” Gender and History 11 (1999): 1–​29; Munkhoff, “Poor Women and Parish Public Health in Sixteenth-​Century London,” Renaissance Studies 28 (2014): 579–​96.

36 On approaches to disfigurement more broadly see Patricia Skinner, Living with Disfigurement in Early Medieval Europe (London: Palgrave Macmillan, 2017); Kristina Richardson, Difference and Disability in the Medieval Islamic World (Edinburgh: Edinburgh. University Press, 2012); Irina Metzler, A Social History of Disability in the Middle Ages (New York: Routledge, 2013). 37 Bill Hughes, “Disabled People as Counterfeit Citizens: The Politics of Resentment Past and Present,” Disability & Society 30 (2015): 991–​1004; Rawcliffe, Urban Bodies, 97–​104; Metzler, A Social History of Disability, 162–​97; Carol Lansing, “Idolatry and Fraud: The Case of Riperando and the Holy Managlia,” in Heresy and the Persecuting Society in the Middle Ages: Essays on the Work of R.I. Moore, ed. Michael Frassetto (Leiden: Brill, 2006), 253–​69.

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albeit by dispensing poison rather than acting as biological agents themselves.38 Both categories of deviants exemplify the typical association in medieval Europe between moral contagion and scandalum: a violation of norms made so public that it endangered the well-​being of an entire community.39 Limiting its exposure or preventing it altogether was therefore also the prerogative of the church, which not surprisingly played a major role in dealing with (and creating) social, religious, and physionomic others. Some deviants were defined by their excessive indulgence in otherwise common and, within certain bounds, licit behaviours such as gambling, which therefore merited careful monitoring and containment. Indeed, gambling was a popular medieval pastime, but urban authorities strictly regulated games of chance and viewed professional gamblers or those who frequented gambling spots with suspicion. Gambling houses were confined to designated areas of the city and permitted only by official license; gaming occurring outside of those bounds or in unlicensed venues was generally prohibited. Gambling was considered a moral as well as physical danger because it could lead men to blaspheme, steal, and assault or even murder each other over losses. It was also closely associated with guile and deceit, as men who profited from gambling were generally assumed to be cheats. Gamblers were therefore often listed among other unsavoury types such as pimps and vagabonds who did not enjoy full legal status in court.40 Similarly, police measures such as curfew and arms-​bearing regulations, though they affected the population at large, served in practice as a check on notorious criminals and men of ill repute. Curfew laws did not aim to keep reputable citizens indoors all night so much as to allow watchmen and other police forces to investigate suspicious persons. Municipal laws generally associated nighttime with malicious intent, and men discovered after dark without a lamp or outside their own parish or neighbourhood could be stopped and questioned as common thieves or burglars.41 Similarly, limitations 38 David Nirenberg, Communities of Violence. Persecution of Minorities in the Middle Ages (Princeton: Princeton University Press, 2001).

39 Arnaud Fossier, “Propter vitandum scandalum: histoire d’une catégorie juridique (XIIe-​XVe siècle),” Mélanges de l’École française de Rome 121 (2009): 317–​48.

40 Ulrich Schädler, “Organizing the Greed for Gain: Alfonso X of Spain’s Law on Gambling Houses,” in Religions in Play: Games, Rituals, and Virtual Worlds, ed. Philippe Bornet and Maya Burger (Zürich: Pano, 2012), 23–​47; Gherardo Ortalli, Barattieri: il gioco d’azzardo fra economia ed etica: secoli XIII-​XV (Bologna: Il Mulino, 2012); Giovanni Ceccarelli, Il gioco e il peccato: economia e rischio nel tardo Medioevo (Bologna: Il Mulino, 2003); Trevor Dean, Crime in Medieval Europe, 1200–​1550 (Harlow: Longman, 2001), 52–​57.

41 A. Roger Ekirch, At Day’s Close: Night in Times Past (New York: Norton, 2005); Jean Verdon, Night in the Middle Ages, trans. George Holoch (Notre Dame: University of Notre Dame Press, 2002); Luigi Lacchè, “Loca occulta. Dimensioni notturne e legittima difesa: per un paradigma del diritto di punire,” in La notte. Ordine, sicurezza e disciplinamento in età moderna, ed. Mario Sbriccoli (Florence: Ponte alle grazie, 1991), 127–​40; Mario Sbriccoli, “ ‘Nox quia nocet.’ I giuristi, l’ordine e la normalizzazione dell’immaginario,” in La notte. Ordine, sicurezza e disciplinamento in età moderna, ed. Mario Sbriccoli (Florence: Ponte alle grazie, 1991), 9–​22.

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on the bearing of arms (portatio armorum) enabled local police forces to investigate potentially violent individuals. Such ordinances typically prohibited arms-​bearing within city walls except when travelling abroad or in the service of a sanctioned collective, such as a neighbourhood militia; in many Italian cities, the right to wear armour was even regulated by license. Arms-​bearing laws presumed that anyone carrying a weapon in a private capacity had malicious intent or, in the worst case, might be a highway robber or assassin.42 Thus, policing grew in part out of elites’ desire to regulate behaviours that might signal or lead to graver forms of criminal deviance.

Policing and Good Governance

The policing of deviant behaviours and individuals was a core project of governance in urban communities in premodern Europe. This project was grounded in Latin Christendom’s shared political discourse of the “common good” (bonum commune or utilitas publica), which generally held that the purpose of government was not only to maintain peace and order but also to make virtuous and productive citizens.43 The city’s constituent organizations (government, guilds, religious foundations, neighbourhood associations, and so forth) shared this public responsibility, but the formal institutions of government played a prominent role in defining deviancy and organizing police forces.44 Starting in the twelfth century, urban regimes enshrined their rules for good behaviour in ever-​changing and -​expanding statute collections, which they attempted to enforce (with varying degrees of emphasis) through daily interventions and surveillance, backed by the threat of conviction in a public court.45 Beyond minimizing violence and discord 42 Gregory Roberts, “Vendetta, Violence, and Police Power in Thirteenth-​Century Bologna,” in Violence and Justice in Bologna: 1250–​1700, ed. Sarah Rubin Blanshei (Lanham, MD: Lexington, 2018), 3–​25; Justine Firnhaber-​Baker, Violence and the State in Languedoc, 1250–​1400 (New York: Cambridge University Press, 2014), 77–​79; Osvaldo Cavallar, “Regulating Arms in Late Medieval and Renaissance Italian City-​States,” in Privileges and Rights of Citizenship: Law and the Juridical Construction of Civil Society, ed. Julius Kirshner and Laurent Mayali (Berkeley: Robbins Collection, 2002), 57–​126; Nicole Gonthier, Le châtiment du crime au Moyen Age: XIIe-​XVIe siècles (Rennes: Presses Universitaires de Rennes, 1998), 55–​59; Michel Toulet, “L’incrimination de port d’armes au bas moyen-​âge,” Mémoires de la société pour l’histoire du droit et des institutions des anciens pays bourguignons, comtois, et romands 45 (1988): 435–​48. 43 Il bene comune: forme di governo e gerarchie sociali nel basso Medioevo: atti del XLVIII Convegno storico internazionale, Todi, 9–​12 ottobre 2011 (Spoleto: Fondazione Centro italiano di studi sull’alto Medioevo, 2012); Elodie Lecuppre-​Desjardin and Anne-​Laure van Bruaene, eds., De Bono Communi: The Discourse and Practice of the Common Good in the European City (13th–​16th c.) (Turnhout: Brepols, 2010); Matthew S. Kempshall, The Common Good in Late Medieval Political Thought (Oxford: Clarendon Press, 1999).

44 On shared responsibility for public services, see Manon van der Heijden, Elise van Nederveen Meerkerk, Griet Vermeesch, and Martijn van der Burg, eds., Serving the Urban Community: The Rise of Public Facilities in the Low Countries (Amsterdam: Uitgeverij Aksant, 2009). 45 Antonio Padoa Schioppa, A History of Law in Europe: From the Early Middle Ages to the Twentieth Century (Cambridge: Cambridge University Press, 2017), 114–​19, 177–​81; Giorgio Chittolini and

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among citizens, urban statutes sought to enhance economic security and prosperity; promote civic pride in the splendour of the city’s buildings and public spaces; and suppress or at least regulate common vices. As noted earlier, police ordinances and an explicit discourse of “good police” would not become prevalent until the fifteenth century, but urban statute collections were typically concerned with “good governance” (bonum regimen) centuries earlier. If historians of premodern Europe have generally not connected practices of social and environmental policing to discourses on good governance, this is at least in part because “police,” in the paradigm of Michel Foucault, is the defining mode of governance for the early modern period and its more centralized states. Its domain is nothing less than the well-​being of the population, what Foucault calls people’s “coexistence and communication.” Police manage the relationships among men and things so that the population will not only survive but also be healthy and thrive. In this sense, policing is a “positive” task, fostering the “happiness” of citizens and the “splendor” of their state at the same time it seeks to prevent harm. Importantly, however, the state administers its human and non-​human resources to create public utility from them—​not for their own well-​being—​and it does this to increase its strength vis-​à-​vis its competitors so that it can survive indefinitely (“Reason of State”). In sum, police are not an institution of government so much as a mode of governance. It is the apparatus of rules and disciplinary techniques designed to make the activity of the population useful to the state.46 This chronology, as we hope will be clear by now, does not match historical reality. The growth of policing in the later Middle Ages corresponded with the growth of the administrative state and literate forms of governance.47 Perhaps the defining feature of police as a mode of governance is the way it attempts to classify everyone and everything in a given polity in order to manage them properly.48 To borrow from James Dietmar Willoweit, eds., Statuti, città, territori in Italia e Germania tra Medioevo ed Età moderna (Bologna: Il Mulino, 1991); Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 357–​403. 46 Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977–​1978, ed. Michel Senellart, trans. Graham Burchell (Basingstoke, UK: Palgrave Macmillan, 2014), 312–​14; Foucault, “ ‘Omnes et Singulatim’: Towards a Critique of Political Reason,” in Power, ed. James D. Faubion, trans. Robert Hurley (New York: New Press, 2000), 298–​325. See also Pasquale Pasquino, “Theatrum Politicum: The Genealogy of Capital—​Police and the State of Prosperity,” in The Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 105–​18.

47 In addition to note 4 above, see M. T. Clanchy, From Memory to Written Record: England, 1066–​1307, 3rd ed. (Malden, MA: Wiley, 2013); Alan Harding, Medieval Law and the Foundations of the State (Oxford: Oxford University Press, 2002). For global perspectives on medieval written records, see Mark Whittow, “Sources of Knowledge; Cultures of Recording,” Past & Present 238, suppl. 13 (2018): 45–​87; R. H. Britnell, ed., Pragmatic Literacy, East and West, 1200–​ 1330 (Woodbridge: Boydell, 1997).

48 Markus Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005), 179.

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C. Scott, police attempts to make impossibly complex communities and environments more “legible”—​and therefore more controllable—​for governing elites.49 Indeed, it was the technology of documentation—​along with the administrative elite who specialized in creating and preserving written records—​that enabled local authorities to police their communities systematically.50 Written regulations, ordinances, and interdicts determined who or what was to be regarded as deviant, and officials deployed writing as a tool to correct or remove instances of deviance in the community. While we would hardly claim that environmental policing is exclusive to urban societies, we do agree with Foucault’s characterization of policing as a typical urban phenomenon. This is not merely because police practices are better documented in premodern cities; it is because cities, by virtue of their population density, inspire authorities to focus more of their energies on regulating the “coexistence and communication of men,” to borrow Foucault’s characterization of policing’s core concern. Insofar as police techniques became commonplace in rural areas and across kingdoms, this can be attributed to the growth of governance by police across western Europe as rulers aspired to govern their realms as if they were towns or even convents—​ a phenomenon that Foucault termed the “urbanization of the territory.” Indeed, as the next and final section briefly suggests, police techniques were a common feature of urban governance across the premodern world.

Conclusion: Urban Policing in and Beyond Western Europe

Ordering disorder—​real or perceived—​describes any ruler’s or regime’s main task, even as the physical and jurisdictional boundaries of that remit changed dramatically across time and space, along with the methods used to carry it out. Nor are the boundaries between external and internal threats or differences between those residing in the private or public domain always easy to tell apart, then as now. While premodern urban magistrates were well aware of this complexity, they never gave up policing residents and visitors in the name of maintaining equilibrium and serving the population as a whole. The political and financial costs incurred by urban policing simultaneously served to legitimize and centralize regimes, leaving ample traces in local records, be they written or material. It is thanks to these witnesses that we can trace such tactics across vast swathes of the medieval globe. That is not to argue that European policing was somehow typical, or the yardstick by which other cultures should be measured. Different polities around the world defined and pursued order in different ways and relied on different resources. In Constantinople as well as other East Roman provincial capitols, for instance, emperors 49 James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University Press, 1998).

50 On the “technology of documentation” see James B. Given, Inquisition and Medieval Society: Power, Discipline, and Resistance in Languedoc (Ithaca: Cornell University Press, 1997), 25–​51.

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deployed janissaries to fight violent crime, fraud, and fire, while relying on secular water specialists to keep key infrastructures in check, and on bishops and monks to attend to the poor and the sick.51 In the vast Islamicate world, by contrast, the charitable institution of the waqf provided the main vehicle for organizing both poor relief and water supply, while market inspection (including hygiene, quality of product, and honesty in trade) as well as medical appointments fell to a religious officer known as the muhtasib or market inspector.52 In both Japan and China, cities were seldom left to their own devices when it came to public health and general policing, as both regional lords and local monasteries developed mechanisms to keep food and other resources flowing in, air and water clean, waste matter flowing out, and the sick and poor well-​tended to.53 It was a goal apparently shared by Mayan and Aztec rulers as well,54 notwithstanding divergent cosmologies and natural-​philosophical traditions that would have shaped different approaches to personal and communal health and ideal images of the body politic. Yet as diverse as these projects of ordering were, they generally rested on the creation and attempted enforcement of public rules—​ public not necessarily in the sense that they were promulgated by a government, but in the sense that they were widely known to the members of the community—​to regulate everyday life. The authors of these regulatory codes sought not to identify crimes per se (such as homicide, robbery, and theft) but to penalize behaviours deemed harmful to the community. This project of harm prevention through social discipline, rather than criminal law enforcement as such, lies at the core of police history. Police were very much a part of the premodern world, even if it would take powerful modern states to hone its disciplinary techniques. 51 Godfrey Goodwin, The Janissaries (London: Saqi, 1997), 88–​90 and 97–​100; James Crow, Jonathan Bardill, and Richard Bayliss, The Water Supply of Byzantine Constantinople (London: Society for the Promotion of Roman Studies, 2008); Timothy S. Miller, The Birth of the Hospital in the Byzantine Empire (Baltimore: Johns Hopkins University Press, 1985).

52 Adam Sabra, Poverty and Charity in Medieval Islam: Mamluk Egypt, 1215–​1517 (Cambridge: Cambridge University Press, 2000); Maaike van Berkel, “Waqf Documents on the Provision of Water in Mamluk Egypt,” in Legal Documents as Sources for the History of Muslim Societies: Studies in Honour of Rudolph Peters, ed. Maaike van Berkel, Léon Buskens and Petra M. Sijpesteijn (Leiden: Brill, 2017), 231–​44; and Ahmad Ghabin, Hisba, Arts, and Craft in Islam (Wiesbaden: Harrassowitz, 2009). 53 Susan B. Hanley, “Urban Sanitation in Preindustrial Japan,” Journal of Interdisciplinary History 18 (1987): 1–​26; Kenzi Kiikuni, “The Development of Hospitals and Clinics in Japan,” in Public Health, ed. Taizo Ogawa (Tokyo: Saikon, 1980), 1–​11; Angela Ki Che Leung, “Hygiène et santé publique dans la Chine pré-​moderne,” in Les hygienistes. Enjeux, modèles et pratiques, ed. Patrice Bourdelais (Paris: Belin, 2001), 343–​71.

54 Herbert R. Harvey, “Public Health in Aztec Society,” Bulletin of the New York Academy of Medicine 57 (1981): 157–​65; Linda R. Manzanilla, “Teotihuacan Apartment Compounds, Neighborhood Centers, and Palace Structures,” in Teotihuacan: City of Water, City of Fire, ed. Matthew H. Robb (San Francisco: Fine Arts Museums of San Francisco and University of California Press, 2017), 94–​101.

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Selected Secondary Sources Chittolini, Giorgio and Dietmar Willoweit, eds. Statuti, città, territori in Italia e Germania tra Medioevo ed Età moderna. Bologna: Il Mulino, 1991. Coomans, Janna. “The King of Dirt: Public Health and Sanitation in Late Medieval Ghent,” Urban History 46 (2019): 82–​105. Crow, James, Jonathan Bardill, and Richard Bayliss. The Water Supply of Byzantine Constantinople. London: Society for the Promotion of Roman Studies, 2008. Dey, Hendrick. “From ‘Street’ to ‘Piazza’: Urban Politics, Public Ceremony, and the Redefinition of Platea in Communal Italy and Beyond.” Speculum 91 (2016): 919–​44. Douglas, Mary. Purity and Danger: An Analysis of Concepts of Pollution and Taboo. New York: Praeger, 1966. Geltner, G. Roads to Health: Infrastructure and Urban Wellbeing in Later Medieval Italy. Philadelphia: University of Pennsylvania Press, 2019. Hanley, Susan B. “Urban Sanitation in Preindustrial Japan.” Journal of Interdisciplinary History 18 (1987): 1–​26. Harvey, Herbert R. “Public Health in Aztec Society.” Bulletin of the New York Academy of Medicine 57 (1981): 157–​65. Rawcliffe, Carole. Urban Bodies: Communal Health in Late Medieval English Towns and Cities. London: Boydell, 2013. Rawcliffe, Carole, and Claire Weeda, eds. Policing the Urban Environment in Premodern Europe. Amsterdam: Amsterdam University Press, 2019. Rexroth, Frank. Deviance and Power in Late Medieval London, translated by Pamela Selwyn. Cambridge: Cambridge University Press, 2007. Reynolds, Elaine A. Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–​1830. Stanford: Stanford University Press, 1998. Roberts, Gregory. Police Power in Communal Italy, 1228–​1326. Amsterdam: Amsterdam University Press, 2019. Sabra, Adam. Poverty and Charity in Medieval Islam: Mamluk Egypt, 1215–​1517. Cambridge: Cambridge University Press, 2000. van Berkel, Maaike. “Waqf Documents on the Provision of Water in Mamluk Egypt.” In Legal Documents as Sources for the History of Muslim Societies: Studies in Honour of Rudolph Peters, edited by Maaike van Berkel, Léon Buskens, and Petra M. Sijpesteijn, 231–​44. Leiden: Brill, 2017.

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PART THREE

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INTRODUCTION Hannah Skoda This section is structured around the idea of legalism. We ask why law matters as

an organizing principle for categories of deviance, and how and why it is brought into play. Like religious and political ideologies, law clearly does not operate autonomously, even if legal authority in modern societies rests upon this claim. Equally problematic is our often ready assumption that law maps neatly onto morality and ethics, political power and religion.1 It does not: conflicts and tensions between these normative frameworks are rife, and it is often in the interstices between them that historical change happens. The chapters in this section pick up on a range of themes. Developing and changing legal frameworks are shown to be key to the contingency of definitions of what is right and wrong across societies. Law can provide opportunities for minority or oppressed groups to articulate their goals and sense of community; but, of course, it can also be used to repress and reinforce power. Legalism in this period was most often aligned with religious ideologies, but could nevertheless produce conflicting outcomes. If legalism produces a relatively black and white framing of right and wrong, religious frameworks, coupled with the messy complexity of human life, might produce more nuanced parameters and might also suggest the importance of flexible responses and the exercise of mercy. Yet, as these chapters show, even these assumptions about legalism versus religion prove more complex, as legalism itself is revealed to be surprisingly flexible and capacious in many cases. The part opens with a section on theft. In many ways, the theme of theft goes to the heart of deviance in a universal sense. Rare is the human society which does not put respect for property at its core. Even rarer, though, is the society which is not alarmed by the idea of secret actions. This seems to be the aspect of theft which caused most concern in the medieval period: theft undermines the trust binding together socio-​ political communities, precisely because it relies on deception and secrecy. Ephraim Shoham-​Steiner presents a view of theft in European Jewish communities in the later Middle Ages. He reminds us that categories of deviance do, of course, arise from actual acts of deviance. This is not just a process of invented wrongs, but real choices by real individuals must lie at the heart of the analysis. He points out that there were two main kinds of theft, the one largely opportunistic and driven by economic need, the other planned and therefore often seen as more problematic. His analysis 1 For a fuller discussion see Hannah Skoda, “A Historian’s Perspective on the Present Volume,” in Legalism: Anthropology and History, ed. Paul Dresch and Hannah Skoda (Oxford: Oxford University Press, 2012), 39–​54.

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centres around two case studies. The first concerns an Ashkenaz Jewish ethical treatise from the early twelfth century, which includes material on the kind of penance which could be done for theft. It is attributed to Rabbi Shmuel ben Kalonymus “the Pious,” who was renowned for his mystical qualities. The second centres on a legal or halakhic responsum by a Jewish Aragonese rabbi in the early fourteenth century: the responsum provides a detailed account and analysis of a planned robbery on a synagogue. Shoham-​Steiner explains the very particular position of Jewish minority communities within broader Christian polities. These communities most often had legal autonomy, but the practical difficulties of enforcement and authority meant that there was a more prominent role for communities both in identifying and in dealing with theft. He explains that the categorizations and judgements of theft which emerged were political, religious, and indeed of course legal. What precisely was wrong about theft emerges as rather more complex though. Of course, this was primarily about trust and respect for interpersonal relations. But it was very profoundly about the nature of community in this context of diasporic minorities. Strikingly, there was also concern about perceptions: in such an oppressive context, what would Christians think if they saw that Jewish communities were internally riven by attacks on one another’s property? The subtlety of these ways of thinking about theft emerge also from the responses with which theft was met. These were far from unilaterally brutal. Thieves were supposed to be banished or publicly humiliated by the community itself, underscoring that sense that the betrayal and deception involved in thieving undermined the fabric of community. Moreover, in the Aragonese case study discussed here, the wider polity was brought into the equation by the mention of a fine to be paid in Aragonese royal currency, thus explicitly making the point that the Aragonese king himself was somehow implicated in this upholding of justice. But religio-​juridical thought on the question demonstrated that the protection of community was in fact rather more complex. Community could not straightforwardly be protected by publicly excluding the criminal. Rather, it was noted that too harsh punishments might drive some thieves into the arms of Christians and tempt them to convert to Christianity. Where possible, reintegration into the Jewish community was obviously preferable. The particular challenges faced by minority communities then meant that they had to deal with deviance in particular ways; they had to bear in mind the perceptions of, and threats posed by, the wider Christian community. And this went hand in hand with a sense that often thieves could indeed repent, and that they should be encouraged to do so. It was noted that public humiliation might indeed discourage that repentance, and thus prove counter-​productive. This went hand in hand with an important sense that the categories of law should not be applied in too crude a way. Mercy was important. The mother of one of the offenders in the Sefarad Aragonese case begged for the lifting of the ban on her son, arguing that he had been influenced by people far more wicked than him. Her argument rested on the strategic claim that he might therefore be tempted into apostasy and Christian conversion like the other offenders; but she was also asking for mercy rather than the application of the strict letter of the law. The case is particularly instructive, because the law could not simply be overturned by the application of mercy.

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Accordingly, a legal loophole needed to be found in order to ensure a more just and more merciful treatment of her son, and the integrity of the Jewish community of which he still formed a part. Thieving then engendered discussions of restitution: how might one put this particular act of deviance right? Wider discussions of the problems of financial transgressions, which nicely tie with the subtlety of Mell’s treatment of usury in Chapter 6, confronted questions of how economic and social order could be restored. Crucially, then, the assumption was that order could indeed be restored, and not just by removal and brutal punishment of the culprit. In majority Christian communities, attitudes to theft looked rather different, as Valérie Toureille shows. The problem posed by theft was essentially similar, in that this was a crime of betrayal, of deception and secrecy. A similar dialectic of course emerges between the ways in which theft was criminalized and the actions of thieves themselves: at the heart of the analysis again lie real people stealing real things. Certain flash-​points can be found at which levels of theft seem to have risen, notably in the years following the first outbreak of bubonic plague in the mid-​fourteenth century. There are methodological problems here: mechanisms of repression intensified as people were more anxious about social stability, but those anxieties must surely have stemmed from the fact that economic precarity meant that many were indeed stealing more. Toureille traces the etymologies of theft, demonstrating that the semantic field of the term came to encompass a sense of violence by the thirteenth century. The tension between logics of reparation and logics of the protection of the community played out rather differently in this context. The story she tells of the repression of theft is intertwined with a story of the growth of royal power, and an increased tendency to see things in terms of Roman law. It is unsurprising to find that intensified and increasingly powerful statecraft should have become increasingly legalistic and keen and able to control theft. But this could also be presented as a story of liberation from what often looked like arbitrary demands of local lords in a more fragmented context: the clearer tariffication of responses to theft and the visibility of this process was key. In other words, growing repression and legalism could be characterized as a way of ensuring freedoms. And alongside this chronological story, ran a series of other contingencies. Toureille shows that theft, whilst universally condemned, was nevertheless often understood in more nuanced terms. Here too, we find a sense of degrees of deviance. Already St. Augustine had suggested that extreme poverty might mitigate culpability for theft. Often there was a sense that the first offence was less serious, but that recidivism was the real problem. This ties in with a distinction drawn between thieves who might somehow be able to redeem themselves and demonstrate better intentions, and bandits who were entirely characterized by their choice in devoting themselves to a life of crime and who were therefore a greater threat to society. The logic driving these gradations of deviance was twofold: it was at once about the intentions and needs of the thieves, and about the ways in which they threatened society. The contrast between a majority and a minority community dealing with theft could instructively be set against the example of the Mongols. The Mongol

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empire obviously incorporated a number of subject peoples, all of whom were ostensibly subject to the same laws against theft. Categories of deviance were enforced very strikingly by incorporating thieves themselves into the prosecution of other thieves, and thus complicating the relationship between different communities within the empire.2 Both chapters on theft tackle a crime which lay at the heart of legalism, and yet even here we find a surprising degree of nuance and willingness to admit of gradations of deviance. Secrecy and betrayal were seen to undermine the fabric of community, but the intentions of those who stole and the complexities of punishing them could produce more nuanced responses. The ways in which this played out look very different in minority and majority communities, with the former having to negotiate the constant need to validate the non-​deviance of their community as a whole. This part of the volume then turns to the theme of violence itself. This section opens with an essay by Warren Brown, tackling the term “violence/​violentia.” Tracking the ways in which the term was used in Middle English proves hugely revealing in terms of how this came to function as a category of deviance. Brown explains that when the word emerged in Middle English, from Latin via Old French, it was morally neutral: in other words, it was an umbrella term referring to all acts of coercive physical force. This is in contrast with earlier usage of the Latin term “violentia,” which tended to refer more specifically to violation and destructive force. It is an intriguing shift, and one which Brown argues accompanied the politico-​legal process by which all acts of destructive force were criminalized. Beginning with the fifth-​century Theodosian code, Brown shows that “violentia” referred at this stage to the transgressive use of force. A similar usage persisted in the early medieval Lex Salica, reflecting important distinctions at this point between physical force which was acceptable, and physical force which was not. These were societies which were, in many ways, wedded to high levels of force and saw no problem with this. It was important to define carefully the moments at which physical force undermined the social fabric, and law fulfilled this function. The Church was increasingly involved in making these kinds of distinctions, and the logic underpinning them tended to be not so much about public order as about protection: lords were supposed to protect their people from harm. In tenth-​ and eleventh-​century west Frankish law, the term “violentia” seems to have referred as much to violations of space as to physical violence. Those in charge were there to protect their people. At the same time, the ecclesiastical movements known as the Peace and Truce of God took place, and tried to limit the expression of physical force, whilst acknowledging its legitimacy in particular circumstances. As Brown puts it, this is “Peace as the exercise of power.” Power lay not just in creating a category of deviance, but also in re-​affirming the ability of authority to protect its people (whether ecclesiastical or secular). 2 I am referring to a 1264 edict by the Khubilai Khan, stating that recidivist thieves were to be punished and then to help apprehend other thieves; the condemned person could in time thereby be relieved of service: R. Ratchnevsky, “Jurisdiction, Penal Code and Cultural Confrontation under Mongol and Yuan Law,” Asia Major 6, no. 1 (1993): 161–​79.

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He then traces the process by which developing royal power placed further proscriptions on violence. The reign of Henry II stands out as a key moment in the development of English common law attitudes to violence. The logic of categorizing violence as deviant was subtly shifting: this was about stressing the role of king as protector of his people, but also emphasizing the king’s peace and tying the well-​being of the political community as a whole more clearly to the person in authority. By the end of the twelfth century, the term “felonie”had come to mean something against the king’s interest, and to join the use of the word “crime.” A similar shift can be traced in continental Europe. As royal authority increasingly took it upon itself to condemn all acts of violence, the word “violentia” itself came to be used to designate all violence: it was no longer necessary to distinguish between acceptable and unacceptable violence because these growing powers were using their legal weight to try to outlaw all interpersonal physical force. Clearly this was not a process which took place without significant push-​back. The idea that all interpersonal violence was wrong went against the grain of European culture in many ways: these were cultures which accepted the logic of violence in many circumstances. Nor should we assume that this semantic shift meant that statecraft was necessarily bound up in a desire for a Weberian monopoly of violence: Andrea Zorzi’s work on medieval Italy is particularly instructive in this regard, since he shows how law attempted to channel but not to outlaw violence, with certain forms of vendetta in particular being allowed.3 One might set all this in relief against the example of Byzantium, where growing imperial attempts to impose brutal punishments on those responsible for interpersonal violence were set against a reality of self-​help or even civil cases for damages, rather than criminal prosecution, and against a continuing sense of push-​back from ecclesiastical authorities via processes of sanctuary and mitigations for punishments.4 And the very obvious point must be made that the demonization of interpersonal violence went alongside the growing brutality of judicial mechanisms. Yet any sense that this is an obvious ebb and flow—​that interpersonal violence must inevitably decline as state violence increases or vice versa—​dissolves in the face of comparative study. Readers might explore the use of violence in the Aztec empire, and the ways in which the heavily ritualized religious use of violence and human sacrifice in this context served to reinforce community and its relationship both to rulers and to the sacred.5 There is another key theme which emerges from Brown’s chapter at this point, which joins up the legal responses to theft and to violence. When distinguishing between acceptable and unacceptable violence, visibility versus secrecy seems often to lie at 3 Andrea Zorzi, “Pluralismo giudiziario e documentazione: il caso di Firenze in età comunale,” in Pratiques sociales et politiques judiciaires dans les villes de l’occident à la fin du Moyen Age, ed. Andrea Zorzi, Jacques Chiffoleau, and Claude Gauvard (Rome: Ecole Française de Rome, 2007), 125–​87.

4 See Ruth Macrides, “Killing, Asylum and the Law in Byzantium,” Speculum 63, no. 3 (1988): 509–​38. 5 See Caroline Dodds-​Pennock, Bonds of Blood: Gender, Lifecycle, and Sacrifice in Aztec Culture (Basingstoke: Palgrave Macmillan, 2008).

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the heart of the discussion. Anglo-​Saxon attitudes to physical force are paradigmatic here: secrecy was the real problem. In creating a more capacious category of deviance in the later Middle Ages, political authorities were using law to render all violence visible. What emerges then, is the extreme contingency of what is defined as deviancy, particularly in terms of why certain actions are deemed problematic. But an increasingly capacious sense of what constituted violence does not always characterize the growth of power. For example, the capaciousness of thinking about sexual violation in Islamic thought in the following article does not straightforwardly sustain power. Yasmine Badr explains that rape, which she uses in a modern sense to indicate “physical invasion of a sexual nature committed in circumstances which are coercive,”6 was treated in myriad ways in Islamic juristic thought. The crime of rape was not treated as a single kind of offence, but rather its implications explored via a series of legal categories which drew attention to the different ways in which it was deviant. She uses a kind of legal text known as the furūʿ to uncover this variety: these provide substantive discourse and lie half-​ way between jurisprudence and legal court records. From this corpus three main categories emerge: that of Ikrāh (Duress/​ Coercion); Ghaṣb (Seizure/​Misappropriation); Ṣiyāl (Assaults). By placing rape within a whole range of legal categories, legists explored the myriad ways in which this offended against individual dignity and integrity, against the social fabric, and against the divine order. This was not just about vaginal penile penetration by a stranger. Legists discussed violent sexual assault, sexual assault within marriage, the rape of both males and females, the role of seduction and abduction, and the identities and sexualities of the victims/​survivors. There was a rich sense that the subjectivity of victim/​survivors really mattered. Badr shows the ways in which the multi-​faceted legal approach to rape, and the capaciousness of categories, meant that victim/​survivors necessarily played more of a role in defining what had happened to them. For instance, one story tells of a woman who was being seduced and attacked her seducer: she was acquitted of murder. Her story and her voice really mattered in defining and judging the events. The impact on notions of proof is very striking: if definitions did not hinge exclusively around ideas of consent, then the burden of proof looked very different, and who was believed looked very different. The various categories by which rape could be thought about also challenged the relationship between public and private. The domestic sphere did not offer impunity to rapists. Thinking about rape from a range of perspectives meant that this could be seen as at once an attack on a particular victim/​survivor, an attack on property, an attack on society. These were both civil and criminal offences, and could be treated as both at once in law. The rendering of rape as deviant was then multi-​faceted, informed by a range of logics. In this sense, redress was likewise multi-​faceted. This could be offered in strikingly 6 The definition is from Navanethem Pillay, “Address—​Interdisciplinary Colloquium on Sexual Violence as International Crime: Sexual Violence: Standing by the Victim,” Law & Social Inquiry 35, no. 4 (2010): 847–​53.

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restorative forms to victim/​survivors. Notably, rape victims could have their virginity restored de jure in some cases. But these restorative responses were accompanied by punitive ones which reflected more explicitly the sense that this was an offence against the social fabric more widely. The view of rape in a European Christian context was notably blunter, as Seabourne outlines in her chapter. Instead of the capaciousness discussed by Badr, Seabourne explains that rape in European law (with a focus on the English common law) basically meant vaginal penile penetration. The relationship with violence was clearer: without violence, there was little sense that this was rape. Historians often point to the fluidity of the term raptus, which seems also to have referred to abduction: Seabourne argues that this does not reflect an inability on the part of medieval lawyers to tell the difference, but rather that medieval legists saw the connections between the two. As Seabourne shows, consent was key to understandings of rape in this context. Focusing on consent produces the need for proof which is often impossible to provide: she shows, however, that the evidentiary requirements were much heavier in some places than in others. She cites a fascinating English case in which a woman voluntarily accompanied her future attacker, and was then raped whilst drugged: the court supported her. Nevertheless, the overwhelming impression is one of profound misogyny. The emphasis on consent and the need to prove non-​consent narrowed the category of deviance and made it ever hard for women to seek redress. These were legal categories, but Seabourne shows how they existed on a wider canvas of misogyny. Medical thinking sustained the view that conception was linked to sexual pleasure, meaning that raped women could find themselves discredited if they became pregnant. Imaginative literature frequently included stories of rape, and tended either to diminish its seriousness, or to provide a narrative in which the only option for the victim was to die. Revolting and belittling jokes about rape were common. Whether these jokes only normalized rape culture, or whether they indicate some level of discomfort even on a deep level, might be considered by our readers. Despite this, Seabourne shows that thinking about rape was perhaps slightly more nuanced than we might assume, given the predominant misogyny. Women could indeed seek redress. Rape was often conceived of as an offence against their male guardians, effectively an offence against property; but it was also conceived of explicitly as a crime against the victim/​survivors who could, and often did, bring the appeal themselves. Their courage continues to resonate. There was indeed a sense here too of gradations of deviance, though these rarely produced happy results for women. We might consider, for example, the sense that some victims were more credible victims than others: the rape of young virgins was seen as most deviant, the rape of sex workers produced a range of different responses, and the rape of wives was certainly deemed deviant but placed somewhere else on the scale and as much an offence against their husbands. As for the rapists themselves, imaginative literature often narrated the effective redemption of the perpetrator. And legal mechanisms demonstrated a degree of flexibility here. Perhaps because the legally prescribed punishments for convicted rapists were so extreme (death and/​ or mutilation), law in practice seemed to incorporate a far more

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generous attitude towards rapists. In the English cases, juries were notably reluctant to convict, and the room for manoeuvre offered by a jury-​based system allowed many rapists to avoid the harshness of the prescribed penalties. Taken together, these chapters on violence demonstrate a wide range of views about the role and acceptability of physical force. Put differently, they show a degree of ambivalence about the role of physical force in defining other actions as deviant, with Badr notably showing that a more capacious view of sexual violation was possible. All the chapters show the centrality of victims and survivors in defining and bringing cases, even when their ability to do so needs to be set beside the odds stacked against them. Strikingly, and following on from the chapters on theft, all indicate that thinking about property underpinned a great deal of concern about deviance –​whether through the violation of boundaries of property and wilful destruction, or sexuality conceived of as property. Law in practice is shown to be highly flexible, and inflected by concerns about upholding existing social structures. For instance, English jurors’ reactions to rapists show that there could be a real sense that juristic categories of deviance might actually undermine social hierarchies. These were public concerns of course, and these chapters demonstrate that the distinction between public and private, whilst not an entirely useless one, is profoundly problematic when thinking about medieval deviance. Public order could be challenged by offences against individuals, but offences could be seen as transgressive on what we would term both civil and criminal levels. The distinction between public and private comes into sharpest focus with the final pair of chapters. Oded Zinger writes about the ways in which Jewish legal institutions regulated the intermingling of the sexes in domestic spaces. He turns to the rich documentation from the Cairo Geniza between around 1000 and 1250. This allows for the discussion of the ways in which a minority community in an Islamic state attempted to manage its own social relations through the discussion and application of legal rules. The Jewish community was recognized by the Islamic authorities and officially had legal autonomy, but as Shoham-​Steiner showed in his chapter on theft, the rather fragile authority that this engendered meant a frequent reliance on community reporting, prosecution, and punishment. Again, the careful negotiation to ensure the strong fabric of the Jewish community and the need both to impress and not rely on the overarching state produced a particular dynamic. Zinger explores a great range of potential encounters between men and women in domestic spaces, and the ways in which these were treated in law. The discussion is framed around nine case studies. The ways in which deviance was categorized did not rest on a single blanket condemnation of men and women meeting, but rather focused on specific ways in which those interactions might be deviant: we find cases arising because of an accusation of slander, sometimes the concern was property-​ related, sometimes this was about potential adultery, sometimes about divorce. These different kinds of offences revolved around similar issues, but indicate a really nuanced and differentiated kind of thinking. Strikingly, cases came to the attention of legal authorities often through rumour and community gossip. Zinger reminds

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us that rumour or fama did not have the legal weight in Jewish law that it did in Roman law to bring a case to court, but in practical terms, it was often instrumental. It nicely complicates the distinction between domestic and public. On the one hand, the distinction clearly really mattered: what took place in the domestic sphere really needed to be managed, and this was seen as being of great importance to the community. On the other hand, it was not private: the whole community talked about, and cared about, what was going on. Naturally, categories of deviance here were heavily gendered, both in their construction and in their application. Zinger shows that in a court context, men were more likely to be listened to than women (although women were clearly also taken seriously): perhaps what shines through most strongly here is just how important narratives of what happened are to the categorization of certain behaviours as deviant. An instructive case is discussed of a man whose behaviour towards a certain woman is characterized by her and by many of her female friends as harassment; it is characterized by the man himself and many male observers as consenting flirtation, also deviant but for different reasons. It is the complexity of these cases which really underpins the analysis here. Zinger shows different parties narrating what had happened and the relevance of what had happened in different ways; he demonstrates the manifold ways in which people could play the system. All this sounds surprisingly flexible for a section on legalism, but precisely the point here is the way in which law produces often capacious categories, which leave room for manoeuvre. They are particularly interesting in this case, because of the legally pluralistic context. In a gendered sense, the flexibility apparent in Zinger’s chapter is an important reminder that patriarchal structures do not always work to produce categories of deviance in the ways we might assume. Instructive comparison might be sought here with attitudes towards divorce in Islamic society. Divorce rates in medieval Muslim societies were much higher than today, and attitudes were surprisingly flexible. Yossef Rapoport has shown that judicial intervention in marriage and domestic life was common, but stemmed not so much from disapproval as about “the increased monetization of marriage, … the role of the law and, by implication, about the power of the state.”7 The resonances here with Christian de Pee’s work earlier in this volume are striking: local marketized transactions of marriage and sexual relations were there contrasted with imperial attempts to impose a single moral and cosmological framework. In a French context, Sara McDougall has shown that, surprisingly, men tended to be punished far more severely for adultery than women. The role of law in relation to domestic hierarchies was multi-​layered, and McDougall tentatively suggests that the heavier repression of adulterous husbands may have been driven by a particular view of civic society: “A married man was supposed to live a moral life, to set a good example of sexual restraint.” In other words, patriarchal assumptions 7 Yossef Rapoport. Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005), 6–​7.

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about men and women could produce very different results with regard to categories of deviance: women were certainly oppressed, but not straightforwardly rendered the more deviant parties.8 The final chapter by Sara M. Butler reprises the domestic theme, and discusses attitudes towards domestic abuse in medieval Christian Europe. In many ways, this is an appropriate chapter with which to close the volume because the ambivalence about what constituted deviant abuse and what constituted laudable discipline is so starkly drawn. Whilst domestic abuse could theoretically come under the aegis of secular law, Butler shows that it was mostly canonists who concerned themselves with such matters and mostly ecclesiastical courts which dealt with cases like this. Cases would most likely appear in court because women were seeking separation from their husbands, and it was ecclesiastical courts which dealt with marriage per se. Butler opens with three canonists who expressed very different views: John Chrysostom claimed that one should not even beat a slave, far less one’s wife; Huguccio claimed that one might well beat one’s wife because her position was analogous to that of a servant; and Teutonicus claimed that one should not beat one’s wife because she was not a servant. Teutonicus’s view became predominant, but it left an enormous amount of room for manoeuvre and ambivalence. The need to discipline a wife was still acknowledged: a fundamental domestic hierarchy which revolved around the use of force was being advocated. The question therefore lay in how to distinguish between unacceptable brutality and laudable force. Ideas about moderation came into play: questions of intention were raised. Gender was obviously crucial here, and played out on more than one level: husbands who allowed themselves to beat their wives too much and too often were apparently in danger of compromising their masculinity because they were losing control of themselves. Women, on the other hand, were encouraged to put up with it, and Butler cites a number of hagiographical stories about medieval women who were horrifically abused but continued to live with, and submit to, their abusers. Nevertheless, once again the subjectivity and agency of victim/​survivors needs to be drawn into the equation. As Butler points out, cases which came before the ecclesiastical courts were being brought by courageous women who spoke up for themselves. Redress was extremely limited, in England because of the idea of coverture (joint legal personhood in marriage) and on the continent because women were treated as legal minors. But despite this, women used legal mechanisms to seek separation and protection from Church courts. The chapter draws out important regional variations. Scholars have long noted differences in marriage patterns in different parts of Europe. Butler asks whether the later age of marriage on the part of both men and women in northern Europe particularly after the Black Death (usually referred to as the European Marriage Pattern) might have 8 Sara McDougall, “The Opposite of the Double Standard: Gender, Marriage and Adultery Prosecution in Late Medieval France,” Journal of the History of Sexuality 28, no. 2 (2014): 206–​25.

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increased female agency: this is in contrast to the southern European model whereby men often were married later to much younger women, which perhaps produced even more patriarchal settings in which women could be more easily abused. These were discussions rooted in the application of law, but they were also inflected by religious and political concerns. Marriage was a sacrament, hence the involvement of ecclesiastical courts. But in Aristotelian terms, the household was deemed to be the microcosm of the state, and so disruption in the household would have ramifications for the polity more broadly. How, though, to distinguish between actions by a husband which threatened that order, and actions which sustained patriarchal hierarchies, produced protracted uncertainties. What I find most striking, though, is the very different reactions of communities. These are hugely revealing for the ways in which categories of deviance have shifted over the centuries, and the role of taboos. It is widely known now that women who suffer from domestic abuse feel silenced; it is often seen as a matter of shame to speak out about the fact that one has been abused. Women who do reveal that they have been subjected to domestic abuse have to overcome enormous hurdles to do so. Whilst landmark legal shifts like that concerning the criminalization of coercive control9 might have produced some more progressive and empowering legal attitudes, a strong taboo on revealing what has happened to one remains. Many abusers are empowered by this sense that domestic abuse is humiliating. In contrast, in the Middle Ages, legal redress was so hard to come by, that often the safest thing for women to do was indeed to go out onto the street and to shout about what had happened. Seeking the support of the wider community was, in many cases, the most effective form of protection they could find. So whilst, on the face of it, the Middle Ages represent a period of repulsive misogynism, in other ways, the different conceptions of the boundary between public and private were actually more empowering to women who were being abused. Taken together, then, these chapters encourage us to challenge any sense that legal frameworks are rigid and autonomous in their constructions of deviance. They were not. Law maps onto religious and political ways of thinking about right and wrong: it gains traction from these intersections. But legal frameworks are often also surprisingly flexible, particularly when they come into tension with other normative ways of thinking. Law is shown to depend, both in its jurisprudential articulation and in its application, on subjective narratives, and on the agency and experiences of both perpetrators and victim/​survivors. Categories are contingent and constantly shifting. I have long been interested in the ways in which medieval law had to confront the fact that life cannot be easily categorized. By its very nature, law was, of course, about those categories, but it is surprising to find how much room for manoeuvre medieval law allowed, and just how ready contemporaries were to try to find a little more. 9 See www.cps.gov.uk/​legal-​guida​nce/​cont​roll​ing-​or-​coerc​ive-​behavi​our-​intim​ate-​or-​fam​ily-​ relat​ions​hip (accessed January 2, 2022). This details the statute which is an authority for the development of coercive control.

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Selected Secondary Sources Dodds-​Pennock, Caroline. Bonds of Blood: Gender, Lifecycle, and Sacrifice in Aztec Culture. Basingstoke: Palgrave Macmillan, 2008. Macrides, Ruth. “Killing, Asylum and the Law in Byzantium.” Speculum 63, no. 3 (1988): 509–​38. McDougall, Sara. “The Opposite of the Double Standard: Gender, Marriage and Adultery Prosecution in Late Medieval France.” Journal of the History of Sexuality 28, no. 2 (2014): 206–​25. Pillay, Navanethem. “Address—​Interdisciplinary Colloquium on Sexual Violence as International Crime: Sexual Violence: Standing by the Victim.” Law & Social Inquiry 35, no. 4 (2010): 847–​53. Rapoport, Yossef. Marriage, Money and Divorce in Medieval Islamic Society. Cambridge: Cambridge University Press, 2005. Ratchnevsky, R. “Jurisdiction, Penal Code and Cultural Confrontation under Mongol and Yuan Law.” Asia Major 6, no. 1 (1993): 161–​79. Skoda, Hannah. “A Historian’s Perspective on the Present Volume.” In Legalism: Anthropology and History, edited by Paul Dresch and Hannah Skoda, 39–​54. Oxford: Oxford University Press, 2012. Zorzi, Andrea. “Pluralismo giudiziario e documentazione: il caso di Firenze in età comunale.” In Pratiques Sociales et Politiques judiciaires dans les villes de l’occident à la fin du Moyen Age, edited by Andrea Zorzi, Jacques Chiffoleau, and Claude Gauvard, 125–​87. Rome: École Française de Rome, 2007.

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SHIFTING ATTITUDES TO THEFT IN MEDIEVAL WESTERN EUROPE* Valérie Toureille Theft occupies a

very particular place in the history of “deviance.”1 If our definition of crime follows that chosen by those responsible for punishing it, theft was by far the most common type, and certainly the most prosecuted.2 Theft was unanimously perceived as a serious transgression, which threatened both morality and law, and which undermined political and social order, as well as the balance of commerce. It was a major crime. However, it was not treated in the same way across Europe. The penal response to theft varied according to period and region. Socio-​political considerations meant that sometimes theft was dealt with via composition, sometimes by punishment, sometimes according to a logic of reparation, sometimes in the interests of the common good. It was shaped by the power or dissolution of public authority, from the Carolingian empire to fragmented lordly rule and feudal relationships. Roman law, forgotten and then rediscovered, was also an important influence. Finally, it was intertwined with anxiety about sovereignty when the public peace was threatened by the growth of brigandage and apparently sustained by the intervention of royal justice. The repression of theft sheds particular light on the complexity of the relationships which bound members of a society and their shared values. At the same time, the category of theft involved a strikingly disparate group of actions, both in substance and in gravity: theft included all incursions on property, from petty theft and pilfering, to felonious theft, and armed attacks. Responses ranged from fines to death, and varied according to circumstances, and the profile of the accused. Courts assessed the role of thieves differently in different areas. Prescribed punishments, in particular violent ones, tended to parallel the evolution of the growth of public justice, both in how they * Translated by Hannah Skoda.

1 Valérie Toureille, Vol et Brigandage au Moyen Âge (Paris: Presses universitaires de France, 2007); and Crime et châtiment au Moyen Âge: Ve-​XVe siècle (Paris: Éditions du Seuil, 2013); Trevor Dean, Crime in Medieval Europe, 1200–​1550 (Harlow: Longman, 2001); and Crime and Justice in Late Medieval Italy (Cambridge: Cambridge University Press, 2007), from 182.

2 This was particularly the case in France and England, but theft also represents three-​quarters of the cases tried in the Thurnrodels (or registers) of Fribourg in Switzerland between 1475 and 1505. For these, see Patrick J. Gyger, L’épée et la corde: criminalité et justice à Fribourg (1475–​1505) (Lausanne: Université de Lausanne, Section d’Histoire médiévale, 1998), 109. For further discussion, see John G. Bellamy, Crime and Public Order in England in the Later Middle Ages (Toronto: University of Toronto Press, 1973), 33–​34; Barbara Hanawalt, Crime and Conflict in English Communities, 1300–​1348 (Cambridge: Harvard University press, 1979), 6, 65–​66, 75.

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290 Valérie Toureille were carried out, and in terms of the theoretical framing of the punishment. At the end of the Middle Ages, legislation against, and repression of, theft, became major political strategies, centred on the preservation of peace and the protection of the common good. When medieval clerics wanted to evoke the reign of sin and disorder, they often drew on biblical tradition and the Church fathers, and used the metaphor of the Speculum latronum (Jr 7:11). Theft apparently destroyed the trust which should govern a community, and thus undermined the community itself. The thief represented an existential threat to economic balance, in particular in societies where material objects were rare and precious: he or she was strongly despised in religious terms, and equally condemned by positive law. Theft was deemed an intrinsically wicked act, which could hardly be mitigated. It is seen as the cowardly crime par excellence. Worse still, theft was related to treachery. If homicide could sometimes be attributed to honourable motives, theft was always contemptible and contrary to the values shared by medieval societies. The thief, like Judas, was he (or she) who exploited the trust of the community for love of selfish gain. But the world of thieves was not homogenous. Distinctions were drawn between the mass of petty thieves, and the dangerous fringe of bandits and brigands. The former could redeem themselves; the latter, as violent and sometimes organized criminals, had to be excluded from the community. The world of theft was divided in two, although the boundary was porous: the petty thief could become a hardened and “incorrigible” criminal so that theft became his only occupation, in a society which valued work. The thief was certainly a social threat, and the risk of entrenched delinquency was a constant source of anxiety for judges. “He who steals an egg, steals a cow” was a medieval French proverb.3

Terminology

Theft was a varied offence which was difficult to define in the Middle Ages. How could a single category encompass a poor woman who stole a piece of lard from a market stall, as well as a former soldier who stripped his victim on the edge of the wood before killing them? Which was more important for this categorization: the things which were stolen, or the profile of the thieves? Medieval thinkers, usually so ready to work with abstractions, struggled to conceive of this infraction, usually choosing to describe the perpetrator rather than the action. This challenge produced a strikingly detailed casuistry concerning the different kinds of thieves. The vocabulary of theft was rich and varied: it was also emotionally charged. The etymology of the terms is both obscure and contradictory. The terminology itself demonstrates a significant evolution in attitudes to theft, which stigmatized some transgressions, whilst allowing others, according to the juridical and political needs of the moment. 3 Nicole Gonthier, Dèlinquance, justice et société dans le Lyonnais médiéval de la fin du XIIIe siècle au début du XVIe siècle (Paris: Éd. Arguments, 1994), 76.

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In the very early Middle Ages, the medieval Latin terms furtum and latrocinum designated theft. At the start of the seventh century, Isidore of Seville, following classical tradition, associated theft with the world of shadows. The Latin word furtum was apparently related to furvus and thus to fuscus, meaning “darkness” and “black.”4 The adverb furtivus apparently meant “in a way which is stolen.” But Latin constructed other words from the root fur, such as furor, which could evoke both theft and the trickery of war, or the term furax, which associated theft with pillaging. The word latrocinium was said to evoke violent and even collective aggression. It was used to mean brigandage. In Latin, the word latro means a mercenary soldier or a brigand, whilst latrocinium means both “armed service” and “brigandage.”5 From the thirteenth century, the translation of these terms into the vernacular integrated the idea of violence much more explicitly into the world of thieves. In Old French, furtum was translated as larrecin or larrozin,6 or as “larceny” in Anglo-​Saxon: these terms took on the characteristics of the Latin furtum, perhaps underscored by the rediscovery of Roman law, and the definition of the term in the Digest: “contrectatio rei fraudulosa lucri faciendi gracia.”7 The Anglo-​Saxon term thef or the Germanic diebstahl referred to simple theft. The Italian furto was closer in meaning to the Latin, as was the Castilian terminology of the thirteenth-​century Siete Partidas (tit. 14) of Alfonso X, which used the words furto and hurto to qualify larcin, the clandestine theft of moveable goods.8 In most European vernacular tongues, the sources established particular vocabulary to designate the violent theft indicated by the Latin rapina. In German, the word was translated as raub, in English as rob, and in Spanish, as robo: the Italian re-​used the Latin term. All these words designated theft accompanied by force. In the romance tongue, rapina was replaced in the thirteenth century by the term desroberie. The word rauba was related to robe in romance languages, referring to the clothing taken as booty, both in a literal sense and in the figurative sense of pillaging. We find the figure of the thief appearing in texts alongside the pillager and the brigand. Indeed, the voleur became a synonym for brigand. The word appears to be of Italian origin, borrowed from the vocabulary of war. The word brigand evoked both the group (briga), as well as the clothing of the infantry (brigandina) who were responsible for requisitioning supplies. By the late Middle Ages, the term brigandina finally came to mean brigandage. Thus, the emergence of the voleur coincided with the gradual down-​grading of the term larron in French, and ladrón, in Spanish. The distinction was less clear-​cut in English and 4 Isidore of Seville, Etymologiarum sive Originum libri XX, ed. W. M. Lindsay, 2 vols. (Oxford: Clarendon Press, 1911), 1:194. 5 Toureille, Vol et brigandage, 36. 6 Gyger, L’épée et la corde, 109.

7 Digestum 47.2.1, “De furtis,” in Corpus iuris civilis, vol. 1, ed. Paul Krueger and Theodor Mommsen (Berlin: Weidmann, 1877), 764.

8 Gonzalo Rodriguez Mourullo, “Distinción hurto-​robo en el Derecho Espagnol,” Anuario de historia del derecho español 32 (1962): 25–​112.

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292 Valérie Toureille German. In French, the voleur referred to the world of hunting, and most particularly to falconry (“la chasse au vol”). It indicated the violence, the rapidity, and the cruelty of this kind of hunting. These were the connotations of vol as a crime from mid-​fifteenth-​ century France.9

Dealing With Theft

In the first centuries of the Middle Ages, Germanic law predominated over written Roman law. The latter was initially preserved for the use of “Roman” communities, but these were then dissolved into the mass of royal subjects. The synthesis of the two approaches leaned towards a Germanic approach which privileged compensation as a response to crime, effectively a way of extending a kind of personal vengeance. Theft formed a substantial part of this. The Pactus legis salicae, redacted in successive waves between the early fifth and late eight centuries (usually referred to as “Salic law”) devoted a whole chapter to theft. Indeed, this is the most developed section of the text.10 Theft is presented as a disturbing crime because it disrupts the social order, and undermines the reciprocal trust which should form the link between people, and of which the Pactus presented itself as the guarantee. All types of theft were treated here. No fewer than twenty-​seven categories, each containing several articles, prescribed the tariff of compositions and compensations. The guilty party was to pay the price of the stolen object, but also a penalty with Pactus law called dilatura, or “delay,” corresponding to the time for which the victim had been deprived of the use of the object. If payment was not forthcoming, the debt could revert to the family, and even be transmitted (chrenecruda). If the debtor was insolvent, he or she would have to “compose with their body,” in other words, to pay for their crime with their bodies. In the Germanic codes, composition was not entirely paid over to the victim. The victim, or their family, received only two thirds. This part, known as the faidus, represented the price of vengeance, or rather the price of renouncing vengeance (faida). The remaining third was returned to the king, and constituted the penal fine (the fredus), which redressed the breaking of the peace (friede). This remaining third also drew out the public implications of the punishment, in an embryonic way.11 Salic law also prescribed corporal punishments for the unfree. Similar dispositions can be found in Lombard law also (Liber legis langobardorum), but also in Anglo-​Saxon pre-​conquest 9 On the question of vocabulary, see Toureille, Vol et brigandage, 10.

10 See Jean-​Pierre Poly on the Salic law: “La corde au cou. Les Francs, la France et la loi salique,” Genèse de l’État moderne en Méditerranée. Approches istorique et anthropologique des pratiques et des représentations, Collection de l’École française de Rome 168 (Rome: Ecole Française de Rome, 1993), 287–​320.

11 Jean-​Marie Carbasse, “La peine en droit français des origines au XVIIIe siècle,” in La peine, vol. 2: Europe avant le XVIIIe siècle, Recueils de la société Jean Bodin, 56 (Brussels: De Boeck, 1991), 157–​72, at 158; Toureille, Crime et châtiment au Moyen Âge, 158 ff.

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England. This is strikingly the case in the law code prescribed by King Æthelbert in the first years of the seventh century, following the evangelizing mission of the kingdom carried out by Augustine.12 When a theft led to the death of the victim, the corresponding punishment was that for murder. A decree of Childebert, a Merovingian king (511–​558), recommended the death penalty for anyone who had dared to take the life of another in order to rob them.13 At the end of the seventh century, Wihtred (ca. 695–​696), king of Kent, declared that in some circumstances, a thief could be put to death or sent overseas.14 In Anglo-​Saxon law, severe punishment was prescribed for thieves, including the death penalty.15 On the continent, with the restoration of the Empire, the Carolingians began a process of judicial reform in an attempt to restore public order. This reform involved heavy penalties, particularly for thieves. The “renovatio imperii” based on uniform and written legislation attempted to reconstruct a justice, drawing largely on the penitential implications of Christian theology.16 This legislative renewal further clamped down on theft, which was seen as a threat to the peace. Carolingian legislation thus introduced a series of corporal punishments. Mutilations were calibrated according to the offence. The capitulary of 779 ordered that a thief’s eye should be gauged out after the first offence. After a second offence, their nose should be amputated, and after a third offence, they should be put to death, if they had not been able to buy themselves off. This scale of punishments is clearly a transposition of the symbolic implications of Christian theology. The alliance between the king and God necessitated the punishment of wrongdoers, in order to purge the kingdom of sins and to ensure its salvation.17 Punishments were supposed to be at once severe, exemplary and deterrent, in order to “protect from evil the people given over to his care.” The emperor was to punish all crimes which affected “pacem et justiciam totius populi … et ad honorem regni et communem utilitatem” (the peace and justice of all the people … and the honour of the realm and the common good). Several thefts were punished capitally because they threatened the 12 Patrick Wormald, “Giving God and King their due conflict and its regulation in Early English State,” in ibid., Legal Culture in the Early Medieval West. Law as Text, Image and Experience (London: Hambledon, 1999), 333–​55, at 341. 13 “[Q]‌uiconque sera convaincu de brigandage … s’expose au péril de sa vie.” This decree of Childebert is from around 532, Recueil général des anciennes lois françaises, depuis l’an 420, jusqu’à la révolution de 1789, ed. Athanase Jean Léger Jourdan et al. (Paris: Berlin-​Le-​Prieur, 1821–​1833), 1:20.

14 Jean Imbert and Georges Levasseur, Le pouvoir, les juges et les bourreaux (Paris: Hachette, 1972), 132. 15 Tom B. Lambert, “Theft, Homicide and Crime in Late Anglo-​Saxon Law,” Past & Present 214 (2012): 3–​43, at 3. 16 Mayke de Jong, The Penitential State: Authority and Atonement in the Age of Louis the Pious, 814–​840 (Cambridge: Cambridge University Press, 2009).

17 The development observed in continental Europe during the Frankish era is similar to that in the Anglo-​Saxon laws.

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294 Valérie Toureille interests of the Church and those of the emperor.18 Respect for the law was embedded in the oath that the emperor demanded of his subjects (capitulary of 802), meaning that every infraction became a form of treason against the authority of the lord king, and indeed against the authority of God, whom he represented. It was still possible to make a payment to avoid the death penalty, prescribed for the recidivist thief: the exception was for serfs and slaves, who were put to death, whatever their crime. The link between offence and obedience, which free men acknowledged via the oath, is also found in Anglo-​Saxon England and in the code of Cnut the Great (r. 1016–​1035): it was formally forbidden either to thieve, or to be an accomplice of a thief.19 Archbishop Wulstan, who was responsible for the codes of Æthelred and Cnut was determined to preserve the peace by a very hardline policy towards thieves. In late tenth-​century England, theft was seen as an act of treason, a felony towards the king.20 In the kingdom of France, after the fall of the Empire, notions of public justice and exemplary punishment petered out in the feudal era until the twelfth century. Normandy was an exception, where the duke remained able to impose public peace, or general protection throughout his territory: theft was rigorously prosecuted, using the notion of the “peace of the prince.” The influence of Anglo-​Saxon codes was felt in this general protection in Normandy, guaranteed by the prince and then by the King. The death penalty was ordained for all who broke the king’s peace, by committing a theft which belonged to the category of “felonies.”21

The Progressive Criminalization of Theft

In the kingdom of France, the privatization of justice by landlords took the form of the development of monetary penalties and provided a source of revenue. Lords were able to exercise this prerogative as an extra means of control over their subjects. They were often motivated more by financial gain than a concern for peace and harmony in their territories. There were so many abuses that by the turn of the eleventh and twelfth centuries, both urban and rural communities organized themselves to try to frame this seigneurial constraint by obtaining charters. In order to escape arbitrary penalties, they demanded a tariffication of fines. These demands for freedoms were particularly precocious in Italian city states, a trope picked up in later statutes,22 but also in the kingdom of France, as towns and boroughs were granted franchise charters. This kind of tariffication only applied to relatively minor thefts, with the most serious cases remaining within the purview of the high justice of the lord, who controlled all 18 Albert Henry, Chrestomathie de la littérature en ancien français, 2 vols. (Bern: Francke, 1953), 1:305. 19 Lambert, “Theft, Homicide and Crime,” 12. 20 Lambert, “Theft, Homicide and Crime,” 15. 21 Lambert, “Theft, Homicide and Crime,” 5.

22 Dean, Crime and Justice in Late Medieval Italy, 182.

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justice involving corporal punishment. In this sense, the writing down of customs did not mark a straightforward rupture from previous judicial practices. In the kingdom of France, the great feudal lords retained the right to judge major crimes (causæ majores or magna forefacta), amongst which theft often figured alongside murder, arson, and rape. Concomitantly, in the Spanish world there were many more fueros, which essentially formed local charters containing numerous prescriptions regarding theft (hurto).23 References to rapina (los robos, or violent theft) are relatively rare in these texts. Sometimes, a distinction was drawn between fures latrones (robbers) as dangerous criminals. They were to be punished with their lives, whilst other kinds of theft attracted less severe punishment. In Spain, the tariff of composition payments, inherited from Visigothic law, remained the most common prescription. The fueros de Cuenca are well known as the richest and most detailed body of urban legislation in Europe in this period. The town charter, granted by Alfonso VIII of Castile in the twelfth century, prescribed fixed monetary penalties, including for cases of theft with violence.24 But thefts were still seen as private conflicts, which could always be resolved with financial compensations.25 The judge was there to arbitrate and record the agreement between two parties. Until the end of the twelfth century, penal responses to theft were subject to only minor variations across Europe. England followed a distinctive path after the Angevin conquest. The progressive abandonment of the former rules of the Anglo-​Saxon kings gave way to the active construction of a set of common norms, the Common Law. English legislation would go on to develop its own juridical categories and a distinctive set of procedures.26 Elsewhere, the rediscovery of Roman law, conserved since the time of Justinian, was increasingly important although patchy.27 With the influence of canon law as compiled by Gratian (Decretum, 1140), and later in the prescriptions of the Fourth Lateran Council (1215), the penal law took also on a moral dimension, and was imbued with the question of intention.28 The punishment of crime was supposed to be exemplary. But it was also supposed to correct the guilty party, and even to lead them towards some kind of redemption. From the twelfth century, the first great bodies of royal legislation appeared. Perhaps most strikingly, the Leges Henrici Primi established a hierarchy of courts, and an attempt to set apart the most serious cases: robbery figured amongst the 23 Mourullo, “Distinción,” 66–​67, 80.

24 James F. Powers, The Code of Cuenca: Municipal Law on the Twelfth-​Century Castilian Frontier (Philadelphia: University of Pennsylvania Press, 2000), 53–​56. 25 Mourullo describes this period as a moment of weak juridical maturity: see “Distinción,” 74. 26 Dean, Crime in Medieval Europe, 5.

27 The jurist Irnerius (ca. 1050–​1125) at Bologna was key to this development: Écrits, pouvoirs et sociétés en Occident, XIIe–XIVe siècles), ed. by Nathalie Gorochov (Paris: Atlande, 2020), 154.

28 Charles Homer Haskins, The Renaissance of the Twelfth Century (Cambridge, MA: Harvard University Press, 1957); Chris Wickham, Courts and Conflict in Twelfth-​Century Tuscany (Oxford: Oxford University Press, 2003), 120.

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296 Valérie Toureille latter, and was defined as a plea of the crown.29 From the thirteenth century, theft was explicitly condemned because it violated the king’s peace, and, by extension, the peace of the kingdom. In a similar spirit, royal legists in the kingdom of France undertook to write out custumals for the royal domain. The Établissements de saint Louis were thus redacted between 1272 and 1273 and the Coutumes du Beauvaisis were redacted by the bailli Philippe Beaumanoir. Royal judges produced a kind of hierarchy of punishments for theft, drawing on references to Roman and canon law. They developed a fresh juridical and rhetorical arsenal: thieves were to be punished because it was necessary that they should expiate their wrongdoing. These texts generated a kind of penal pedagogy. Numerous judicial authorities in Europe shared this ambition, and the period saw a renewal of public justice. Accordingly, many juridical compilations were produced by public authorities. For example, in the kingdom of Castile, King Alfonso X had Las siete Partidas compiled, which was also shaped by the influences of Justinianic Roman law.30 While monetary fines continued for minor infractions, the repression of theft intensified with a proliferation of corporal punishments which culminated in the death penalty, particularly if the theft was aggravated (for example, the theft of sacred objects committed by officers of the king, breaking and entering, and so on). Roman law provided ways to articulate categories, particularly concerning the role of aggravating circumstances: the offence was deemed more serious if committed armed, as a member of a group, or by night when the community was less vigilant. The influence of learned law was particularly strong in the growing preference for inquisitorial systems, and a reluctance to turn to forms of proof which were seen as irrational.31 Nevertheless, inquisitorial processes remained relatively rare. In Castile, an inquisitorial approach was only used for the most serious crimes.32 In Aragon, this inquisitorial role was exercised officially by the king. The lands of the Holy Roman Empire absorbed these procedures relatively late. On the other hand, Italy developed inquisitorial practices precociously, alongside a continued reliance on accusatorial process. This was certainly true of Bologna, the heartland of the renewal of Roman law. In northern Italy, there was a hierarchy between courts: in villages and small towns, 29 Leges Henrici Primi (2), 47–​41, ed. L. J. Downer, 156–​58. John Hudson, Oxford History of laws of England, vol. 2 (2012), Le vol simple relève du tribunal du sheriff, pp. 166, 400, 714, and 718.

30 A “fuero real” also existed. See Mourullo, “Distinción”; Joaquín Cerdà Ruiz-​Funes, “En torno a la pesquisa y procedimiento inquisitivo en el derecho castellano-​leonés de la Edad Media,” Anuario de historia del derecho español 32 (1962): 483–​518.

31 Jean-​Marie Carbasse, Introduction historique au droit penal (Paris: PUF, 1990), 133; H. L. Ho, “The Legitimacy of Medieval Proof,” The Journal of Law and Religion, Cambridge 19, no. 2 (2004): 259–​98; Elizabeth Papp Kamali and Thomas A. Green, “A Crossroads in Criminal Procedure: The Assumptions Underlying England’s Adoption of Trial by Jury for Crime,” in Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand, ed. Travis R. Baker (London: Routledge, 2018). 32 Mourullo, “Distinción.”

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local judges had jurisdiction over minor cases, but in large towns, it was the court of the podestà which judged major crimes, including theft.33 In England, the most serious crimes were those deemed to break the king’s peace,34 but the kingdom took a rather different path from the rest of Europe. Well before the end of the twelfth century, English law had rejected composition payments and ordeals for serious crimes, although trial by battle was occasionally seen still in the thirteenth and fourteenth centuries.35 Juries were used to make indictments and to judge crimes, without recourse to inquisitorial procedure.36 Only the most serious crimes came before the King’s Bench. Most often, victims were left to bring minor cases to court, in keeping with the principles of an accusatorial procedure. At the same time, the organization of justice was becoming increasingly hierarchical across Europe. In France and England, the most serious thefts were judged by royal officials: in France, these were the baillis and sénéchaux; in England, the central courts, dealt with felonies, including violent robbery and thefts worth over twelve pence.37 In England, royal judges intervened precisely because these thefts were deemed to be “in breach of the king’s peace.”38 In England, royal courts existed alongside manorial courts, franchisal courts and a range of settings, but were nevertheless real centres of power rather earlier than in France, where courts held by local lords continued to dominate into the fourteenth century. The development of royal cases and appeals gradually allowed the King of France to take control of judicial mechanisms.39 In continental Europe, this normalization of penal justice served to emphasize the seriousness of the crime of theft. In the kingdom of France, most custumals produced by royal officials classed theft as a major crime (with the exception of the custumal of Clermont-​en-​Beauvaisis). Nevertheless, in practice, punishments tended to be adapted to fit the profile of the accused. In the Holy Roman Empire, punishments were particularly severe. In the Great Custumal of Saxony, compiled by Eike Von Repgow around 1225, the death penalty was systematically applied: it was only carried out in different ways, according to the severity of the crime. In general, Europe saw a hardening 33 Sarah Rubin Blanshei, “Crime and Law Enforcement in Medieval Bologna,” Journal of Social History 16 (1982): 121–​38, at 122; Trevor Dean, “Criminal Justice in Mid-​Fifteenth Century Bologna,” in Crime, Society and the Law in Renaissance Italy, ed. Trevor Dean and K. J. P. Lowe (Cambridge: Cambridge University Press, 1994), 16–​39, at 17. 34 Dean, Crime in Medieval Europe, 7.

35 Anthony J. Musson, “Turning King’s Evidence: The Prosecution of Crime in Late Medieval England,” Oxford Journal of Legal Studies 19 (1999): 467–​79. 36 See Dean, Crime in Medieval Europe, 6. 37 Dean, Crime in Medieval Europe, 7.

38 Dean, Crime in Medieval Europe, 11.

39 Ernest Perrot, Les cas royaux. Origine et développement de la théorie aux XIIIe et XIVe siècles (Paris: Rousseau, 1910).

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298 Valérie Toureille of juridical attitudes towards theft in this period.40 Italy saw a similar evolution over the course of the thirteenth century, despite the fragmentation of political authority across different cities.41 Communal authorities were particularly keen to restrain the violent robberies which beset those living in the contado. The only exception to this picture of harsh judicial responses was the concept of necessity as a mitigating circumstance: the idea that the most needy should be spared the harshest punishments was elaborated in canon law.42 Since Augustine, it had been acknowledged that poverty mitigated the seriousness of theft and indicated a lack of evil intent, without excusing the act itself. Gratian’s Decretum introduced the legal idea of necessity. This did not, of course, excuse theft, but it was a way of recognizing attenuating circumstances which might justify a lighter punishment. By the thirteenth century, this way of thinking was expressed in French customary law, albeit only cautiously. At the end of the fourteenth century, Jean Bouteiller, a counsellor to the king in the French parlement, stated that such mitigation only applied to first-​time offenders, and proposed that they should nevertheless suffer banishment: “si aucuns est prins pour un petit larrecin qui est fait plus par semblance de peuvreté que par mauvaise convoitise, et qui autrefois n’a esté reprins d’autre larrecin, il est à banir par ban de terre” (“if anyone is seized for common theft committed because of poverty rather than evil intent, and has never been previously accused of theft, he is banished from the land”).43 In practice, in the heart of the French kingdom, the judicial records suggest that minor thefts were rarely punished except with fairly modest fines.

The Criminalization of Habitual Criminals

Theft is a serious offence, but it is also an everyday one. Reading the criminal registers makes this clear. Barbara Hanawalt’s study of eight English counties in the fourteenth century shows that thefts made up three-​quarters of cases tried, with murder accounting for the remaining quarter. In fifteenth-​century East Anglia, 86 percent of charges concerned non-​violent crime, particularly theft. In England, as in continental Europe, theft was the most frequently prosecuted crime.44 40 In Aragon, as in Catalonia, the inquisitorial procedure was introduced much later. The same was true of Nuremberg, where it did not emerge until the end of the fourteenth century. See M. K. Schüssler, “German Crime in the Later Middle Ages: A Statistical Analysis of the Outlawry Books, 1285–​1400,” Criminal Justice History 13 (1992): 11–​27. 41 Andrea Zorzi, “Aspects de la justice criminelle dans les villes italiennes à la fin du Moyen Âge,” Déviance et société 14 (1991): 439–​54.

42 Gille Couvreur, Les pauvres ont-​ils des droits? Recherches sur le vol en cas d’extrême necessité depuis la Concordia de Gratien (1140) jusqu’à Guillaume d’Auxerre (1231) (Rome: Libreria editrice dell’Università Gregoriana, 1961). 43 Jean Boutillier, Somme rural, ou le grand coustumier général et practique du droict civil et canon observé en France, ed. L. Charondas le Caron (Paris: Cramoisy, 1621), 246. 44 Hanawalt, Crime and conflict, 7: “larceny was the most prevalent crime in medieval society”; although Trevor Dean disputes this in Crime in Medieval Europe, 24.

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However, public authorities were most concerned about recidivism. As the legist Jacques d’Ableiges put it: “the habitual wrong-​doer should be more seriously punished than he who is not accustomed to such behaviour.”45 Often, more serious punishments were applied to recidivists. After three repeated offences, it was generally accepted that a thief could not be reformed. He or she would then fall into the category of incorrigibilis, to be punished by death. The custumals, as with urban statutes, made this principle into a rule, as in, for example, the urban law known as the Thurnrodels from the chancellery of Fribourg.46 Some jurists stipulated that greater severity should be exercised even after the first repeat offence: Jean Boutillier demanded capital punishment in his Somme rural: “if he is found to have stolen to between the value of 5 sous or below, and the value of 12 deniers, he should be fined, have his ear cut of and suffer banishment from the territory for the first offence; for the second offence, he should be hanged.”47 On the other hand, Albertus Gandino in Italy claimed that only the violent and multiple offenders, the publici and the famosi latrones—​who had already been sanctioned more than three times—​deserved death.48 The threat of recidivism was deemed particularly acute in the case of theft. It was for this reason that amputation was deemed appropriate for thieves, in particular the cutting off of part or the whole of an ear. This was a widespread practice in France, which enabled people to identify recidivist thieves wherever they might flee. The mutilation of the ear was used as a sort of branding, informing the judge of the recidivist profile of the accused, and nudging him towards a death sentence. Late medieval judges had a particular vocabulary to refer to habitual criminals: they were known as “incorrigible thieves,” and they could be recognized by their physical appearance.49 From the fifteenth century, this arrangement was largely unnecessary in towns in which the local judges had criminal registers at their disposal (the Livre rouge d’Abbeville, the Livres noirs of Fribourg, the Papier rouge of Dijon50).

45 Jacques d’Ableiges, Le grand coutumier de France, ed. Edouard Laboulaye and Rodolphe Dareste (Paris: Durand & Pédone, 1868). 46 Gyger, L’épée et la corde, 186.

47 Boutillier, Somme Rural, 246.

48 Albertus Gandino, Tractatus de maleficiis (Lyon: Jacobino Suigo, 1497).

49 Michael T. Clanchy, “Highway Robbery and Trial by Battle in the Hampshire Eyre of 1249,” in Medieval Legal Records: Edited in Memory of C. A. F. Meekings, ed. R. Hunnisett and J. B. Post (London: His Majesty’s Stationery Office, 1978), 26–​61; H. R. T. Summerson, “The Early Development of the Peine Forte et Dure,” in Law, Litigants and the Legal Profession: Papers Presented to the Fourth British Legal History Conference at the University of Birmingham, 10–​13 July 1979, ed. E. W. Ives and A. H. Manchester (London: Royal Historical Society, 1983), 116–​25, at 118–​20.

50 On the “Red Book” of Abbeville, see Toureille, Vol et brigandage, 58, 64–​65; Gyger, L’épée et la corde, 9; Nicole Gonthier, “Le ‘papier rouge’, epression de la justice échevinale de Dijon sous les ducs Valois,” in Etat, société et spiritualité du XIe au XXe siècles: mélanges en l’honneur du Professeur René Fédou (Lyon: CHAP, 1990), 69–​81.

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300 Valérie Toureille Hunting down hardened criminals meant that inquisitorial procedure was used more often: it was a more effective way to seek out accomplices and to break up bands of robbers. The criminal register of the Châtelet de Paris (1389–​1392) records numerous multiple recidivist thieves, in amongst profiles of criminals chosen to offer examples for judges in their exercise of justice: of these thieves, all were subjected to torture, and 97 percent were put to death.51 It was concern about the incorrigibiles that drove royal officials to pursue delinquent clerics through the Church courts.52 In England, the king bore primary responsibility for public order,53 and thieves were pursued in a range of contexts, often relying on local knowledge and royal officials rooted in communities, but also in assize courts and shire courts. Thieves were a threat to the public peace and of concern to the king, but their prosecution was often dependent on local knowledge and mechanisms: cases were dependent upon grand juries (“triers”) and processes of appeal (brought by “approvers”).54 The system of appeal allowed the king to pursue bands of robbers who would otherwise have escaped his grasp, in particular when this was a matter of organized crime.55 The use of appeal played an important role in the maintenance of order, and allowed the crown to take a more active role in prosecuting this kind of criminal behaviour. There are further similarities with the continental model; for example, in the use of torture (“peine forte et dure,” meaning the withholding of food and water, and physical pressure whilst in custody).56 Organized gangs attracted particular attention, because they carried a risk of serious subversion and, to some extent, represented a kind of counter-​culture. The Robin Hood stories were committed to manuscript from the fourteenth century.57 From the second half of the fifteenth century, the motif of “the king of robbers” was increasingly common in judicial and literary sources. The representation of the kingdom of thieves was a way of articulating concern about social otherness. Bands of thieves, 51 Toureille, Vol et brigandage, 171.

52 Hannah Skoda, Medieval Violence: Physical Brutality in Northern France, 1270–​ 1330 (Oxford: Oxford University Press, 2012); Toureille, Vol et brigandage, 259. 53 Musson, “Turning King’s Evidence,” 468.

54 Ian Forrest, Trustworthy Men: How Inequality and Faith Made the Medieval Church (Princeton: Princeton University Press, 2018). 55 “For the Crown, the approver offered the means of prosecuting crimes which otherwise might have gone undetected. The information provided could be most useful in breaking up professional criminal gangs and putting the finger on highway robbers and their confederates.” Musson, “Turning King’s Evidence,” 474.

56 Larissa Tracy, Torture and Brutality in Medieval Literature: Negotiations of National Identity (Cambridge: Brewer, 2012); Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Leiden: Brill, 1993).

57 J. C. Holt, Robin Hood (London: Thames and Hudson, 1982); Maurice Keen, The Outlaws of Medieval Legend (Toronto: University of Toronto Press, 1961); Barbara A. Hanawalt, “Ballads and Bandits: Fourteenth-​Century Outlaws and the Robin Hood Poems,” in Chaucer’s England: Literature in Historical Context, ed. Barbara A. Hanawalt (Minneapolis: University of Minnesota Press, 1992), 154–​75.

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seen as counter-​cultural, were necessarily quite highly organized: the only model for understanding this kind of organization and hierarchy was monarchical.58 In 1448, the anonymous Bourgeois of Paris described a band of robbers terrorizing Paris and led by a king and a queen: “on disoit qu’ilz avoient fait ung roy et une royne par derision” “people said that they mockingly had a king and a queen.”59 In 1522, in his Livre de raison, the lawyer Nicolas Versoris described a band of thieves who had apparently elected a king.60 Numerous polities in continental Europe made clear their determination to leave no crime unpunished, and to clamp down on any behaviours which might threaten social harmony.61 Similar concerns preoccupied urban authorities. In Venice, Bologna, Augsburg, and Nuremberg, inquisitorial procedures became the default. Professional judges moved from city to city, endowed with discretionary powers.62 In Paris and Bologna, for example, commerce was tightly controlled in order to avoid the risk of concealment.63 In Florence, the Office of the Night was established in the fifteenth century to prevent crime.64 The bearing of arms was also forbidden. The scale of punishments was also expanded. The death penalty was used far less often that legal texts might suggest. It was reserved for repeat offenders, for forts larrons, for the “scandalous.” In fifteenth-​century Arras, capital punishment was reserved only for violent crime of the most serious kind: sexual crimes, some forms of theft, recidivism, and thefts on the highway.65 In medium-​sized towns of north-​west Europe, capital punishment was not used more than five times a year.66 Banishment remained the most 58 Valérie Toureille, “Une contribution à la mythologie des monarchies du crime: le procès de Coquillards à Dijon en 1455,” Revue du Nord 371 (2007): 495–​506.

59 Journal d’un bourgeois de Paris, 1405–​1449, ed. Alexander Tuetey (Paris: H. Champion 1881), 389–​90. 60 Livre de raison de Me. Nicolas Versoris, avocat au Parlement de Paris, 1519–​1530, ed. G. Fagniez (Paris: Société de l’Histoire de France, 1885), 37. 61 Musson, “Turning King’s Evidence,” 476.

62 Andrea Zorzi, The Judicial System in Florence in the Fourteenth and Fifteenth Centuries,” in Crime, Society and the Law in Renaissance Italy, ed. Trevor Dean and K. J. P. Lowe (Cambridge: Cambridge University Press, 1994), 40–​58, at 47–​51. 63 Sarah Rubin Blanshei, “Bolognese Criminal Justice: From Medieval Commune to Renaissance Signoria,” in Violence and Justice in Bologna (1250–​1700), ed. Sarah Rubin Blanshei (Lanham: Lexington, 2018), 55–​82. A 1454 statute from Bologna forbid all commercial transactions after nightfall: Dean, “Criminal Justice in Mid-​Fifteenth Century Bologna,” 32.

64 Zorzi, “Aspects de la justice criminelle,” 454; Stefano Piasentini, “Alla luce della luna”: i furti a Venezia (1270–​1403) (Venice: Il Cardo, 1992); Dean, Crime in Medieval Europe, 122. 65 Robert Muchembled, Le temps des supplices, de l’obéissance sous les rois absolus: XVe-XVIIIe siècles (Paris: Armand Colin, 1992), 49–​57.

66 For Nuremberg, Malines, Frankfurt, Lubeck, see Dean, Crime in Medieval Europe, 128; Louis-​ Théo Maes, “La peine de mort dans le droit criminel de Malines,” Revue d’histoire du droit français et étranger 28 (1950): 372–​401, at 382–​84; M.-​K. Schüssler, “German Crime in the Later Middle Ages,” 30.

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302 Valérie Toureille common punishment in European towns, including in Italy.67 In late fourteenth-​century Kraków, banishment was used for murder, theft, burglary, gambling, and rape.68 The cities of the Empire continued to use banishment, which could be commuted to a fine, even in cases of crime.69

Vagabondage and Brigandage

Did public authorities respond to the anxieties of their populations, or rather consciously exacerbate them in order to increase their own power? This is a difficult question to answer. The clamp-​down on vagabondage, which took place across Europe from the middle of the fourteenth century, was certainly partly driven by the horrors of the Black Death, during which fear of the “other” was exacerbated by a sense of collective terror. Hostility was aimed at those who lived “without hearth or home,” but also against those who refused to work for a living. It was thought that poverty could easily tip into delinquency. the English Statutes of Labourers aimed to clamp down on vagabondage, and on those “without allegiance,” condemning all those who lived without working.70 A similar move took place in France from the reign of Jean II le Bon (r. 1350–​1364), in a context of territorial fragmentation and the depredations of war. His edicts obliged the recalcitrant to go back to work without demanding excessive payment, but the sub-​text was an elision between unemployment and potential delinquency.71 At the end of the fourteenth century, the Cortes of Castile undertook similar measures against wandering individuals without employment.72 The same can be seen in Poland at the start of the fourteenth century under King Casimir (r. 1333–​1370). In England, the statute of 1383 “to restrain the malice of vagrants” allowed judges and sheriffs to interrogate vagabonds. The connection between the refusal to work and the suspicion of wrongdoing was made explicitly in French legislation from the end of the fourteenth century: the “lazy” are accustomed “to wander by night in the town of Paris, and to commit numerous misdeeds such as breaking doors and windows, beating people, robbing and pillaging.”73 The Cabochien ordinance of 1413 aimed to bolster the power of royal officials to deal with all beggars. A fresh set of anxieties arose about organized bands of thieves, a kind of criminal sub-​culture. The trial of the so-​called “Coquillards,” 67 For the Italian cities, see Andrea Zorzi, “La politique criminelle en Italie (XIIIe-​XVIIe siècles),” Crime, Histoire et Sociétés, 2 (1998): 91–​110. 68 Hannah Zaremska, Les bannis au Moyen Âge, trans. Thérèse Douchy (Paris: Aubier, 1996).

69 M.-​K. Schüssler, “German Crime,” 31.

70 Mark Bailey, After the Black Death: Economy, Society and the Law in Fourteenth-​Century England (Oxford: Oxford University Press, 2021). 71 These fourteenth-​century ordinances renewed the oppression of vagrants that had been instated by Louis IX in 1254. 72 In Poland, this hunt for vagrants seems to have begun at an even earlier date, from the beginning of the fourteenth century. See Zaremska Les bannis au Moyen Âge. 73 Paris: Archives Nationales de France, Y 2, fol. 124v (from 1395).

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made famous by Villon, marvellously documented, reveals the organization of this gang of sixty or so individuals bound together by a code of silence and a secret language: the slang of thieves.74 Amongst these men were former solders, indicating that the violence of war had infected civil society and was disturbing the public peace. In England and France, where monarchical authority was imposed with the greatest force, the question of public order became a political priority.75 In England, commissions of trailbaston (itinerant justices) were instituted from the fourteenth century onwards to eradicate vagabonds and highwaymen.76 In the kingdom of France, this new legislative effort had two main targets: former soldiers suspected of wishing to return to a state of brigandage, and vagabonds suspected of living from the fruits of crime. It was indeed during the Hundred Years’ War that the first ordinances against pillagers were promulgated. The 1439 Pragmatic Sanction states that “the king forbids anyone of any estate or condition to wander by the ways, roads, fields or anywhere else, to pillage, rob or thieve from travellers or those passing by these ways.”77 In France, the problem of violence by soldiers led to the emergence of a new kind of royal official, the prévôt des maréchaux, whose original role was to deal with discipline within the armies, but whose reach swiftly extended to all the roads of the kingdom. The office was institutionalized by François I in 1525. This new policing of the highways made it possible to pursue delinquent vagabonds and highwaymen, without being limited by the boundaries of particular jurisdictions. At the start of the sixteenth century, the role of the prévôts was extended still further.78 74 Although the “Coquillards” are the most emblematic, other criminal gangs have been rediscovered, some of which had a leader who took the title of “king.” Toureille, “Une contribution à la mythologie des monarchies du crime”; and “Les royautés du crime. Entre mythe et réalité,” in Les “autres” rois. Études sur la royauté comme notion hiérarchique dans la société au bas Moyen Âge et au début de l’époque moderne, ed. Torsten Hiltmann (Munich: Oldenbourg Wissenschafts, 2010), 146–​54. 75 Musson, “Turning King’s Evidence,” 468.

76 Richard W. Kaeuper, War, Justice and Public Order: England and France in the Later Middle Ages (Oxford: Clarendon Press, 1988). 77 Toureille, Vol et brigandage, 268–​69.

78 In the sixteenth century, the cases that were reserved to them became known as the “cas prévotaux.” See one such case, from January 25, 1536: “comme nous avons été avertis que plusieurs gens de guerre à cheval et à pied, de nos ordonnances, et certains vagabonds et d’autres domiciliés, oppriment grandement notre pauvre peuple en leurs personnes et biens en maintes manières et tenant les champs, pillant, robent leurs hôtes, forcent et violent femmes et filles, détroussent et meurtrissent les passants, allant et venant, à notre très grand regret et déplaisir; pour faire cesser icelle pillerie, et soulager nos sujets, nous désirons de tout notre cœur qu’il y soit donner prompte réponse.” Toureille, Vol et brigandage, 271–​72. “We have been told that several of our commissioned soldiers, on foot and on horseback, as well as certain vagabonds and other strangers, are greatly oppressing our poor people, by attacking their persons and their goods in many ways: ruining the fields, pillaging, robbing their hosts, raping women and girls, robbing and murdering travellers, coming and going, to our great regret and displeasure; and in order to put an end to this pillaging and to relieve our subjects, we desire with our whole heart, that this should be dealt with swiftly.”

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304 Valérie Toureille These legislative developments are not surprising. They are the consequence of a particular set of circumstances: thousands of men were left scattered on the roads of the kingdom between the great armed confrontations. The issue was of course intensified in France, since the Hundred Years’ War took place on French soil. Beside the great classic feats of arms such as battles and sieges, other forms of warfare took place, in the margins of the King’s war: private wars, and plundering and pillaging by unemployed men-​at-​ war. With his ordonnance of 1439, the king formally placed violent men-​at war outside the law.79 Yet violent and armed theft—​brigandage—​was dealt with severely via public legislation, as the French king tried to impose a monopoly of armed force and to stress that he was the only one who could declare war.80 The same concerns produced similar effects in other areas too. In the Holy Roman Empire at the start of the sixteenth century, the great criminal ordinance known as the “Caroline” was promulgated by Charles V in 1532, and prescribed the death penalty for bandits of the highway and all “Raubritter” (brigands of noble blood). From this moment, legislative efforts redoubled to deal with hardened thieves and highwaymen. These categories mapped onto that of the serious criminal, and came within the purview of royal or imperial officers, as public crimes. The effort needed to restore and maintain public order was one of the foundations of the revival of public authority. The criminalization of theft, whether violent or organized, or both, is one of the keys to understanding the hierarchies of crime which were constructed at the end of the Middle Ages. The reinforcement of public authority was underpinned by a focus on crimes deemed to threaten the “common good” and good government.

Conclusion

Medieval violence must be understood in the context of a society imbued with ideas of honour, respect for hierarchies, and promises. The worst sinner was not the murderer, but the traitor, Judas, who betrayed Christ, or Ganelon who betrayed his king. The Arthurian figure of Mordred, accused of kidnapping the wife of Arthur and thus unleashing a war against his lawful lord, is demonized along the same lines. In many ways, theft was a greater crime than a homicide which could sometimes even be pardoned if shown to be committed in self-​defence or because of honour: theft was the result of betrayal. Theft harms the individual and the whole group. There were no insignificant thefts in the Middle Ages. Theft was a detestable crime, despicable in its very nature, and for which there could be no excuse. Collective anxiety about theft produced a response from the state, in the name of public order. This shift was not uniform across Europe. England and Normandy were precocious in this respect, drawing on the concept of the king’s 79 In 1445, the creation of “compagnies d’ordonnance,” which formed the first permanent royal army, meant that a substantial number of soldiers who were not yet fully integrated, roamed the country: Toureille, Vol et brigandage, 152–​53.

80 Justine Firnhaber-​Baker, “Formulating Opposition to Seigneurial War in the Parlement de Paris,” in La Formule au Moyen Âge, ed. Elise Louviot (Turnhout: Brepols, 2012), 207–​18.

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peace. In England, from the twelfth century, the new royal legislation placed homicide on the same level as theft in the category of felonies. But at the end of the Middle Ages, the harshest responses to theft developed, and hardened criminals and violent thieves (robbery) were pursued mercilessly.

Selected Secondary Sources

Bellamy, John G. Crime and Public Order in England in the Later Middle Ages. Toronto: University of Toronto Press, 1973. Blanshei, Sarah Rubin. “Crime and Law Enforcement in Medieval Bologna.” Journal of Social History 16 (1982): 121–​38. Dean, Trevor. Crime and Justice in Late Medieval Italy. Cambridge: Cambridge University Press, 2007. Dean, Trevor. Crime in Medieval Europe, 1200–​1550. Harlow: Longman, 2001. Hanawalt, Barbara. Crime and Conflict in English Communities, 1300–​1348. Cambridge: Harvard University Press, 1979. Hudson, John. The Formation of the Common Law: Law and Society in England from the Norman Conquest to Magna Carta. New York: Longman, 1996. Kaeuper, Richard W. War, Justice and Public Order: England and France in the Later Middle Ages. Oxford: Clarendon Press, 1988. Lambert, Tom B. “Theft, Homicide and Crime in Late Anglo-​Saxon Law.” Past & Present 214 (2012): 3–​43. Mayke de Jong. The Penitential State: Authority and Atonement in the Age of Louis the Pious, 814–​840. Cambridge: Cambridge University Press, 2009. Muchembled, Robert. Le temps des supplices, de obéissance sous les rois absolus: XVe-XVIIIe siècles. Paris: Armand Colin, 1992. Powers, James F. The Code of Cuenca: Municipal Law on the Twelfth-​Century Castilian Frontier. Philadelphia: University of Pennsylvania Press, 2000. Toureille, Valerie. “Larrons incorrigibles et voleurs fameux. La récidive en matière de vol ou la consuetudo furandi à la fin du Moyen Age.” In Le criminel endurci. Récidive et récidivistes du Moyen Age au XXe siècle, edited by F. Briegel and M. Porret, 43-53. Geneva: Droz, 2005. Toureille, Valerie. Vol et Brigandage au Moyen Âge. Paris: Presses universitaires de France, 2007. Wormald, Patrick. “Giving God and King their Due: Conflict and Its Regulation in the Early English State.” In Legal Culture in the Early Medieval West. Law as Text, Image and Experience, 333–​55. London: Hambledon, 1999. Zorzi, Andrea. “Aspects de la justice criminelle dans les villes italiennes à la fin du Moyen Âge.” Déviance et société 14 (1991): 439–​54. Zorzi, Andrea. “The Judicial System in Florence in the Fourteenth and Fifteenth Centuries.” In Crime, Society and the Law in Renaissance Italy, edited by Trevor Dean and K. J. P. Lowe, 40–​58. Cambridge: Cambridge University Press, 1994.

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“THIS MAY BRING ABOUT MANY EVILS”: THE JEWISH MINORITY COMMUNITY IN MEDIEVAL EUROPE FACING ITS OWN THIEVES Ephraim (Effie) Shoham-​Steiner Introduction And the thieves that go from one house to another take the “hand of the dead” with them. [Once they enter a house] they place it in the middle of the room and this way it causes everyone in the house to shiver and to fall asleep. And they take four lit candles and they throw on the candles diamond dust. Then they place the candles in the four corners of the house and it seems to the house dwellers that the house is rolling and moving. And when the thieves wish, they take the said hand of the dead and place it on the heart of the owner of the house and they ask him where he has hidden the keys to the gold and the silver hidden in the house and he tells them about all his belongings.1

This Hebrew entry is one of a few entries in a collection of practical potions, spells and amulets found in a manuscript copied by a Jewish Ashkenazi scribe in the fifteenth-​ century south Italian city of Trani. It describes in full detail how to make use of magical means not only to cast a spell on members of a household in order to break-​in and steal goods, but also how to use magic in order to obtain important information about the household vault, with all its gold and silver valuables.2 As scholars of crime in medieval Europe have noted, theft and thieving were by far the most common crime in medieval times.3 In the urban environment, where most Jews in medieval Europe lived, food, produce and livestock were stolen as a matter of course. Outside the towns, theft from wayfaring individuals in the countryside was also rather common, and travel was considered by many to be unsafe, especially if one 1 Paris, Bibliothèque Nationale de France, MS Hebr. 1122, fol. 4v. All translations of Hebrew texts in this article are my own unless otherwise indicated.

2 We cannot say if the information it discloses was ever in use or if the person who wrote it made use of any of the potions or materials he discussed in the text. It seems more likely that it was part of a body of knowledge that circulated among learned individuals in the fifteenth century.

3 In the official website of the National Archives in London we may find the following statistic based on the crimes committed in eight English counties over almost fifty years (the lifetime of an average individual) between 1300 and 1348: theft: 73.5 percent of all offences; murder: 18.2 percent; receiving stolen goods: 6.2 percent; arson, counterfeiting coins, rape, treason, and all other crimes: 2.1 percent. “Were the Middle Ages Lawless and Violent?” National Archives, www.natio​ nala​rchi​ves.gov.uk/​educat​ion/​candp/​crime/​g01/​defa​ult.htm (accessed January 4, 2011). See also Valérie Toureille’s article in this volume.

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carried valuables or money.4 As William Chester Jordan so aptly described the situation especially with regard to the high and later Middle Ages: “Theft in a society where surpluses were low was not a petty crime unless the coveted article or money was trivial in value, and theft then as now was often accompanied by serious physical violence. As a felony, therefore, it merited corporal punishment. Habitual thievery, by this logic, deserved the ultimate sanction, death.”5 A clear distinction must be made between what may be labelled as “petty theft” and what is called, to this very day, “grand larceny.” Petty theft, the equivalent of modern-​day shoplifting, was an everyday event that usually occurred in the marketplace. Throughout the medieval period, a large number of individuals, at times a vast percentage of the population, lived on the verge of sustainable existence, in dire economic need. Many of the common thieves of medieval Europe were driven by hunger and overall neediness. At a time characterized by what James Brodman has called the “constant run of beggars” and considerable poverty, especially in the wake of economic crisis like that of the late thirteenth century or after outbursts of the plague, food theft, theft of small items from market stands and pickpocketing market shoppers were all very common occurrences.6 Attempts to abolish this phenomenon in the general European sphere by casting harsher sentences and, as suggested above, even the death penalty on thieves by the various European legal systems (royal, noble, ecclesiastical or municipal) often backfired: the crowds present at the public hanging or maiming of thieves and pickpockets, an act designed to cast fear in the hearts of the felons and the larger public, often found their own pockets picked.7 Breaking into homes or establishments and commercial theft was also not a rare occurrence. Burglary and theft were not always preplanned, and might have occurred spontaneously when an opportunity presented itself, as when a building, such as a 4 In a tenth-​century Jewish source from Northern France (copied in a late thirteenth-​century manuscript) we read a vivid description of how a non-​Jewish criminal threatens to rob intercity travellers to Limoges of their possessions if he will not be paid for a murder he committed as a hired assassin operating at the behest of a former Jew. See Ephraim Shoham-​Steiner, Jews and Crime in Medieval Europe (Detroit: Wayne State University Press, 2020), 120–​27, and Appendix Four, 271–​74. 5 William Chester Jordan, From England to France: Felony and Exile in the High Middle Ages (Princeton: Princeton University Press, 2015), 16n47.

6 James Brodman, Charity and Welfare: Hospitals and the Poor in Medieval Catalonia (Philadelphia: University of Pennsylvania Press, 1998), 85. On poverty in medieval Europe, see especially Michel Mollat, The Poor in the Middle Ages, trans. Arthur Goldhammer (New Haven: Yale University Press, 1986). See also: Robert Jütte, Poverty and Deviance in Early Modern Europe (Cambridge: Cambridge University Press, 1994), 21–​44; Gerhard Jaritz, ed., The Sign Language of Poverty, Forschungen des Instituts für Realienkunde des Mittelalters und der frühen Neuzeit. Diskussionen und Materialien, 8 (Vienna: Österreichischen Akademie der Wissenschaften, 2007). 7 On the marketplace as a scene of crime and of punishment, see James Masschaele, “The Public Space of the Marketplace in Medieval England,” Speculum 77 (2002): 383–​421.

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308 Ephraim (Effie) Shoham-Steiner house, an animal shed, a workshop, a warehouse or a store, were left unattended or unlocked. This situation was described by the Talmudic sage Raba in BT Sukka (26a): “A broken fence beckons the thief,” now a Hebrew idiom based upon this observation. Much less common, however, were preplanned burglaries, which involved such activities as choosing potential victims, gathering information, organizing a team, maintaining secrecy and discretion among all the culprits as well as preparing tools for the break-​ in, a getaway plan and securing potential buyers for the stolen goods. An essential component of any burglary scheme, especially a large-​scale one, was a partnership between the actual burglar and someone who would buy the stolen goods. Evidence from Jewish sources from the early eleventh century demonstrates this very clearly.8 In the early medieval period merchants were many times willing to buy goods with very few questions as to the origins of those goods. Early medieval legal systems such as the laws regarding the purchase of goods in the German Empire in the eleventh century more often than not sanctioned these transactions. Thus the Marktschutzrecht (market decree)—​formerly known as Hehlerrecht—​formulated in the chancellery of Emperor Heinrich IV (1084–​1105) offered protection to merchants in whose possession stolen goods were found. Similarly contemporaneous Jewish sources also use the term Takanat ha’Shuk (the market decree) drawing on an earlier Talmudic concept and applying it to medieval use. If the person from whom the goods had been stolen found them in the merchant’s inventory and wished to regain possession, the original owner had to compensate the merchant for sometimes half and sometimes the entire value of the goods.9 Some of the merchants in these early times were Jews. In this chapter, I wish to discuss two case studies that deal with Jewish involvement in theft and the attitudes towards theft among some Jewish rabbinic scholars in the High Middle Ages. The first case study is from the realm Jews referred to as Ashkenaz, namely the greater area of the German-​speaking lands in medieval Europe. The other is from the realm known in Hebrew as Sefarad, relating to the Jewish presence in the Iberian peninsula. The first case study comes from a Jewish ethical treatise from the early twelfth century that discusses, among other matters, penance for theft. The treatise, by Rabbi Shmuel ben Kalonymus of Speyer, was preserved in the larger ethical compendium known as “Sefer Hasidim (The Book of the Pious)” attributed to Shmuel’s famous son, the thirteenth-​century German Jewish Rabbi Judah ben Shmuel he-​Hasid (the Pious) of Regensburg.10 Readers may be familiar with the Christian manuals of penance. 8 Ephraim Shoham-​Steiner, “Making a Living in Early Medieval Ashkenaz,” in Jüdische Kultur in den Schum-​Städten. Literatur –​Musik –​Theater, ed. Karl-​Erich Grözinger (Wiesbaden: Harrassowitz, 2014), 64–​82.

9 Michael Toch, Die Juden im Mittelalterlichen Reich, Enzyklopädie deutscher Geschichte, 44 (Munich: R. Oldenbourg, 1998): 109–​11. See also: “Takant ha’Shuk,” in Otzar Yisrael Encyclopedia, vol. 10, ed. Judah David Eisenstein (New York: Pardes, 1942), 300. (Hebrew).

10 On this book its provenance and its impact, see Elisheva Baumgarten, Elisabeth Hollender, and Ephraim Shoham-​Steiner, “Introduction: Sefer Ḥasidim: Book, Context, and Afterlife,” special issue, Jewish History 34 (2021): 1–​14.

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This Jewish source, written in medieval Hebrew and known as “Sefer ha’Yirah (The Book of Awe),” resembles the manuals of penance but also includes text that read more like admonishing sermons and short homilies designed to reproach ethically questionable behaviour. Analyzing this source exposes some of the moral problems facing those who were involved in theft and wished to make amends. The text reveals involvement in theft as well as the attitudes of Jewish ethical writers and communal authorities when confronted with it. The second source from Sefarad is an untypically well-​documented and firmly dated case from a legal/​halakhic responsum written by a Jewish Aragonese rabbi. In this case study the responsum discusses a preplanned burglary that occurred within the Jewish community of Daroca in the Crown of Aragon in the first third of the fourteenth century.11 The target of the break-​in was no less than the local synagogue and the burglar’s aim was to steal silver ornaments that decorated the case that protected the sacred Torah scrolls within the Ark in the sanctuary.12 The medieval Jewish legal responsa, based on the Jewish rabbinic code of law known as halakha, serve as one of the main sources of knowledge about crime within the medieval Jewish communities. Many of the responsa served as legal precedent literature that circulated in Hebrew and Aramaic among Jewish learned men and legal adjudicators.13 It was therefore highly common that copyists of this material, in an attempt to abridge and abbreviate it, dropped the particulars of the cases obscuring many details to the modern scholars. The Daroca case survived this process, for reasons we can only speculate about, and the material we have seems to be the entire dossier of documents that arrived at the table of the rabbinic adjudicator to whom it was addressed, Rabbi Yom Tov ben Avraham Asevilli of Zaragoza (ca. 1260–​1320), better known by his Hebrew acronym Ritva.14 Although the incident occurred and was adjudicated in 11 On Jewish life in the Crown of Aragon in this period, see the late Yom Tov Asiss’s authoritative study: Yom Tov Asiss, The Golden Age of Aragonese Jewry: Community and Society in the Crown of Aragon, 1213–​1327 (Oxford: Littman Library of Jewish Civilization, 1997). 12 The Christian equivalent of this would be to break into a church and rob the precious metal jewelry from a reliquary in close proximity to the high altar or in the apsis. On Jews accused of church robbery in medieval England, see Zefira Entin-​Rokeah, “The Jewish Church Robbers and Host Desecrators of Norwich (ca. 1285),” Revue des Études Juives 141 (1982): 331–​62.

13 On this genre, see Peter J. Hass, Responsa: Literary History of a Rabbinic Genre (Atlanta: Scholars, 1996). Although this book has many shortcomings, it is to date the only comprehensive guide in English to this vast literature. For a critique of this book, see Haym Soloveitchik, “Responsa: Literary History and Basic Literacy,” AJS Review 24 (1999): 343–​57. On the use of Jewish legal responsa literature for researching medieval crime see Ephriam Shoham-​Steiner, Jews and Crime in Medieval Europe (Detroit: Wayne State University Press, 2021), 27–​31.

14 The responsum appeared in the printed edition of the Rabbi Yom-​Tov’s responsa edited by Joseph Kafah and published from a manuscript in Jerusalem in 1959: Yom-​Tov ben Avraham Ishbili, Responsa, ed. Joseph Kafah (Jerusalem: Mosad Ha’rav Kook, 1959), 187–​90. Rabbi Kafah used Jerusalem: The National Library of Israel, MS. Heb. 8676=​4 (formerly MS Jerusalem Joseph Kapah, 84), fols. 80b–​82ra, as the basis for his edition. The MS can be viewed online at the NLI using this URL: The National Library of Israel, http://​web.nli.org.il/​sites/​NLI/​Engl​ish/​dig​ital​libr​ary/​pages/​ vie​wer.aspx?&pres​ento​rid=​MANU​SCRI​PTS&docid=​PNX_​M​ANUS​CRIP​TS00​0182​769-​1#|FL4​0946​ 449 (accessed April 10, 2021).

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310 Ephraim (Effie) Shoham-Steiner Sefarad, it is germane to a broader view on Jewish life in medieval Europe, both in Iberia and north of the Pyrenees in western Europe.15 Thus, looking at these cases may give us a more general European Jewish perspective on the matters at hand. By and large, Jews in Europe enjoyed a rather extended measure of legal inner communal autonomy regulated by charters and privileges received from royal, noble, and ecclesiastical rulers. Jewish tribunals that consisted of both laymen and individuals with a more learned background in the Jewish inner legal code of halakha could pass sentences regarding economic matters. Usually, capital crimes were not delegated to these tribunals. Nevertheless, most of the cases that came down to us are rulings of tribunals that passed their judgment in cases when charges were pressed by one party against another with very little third-​party interference on behalf of communal authorities. Jewish law as coded in scripture and in the vast Talmudic literature has much to say on these matters, but given the diasporic and fragmented nature of the Jewish existence in the medieval period up until the late medieval and early modern period there was no uniform code of Jewish law that encompassed all rules, regulations, and legal precedents until the compilation of the great codices of the fourteenth century.16

Theft and Thieves in the Twelfth Century “Book of Awe” and in “The Book of the Pious”

In one of the opening chapters of Sefer Hasidim, we find several paragraphs that deal with the issues of repenting thieves and the problems they faced. This section of the book is attributed by scholars not to Rabbi Judah the Pious of Regensburg (d. 1217), the man most associated with Sefer Hasidim, but rather to his father, Rabbi Shmuel ben Kalonymus “the Pious,” referred to at times as a holy man (Kadosh) and prophet (Navi), speaking to the man’s mystical qualities and unique piety.17 Unlike his son Rabbi Judah, who sought to train a close circle of dedicated pietists, Rabbi Shmuel was 15 Ritva, in whose archive the dossier survived, was not the only halakhic adjudicator approached in this matter. From a reference in the responsa by Ritva we learn that another Jewish halakhist, Rabbi Asher ben Yechiel (Rosh), was also asked about the matter and had ruled differently. Rabbi Asher, originally from Cologne in the German Empire, immigrated from the Rhineland to Toledo in 1303, after having lived studied, and taught most of his life in Ashkenaz. On the life of Asher ben Yehiel, see Avraham H. Freimann, Rosh: Rabbenu Asher ben Yehiel and His Descendants, Their Lives and Works, trans. Menachem Adler (Jerusalem: Mossad Ha-​Rav Kook, 1986).

16 For a survey of medieval European Jewish Law before the fourteenth century in both Iberia (Sefarad) and in the Franco-​German realm (Ashkenaz), see the contributions in An Introduction to the History and Sources of Jewish Law, ed. Neil S. Hecht et al. (Oxford: Clarendon Press, 1996), especially: Eliav Shochetman, “Jewish Law in Spain and Halakhic Activity of Scholars before 1300,” 271–​98; Avraham Grossman, “Ashkenazim to 1300,” 299–​322; Stephen M. Passameneck, “Toward Sunrise in the East 1300–​1565,” 323–​58. 17 Ivan G. Marcus, Piety and Society: The Jewish Pietists of Medieval Germany (Leiden: Brill, 1981), 135–​43.

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more of a social reformer and a critic of the ethical habits of his twelfth-​century Jewish contemporaries, a trait that may have earned him some enemies.18 The first section of the Parma manuscript edition of the Sefer Hasidim, referred to as Sefer Ha’yir’ah and attributed to Rabbi Shmuel, is designed as a manual for those who seek to be informed, God-​fearing individuals.19 The final paragraphs in this short compendium consist of a few remarks that are almost all related to theft and thieving, and to problems that arise when one wishes to repent of this transgression. The first article deals with the need to provide the repenting thief with a clear avenue to repentance and contrition and to ensure that his path is not blocked by unnecessary obstacles:

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

He who had stolen or robbed or taken and was placed under a ban and as a result he had returned [i.e. repented]. Or if he wasn’t placed under a ban but there are witnesses that attest to the fact that he had returned the stolen objects. It is not permitted to talk vilely about him and he and his deeds should not be publicly discussed, even if he had sworn an oath that he had not stolen goods and later he had returned what he actually did take, he should not be shamed. We should not bar the door for those who seek penance.20

The concern voiced here speaks of what may have transpired when individuals became conscious of their misconduct and tried to make amends for their wrongdoings. Ridiculing these people, questioning the authenticity of their remorse, and just plain gossiping about them was apparently common behaviour and a major deterrent in the path to repentance.21 Rabbi Shmuel, in his attempt to encourage contrition and make amends, feared that the public mechanisms designed for the very purpose of deterring individuals from transgression may actually backfire and stand in the way of true penance. Ridicule, public shaming, and becoming the talk of the town were all powerful mechanisms devised to discourage crime, especially in a small and tightly knit society like the medieval Jewish Northern European communities in Ashkenaz.22 The power and efficiency of these mechanisms were correlated with maintaining a public image of decency. Individuals who did not care about their public image as “decent” or 18 Ephraim Shoham-​Steiner, “Exile, Immigration and Piety: The Jewish Pietists of Medieval Germany, from the Rhineland to the Danube,” Jewish Studies Quarterly 24 (2017): 234–​60.

19 Marcus, Piety and Society, 136–​43. On how Sefer Hasidim came into being, see Ivan G. Marcus, Sefer Hasidim and the Ashkenazic Book in Medieval Europe (Philadelphia: University of Pennsylvania Press, 2018). 20 Sefer Hasidim MS Parma H 3280, ed. Judah Wistinezki (Berlin: Mekitzei Nirdamim, 1891), §20.

21 Interestingly, we hear similar concerns at this time from individuals who were reminded that they had accepted baptism during the crusade and had returned to the Jewish faith. Mordechai ben Hillel, Sefer Ha’Mordechai on Tractate Baba Kama, ed. Avraham Halperin (Jerusalem: Machon Yerushalayim, 1992), referring to 91B §210–​211. 22 On the size of these Jewish communities, see Kenneth Stow, Alienated Minority: The Jews of Medieval Latin Europe (Cambridge, MA: Harvard University Press, 1992), 157–​95; Robert Chazan, The Jews in Medieval Western Christendom (Cambridge: Cambridge University Press, 2006), 169–​208.

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312 Ephraim (Effie) Shoham-Steiner “respectable” were not affected by these measures. Individuals living within a criminal counter-​society may have even enjoyed a higher status with the rise in the number of accusations, innuendos, and reports of “shameful” behaviour they carried with them. In the small Ashkenazi communities both the constructions of social deviance, as well as the prosecution of individuals happened many times through gossip, rumour, and public shaming in the community enhanced by legal, ethical, and religious norms. As we can see in the quotation above one of the most effective tools in this respect was the public ban (“herem”).23 According to Rabbi Shmuel, even if one had crossed the hurdle of guilt and remorse and embraced the path to penance, other matters needed to be addressed. In the following paragraphs, Rabbi Shmuel outlined various instances where transgressors that had stolen or withheld communal tax money under false pretenses were moved by remorse and wished to make amends, but the circumstances were problematic. For example, what should be done when a man had stolen land from another and upon his death it had passed on to his heirs? Once the heirs realized the land was stolen, and if they wished to make amends, how could they return it? Another example involved a man who stole money from others, but in order to clear his conscience he didn’t return the stolen sum but rather gave much money to charity. How should he be regarded? Yet another example discussed a man who miscalculated a business deal and discovered that he had profited unjustly, but his business partner had already travelled afar and could not be accessed and properly compensated. May he keep the money? In all these instances Rabbi Shmuel insists special efforts be made to return the stolen property or its monetary worth, regardless of how high the sum is, and even if not only time has passed but also the theft victim has died and those receiving the compensation will be the decedents of the offended. Moreover, he suggests that knowledge of the crime and failure to make amends will result with both the culprit and those who found out and did nothing about it to be sentenced in Gehena in the afterlife. Rabbi Shmuel also demanded that people do not employ a policy of “general accounting” in these matters and expect to clear their conscience by enlarging their alms to the poor rather than addressing these matters head on. In his opinion, only by owning up to the transgression and by direct compensation to the wronged party or their direct descendants may set the ethical records straight.24 23 On this socio-​judicial tool, see Gideon Liebson, “The Origin and Development of the Anonymous Ban (Ḥerem Setam) During the Geonic Period,” Shenaton ha-​Mishpat ha-​Ivri: Annual of the Institute for Research in Jewish Law 22 (2001): 107–​232 (in Hebrew); Grossman, “Ashkenazim to 1300,” 309; Andreas Gotzmann, “Die Grenzen der Autonomie: der jüdische Bann im Heiligen Römischen Reich,” in Juden im Recht. Neue Zugänge zur Rechtsgeschichte der Juden im alten Reich, ed. Andreas Gotzmann and Stephan Wendehorst, Zeitschrift für historische Forschung, 39 (Berlin: Duncker & Humblot, 2007), 48–​80. 24 Wistinezki, ed., Sefer Hasdim, §21–​22. On similar ideas disputed in the University of Paris in the 1330s, see Lawrin David Armstrong, The Idea of a Moral Economy: Gerard of Siena on Usury, Restitution, and Prescription (Toronto: University of Toronto Press, 2016).

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As is evident from these dense but rather expressive examples, the definition of financial crime was much broader than theft and larceny, and its consequences correspondingly complex. The twelfth-​century Jewish sage Rabbi Shmuel ben Kalonymus of Speyer tried his best to supply answers to even the most extreme cases by using elaborate techniques of reparations, penance, and humbling experiences designed to instill contrition. The relatively lengthy discussion of these matters within a short yet dense and powerful tractate that stresses the manner in which one can be a true God-​fearing Jew is telling. It defines transgressions of a wide financial spectrum as acts of theft and stealing, denying almost anyone the possibility of a clear conscience. We should remember however that this text originates from among the extremely pious and one of the most penitently preoccupied circles of medieval Ashkenazi Jewish society. Therefore, it seems likely that certain financial transgressions that some pious individuals may have interpreted as theft were an everyday occurrence in medieval European Jewish society in the time of Rabbi Shmuel. This should not be surprising, as in a business-​oriented community where business transactions, financial negotiations, trade, interest, revenue, and taxation were daily matters, transgressions in this sphere were to be expected. Moreover, what seemed to one party to be normal behaviour was seen by another, self-​proclaimed, pious individual as a violation of ethical codes. By the early fourteenth century, when the Parma manuscript of Sefer Hasidim was copied, Shmuel’s tractate (Sefer Ha’yirah) was incorporated into the more popular work attributed to his son, Rabbi Judah the Pious. We do not know who were the earlier readers of this work. It may well be that only a small circle of the pietistic adherents of the Kalonymide family was exposed to these twelfth-​century ideas. We may also speculate that Shmuel’s position as a harsh social critic of Rhineland Jewry, discussed above, may have caused this tractate to fall into relative obscurity before it made its way into Sefer Hasidim, which had a more substantial circulation and impact.25 We cannot rule out the possibility that the reason the early fourteenth-​century copyist of the Parma manuscript included Shmuel’s work in Sefer Hasidim was to redeem it from obscurity. Interestingly, most of the victims of theft described in this discussion are Jews. This is not to say that non-​Jews were off-​limits to Jews involved in crime. Evidence of such involvement can be found in Jewish writing from the tenth-​ and eleventh-​century sources as well.26 However, Rabbi Shmuel also dealt with the potential carelessness about morality when stealing from Gentiles: And there is the matter of stealing from a Gentile. This may bring about many evils, far more than the same with an Israelite. For when a Jew will come to that place [stealing from a Gentile] they [the Gentiles] will steal back. And thus this one sinner will cause

25 On this see Marcus, Sefer Hasidim and the Ashkenazic Book; Saskia Dönitz, “Observations on the Manuscripts of Sefer Hasidim,” Jewish History 34 (2021): 15–​30. 26 Masschaele, “Public Space of the Marketplace,” 417; Shoham-​Steiner, Jews and Crime, 35–​71.

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314 Ephraim (Effie) Shoham-Steiner harm to the rest of the Jews, furthermore he will tamper with the good reputation Jews had in that town.27

According to Rabbi Shmuel, stealing from Gentiles is not only morally unacceptable, it is in fact ethically much worse than stealing from a Jew because of the collateral damage it may incur. In his opinion, the damage to the greater Jewish community as a result of a Jew who steals from gentiles is twofold. Since Gentiles view Jews as a group and tend to pass collective judgment on them, it is enough for one Jew to transgress to have the entire Jewish population blamed for this individual’s shortcomings. This may result in Jews collectively losing their face with Gentiles, as well as being seen by Gentiles as a license to steal from Jews by way of reciprocity. The problem underscored by Rabbi Shmuel is an issue that seems to have been absent from the discussions of the tenth-​and eleventh-​century sources. In the earlier sources we see only scant evidence of Jewish leaders reprimanding their co-​religionists for stealing from people of the outside group. This may have to do with the different nature of the sources, since most of the earlier sources are legal/​ halakhic and not ethical like Rabbi Shmuel’s composition. But it may also reflect a change both in the general atmosphere and in some Jews’ perception of how they were viewed by non-​Jews. Rabbi Shmuel seems apprehensive about the change in attitude towards Jews as a whole. Beyond the prospect of the schande (shame) lay another problem, similar in nature to the other issues on Rabbi Shmuel’s list. If one Jew steals from Gentiles, other Jews may be affected by the wrongdoer’s transgression, a fact that the thief may not be aware of, or impartial to, though bearing the blame for its outcome. Once again, we see that theft undermined community—​but it did so in particular ways because of the persecution and suspicion that Jews already faced. This fact became all the more eminent to a pious Jewish ethical thinker like Rabbi Shmuel, who was part of the generation born to the survivors of the violent events of 1096, during which Jews were attacked by the crusading mob, especially in the Rhineland. In some cases the itinerant crusaders were joined by locals that saw the riots and mayhem as an opportunity to exact violence against the local Jewish population. Although not explicitly stated in his text, it seems logical that as part of the Jewish self-​scrutiny in the wake of the events, thoughts about possible ethical shortcoming on the Jewish-​Christian fault line may have influenced Rabbi Shmuel’s thought and writing. In Rabbi Shmuel’s mind the Jews that would be affected in the wake of a Jewish wrongdoer’s deeds were from a much wider circle and could include the town’s entire Jewish population. The presumption behind his ethical writing is that on some level, even the criminal transgressors share some level of decency and although they are bent on transgression even, they are basically morally inclined and not all of them are dismissive of moral matters. Thus, it is worthwhile to alert them to the potential damage of stealing from non-​Jews. 27 Wistinezki, ed., Sefer Hasdim, §23.

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The “Walking Dead”—​Property, Robbery, and the Limits of Repentance Rabbi Shmuel’s attempts were neither the first nor the final efforts made by Jewish ethical writers to encourage thieves and individuals who seized the property of others to repent and make amends. Sefer Hasidim provides us with a few examples of ethical thrusts made by Rabbi Judah the Pious (Rabbi Shmuel’s son), designed to spur the circle of his adherents to repent of their crimes. One of the favourite means employed in the book is the use of exempla, stories designed to edify and educate the pietistic disciples and adherents, and possibly even a larger circle of listeners and readers. In one of the less quoted versions of Sefer Hasidim that was never published in print but remained in manuscript form, we find the following exemplum fashioned as a ghost story: It is told about one who was wandering in the forest on a moonlit night. He chanced upon a person and he noticed that this person was dead so he wanted to flee. The person called out to him and said, “Don’t run away from me, I will not harm you; you know me, I’m so and so the son of so and so.” The man replied, “Yes, but aren’t you dead?” The spirit then answered, “Because of a field that belonged to a certain person, which I have taken, I am not left to rest, and I’m tormented in the forests.”28

This ghost story, whose resemblance to other medieval ghost stories told outside the Jewish pale is apparent to the Jewish storyteller, is rather self-​explanatory; the ghost of the deceased person cannot properly rest in his grave nor arrive in the afterlife because of the sins he had committed while alive. The interesting part, however, is the one that follows. It is not clear whether the person writing this part is Rabbi Judah himself, the disciple who heard the story from him, or the later copier of the manuscript; but it is definitely worth our attention, since it puts the ghost story in a larger context and also discusses the theological aspects of the moral of the story. I heard a similar story: When a certain Gentile died (“nifgar” –​literally meaning, “became a carcass” this term is derogatory and intended to demarcate the difference between Jew and Gentile) the dead man’s servant was walking and chanced upon him in the night. The dead man said, “Don’t run away from me, I shall not harm you.” The servant answered, “But you are dead, are you not?” The man answered, “Indeed I am! But I am tormented, for I have driven someone off his land and taken it by force. Now please go to my wife [or my heir] and ask that the land be returned to its rightful owner.” The servant replied, “But they won’t believe me!” The dead master answered, “Tell them to go tomorrow to a certain place and they will see me there.” The servant returned to town and told everyone about the encounter with the ghost of his dead master and said, “This is what the man who died a few days ago said to me.” He (=​the servant) was asked, “Did he give you a sign?” The servant replied, “Yes, he had told me that if you go to a certain place, you will see him and then you will believe me.” So, they went to that place and they saw the dead man and they went looking for him in his grave, but he was not to be found. The servant then told them what the dead master had told him, “Return the land back to the man who was driven off it—​then my master will rest in peace.”

28 New York: Jewish Theological Seminary, MS 2499, fol. 12r.

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316 Ephraim (Effie) Shoham-Steiner And we should wonder: What good is all this worth in that world [the afterlife], for the man who died has not repented and he had not proclaimed on his deathbed that the land should be returned? We should draw a distinction (“hiluk”), if he [the dead man] was deserving and he was banished from the Garden of Eden for his sins or if he is tormented or tortured by fangs or by evil angels that jest with him, it may actually benefit him if someone prays on his behalf or gives money to charity, or if he (=​the dead man) had stolen and the heirs return the stolen property. But if he did not merit at all, anything that will be done [by family members] after his death is in vain, for he may not be delivered unless he had decreed in his lifetime and the heirs followed suit.29

The story and the ethical discussion that follows are enlightening. The purpose of the meeting between the dead and the living in both stories is to convey a message to the heirs of the master’s estate. Its intention is to help deliver the dead master from his otherworldly torments.30 In the final paragraph, the writer attempts to distinguish between the two versions of the story in order to prompt people to abstain from thieving, or at the very least repent on their deathbed, making sure to make amends for financial and property transgressions prior to their deaths. It begins by questioning the purpose of the dead revealing themselves to the living, if the living cannot intercede in any way on their behalf. The author suggests that a line should be drawn, distinguishing between he who was deserving (“zakhah”) and he who was not (“lo zakhah”). The one who was deserving is the one who was either banished from the Garden of Eden, meaning he was ostensibly deserving a proper afterlife but was banished from it on account of a relative minor blemish, or if this person is being tormented in the afterlife. It is this person’s soul that might benefit from intervention and intersession by relatives or friends, although the nature of the pre-​existing merit is not disclosed in the text. It also stands to reason that the difference underscored in the stories is a difference between Jews and non-​Jews. While the Gentile tormented in the afterlife attempts to change his fate, the Jew in the first story only discloses information about the torments but does not attempt to remedy the matter or make any suggestions. Perhaps the dead Jew left that part to the pious wise men. It is as if the Jew has accepted his fate, or was assured that his torments were merely temporary, for according to the famous teaching of the Rabbinic Sages “all Jews (even sinners) are promised to be accepted in the afterlife,”31 while the Gentile expressed his inability to accept the verdict in the afterlife. In any event, and regardless of this discrepancy between Jew and Gentile, it is clear that 29 New York: Jewish Theological Seminary, MS 2499, fol. 12r.

30 For more information about medieval attitudes to ghosts, see Jean-​Claude Schmitt, Ghosts in the Middle Ages: The Living and the Dead in Medieval Society, trans. Teresa Lavender Fagan (Chicago: University of Chicago Press, 1998), 171–​94. On the ghost stories in Sefer Hasidim, see Eli Yassif, The Hebrew Folktale: History, Genre, Meaning, trans. Jacqueline S. Teitelbaum (Indianapolis, University of Indiana Press, 1999), 351–​70; Ido Peretz, “Ghost stories in Medieval Hebrew Folktales: The Case of Sefer Hasidim and Sippurei Ha-​Ari,” in With Both Feet on the Clouds: Fantasy and Israeli Culture, ed. Danielle Gurevitch (Boston, MA: Academic Studies, 2012), 220–​47. 31 Mishna, Sanhedrin, 10.1.

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the double exemplum is told also as a cautionary tale—​those who steal or embezzle someone else’s property will suffer in the afterlife, either temporarily or eternally. The moral conclusion is diametrically opposed. Neither story provides us with the resolution of the matter. The ethical discussion suggests that the Jew, being of a meritorious people (it is after all a Jewish source that relays the story), will eventually be delivered from torment, while the Gentile has no such hope. I imagine that many Jews who heard the story knew both the maxim from the Mishna mentioned above as well as a Talmudic maxim formulated in the story about Onkelos the proselyte. When deliberating whether to become a Jew or not, Onkelos a close relative of the notorious Roman Emperor (some Jewish prooftexts speak of Emperor Hadrian while others suggest it was Titus—​both emperors are notoriously remembered in Jewish tradition as persecutors of Jews and destroyers of Jerusalem, one in 70AD and the other in 135AD) used sorcery and raised the souls of a few prominent dead people. The Talmudic sages who told the story attempted to use these dead dignitaries to make a clear point: although the Jews may seem downtrodden in this world, they are nevertheless the chosen people, as is manifested in the hereafter. This maxim is put in the mouths of some quite prominent people, including the biblical Bal’am and the “evil-​doer in Israel,” an inner Jewish covert title used to refer to Jesus. When Onkelos conjures the spirits of these dignitaries, he has one question to ask: “Who is prominent in that world [i.e. the world to come/​the hereafter]?” He receives a uniform answer by all: “Israel [i.e. the Jews].”32 The message in the story in Sefer Hasidim is quite clear: even if a Jew is suffering in the afterlife, it is beyond doubt that the Jew is in a better place than his Gentile/​Christian counterpart. Even if Jews seem to suffer along with their Christian counterparts in the afterlife for theft and other mercantile transgressions for which they have not repented during their time among the living, nor made the necessary amends, for Jews this is only a temporary state. For unlike Christians, they have merit and are deserving of being delivered from their suffering. Beyond the Judeo-​Christian paradigm, the story’s moral is intended to bind together both the Jewish dead and their living kin in an attempt to undo crimes that had to do with stolen property. Regardless of the promise that all Jews are destined for the afterlife, one is however expected to make amends for the crime committed. The torment in the afterlife was put forth in the story for this purpose. The tale was clearly designed both to instill fear among its listeners and to prompt them to repent and cease their evil deeds, return stolen property, and compensate for losses caused either by them or their ancestors.

The Synagogue Break-​in in Daroca (Aragon)

Jewish communal authorities in fourteenth-​century Aragon, as in other communities across Europe in the medieval period, enjoyed relative autonomy when it came to 32 Babylonian Talmud, Tractate Gittin, 57a.

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318 Ephraim (Effie) Shoham-Steiner governing internal communal affairs.33 The case of the synagogue break-​in in Daroca is markedly different from the stories used to admonish audiences in medieval Ashkenaz. There are no questionable acts to ponder about in this case and very little room for deliberation about the ethical aspect. Let us look at the opening lines of the legal responsum by Rabbi Yom Tov ben Avraham Asevilli of Zaragoza (Ritva) as he writes to the Daroca communal authorities that opens the dossier on the matter found in his collection of legal halakhic response:34 To Daroca: The local Kahal [the Jewish community], may our Lord preserve sustain and aid them, have agreed to put forth a decree (“takana”) about Yizhak son of Avraham Medro and about Avraham son of Yossef son of Palas. These men were apprehended in the synagogue in Daroca at night, whilst all the community members were sound asleep in their beds. At the time of their arrest, they were in the midst of breaking the doors of the ark (“Heikhal”) that holds the Sifrei Torah [the Torah scrolls], in an attempt to steal the silver. Both were incarcerated, yet they managed to escape from custody. A takana was decreed regarding their case [as you shall see]. Furthermore, a takana was also set forth regarding Oro and Sabah as well as Nissim and Joseph and their mother Djamila [mother and siblings of the said Yizhak son of Avraham Medro]. [The decree] stipulates that they are prohibited from residing here in Deroca for a specific time. And they went and apostatized.35

The town of Daroca, located not too far from Zaragoza, modern-​day Spain, has retained its medieval appearance, although the local synagogue, where the events that are discussed here took place, is no longer distinguishable.36 In 1314, the year this matter unfolded, Daroca was part of the crown of Aragon and its local Jewish community, under 33 On Jewish self-​government in medieval Europe, see Louis Finkelstein, Jewish Self-​Government in the Middle Ages (New York: Jewish Theological Seminary of America, 1924); Yizhak F. Baer, “The Origins of Jewish Communal Organization in the Middle Ages,” in Studies in Jewish Thought, ed. Dan Joseph, 3 vols. (New York: Praeger, 1989), 1:59–​82; Aryeh Grabois, “The Leadership of the Parnasim in the Communities of Northern France in the Eleventh and Twelfth Centuries: The ‘Bon Viri’ and the ‘Elders of the City’,” in Culture and Society in Medieval Jewry: Studies Dedicated to the Memory of Haim Hillel Ben-​Sasson, ed. M. Ben-​Sasson, Robert Bonfil, and Joseph R. Hacker (Jerusalem: Historical Society of Israel, 1989), 303–​14 (Hebrew). On lay leadership see Ephraim Shoham-​Steiner and Elisabeth Hollender, “Beyond the Rabbinic Paradigm,” Jewish Quarterly Review 111 (2021): 236–​64. For a description of this process, see Stow, Alienated Minority, 162–​63. On the Jews in the Crown of Aragon, see Yom Tov Assis, The Golden Age of Aragonese Jewry: Community and Society in the Crown of Aragon, 1213–​1327 (Liverpool: Liverpool University Press, 2019).

34 According to the material found in Ritva’s dossier, the ban referred to in the text was enacted on Sabbath, Shevat 22 5074. This date corresponds with early to mid-​February 1314 (ca. February 17 1314). It is probable that the criminal act of the break-​in to the synagogue occurred either in late December 1313 or the early months of 1314. 35 Assis, The Golden Age of Aragonese Jewry. It seems the Medros converted and Avraham ben Palas was still deliberating his reaction to the Daroca decree, leaving his mother enough time to approach Daroca communal officials and present her plea.

36 After a long decline over the fifteenth century, in the spring of 1492 the local Jewish community was expelled, along with many others, by Spanish royal decree signed by King Ferdinand of Aragon and Queen Isabella of Castile. After the expulsion, the local synagogue and Jewish hospital were

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the wings of the larger community in the capital Zaragoza, was facing quite a scandal. As is evident from the above quotation, the older Yitzhak and the younger Avraham were caught red-​handed while breaking into the local synagogue. The purpose of the burglary was to steal the silver Rimonim or Tapuchim, the silver ornaments decorating the wooden case protecting the Torah.37 In another document from the dossier, the community voiced its revulsion from the act, not only because it was a blatant violation of the sanctity of the synagogue sanctuary, but also because the attempted theft displayed utter irreverence to both communal property and to the belief that God is all-​seeing (“they acted as if God cannot see them”). Having being caught in the act, the two thieves were put in communal custody and not in the city’s citadel. Since the target of the break-​in was the local synagogue and the perpetrators caught in the act were members of the Jewish community, the matter was seen as an internal one and external authorities, whether royal or not, were not involved. The communal custody was most probably no more than a cellar in one of the homes of members of the Jewish Kahal and thus easier to escape from. The summary of the case in the document is followed by a plea forwarded post factum by the mother of the young Avraham (one of the perpetrators) addressed to the communal authorities (“Kahal”). In her plea, the mother described the ban communal authorities had placed on the two thieves after they had been caught and then escaped communal custody. The ban was very severe and reflected the communal feeling of outrage as well as the feeling of being violated by the act of theft and humiliated by the escape from communal custody and justice. The mother asked that the ban placed on all those who were party to the theft be lifted, so that her son could repent and be reintegrated into the community after accepting due punishment and preforming penance. In her plea, Avraham’s mother, Sati, explained that unlike the Medro family members, who are described in her plea as notorious and infamous criminals in Daroca, constantly undermining communal authority, her son Avraham was a “good boy” who had fallen under a bad influence. Sati said that Avraham came from a good family, the Palas. She also stated that she herself was a midwife to all the Jewish woman in Daroca and “entrusted with all the matters of female dignity in Daroca.” Her husband, Avraham’s father, also preformed good deeds, volunteering to wash the dead prior to interment as an act of charity. Sati beseeched the community to lift the ban of excommunication levied arbitrarily upon her son and the other culprits as part of the communal decree (Takana) against the criminals who had broken into the synagogue and then escaped the communal arrest. She claimed that if her son were allowed to return he would accept any form of penance required, for he was greatly ashamed of his part in the matter. She warned the community that if the ban was not lifted, Avraham might join the Medro family, in leaving the Jewish fold entirely and apostatizing, possibly causing his younger sold and eventually razed in subsequent years. The medieval synagogue was located in what is now the parking lot next to the Colegiata Santa María de los Sagrados Corporales in Daroca.

37 Pomegranates or apples were commonly used as a metaphor to describe the silver ornaments that decorated the wooden case holding the Sephardi (Iberian) Torah scroll held in the ark.

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320 Ephraim (Effie) Shoham-Steiner sibling(s) to join him.38 As we saw earlier, the sense of community played a significant role in suppressing crime. It seems the ban of excommunication that the community had announced against the renegade culprits severed the last links that tied the Medro family to the Jewish community and drove them to apostatize and convert to Christianity. Sati believed that unlike the Medro’s, who were notorious criminals, her son would repent if offered a way out. She therefore used her petition to draw attention to the possibility of an undesirable “chain-​reaction” of apostasy in which other community members, not part of the criminal family, might follow causing much larger collateral damage than initially intended when placing the decree. She signalled to the communal authorities that, while their reaction to the crime was justifiable, the means employed were too harsh and disproportionate with regard to her son. Sati asked the community to “honour the almighty and themselves and do her a beracha” (a blessing –​possibly meaning to act with mercy and not according to the strict letter of the law) by lifting the ban so that Avraham may return to Daroca, accept any punishment levied by the community, and hopefully put thoughts of conversion out of his mind. Two items stand out in Sati’s appeal. She turned to the “honour of the Kahal members,” mentioning the fact that she is not only a practising midwife but also “entrusted with the honour of all the Jewish women.” In addition, in contrast to most texts such as these when women beseech courts and tribunals, there is no mention whatsoever of any tears, crying, or any other form of behaviour usually attributed to women hoping to inspire mercy.39 Sati’s words and behaviour may hint that this was in fact an implied threat, elegantly wrapped in the message she conveyed to the communal authorities when discussing her role as the communal midwife, using the word “honour.” The mention of Sati’s role as a midwife and as the person entrusted with the honour of the Jewish women of Daroca may have been her subtle way of reminding the male communal elite that Sati was privy to many of the possible secrets about sexual life, extramarital affairs, unwanted pregnancies clandestine births and even abortions in the Daroca community.40 This may explain why the community of Daroca hastened to send the query forward to Ritva asking that he legally intervene, rather than ignoring Sati’s plea to repeal what was obviously a just punishment. 38 The Hebrew text reads “.‫ ”אחיו‬With absence of phonetic punctuation in the text (“‫ )”ניקוד‬it is not clear if this word should be read “Eychav” (pl.) =​his siblings, or “Achiv” (sing.) =​his brother.

39 On the social, theological, and legal role of tears and crying as a female attribute in medieval Europe, see Kimberley Christine Patton and John Stratton Hawley, eds., Holy Tears: Weeping in the Religious Imagination (Princeton: Princeton University Press, 2005); Jean-​Claude Schmitt, “The Rationale of Gestures in the West: A History from the 3rd to the 13th Centuries,” in Advances in Nonverbal Communication: Sociocultural, Clinical, Esthetic and Literary Perspectives, ed. Fernando Poyatos (Amsterdam: John Benjamins Publishing Company, 1992), 77–​97; Elina Gerstman, ed., Crying in the Middle Ages: Tears of History (London and New York: Routledge, 2012).

40 On such cases in Medieval Iberia in the late thirteenth and early fourteenth century, see Shlomo ben Adrat, Responsa, ed. Haim Zalman Dymitrovski, 3 vols. (Jerusalem: Mossad Ha-​Rav, 1990–​2015), 1:531–​33, §1187. For a broader discussion on this, see Elisheva Baumgarten, Mothers and Children: Jewish Family Life in Medieval Europe (Princeton: Princeton University Press, 2004), 169–​83.

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It seems that originally, in an attempt that was supposed to ensure that no member of the community hinder the ban by being in touch with the excommunicated outcasts, an oath was sworn by all members of the communal council of elders to uphold it. Furthermore, copies of the oath and the communal decree (Takana) were sent to Ritva in Zaragosa as well as to Rabbi Asher ben Yehiel in Toledo so that they may sign it as witnesses, thus turning the oath into an unbreakable vow.41 This act indeed served its purpose, but once it took effect the Daroca kahal was in a legal bind, especially after it was approached, beseeched, and possibly threatened by Sati, the mother of Avraham Palas. By vowing to uphold the communal decree and having the prominent rabbis sign the vow, the community in effect renounced its independent authority to annul the punishment they had imposed. It was to be treated as a solemn oath and could only be voided under special circumstances and a rabbinic approval. It seems the communal authorities in Daroca were apprehensive that their own decree would be violated. By notifying Ritva and Rabbi Asher of their decision and asking them to sign it, they turned a communal legal procedure into a religiously sanctioned vow. For readers more familiar with Christian practice, this would probably be equivalent to the act of publicly swearing an oath on relics—​turning a political or legal procedure into a religiously sanctioned act. After hearing Sati’s plea, it became apparent that regardless of the communal feeling about the Medros, and even if their conversion did not cause initial serious alarm, the realistic possibility that Avraham Palas might choose to convert—​causing a “chain-​ reaction” of conversions in his family—​was not an anticipated and welcome outcome. Now, unless the halakhic authorities who had sanctioned the oath would agree to nullify it, the community members, fearing the retribution of the powers they had called upon to make their vow binding, had no recourse. Ritva and Rabbi Asher were therefore approached with the hope that they may find a legal loophole, enabling all the parties involved to retract the decisions that had been made in the days of anger and angst following the synagogue break-​in and the thieves’ escape from incarceration.42 Ritva’s answer is brief and unequivocal and thus worth our attention: I have studied all the documents above regarding the decree of the Kahal about the individuals mentioned as well as regarding the question you have asked about Avraham ben Palas. I think that if you believe this Avraham will indeed leave the fold due to

41 By defining the Takana as such, it was considered halakhically an oath that was sworn in public. According to Talmudic law, an oath that was sworn in public and witnessed by the public was deemed unbreakable (”‫)“נדר שנידר על דעת רבים אינו ניתן להפרה‬. 42 The members of the Daroca Kahal (communal leadership) probably preferred turning to the Ritva rather than the Rosh for two reasons. The first was that Zaragosa was closer to Daroca than Toledo and time was of the essence. The second is that it is clear from other sources that the Rosh’s opinion on the reversal of a vow that was taken in public (“neder sh’nidar al da’at rabim”) was very stringent. Coming from the realm of Ashkenaz it seems that Rabbi Asher took spoken oaths much more seriously. On oaths and their relevance in Ashkenaz, see Ephraim Shoham-​Steiner, “ ‘And in most of their business transactions they rely on this’: Some Reflections on Jews and Oaths in the Commercial Arena of Medieval Europe,” in On the Word of a Jew: Religion, Reliability, and the Dynamics of Trust, ed. Nina Caputo and Mitchell B. Hart (Bloomington: Indiana University Press, 2018), 36–​61.

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322 Ephraim (Effie) Shoham-Steiner this decree, if it is upheld, and if by nullifying it he will repent and receive the proper punishment and penance, you may retract from this decree so that he may repent. This is to avoid him and others from converting on his account. For regarding all criminals who committed a crime and have recanted we are instructed always to receive them, as it is written (Jeremiah 3:22), Return, ye backsliding children, and this is also what we learn from the Talmud in the tractate Avoda-​Zara.43 Although [Avraham] was banished, and this banishment was enforced with a vow sanctioned by many (“rabim”), namely the Kahal, and it was further sanctioned by Rabbi Asher and myself [Ritva], nevertheless you may lift the ban and accept him back for even such a ban may be lifted for the sake of fulfilling a commandment (“mitzvah”).44 For it is an important commandment to save the soul of a Jew from the evils of idol worship (conversion) and to accept his penance. And in my opinion, this (i.e. enabling the nullification of a ban in case there is a mitzvah) is always true, even if there is no misunderstanding in the process. All the more so here, where there was an initial misunderstanding and a mistake in the decision-​making process to inflict the ban. For in this case, had the Kahal known that there is even a slight possibility that a conversion is a possibility they would never have treated him so harshly. Besides, I’m not sure that the definition of “a ban levied by many (neder al da’at rabim)” is in effect in this case, for there are no real three parties involved together, and many of my late teachers and mentors of blessed memory think that for something to be seen as done by “many”, three actual parties need to be fully involved together in the matter, and this is not the case here.45

From the responsum, we learn that Ritva answered the Daroca Kahal’s plea and, having realized the gravity of the situation, provided them with the legal validation to withdraw from their own oath and enable Avraham Palas to return to Daroca, receive punishment, do penance and rejoin the community. Rabbi Asher’s response to this case did not survive. He may have not bothered to write back after realizing that Ritva was already involved in the matter and had given a ruling. Furthermore, Rabbi Asher’s ruling in similar cases, as well as his opinion on this matter, as it is voiced in his exegesis on the relevant discussions in the Talmud, tells us that his opinion on matters of solemn oaths was more stringent. Typical to the teachings of rabbinic authorities in his native Germany where vows, oaths, and other binding speech acts were taken with considerable gravity, Rabbi Asher would probably not have 43 BT, Avoda Zara, 7b.

44 BT, Gittin, 36a; see also the interpretation of the Tosaphot there.

45 Here is the original Hebrew: “‫ ועל השאלה אשר‬,‫עמדתי על כל הכתוב למעלה מגזרת הקהל על האנשים הנז’ בה‬ ‫ וכי בביטולה‬,‫ ורואה אני שאם נראה לכם כי אברהם זה יהיה יוצא מן הכלל מפני קיום גזרה זו‬,‫שאלתם על עסקי אברהם בן פלאס‬ ‫ שיכולים אתם להתיר הגזרה אשר גזרתם עליו כדי שיחזור בתשובה ושלא יצא לתרבות‬,‫יחזור למוטב ויקבל עליו עונש כפרה כראוי‬ ,‫ דכל הפושעים שפשעו שחזרו בהם מקבלין אותם עולמית כדכתי’ שובו בנים שובבים (ירמיה ג‬,‫רעה לא הוא ולא אחרים בשבילו‬ ‫ ואף על פי שהיה כאן‬,‫ ב) ואף על פי שהוא מנודה ומוחרם יכולין אתם להתירו מחמת כן‬,‫כב) כדאיתא בפרק קמא דעבודה זרה (דף ז‬ ‫ אפי’ נימא דהא חשיבה דעת רבים מכל מקום קיימא לן דעל דעת‬.‫חרם על דעת רבים ועל דעת הקהל שהם דעת הרב ר’ אשר ודעתי‬ ‫) וזו מצוה גדולה היא להציל נפש מישראל מקלקול עבודה זרה‬.‫ ועיין תוס’ שם ד”ה אבל‬,‫ א‬,‫רבים יש לו הפרה לדבר מצוה (גטין לו‬ ,‫ ולדידי כל לדבר מצוה יש לו הפרה אף על פי שאין טעות בדבר (עיין לעיל סי’ סד וחידושי הריטב”א לגטין לו‬,‫ולהחזירו לתשובה‬ ‫ וגם אין כאן‬,‫ שאלו ידעו הקהל שזה יהיה יוצא מן הכלל לא היו מחמירי’ כל כך‬,‫) וכל שכן שבזו גם יש צד טעות‬.‫ ד”ה והני מילי‬,‫א‬ ”.‫ וכן דעתי בזה‬,’‫ כי רבים מגדולי רבותינו זכרונם לברכה אומרים שאין רבים פחות משלש‬,‫כל כך דעת רבים ברור‬

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nullified the vow. It may well be that member of the communal authorities in Daroca who realized that this was his position may have initially opted for Ritva’s opinion on the matter not only because Daroca is closer to Zaragosa than Toledo, but because they were strategizing who to ask in the form of “forum shopping.”46 The Daroca case reveals a lot about Jewish communal life in Aragon but also more broadly. For example, the synagogue had many valuables but the thieves wanted only the Torah ornaments. This may hint at the fact that much like the Judaica market of today, there was probably a market for such goods in medieval Iberia and perhaps beyond the Pyrenees as well. The market-​value of the fine silver ornaments was much greater than the value of the precious metal they were made of. It may well be that Jews who bought such ornaments did not always ask about the provenance of these objects when purchasing them on the market. The case also highlights the extreme measures taken by the local community in an attempt to battle crime, exemplified by the draconian communal decree inflicted by the Jews of Daroca on the thieves. The fine print of the oath included a list of sanctions that would take effect by anyone violating the ban of excommunication against the Medros and Avraham Palas. For example: ● Any member of the Daroca community who is in any contact with the banned said individuals will himself be excommunicated for a whole year. ● If the thieves, Isaac and Avraham, are caught in Daroca within the five years of expulsion and excommunication, they will be arrested and then shaved in full public view in the section of the street leading to the fort that is in the possession of the Jews. Subsequently, they will be flogged according to the estimate of the local tribunal at least four lashes each, stark naked in the street, to honour the holy Torah they have so gravely offended.

These regulations, including the threat of a humiliating public penalty on the city’s main thoroughfare to the local fort in full view of both Jews and non-​Jews, speak of the serious need to ensure this form of behaviour is stopped.47 In another stipulation, the community ascertained that part of the fine the criminals would be required to disburse would be paid in the best available royally minted currency (100 golden coins minted in the days of King Alfonso III), so that the crown of Aragon would also benefit from the fine, thus creating a royal incentive to uphold the communal decree. This clearly indicates that the local Jewry wanted to exhibit their ability to uphold law order and morality both inwardly to Jews and outwardly to their neighbours and to the local non-​Jewish 46 Jacob ben Asher, “Yoreh De’ah,” in Arba’ah Turim ha-​Shalem, 22 vols. (Jerusalem: Makhon Yerushalayim, 1993), §225–​27. See also Yom-​Tov ben Avraham Asevilli (Ritva), Sefer Kitvei ha’Ritva: Hazicaron Hilkhot Berachot Teshuvot, ed. M. J. Blau (New York: Balshan, 1956), 160, §17. (both sources are in Hebrew). 47 On this see Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (Leiden: Brill 1993), 162–​80.

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324 Ephraim (Effie) Shoham-Steiner authorities. The extreme measures discussed in this incident, designed to both punish the culprits and deter others, indicate that this form of crime was considered to display more than the usual criminal irreverence to the law. The building whose sanctity was violated was a synagogue, a house of God, and specifically the inner sanctuary of that sacred space. Not only was sacred property violated, but so were religiously sanctioned communal objects invested with the prayers and blessings of the donors. Many of the ornamental decorations adorning the Torah scrolls, the case, the shrine, and the furniture of the synagogue were donated by community members in memory of deceased relatives. This intensified the sense of violation felt by the community. The rage of the community towards the perpetrators is clear from the very harsh takana. To all these we should add that the community must have felt further outraged when the two culprits, who were caught in the act, managed to escape the communal custody, which reflected poorly on the community’s ability to control its own criminals. The case discussed here demonstrates how the Jewish community of Daroca operated on multiple levels: as a religious community, attempting to demonstrate moral uprightness, as a legal entity administering internal justice, and as a political agent signalling to the wider political community its ability to govern, and at the same time upholding communal cohesion in the practical sense. All these facets are not mutually exclusive but rather inherently interwoven. In the sources discussed in this chapter, reflecting both realms of Jewish existence—​ Ashkenaz and Sefarad—​ in medieval Europe in two different periods in the High Middle Ages, we can see how the Jewish communities wrestled with incidents of theft perpetrated, especially but not exclusively, against fellow Jews. We saw the limits of the ability to use various forms of punishment and social control typical of a minority community governed by its own rules living within a Christian majority society. Many Jewish communities in medieval Europe enjoyed the ability to rule their own members and execute justice within the community based on internal Jewish law. Nevertheless, there always seems to have been a very fine line regarding the limits of this ability to internally control and regulate criminal behaviour. Rabbi Shmuel ben Kalonymus of Speyer in Germany, battling internal communal financial transgressions, that may have also “spilled over” to the non-​Jewish realm, needed to remind his adherents of the special danger in targeting non-​Jews as victims of criminal schemes perpetrated by Jews. Rabbi Shmuel was concerned with the implications of such actions, not only regarding the perpetrators of the crimes themselves but also how such crimes reflected on the image of the entire Jewish community. Jews were seen as a collective by their neighbours, and therefore leaders and ethical writers needed to constantly remind them that any crime committed by a Jew against a Christian may tip the scale of tolerance against Jews as a community. It may well be that following the violent attacks on Jews in the late eleventh-​ century German lands, ethical writers like Rabbi Shmuel (a member of the generation born to the survivors of these riots in the early twelfth century) were more attentive to this kind of thinking than Jews living in earlier generations, who felt more confident in their protected status under the privileges granted by the urban and royal lords of eleventh-​century Germany. From the exempla stories, we may learn about the very

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close relations and mutual culture shared by Jewish and non-​Jewish individuals in the towns of Europe in the High Middle Ages, to the point that special attention had to be paid by Jews using such stories to admonish their own against crime. On the other hand, the community of Daroca in the early fourteenth century needed the aid of a Jewish legal specialist when it seemed to have acted carelessly in its attempt to punish Jewish criminals who violated the sanctity of the synagogue. The criminals who felt that they had no future within the community after being banned chose to threaten or actually undergo conversion to Christianity, causing the communal authorities to realize the limits of their retributive powers even against crime committed within the communal limits.

Selected Secondary Sources

Asiss, Yom Tov. The Golden Age of Aragonese Jewry: Community and Society in the Crown of Aragon, 1213–​1327. Oxford: Littman Library of Jewish Civilization, 1997. Baer, Yizhak F. “The Origins of Jewish Communal Organization in the Middle Ages.” In Studies in Jewish Thought, edited by Dan Joseph. 3 vols., i, 59–​82. New York: Praeger, 1989. Baumgarten, Elisheva. Mothers and Children: Jewish Family Life in Medieval Europe. Princeton: Princeton University Press, 2004. Baumgarten, Elisheva, Elisabeth Hollender, and Ephraim Shoham-​Steiner. “Introduction: Sefer Ḥasidim: Book, Context, and Afterlife.” Special issue, Jewish History 34 (2021). Chazan, Robert. The Jews in Medieval Western Christendom. Cambridge: Cambridge University Press, 2006. Finkelstein, Louis. Jewish Self-​Government in the Middle Ages. New York: Jewish Theological Seminary of America, 1924. Grossman, Avraham. “Ashkenazim to 1300.” In An Introduction to the History and Sources of Jewish Law, edited by Neil S. Hecht et al., 299–​322. Oxford: Clarendon Press, 1996. Hass, Peter J. Responsa: Literary History of a Rabbinic Genre. Atlanta: Scholars, 1996. Jordan, William Chester. From England to France: Felony and Exile in the High Middle Ages. Princeton: Princeton University Press, 2015. Marcus, Ivan G. Piety and Society: The Jewish Pietists of Medieval Germany. Leiden: Brill, 1981. Passameneck, Stephen M. An Introduction to the History and Sources of Jewish Law, edited by Neil S. Hecht et al., 323–​58. Oxford: Clarendon Press, 1996. Shoham-​Steiner, Ephraim. Jews and Crime in Medieval Europe. Detroit: Wayne State University Press, 2020. Soloveitchik, Haym. “Responsa: Literary History and Basic Literacy.” AJS Review 24 (1999): 343–​57. Stow, Kenneth. Alienated Minority: The Jews of Medieval Latin Europe. Cambridge, MA: Harvard University Press, 1992. Yassif, Eli. The Hebrew Folktale: History, Genre, Meaning, translated by Jacqueline S. Teitelbaum. Bloomington: University of Indiana Press, 1999.

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THE CRIMINALIZATION OF VIOLENCE IN THE MEDIEVAL WEST Warren C. Brown To talk about when and how violence in the medieval West became criminal, we

need first to decide what we mean by “violence” and what we mean by “criminal.” We also need to decide when our definitions might apply. The meanings of the English words “violence” and “crime,” and the Latin and French words on which they are based, have changed considerably over time. If we go into the Middle Ages using them in ways that its denizens would not have understood, we risk misunderstanding and mischaracterizing the period.1 We would also miss an opportunity. For much of the Middle Ages, what constitutes “violence” and what constitutes “crime” are moving targets. The ways that these words and their meanings evolved over the course of the period both reflect and help us see the process by which many if not most acts of what we would call violence came to be thought of as what we would call crimes. In modern legal English (as opposed to broader popular or literary usage), the word “crime” covers offences against the common good as defined by the law, and punishable by the state whose job it is to uphold the law. Crimes are therefore tantamount to offences against the state as the representative of society as a whole, as opposed to actions that cause harm to person or groups qua persons or groups (i.e., civil wrong, or tort).2 The word of course has a medieval antecedent; it derives from the Latin crimen, through the old French crime. But for much of the Middle Ages, crimen had a much more flexible and extensive semantic field than that of the modern word crime. It could refer to a broad range of wrongs or offences. It was not restricted to any particular category of acts, save that it might lean towards the idea of sin. “Crime” as a legal category with something like its modern meaning only begins to emerge from the twelfth century onwards.3 “Violence” in modern English covers more or less all acts of destructive force against people or objects. It is also morally neutral; we can talk about justified and unjustified violence. The word first emerges in English in the later Middle Ages, at the turn of the fourteenth century, with more or less the same semantic field. It derives, however, 1 See Christoph Mauntel, Gewalt in Wort und Tat. Praktiken und Narrative im spätmittelalterlichen Frankreich (Ostfildern: Thorbecke, 2014), 19–​30; Warren C. Brown, Violence in Medieval Europe (Abingdon: Routledge, 2014), passim; Richard Kaeuper, ed. Violence in Medieval Society (Woodbridge: Boydell, 2000), particularly ix–​xiii. 2 See Neil MacCormick, Institutions of Law: An Essay in Legal Theory (Oxford: Oxford University Press, 2007). 3 See below, p. 338.

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through French, from a Latin word that occupied a different (though related) conceptual space: violentia. Violentia in medieval Europe was not neutral; it was morally wrong. Violentia was illegitimate and disordered. But it encompassed much more than simply illegitimate or immoral uses of force. It embraced violation in its largest possible sense, including the violation of boundaries, norms, or rights. As Jehangir Yezdi Malegam has put it, in the medieval Christian tradition violentia characterized actions but was not itself an action; instead, it denoted the moral valence of a power relationship.4 The use of destructive force per se remained morally neutral. The vocabulary that the sources used to describe it varied accordingly; apparently, for most of the Middle Ages, authors felt no need to use a conceptual noun to capture the sorts of things that we cover with the umbrella term “violence.” Instead, they use words that specifically tell us what was happening, such as occidere or interficere (to kill), vulnere (to wound), pugnare (to fight), percutere (to strike), perdere (to destroy), rapere (to seize, plunder, or rape), or incendere (to burn), or they talk about the use of force or power (vis, potestas). Why, from all of the linguistic material that it had available, did the English language choose violentia as its umbrella term for acts of destructive force, rather than, say, vis or potestas (as German did with Gewalt; though this is frequently translated as “violence,” its primary meanings are much closer to vis and potestas than they are to violentia)? I suspect that the path the language followed was bound up with the ideas about wrong held by the people who spoke it; to oversimplify, all acts of force became violentia when all acts of force became wrong. In this chapter, I suggest in fact that the process by which all acts of destructive force became “violence” was somehow connected to the process by which in western Europe, all (or most) acts of destructive force became criminal—​that is, when rulers reached the point that they could declare illegitimate all acts of destructive force that they themselves had not sanctioned. Instead of vis they were violentia. The story of how violence became criminal, in other words, is bound up with the processes by which violentia became violence in the modern sense and crimen became crime. It is a story both about changing attitudes towards the use of destructive force and about changing ideas of wrong and who had the right to redress it. In what follows, I will step back and survey attitudes towards acts of destructive force, who was entitled to carry them out, and what they were called, from the early Middle Ages up to the point where the English word “violence” in its more or less modern sense shows up. I will place this survey against the background of the way different kinds of sources project ideas about wrong and its redress. I will be covering the regions and the languages in which the words violence and crime evolved: western Europe, and especially England and France. Given the constraints of space, I make no claim to be comprehensive or authoritative. The questions themselves are most important. My answers are suggestive, and aim to provoke further questions that may amend or overturn them, but that will prompt more exploration. 4 Jehangir Yezdi Malegam, The Sleep of Behemoth: Disputing Peace and Violence in Medieval Europe, 1000–​1200 (Ithaca: Cornell University Press, 2013), 17. Note that Malegam identifies pia violentia as an exception to the generally negative rule.

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328 Warren C. Brown The story starts against a Roman background. Roman law clearly distinguished between public offences and private disputes, and therefore between what we would call criminal and civil jurisdictions. Those whose persons or properties were subject to acts of destructive force could seek remedies and redress in either arena (though, as Jill Harries has argued, the practical boundaries between civil and criminal procedures gradually broke down over time in the later Empire).5 In the legal framework of the western Empire as it evolved up through the compilation of the Theodosian Code (ca. 438/​9), the term of art for acts of force was not violentia but rather vis. Violentia could refer to acts of force, but generally unreasonable or illegitimate ones. It also embraced a quality of behaviour, that is, vehemence, impetuosity, ferocity. Vis simply meant force, in particular force that exercised some sort of compulsion. The particular quality of violentia as opposed to vis is visible in the Theodosian Code itself, specifically Book 9, ­chapter 10. Here a series of statements attributed to the Emperor Constantine use violentia in a specific context: asserting control by force over property possessed by another. Violentia here refers to the transgressive use of vis. It does not cover legitimate acts of force, up to and including homicide, carried out by someone who was trying to ward off a forcible entry.6 The one who had committed violentia was always wrong, no matter who had killed whom. Entering now into post-​Roman Gaul and the early kingdom of the Franks, we find a world whose earliest written law is famously concerned with acts of destructive force. The earliest text of the Frankish laws, the so-​called “A” version of the Lex Salica (traditionally but perhaps not quite accurately called the Pactus legis Salicae), was most likely compiled towards the end of the fifth century and amended over the course of the sixth.7 It deals with everything from breaking and entering to theft of property, plundering, pillaging, despoiling property, arson, damage to boundary markers, acts of force against slaves (who are treated as property), harm done to animals, harm done by means of animals, kidnapping, assault, rape, highway robbery, injury, and homicide. There is little sign of the distinction between private and public offences that had characterized Roman law; wrongs were wrongs and needed to be made right. What the Lex Salica says about wrongs is couched in terms of actions and consequences: whoever does X must do Y. “Y” consists usually of paying compensation to the victim of injury, or to his or her kin. Homicide is compensated by a defined blood-​price, or wergeld; for a normal freeman the amount was 200 solidi (the solidus being a late Roman gold coin 5 Jill Harries, “Violence, Victims, and the Legal Tradition in Late Antiquity,” in Violence in Late Antiquity: Perceptions and Practices, ed. H. A. Drake (Aldershot: Ashgate, 2006), 85–​102.

6 Cod. Theod. X.9.10.1–​3, in The Theodosian Code and Novels and the Sirmondian Constitutions, trans. Clyde Pharr (Princeton: Princeton University Press, 1952), 234–​35. See also: Cod. Theod. 4.22.2–​3, pp. 100–​101. 7 On the code’s title and dating, see Karl Ubl, Sinnstiftung eines Rechtsbuchs: die Lex Salica im Frankenreich (Ostfildern: Thorbecke, 2017), 53–​97.

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whose name in Gaul was becoming simply a unit of account).8 Dealing with injuries or death caused by acts of force was fundamentally a matter for the accuser, the accused, and their kindreds. Courts served as a forum for carrying out the procedures and applying the rules for determining who owed what to whom and why. None of what the Lex Salica says delegitimizes the use of force per se. Quite the contrary; the code acknowledges the licit practice of violent revenge. Chapter XLI nr. 11 requires compensation of 100 solidi from anyone who kills a freeman whose enemies have cut off his hands and feet and left him at a crossroads. One manuscript tradition of the code adds sanctions for anyone who takes down the head of a man whose enemies have placed it on a stick.9 These clauses suggest that in the world envisioned by the Lex Salica, violent vengeance and the practice of compensation worked together to maintain social order. We might envision a scenario, for example, in which one man had killed another, prompting the victim’s kin to seek violent revenge. However, the perpetrator might not have a strong enough support network (i.e. of his own kin, friends, or followers) to face the threat, or his network might decide that he had acted wrongly and refuse to support him, or his family and/​or the wider community might want to end the conflict before it got out of hand. His best, or only course of action in these cases would be to negotiate or go to a court, and work out a settlement and compensation that covered the material losses and lost honour of his victim’s kin. The threat of vengeance that loomed over the situation would have no teeth, however, unless it occasionally became real, that is, unless people who felt wronged did sometimes take direct and violent action, under circumstances where the community found it acceptable (along the lines of “he had it coming”), and displayed the consequences publicly.10 Non-​legal sources seem to agree. Gregory of Tours, in his late sixth-​century Ten Books of Histories, shows us a world in which the personal right to use deadly force coexisted with courts, law, negotiated settlements, and other mechanisms for restraining that right when it got out of hand. Gregory was of course completely uninterested in providing an unbiased anthropology of Frankish behaviour and mores; he was out to exalt above all the role played in Frankish society and power politics by members of his own kind: the aristocratic bishops. Accordingly, he tends to portray Frankish kings and aristocrats as wilfully violent and himself and his colleagues as peacemakers. Nevertheless, his stories, whether true, partly true, or completely made up, come embedded in a set of assumptions about plausible behaviour that are revealing. In the famous conflict among 8 Pactus Legis Salicae (PLS), in The Laws of the Salian Franks, trans. Katherine Fisher Drew (Philadelphia: University of Pennsylvania Press, 1991), XLI.1, 104.

9 PLS XLI.11 and 11b, in: Laws, 105. For an argument that the Lex Salica (A) was more concerned with limiting violence, and less tolerant of vengeance, than I have presented it here, see Ubl, Sinnstiftung, 80–​81 and 89. 10 On the workings of this kind of society see William I. Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (Chicago: University of Chicago Press, 1990) and Eye for an Eye (Cambridge: Cambridge University Press, 2006).

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330 Warren C. Brown some leading citizens of Tours that Gregory describes in Books VII and IX of the Histories, involving in particular three men named Austregisel, Sichar, and Chramnesind, courts and law were invoked, and mediators (principally Gregory himself) intervened not after the principals had killed (or tried to kill) each other, but when the conflict spilled over its original banks and began to injure others. The matter spanned two court hearings, a negotiated settlement, and the payment of compensation (funded in this case by Gregory). It did not reach a final conclusion, however, until Chramnesind, afraid that his reputation would suffer for having accepted compensation for the deaths of his relatives from Sichar, put an axe through Sichar’s skull and then hung his body on a fencepost—​a solution that Gregory found perfectly acceptable.11 I have not been able to identify in this period any particular language, legal or otherwise, for acts of destructive force, no blanket term equivalent to our word “violence”; the sources simply describe what is going on. The Lex Salica does not use the term violentia at all (though it frequently characterizes actions as being carried out violenter, in ways that can frequently be read as “wrongfully” as well as, or rather than, “forcefully”).12 Gregory of Tours uses violentia exactly once in all ten books of his Histories, but not to talk about force wielded by a person; it is instead the violentia of the River Rhone that casts members of a fleeing army to their deaths.13 Nevertheless, there are certain acts of destructive force that the Lex Salica marks out as more heinous than others, by imposing a drastically higher compensation amount for carrying them out. Chief among these are killing in secret, or killing and then hiding the body so that the homicide would not become known. While killing a free Frank normally brought a debt of 200 solidi, throwing him into a well or drowning him cost three times that amount. Killing someone and then hiding the body with sticks, bark, or hides likewise cost 600 solidi.14 We do not need to look far for an explanation; covert killing undermined the publicity on which the system of threatened (or actual) vengeance and compensation depended. The Lex Salica does not reflect the distinction between open and concealed killing with a change in vocabulary; the act remains, as elsewhere, “homicide” (homicidium), and the action is to “kill” (occidere or interficere). However, a set of Germanic glosses added to some manuscripts of the code does mark 11 Gregory of Tours, The History of the Franks, trans. Lewis Thorpe (New York: Penguin, 1974), Book VII/​47, 428–​30; Book 9/​19, 501–​2.

12 See e.g. PLS IX.3 and LXI.2, in Laws: 73 and 124; cf. PLS IX.6, XIII.14, XXXVII.3, in: Laws, 74, 78, 99. Drew translates violenter here as “by force” or “forcefully”; for the Latin see Karl August Eckhardt, ed., Pactus Legis Salicae, Monumenta Germaniae Historica, Leges nationum Germanicarum 4.1 (Hanover: Hahn, 1962), 47, 49, 63, 135, 226. 13 History, IV/​30, 224. Thorpe translates violentia as “strength”; for the Latin, see Gregory of Tours, Zehn Bücher Geschichten, vol. 1, ed. Rudolf Buchner (Darmstadt: Wissenschaftliche Buchgesellschaft, 1967), 234–​35. 14 PLS XLI.1–​4, in: Laws, 104.

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the difference. In a chapter concerning secretly hiring someone to kill another, these so-​ called “Malberg glosses” repeatedly use the word morter, that is, murder.15 Whether or not the use of force in this world was acceptable did have something to do with kings, but not in the way it would later. Acts of force crossed a line when they affected people or places under royal protection, or somehow infringed on royal interests. For example, in the Lex Salica, killing a member of the king’s personal following, a so-​called antrustion, likewise brought a triple wergeld of 600 solidi.16 If he was killed while serving in the army, his killer was liable for a staggering 1800 solidi; here the Malberg gloss again uses the term mother [sic].17 But kings could validate other people’s acts of violent vengeance when they were carried out according to the rules. To return to the Sichar/​Chramnesind case from Gregory of Tours: after killing Sichar, Chramnesind fled to his local king, Childebert. The king asked Chramnesind to prove that he had killed Sichar to avenge an affront. He had; Sichar had baited him by saying he had been enriched by the compensation Sichar had paid for killing Chramnesind’s relatives. And that was the end of the matter.18 Something interesting does emerge in letters and capitularies (i.e., collected decrees) issued by some of the Merovingian kings in the decades after the original Lex Salica was compiled: a language of the king’s responsibility as God’s representative to promote and maintain peace and order. But what “peace” means is quite specific: it means right order, especially proper Christian order. This included security for God’s followers. At the turn of the sixth century, the Merovingian king Clovis, in a letter to his bishops, extended his personal protection to nuns, widows devoted to the religious life, clergy, any sons or widows that they were supporting, and church slaves; he declared that they were to be protected from “violence or injury” (violentia vel damnum).19 Some later Merovingian kings invoked their responsibility to promote God’s peace to assign the death penalty for certain offences that the Lex Salica had treated as compensable and that did not necessarily affect them personally or people under their protection; these included theft, the abduction of women (raptus), and (tellingly) homicide without cause.20 It is not easy to say why they chose these particular offences. Assigning the death penalty to bride-​ theft and homicide without cause (i.e., without a declared grievance) essentially adds royal sanction to violent vengeance. The king declared in essence that in these cases, 15 See PLS XXVIII.1–​3, in: Laws, 92. In PLS LV.4 (Laws, 118), the gloss uses the term muther [sic] to refer to secretly despoiling the body of a dead man after he is buried. 16 PLS XLI.5, in: Laws, 104.

17 PLS LXIII.2, in: Laws, 125. 18 History, IX/​19, p. 502.

19 “Chlodowici regis ad episcopos epistola (507–​511),” in Capitularia regum Francorum 1, ed. Alfred Boretius, Monumenta Germaniae Historica, Legum Sectio 2.1 (Hanover: Hahn, 1883), 1–​2. 20 PLS, Capitulary II, “The Decree of King Childebert” in: Laws, 137; Capitulary VI, II.2–​3 in: Laws, 157–​58.

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332 Warren C. Brown the victims and/​or their kin and allies did not have to worry about negotiating with, or forcing, the perpetrators to pay compensation; they were free to kill them. Indeed, in the case of a man who had seized a woman, “none of our optimates may entreat on behalf of that one, but each one will pursue him as an enemy of God.”21 Theft, however, posed a particular kind of threat to society. As Benjamin Saltzman has pointed out, it is by definition an act committed by stealth, in the dark, with an eye to avoiding discovery and therefore sanction. Like concealed killing, it threatened the publicity on which the system of threatened vengeance and settlement depended.22 One might suggest the same about killing without a declared or manifest reason. In other words, kings may have felt compelled, or seen an opportunity, to assert themselves as guarantors and protectors of order in part by upholding the flow of information on which social and political stability depended. Nevertheless, the Merovingians were far from claiming anything remotely resembling the monopoly on the use of destructive force claimed by modern states. It is with the Carolingians, and particularly with Charlemagne, that we first see something that does approach such a claim. Charlemagne made serious efforts in his capitularies to regulate the use of force, to the point of trying to regulate vengeance out of existence. He forbade armed followings.23 He declared homicide in particular to be an offense against God and ordered that a victim’s kin accept compensation rather than seeking vengeance.24 Charles also added to the protected categories of people that Clovis had claimed to protect in his capacity as God’s vicar. He declared himself to be the protector of the Church, of widows, orphans, pilgrims, the poor, women, and other defenceless people; attacks on members of these groups were attacks on the king himself.25 Harming such people was an offense against God and therefore against the king personally. This looks like a claim to a quasi-​ public authority; we might say that Charlemagne was “criminalizing” acts of force against these groups. As far as I can tell, however, this claim stemmed conceptually not from neo-​Roman ideas about public order but rather from norms about royal protection and the lord’s responsibility to his following. Charlemagne was claiming to act in loco Dei to protect the Lord’s followers, favourites, and people under His protection, and to damp down conflict within his own following—​which, as the oath of loyalty to himself as emperor that he demanded in 802 from all free men above the age of twelve makes clear, he considered to be more or less everybody.26 He was turning actions against members of 21 PLS, Capitulary VI, II.2 in: Laws, 157.

22 Benjamin Saltzman, Bonds of Secrecy: Law, Spirituality, and the Literature of Concealment in Early Medieval England (Philadelphia: University of Pennsylvania Press, 2019), 26–​30.

23 Capitulary of Herstal of 779, c.14, in: Readings in Medieval History, ed. Patrick J. Geary, 5th ed., vol. 1 (Toronto: University of Toronto Press, 2016), 248.

24 E.g. the General Admonition of 789, cc.67 and 82, in: Charlemagne: Translated Sources, trans. P. D. King (Lancaster: King, 1987), 216 and 219–​20; General capitulary for the missi of 802, c.32, in: Readings, 264–​65. 25 See e.g. the General capitulary for the missi of 802, c.5, in: Readings, 263.

26 General capitulary for the missi of 802, c.2, in: Readings, 263.

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these groups into injuries to himself personally, to which he was entitled—​indeed, duty bound –​to respond with his own vengeance. Charlemagne flagged offences that he took personally with the so-​called bannus—​a fine of sixty solidi. In most cases, the bannus applied to such things as violating the king’s special protection, failing to obey a royal command, or injuring royal interests in some way, such as by harming royal justices.27 It also applied to harming churches, widows, orphans, the helpless, and so on, making it clear that Charlemagne regarded acts against them as acts against himself.28 However, he imposed the bannus not only to offences against certain protected spaces or classes of people but also to certain categories of actions, including raptus, acts of destruction or forcible entry (forcia, vis), and arson.29 The latter again suggests a royal interest in policing wrongs involving stealth and deceit. The use of the word violentia in this period appears to be rare, especially in legal and documentary sources. When it does show up, its meaning is characteristically ambiguous. For example, in the famous capitulary that Charlemagne issued for the Saxons sometime between 775 and 790,30 clause 2 states that no one should expel someone from a church per violentiam. Clause 3 states that anyone who enters a church per violentiam and steals something per vim vel furtu (by force or deceit), or burns the church down, was to die. The former could well mean expelling someone from a church by force, but in comparison to the latter I am inclined to think per violentiam refers to violating the church’s sacred space; per vim in contrast means an act of force per se. Likewise pointing in this direction are the Laws of the Bavarians, a Merovingian-​ era text whose earliest manuscripts are Carolingian. It has an entire section titled De Violentia (Title XI). The content of the section is telling; echoing the use of violentia in the Theodosian Code, it deals exclusively with the forceful violation of protected spaces, namely fields and houses.31 When we get to the west Frankish kingdom in the early Capetian period, that is, the late tenth and eleventh centuries, Charlemagne’s ideology has all but vanished from the sources. In a world dominated by images of small groups of armed men on horses, operating out of (sometimes shockingly flimsy) castles, fighting with each other for power and resources, the personal right to use destructive force was assumed to inhere in the ability to bear arms (as well as being frequently mandated by force 27 E.g. Capitulary of Herstal of 779, c.9, in: Readings, 247; capitulary concerning the Saxons of 797, cc.1–​2, in: Readings, 251.

28 Capitulary concerning the Saxons of 797, c.1, in: Readings, 251; special capitularies for the missi of 802, c.18, in: Readings, 267. 29 E.g. the capitulary concerning the Saxons of 797, c.1, in: Readings, 251; special capitularies for the missi of 802, c.18, in: Readings, 267. J. F. Niermeyer, Mediae latinitatis lexicon minus (Leiden: Brill, 1976), s.v. fortia, def. 4, understands the word forcia here particularly in the context of violating someone’s dwelling. 30 Capitulary concerning the parts of Saxony of 775–​790, cc.2–​3, in: Readings, 249.

31 Theodore John Rivers, ed., The Laws of the Alamans and Bavarians (Philadelphia: University of Pennsylvania Press, 1977), 150.

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334 Warren C. Brown of circumstance). The right was defined, regulated, and controlled by a set of norms associated with honour, declared grievances, kinship, and a loose sense of who was a legitimate target and who was not (the latter including aristocratic women and children, for example). Kings apparently operated within this normative framework, when anyone paid attention to them at all. A rhetoric of violentia is an important part of this world. Monastic chroniclers and scribes deployed the word frequently to characterize the activities of local aristocrats whom they thought had harmed their monasteries in some way. The early eleventh century Miracles of St. Foy, for example, describes a warlord setting out to build a castle and subjugate the people around him, including the monks of St. Foy’s monastery at Conques, violentia sua; the mid-​eleventh-​century Chronicle of Nantes refers to Lambert of Nantes in the 840s dominating lower Anjou per sua violentia.32 However, violentia here does not obviously mean “destructive force.” A charter from the Poitevin monastery of St. Maixent from 1032 starts by complaining about people “violently” (violenter) seizing church property. The real problem, however, turned out to be jurisdictional. Local judges and provosts were exacting judicial revenues from the monastery’s lands without giving the monks their fair share; they were violating the monks’ rights as the monks saw them.33 Violenter here should therefore probably be read as “wrongfully” or “illegitimately” rather than “violently” (although one could certainly imagine local officials imposing their jurisdiction by force). Matthew McHaffie has looked at the language of complaint in ecclesiastical charters from eleventh-​century Anjou.34 He finds complaints surrounded by a rich and flexible vocabulary of terms all moving in and around the idea of the illegitimate use of force. Deeds, sometimes “wicked deeds” (mala), were done “violently” (violenter), “by violence” (per violentiam), “by force” (per vim or per forciam), or “with force and rapine” (vi et rapina). Actions were described in verbs which implied force, such as to assault (assalire), to attack (aggredi), to damage (dampnare or dampna inferre), to extort (extorquere), to harass (inquietare), to injure (injuriare), to molest (molestare), to occupy (occupare), to oppress (opprimere), to seize (invadere, rapere, or abferre), to usurp (usurpare), to vex (vexare), or to weary (fatigare). This vocabulary was associated above all with the main thing that these charters complain about: theft and the illicit seizure of property. McHaffie argues that this language, which he calls a “language of violentia,” depended for its meaning on functioning courts. It worked as a discourse that helped channel complaints towards one of four “misdeeds” (forisfacta) over which 32 L. Robertini, ed., Liber Miraculorum Sancte Fidis (Spoleto: Centro Italiano di studi sull’alto medioevo, 1994), 2.5, p. 165; translated as The Book of Sainte Foy, trans. Pamela Sheingorn (Philadelphia: University of Pennyslvania Press, 1995), 127. See also René Merlet, ed., La chronique de Nantes, 570 environ—​1049 (Paris: Picard, 1896), c.10, pp. 29–​30. 33 Chartes et documents pour servir a l’histoire de l’abbaye de Saint-​Maixent, vol. 1 (Poitiers: Oudin, 1887), 109–​11n91.

34 Matthew W. McHaffie, “Law and Violence in Eleventh-​Century France,” Past and Present 238 (2018): 3–​41, esp. 11–​20.

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court-​holders tended to claim jurisdiction: homicide or bloodshed, raptum,35 arson, and theft. The discourse of force and violation was thus deployed in order to get complaints a hearing. The underlying actions, however, may not always have involved force. As McHaffie points out, here too violentia and its cognates may, as in the St. Maixent case discussed above, refer instead (or as well) to injustice or illegality.36 If so, it might better fit the mental world of the sources to talk, rather than of a “language of violentia,” of a “language of vis and violentia,” that is, of force and violation. It is also interesting that of the four “misdeeds” noted above, two (arson and theft) are “secret” offences in which kings had long shown an interest; this suggests that local courts in eleventh-​century Anjou had inherited, or were claiming, the royal ability to define these infractions as belonging to them. The acts of vis and violentia that so disturbed churches and monasteries allowed more powerful lords to assert a role as guarantors of order, namely by co-​opting the so-​ called “Peace of God” councils.37 These were summoned, starting in central and southern France towards the end of the tenth century, by abbots and bishops looking to assert their view of right order in a world they saw as sinful and disordered. Their vision of right order hearkened back to that of the Carolingians. It encompassed many things, including the proper workings of the church and the morality of the clergy itself. A major ingredient was the security of churches and monasteries and their property, and of the defenceless, from the depredations (forceful or otherwise) of the powerful. The use of force per se was not the problem. What needed to be reined in was its improper use against churches and monasteries, their people, and those who could not defend themselves. Accordingly, individual bishops and abbots summoned local and regional councils, starting with one at Charroux in 989, which were attended by members of the laity both high-​ranking and low. Participants swore an oath to uphold God’s peace as the councils defined it. They promised to respect prohibitions on such things as uncompensated seizures from peasants or churches and violation of monastery boundaries or buildings, as well as attacks on unarmed clergy (the tacit toleration of attacks on armed clergy speaks volumes), merchants, pilgrims, women, peasants, or the poor, as long as they had not committed some misdeed or did not owe reparations for anything. Failure to honour the oath brought anathema. Over time, some of these oaths began to include prohibitions against all kinds of attacks, for any reason, on holy days such as Sundays and feast days: the so-​called “Truce of God.” It did not take long for powerful secular lords, such as the dukes of Aquitaine and Normandy, the counts of 35 Raptus, i.e., abduction of a marriageable woman, rather than necessarily (as McHaffie renders it) “rape.”

36 McHaffie, “Law and Violence,” 12, citing Bruno Lemesle, Michel Nassiet, and Pascale Quincy-​ Lefebvre, “Introduction,” in La violence et le judiciaire du Moyen Âge à nos jours, ed. Bruno Lemesle, Antoine Follain, and Michel Nassiet (Rennes: Presses universitaires de Rennes, 2008), esp. 12–​14. For an example among the charters cited by McHaffie see e.g. Charles Urseau, ed., Cartulaire noir de la cathédrale d’Angers (Paris: Alphonse Picard, 1908), CCXXXI, 351. 37 See Geoffrey Koziol, The Peace of God (Leeds: Arc Humanities, 2018).

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336 Warren C. Brown Flanders, and the Capetian kings of France (“France” at this point meaning little more than the royal territories encompassing Paris and Orléans) to claim the right to enforce the peace oaths and even to summon such councils themselves, drawing for support on Carolingian-​style images of the ruler as the protector of the churches and monasteries and of God’s people. Eventually, they began to issue peaces on their own, peaces which mandated certain kinds of protections for certain groups depending on a given prince’s interests (such as towns, markets, or fairs). Here then is another route by which rulers in the West began to claim jurisdiction over certain categories of offences, including offences involving destructive force, that did not affect them personally but did affect a defined idea of a general order—​in this case, order as defined by the terms of the sworn peace.38 “Peace” became an exercise of power.39 Royal efforts to regulate the use of force, or efforts by kings to insert themselves into the broader culture governing the use of force, start to gain traction in the West in the twelfth century. They do so most precociously in England, but France is not far behind. While these efforts were driven practically by particular political contexts, and by broader economic and social developments in western Europe that were shifting power towards kings, they rested conceptually on the bases that we have been following: the king’s responsibility and right to protect not only his own rights, prerogatives, followers, and favourites but also those of God, and on his responsibility to make sure that what people did or did not do was known. The language used to describe acts of force, however, remains varied and flexible; as far as I am aware, violentia has no particular place of honour. In England, the Anglo-​Saxon kings, despite their relative strength, had not gone as far as Charlemagne in trying to restrict legitimate force to that which the king had authorized, or to protect broad swaths of society from attack.40 They had tried instead to make themselves important to the disputing process, by for example adding royal protection to church sanctuary rights and broadening the range of acts of force that counted as personal injuries to the king, including resorting to force in a dispute (faeþe) after a settlement had been reached. Like their Frankish counterparts, the Anglo-​Saxon kings had already from the seventh century claimed the right to regulate offences that involved concealment, such as hidden homicide and theft. The former appears to have had its own word: morð, which in literary usage could have a range of meanings but in legal usage focused on secret killing or killing concealed after the fact.41 38 In central Europe, i.e. the Empire, this development took on a territorial cast with the so-​called Landfrieden. 39 I thank John Tolan for the insight and formulation.

40 For a useful overview, see Tom Lambert, Law and Order in Anglo-​Saxon England (Oxford: Oxford University Press, 2017).

41 Stefan Jurasinski, “Reddatur Parentibus: The Vengeance of the Family in Cnut’s Homicide Legislation,” Law and History Review 20, no. 1 (2002): 157–​80 goes a step farther and ties morð in eleventh-​century English law to killing and then hiding the corpse or failing to deliver it to the victim’s kin.

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Over time, the Anglo-​Saxon kings also took over enforcement of what were called bootless (bótléas) offences, that is, offences that were considered so serious that they could not be made right by compensation (bót). The guilty could be slain by anyone; only the king could grant pardon. These were formalized in the laws of Æthelred (r. 978–​1016) and of Cnut (r. 1016–​1035). For Æethelred, the bootless offences were personal: a breach of the king’s protection extended to a person or a religious institution and homicides committed in churches.42 It was Cnut who extended the list to include assaults on houses, arson, treachery to one’s lord, manifest theft, and clearly evident murder (æbere morð)—​“evident murder” here meaning a secret killing that had been discovered.43 Here too, then, as in Francia, we see kings concerned with protecting the flow of information that kept society running. A killing that no one saw was much harder to resolve by ordinary means (whether personal or royal); it was unlikely to yield compensation and left the door open for loose-​cannon attempts at vengeance by angry and suspicious kinsfolk. The envelope of royal authority in England continued to expand after the kingdom was conquered in the late eleventh century by Norman dukes who had become used on the continent to issuing sworn peaces in their own names. A legal text compiled during the reign of William the Conqueror’s fourth son Henry I (r. 1100–​1135), the so-​called Leges Henrici Primi (LHP), provides us with a list of acts subject to the king’s jurisdiction alone that resemble the bootless offences of the Anglo-​Saxons: breach of the king’s peace or personal protection, offences such as homicide or injury against king’s person or household, offences against royal authority or dignity (such as insulting the king) and various serious offences against persons/​property (such as housebreaking or robbery).44 Nevertheless, the author of the LHP does not present the king as the sole purveyor of force; in cases outside king’s concern the text still recognizes the right of aggrieved parties to act on their own. Things begin to change under Henry II (r. 1133–​1189).45 Propelled by a need to secure his position in the wake of civil war and armed with a neo-​Carolingian image of himself as God’s representative, Henry intervened in local dispute resolution in a way that gradually reshaped the relationship between royal power and the personal right to use destructive force. The Assize of Clarendon (1166) tells us what he was interested in: juries were supposed to tell royal justices and sheriffs whether anyone in their hundred or village had been accused or was publicly known as a robber, murderer

42 III Aethelred 1 and VIII Aethelred 1.1, in: Die Gesetze der Angelsachsen, ed. and trans. F. Liebermann, 3 vols. (Halle, 1903–​1916), 1:228, 263.

43 II Cnut 64, in: Gesetze 1, 352–​53. I thank Benjamin Saltzman for the interpretation of æbere morð. 44 L. J. Downer, ed. and trans., Leges Henrici Primi (Oxford: Clarendon Press, 1972).

45 On the early history of the English common law, see John Hudson, The Formation of the English Common Law: Law and Society in England from King Alfred to Magna Carta, 2nd ed. (London: Routledge, 2018).

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338 Warren C. Brown (murdrator), or thief.46 In other words, Henry classified theft, robbery, and murder (in its sense of a secret killing) as belonging to him. By the Assize of Northampton (1176), these offences (plus arson, counterfeiting, and forgery—​all crimes of concealment) were being called “felonies.” The word felonie previously could have embraced any wrong, but it did have a particular connotation of treachery or disloyalty that influenced how it developed. By the end of the twelfth century, it was coming to mean specifically (in contrast to trespass) violations of the king’s peace or wrongs that closely touched the royal interest. A simple accusation that an offense had been carried out by “force and arms” (vi et armis) in violation of the king’s peace could turn it into a matter for royal justices. Felonie is joined here by another word; it is at this point that crimen too starts being used to refer to those particularly serious offences in which the king had an interest, including theft, robbery, and murder. These jurisdictional claims by the king created opportunities for litigants, who often found it much safer to have a royal justices take their vengeance for them and therefore dressed their claims in the language most likely get to their case before a royal court—​thus legitimating both the language and the courts.47 This is the moment, I think, where our modern language of “criminalization” and “crime” starts to match the language used by the sources.48 These homegrown English distinctions between offences that were matters for the king and offences in which the king had no interest fit nicely with learned law distinctions being developed on the continent under the influence of Roman law, that is, between public and private law and civil and criminal offences. By the time we get to Bracton’s treatise On the Laws and Customs of England (compiled over the course of the early to mid-​thirteenth century), “crime” by definition has come to mean a breach of the general peace as opposed to a wrong inflicted on a specific party.49 Something similar was happening on the continent. As the twelfth century progressed, the French kings also tried to regulate the use of force; by the end of the thirteenth century they were beginning to claim something like a monopoly on its legitimate use.50 Symptoms of this claim were not only royal efforts to regulate and even ban self-​help by force, but also a conceptual distinction that is only sporadically visible before, namely that between royal and therefore legitimate war, and the personal and 46 William Stubbs, ed., Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First, 9th ed. (Oxford: Clarendon Press, 1913), 167–​73.

47 See Paul Hyams, Rancor and Reconciliation in Medieval England (Ithaca: Cornell University Press, 2003), particularly 189–​215. 48 Saltzman, Bonds of Secrecy, 24, argues that our language of crime does fit earlier efforts to regulate offences involving concealment, though the sources are not using distinguishing terms.

49 Henry de Bracton, On the Laws and Customs of England, trans. Samuel E. Thorne (Cambridge: Belknap, 1968).

50 See e.g. Hannah Skoda, Medieval Violence: Physical Brutality in Northern France 1270–​1330 (Oxford: Oxford University Press, 2013), 35–​44.

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therefore illegitimate use of force in private disputes.51 Philip II Augustus (r. 1180–​1223) started slowly; he tried to mandate a forty-​day cooling off period before disputants could launch a guerra.52 Louis IX (r. 1226–​1270) repeated his grandfather’s forty-​day cooling off period for guerrae, but then went a step further and tried to forbid all guerrae within his kingdom.53 His grandson Philip IV (r. 1285–​1314) tried harder. He declared that his wars took precedence over all others; he forbade magnates from pursuing their guerrae while he was fighting his own wars; he forbade them from participating in judicial duels and tournaments while he was at war; if parties were already engaged in a guerra when he went to war, they had to make a truce for a year.54 In 1303, in order to fulfil what he claimed as his divine mandate to protect the people entrusted to him by God, he forbade all wars (guerrae, bella), as well as homicides, arson, and attacks on farmers and plowmen in any part of his kingdom.55 And while all this was going on, canon and civil lawyers were beginning to argue that only a war declared on the authority of a sovereign prince was legitimate. Royal efforts to regulate forceful self-​help and to restrict legitimate warfare to kings faced strong resistance from a nobility that clung tightly to the warrior’s right to use force on his own behalf.56 This right was frequently expressed in the language of chivalry, that is, that set of norms and behaviours, expressed in stories, songs, and treatises written for and by members of the nobility and in the tournaments and meetings of chivalric orders that brought them together, that purported to embrace and guide the lives of all who bore arms. When Philip IV’s son Louis X (r. 1314–​1316), for example, faced a nobility driven to the point of revolt by his father’s constant demands for money, he was forced to buy peace in part by recognizing once more the nobles’ right to hold tournaments, fight judicial duels, and engage in their own wars.57 Half a century later, the French knight Geoffrey de Charny wrote in his Book of Chivalry that the good knight had not only the right but also the duty to wage war to protect the land and inheritance of himself and his kin; he had also to fight to defend the rights of widows, maidens, 51 On this distinction, see Justine Firnhaber-​Baker, “From God’s Peace to the King’s Order: Late Medieval Limitations on Non-​Royal Warfare,” Essays in Medieval Studies 23 (2006): 19–​30.

52 Reinhold Kaiser, “Selbsthilfe und Gewaltmonopol. Königliche Friedenswahrung in Deutschland und Frankreich im Mittelalter,” Frühmittelalterliche Studien 17 (1983): 55–​72, at 70.

53 Eusèbe Jacob de Laurièrre, ed., Ordonnances des roys de France de la troisième race, vol. 1 (Paris: Imprimerie royale, 1723), 84. 54 Ordonnances, 328–​29. 55 Ordonnances, 390.

56 This tension is explored seminally in Thomas Bisson, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton: Princeton University Press, 2015). See also Richard Kaeuper, Chivalry and Violence in Medieval Europe (Oxford: Oxford University Press, 1999), 11–​29. 57 Ordonnances, 559.

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340 Warren C. Brown orphans, and the Church.58 But royal efforts to regulate the use of force did gain traction, helped along especially by members of the urban and commercial classes who accepted and supported them because they were good for business. Jean Froissart tells us that King John II (r. 1350–​1364) was rescued on the battlefield at Poitiers in 1356 by a knight who had been exiled from France in his youth for participating in a guerra and killing a man; this indicates both that guerrae were happening and that they were being regulated and their consequences punished by royal justice.59 Thus, by the fourteenth century we find a vastly expanded envelope, on both sides of the English Channel, of acts of force that kings are calling illegitimate.60 The charge of having done something vi et armis could get one hauled before a royal court; recognizably modern ideas about crime were emerging from the mist; royal claims about the king’s responsibility and duties were getting mapped onto learned law ideas about public order and public versus private wrong (with force and who had the right to use it very much a concern of the former); serious efforts were being made to limit legitimate war to that called by the king. And it is right in here that the English word “violence,” imported into the language through the French, shows up with something like its modern semantic field. The online Middle English Dictionary,61 drawing on texts from the fourteenth and fifteenth centuries, defines “violence” as: 1. (a) Physical force exercised injuriously, abusively, or with threatening or coercive intent, violence; violent behaviour; also, a violent act or display of force, an instance of the hostile exercise of force; also, an injury resulting from violence, an outrage but also: (b) physical force exercised benevolently, noble strength and: (c) physical force arising from a natural phenomenon, process, condition, etc. and: (d) physical force imparting motion, usu. extreme, sudden, or violent; also, motion resulting from this force, vigorous or forceful motion, sharp or sudden motion.

Unfortunately, I have not been able to find a smoking gun. All I can do at this point is make an argument from coincidence. But the coincidence does seem to me to be suggestive: violentia migrated into English as “violence” after the point at which, in the areas where French, Anglo-​Norman, and English were spoken, more or less all serious 58 Geoffroi de Charny, A Knight’s Own Book of Chivalry, trans. E. Kennedy (Philadelphia: University of Pennsylvania Press, 2005), e.g. 89–​90. 59 Froissart Chronicles, ed. and trans. Geoffrey Brereton (New York: Penguin, 1968), 140–​1.

60 See Richard Kaeuper, War, Justice, and Public Order: England and France in the Later Middle Ages (Oxford: Clarendon Press, 1988), 1–​10. 61 https://​quod.lib.umich.edu/​m/​med/​.

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acts of destructive force not sanctioned by the king had become criminal. Previously, there had been morally neutral acts of force (vis) and there had been violentia, which could encompass perceived violations of right whether or not they were carried out by force. Now all force was violentia. By association, this included acts of destructive force that had a neutral or even positive moral valence (such as that carried out by heroes or kings). So in the end we cannot say that all violence had become criminal. But we can say that a great deal of it had. More importantly, we can from this point use the terms “violence” and “criminal” with some hope that these analytical categories bear a recognizable relationship to the mental world of our sources.

Selected Secondary Sources

Bisson, Thomas N. The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government. Princeton: Princeton University Press, 2015. Brown, Warren C. Violence in Medieval Europe. Abingdon: Routledge, 2014. Hyams, Paul R. Rancor and Reconciliation in Medieval England. Ithaca: Cornell University Press, 2003. Kaeuper, Richard W., ed. Violence in Medieval Society. Woodbridge: Boydell, 2000. Kaiser, Reinhold. “Selbsthilfe und Gewaltmonopol. Königliche Friedenswahrung in Deutsch­ land und Frankreich im Mittelalter.” Frühmittelalterliche Studien 17 (1983): 55–​72. Koziol, Geoffrey. The Peace of God. Leeds: Arc Humanities, 2018. Lambert, Tom. Law and Order in Anglo-​Saxon England. Oxford: Oxford University Press, 2017. MacCormick, Neil. Institutions of Law: An Essay in Legal Theory. Oxford: Oxford University Press, 2007. Mauntel, Christoph. Gewalt in Wort und Tat. Praktiken und Narrative im spätmittelalterlichen Frankreich. Ostfildern: Thorbecke, 2014. Miller, William I. Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland. Chicago: University of Chicago Press, 1990. Ubl, Karl. Sinnstiftung eines Rechtsbuchs: die Lex Salica im Frankenreich. Ostfildern: Thorbecke, 2017.

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RAPE AND LAW IN MEDIEVAL WESTERN EUROPE Gwen Seabourne A

1287 English plea roll entry records a rape prosecution brought by Idonea, daughter of Geoffrey le Chesemongere, against Master John de Windsor.1 It alleges that John had taken Idonea into a house, pushed her to the ground, and raped her of her virginity. Further details are given: violence and physical injuries are outlined, and it is noted that he had left her as if dead, fleeing straight afterwards. Locations are set out with care, and physical movements described, down to the level of which of John’s hands was used to lead Idonea away to the scene of the rape. Each action is labelled felonious, and the insult to the king, and damage to his peace, are emphasized. The misconduct is stated to have been “forcible and against [Idonea’s] will.” We are informed that, as soon as Idonea could get up, she raised the hue and cry, and brought her appeal (an individually-​initiated prosecution). The roll notes that John denied the accusation, as well as pointing out specific flaws relating to a difference in the dates in Idonea’s accounts, and the fact that there had been no allegation that Idonea had been made to bleed. For one of these reasons, the appeal failed, but this did not end the investigation: an inquiry was conducted in the king’s name, and John was found guilty. He was ordered to be imprisoned until he paid compensation to Idonea and a fine to the king. Laws against rape existed throughout medieval western Europe, enabling some individuals or communities to bring to trial those accused of such misconduct. “Medieval European rape law,” building on earlier legal traditions, and incorporating contemporary concerns,2 comprised a set of possible constructions of sexual misconduct and appropriate responses to it, between which authorities and those deciding individual cases might choose. Pronouncements and action against rape and rapists evinced conceptions of such misconduct as disruptive of public order and royal authority, as harmful and shaming to the victim and, sometimes, to her male kin. Responses included pronouncement and imposition of capital or mutilatory punishment, but also tolerance of settlement and compensation. This chapter will explore the part played by law in defining and labelling as deviant certain sexual misbehaviour, and in determining appropriate responses to it. It is anchored in studies of the medieval English common law’s approach to rape, as seen in cases such as that of Idonea daughter of Geoffrey le Chesemongere, but will also draw in 1 TNA JUST 1/​1256 m. 64.

2 Olivia F. Robinson, The Criminal Law of Ancient Rome (Baltimore: Johns Hopkins University Press, 1995), chaps. 4 and 5; Nghiem L. Nguyen, “Roman Rape: An Overview of Roman Rape Laws from the Republican Period to Justinian’s Reign,” Michigan Journal of Gender and Law, 13 (2006): 75–​112.

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comparative material from other contemporary western European systems, and make reference to the copious scholarship on rape in medieval literature.3

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

Defining the Deviant

No medieval jurisdiction had a detailed definition of rape offences, specifying requisite actions and intention. This means that it is necessary to look at both legislative pronouncements and records of legal practice, if we wish to discern what was understood to amount to the offence of rape. The offence alleged against Master John de Windsor appears to accord with the core of common modern understanding of the word “rape”—​sexual penetration of a female against her will, deserving of the condemnation of the community and the punishment of the law. While there are certainly continuities, however, medieval constructions of deviance, and crime, in this area were also strikingly different in some respects to those obtaining in modern legal systems and popular discourse. An issue which must be dealt with at an early stage is that of ambiguity in terminology. Raptus is the word used in English common law for offences such as that alleged against Master John, but it was also used to cover different types of conduct, different perceived harm and different complainants. Some instances of alleged raptus approximated to a modern idea of rape, signalling concern for the woman or girl involved, but there were also accusations of raptus in which the complaint was focused on abduction, and on the harm perceived to be caused to husband or other male. The latter is conventionally translated as “ravishment” in modern histories.4 Some other systems avoided this apparent ambiguity to a greater extent, using separate terms for violent sexual assault and abduction: for example, Iberian laws might restrict raptus to the ravishment offence, 3 See, for example, Corinne Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge: Boydell and Brewer, 2001); Dietmar Rieger, “Le motif du viol dans la littérature de la France médiévale entre norme courtoise et réalité courtoise,” Cahiers de Civilisation Médiévale 31 (1988): 241–​67; James Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1990); Kathryn Gravdal, Ravishing Maidens: Writing Rape in Medieval French Literature and Law (Philadelphia: University of Pennsylvania Press, 1991); Isabelle Mast, “Rape in John Gower’s Confessio Amantis and Other Related Works,” in Young Medieval Women, ed. Katherine J. Lewis, Noel J. Menuge, and Kim M. Phillips (New York: St Martin’s, 1999), 103–​32.

4 Saunders, Rape and Ravishment, 33–​119; Caroline Dunn, Stolen Women in Medieval England: Rape, Abduction and Adultery, 1100–​1500 (Cambridge: Cambridge University Press, 2012), 19; Sara M. Butler, “Runaway Wives: Husband Desertion in Medieval England,” Journal of Social History 40 (2006): 337–​59, at 343; Emma Hawkes, “ ‘She was ravished against her will, what so ever she say’: Female Consent in Rape and Ravishment in late-​medieval England,” Limina 1 (1995): 47–​54, at 47, 48; Eve Salisbury, “Carried Away by the Law: Chaucer and the Poetry of Abduction,” in Theorizing Legal Personhood in the Middle Ages, ed. Andreea D. Boboc (Leiden: Brill, 2015), 50–​70; Christopher Cannon, “Raptus in the Chaumpaigne Release and a Newly Discovered Document Concerning the Life of Geoffrey Chaucer,” Speculum 68 (1993): 74–​94; Marie A. Kelleher, The Measure of Woman: Law and Female Identity in the Crown of Aragon (Philadelphia: University of Pennsylvania Press, 2010), 125, 130.

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seen as a harm to the woman’s family, employing fuerça for sexual assault, perceived as a harm to the woman herself.5 In the English context, the fact that some offences labelled raptus might be focused on violation and others on abduction may mean that it is sometimes unclear whether the objection is to rape or to “ravishment,” but the ambiguity of the situation should not be overdone. An English appeal of raptus such as that of Idonea explicitly involved an allegation of sexual penetration.6 In addition, to the extent that there are overlaps or apparent blurring, this should suggest to us less that medieval lawyers, legislators, and people were unable to tell apart rape and abduction,7 and more that they saw connections between the two (since abduction of a female might lead to sexual violation).8 In the English context, royal intervention focusing on ravishment as harm to kin was emerging in the same period as Idonea’s case,9 but this did not amount to a switch of concern from harm to the woman, to harm to the family. An episode of sexual misconduct might be seen from different perspectives, different forms of harm might be emphasized and different procedures used in response.10 Royal intervention granted men a route to obtain compensation for loss and shame, caused by removal of a wife or kinswoman, at times probably with some degree of consent on her part, but legislation on sexual violation, and appeals by female complainants, also continued.11 Appeals of rape provided a rare opportunity for women (and even girls) to initiate criminal proceedings, and, despite the onerous nature of the procedure, some took up the challenge of doing so. 5 See, for example, María R. Castellanos, “The Foundational Rape Tale in Medieval Iberia,” PhD diss., University of Texas at Austin, 2009, 7; Alfonso X of Castile and Leon, Las siete partidas, ed. Robert I. Burns and trans. Samuel Parsons Scott (Chicago: American Bar Association, 1931). See also Carol Lansing, “Conflicts over Gender in Civic Courts,” in The Oxford Handbook of Women and Gender in Medieval Europe, ed. Judith M. Bennett and Ruth Mazo Karras (Oxford: Oxford University Press, 2013), 118–​32. For differing classifications, see, for example, Lisi Oliver, “Forced and Unforced Rape in Early Irish Law,” Proceedings of the Harvard Celtic Colloquium 13 (1993): 93–​106, at 95; Fredrik C. Ljungqvist, “Rape in the Icelandic Sagas: An Insight in the Perceptions About Sexual Assaults on Women in the Old Norse World,” Journal of Family History 40 (2015): 431–​47, at 433–​34. 6 John H. Baker, Oxford History of the Laws of England. Vol. VI: 1483–​1558 (Oxford: Oxford University Press, 2003), 562. 7 For ideas of rape and abduction prior to 1200, see Saunders, Rape and Ravishment, 33–​75.

8 Richard W. Ireland, “Lucrece, Philomela and Cecily: Chaucer and the Law of Rape,” in Crime and Punishment in the Middle Ages, ed. Timothy S. Haskett (Victoria, BC: University of Victoria Medieval Studies, 1998), 37–​62; Brundage, Law, Sex and Christian Society, 209; TNA JUST 1/​367 m. 8. 9 See J. B. Post, “Ravishment of Women and the Statutes of Westminster,” in Legal Records and the Historian, ed. John H. Baker (London: Royal Historical Society, 1978), 150–​64; J. B. Post, “Sir Thomas West and the Statute of Rapes 1382,” Historical Research 1 (1980): 24–​30.

10 For the existence of different harms, to different people, arising from the same sexual violation, see for example, Hannah Skoda, Medieval Violence: Physical Brutality in Northern France, 1270–​1330 (Oxford: Oxford University Press, 2013), 29; Paul Viollet, ed., Les Établissements de Saint Louis, 4 vols. (Paris: Renouard, 1881–​1886), 2, lib. 1, pp. 55, 79; Ljungqvist, “Rape in the Icelandic Sagas,” 440, 442. 11 Dunn, Stolen Women, 14, 40.

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Legal Limits In seems likely that the offence behind the English appeal of rape was understood to involve penile penetration of the vagina. Idonea’s case does mentions “entry” of her body, and the description of the misconduct suggests that this is vaginal. Often the language is euphemistic or uninformative, describing the offending act as “knowing,” “lying with,” “having connection with” and “deflowering,” “deforcing,” and “violating.”12 Other cases mention the offender’s penis, however,13 and no felonious rape case in which penile penetration is clearly not the allegation has been found. Penetration of males and sexual assaults on women other than penetration of the vagina may be raised but these actions were not designated “rape.”14 There might also be oblique criminalization, in allowing as a defence to otherwise wrongful action the claim that one acted in this way to prevent a rape.15 In addition, the construction of guilt in relation to rape was extended by the criminalization of attempts and accessories, a trend particularly visible in French and Venetian jurisdictions,16 and 12 M. Kerr, “Husband and Wife in Criminal Proceedings in Medieval England,” in Women, Marriage and Family in Medieval Christendom, ed. Constance M. Rousseau and Joel T. Rosenthal (Kalamazoo, MI: Medieval Institute, 1998), 211–​51, at 244; TNA KB 27/​598 Rex m. 8; KB 27/​350 m. 17d; KB 27/​606 m. 29. 13 Helen M. Cam, ed., Year Books of Edward II: The Eyre of London, 14 Edward II, AD 1321, 2 vols., Selden Society, 85–​86 (London: Quaritch, 1968–​1969), 1, 87, 88.

14 Richard H. Helmholz, Oxford History of the Laws of England. Vol. I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), 629; Francis Morgan Nicholls, ed., Britton (Oxford: Clarendon Press, 1865), lib. 1, c.2, p. 17; Henry G. Richardson and George O. Sayles, eds., Fleta, 3 vols. (London: Quaritch, 1955–​1984), 2:lib. 1, c.32, p. 82. There are no allegations of felonious rapes of men, but see JUST 1/​1107 m. 7d for a plaint of sexual assault on a (young) male. For greater activity in identifying and prosecuting “sodomy,” see, for example, Guido Ruggiero, The Boundaries of Eros: Sex Crime and Sexuality in Renaissance Venice (Oxford: Oxford University Press, 1985), 109–​45. For other sexual assaults: William C. Bolland, ed., Select Bills in Eyre A.D., 1292–​1333, Selden Society, 30 (London, Quaritch, 1914), 48. 15 Henry Summerson, ed., Crown Pleas of the Devon Eyre 1238 (Torquay: Devonshire Press, 1985), 68–​69, no. 403; KB 27/​626 m. 2; KB 27/​443 m. 43d. It is less certain that women could make a successful self-​defence plea in relation to a would-​be rapist: Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, 2 vols. (Cambridge: Cambridge University Press: 1895) 2:479; Sara M. Butler, Forensic Medicine and Death Investigation in Medieval England (New York: Routledge, 2015), 154–​55; JUST 1/​956 m. 41; Brendan O’Connell, “ ‘Struglyng Wel and Myghtily’: Resisting Rape in the Man of Law’s Tale,” Medium Aevum 84 (2015): 16–​39.

16 See Guido Ruggiero, “Sexual Criminality in the Early Renaissance: Venice 1338–​1358,” Journal of Social History 8 (1975): 18–​37, at 21–​22; Ruggiero, The Boundaries of Eros, 89; Andrew Finch, “Women and Violence in the Later Middle Ages: The Evidence of the Officialty of Cérisy,” Continuity and Change 7 (1992): 23–​45, at 33; Heath Dillard, Daughters of the Reconquest: Women in Castillian Town Society, 1100–​1300 (Cambridge: Cambridge University Press, 1984), 182. English examples of attempts to resist: TNA JUST 3/​210 m. 7d; JUST 1/​843 m. 19, 19d; KB 27/​716 m. 89; and the prosecution of accessories: TNA KB 27/​346 m. 24; KB 9/​358 m. 166; KB 27/​340 m. 28d; KB 27/​ 346 m. 24; Samuel E. Thorne, ed., Bracton on the Laws and Customs of England, 4 vols. (Cambridge, MA: 1968–​1977), 2:417.

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even, in the Sicilian context, with the suggestion of a duty to intervene to prevent rape.17 Most English appeals and indictments of rape refer to the linked factors of force and contravention of the victim’s will.18 What, however, did these encompass? What distinguished this force from the “normal” active part expected of a male in non-​ deviant sex?19 Where on the spectrum from barest acquiescence to enthusiasm lay the contemporary idea of a woman’s voluntary participation in sexual activity? Records do not give much direct information about the definition of these concepts, in part because of the structure of the actions themselves, which dealt with guilt as a global matter, leaving the whole question to the jury to decide between the parties as it saw fit, rather than making distinctions between act and intention, and which did not have a “burden of proof” in the modern sense. The best that can be done is often to make deductions as to when penetration was considered to have occurred against the woman’s will and through force based on contemporary evidential requirements, and what were seen as reasonable “defences” to negate the claim of force and lack of consent. We can surmise from the treatise accounts requiring proof of physical indicators of a struggle (torn clothes, bleeding),20 that it would not be possible to make out a case for force and lack of consent without significant physical evidence of resistance.21 Systems varied in their expectation of the victim in terms of demonstration of resistance, harm, and activity in prosecution. Idonea raised the hue and cry, but there is no sign that she was at a disadvantage in not having alleged that she cried out before or during the rape. Other systems, however, placed considerable importance on crying out as necessary evidence of non-​consent. The importance of crying out is stressed in laws in Sicily, for example, and the idea that silence indicated consent had currency in the work of canonists.22 English requirements were also less onerous than the common 17 James M. Powell, trans., Liber Augustalis or Constitutions of Melfi Promulgated by the Emperor Frederick II for the Kingdom of Sicily in 1231 (Syracuse, NY: Syracuse University Press, 1971), p. 26, lib. 1, tit. 23 (27).

18 See, for example: TNA JUST 1/​1109 m. 23d; JUST 1/​778 m. 37. Definitions generally use the language of the act being “against her will” as opposed to “without her consent”; see, for example: Thorne, Bracton, 2:414. These are not absolutely synonymous, but I will use the language of consent here for reasons of brevity and familiarity. 19 Ruth Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others (New York: Routledge, 2005).

20 Ranulf de Glanvill, Tractatus de legibus et consuetudinibus regi Anglie, ed. G. D. G. Hall with M. T. Clanchy (Oxford: Clarendon Press, 1993), lib. 14, c.6, pp. 175–​76; Thorne, Bracton, 2:344, 394.

21 Bleeding was included in the model rape appeal in Elsie Shanks and S. F. C. Milsom, eds., Novae Narrationes, Selden Society, 80 (London: Quaritch, 1963), 341–​44; for an example of allegation of bleeding in records of cases, see JUST 1/​1109 m. 23d. Idonea’s case seems to insist on the allegation of bleeding for an appeal of rape.

22 Liber Augustalis, 24, lib. 1, tit. 21; Kelleher, Measure, 133; James Brundage, “Rape and Marriage in the Medieval Canon Law,” Revue de droit canonique 28 (1978): 62–​75, at 69.

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Iberian expectation that a rape victim should perform her distress and outrage (and demonstrate that what had happened was done by force and without her consent) by raking her face with her nails, drawing blood.23 Cases and treatises both provide examples of successful defences. Past consent to sex with the defendant was usually taken to indicate voluntary participation on the occasion in question and (in England, at least) biological ideas positing the necessity of consent (and pleasure) for conception meant that pregnancy indicated that penetration had not been contrary to the woman’s will.24 Cases suggest that female consent might be assumed, or presumed on slender evidence, and could even come after non-​consensual penetration.25 Literary scholarship also presents the numerous ways in which the individual rapist’s guilt could be minimized or explained away, particularly by the shifting of blame to the victim for putting herself in harm’s way, and the suggestion that a woman might experience physical pleasure during an apparent sexual assault even if it began forcibly and against her will.26 There are, however, countervailing examples, from cases brought with different forms of procedure, which suggest the possibility of juries taking an approach which was less restrictive in terms of what amounted to lack of consent in relation to a sexual offence. The rolls of the eyre of Herefordshire, 1292, for example, include a case in which a woman recovered compensation from a man who agreed to act as a surgeon, but in fact drugged her and penetrated her against her will.27 The jury endorsed her claim that this was non-​consensual, and a wrong, without reference to any separate allegation of force, struggle, or clear objection, and despite the fact that she had gone willingly with the surgeon to another town. This seems to indicate the possibility of less stringency and prescriptive burden on the accuser than we have seen in appeals of rape, and serves as a warning against expecting too exact or consistent a definition of sexual consent in medieval legal materials, even those from within one legal system. 23 See Kelleher, Measure, 133; Dillard, Daughters of the Reconquest, 183.

24 Elise Bennett Histed, “Medieval Rape: A Conceivable Defence,” Cambridge Law Journal 63 (2004): 743–​69. By contrast, evidence from Wales shows acceptance there that a woman could become pregnant by rape: Sara Elin Roberts, The Legal Triads of Medieval Wales (Cardiff: University of Wales Press, 2007), 221.

25 John L. Barton, “The Story of Marital Rape,” Law Quarterly Review 108 (1992): 260–​71; Brundage, Law, Sex and Christian Society, 70. For defenses of prior sexual activity, pregnancy and consent, see JUST 1/​ 778 m. 55; KB 27/​566 m. 21; Fleta 2, book 1 c.33; Britton [Book I, c XXIV, 45b]; W. J. Whittaker and Frederic William Maitland, eds., The Mirror of Justices, Selden Society, 7 (London: Quaritch, 1893), 103: lib. 3, c.21; Seipp 1302.215rs, 1313.299ss, 1465.129; Samuel E. Thorne and John H. Baker, eds., Readings and Moots at the Inns of Court in the Fifteenth Century, 2 vols., Selden Society 71 and 105 (London: Quaritch, 1955–​1990) 2:275. 26 Saunders, Rape and Ravishment, 99, 112, 191.

27 TNA JUST 1/​302 m. 80; JUST 1/​303 m.75; Gwen Seabourne, “Drugs, Deceit and Damage in Thirteenth-​Century Herefordshire: New Perspectives on Medieval Surgery, Sex and the Law,” Social History of Medicine 30 (2017): 255–​76.

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Paradigmatic Parties The concept of rape included construction of victim paradigms, identifying those deemed most affected by sexual violation, those through whose violation wider society was most affected, and those most deserving of support. The record of the alleged facts in Idonea le Chesemongere’s case includes a number of factors which made John’s offence more likely than much sexual misconduct to be the subject of a successful prosecution: the victim was (very) young,28 and was a virgin. “Defloration” is a common part of the allegation in cases throughout the medieval period,29 and virginity was in some systems a formal factor in determining the nature of the prescribed penalty.30 English rape appeals and some treatise accounts suggest that prosecutions could relate to the rape of non-​virgins,31 but the loss of virginity was mentioned wherever possible: rape of virgins was the paradigm in that form of process.32 While medieval Welsh laws suggest that the rape of wives was not of concern to the king, there are indications from Reconquista Iberia that rape of wives was seen as an especially serious matter,33 and the rape of women with certain roles or social status—​ nuns and queens—​was generally treated with particular severity.34 Prostitutes were clearly some distance from paradigms of virginity and special honour, though there were constructions of the laws on rape which covered them too. The English common law treatise Bracton included them, both because raping them would affect public order, and also because the author accepted that their refusal of sex was legitimate and worthy of support.35 Norman custom, however, while taking care to state that if a prostitute was raped, and did not receive payment, she was entitled to that payment and to 28 TNA SC8/​199/​9943 states that she was under seven years old.

29 See, for example: TNA JUST 1/​642 m.15; KB 27/​516 m. 7; KB 27/​606 m. 29; KB 27/​725 m. 24. 30 Kelleher, Measure, 136 for an example from Valencia.

31 Thorne, Bracton, 2:298, 403, 414; Britton 1:55; Kerr, “Husband and Wife,” Appendix A; Roger D. Groot, “The Crime of Rape Temp. Richard I and John,” Journal of Legal History 9 (1988): 324–​25; John M. Carter, “Rape and Medieval English Society: The Evidence of Yorkshire, Wiltshire and London, 1218–​76,” Comitatus 13 (1982): 33–​63, at 50. For cases where non-​virgins’ appeals were acceptable, see Seipp 1407.12; Frederic William Maitland, Pleas of the Crown for the County of Gloucester (London: Macmillan, 1884), 18–​19.

32 For “deflowering,” see TNA KB 27/​839 m. 6d (of a ten-​year-​old girl); JUST 1/​24 m. 31d; KB 27/​ 754 m. 24d (of a wife); John G. Bellamy, The Criminal Trial in Later Medieval England: Felony Before the Courts from Edward I to the Sixteenth Century (Stroud: Sutton, 1998), 163.

33 Dafydd Jenkins and Morfydd Owen, The Welsh Law of Women (Cardiff: University of Wales Press, 1980), 49; Dillard, Daughters, 168–​92.

34 For nuns, see Statutes of the Realm (SR), ed. A. Luders et al. (London: Record Commission, 1810–​1827), 1, 87: 13 Edw. I c.34 (The Statute of Westminster II (1285)); Liber Augustalis, p. 23, lib. i, tit. 20 (23). For queens and other royal women, see SR 1, 319–​24, at 319–​20: 25 Edw. III st. 5. 35 Thorne, Bracton, 2:415, 418.

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compensation for damage to her clothes arising from the misconduct, did not penalize rape of a prostitute in the same way as the rape of other women.36 This appears to have been an issue which tested the boundaries of thinking about rape and rape law, and one on which jurisdictions differed.37 Laws make little overt comment allowing us to see how the offender was envisaged, and whether there was thought to be a typical or paradigm rapist. There was some tendency to see the rapist as in some sense Other or unusual: rape might be rendered more deviant via an association with foreigners, for example.38 Particular groups who seem to be seen as associated with rape differ over time and jurisdiction. Clergy form the most easily-​identifiable group in English prosecutions of rape and ravishment (though it has been suggested that some indictments of clergymen involved objections to fornication or concubinage rather than rape).39 In some Italian city states, nobles were seen as a particular problem,40 and in university towns like Paris, students have been singled out.41 English legal sources are not generally forthcoming on the important issue of social position of the parties, and how this affected perceptions and constructions. This is more overtly part of the law in other medieval European legal systems,42 and it would be surprising if it was not at least an informal factor in all decisions about prosecution and disposal.43 36 A. Porteau-​Bitker, “La justice laïque et le viol au Moyen Âge,” Revue historique de droit français et étranger 66 (1988): 491–​526, at 522.

37 Liber Augustalis, p. 24, lib. 1, tit. 21; Kelleher, Measure, 135; Dillard, Daughters, 84; Leah Otis-​ Cour, “La nature délictuelle du viol de la prostituée au Moyen Âge: Querelle ou consensus?” in Les controverses doctrinales: Recherches et travaux (Montpellier: Faculté de droit, 2000), 275–​92; Emelie Amt, ed., Women’s Lives in Medieval Europe: A Sourcebook (New York: Routledge, 1993), 60; Susan McDonough, Witnesses, Neigbors and Community in Late Medieval Marseille (London: Palgrave Macmillan, 2013); Trevor Dean, Crime and Justice in Late Medieval Italy (Cambridge: Cambridge University Press, 2007), 26. Note the restrictions in Welsh law on prostitutes’ ability to recover compensation for rape: Dafydd Jenkins, ed., The Laws of Hywel Dda (Llandysul: Gomer, 1986), 60. 38 See, for example, SR 2, 214: st. 1 Hen. VI c.3. For acts of rape committed by French soldiers, see Thomas Walsingham, Historia Anglicana, ed. Henry T. Riley, 2 vols. (London: Longmans Green, 1863–​1864), 2:107; Herbert Maxwell, trans., The Chronicle of Lanercost: 1272–​ 1346, 2 vols. (Cribyn: Llanerch, 2001), 136. For accusations of individual foreigners, see, for example: Skoda, Medieval Violence, 65; Seipp 1321.141ss. 39 Dunn, Stolen Women, 180–​90; R. L. Storey, “Malicious Indictments of Clergy in the Fifteenth Century,” in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M. J. Franklin and C. Harper-​Bill (Woodbridge: Boydell, 1995), 221–​50. 40 Lansing, “Conflicts,” 121.

41 Skoda, Medieval Violence, 148.

42 Lansing, “Conflicts,” 121; Carol Lansing, “Magnate Violence Revisited,” in Communes and Despots in Medieval and Renaissance Italy, ed. John Easton Law and Bernadette Paton (Farnham: Ashgate, 2010), 35–​48. 43 Post, “Ravishment,” 152.

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Legal sources did not generally delve into the offender’s supposed mentality, or seek to add further condemnation beyond that necessary to make out the offence. Bracton’s model appeal includes the allegation that the rape was done “wickedly,”44 and there is sometimes comment on the premeditation of the defendant, though English records do not generally go as far as asserting diabolic inspiration for the deed.45 Occasionally, an entry includes particularly condemnatory language: “evil,” “abominable” in relation to the fatal rape of a ten-​year-​old girl, and “heinous felony” in relation to rape in general.46 There are, however, also traces of a more flippant attitude, suggesting less sympathy for raped women. This can be seen in reports of judges’ ‘humorous’ anecdotes about women who do not understand the nature of sex,47 or the difficulty of sex between a girl and a ‘giant’ man,48 in jokes and smiles about rape,49 and in reporters’ prurient recounting of the details of a rape, even though it is not necessary for the legal point being made.50 The condemnation and the flippancy are also evident in non-​legal sources dealing with rape, which sometimes treat accusations of rape as extremely serious, at least where the women were noble,51 and sometimes belittle the seriousness of rape in terms of harm or moral offence, perhaps particularly when the victim was of a lowly social position.52 Legal constructions of rape and its limits were, clearly, influenced by the profoundly dissonant views concerning the nature of women which were current in medieval 44 Thorne, Bracton, ii, 416.

45 An exception is TNA JUST 1/​135 m. 2d. Note the references to diabolic inspiration in some Italian cases of rape (and other offences): Dean, Crime and Justice, 32–​33; Samuel Cohn, Women in the Streets: Essays on Sex and Power in Renaissance Italy (Baltimore: Johns Hopkins University Press, 1996), 201; Ruggiero, Boundaries of Eros, 90. 46 TNA JUST 1/​642 m. 15 (“nequiter”); KB 27/​566 m. 11.

47 Paul Brand, “Inside the Courtroom: Lawyers, Litigants and Justices in England in the Later Middle Ages,” in The Moral World of the Law, ed. Peter Coss (Cambridge: Cambridge University Press, 2000), 91–​112, at 111. See also a judicial anecdote resembling “Le héron” in Ian Short and Roy Pearcy, eds., Eighteen Anglo Norman Fabliaux (London: Anglo-​Norman Text Society, 2000), 31–​ 33; Seipp 1312.017ss. 48 Seipp 1310.108ss. 49 Seipp 1441.032.

50 Seipp 1321.141ss; Barbara A. Hanawalt, “Whose Story Was This? Rape Narratives in Medieval English Courts,” in “Of Good and Ill Repute”: Gender and Social Control in Medieval England (New York: Oxford University Press, 1998), 124–​41. 51 Peter Ainsworth, “Au-​delà des apparences: Jean Froissart et l’affaire de la dame de Carrouges,” Cahiers de recherches médiévales et humanistes 25 (2013): 109–​27; Antonia Gransden, “The Alleged Rape by Edward III of the Countess of Salisbury,” English Historical Review 87 (1972): 333–​44, at 341; Saunders, Rape and Ravishment, 301.

52 See, for example, Gravdal, Ravishing Maidens, 40; Katherine Gravdal, “The Poetics of Rape Law in Medieval France,” in Rape and Representation, ed. Lynn A. Higgins (New York: Columbia University Press, 1991), 207–​26, at 209; Mast, “Rape,” 105, 116.

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thought, and medieval views on rape cannot be considered in isolation from these wider discourses.53 Their identification of particularly “deserving” victims—​the noble, the religious, the young, the virginal—​tended to diminish concern for, and to exclude from the construction of victims of criminal deviance, those who did not fit these paradigms: the sexually experienced woman and the prostitute.

Condemnation and Concrete Action Rape was presented in medieval historiography as a great wrong, precipitating the need for redress and national or personal revenge. The rape or abduction of a prominent woman was portrayed as having caused serious disputes amongst men, or even warfare. In both Ireland and Iberia, for example, rape or abduction of women formed part of the explanation for famous examples of disorder and conflict between men.54 It might also be portrayed as an indicator of disorder and sin.55 One of the small number of offences routinely highlighted as serious and of concern to rulers,56 it was classified in England as an offence which might be detrimental to the king’s peace. Although this concept was increasingly debased over the course of the medieval period, it was certainly conceivable that, left without a response, or an avenue for legal recourse, rape might lead to retaliation and more demonstrable disorder, given that families, and husbands, considered themselves damaged and shamed by the infliction of violence upon women under their authority. In addition, the protection of the weak, including (classes of) women, was an important part of the royal role, mandated by Scripture and canon law,57 53 R. Howard Bloch, Medieval Misogyny and the Invention of Western Romantic Love (Chicago: University of Chicago Press, 1991); Alcuin Blamires, The Case for Women in Medieval Culture (Oxford: Clarendon Press, 1997).

54 See Castellanos, “Foundational Rape Tale”; Sizen Yiacoup, Frontier Memory: Cultural Conflict and Exchange in the Romancero Fronterizo (London: Modern Humanities Research Association, 2013), 46–​99; Sean Duffy, Ireland in the Middle Ages (Houndmills: Palgrave Macmillan, 1997), 57, 62–​63. 55 Claude Gauvard, “Fear of Crime in Late Medieval France,” in Medieval Crime and Social Control, ed. Barbara A. Hanawalt and David Wallace (Minneapolis: University of Minnesota Press, 1999), 1–​48, at 6.

56 PROME vi: Richard II, 1377–​1384, 240–​1; SR 1, 275: st. 1 10 Edw III pr.; 2, 68–​69: st. 2 13 Ric. II pr.; 2, 119: st. 1 Hen. IV c.20; 2, 27: 6 Ric II st. 1 c.6.

57 Elisabeth van Houts, “Intermarriage,” in A Social History of England, 900–​1200, ed. Julia Crick and Elisabeth van Houts (Cambridge: Cambridge University Press, 2012), 247–​55, at 252–​53; Frederick M. Powicke and Christopher R. Cheney, eds., Councils and Synods, with Other Documents Relating to the English Church, 2 vols. (Oxford: Clarendon Press, 1964), 2:584, no. 88. Some rapes were reserved for royal justice: Thorne, Bracton, 2:298, 415; Calendar of Patent Rolls (London: HMSO, 1891–​), Edward III, 2:1330–​1333, 489–​90 (September 14, 1332) and 3:1333–​1337, 724 (November 17, 1336); Corinne Saunders, “A Matter of Consent: Middle English Romance and the Law of Raptus,” in Medieval Women and the Law, ed. Noël James Menuge (Woodbridge: Boydell and Brewer, 2000), 105–​24, at 112. For echoes of theological condemnation, see Thorne, Bracton, 2:415.

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and a desire to be seen performing this obligation was one reason for royal initiatives and pronouncements against rape.58 The construction of rape as a wrong to which the legal system should respond did not owe everything to “top-​down” ideas of royal authority and public order, however. This is evident both from the methods of pursuing the offender and from the ways in which convicted rapists were treated. In England, several routes were developed to bring the matter to trial, some placing greater emphasis on effort by (and harm to) the individual victim, or to her male kin (appeals, bills and plaints), and others which might be seen as more closely tied to royal and community concerns (presentments and indictments, initiated by men from particular communities tasked with reporting offences).59 There was not a complete separation into actions concerned with preservation of the king’s peace, and those concerned with harm to individuals, however. This is demonstrated by Idonea’s case, for example, in which there were allegations of harm to the victim herself and to the king’s peace, and what began as an individual appeal was “taken over” by royal authorities.60 The different punishments set out and used in different jurisdictions also show the mixture of motivations for action against rapists, and the complex aggregation of ideas behind contemporary understandings of the nature of the wrong and harm of rape, though the interpretation of this information is not straightforward. Rape was commonly taken to be an offence punishable by the infliction, by a recognized legal authority, of mutilation or capital punishment.61 Other punishments might also be prescribed, however, including banishment, imprisonment, or financial penalty.62 58 For pronouncements asserting the generosity of the ruler in providing against the rape of prostitutes, see Liber Augustalis, p. 24, lib. 1, tit. 21 (24).

59 See, for example: TNA JUST 1/​303 m. 75; JUST 1/​302 m. 80; SC8/​196/​9798; CPR Edward I, 2:1279–​1288, 207 (May 9, 1283); Bellamy, Criminal Trial, Appendix 1, 162–​86; Dunn, Stolen Women, 52–​81; Christopher Whittick, “The Role of the Criminal Appeal in the Fifteenth Century,” in Law and Social Change in British History, ed. J. A. Guy and H. G. Beale (London: Royal Historical Society, 1984), 55–​72, at 62; Groot, “The Crime of Rape,” 324, 325–​26; Post, “Ravishment,” 154–​55; Daniel Klerman, “Women Prosecutors in Thirteenth-​Century England,” Yale Journal of Law and the Humanities 14 (2002): 271–​13, at 289. Note that appeals of rape of married women required the participation of the husband, who was also regarded as having been damaged. 60 Thorne, Bracton, 2:403 noted the possibility of royal suit if an appeal has not proceeded.

61 Thorne, Bracton, 2:417. For the prescription of capital punishment in other jurisdictions, see, for example: Siete Partidas, lib. 7, tit. 20, law 3; Claude Gauvard, “Justification and Theory of the Death Penalty at the Parlement of Paris in the Late Middle Ages,” in War, Government and Power in Late Medieval France, ed. Christopher Allmand (Oxford: Oxford University Press, 2000), 190–​209; Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. Amédée Salmon, 2 vols., rev. ed. (Paris: Picard, 1970–​1974), 1:428–​33, c.XXX; Annick Porteau-​Bitker, “La justice laïque,” 521; Liber Augustalis, p. 24, lib. 1, tit. 21. 62 Walter Prevenier, “Violence Against Women in Fifteenth-​Century France and the Burgundian State,” in Medieval Crime and Social Control, ed. Barbara A. Hanawalt and David Wallace (Minneapolis: University of Minnesota Press, 1999), 186–​203; Ruggiero, Boundaries of Eros, 93. For outlawry, see Ljungqvist, “Rape in the Icelandic Sagas,” 433–​34.

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Some systems prescribed or tolerated compensation, to the victim, and/​or to her family, instead of, or in addition to, a punishment by “the authorities.” This pluralist approach reflects that seen in literary sources, which vary in the resolutions imagined: sometimes the rapist dies, but he is not always seen as beyond redemption, or re-​education.63 As far as the victim is concerned, literature is inclined to write her out, by having her die, commit suicide, or otherwise disappear,64 suggesting that rape is an event of such magnitude that there is no possible positive future for the woman, or that her fate and experience is of much less interest than that of the perpetrator.65 Cases such as that of Idonea show that secular legal systems might see the need for a rather more practical response, dealing with the successful complainant’s future. It is frequently noted, with respect to England and other European jurisdictions, that there was a marked gap between the punishments prescribed for rape and the actual disposal of a case in which rape was proved. The imposition of the death penalty for rape in the English context is extremely rare.66 There is more evidence of the imposition of capital punishment for rape in some other jurisdictions,67 and particularly in the later part of the medieval period,68 but the tendency to use compensation or financial penalty rather than physical punishment is commonly seen. Idonea’s case, for example, shows a compensation payment and a financial penalty, when one might have expected capital punishment. In this case, the felon’s clerical status should, in any case, have shielded him from capital punishment.69 63 Amy Vines, “Invisible Woman: Rape as a Chivalric Necessity in Medieval Romance,” in Sexual Culture in the Literature of Medieval Britain, ed. Amanda Hopkins (Cambridge: Brewer, 2014), 161–​80; Katherine Millersdaughter, “The Geopolitics of Incest: Sex, Gender and Violence in the Fourth Branch of the Mabinogi,” Exemplaria 14 (2002): 271–​316, at 273, 296; Geoffrey Chaucer, “The Wife of Bath’s Tale,” in The Riverside Chaucer, ed. Larry D. Benson, 3rd ed. (Boston: Houghton Mifflin, 1987), 105–​22. 64 Saunders, Rape and Ravishment, 152–​86.

65 For a more positive outcome, see the fate of Goewin in the fourth branch of the Mabinogion, “Math vab Mathonwy,” who is compensated and marries a lord. Nevertheless, no more is heard of her: Sioned Davies, trans., The Mabinogion (Oxford: Oxford University Press, 2007), 47–​54. 66 Dunn, Stolen Women, 73.

67 Dean, Crime and Justice, 39, 49; Nicole Gonthier, “Les victimes de viol devant les tribunaux à la fin du Moyen Âge d’après les sources dijonnaises et lyonnaises,” Criminologie 27 (1994): 9–​32, at 30. Trevor Dean, Crime in Medieval Europe, 1200–​1550 (Abingdon: Routledge, 2001), 138; Prevenier, “Violence Against Women,” 186, 195. 68 Suggested differences in enforcement over time, with greater severity of punishment in fifteenth century, may be found in: Prevenier, “Violence Against Women,” 191; Claude Gauvard, “Paroles de femme: le témoignange de la grande criminalité en France pendant le règne de Charles VI,” in La femme au Moyen Âge, ed. Georges Duby, Michel Rouche, and Jean Heuclin (Maubeuge: Ville de Mauberge, 1990), 327–​40; Myriam Greilsammer, L’envers du tableau: mariage et maternité en Flandre médiévale (Paris: Colin, 1990), 70–​73; Ruggiero, Boundaries of Eros, 12, 90, 93.

69 Hugh M. Thomas, The Secular Clergy in England, 1066–​1216 (Oxford: Oxford University Press, 2014), 154–​89.

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It would be an over-​simplification to see the use of compensation rather than corporal or capital punishment as showing that rape was not in fact constructed as deviant by “the authorities.” The correlation between something being regarded as seriously wrong and harmful, and capital or mutilatory punishment was not particularly close in medieval common law. Such punishment was probably not expected to be imposed in all cases. As with other serious offences, various forms of diversion—​ pardons, abjuration or sanctuary, and benefit of clergy—​were, generally, tolerated,70 and there was a long tradition of dealing with rape through the requirement of a payment rather than a corporal penalty. Payments, whether compensatory, punitive. or both were a long-​standing mode of disposal in relation to rape and other offences, in England and in other western European jurisdictions, and the impetus to seek compensation never disappeared.71 Historians now tend to acknowledge the ways in which compensatory and conciliatory legal responses could nevertheless be ways of recognizing the gravity and social disruption of particular actions.72 In some cases, the imposition of a monetary solution was the best which could be expected: vindication through a formal declaration of the rapist’s guilt, plus a financial settlement, might well have been preferable for a victim, to seeing him executed and unable to give her material assistance, to compensate her for the decline in her chances of a socially-​appropriate marriage.73 A different, and sometimes more controversial form of disposal was to allow or encourage the victim to end the case by marrying the 70 See, for example: CPR Henry III, 4:1247–​1258, 192 (May 19, 1253); CPR Edward III, 7:1345–​ 1348, 541 (June 8, 1347); CPR Henry VI, 3:1436–​1441, 118 (November 18, 1437); Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–​1500 (New York: Fordham University Press, 2011), 155.

71 See, for example: Roberts, Legal Triads, 49, 51, 57, 93, 197; Jenkins, Hywel Dda, 51; Oliver, “Forced and Unforced Rape,” 95; Patricia Skinner, Living with Disfigurement in Early Medieval Europe (London: Palgrave Macmillan, 2017), 50; Pollock and Maitland, History of English Law, 1:202; John Hudson, “Order and Justice,” in A Social History of England, 900–​1200, ed. Julia Crick and Elisabeth van Houts (Cambridge: Cambridge University Press, 2011), 115–​23, at 117; Suzanne F. Wemple, “Consent and Dissent to Sexual Intercourse in Germanic Societies from the Fifth to the Tenth Century,” in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, ed. Angeliki E. Laiou (Washington, DC: Harvard University Press, 1998), 227–​44, at 229–​31; Ljungqvist, “Rape in the Icelandic Sagas,” 433–​34; Daniel Klerman, “Settlement and the Decline of Private Prosecution in Thirteenth-​Century England,” Law and History Review 19 (2001): 1–​65; Roger D. Groot, “The Jury in Private Criminal Prosecutions Before 1215,” American Journal of Legal History 27 (1983): 132–​37; Groot, “The Crime of Rape,” 327; Margaret H. Kerr, “Angevin Reform of the Appeal of Felony,” Law and History Review 13 (1995): 351–​91, at 361. 72 Roberts, Triads, 93; Pollock and Maitland, History of English Law, 2:202; Daniel Lord Smail, “Violence and Predation in Late Medieval Mediterranean Europe,” Comparative Studies in Society and History 54 (2012): 7–​34; Richard Ireland, “Law in Action, Law in Books: The Practicality of Medieval Theft Law,” Continuity and Change 17 (2002): 309–​31; Dillard, Daughters, 187. See especially Gauvard, “Justification and Theory of the Death Penalty.” 73 Jenkins, Hywel Dda, xxix. Financial redress might be made in respect of perceived damage or shame to the ruler, the victim, or, in some systems, the victim’s kin. Jenkins, Welsh Law of Women, 49, 86–​88.

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rapist. This was an “official” method of disposal in some systems,74 though there was some disquiet about it. Apart from its obvious misogyny, contemporaries suspected that this route might be abused by those wishing to force a man into marriage, and also, perhaps, conflicting ideas as to whether this method of resolving matters undermined the authority of royal justice.75 Though the use of compensation as opposed to capital punishment or mutilation of convicted rapists cannot be taken to indicate that rape was not taken particularly seriously when proved or admitted, there is robust evidence that few raped women or girls got to the point of seeing their rapist convicted: many English rape appeals did not get as far as putting the question of guilt to proof.76 Despite suggestions that women might abuse appeals of rape to secure marriage to a partner disapproved of by their parents, or to malign the innocent, however, there are good reasons not to see this as an indication of widespread false allegation of rape. The strenuous requirements and public nature of the appeal, and the financial and custodial risks of being found to have made a false appeal would tend to make it unlikely that many women would embark on one without a good case.77 There are contemporary statements of a fear of the possibility of women’s false complaint of rape (suggesting that a claim may be made either when there was, in fact, consent, or when there was not, in fact, any penetration at all),78 but also procedures which seem to give a high level of credence to women’s claims of rape.79 In the English context, there were complaints about false or improperly motivated appeals and indictments,80 but this is equally true of homicide, and we should be as circumspect in believing allegations of false accusation as is customary in considering 74 Kelleher, Measure, 139; Dillard, Daughters, 185; Alan Harding, Medieval Law and the Foundations of the State (Oxford: Oxford University Press, 2001), 59; Recueil des Actes de Philippe Auguste, roi de France, ed. Charles Samaran, Michel Nortier, and Jean Favier, 6 vols. (Paris: Imprimerie Nationale, 1916–​2005), 3:26, no. 977, c.20. 75 Thorne, Bracton, ii, 418; Liber Augustalis, p. 24, lib. 1, tit. 22 (25); Rebecca L. Winer, “Defining Rape in Medieval Perpignan: Women Plaintiffs Before the Law,” Viator 31 (2000): 165–​83, at 167–​68. For an example of disposal by marriage, see TNA JUST 1/​642 m.8.

76 Dillard, Daughters, 182. See, for example: Louise J. Wilkinson, Women in Thirteenth-​Century Lincolnshire (Woodbridge: Boydell and Brewer, 2007), 150; Barbara A. Hanawalt, The Wealth of Wives: Women, Law and Economy in Late Medieval London (Oxford: Oxford University Press, 2007), 45, 47; Kerr, “Husband and Wife,” 243; Klerman, “Women Prosecutors,” 271; TNA JUST 1/​359 m. 35d; Dunn, Stolen Women, 74, 76; Kerr, “Angevin Reform,” 361; Pollock and Maitland, History of English Law, 2:516. For an example of case in which a guilty verdict was reached in an appeal, see TNA JUST 1/​1109 m. 4.

77 Klerman, “Women Prosecutors,” 303; Post, “Ravishment,” 153; TNA JUST 1/​778 m. 45; KB 27/​ 642 m. 8; KB 27/​719 m. 56. 78 Liber Augustalis, p. 26, lib. 1, tit. 24 (28) discusses the death penalty for “women who complain unjustly.” 79 Jenkins, Hywel Dda, 51.

80 CPR Henry VI, 5:1446–​1452, 302 (December 1, 1449); Storey, “Malicious Indictments”; JUST 1/​ 778 m. 50.

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the truth or otherwise of all other allegations in legal records. In attempting to discern levels of contemporary suspicion of false accusation of rape, it is worth noting that, while false accusation is a relatively common plot in medieval literature,81 false accusations by women of rape were uncommon. A stronger case can be made out for fiction in “ravishment” cases brought by male kin, in which allegations of forcible removal might mask the reality of a woman having in fact left with some degree of free choice, though it is important not to take this too far, and assume that it made up a large proportion of ravishment cases. It is likely that ravishment cases involved a broad range of facts, some forcible and sexual, some consensual, and the terse nature of legal records makes it impossible to assess proportions. We should certainly avoid reasoning from the presence of some cases which may have been consensual to the likelihood that there was frequent false accusation by men of ravishment, and then to the likelihood that there was frequent false accusation by women of rape.

Conclusion

A consideration of rape shows that the law –​even one sort of law, within one jurisdiction –​ was a complex, multi-​faceted means of constructing categories of deviance: law and legal construction do not flow only from legislation or text, but also from the mass of instances of practice. We have been left only snapshots of this process, and may be left in discomfort by the distance between official condemnation of rape and prescription of the most severe punishment, the serious yet mundane response to Idonea daughter of Geoffrey le Chesemongere’s rape, and the “humorous” normalizing and enabling of some literary treatments and judicial jokes. Attitudes to rape in medieval Europe were multi-​ layered, and those in power could to some extent choose how to categorize and respond to sexual assault. In relation to legal constructions of rape, different ideas were in play, ranging from a broad conception of rape as an offence against any woman, including prostitutes for example, to a narrower idea or practice of it as limited to those who had previously been virgins. This took place against the backdrop of shifting intellectual understandings of the role of family and consent in marriage and the frequently inconsistent discourses as to the nature of women. Amidst all of this intellectual oscillation, sometimes a rapist was identified and punished, if not by execution or mutilation, at least in some way, so as to alleviate the harm he had caused the woman, and we should not belittle Idonea’s “win” for its lack of a fatal conclusion. We should, however pay attention to the investment of medieval men in the construction of non-​rape. On the one hand, all this legal activity upheld the existence or seriousness of rape in the abstract, with some practical support for selected victims. However, the other hand, a propensity to excuse or condone in particular instances coming before courts and juries is striking: so often either the victim, or the perpetrator, 81 Consider, for example, the false accusation of Rhiannon in Mabinogion, First Branch.

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or the circumstances, did not seem to those in a position to determine such cases to fit the ideas of egregious deviance set out in condemnatory rhetoric.

Selected Secondary Sources

Amt, Emilie, ed. Women’s Lives in Medieval Europe: A Sourcebook. New York: Routledge, 1993. Bellamy, John G. The Criminal Trial in Later Medieval England: Felony Before the Courts from Edward I to the Sixteenth Century. Stroud: Sutton, 1998. Brundage, James. “Rape and Marriage in the Medieval Canon Law.” Revue de droit canonique 28 (1978): 62–​75. Dean, Trevor. Crime in Medieval Europe, 1200–​1550. Abingdon: Routledge, 2001. Dillard, Heath. Daughters of the Reconquest: Women in Castillian Town Society, 1100–​1300. Cambridge: Cambridge University Press, 1984. Dunn, Caroline. Stolen Women in Medieval England: Rape, Abduction and Adultery, 1100–​1500. Cambridge: Cambridge University Press, 2012. Gonthier, Nicole. “Les victimes de viol devant les tribunaux à la fin du Moyen Âge d’après les sources dijonnaises et lyonnaises.” Criminologie 27 (1994): 9–​32. Gravdal, Kathryn. Ravishing Maidens: Writing Rape in Medieval French Literature and Law. Philadelphia: University of Pennsylvania Press, 1991. Hanawalt, Barbara A. “Whose Story Was This? Rape Narratives in Medieval English Courts.” In “Of Good and Ill Repute”: Gender and Social Control in Medieval England, 124–​41. Oxford: Oxford University Press, 1998. Karras, Ruth Mazo. Sexuality in Medieval Europe: Doing Unto Others. New York: Routledge, 2005. Kelleher, Marie A. The Measure of Woman: Law and Female Identity in the Crown of Aragon. Philadelphia: University of Pennsylvania Press, 2010. Ljungqvist, Fredrik C. “Rape in the Icelandic Sagas: An Insight in the Perceptions About Sexual Assaults on Women in the Old Norse World.” Journal of Family History 40 (2015): 431–​47. Saunders, Corinne. Rape and Ravishment in the Literature of Medieval England. Woodbridge: Boydell and Brewer, 2001. Seabourne, Gwen. “Drugs, Deceit and Damage in Thirteenth-​Century Herefordshire: New Perspectives on Medieval Surgery, Sex and the Law.” Social History of Medicine 30 (2017): 255–​76. Winer, Rebecca L. “Defining Rape in Medieval Perpignan: Women Plaintiffs Before the Law.” Viator 31 (2000): 165–​83.

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AN ANALYSIS OF “RAPE” IN ISLAMIC LEGAL DISCOURSE (1000–​1500 CE) Yasmine Badr

Introduction This chapter will begin by highlighting the salient features of the discourse on “rape” and sexual offences in medieval Islamic legal texts with the aim of highlighting the expansiveness of “rape” as a legal concept. Accordingly, the chapter will be divided into several parts. First, I will offer an introduction to the topic and delineate the methodology used in this chapter. Then I will outline the different kinds of “rape” legally recognized as criminal offences and part three will deal with the different forms of justice suggested for these crimes.1 Finally, the last part will conclude by exploring the implications of the expansiveness of medieval Islamic legal condemnations of sexual violence. The term “rape” is used in this study in the broad sense recently defined by Pillay as a “physical invasion of a sexual nature committed in circumstances which are coercive.”2 This definition was chosen for various reasons. First, it does not follow previous definitions of rape, often based on an assumed and inadequate binary of violence or consent. Defining rape as a crime of violence has been criticized for privileging violent sexual assaults, especially stranger rapes, and proof thereof; this focus can obfuscate the more widespread acquaintance rapes that do not resort to the violent suppression of the victim’s will. Furthermore, definitions of rape that locate the wrongfulness of rape in the negation of the victim’s consent often shift the focus of rape investigation onto the nature of consent or dissent, the victim, her demeanour, sexual history and so on, rather than the perpetrator.3 Pillay’s definition makes coercion the base for the wrongness of 1 I am using the term “crime” guardedly in this paper particularly in view of Wael Hallaq’s argument that the term crime, with its modern connotations and affinity to modern means of punishment enforced by modern carceral systems of law enforcement, is not an apt translation of pre-​modern “offences” embedded in a completely different weltanschauung. Wael Hallaq, Shariʿah: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 308–​11. 2 Navanethem Pillay, “Address—​Interdisciplinary Colloquium on Sexual Violence as International Crime: Sexual Violence: Standing by the Victim,” Law & Social Inquiry 35, no. 4 (2010): 847–​53.

3 Maria Eriksson, Defining Rape: Emerging Obligations for States under International Law? (Leiden: Martinus Nijhoff, 2011), 37–​51; John Gardner and Stephen Shute, “The Wrongness of Rape,” in Oxford Essays in Jurisprudence: Fourth Series, ed. Jeremy Horder (Oxford: Oxford University Press, 2002), 193–​217; Victor Tadros, “Rape Without Consent,” Oxford Journal of Legal Studies 26, no. 3 (2006): 515–​43; Jennifer Temkin and Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude (Oxford: Hart, 2008).

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rape. This definition includes myriad sexual acts under the rubric of sexual violation without tying such sexual “invasion” to a particular gender, in terms of the victims or the perpetrators. The medieval primary sources explored in this study are similarly capacious in terms of the conception and definition of sexual violence. Consequently, I use the term “rape” in the broadest sense possible to indicate a wide spectrum of sexual offences. Medieval and premodern Islamic legal texts interested themselves in sexual offences involving violence, coercion, threats, or seduction. Indeed, rape was portrayed as complex and differentiated, and defied a single monolithic definition. Instead of having one term to refer to all acts of sexual violation and one legal category to refer to it, medieval jurists coined different terms and devised different legal categories to deal with this complex set of offences. Legal texts classified sexual violation under different legal categories depending on the context and nature of the crime, its underlying wrongfulness as well as the means used to overcome the victim’s will. Sexual violation appeared under the category of ikrāh when it was perceived as a crime of duress, under ghaṣb when the rape involved the seizure/​abduction of the victim and ṣiyāl when physical assault was involved, as well as zinā (illicit sexual penetration) when the rape culminated in sexual penetration. This legal and linguistic plurality carried significant ramifications concerning the conception of this crime, its context, means, and redress for it and allowed for the recognition of several forms of sexual violation as legally repugnant. These ranged from acquaintance to stranger rapes, rape committed through violent or non-​violent means, marital sexual violence, the rape of males and females, the rape of virgins and non-​virgins as well as rape through seduction or abduction. Moreover, sexual violation did not have to culminate in penetration for an act to be recognized as legally repugnant. As such, a wide range of unwanted sexual acts was prohibited by law, thereby warranting some form of punishment or redress. Strikingly, the capaciousness of definitions of sexual violence meant that victims’ subjectivity was taken seriously; sexual violence within marriage was conceptually possible; the relationship between notions of proof and normative definitions was complex and nuanced. Structurally, this produced a sense that rape was as much defined by the subjectivity of those assaulted, as by objective means of corroboration and notions of sexual property.4 In terms of sources and methodology, I engage with a wide range of furūʿ (substantive) texts in order to gauge a wide range of opinion from different eras and different geographical locations. Legal texts in Islamic law can be divided into different genres. There are the jurisprudential uṣūl texts which deal with the sources and the different methodologies used in the derivation of the law; the qawāʿid which elaborate the most important rules; the furūʿ which embody the substantive corpus of the law such as marriage, divorce, inheritance, sales, and punishments among others; and 4 For further information, please refer to Yasmine Badr, “Defining and Categorizing ‘Rape’: A Study of Some Pre-​Modern and Early Modern Islamic Legal Sources,” PhD Diss., McGill University, 2019.

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360 Yasmine Badr the fatāwá which are collections of legal responsa, in addition to court records. The importance of the furūʿ in particular lies in the fact that they contain the substantive discourse on the different kinds of rape: they occupy an intermediate position between the jurisprudence of the uṣūl and the qawāʿid, on the one hand, and the legal practice of the court records and fatāwá, on the other hand. Moreover, the furūʿ were shown to comprise legal responsa culled from the queries which people posed to jurists.5 Accordingly, the furūʿ formed part of the curriculum taught to aspiring jurists and were often written by author-​jurists who sometimes worked as judges in courts of law or juris-​consults (muftīs) consulted by the public. Jurists usually adhered to a particular school of law thereby following the particular methodologies, hermeneutics, and curriculum of that school. Different schools adopted different hermeneutical tools which sometimes led to substantive differences between them.6 Here I focus on substantive legal texts from the four Sunnī schools of law, namely, the Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī schools, in order to demonstrate a wide range of opinions across space and time between 1000–​1500 CE. This chapter argues for the presence of a robust discourse on sexual offences in works of Islamic legal theory. It does not do so on the basis of court records or legal responsa (fatāwá). There are two reasons for that: first, there are numerous studies that already explored the different ramifications of sexual offences in court records and the fatāwá. Seminal works on legal practice include the scholarship of Delfina Serrano, Leslie Peirce, and Elyse Semerdijian, to name a few.7 Second, there are very few studies which have explored the legal theory behind the different conceptions of rape8 or that sought to challenge the claim that “rape” did not exist in legal theory but only in legal practice.9 Consequently, this study aims to join this burgeoning scholarship by addressing some of the lacunae in the theoretical articulation of sexual offences in Islamic legal theory, thereby demonstrating that “rape” did indeed exist in legal theory. Due to the paucity of studies on the theoretical discourse on sexual offences, a comprehensive comparison 5 Wael Hallaq, “From Fatwās to Furūʿ: Growth and Change in Islamic Substantive Law,” Islamic Law and Society 1, no. 1 (1994): 29–​65. 6 Ayman Shabana, “Legal Schools,” in Encyclopedia of Islam and the Muslim World, Second Edition (China: Gale, 2006), 655–​61.

7 Delfina Serrano, “Rape in Maliki legal Doctrine and Practice (8th–​15th C.E.),” HAWWA 5, no. 2–​3 (2007): 166–​206; Leslie Peirce, “Le dilemme de Fatma: crime sexuel et culture juridique dans une cour ottomane au début des temps modernes,” Annales. Histoire. Sciences Sociales 53, no. 2 (March–​ April, 1998): 291–​319; Elyse Semerdijian, “Off the Straight Path” Illicit Sex, Law, and Community in Ottoman Aleppo (Syracuse: Syracuse University Press, 2008). 8 Hina Azam, Sexual Violation in Islamic Law. Substance, Evidence and Procedure (Cambridge: Cambridge University Press, 2015); Mairaj U. Syed, Coercion and Responsibility in Islam: A Study in Ethics and Law (Oxford: Oxford University Press, 2017); Khaled Abou El-​Fadl, “Law of Duress in Islamic and Common Law: A Comparative Study,” Islamic Studies 30, no. 3 (1991): 305–​50. 9 The claim that rape did not exist in Islamic legal theory was made by Colin Imber, “Zina in Ottoman Law,” in Colin Imber, Studies in Ottoman History and Law (Istanbul: Isis, 1996), 178.

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between theory and practice has yet to be conducted, even though Serrano and Semerdijian have begun doing so. In terms of school differences or affinities, these can be observed in three distinct domains, namely, methodology, structure, and legal substance. All four schools of law engaged with the various definitions and categories of sexual offences as well as the different facets of justice, both punitive and restorative. They all discussed sexual duress (ikrāh), sexual assaults (ṣiyāl), sexual penetration (zinā), and seizure for sexual purposes (ghaṣb), for example. Moreover, they all followed the same methodology in elucidating the meaning of sexual terms. Jurists usually referred to sexual terms at the outset of their works in the sections on ritual purity, fasting and the pilgrimage.10 After outlining a particular term and/​or elucidating its meaning, jurists, for the most part, did not repeat their elucidations elsewhere within the same oeuvre. Similarly, one finds that legal developments were always in the sense of the expansion of definitions by later scholars rather than their contraction or limitation. A case in point is the definition of the coercer that we shall shortly see. Legal change was thus mostly change across time and mostly in the sense of enlargement rather than curtailment. As for school differences, these can be observed in the structure of the furūʿ as well as their legal content. The most glaring school differences pertain to the arrangement of topics within furūʿ works and the overall structure of these works. We find that the category of ikrāh/​duress, for example, was discussed by all schools but it was only the Ḥanafīs that devoted a separate chapter to it.11 The other schools dealt with duress within other categories.12 Similarly, the Shāfiʿīs were the only jurists to devote a separate chapter to assaults.13 These differences in the layout of the furūʿ might suggest that certain schools emphasized certain definitions or understandings of “rape” above others. Or, it might suggest that certain definitions were the forte of particular jurists only. A victim of a stranger rape might, for example, have sought the advice of a Shāfiʿī jurist since the Shāfiʿīs were perhaps more versed in this category than their counterparts from the other schools. This difference in the “architecture” of the furūʿ was not observed by other scholars and that attention to the relation between the structure of the furūʿ and their content can be further exploited. In terms of substantive legal differences, certain variations exist with regards to the criminal punishment of the accused as well as the different forms of reparations 10 Muwaffaq al-​Dīn ʿAbd-​Allāh ibn Aḥmad ibn Qudāma, Al-​Mughnī (Beirut: Dār al-​Kutub al-​ ʿIllmiyya, n.d.), 3:58, 60–​61, 314–​15; Abī Zakariyyā Yaḥyá ibn Sharaf al-​Nawawī, Rawḍat al-​ṭālibīn, ed. Fuʾād ibn Sirāj ʿAbd al-​Ghaffār (Cairo: al-​Maktaba al-​Tawfīqiyya, n.d.), 2:394; ʿAlī ibn Sulaymān ibn Aḥmad al-​Mardāwī, al-​Inṣāf fī maʿrifat al-​rājiḥ min al-​khilāf ʿalá madhhab al-​imām Aḥmad ibn Ḥanbal, ed. Muḥammad Ḥassan Ismāʿīl (Beirut: Dār al-​Kutub al-​ʿIllmiyya, 1997), 3:274, 477. 11 For example, Shams al-​Dīn al-​Sarakhsī, Kitāb al-​Mabsūṭ (Beirut: Dār al-​Maʿrifa, n.d.), 24:38–​155. 12 For example, Ibn Qudāma, Mughnī, 8:260; Muḥammad ibn Aḥmad ibn Rushd, Bidāyat al-​mujtahid wa nihāyat al-​muqtaṣid (Cairo: al-​Maktaba al-​Tawfīqiyya, n.d.), 2:652; Nawawī, Rawḍat, 2:394.

13 For example, Muḥammad b. Idrīs al-​Shafiʿī, Kitāb al-​Umm (n.p.: Kitāb al-​Shaʿb, 1968), 6:178; Nawawī, Rawḍat, 7:395–​402; Abī Isḥāq Ibrāhīm ibn ʿAlī al-​Firūzabādī al-​Shīrāzī, Al-​Muhadhdhab fī fiqh al-​Imām al-​Shāfiʿī (Cairo: Maktabat Muṣṭafá al-​Bābī al-​Ḥalabī, 1976), 2:288.

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362 Yasmine Badr offered to victims. Whereas most schools favoured the combination of civil and criminal punishment of the accused, the Ḥanafī school did not. Hina Azam, in particular, has paid special attention to the substantive differences between the Ḥanafī and Mālikī schools by arguing that the Mālikīs privileged civil redress and the payment of an indemnity to victims of rape, whereas the Ḥanafīs preferred the criminal punishment of the perpetrator.14 Civil reparation came in the form of different indemnities that were paid to the victim, as we shall shortly see. Even though indemnities were required by all schools, Shāfiʿī jurists seem to have awarded victims the most compensation.15 These indemnities were paid to the victim, if she were a free woman, or to her owner, if she had been a slave.16 Jurists did not state that the indemnity was to be paid to her father or husband, for example. The use of gendered language is worth noting in the discourse on indemnities because it implies that male victims of coerced sex were perhaps not offered an indemnity in this early period. Moreover, this use of gendered language stands in contrast to other sections of the furūʿ where a non-​gendered register was sometimes used when describing sexual acts or assaults. A case in point is the famous jurist Khalīl ibn Isḥāq’s (d. ca. 1365 CE) definition of sexual penetration in which he used the broad term “human” (ādamī), as in human orifice (farj ādamī), without tying said sexual penetration to males, females or the intersex.17

The Different Kinds of “Rape” Ikrāh (Duress/​Coercion)

Sexual violation committed through coercive means was placed under the legal category of duress which was called ikrāh (literally meaning coercion). Jurists always started their definitions of duress with the markers of coercion (in the form of the coercive acts 14 Azam, Sexual Violation, 150, 154–​56, 240.

15 See for example, ʿAlāʾ al-​Dīn Abī Bakr ibn Masʿūd al-​Kāsānī, Kitāb Badāʾiʿ al-​ṣanāʾiʿ fī tartīb al-​ sharāʾiʿ (Cairo: Dār al-​Ḥadīth, 2004), 10:466–​67; Sarakhsī, Mabsūṭ, 24:90; Shams al-​Dīn Muḥammad ibn ʿAbd-​Allāh al-​Zarkashī, Sharḥ al-​Zarkashī ʿalá Mukhtaṣar al-​Khiraqī, ed. ʿAbd al-​Monʿim Khalīl Ibrāhīm (Beirut: Dār al-​Kutub al-​ʿIllmiyya, 2002), 2:161; Ibn Rushd, Bidāyat, 2:491; Nawawī, Rawḍat, 7:166–​67; Abī al-​Ḥassan ʿAlī ibn Muḥammad al-​ Māwardī, Al-​Ḥāwī al-​kabīr (Beirut: Dār Iḥyāʾ al-​Turāth al-​ʿArabī, 2009), 16:30; Muḥammad ibn Maḥmūd al-​Bābartī, Sharḥ al-​ʿInāya ʿalá al-​Hidāya, printed in Ibn al-​Humām, Muḥammad ibn ʿAbd-​al-​Wāḥid al-​Sīwāsī, Sharḥ Fatḥ al-​Qadīr (Beirut: Dār al-​Fikr, 1991), 9:249.

16 See for example: Zarkashī, Sharḥ, 2:160; Bābartī, Sharḥ, 9:249; Sarakhsī, Mabsūṭ, 24:90; Muḥammad ibn ʿAlī al-​Ḥaṣkafī, al-​Durr al-​mukhtār sharḥ Tanwīr al-​abṣār, printed with Muḥammad Amīn Ibn ʿĀbidīn, Ḥāshiyat Radd al-​muḥtār ʿalá al-​Durr al-​mukhtār sharḥ Tanwīr al-​abṣār (Cairo: Maktabat wa Maṭbaʿat Muṣṭafá al-​Bābī al-​Ḥalabī, 1984), 6:145, 217–​18; Burhān al-​Dīn ʿAlī ibn Abī Bakr ibn ʿAbd al-​Jalīl al-​Marghinānī, Al-​Hidāya sharḥ Bidāyat al-​mubtadī (Cairo: al-​Maktaba al-​Tawfīqiyya, n.d.), 4:102.

17 Khalīl ibn Isḥāq al-​Jundī, Mukhtaṣar al-​ʿalāma Khalīl, printed with Ṣāliḥ ʿAbd al-​Samīʿ al-​Ābī al-​ Azharī, Jawāhir al-​iklīl sharḥ Mukhtaṣar al-​ʿalāma Khalīl (Cairo: Maṭbaʿat Muṣṭafá al-​Bābī al-​Ḥalabī, n.d.), 2:283.

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that a coercer performs) rather than the markers of resistance by the coerced.18 The wrongfulness of duress was based on two different concepts, namely, the nullification of victim consent and the negation of his/​her choice, as well as the harm principle.19 Acts deemed legally coercive could be physical in nature, such as being slapped, beaten, bound, imprisoned, and strangled; or take the form of threats (both implicit and explicit) made against the coerced or their kin such as a person’s children, parents, or servant; or they could include economic measures such as the usurpation of money or property.20 Interestingly, the harm done to a person through ridicule, insults, blackening someone’s face and public humiliation was also recognized as valid forms of duress to the person.21 In other words, coercion was seen to encompass physical and verbal duress, the duress of goods as well as duress to the person and to kin. In determining the nature of a coercer’s (al-​mukrih) power, the issue of power versus capacity was raised. Did the coercer have to wield official authority to be deemed coercive or could a coercer be anyone with the capacity to enforce his will on others? According to an early opinion attributed to Abū Ḥanīfa (d. 767 CE), the eponym of the Ḥanafī school of law, only a sultan could be legally recognized as coercive. This opinion, however, was contested by his two students Abū Yūsuf (d. 798 CE) and Shaybānī (d. 805 CE) who argued that anyone with the capacity to enforce his will on another could be recognized as coercive. According to these two jurists, capacity (al-​qudra) rather than official position was to be recognized as the determining factor.22 By modifying Abū Ḥanīfa’s earlier opinion, jurists expanded the definition of a coercer. This inclusion of capacity as a demarcating factor was adopted by jurists from the other schools as well.23 In describing sexual duress, jurists used different terms to refer to different types of coercive sexual acts. They used the term zinā (together with ikrāh) to describe a penetrative coercive sexual act as in al-​ikrāh ʿalá al-​zinā.24 Penetration, as zinā, 18 For example: ʿAlī ibn Aḥmad ibn Ḥazm, al-​Muḥallá, ed. Lajnat Iḥyāʾ al-​Turāth al-​ʿArabī (Beirut: Dār al-​Jīl, n.d.), 8:330; ʿUmar ibn al-​Ḥusayn ibn ʿAbd-​Allāh al-​Khiraqī, Mukhtaṣar al-​ Khiraqī, printed with Shams al-​Dīn Muḥammad ibn ʿAbd-​Allāh al-​Zarkashī, Sharḥ al-​Zarkashī ʿalá Mukhtaṣar al-​Khiraqī, ed. ʿAbd al-​Monʿim Khalīl Ibrāhīm (Beirut: Dār al-​Kutub al-​ʿIllmiyya, 2002), 2:466; Nawawī, Rawḍat, 6:52–​54; Kāsānī, Badāʾiʿ, 10: 97.

19 Sarakhsī, Mabsūṭ, 24:28; Marghinānī, Hidāya, 4:69; Nawawī, Rawḍat, 6:52–​54. 20 Khiraqī, Mukhtaṣar, 2:466; Ibn Qudāma, Al-​Mughnī, 8:260.

21 Nawawī, Rawḍat, 6:52–​54; Khalīl, Mukhtaṣar, 1: 340; Shīrāzī, Al-​Muhadhdhab, 2:100; Māwardī, Ḥāwī, 13:77–​78.

22 Kāsānī, Badāʾiʿ, 10:98, 109; Marghinānī, Hidāya, 4:67; Sarakhsī, Mabsūṭ, 24:88.

23 Ibn Qudāma, Al-Mughnī, 8:261; Mardāwī, Inṣāf, 8:440; Ibn Ḥazm, Muḥallá, 8:335.

24 Jurists used the term ikrāh or derivatives of the verb of kurh to refer to coerced penetration in various sections of furūʿ works, especially the sections on zinā and ikrāh. See for example, Kāsānī, Badāʾiʿ, 10:109–​110; Shīrāzī, Muhadhdhab, 2:342; Māwardī, Ḥāwī, 17:45; Nawawī, Rawḍat, 7:320–​ 321; Ibn Rushd, Bidāyat, 2:652–​53; Khalīl, Mukhtaṣar, 2:153; Mardāwī, Inṣāf, 10:171. It was also used in earlier works such as Shafiʿī, al-​Umm, 3:230; al-​Imām Mālik ibn Anas, al-​Muwaṭṭaʾ (n.p.: Dār Iḥyāʾ al-​Kutub al-​ʿArabiyya, n.d.), 2:647.

364

364 Yasmine Badr was understood in the very narrow sense of penile penetration, rather than digital penetration or penetration with an object, for example. Similarly, Ḥanafī jurists limited the interpretation of zinā to vaginal penetration, while Shāfiʿī, Ḥanbalī and Mālikī jurists expanded it to include both anal and vaginal penetration.25 The interpretation of the term zinā was thus very closely constructed and did not display the capaciousness of other terms. By contrast, the term waṭʾ, as in al-​ikrāh ʿalá al-​waṭʾ, was used to refer to coercive coitus in general.26 Waṭʾ indicated a broad sexual spectrum that included vaginal, anal, penetrative, and non-​penetrative sex as well as heterosexual and homosexual sexual acts.27 As such, when jurists used the phrase al-​ikrāh ʿalá al-​waṭʾ, they meant by it coerced coitus in general and not a particular kind of sexual act, I would argue. Similarly, jurists used the term jimāʿ to refer to a broad range of sexual acts. Jimāʿ, however, seems to have been used exclusively to denote sex between legitimate couples (i.e. where the sex occurred within a relationship deemed licit by law).28 The usage of the term ikrāh in conjunction with jimāʿ is particularly interesting because it indicates that jurists recognized that sexual coercion could occur within licit relationships. Sexual coercion in legally licit relationships was not viewed as a “family” or private matter beyond the purview of the law. Although consent to sex was deemed to have been given at the moment of the marriage contract, sex within licit relationships was not unfettered but was restricted with regards to its timing and nature. As such, sex with a menstruating woman was prohibited as well as sex during the pilgrimage to Mecca and from sunrise to sunset during the month of Ramadan.29 If sex was demanded during the pilgrimage or the fasting month of Ramadan,30 the timing rendered it unacceptable rather than because it was an assault on the woman’s sexuality. Similarly, if sexual relations were violent in nature and led to physical injuries, jurists called for the payment of an indemnity to the spouse in such cases, as we shall see later. The usage of multiple terms to refer to different acts of sexual coercion indicates that legists saw this as a multi-​faceted offence. Sexual coercion was not legally limited to penetration, for example, but a broad range of sexually coercive acts were recognized as legally repugnant. 25 Rudolph Peters, “Zinā or Zināʾ,” The Encycloaedia of Islam, new edn (Leiden: Brill, 2002), 11:509–​10; Sara Omar, “From Semantics to Normative Law: Perceptions of Liwāṭ (Sodomy) and Siḥāq (Tribadism) in Islamic Jurisprudence (8th–​15th Century CE),” Islamic Law and Society, 19 (2012): 230–​36; Kāsānī, Badāʾiʿ, 10:103; Marghinānī, Hidāya, 2:366; Khalīl, Mukhtaṣar, 2:283; Shīrāzī, Muhadhdhab, 2:344. 26 Ibn Ḥazm, Muḥallá, 8:335; Shīrāzī, Muhadhdhab, 1:247.

27 Māwardī, Ḥāwī, 13:160–​62; Shafiʿī, al-​Umm, 5:, 39; Khalīl, Mukhtaṣar, 1: 146, 151; Kāsānī, Badāʾiʿ, 9:187; Ibn Ḥazm, Muḥallá, 8:335; Ibn Qudāma, Al-Mughnī, 1:204.

28 Zarkashī, Sharḥ, 1:424; Sarakhsī, Mabsūṭ, 4:121; Marghinānī, Hidāya, 2:55; Nawawī, Rawḍat, 2:394. 29 Ibn Rushd, Bidāyat, 1:113, 520, 588.

30 Shāfiʿī, al-​Umm, 2:86; Mardāwī, Inṣāf, 3:446–​47; Ibn Qudāma, Al-Mughnī, 3:58, 315–​16; Zarkashī, Sharḥ, 1:424; Sarakhsī, Mabsūṭ, 4:121; Marghinānī, Hidāya, 2:55; Nawawī, Rawḍat, 2:394.

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Discussion of sexual coercion was placed by jurists within the sections on duress and zinā (illicit penetrative sexual intercourse); such placement may indicate that jurists perceived of this crime as one straddling both categories: in many ways, it was a double affront. Furthermore, sexual coercion was both a civil and a criminal offence in terms of redress and punishment, in the sense that it was an offence that demanded civil redress in the form of an indemnity and a criminal offence that warranted the physical punishment of the coercer. This placement and double mention may also indicate the importance which this crime was accorded. The focus on consent emerges with particular clarity in the discussion of punishment. The ḥadd (severe physical punishment) was prescribed for people convicted of all illicit penetrative sex (zinā).31 However, jurists repeatedly stated that those coerced into zinā were not to be punished through the ḥadd, particularly women.32 Shīrāzī (d. 1083 CE), for example, stated that the ḥadd “should not be [dealt] to a woman if she were coerced into submitting to zinā” because of the lack of choice on her part in the performance of such an act.33 Likewise, Mardāwī (d. 1480 CE) declared that the valid opinion within his school was that a coerced woman should not receive the ḥadd “absolutely”34 while Kāsānī (d. 1191 CE) maintained that: There is no difference between [duress] that uses force and one that does not use force. The ḥadd is lifted from her with both kinds of duress because the act of zinā cannot be attributed to her … what can be attributed is submission (tamkīn) which cannot be proof of consent under coercion. [Consequently,] the ḥadd is lifted from her.35

The ratio legis (ʿilla) for the lifting of the ḥadd from a female accused of zinā seems to have been her perceived lack of sexual agency according to Kāsānī or the nullification of consent according to Shīrāzī. Interestingly, jurists also questioned the active sexual agency of a male claiming sexual duress. Jurists asked if sexual coercion could be claimed by a male, particularly if the latter had played an active role (al-​fāʿil) in the sexual act. Was a positive erectile response an indication of sexual agency or not, was it also a sign 31 The ḥadd (sing.)/​ḥudūd (plural) are very severe punishments for specific crimes: these are zinā (illicit penetrative sexual intercourse), qadhf (slander/​the false accusation of zinā), theft, intoxication, and the consumption of alcohol, as well as ḥirāba (highway robbery). The ḥudūd were described as the rights of God; hence a culprit could always hope for God’s forgiveness. Moreover, because the ḥudūd were very severe punishments the degree of proof for such crimes was extremely high, especially in the absence of confession. For further reading, see H. A. R. Gibb and J. H. Kramers, eds., Shorter Encyclopaedia of Islam (Ithaca: Cornell University Press, 1961), 115–​16. 32 Sarakhsī, Mabsūṭ, 24:90, 138; Kāsānī, Badāʾiʿ, 10:110; Shīrāzī, Muhadhdhab, 2:242; Māwardī, Ḥāwī, 17:58; Mardāwī, Inṣāf, 10:171. 33 Shīrāzī based his opinion on two arguments, a rational one (the lack of choice) and a textual one (a Prophetic ḥadīth). Shīrāzī, Muhadhdhab, 2:342. 34 Mardāwī, Inṣāf, 10:171. 35 Kāsānī, Badāʾiʿ, 10:110.

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366 Yasmine Badr of his desire (al-​shahwa), willingness (al-​ṭawāʿiya), and choice (al-​khayār), or not?36 Moreover, could a positive erectile response occur in the presence of fear and coercion or not? Bābartī (d. 1384), for example, formulated this issue as follows: Zinā cannot be imagined from a man except with his erection which cannot happen without arousal; which is a sign of his willingness in contrast to a woman because she is the abode of the act and with fear, compliance can be achieved … compliance cannot constitute proof of willingness [on the part of a female].37

However, juristic opinion on this issue varied greatly: some early jurists interpreted a positive erectile response as a sign of choice and agency, while later jurists allowed a male claim of coercion by arguing that a positive male response can occur in the presence of duress.38 In other words, later jurists did not tie a coerced male’s pleasure to consent and did not see it as a sign of agency. Within the discourse on duress in furūʿ works, jurists rarely mentioned actual cases of sexual coercion. Rather, jurists used neutral terms and elaborated their thoughts in general rather than specific terms. Some examples from the furūʿ, however, give us a sense of the range and multiplicity of cases deemed legally valid. We find cases of husbands coercing their wives, or being coerced by other individuals (a third party) into having sexual intercourse with their spouses during the fast or the pilgrimage.39 Similarly, we find slave women being forced into prostitution by their owner;40 as well as the case of a man sexually abusing his step-​mother;41 or a father in-​law being coerced into sexual intercourse with his daughter in-​law.42 In addition to male coercers, female coercers were also mentioned in the case of women intentionally organizing a sexual assault on a virgin and deflowering her.43 These cases demonstrate that different kinds of rape, particularly, acquaintance rape, were legally recognized as such. Moreover, single or multiple criminal actors were recognized as valid coercers. The recognition and inclusion of spousal and acquaintance rape is an important phenomenon because it demonstrates the extent of the legal gaze within the private sphere. In other words, the 36 Sarakhsī, Mabsūṭ, 24:88–​89; Marghinānī, Hidāya, 2:372; Kāsānī, Badāʾiʿ, 10:109; Muḥammad ibn Maḥmūd al-​Bābartī, Sharḥ al-​ʿInāya ʿalá al-​Hidāya, printed in Ibn al-​Humām, Muḥammad ibn ʿAbd-​al-​Wāḥid al-​Sīwāsī. Sharḥ Fatḥ al-​Qadīr (Beirut: Dār al-​Fikr, 1991), 9:249. 37 Bābartī, Sharḥ, 9:249.

38 Ibn Ḥazm, Muḥallá, 8:331; Māwardī, Ḥāwī, 17:58; Sarakhsī, Mabsūṭ, 24:88–​89; Marghinānī, Hidāya, 2:372; Kāsānī, Badāʾiʿ, 10:109; Bābartī, Sharḥ, 9:249; Abī Ḥāmid Muḥammad ibn Muḥammad al-​Ghazālī, Al-​Wasīṭ fī al-​madhhab (Beirut: Dār al-​Kutub al-​ʿIllmiyya, 2001), 3:273; Mardāwī, Inṣāf, 10:171.

39 Mardāwī, Inṣāf, 3:446–​47; Ibn Qudāma, Al-Mughnī, 3:58, 315–​16; Zarkashī, Sharḥ, 1:424; Sarakhsī, Mabsūṭ, 4:121; Marghinānī, Hidāya, 2:55; Nawawī, Rawḍat, 2:394. 40 Shāfiʿī, al-​Umm, 5:156.

41 Ibn Qudāma, Al-Mughnī, 7:225. 42 Ibn Ḥazm, al-​Muḥallá, 7:211.

43 Ibn Qudāma, Al-Mughnī, 8:68.

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purview and protection of the law were extended beyond the public sphere and were brought into the family and the spousal bed. The recognition of different forms of rape, together with the usage of different terms to denote various sexual acts, demonstrate that the legal protection of sexuality was not limited to the protection of virginity but extended to other forms of sexual violation. Similarly, jurists did not limit the ambit of sexual offences to penetrative acts but extended their definition of sexual violation to non-​penetrative acts through their recognition of a broad sexual spectrum as legally repugnant. An important topic that jurists raised in the discourse on duress was the subjective feelings of the coerced (fem. al-​mukraha/​mas. al-​mukrah). Victim experience was predicated on the coerced’s perception of the physical and psychological harm that could befall them, their belief in the capacity of their coercer to inflict such harm as well as their fear (khawf), misery, and degree of personal helplessness (ʿajz) vis-​à-​vis their coercers.44 Accordingly, for duress to obtain, the coerced must have firmly believed that their coercers had the capacity to inflict harm. Such belief did not need to amount to absolute certainty but to a high degree of probability (ghālib al-​raʾy or al-​zann or akthar al-​raʾy).45 The subjectivity of victim experience and the elements that were thought to shape that experience were later expanded by subsequent jurists.46 The subjectivity of victim experience took cognizance of the victim as a person rather than a sexual object and introduced the notion of the sexual person or subject vis-​à-​vis the notion that the victim was merely a sexual object. The subjectivity of victim experience in the discourse on duress stands in sharp contrast to the emphasis on such objective elements as violence, force, kidnapping, utmost resistance, and corroboration which are insisted upon in the category of ghaṣb (which will be explored shortly). It is important to take note of the subjectivity found in duress because it stands as a counter-​argument to the body as property argument in the discourse on ghaṣb. If we were to ignore the elements outlining victim experience, we might conclude that rape was regarded solely as a crime against the sexual property of the coerced person, whether the victim herself if she were free and was, consequently, the owner of her body, or the sexual property of the owner of a slave woman if the victim had been a slave. Additionally, that proof of rape rested solely on the corroboration of seizure, abduction, misappropriation, violence, and resistance. Similarly, if we were to ignore the discourse on ghaṣb, we might conclude that rape cases were judged solely on 44 Shāfiʿī, al-​Umm, 2:210; Nawawī, Rawḍat, 6:52.

45 Shīrāzī, Muhadhdhab, 2:99; Nawawī, Rawḍat, 6:52; Kāsānī, Badāʾiʿ, 10:98; Marghinānī, Hidāya, 4:67; Bābartī, Sharḥ, 9:233; Ibn Qudāma, Al-Mughnī, 8:261; Zarkashī, Sharḥ, 2:466; Mardāwī, Inṣāf, 8:440.

46 See for example: Muḥammad ibn Ḥusayn ibn ʿAlī al-​Ṭūrī, Takmilat al-​Baḥr al-​rāʾiq sharḥ Kanz al-​daqāʾiq, printed with Zayn al-​Dīn Ibn Nujaym, al-​Baḥr al-​Rāʾiq sharḥ Kanz al-​daqāʾiq (n.p.: Dār al-​Kitāb al-​ʿArabī, n.d.), 8:80–​82; Ḥaṣkafī, Durr, 6:137; Al-​Shaykh Nizām et al., al-​Fatāwá al-​Hindiyya (Diyār Bakr, Turkey: al-​Maktaba al-​Islāmiyya, 1973), 5:36; Muḥammad ibn ʿArafa al-​Dasūqī, Ḥāshiyat al-​Dasūqī ʿalá al-​Sharḥ al-​kabīr (Cairo: Dār Iḥyāʾ al-​Kutub al-​ʿArabiyya, n.d.), 2:368.

368

368 Yasmine Badr the basis of the subjective perceptions of the plaintiffs, as described in the category on duress. Together, however, subjectivity and the body as property argument demonstrate the complexity and nuances of how the crime of rape was conceived. An important caveat to be made here is that the burden of proof always fell on the plaintiff while making a claim for redress. This is based on the principle that “proof was incumbent on the plaintiff and the defendant could take an oath” to deny his wrongdoing.47 Ghaṣb (Seizure/​Misappropriation)

Ghaṣb, as a legal category, dealt with crimes involving the misappropriation and seizure of property (both movable and immovable) as well as the abduction and seizure of individuals.48 The abduction and seizure of individuals could have been undertaken for sexual purposes or for other purposes such as benefiting from the labour of the victim.49 As such, the term ghaṣb did not ipso facto mean sexual violation but could have meant seizure or abduction as well.50 Although all schools of law had sections on ghaṣb in their substantive furūʿ works, they differed regarding the scope of such a category. Mālikī scholars, such as Ibn Rushd (Averroes d. 1198 CE) and Khalīl (d. ca. 1365 CE), included the seizure, usurpation, and abduction of both free and slave individuals within this category whereas their counterparts from the other schools did not.51 The latter limited ghaṣb to slaves only (as property) and dealt with the seizure and maltreatment of free individuals under other categories.52 The wrongfulness of ghaṣb was located in the act of unlawful seizure.53 The elements of force, aggression, and violence were not required by all schools of law and numerous 47 Ibn Qudāma, Al-Mughnī, 12:94.

48 Nawawī, Rawḍat, 4:96–​156; Shīrāzī, Muhadhdhab, 1:482–​94; Kāsānī, Badāʾiʿ, 10:7–​73; Marghinānī, Hidāya, 4:93–​103; Muḥammad ibn Muḥammad al-​Khaṭīb al-​Shirbīnī, Mughnī al-​muḥtāj ilá maʿrifat alfāẓ al-​Minhāj (Cairo: Dār al-​Ḥadīth, 2006), 3:286–​319; Zarkashī, Sharḥ, 2:158–​64; Ibn Rushd, Bidāyat, 2:479–​91; Ibn Qudāma, Al-Mughnī, 5:374–​459.

49 For different instances of ghaṣb involving individuals (free or slave), for sexual purposes or not, please see Shīrāzī, Muhadhdhab, 1:491; Nawawī, Rawḍat, 4:100, 105, 107; Kāsānī, Badāʾiʿ, 10:16; Marghinānī, Hidāya, 4:102; Shirbīnī, Mughnī, 3:304; Zarkashī, Sharḥ, 2:16; 1bn Qudāma, Al-Mughnī, 5:448.

50 Similarly, Henry Kelly had argued that in medieval England the terms “raptus” and “rapere” also carried the dual meaning of seizure and abduction on the one hand, as well as sexual violation on the other hand. Henry Ansgar Kelly, “Statutes of Rapes and Alleged Ravishers of Wives: A Context for the Charges against Thomas Malory, Knight,” Viator 28 (1997): 361–​419.

51 Ibn Rushd, Bidāyat, 2:486 where Ibn Rushd discusses the case of a usurped slave woman and Khalīl, Mukhtaṣar, 2:148–​54. 52 Nawawī, Rawḍat, 4:105, 107; Kāsānī, Badāʾiʿ, 10:16; Ibn Qudāma, Al-Mughnī, 5:448.

53 Ibn Qudāma, Al-Mughnī, 5:374–​459; Sarakhsī, Mabsūṭ, 11:49; Marghinānī, Hidāya, 4:93; Zarkashī, Sharḥ, 2:158; Nawawī, Rawḍat, 4:96; Khalīl, Mukhtaṣar, 2:148.

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jurists argued that unlawful seizure could occur without recourse to violence or asportation.54 Sexual violation was portrayed within this category as the illegal misappropriation and usage of the sexual property of another. Such misappropriation, jurists argued, warranted the payment of monetary compensation to the owner of said property. Consequently, the owner of a slave woman took the compensation for the harm done to his slave.55 As such, the Shāfiʿī jurist Nawawī (d. 1277 CE) stated that if someone had forced himself on a slave woman, he had to pay her owner an indemnity equal to the amount of dower (mahr) that she would have ordinarily received, in addition to being punished through the ḥadd, if he had known that sexual intercourse with her was deemed legally illicit. Akin to free women, slaves were also entitled to a dower upon marriage. Moreover, if the usurped slave woman (maghṣūba) had been a virgin, an additional indemnity called arsh was required as well.56 Similarly, a free woman who had been coerced into sex also received an indemnity equal to the amount of dower that she or her peers would have received (mahr al-​ mithl) and the perpetrator would have also received the ḥadd punishment for his deed, according to the Mālikī jurist Ibn Rushd.57 Interestingly, some jurists made the ḥadd punishment contingent on the sexual act that followed the abduction or seizure of the female in question and did not tie such punishment to the issue of female consent.58 In other words, the ḥadd punishment was to be meted out whether the female had agreed to sexual intercourse or not. This stance thus precluded an argument from consent from being made by the perpetrator and made punishment contingent on the act of seizure. This interpretation also made the act of sexual ghaṣb into a strict liability offence where punishment/​redress obtained by virtue of the actus reus irrespective of the apparent mens rea of the culprit. Consequently, tangible proof or corroboration of the act of seizure was required of a female plaintiff. Such proof included holding onto the accused, raising the hue and cry, resisting to the utmost and the sight of blood.59 By demanding tangible proofs, jurists 54 Nawawī, Rawḍat, 4:96; Shirbīnī, Mughnī, 3:286; and perhaps Khalīl, Mukhtaṣar, 2:148. For jurists who did not insist on asportation, please see Zarkashī, Sharḥ, 2:158; Māwardī, Ḥāwī, 8:310 and Mardāwī, Inṣāf, 6:115. For jurists who insisted on asportation, please see Kāsānī, Badāʾiʿ, 10:7; Marghinānī, Hidāya, 4:93. 55 Ibn Qudāma, Al-Mughnī, 5:407.

56 Nawawī, Rawḍat, 4:149; Mardāwī, Inṣāf, 6:159.

57 Ibn Rushd, Bidāyat, 2:491. See also Ibn Qudāma, Al-Mughnī, 5:407. 58 Ibn Qudāma, Al-Mughnī, 5:407; Mardāwī, Inṣāf, 6:159.

59 Khalīl, Mukhtaṣar, 2:153, 285; Muḥammad ibn Yūsuf al-​ʿAbdarī al-​ Mawwāq, al-​Tāj wa al-​iklīl li-​Mukhtaṣar Khalīl, printed with Muḥammad ibn Muḥammad ibn ʿAbd al-​Raḥmān al-​ Ḥaṭṭāb, Kitāb Mawāhib al-​Jalīl li-​sharḥ Mukhtaṣar Khalīl (Beirut: Dār al-​Fikr, 1992), 5:292; Ibn Abī Zayd al-​Qayrawānī, Risālat printed with Aḥmad ibn Ghunaym ibn Sālim al-​Nafrāwī, al-​Fawākih al-​dawānī ʿalá Risālat ibn Abī Zayd al-​Qayrawānī (Cairo: Maṭbaʿat Muṣṭafá al-​Bābī al-​Ḥalabī, 1955), 2:284; Mālik ibn Anas, al-​Muwaṭṭaʾ, 2:647.

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370 Yasmine Badr perhaps also wanted to distinguish between coercive seizure and consensual elopement, for example. The female victim thus had to perform her dissent and publicize her grief in order to demonstrate that she had been coerced into the sexual act and had not eloped or consented to sex. As can be seen, the burden of proof for this category was much higher than the previous one on coercion. Ṣiyāl (Assaults)

Sexual violation was equally mentioned within the legal category of ṣiyāl which literally meant assaults. This category dealt with physical assaults, attempted physical assaults and their ramifications. Within this category, the various means of assault, the kind of compensation (ḍamān) that wrongdoers had to pay to their victim, as well as the means of resistance that victims were encouraged to pursue in the event of an assault, were discussed.60 Interestingly, within this discourse some jurists also mentioned cases of unwanted sex where seduction rather than force was used to overcome the will of the victim. An early example of an attempted sexual assault was described by Māwardī (d. 1058 CE) as follows: A maiden went out of Medina to gather firewood when she was followed by a man who tried to tempt her. She threw a fihr at him killing him and the matter was brought before ʿUmar [the second Caliph].61

In the event, the maiden was absolved of both civil and criminal liability and was not punished for the man’s murder. The maiden and the assaulted, in general, were absolved of liability in such cases on the basis of textual as well as rational reasons. Basing themselves on Quranic principles, Prophetic and non-​Prophetic precedents, jurists argued that whoever injures or kills his attacker while protecting his own life, family, sexuality, and property cannot be held criminally liable for the results, if certain criteria were met.62 The importance of the above quotation lies in its description of a typical stranger rape, in the sense of an attack committed by a stranger preying on a lonely female and overcoming the will of the latter.63 However, what was interesting in Māwardī’s words was the means of assault. Instead of describing a violent act, Māwardī stated that the man tried to overcome the will of the victim through temptation and seduction. 60 Muzanī, Mukhtaṣar, printed with Shāfiʿī, al-​Umm, 5: 178–​79; Shīrāzī, Muhadhdhab, 2: 288; Nawawī, Rawḍat, 7: 395–​402; Shirbīnī, Mughnī, 5: 520–​42. 61 Māwardī, Ḥāwī, 17: 252. The same incident was also reported by Muzanī, Mukhtaṣar, 5: 178.

62 Shafiʿī, al-​Umm, 6: 172–​73; Muzanī, Mukhtaṣar, 5:178; Māwardī, Ḥāwī, 17:252–​53; Shīrāzī, Muhadhdhab, 2:288; Nawawī, Rawḍat, 7:395; Shirbīnī, Mughnī, 5:520; Muḥammad al-​Khaṭīb al-​ Shirbīnī, al-​Iqnāʿ fī ḥall alfāẓ Abī al-​Shujāʿ (Cairo: Dār Iḥyāʾ al-​Kutub al-​ʿArabiyya, n.d.), 2:240–​41. 63 For more on the different kinds of rape, please refer to Susan Estrich, Real Rape (Cambridge, MA: Harvard University Press, 1987).

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Moreover, Māwardī used the same verb stem “r-​w-​d” that was used in Quran 12: 23, 26, 30, 32, and 51 to describe the attempted seduction of Joseph by Potiphar’s wife. Māwardī was not the only jurist to have mentioned the above precedent and to have used the same phrase.64 Consequently, by including seduction in the discourse on assaults, jurists recognized that sexual assaults could be achieved through both violence and/​or seduction. The importance of this recognition lies in the fact that seduction, unlike force, cannot be corroborated through objective means such as bloodstains, bodily marks of resistance, torn clothing, and so on. In other words, this recognition would tend to favour the victim’s account of events. Jurists suggested a wide range of resistance strategies to victims of assaults ranging from utmost resistance and reasonable resistance to total submission. They advocated a gradual process starting with mild means and progressing to more forceful ones such as entreating the aggressor, raising the hue and cry, calling for help, beating the aggressor with one’s hands, striking the latter with a whip, a stick, a sword and ultimately killing the aggressor in order to save one’s life, sexuality, or kin.65 Although violent resistance was allowed and even encouraged, submission was judged to be equally acceptable.66 Taking the concept of seduction seriously meant adopting a nuanced sense of consent and coercion. Similarly striking, then, was the acknowledgement that if a victim submitted to their attacker without forcefully resisting, this was still an offence. This carried important ramifications in terms of the lack of corroborative evidence of struggle.

Redress

In terms of redress for sexual violation, jurists developed a similarly variegated set of categories. These modes of redress spanned both punitive and restorative justice and were not limited to the physical punishment of the accused. Discussion of restorative justice usually preceded that on punitive justice in the texts. Although this discourse encompassed various means, I would like to concentrate on two, namely, reparation and restitution. Restitution came in the form of the legal recognition of a rape victim, who had been deflowered as a result of her rape, as a de jure virgin even when she was not factually so. Numerous jurists stated that any female who had lost her virginity as a result of injury, jumping, heavy menstruation, or zinā for which she had not been convicted (i.e. she had not been deemed culpable), was to be legally recognized as a de jure virgin.67 Consequently, jurists developed two terms to refer to virgins: a bikr who was a de jure virgin and an ʿadhrāʾ who was both 64 Muzanī, Mukhtaṣar, 5:178.

65 Shīrāzī, Muhadhdhab, 2:288; Nawawī, Rawḍat, 7:395–​96.

66 Māwardī, Ḥāwī, 17:256.

67 ʿAbd-​Allāh ibn Aḥmad al-​Nasafī, Kanz al-​daqāʾiq, printed with ʿAbd al-​Ḥakīm al-​Afghānī, Kashf al-​ḥaqāʾiq sharḥ Kanz al-​daqāʾiq, ed. Maḥmūd al-​ʿAṭṭār (Cairo: Maṭbaʿat al-​Mawsūʿāt, 1900), 3:124; Kāsānī, Badāʾiʿ, 3:374–​75; Sarakhsī, Mabsūṭ, 5:8; Marghinānī, Hidāya, 2:170.

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372 Yasmine Badr a de facto and de jure virgin.68 Kāsānī (d. 1191 CE), for example, clearly stated that, in reality, virginity is defined through the presence of the hymen whereas non-​virginity is defined through the absence of the hymen; however, the law “is not based” on this understanding,69 meaning that the absence of the hymen did not ipso facto designate the female as non-​virgin. As mentioned earlier, the loss of virginity through non-​ sexual means (jumping, heavy menstruations) or sexual means for which the victim had not been deemed culpable, did not designate the female as a non-​virgin de jure. In addition, a jurist such as Nawawī (d. 1277 CE) was well aware of the fact that some females were born without a hymen and, hence, its absence did not mean that the female was a non-​virgin.70 The coinage of two different terms by medieval jurists to refer to a virgin raises a number of questions concerning the importance or the place of virginity within contemporary societies. Were jurists anxious about the disruption to a victim’s life and her future marriage prospects? Was virginity so axiomatic to marriageability that jurists had to enlarge the definition of virginity to include as many women as possible? Or, on the contrary, was virginity a sufficiently flexible concept that jurists felt free to enlarge its definition beyond its literal meaning? Reparation to the victim came in the form of different indemnities which the culprit and/​or his kin had to pay to the victim.71 Each indemnity had a different name and responded to a particular deed. Thus, there was the mahr which was equal to the amount of dowry that a victim would have received from her prospective groom under normal circumstances;72 there was the arsh which was an indemnity for defloration and which Shāfiʿī jurists in particular called for;73 and there was the diya for physical injuries. The diya was to be determined according to the extent of physical injury that the victim had sustained. Although a victim of sexual violence could have sustained genital and non-​ genital injuries, the discourse on genital injuries is particularly revealing concerning marital sexual violence. For example, a diya was called for in cases of sexual violence that resulted in tears to a woman’s perineum. As Nawawī stated: The obligation of a diya for perineal tears resulting from intercourse is the same whether [the doer] is the husband … or a zānī. The husband settles the dower for intercourse leading to a perineal tear … and a dower equivalent to that of her peers for a man who had sex with her through shubha and the same for the zānī if she had been coerced, as well as the ḥadd.74

68 Sarakhsī, Mabsūṭ, 5:8 and to a lesser extent Kāsānī, Badāʾiʿ, 3:374. 69 Kāsānī, Badāʾiʿ, 3:374–​75.

70 Nawawī, Rawḍat, 5:376–​77.

71 See for example: Kāsānī, Badāʾiʿ, 10:466–​67.

72 Ibn Rushd, Bidāyat, 2:491; Zarkashī, Sharḥ, 2:160; Bābartī, Sharḥ, 9:249; Sarakhsī, Mabsūṭ, 24:90; Māwardī, Ḥāwī, 16:30; Nawawī, Rawḍat, 7:166. 73 Nawawī, Rawḍat, 7:167; Shirbīnī, Mughnī, 5:326. 74 Nawawī, Rawḍat, 7:166.

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Jurists distinguished between different types and degrees of genital tears and the different amounts of compensation to be paid for each, and did not exempt husbands from reparation for sexual violence and injury to their partners.75 An important caveat is in order, however, concerning the discourse on sexual injuries. The furūʿ, being products of their time, were clearly anxious about the notion of compensation to be paid by a husband to his spouse as well as the nature and scope of sexual consent. Indeed, the furūʿ reveal a tension between wishing to compensate the victim for the injuries sustained, and not wanting to deny a husband’s access to his partner’s sexuality: the marriage contract embedded future consent to sexual relations. Yet we find a range of views. Some jurists, for example, tried to limit a husband’s access on the basis of the nature of marital consent to sexual relations or on the basis of a wife’s age, physique, and health. For example, two early opinions existed within the Ḥanafī school concerning the payment of an indemnity to a wife who had consented to sexual relations. Abū Ḥanīfa (d. 767 CE) and Shaybānī (d. 805 CE) argued that since a perineal tear was the result of a consensual act, it should not be compensated for; while Abū Yūsuf (d. 798 CE), on the other hand, argued that a wife’s consent was given to sexual relations and not to perineal tears, hence an indemnity must be paid by a husband in such a case.76 Furthermore, some jurists argued that if a husband had sexual relations with his wife knowing that she was young or thin or weak or could not tolerate sexual relations and that she would be injured as a result, his act would have been considered fully intentional and he would have had to pay her an indemnity out of his own funds. If, however, such a husband did not know that he would injure his wife and the injury was not deemed as an intentional act on his part, then his kin could have been asked to share the burden of payment with him so as to alleviate his financial burden.77 In terms of punitive justice, the ḥadd punishment was prescribed for those found guilty of sexually coercing others (in the sense of both ikrāh and ghaṣb).78 The ḥadd could take the form of banishment for a year, corporal punishment in the sense of lapidation as well as capital punishment. The application of physical punishment as well as its degree depended on a host of factors such as the nature of the crime (whether penetrative or not), the kind of evidence available, the degree of certainty that the evidence engendered as well as the age and status (virgin or non-​virgin, free or slave) 75 Zarkashī, Sharḥ, 3:59; Mardāwī, Inṣāf, 10:82, 110; Ibn Qudāma, Al-Mughnī, 9:651–​53; Ghazālī, Wasīṭ, 4:80; Nawawī, Rawḍat, 7:166; Shīrāzī, Muhadhdhab, 2:267. 76 Kāsānī, Badāʾiʿ, 10:466–​67.

77 Mardāwī, Inṣāf, 10:82; Ibn Qudāma, Al-Mughnī, 9:651–​53; Zarkashī, Sharḥ, 3:59; Nawawī, Rawḍat, 7:166. Although an ʿāqila was mostly formed of one’s agnates, it could have included one’s guild members or members of an army unit.

78 Shāfiʿī, al-​Umm, 3:230; Mardāwī, Inṣāf, 6:159; Shirbīnī, Mughnī, 3:316; Māwardī, Ḥāwī, 8:337; Kāsānī, Badāʾiʿ, 10:109–​10 (especially for the discourse on the ḥadd in relation to male sexual agency); Ibn Rushd, Bidāyat, 2:491; Ibn Qudāma, Al-Mughnī, 5:407.

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374 Yasmine Badr of the parties involved.79 So for example, zinā pertained to illicit penetrative sex, and required proof beyond the shadow of any doubt that penetration had taken place and that the relationship between the sexual couple was absolutely illicit. Given that people accused of zinā could have lost their lives or received draconian physical punishment if convicted, jurists demanded absolute certainty that there were no mistakes of law or fact in such cases. Mistakes of fact included mistakes in eyewitness accounts of the alleged rape or doubt that full penetration had taken place. Proof of zinā demanded the testimony of four male Muslim eyewitnesses of good repute and sound mind who had already attained the age of majority and who had seen the penetrative act with their own eyes. If such witnesses could not be found, a conviction of zinā could not be enforced. Mistakes of law, on the other hand, included any mistakes or doubts that could be raised concerning the illicitness of the relationship between the sexual couple or the probity, character, and reputation of the witnesses.80 In other words, given the severe nature of the punishment for zinā, jurists demanded what they perceived to be the highest form of evidence for it. They demanded absolute certainty before condemning someone to death, lapidation, or banishment. It is important to note that not all schools favoured the combination of the civil and criminal punishment of the accused. As mentioned, the civil punishments came in the form of the various indemnities such as the mahr and criminal physical punishment came in the form of the ḥadd. Whereas the Shāfiʿīs, Mālikīs and Ḥanbalīs had called for the payment of a mahr in addition to the ḥadd as punishment for a rapist, Ḥanafī jurists did not.81 For the latter, the mahr could not be combined with the ḥadd, although Kāsānī allowed the combination of a diya indemnity for physical injuries with the ḥadd,82 and Sarakhsī allowed the combination of an indemnity with the ḥadd in cases of sexual coercion.83 Interestingly, by making sexuality into an indemnifiable property, many jurists thus transformed this crime into a civil one in addition to being a criminal offence, and allowed for two forms of punishment to be meted out simultaneously to perpetrators.

Conclusion

Rape did not exist as a single legal category. Instead of one crime called rape and one umbrella term denoting the different kinds of sexual violation, premodern jurists recognized each form of sexual violation as a distinct crime. The ratio legis for each 79 For the discourse on the ḥadd of zinā and the rulings on it, please see Nawawī, Rawḍat, 7:311–​ 21; Khalīl, Mukhtaṣar, 2:283–​86; Shīrāzī, Muhadhdhab, 2:340–​48; Mawwāq, al-​Tāj, 6:290–​98; Qayrawānī, Risālat, 2:281–​87; Nawawī, Rawḍat, 7:311–​26. 80 Nawawī, Rawḍat, 7:311–​26.

81 Ibn Rushd, Bidāyat, 2:491; Nawawī, Rawḍat, 7:166; Ibn Qudāma, Al-Mughnī, 5:407, 412–​13; Shāfiʿī, al-​Umm, 3:230; Sarakhsī, Mabsūṭ, 24:90.

82 Kāsānī, Badāʾiʿ, 10:465.

83 Sarakhsī, Mabsūṭ, 24:90.

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category was anchored in a different perception of its deviance, hence different terms were devised to refer to these different kinds of sexual violation and different means of redress were elaborated. The outcomes spanned the civil and the criminal binary and justice was tailored to fit the various elements of the crime. Moreover, the means of redress for rape were not only punitive in nature, but restorative as well. Jurists tried to help victims of sexual violation through both restitution and reparation. This plurality in the legal and discursive construction of “rape” was much broader than modern definitions of rape which are usually structured around the axes of violence and consent. Consequently, given the legal plurality in the medieval definition and classification of “rape,” could we argue that the portrayal of rape as a single crime is a modern invention, conceptually, legally, and linguistically?

[128.104.46.206] Project MUSE (2024-02-29 22:10 GMT) UW-Madison Libraries

Selected Secondary Sources

Abou El-​Fadl, Khaled. “Law of Duress in Islamic and Common Law: A Comparative Study.” Islamic Studies 30, no. 3 (1991): 305–​50. Azam, Hina. Sexual Violation in Islamic Law. Substance, Evidence and Procedure. Cambridge: Cambridge University Press, 2015. Badr, Yasmine. “Defining and Categorizing ‘Rape’: A Study of Some Pre-​Modern and Early Modern Islamic Legal Sources.” PhD diss., McGill University, 2019. Hallaq, Wael. Shariʿah: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009. Imber, Colin. “Zina in Ottoman Law.” In Studies in Ottoman History and Law, edited by Colin Imber, 178–​90. Istanbul: Isis, 1996. Omar, Sara. “From Semantics to Normative Law: Perceptions of Liwāṭ (Sodomy) and Siḥāq (Tribadism) in Islamic Jurisprudence (8th–​15th Century CE).” Islamic Law and Society, 19 (2012): 230–​36. Serrano, Delfina. “Rape in Maliki Legal Doctrine and Practice (8th–​15th Centuries C.E.).” HAWWA 5, no. 2–​3 (2007): 166–​206. Shabana, Ayman. “Legal Schools.” In Encyclopedia of Islam and the Muslim World, 2nd edn, 655–​61. China: Gale, 2006. Syed, Mairaj Uddin. Coercion and Responsibility in Islam: A Study in Law and Ethics. Oxford: Oxford University Press, 2016.

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BETWEEN THE MUSLIM STATE AND INDIVIDUAL AGENCY: THE REGULATION OF SEXUALITY IN THE JEWISH COMMUNITIES OF MEDIEVAL EGYPT Oded Zinger For medieval Jews, marriage was the only normative framework for sexual gratification and biological reproduction.1 Marriage bonded a man and a woman together through a complex matrix of economic, legal, and cultural obligations, and established the nuclear family as the basic unit of the community. As such, marriage and the family stood at the confluence of multiple concerns of crucial importance. Marriage occasioned “horizontal” transfer of wealth between different families as well as “vertical” transfer across generations. Proper marriage not only legitimated biological reproduction, it also endowed the resulting progeny with recognized genealogy and social identity. The family was the primary site for the socialization of such progeny, and thus constituted a key locus for social continuity between the past and the future. Indeed, numerous Jewish rituals take place within a family setting just as normative religious texts legitimize and valorize the family as an institution.2 Marriage and the family also provided one’s closest allies and associates. Last, but not least, marriage and raising a family were considered essential for emotional satisfaction and happiness. With so much at stake, it is little wonder that society tried to regulate marriage and the family. As Maimonides, the great jurist-​philosopher living in Egypt in the second half of the twelfth century, began the Book of Women of his legal code: Before the revelation of the Torah, when a man would encounter a woman in the street, if both consented to marriage, he would bring her into his house and would have intercourse with her in privacy, and therefore she would become his wife. Upon the revelation of the Torah, the people of Israel were commanded that if a man wishes to marry a woman, he must first acquire her in the presence of witnesses, and only thereafter does she become his wife.3

1 Jewish law forbids masters to have sex with their slaves. In practice, many Jewish men in medieval Egypt transgressed this prohibition, but such behaviour was never normative. See further references in note 32 below.

2 Moshe Lavee, “ ‘Genealogy came from Babylonia’: Conversion, Genealogical Anxiety and the Perception of the Body and the Family in Talmudic Babylonia,” in The Family in Late Antiquity: Between Kinship and Community, ed. Uriel Simonsohn and Yaniv Fox (Jerusalem: Bialik Institute, 2019), at 84 (Heb). 3 Moses Maimonides, Mishneh Torah, Sefer Nashim, Hilkhot Ishut 1:1; translated in The Code of Maimonides. Book Four: The Book of Women, ed. Leon Nemoy and trans. Isaac Klein (New Haven: Yale University Press, 1972), 5.

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Through witnesses, the private act becomes public and is subject to social and legal surveillance and control. Indeed, as the self-​appointed leaders of Jewish communities, the rabbis made marriage and the family into a major concern of their scholarly tradition early on. With statements like “He who does not know the laws of divorce and betrothal, should have no dealing with them” they sought to carve a monopoly over the arrangement and dissolution of marriage.4 The regulation of marriage was accompanied by supervision of perceived threats to it, such as interaction between the sexes and extra marital sex. This chapter explores one aspect of this regulation in a particular time and place. The Jews of medieval Egypt have left an unusually extensive documentation. The Cairo Geniza, a massive collection of texts discovered in the Ben Ezra Synagogue in Fustat (Old Cairo), provides scholars with rich evidence for social realities in Fatimid and Ayyubid Egypt (969–​1250 CE). According to Jewish law, texts containing the name of God ought not to be discarded like secular texts but should be set aside, usually by being buried in a cemetery or stored in a special chamber. A Geniza (the word means both the repository as well as the act of placing something in it) thus contains Jewish texts that have outlived their usefulness and constitutes “sacred trash” rather than an orderly archive that offers retrievability.5 For reasons yet unclear, the Jews of Egypt deposited in the Ben Ezra Synagogue a wide array of documents and literary texts, going far beyond the narrow requirement of Jewish law. The result is that the Cairo Geniza (and other Cairene genizot—​the plural form of Geniza) offer scholars an unmatched lens into the private lives of ordinary Jewish men and women typically absent in traditional literary sources.6 Among the riches of the Cairo Geniza are thousands of documents of various genres shedding light on the work of Jewish legal institutions. Legal institutions, and particularly the local Jewish court, are often considered to be the cornerstone of Jewish communal life. The Geniza preserved legal deeds and court notebooks, usually in their final form, but occasionally also in the forms of drafts and formularies. Also significant are private and communal letters in which legal cases are discussed.7 These documents can be complemented with queries submitted to Moses Maimonides (1138–​1204 CE), 4 Babylonian Talmud, Qiddushin, 6a. Unlike divorce, however, marriage never fully became a rabbinic monopoly.

5 On the Geniza, see S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols. (Berkeley: University of California Press, 1967–​1993); Adina Hoffman and Peter Cole, Sacred Trash: The Lost and Found World of the Cairo Geniza (New York: Nextbook, 2011); Marina Rustow, The Lost Archive: Traces of a Caliphate in a Cairo Synagogue (Princeton: Princeton University Press, 2020). 6 Haggai Ben-​Shammai, “Is ‘The Cairo Genizah’ a Proper Name or a Generic Noun? On the Relationship Between the Genizot of the Ben Ezra and The Dar Simha Synagogues,” in “From a Sacred Source”: Genizah Studies in Honour of Professor Stefan C. Reif, ed. Ben Outhwaite and Siam Bhayro (Leiden: Brill, 2011), 43–​52. 7 Oded Zinger, “Introduction to the Legal Arena,” in The Jews in Medieval Egypt, ed. Miriam Frenkel (Boston: Academic Studies, 2021), 86–​123.

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378 Oded Zinger the great Jewish legalist and philosopher, and his son Abraham (1186–​1237 CE) and their subsequent answers (i.e. responsa, Heb. sheʾelot u-​teshuvot) that were preserved outside the Geniza.8 This chapter uses this rich documentation to examine how Jewish legal institutions handled the intermingling of the sexes in the domestic space.9 Exploring specific cases from the Geniza and contemporary responsa allows us to interrogate what was at stake for the communal leadership and what opportunities such concerns created for ordinary Jews.10 Being together in private is forbidden in Jewish law to a woman and a man who are unrelated, even if nothing happens between them. This prohibition is called yiḥud and it comes with a whole set of rules and technicalities.11 However, Geniza documents rarely invoke the term yiḥud nor do they reflect a concern about any of its fine distinctions, like the exact age from which the prohibition of yiḥud applies for each sex or the difference between whether one’s husband is in the city or on travel.12 The sources dealing with such intermingling in private space also do not convey a concern with the heads of families’ control over their women or their private property, themes that are developed in Islamic legal works.13 After all, “in Geniza letters it is taken for granted that a man unrelated to the family could come into a home and discuss matters with the woman of the house in the absence of her husband.”14 We also hear of women frequenting shops of 8 Moses Maimonides, Responsa, 4 vols., ed. Joshua Blau (Jerusalem: Rubin Mass, 2014); Abraham Maimonides, Responsa, ed. A. H. Freimann and trans. S. D. Goitein (Jerusalem: Mekize nirdamim, 1937).

9 Same sex acts (though not perhaps desires) were also considered deviant; however, our sources are quite reticent about them. The topic is not explored here but has been treated in the studies mentioned in the next note (to which BL OR 5566B.1, discovered by Alan Elbaum, ought to be added). 10 The topic is discussed along different lines in Goitein, A Mediterranean Society, 5:307–​323, and in his “The Sexual Mores of Common People,” in Society and the Sexes in Medieval Islam, ed. Afaf Lutfi al-​Sayyid-​Marsot (Malibu, CA: Undena, 1979), 43–​61.

11 Moses Maimonides, Mishneh Torah, Sefer Qedushah, Hilkhot issurei biʿah, chap. 22, translated in The Code of Maimonides. Book Five: The Book of Holiness, ed. Leon Nemoy and trans. Louis I. Rabinowitz and Philip Grossman (New Haven: Yale University Press, 1965), 141–​46. 12 Yiḥud does appear in several responsa, but it is to be expected that legal queries invoke specialized legal categories. See #8 and #9 in the corpus on the appendix, as well as Maimonides, Responsa, no. 211.

13 See Eli Alshech, “ ‘Do not Enter Houses Other than Your Own’: The Evolution of the Notion of a Private Domestic Sphere in Early Sunnī Islamic Thought,” Islamic Law and Society 11, no. 3 (2004): 291–​332, and his “Out of Sight and Therefore Out of Mind: Early-​Sunnī Islamic Modesty Regulations and the Creation of Spheres of Privacy,” Journal of Near Eastern Studies 66. no. 4 (2007): 267–​90. For an overview of the regulation of space and gender in Islamic law and legal practice, see Judith E. Tucker, Women, Family, and Gender in Islamic Law (Cambridge: Cambridge University Press, 2008), 175–​200. See also Elyse Semerdjian, “Off the Straight Path:” Illicit Sex, Law, and Community in Ottoman Aleppo (New York: Syracuse University Press, 2008). 14 Goitein, “Sexual Mores,” 46.

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unrelated men.15 Instead, in almost all our cases the concern was whether the culprits had sex and the more general apprehension for public morality, which was expressed by the concern with the separation of the sexes and so-​called “modesty.”16 Previous studies have tended to examine how such concerns were projected onto the public sphere and explored Jewish women’s freedom of movement and whether they were covered in public. These studies have been primarily concerned with establishing what the prevalent practice was: were women allowed to circulate in public and were they covered when they did so?17 The problem, however, is that the Geniza supplies contradictory evidence that can be interpreted in different ways. Recently, Eve Krakowski tackled the interlocking issues of modesty, mobility and social control, arguing convincingly for a “moderately patriarchal” model in which a husband was expected to “supervise his wife and ensure that she did not behave lewdly in public, but it was not accepted practice to lock her in the house.”18 This moderate model was wide enough to include in its edges both stricter practices of physical seclusion as well as cases perceived to be lewd (a few of which we shall encounter below). Krakowski has also confirmed and expanded the evidentiary base for Goitein’s observation that 15 See S. D. Goitein, Letters of Medieval Jewish Traders (Princeton: Princeton University Press, 1973), 224. For evidence of a similar reality in the broader Muslim society, see Yaacov Lev, “Aspects of the Egyptian Society in the Fatimid Period,” in Egypt and Syria in the Fatimid, Ayyubid and Mamluk Eras, eds. U. Vermeulen and J. van Steenbergen (Leuven: Peeters, 2001), 3:1–​31, at 13–​19; and Huda Lutfi, “Manners and Customs of Fourteenth-​Century Cairene Women: Female Anarchy versus Male Sharʿi Order in Muslim Prescriptive Treatises,” in Women in Middle Eastern History: Shifting Boundaries in Sex and Gender, eds. Nikki R. Keddie and Beth Baron (New Haven: Yale University Press, 1991), 99–​121, at 104 and 114–​15. 16 The absence of the narrow technical rabbinic discourse in favour of the broad concern for the separation of the sexes seems to match well Krakowski’s explorations on the relations between what she calls “common Judaism” to Rabbinic Judaism; see Eve Krakowski, “Maimonides’ Menstrual Reform in Egypt,” Jewish Quarterly Review 110 (2020): 245–​289.

17 For two studies arguing that curtailing Jewish women’s freedom of movement in the Islamic world was a widespread practice, see Avraham Grossman, Pious and Rebellious: Jewish Women in Medieval Europe (Waltham, MA: Brandeis University Press, 2004), 105–​108; and Amir Ashur, “Engagement and Betrothal Documents from the Cairo Geniza Engagement and Betrothal,” PhD diss., Tel Aviv University, 2006, 117–​24 (Heb.). Both studies rely on the work of Mordechai Akiva Friedman. However, Friedman himself is much more cautious: “I am not prepared to say how prevalent the restriction of women’s movement may have been” and “we are still unable to ascertain how prevalent this attitude was”; in Friedman, “The Ethics of Medieval Jewish Marriage,” in Religion in a Religious Age, ed. S. D. Goitein (Cambridge, MA: Association for Jewish Studies, 1974), 83–​102, at 91; and his “Marriage as an Institution: Jewry under Islam,” in The Jewish Family: Metaphor and Memory, ed. David Kraemer (Oxford: Oxford University Press, 1989), 31–​45, at 34, respectively. For the question whether Jewish women were veiled, see Mordechai Akiva Friedman, “Halakha as Evidence of Sexual Life among Jews in Muslim Countries in the Middle Ages,” Peʿamim: Studies in Oriental Jewry 45 (1990): 89–​107, at 91–​99 (Heb.) 18 Eve Krakowski, Coming of Age in Medieval Egypt: Female Adolescence, Jewish Law, and Ordinary Culture (Princeton: Princeton University Press, 2017), 190–​206, quotes from 193 and 195 respectively.

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380 Oded Zinger the virginity of young brides was not a central issue as the literature on Mediterranean honour and shame would have us believe.19 The problem of a diverse practice is complemented by the fact that, even 120 years after its so-​called “discovery,” the Geniza is still understudied. Out of the estimated 40,000 documents in the Geniza (historical documents compromise about 10 percent of the Geniza and the rest are literary fragments) only 10–​20 percent are published.20 Cataloguing information is sorely lacking or inadequate, which means that simply locating the documents relevant to a particular issue is a frustrating and ongoing task.21 The result is that the state of scholarship on issues of crime and deviancy in the Geniza trails far behind the scholarship on medieval Europe and we are still in the process of collecting much of the data. Due to the preliminary state of our knowledge and in order to reflect the diverse evidence of the material, I have chosen to base this study on a corpus consisting of nine cases from the Geniza and contemporary responsa from the classical Geniza period (1000–​1250). In all the cases, a Jewish legal institution learns of an unrelated man and a woman having been together alone in private. This collection of nine cases is not exhaustive and further research will probably expand the corpus.22 Once we relinquish the temptation to establish what was the prevalent practice, we can view the diversity of the evidence as reflecting the push and pull of different 19 Goitein, A Mediterranean Society, 3:100–​101; Krakowski, Coming of Age, 182–​89. 20 For the estimate of 40,000 documents, see Rustow, The Lost Archive, 7.

21 Some basic guidance is offered in Oded Zinger, “Finding a Fragment in a Pile of Geniza: A Practical Guide to Collections, Editions, and Resources,” Jewish History 32 (2019): 279–​309. Recent work by Alan Elbaum in the Princeton Geniza Project (https://​geniza​lab.prince​ton.edu/) is making enormous progress in identifying new fragments and composing metadata on them. 22 Indeed, there are several cases that fall outside the boundaries of our study that ought to be mentioned. T-​S 12.283, unpublished, deals with a Jewish couple who lived for twenty-​five years under a communal ban and had an illegitimate child. When approached by a communal official, the husband protested: “who made you the judges?!” T-​S NS J175a-​b, unpublished, describes how night after night the daughter of the writer would end up talking “until half the night” with a male relative, even after forbidden to do so. Since we do not hear of an involvement of a legal institution, I did not include this case within the corpus (thanks to Alan Elbaum for drawing my attention to this interesting document). As Elbaum suggests, it is possible that this document is related to T-​S 10J9.13 and CUL Or. 1080 3.46. Mosseri III. 150, edited in Shmuel Glick, Seride Teshuvot: A Descriptive Catalogue of Responsa Fragments from the Jacques Mosseri Collection Cambridge University Library (Leiden: Brill, 2012), 221–​23; this is a query dated by the editors to the fourteenth century, dealing with a man suspected of having an adulterous relationship with a married woman and who later married her once her husband died. From the Firkovitch collection, stemming probably from the Cairene Karaite Dār Simḥa Synagogue, NLR Yevr.-​Arab. II 1380 is a record from 1439 in a Karaite court notebook reporting public talk about the daughter of ʿAbd al-​Laṭīf ibn Bashīr and a certain Ibn al-​Ashqar. The affair was confirmed by her pregnancy and she was brought before a government official (Heb. qaṣin) who ordered her to go back to her father. She answered that she would like to convert to Islam (“I want nothing else than the religion of the Ishmaelites”) and she indeed converted, to the chagrin of her father. From outside the geographical boundaries of the study, we have a riveting adultery case from eleventh-​century Spain, see R. Isaac Alfasi, Responsa of R. Issac Ben Jacob Alfasi, ed. Rabbi Wolf Leiter (New York: Maimonides Institute, 1954), no. 73.

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tendencies. In other words, the separation of the sexes was a central axis around which various other issues were negotiated: the relationship between husband and wife, power struggles with in-​laws, communal politics, and relationships between religious communities. Indeed, in the aforementioned study, Krakowski identifies the multiple factors behind the complex evidence regarding women circulating in public: social status, domestic and familial politics, female piety, type of space (synagogue, bathhouse, homes of relatives, the market), urban versus rural settings, and even time of day.23 Similarly, when a local Jewish judge caused an uproar with his weekly sermon claiming women in the community put on makeup and jewellery, sit in the markets, and fail to avoid Muslims, we see how the separation of the sexes was used to bolster a leader’s communal authority.24 When a Jew sought to challenge a communal leader he composed an anonymous complaint in Arabic script decrying the leader for allowing a non-​Jew to rent a house owned by a communal pious foundation. The house was adjacent to the “secret door through which Jewish women and their daughters climb up (to the women’s gallery of the Synagogue of the Iraqis).” Allowing a non-​Jew to overlook and be close to a path used by Jewish women was claimed to be an affront to the honour and masculinity (Arabic nakhwa and muruwwa) of the men of the community.25 Because marriage and sex stand at the confluence of different social concerns, examining how they were negotiated and supervised reveals some of the basic features of social life and legal practice of Jews in medieval Egypt. The way the Jewish communities of Egypt regulated sexuality must be also understood in the context of a minority community enjoying a recognized yet precarious position within a broader Islamic empire. The Jews of Egypt maintained a robust legal system that left an extensive paper trail in the Cairo Geniza. This dynamic legal life was facilitated by recognition and cooperation by the state, whether under the Fatimids (969–​1171) or the Ayyubids (1171–​1250).26 From the perspective of the state, Jewish communal leadership received recognition in return for managing the internal affairs of the Jewish communities. From the Jewish perspective, the matter was more complex: on the one hand legal institutions and communal leaders drew power from being recognized by the state and from the connection Jewish officials enjoyed with government officials. On the 23 Krakowski, Coming of Age, 181–​206.

24 Oded Zinger, “ʻWhat Sort of Sermon is This?’: Leadership, Resistance and Gender in a Communal Conflict,” in Jews, Christians and Muslims in Medieval and Early Modern Times: A Festschrift in Honor of Mark R. Cohen, ed. Arnold E. Franklin, Roxani Eleni Margariti, Marina Rustow, and Uriel Simonsohn (Leiden: Brill, 2014), 83–​98. 25 T-​S 13J30.6, edited in Oded Zinger, “Challenges to the Local Communal Leadership Among Egyptian Jewry in the Middle Ages,” to be published in a festschrift for Menaḥem Ben-​Sasson.

26 On the Fatimids, see Michael Brett, The Fatimid Empire (Edinburgh: Edinburgh University Press, 2017). On the Ayyubids in Egypt, see Michael Chamberlain, “The Crusader Era and the Ayyūbid Dynasty,” in The Cambridge History of Egypt, ed. Carl F. Petry (Cambridge: Cambridge University Press, 1998), 1:211–​241. The Geniza contains a wealth of material on the interaction of Jewish and Muslim legal institutions that is far from being exhausted. For preliminary observations, see Goitein, A Mediterranean Society, 2:395–​407.

382

382 Oded Zinger other hand, they were reluctant to use the power of the state, realizing it would impinge on their legitimacy and autonomy. Instead of using the coercion of the state, Jewish legal institutions preferred to rely on communal means of coercion like excommunication (heb. ḥerem) and on persuasion and mediation. Except when it came to the Office of Estates (Ar. dīwān al-​mawārīth—​the government office eager to seize estates without heirs), Islamic legal institutions were rarely intrusive yet were available to Jews seeking to make use of them.27 This “hovering” presence constrained Jewish institutions in various respects and offered litigants leverage and opportunities in other respects. When Muslim rulers appointed Jewish leaders, they tasked them with handling issues related to personal status like marriage and divorce, ritual matters, and communal administration. On a more general level, Jewish leaders were commanded to restrain religious laxity and “command right and forbid wrong,” a major concept in Islamic thought.28 This reflects the general conception of the Islamic society as consisting of distinct religious communities living side by side (with Muslims on top, of course) each revolving around religious law based on revealed scriptures.29 The state was supposed to uphold justice and monitor religious practice and so the appointed leaders of the minority communities were also tasked with upholding this Islamic duty. The evidence from the Geniza largely reflects these responsibilities. Courts were preoccupied with matters of personal status and supervised the synagogue and the pious foundations. Another large topic was commercial matters between Jews (sale, debts, and partnership)—​a topic not reflected in the Muslim appointment documents, but it seems the state turned a blind eye to it. Jewish courts also dealt occasionally with verbal or petty physical altercations that arose between Jews, but serious criminal matters were the prerogative of non-​Jewish courts and are mostly absent from Jewish legal records.30 In all these topics the procedure usually started with one or both parties bringing the matter to the court. However, we also find matters in which the courts were proactive and took on cases that were not brought to them by one of the parties.31 It is in 27 Zinger, “Introduction to the Legal Arena”; Uriel Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of Pennsylvania Press, 2011); Yaacov Lev, The Administration of Justice in Medieval Egypt: From the Seventh to the Twelfth Century (Edinburgh: Edinburgh University Press, 2020).

28 See the draft of a letter of appointment in S. D. Goitein, Palestinian Jewry, 56–​60; and Michael A. Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2000). 29 Michael G. Morony, “Religious Communities in Late Sasanian and Early Muslim Iraq,” Journal of the Economic and Social History of the Orient 17, no. 1 (1974): 113–​35.

30 Goitein, A Mediterranean Society, 2:311–​345. For example, we hear about “the famous murder case” only through legal documents dealing with the division of the estate of the murdered; see Mordechai Akiva Friedman, “On Marital Age, Violence and Mutuality in the Genizah Documents,” in The Cambridge Genizah Collections: Their Contents and Significance, ed. Stefan C. Reif (Cambridge: Cambridge University Press, 2002), 160–​177, at 171–​73. 31 See the similar distinction in Ruth Mazo Karras, “The Regulation of Sexuality in the Late Middle Ages: England and France,” Speculum 86, no. 4 (2011): 1010–​39, at 1013.

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such cases that we see the active role of communal leadership in supervising the moral order. The court took an active role, for example, when faced with public desecration of the Sabbath, when Jewish men had sexual relations with female domestic slaves and in some of the cases in which unrelated man and a woman were alone in private, and to such latter cases we now turn.32

Case Studies

Due to considerations of space, it is impractical to present systematically the details of each of our nine cases. The appendix summarizes each case briefly and provides the relevant publication information. I will refer to the cases by their number or by their titles in the appendix. All cases are from Egypt with Fustat, the contemporary centre of Jewish life and where the Geniza was located, being the most common location. However, there is also a case from Cairo (#7), Alexandria (#9), and from an unidentified middle size town (#3).33 The cases are ordered chronologically: the first five are from the eleventh century, #6–​8 are from the twelfth century and #9 is from the first half of the thirteenth century (1234–​1235 to be exact). Five of the cases are attested in court documents, four of them of a Rabbanite court (#1, #2, #5, #6,), and one from an ad hoc Karaite court (#6).34 Three cases are attested in responsa (#4 and #8 were found in the Geniza and #9 was preserved in non-​Geniza responsa collection) and one case (#3) is reported in a letter of a communal leader to his superior. While this is not by any means a large sample, it is varied enough to allow for some substantial observations. The first question to pose is how our cases began: what or who brought them to the attention of communal institutions? Cases of litigation and mutually agreed transactions usually began when one or both parties brought them before the court. However, when it comes to cases concerning sexual morality, about half of them start with the 32 For public desecration of the Sabbath, see Cambridge University Library, T-​S 8J7.18, edited in Moshe Gil, Palestine During the First Muslim Period (634–​1099), 3 vols. (Tel Aviv: Tel Aviv University Press, 1983), doc. 336 (Heb.); and ENA 4100.21b, unpublished (I learnt of the latter document from Amir Ashur). I have decided not to include in this study the related issue of sexual relations between Jewish men and domestic slaves for it has been studied elsewhere; see especially Mordechai Akiva Friedman, Jewish Polygyny in the Middle Ages: New Documents from the Cairo Geniza (Jerusalem: Bialik Institute, 1986), 291–​94 (Heb.); and Craig Perry, “The Daily Life of Slaves and the Global Reach of Slavery in Medieval Egypt, 969–​1250 CE,” PhD diss., Emory University, 2014, 106–​52. 33 “The Geniza is a first-​rate source for both the Mediterranean and the India trades. For such matters as sex and family life, however, our information comes mainly from Egypt itself, and in particular, from its ancient Islamic capital, Fustat”; Goitein, “The Sexual Mores,” 45.

34 The Karaite movement challenged the oral tradition upon which Rabbinic Judaism is based. On Karaite law, courts and legal documents, see Judith Olszowy-​Schlanger, “Karaite Legal Documents” and her “Early Karaite Family Law,” both in Karaite Judaism: A Guide to Its History and Literary Sources, ed. Meira Polliack (Leiden: Brill, 2003), 253–​73 and 275–​90 respectively. See also Oded Zinger, “A Karaite-​Rabbanite Court Session in mid-​Eleventh Century Egypt,” Ginzei Qedem 13 (2017): 95*–​116*.

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384 Oded Zinger circulation of rumours which require the court to intervene.35 Rumours may have been involved in the other cases as well, but they are not explicitly attested.36 While public reputation does not constitutes a legal fact in Jewish law as fama did in medieval Europe, the fact that rumours are invoked in very similar expressions in Geniza documents from different genres suggests that rumours did play a recognized role in legal procedure.37 Infringements on sexual morality usually took place in the domestic sphere, beyond the public purview, and the court was dependent on gossip and rumour to know what was going on.38 We get a glimpse of how this may have worked in an incomplete text written by a Jewish communal official in al-​Maḥalla, a middle-​sized delta town: On Friday, (26 November 1148), I was sitting in al-​Maḥalla to copy books as is my custom and the children were reading from the Torah before me. I heard them “singing”39 of an ugly matter. I said to them: “What is this you speak about? and from whom you heard it?” They answered: “From the house of the cantor.” I said: “and the house of the cantor, from whom they heard it?” They answered: “From Maʿanī, their relative who was in Fustat.” I sent after Maʿanī …40

35 As far as I am aware, gossip, rumours, and talk in the medieval Islamic world have not received scholarly attention as they have in medieval Europe; for which see Chris Wickham’s seminal study, “Gossip and Resistance among the Medieval Peasantry,” Past & Present 160 (1998): 3–​24. See also Thelma Fenster and Daniel Lord Smail, eds. Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca: Cornell University Press, 2003). 36 The beginning of #1 is lost and #5 is reported long after the events took place. In responsa, it is possible that rumours are not mentioned because the query either did not mention them or they were not the focus of the question. Public talk is also explicitly mentioned in NLR Yevr.-​Arab. II 1380.

37 In #3, a Judeo-​Arabic letter of a communal official, we have: “wa-​kathurat al-​shanāʿa ʿalā.” In #6, a legal document from the Rabbanite court, we have: “lammā kathurat al-​shanāʿāt ʿalā.” In #7, a legal document of a Karaite court, we have: “lammā kathurat al-​shanāʿāt ʿan.” A similar phrase appears also in T-​S 10J21.14+​T-​S 8J32.9, unpublished.

38 See a parallel in Karras, “The Regulation of Sexuality,” 1019–​20: “The London commissary court as far as we know did not have professional promoters whose job it was to monitor people’s sexual behaviour and bring accusations before the court, and it had no presentment system, but there must have been some unofficial system by which people brought rumours or general reputation (fama) to the court’s attention.” Jewish communities did not have the equivalent of the muḥtasib, a special official of the Islamic state surveilling the public space. However, even if one was informed of misconduct, the duty to forbid wrong clashed with culprit’s right of privacy; see Alshech, “The Evolution of the Notion of a Private Domestic Space,” 298–​301; Cook, Commanding Right and Forbidding Wrong, 479–482 and 594–​96; and Kristin Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2012), 43 and 96–​97. When a wrong was public knowledge it should be investigated and punished; it seems that the mention of rumours in our document is also meant to establish them as such.

39 “Yatanaghghamū.” For the fifth form, see Albin de Biberstein-​Kazimirski, Dictionaire arabe-​ francais, 2 vols. (Paris: Maisonneuve et Cie, 1860), 2:1303. The children were reading the Torah melodiously. It seems that the writer implies that interspersed in their melodious reading, they were also gossiping. 40 ENA 4011.76, unpublished.

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In this case it seems the rumour was the death of writer’s own son rather than sexual misconduct. However, the description does capture how the local leadership (the writer describes himself as a lonely foreigner in al-​Maḥalla surrounded by ill-​wishers) was dependent on the circulation of gossip by his students for obtaining information. The function of rumours in initiating the cases also shows the complex interaction between the authority of the legal institutions and the agency of individuals, a theme we will encounter again below. As their means of coercion were limited, the Jewish communal leadership had to choose carefully when and how to intervene and flex their muscles. Due to their ephemeral nature, rumours were useful because they provided both litigants and the legal institutions a space for deniability. Thus, the communal leader mentioned above who delivered inflammatory sermons was careful to declare that his accusations are based on rumours that have not been confirmed.41 In #9, the husband first declared in court “I have heard about this wife of mine an evil rumour and I believed it.” Later we learn that he also testified to seeing a Jewish man having sex with his wife. Finally, he retracted these claims so he could remarry his former wife. Airing a rumour could serve like a trial balloon, a way of testing the response of one’s opponent, the legal institution or public opinion.42 Rumours could also be ignored, up to a point. A scandal in the Karaite community of Cairo (#7) was examined only after the hand of the communal leadership was forced, as can be seen from the beginning of the legal document: Bad rumours about Abū Naṣr ben Qayyūma multiplied for several years regarding the daughter of Abū al-​Maʿālī b. Tāmār, who is the wife of Abū Saʿd b. Ṣedaqa the milkman. He carried out with her obscenities and flirtations. He exceeded in jesting with her with jests that continuing to do them leads to no good. He continues (to act) in this way even now in spite that the aforementioned woman detests this matter. A petition about this [was written] to the writer of these lines and was thrown to his [dwelling] without him knowing who wrote it. The situation required informing … our lord … the prince of all the diaspora43 … of this scandal and apprising him of the petition. Following this, the aforementioned prince sat in Cairo in the house of his sister. The writer of these lines and a group of the Karaite community … were present. (#7)

Rumours had apparently been circulating for years about Abū Naṣr and a married woman but communal authorities are presented as having done nothing. It was only when an anonymous petition was thrown to the dwelling of one of the communal leaders, that he was obliged to inform the head of the Karaite community, who then convened a special 41 Zinger, “ ‘What Sort of Sermon is This?’ ”

42 Goitein, A Mediterranean Society, 2:337–​8 and 5:206 and 211.

43 Hebrew: nasi. This title was used for those claiming a Davidic genealogy. In this case, the “prince” was the current leader of the Karaite Egyptian community, probably Solomon ben David ben Ḥisdai; see Arnold Franklin, This Noble House: Jewish Descendants of King David in the Medieval Islamic East (Philadelphia: University of Pennsylvania Press, 2012), 204, no. 95.

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386 Oded Zinger court session to investigate the matter. Legal institutions often worked only with the constant prodding, pushing, and manipulation by litigants. Once the cases enter the legal sphere, the basic breach to the separation of the sexes leads to cases of very different nature. In the Karaite scandal just mentioned (#7), the case hovers on the question whether we are dealing with willing flirtations and even adultery or rather sexual harassment. The wife of Abū Saʿd constantly pushed for the latter option by arguing that Abū Naṣr’s behaviour was unsolicited and by arguing that she, in fact, made her resentment known. She claimed that she told the parental aunt of her husband: “when you see Abū [Naṣr] entering my house, and I am alone, come to my (house), for I am afraid [from him] and I detest his entry to my home.” Later in the case, we receive conflicting testimonies: the husband of the wife’s sister came forth and testified that whenever he would visit Abū Saʿd’s house he witnessed between the culprits “ugly obscenities, loathsome words and flirtations [that] do not lead to good and do not please God.” In contrast, several women came forward and testified that the wife complained to them on several occasions about Abū Naṣr’s harassments and attempts “to turn her against her husband and invitations to do something ugly.” We see the negotiation between different narratives (obscene flirtations versus sexual harassment) that can be spun around the breach of the separation of sexes. Furthermore, we can also detect a gendered difference: on the one hand we have the circulation of general rumours and the male in-​law testimony against the wife of Abū Saʿd, and on the other hand we have the talk between women about sexual harassment.44 This process of sorting breaches to the separation of the sexes into different legal categories can be seen in other cases. In #8, Maimonides was asked about another woman who accused a man of making unsolicited sexual overtures towards her. Yet here the one-​sided description of the case in the legal query discredits her accusations and transforms the issue into one of slander by a defamatory old widow. As the query is reticent about the possible motives for an old widow to make such slander, it is clear that there is more to the case than the query is willing to disclose. Fornication (i.e. sexual relations when both parties are unmarried) is suspected in both #1 and #5, yet in the first case the emphasis is placed on the relationship between a Jewish woman and a Christian physician, and in the second the fornication is staged by the woman in order that the officials of the court would catch them in the act, thereby establishing the paternity for the resulting progeny (more detail on this below). In #4, there was outright adultery, but the issue is complicated by the unique status of a child bride married by her mother and the ruling is that her adultery carries no consequences, and she is permitted to her husband.45 Case #6 deals with a suspected “relapse” between a divorced couple. The problem was that, as a kohen (i.e. a descendant of the priestly line of the Aaron, Moses’s brother), the man could not remarry his former wife which was now a divorcee. 44 I explore this point in greater breadth in the edition of the document noted in the appendix. For gender and gossip, see Wickham, “Gossip and Resistance,” 15–​16. 45 For discussion of the legal issue in this disturbing case, see the edition noted in the appendix.

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Case #2 also begins looking like a case of a relapsing divorced couple, but is then discovered to be something quite different: On Thursday, (9 April 1085) … someone came (before the court) and mentioned that the divorcee of Ṣāliḥ has been entering his house. Ṣāliḥ, who used to be her husband, came forth and complained that she attacks him and enters his dwellings, saying: “I will not leave nor go out of this house for it is my house and my dwelling.” We sent for her, summoned her, and forbade her from entering the dwelling of her divorcee. However, she said: “I do not accept this. You took a bribe to divorce me (from him). The house is my house and I will not leave it. Otherwise, I will bring this to the Muslim government!” (#2)

What began as anonymous tip about a woman entering her former husband’s house ended up becoming a dispute over the financial arrangements of the divorce. In #9, truly an early thirteenth-​century Alexandrian soap opera, a reported intimacy between a man and his former wife appears to have been a false report designed to cancel a conditional bill of divorce that the husband gave to his wife after a marital dispute. At a later date, the same man made another claim: while they were married he saw his (now former) wife have sex with another man. He said this in order to prevent the two from being married after he divorced her. When he wanted to take her back he admitted that this testimony was also false. This short survey reflects the impressive plurality of issues negotiated along the axis of the separation of the sexes: sexual harassment, flirtations, fornication, adultery, divorce, remarriage of a kohen, marriage of a minor, and so forth. Legal institutions were engaged in unravelling the different issues and placing each case in the box they considered most appropriate. This sorting process required obtaining information about the case. Courts often undertook a fact-​finding process which was often one-​sided or gendered in various ways. Legal queries also often report a case in a carefully edited way in order to elicit the response that the questioner sought in the first place.46 However, looking at our corpus as a whole it is striking that the court’s pressure falls quite equally gender-​wise. The supposedly slanderous old widow (#8) and Ṣāliḥ’s former wife (#2) are at the centre of the court’s attention. But in the Alexandrian soap opera (#9), in the case of the lapsed divorce (#6) and well as in #3, the women remain all but invisible to the legal institutions. In the adultery case of a minor orphan girl (#4), her actions are declared to carry no legal consequence and the pressure placed by the court on the seducer to confess his actions is ruled to have been wrong. In the Karaite scandal, both Abū Naṣr and the wife of Abū Saʿd are interrogated. This gender balance in the investigative work of the court and in the presentation of the cases in responsa came as a surprise to me for in a previous study of marital disputes I found out that the court tended to 46 Mordechai Akiva Friedman, “New Fragments from the Responsa of Maimonides,” in Studies in Geniza and Sephardic Heritage Presented to Shelomo Dov Goitein on the Occasion of his Eightieth Birthday, ed. S Morag, I. Ben-​Ami and N. A. Stillman (Jerusalem: Magnes, 1981), 109–​20, at 115–​20 (Heb.).

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388 Oded Zinger put more pressure on wives when trying to reach a compromise between the parties.47 The explanation seems to be that cases of marital strife often involved the court in a role of mediation. In this mediatory role, the social embeddedness of the legal arena came to the fore as the two sides employed their social and cultural capital to influence the proceedings. As women tended to have less social and cultural capital, the process in court was gendered in complex ways.48 However, when it comes to infringement on the separation of the sexes, the courts and jurisprudents were not engaged in mediation but in supervising the moral order. Perhaps in such cases there was less room for social embeddedness and the result is a more gender balanced legal process. Yet the move from mediation to supervision of the moral order does not translate necessarily to harsher policy on the part of legal institutions. It is quite striking that in all these attempts to supervise the moral order only two reach some sort of resolution or punishment. The suspected relapse by the kohen and his former wife (#6) was resolved by a second divorce. In the staged fornication (#5) the goal of establishing paternity was achieved and we are also told that the woman was severely ostracized. But all the other cases remain more or less unresolved and show a clear reluctance to punish the parties. The document about the suspected affair between the Jewish woman and the Christian physician (#1) simply record what was known and witnessed. The sit-​in of Ṣāliḥ’s former wife in his house (#2) and her inflammatory statements are similarly simply recorded for future reference. In the adultery case of a minor orphaned girl (#4), the ruling permits the couple to remain married and criticizes the local scholar for pressuring the seducer to confess his misdeeds. The record of the scandal in the Karaite community (#7) also ends while we are still in the fact-​finding stage. The query about the supposed slander of the old widow (#8) asks whether it is permissible to impose a public ban against anyone spreading such slander. Maimonides answered that her slander is prohibited and it is within the man’s rights to demand the imposition of such a ban, but it is best to simply stop talking about the case and not to declare a ban. In the conclusion of the responsa about the complicated Alexandrian soap opera (#9), Abraham Maimonides notes that neither the husband nor the person who performed the marriage the second time around are free from transgression, but he leaves the marriage intact and no further punishment is mentioned. Even in a case of adultery, when a woman gave birth fourteen or eighteen months after her husband travelled away, we hear about a public outcry and that the local judge and cantor refrained from performing or even attending the baby’s circumcision, but no punishment is mentioned.49 47 Oded Zinger, “Women, Gender and Law: Marital Disputes According to Documents of the Cairo Geniza,” PhD diss., Princeton University, 2014, 22–​72.

48 I develop this theme in the second and third chapter of Oded Zinger, Living with the Law: Gender and Community Among the Jews of Medieval Egypt (Philadelphia: University of Pennsylvania Press, 2023), 53–109.

49 Washington, DC, The Freer Gallery of the Smithsonian Institute, 1908.44i (old: Gottheil and Worrell no. 9), ed. in Miriam Frenkel, “The Compassionate and Benevolent”: The Leading Elite in the Jewish Community of Alexandria in the Middle Ages (Heb.) (Jerusalem: Ben-​Zvi Institute, 2006), doc. 18. This letter is not included in our corpus because it does not attest to how a Jewish legal

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The reluctance to make a decisive ruling and inflict punishment is a general characteristic of the Jewish legal arena in medieval Egypt. Elsewhere I argue that it is a result of the combination of the competitive and pluralistic “juridical bazaar” of medieval Islamic societies and the limited powers of coercion of Jewish legal institutions mentioned above.50 We get a glimpse at the difficulties involved in reaching a decision or punishment in #3, a letter by a local leader in a provincial town to his superior in the capital: Evil rumours multiplied about the woman, that the husband of her mother [visits] her, really ugly rumours, and people raised a cry. I summoned and lectured him (i.e. the husband of the daughter) that it is impossible for this man (i.e. the husband of the mother) to enter to his dwelling. This was very difficult for him. The reason for his anger, according to what people say, is that this man (the mother’s husband) provides them with a hefty maintenance … This week the protest about them increased and people complained. I sent for him (probably the husband of the daughter) to appear before me with those complaining. He said: “tomorrow I will come.” In the morning we searched for him, but his wife said: “he already left for Fustat where he will complain to the cantor.” (#3)

When the man (suspected of prostituting his wife?) sensed that matters were proceeding in a direction not to his liking, he simply skipped town and went to the capital to mobilize support for his cause. Lacking strong coercive measures, Jewish courts were reluctant to make rulings they would fail to enforce. The result was a legal system bent on mediation, compromise, and slow persuasion. Coming to this issue from the study of Geniza mercantile disputes, Jessica Goldberg has reached similar conclusions: In the larger world of the Rabbinic legal system revealed by the Cairo Geniza, lawsuits themselves follow the same logic of slow assemblage and negotiation, in which the competing narratives of the litigants are presented, but the court adjourns to acquire further legal opinions, to give litigants continual opportunities to agree to settlements, and to pressure litigants to avoid forcing the court to hand down a final judgment.51

Our evidence for inconclusive process that never reached a verdict attest to a legal culture in which accumulation of legal records and responsa is often more critical than a decisive ruling. The reluctance to make decisive rulings is a result of the predicament of a minority community within a larger Islamic society. Indeed, the possibility of Muslim institution dealt with such a scandal. T-​S 13 J28.15 and T-​S G1.61 are related to this document; see Goitein, A Mediterranean Society, 5:314 and Mordechai Akiva Friedman, “Women and the India Trade” (Heb.) in From Sages to Savants: Studies Presented to Avraham Grossman, ed. Joseph R. Hacker, Yosef Kaplan, and B. Z. Kedar (Jerusalem: Zalman Shazar, 2010), 157–​85. 50 I develop this argument in the first chapter of Zinger, Living with the Law. “Islam’s Juridical Bazaar” is a felicitous chapter title in Uriel Simonsohn, A Common Justice, 63–​89. 51 Jessica Goldberg, “The Courts, the Qadi, and the ‘People’: Resolving Mercantile Disputes in the Medieval Islamic Mediterranean,” in Conflict Management in the Mediterranean and the Atlantic, 1000–​1800: Actors, Institutions and Strategies of Dispute Settlement, ed. Louis Sicking and Alain Wijffels (Leiden: Brill, 2020), 19–​42, at 37.

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390 Oded Zinger involvement, whether sought out from within by Jews or imposed from without by Muslims, is clearly attested in some of our cases. The investigation into the possible affair between the Jewish woman and the Christian physician (#1) was precipitated by the suspicion of several Muslim hat makers who began following the couple.52 The fact that our Judeo-​Arabic testimony ends with signatures of Jews in Arabic script and in a formula common in Muslim legal documents suggests that it was intended to be submitted to a Muslim institution.53 Here we have seen that Ṣāliḥ’s former wife resisted the pressures of the Jewish court by threatening to bring the matter before the Muslim government (#2). The Jewish man who promised to appear in court the next day but instead took off at night and travelled to Fustat (#3) seems to have done so because “people intended to place their opponent (i.e. the culprit) in the hand of the Muslim government.” In other words, it was not the summons by the Jewish leader but the possibility of government investigation that caused the man to leave town. The woman who staged her fornication with her lover to establish his paternity (#5) made the questionable claim that they were in fact married but their marriage document was in the hands of the Muslim court. That all the cases from our corpus date from the Fatimid period (969–​1171) seems significant as it has been argued that Jewish use of Muslim legal venues decreased drastically under the Ayyubids.54 This, however, should not be taken as an indication that the wider Muslim context did not play a role in the later period, as the Ayyubid Sultans continued to recognize the leadership of the protected minority and task it with maintaining the moral order.55 Indeed, the story from outside our corpus in which a woman gave birth more than nine months after her husband travelled away, is from 1176 and we hear in it that “all people became furious, even the Muslims said ‘we never heard of anyone who did as this Jewess. She deserves nothing better than to be burned for this!’ ”56 While communal authorities took no legal action, as far as we are told, the Jews were obviously concerned about the reaction of the surrounding Muslim society. Finally, our cases demonstrate how the concern over the separation of the sexes provided opportunities to ordinary Jews to pursue their interests through legal venues or actions. We have seen above that dealing with a scandal was forced upon the Karaite leadership (#7) by an anonymous petition. Similarly, Ṣāliḥ’s former wife wanted to recover the monetary rights she lost in the divorce settlement and thought that the 52 On evidence for illicit sexual relationships between Muslims and non-​Muslims in Arabic literary sources, see Lev, “Aspects of Egyptian Society,” 9–​10. 53 I am currently working on a study about the use of Jewish legal documents in Muslim courts.

54 Zinger, “ ‘She Aims to Harass Him:’ Jewish Women in Muslim Legal Venues in Medieval Egypt,” AJS Review 42 (2018): 159–​92, at 168.

55 See the appointment decree in Geoffrey Khan, Arabic Legal and Administrative Documents in the Cambridge Genizah Collections (Cambridge: Cambridge University Press, 1993), doc. 121. 56 Freer 1908.44i, ed. in Frenkel, “The Compassionate and Benevolent,” doc. 18.

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court was bribed against her. Her solution was to hold a sit-​in her former residence, and by doing so, create a disturbance in the social order that would bring attention to her plight. Her threat to appeal to the Muslim authority, and perhaps even convert, was another attempt to capitalize on the concerns of Jewish legal institutions. In the Alexandrian soap opera (#9), it is the husband who combines his knowledge of Jewish law and understanding of the legal arena first to cancel the conditional bill of divorce he gave his wife and later to prevent her from marrying another. In the case of the Waḥsha, the wealthy businesswoman who staged her fornication to establish the paternity of her unborn son, we get a quite detailed account of how she planned her steps in interaction with the court’s personnel.57 Here is the testimony of a communal welfare official (Heb. parnas): I was with the cantor, “the diadem”58 … when Waḥsha, the broker, came in and said: what do you think I should do?59 I fell in with60 Ḥassūn and conceived from him. Our marriage contract is with the Muslim (court)61 and I am afraid that he may deny being the father of my child. She then lived in the house of Ben al-​Sukkarī (the maker or seller of sugar) on the top floor. He (i.e. the cantor) said: go and gather some people and let them surprise you with him so that your assertion might be confirmed.62 (#4)

The testimony goes on to report that Waḥsha followed the advice, had two witnesses surprise her lover and thus confirmed her future son was the progeny of a relationship that may have been irregular but not incestuous or adulterous. All these examples show how ordinary Jews utilized, with varying degrees of success, the court’s and the community’s investment in supervising the moral order by separating the sexes to further their agendas. Waḥsha’s case is particularly interesting as the testimony goes on to relate that due to her affair, she was expelled from the synagogue even during the fast of the Day of Atonement. So on the one hand we have an example of sexual deviancy that is caught and reprimanded, and on the other hand we see that 57 Goitein understood her name as Wuḥsha (“one without whom one feels lonely”). Recently, Friedman suggested reading the name Waḥsha (“wild woman,” “beast”); see S. D. Goitein and Mordechai Akiva Friedman, Joseph Lebdī. Prominent India Trader: Cairo Genizah Documents (Jerusalem: Ben Zvi Institute, 2009), 171n2 (Heb.).

58 As Goitein notes, this cantor, called also “the diadem” (of the academy), is Hillel ben Eli, the court clerk in the Jewish court at Fustat between the years 1066–​1108. He was the father-​in-​law of Ḥalfon ben Menasse who composed the current record. Hillel ben Eli was also the scribe of Waḥsha’s earlier marriage document and final will. 59 The reading of the phrase is uncertain and so is its meaning. Goitein translated “Do you not have advice for me?”

60 I deviate from Goitein’s translation (“I had an affair”) according to the use of this phrase in Budapest, David Kaufman (DK) collection 232.1. 61 Goitein translated, “We contracted a marriage before the Muslim notary.”

62 For another woman who hid witnesses to prove that her creditor was charging her interest, see Goitein, A Mediterannean Society, 3:329.

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392 Oded Zinger this deviancy was brought to the court’s attention by the culprit herself who consulted with its personnel regarding the best course of action and then acted on this advice. The duty to supervise the moral order was not the top-​down imposition it was made out to be in the normative literary sources, but generated possibilities and practices for ordinary Jews.63

Conclusion

The unique treasures of the Cairo Geniza provide glimpses of quotidian practice often unavailable in other sources. One of the striking features of Geniza documents is their diversity, often constituting a confusing array of singular cases that defy easy categorization and analysis. Resisting the temptation either to impose a “prevalent practice” over messy evidence or to simply narrate one case after the other like beads on a string, this chapter has opted to collect a corpus of diverse cases around a specific criterion. Diversity is an essential feature of the corpus as the separation of the sexes served as an axis around which multiple other issues were negotiated. The result is not only an appreciation of the diversity of deviancy, even when insisting on a specific criterion, but a dynamic understanding of the multiple interests, actions, and worries involving family and sexuality, and how they played out in legal institutions. Indeed, by examining how Jewish legal institutions monitored the separation between the sexes we have been able to tease out some of the key characteristics of the legal arena of Jews in medieval Egypt: the constrained power of communal institutions, their predilection for inaction, the tendency to amass evidence and opinion rather than strive for resolution, the strong bargaining position of ordinary Jews vis-​à-​vis these communal institutions, and the near presence of Muslims and Muslim legal institutions even to what can be considered internal Jewish affairs. Perhaps the most striking conclusion to emerge from our limited yet diverse corpus is that regulating sexuality in the private realm was a complex negotiation involving top-​ down imposition as well as individuals’ initiative and choices. Challenging the separation of the sexes could be a threat to the social order, but it could also be a tactic used to draw attention to a wrong, a lie to prevent divorce, or a ruse to prove paternity. Thus, the process by which some behaviours are criminalized by being labelled “deviant” was not simply repressive, but it generated opportunities for ordinary people to play the system to further their agendas. These people may have not had a “bookish” knowledge of the law but they had practical skill in operating in the complex legal arena.64 63 Shannon McSheffrey, “Detective Fiction in the Archives: Court Records and the Uses of Law in Late Medieval England,” History Workshop Journal 65 (2008): 65–​78, at 66: “ ‘law in society’ literature has underscored how law works through social interactions, with individuals effectively using the power of governing authorities and their laws to negotiate their lives.”

64 See also Pinchas Roth, In This Land: Jewish Life and legal Culture in Late Medieval Provence (Toronto: Pontifical Institute of Medieval Studies, 2021), 32–​33.

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APPENDIX: A SUMMARY OF CASES

Case 1: A suspected affair between a Jewish woman and a Christian physician Time: eleventh century? Place: Fustat

A Jewish man testified that he had seen a woman (who he thought was Muslim) hang out too often with a Christian physician in a well-​known drug store. He later learned that she was Jewish. Some Muslims were also suspicious of the relationship and several hat makers started following the couple. This Jewish testimony was recorded in Judeo-​Arabic record, but the signatures in Arabic script suggest that the matter reached the Muslim authorities. Shelfmark: CUL Or. 1080 J93; mostly translated in Goitein, A Mediterranean Society, 5:315.

Case 2: A woman holding a sit-​down at her former husband’s house Time: 1085 Place: Fustat

The Jewish court in Fustat received word that Ṣāliḥ’s former wife had been entering his dwelling. Later the same day, Ṣāliḥ himself appeared before the court and complained that his former wife had been entering his house and refusing to leave. She was summoned to court and was told that she cannot enter the house of her former husband. She refused to listen, accused the court of taking a bribe, claimed that the house was actually hers and threatened to turn to the Muslim government. Shelfmark: Bodl. MS Heb. d 66.133; edited in Oded Zinger, “Jewish Women in Muslim Legal Venues: Seven Legal Documents from the Cairo Genizah,” in Language, Gender and Law in the Judaeo-​Islamic Milieu, ed. Zvi Stampfer and Amir Ashur (Leiden, The Netherlands: Brill, 2020), 38–​87, at 49–​51 and 69–​70.

Case 3: “Tomorrow I will come”

Time: second half of eleventh century? Place: a medium-​sized town in the Egyptian delta

After rumours that a married man was paying visits to his wife’s daughter, the husband of the daughter was warned and reproached. Apparently, the visits continued and public opinion continued to grumble. People planned to bring the case before the Muslim government and the local Jewish leader summoned the husband of the daughter to appear before him. The culprit fled to the capital and complained to a Jewish communal official there. Shelfmark: T-​S 12:242. This part of the document will be published in Zinger, “Challenges to the Local Communal Leadership.” Another section of the document is published in Friedman, Polygyny, 153–​55.

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Case 4: The adultery of a minor orphan girl Time: 1055–​1090 Place: Egypt

A responsum of “the Rav,” Yehuda b. Joseph ha-​Kohen regarding a case in which the mother of a minor orphan girl betrothed her daughter to an older man, who then consummated the marriage. The girl then claimed that another man seduced her, while she was still a minor (i.e. younger than twelve years old). It seems that the prominent scholar was asked whether the girl is now forbidden to her husband. The answer is that since she was a minor she is not forbidden to her husband and that the pressure inflicted upon the seducer to confess his crime was misguided and wrong.

Shelfmark: T-​S G1.5 +​T-​S AS 155.329 +​T-​S 12.397; edited in Mordechai Akiva Friedman, “Responsum by the ‘Rav’ Judah b. Joseph ha-​Kohen Concerning a Child Bride who Committed Adultery” (Heb.) Dine Israel 20–​21 (2000–​2001), 329–​51.

Case 5: The staged fornication

Time: ~1090–​1108 (for the events, not the surviving record) Place: Fustat

A witness recalled how, years before, a well-​known businesswoman came to the court and sought advice. She fell in with a foreign Jew and was afraid he would deny the paternity of their offspring. The court clerk suggested she arrange for witnesses to surprise them in the act, instructions she then followed. Shelfmark: T-​S 10J7.10; edited in S. D. Goitein, “A Jewish Business Woman of the Eleventh Century,” Jewish Quarterly Review 57 (1967), 225–​42, and further discussed in Goitein, A Mediterranean Society, 3:346–​52.

Case 6: The lapsed divorce Time: 1117 CE Place: Fustat

Following rumours that a certain kohen had been meeting with his former wife, he (and only he!) was summoned to the court and rebuked. He denied any wrongdoing but was told that he must still divorce his former wife again, which he proceeded to do. Shelfmark: T-​S 18J2.13, unpublished.

Case 7: A scandal in the Karaite community of Cairo Time: 2nd half of twelfth century (before 1204) Place: Cairo

Bad rumours had been circulating about a man and a married woman for several years. Then, an anonymous complaint was thrown to the house of a communal leader. This forced

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him to inform the head of the Karaite community in Cairo who then convened a special court session. First, the woman was summoned, and she complained that she has been suffering for years from the man’s evil traits and frequent unsolicited visits (sometimes three or four times a day!). She claimed that she asked her husband’s aunt for help against the man and complained to the court several times about him. Her husband denied knowing anything about the man’s behaviour with his wife. The culprit was summoned, and he denied everything except the fact that in the past he was summoned several times to court and was told that the woman detested his entry to her home. Once the woman was interrogated in the presence of the culprit, however, she did not repeat the same accusations but still insisted that she detested his visits. In order to collect more information a ban was placed on anyone holding pertinent information who does not bring it to the attention of the court within a week’s time. After the ban was proclaims an in-​law of the husband came to give his testimony as well as several women from the community. Shelfmark: RNL, MS. EVR ARAB I 1701; to be published in Zinger, “A Scandal in the Karaite Community of Cairo.” See also Goitein, “The Sexual Mores of Common People,” 55–​56.

Case 8: The old widow’s slander Time: 1166–​1204 Place: Egypt

A highly partial legal query to Moses Maimonides reports that an old widow accused a proper Jewish teacher, who was “never known to be engaged in youthful folly and lives blamelessly,”65 of demanding jokingly that she have sex with him. This happened in a private space as “she has no witness nor proof.” The query claims that by such an accusation she “intends to hurt him, break his word, hurt his livelihood and shame him publicly.” Shelfmark: T-​S 10K8.3+​T-​S 8K13.8; edited in Moses Maimonides, Responsa, 2:522–​23, no. 274.

Case 9: An Alexandrian soap opera Time: 1234–​1235 Place: Alexandria

The convoluted story narrated in this query to Abraham Maimonides is too complex to narrate here in full. It involves two reports about private intimacy between a man and woman. A husband wrote a conditional bill of divorce to his wife and then it was reported that he was alone with her before she was given the bill of divorce. This caused quite a bit of legal perplexity. When afterward his wife wanted to ransom herself free from the marriage, he was concerned that she would marry another man, so he testified that he heard an ugly rumour, which he believed, that she has been seduced by the same 65 Proverbs 10:9. As is often the case, an additional meaning is intended through the continuation of the biblical quote: “He who lives blamelessly lives safely, but he who walks a crooked path will be found out.”

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396 Oded Zinger man. Apparently, he later also testified to having seen them have sex. Later we learn that the first report that he was alone with his wife after the writing of the conditional bill of divorce was actually false as he was accompanied by another man. It is pretty clear, however, that it was an intentional mistake: attesting to being alone together was his way of annulling the divorce. The second report is also later discovered to be false as the man admits it was only an excuse (Heb. amtala) with which to prevent the marriage of his former wife to the other man. Place of publication: Abraham Maimonides, Responsa, 175–​96, no. 106–​7.

Selected Secondary Sources

Cook, Michael A. Commanding Right and Forbidding Wrong in Islamic Thought. Cambridge: Cambridge University Press, 2000. Franklin, Arnold. This Noble House: Jewish Descendants of King David in the Medieval Islamic East. Philadelphia: University of Pennsylvania Press, 2012. Friedman, Mordechai Akiva. “Halakha as Evidence of Sexual Life among Jews in Muslim Countries in the Middle Ages.” Peʿamim: Studies in Oriental Jewry 45 (1990): 89–​107 (Heb.). Friedman, Mordechai Akiva. “The Ethics of Medieval Jewish Marriage,” in Religion in a Religious Age, edited by S. D. Goitein, 83–​102. Cambridge, MA: Association for Jewish Studies, 1974. Goitein, S. D. A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza. 6 vols. Berkeley: University of California Press, 1967–​1993. Goitein, S. D. Letters of Medieval Jewish Traders. Princeton: Princeton University Press, 1973. Khan, Geoffrey. Arabic Legal and Administrative Documents in the Cambridge Genizah Collections Cambridge: Cambridge University Press, 1993. Krakowski, Eve. Coming of Age in Medieval Egypt: Female Adolescence, Jewish Law, and Ordinary Culture. Princeton: Princeton University Press, 2017. Lev, Yaacov. The Administration of Justice in Medieval Egypt: From the Seventh to the Twelfth Century. Edinburgh: Edinburgh University Press, 2020. Olszowy-​Schlanger, Judith. “Early Karaite Family Law.” In Karaite Judaism: A Guide to Its History and Literary Sources, edited by Meira Polliack: 275–​90. Leiden: Brill, 2003. Perry, Craig. “The Daily Life of Slaves and the Global Reach of Slavery in Medieval Egypt, 969–​1250 CE.” PhD diss., Emory University, 2014. Rustow, Marina. The Lost Archive: Traces of a Caliphate in a Cairo Synagogue. Princeton: Princeton University Press, 2020. Stilt, Kristin. Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt. Oxford: Oxford University Press, 2012. Zinger, Oded. Living with the Law: Gender and Community among the Jews of Medieval Egypt Philadelphia: Pennsylvania University Press, 2023.

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ATTITUDES TO DOMESTIC VIOLENCE IN CHRISTIAN EUROPE Sara M. Butler In July of 1470, Margrethe de Czyrzsko appeared before the consistory court to complain to the bishop about her treatment at the hands of Zephelth, a butler residing in the city of Poznań in western Poland. She recounted how on a certain day after the feast of St. Michael, Zephelth sought her out in the home of Helene Gnyewomirova and asked her to come with him to the lord’s manor house to cut a measure of cloth. Once there, he guided her into the wine cellar, and violently knew her carnally. Afterwards, on multiple occasions, he came to the manor house and knew her carnally and beat her several times with blows and beatings, “as if she was his wife.” He also got her pregnant. In the end, it was the pregnancy that prompted her to come forward: she requested thirty marks in compensation so that she might raise and educate the child.1 The court’s verdict and sentence in this case has not survived; therefore, we do not know whether Margrethe won the bishop’s sympathy and was awarded child support. Nevertheless, there is still much to be learned from this petition. Two elements in particular stand out. First, the severity of abuse Margrethe endured before seeking intervention raises doubts about the credibility of her suit. Either she genuinely believed the courts were unable to protect her from Zephelth, or her participation was more consensual than she was willing to concede. Second, and undoubtedly far more troubling, is Margarethe’s depiction of this violent treatment as being typical of a marital relationship. Knowing that Margarethe was a single woman, we need to appreciate that her assessment is that of an outsider looking in. However, this offhand remark leaves us wondering whether wife battering was in fact such an identifiable trait of medieval marriage. Domestic violence is not an easy subject to study for the Middle Ages. Not only have our definitions of the terminology changed fundamentally since that time, but medieval authorities have left us with nebulous, ill-​defined statements as a guide. The church, in particular, equipped men and women for family life with highly contradictory advice. There are even more obstacles to obtaining a truthful picture of medieval family life when we turn our gaze from marriage to parenthood. Children exist chiefly in absentia in the medieval record. Even suits for divorce within the church courts, which one would 1 Bolesław Ulanowski, Acta capitulorum nec non iudiciorum ecclesiasticorum selecta, vol. 2 (Krakow: Nakładem Akademii Umiejętnosci, 1902), 594, no. 1326. Discussed also in: Martha A. Brożyna, “Not just a Family Affair: Domestic Violence and the Ecclesiastical Courts in Late Medieval Poland,” in Love, Marriage, and Family Ties in the Later Middle Ages, ed. Isabel Davis, Miriam Müller, and Sarah Rees Jones (Turnhout: Brepols, 2003), 307.

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398 Sara M. Butler expect to address subjects such as child custody and rearing, are generally silent on the issue.2 Philippe Ariès’s bold assertion that the medieval world did not recognize childhood as a separate phase of life, and thus regarded children as miniature adults, has long dictated the direction of the field.3 In response, historians have scrambled to document a culture of nurturing, but have been thwarted by the absence of source material, not just about childhood, but of daily life in general. Moreover, when it comes to the subject of disciplining one’s children, those who addressed the subject were typically spiritual (rather than biological) fathers, focused on taming a child’s wild spirit, leaving us to wonder just how applicable this viewpoint was to children outside the monastic environment. Nonetheless, the various sources that do exist can be pieced together to reassure us that domestic violence was a recognized concern in the medieval period, and that resources did exist to assist the abused.

From Chastisement to Domestic Violence Domestic violence as a subject was forged in the modern world and is not easily transferable to the Middle Ages. What do we mean by “domestic”? Medieval Latin has no word equivalent to the modern “family.” Familia refers instead to the household, composed not only of the nuclear family, but also servants and apprentices with whom some householders created family-​like relationships, as well as an elderly figure or two who may or may not have been related by blood to the head of the household.4 How this extended view of the family impacted a wife’s role is not entirely clear. When it comes to the church, canonists all agreed that a wife belongs to a man’s household and is subject to his governance. Where they divided is in determining whether she occupied an elevated position in that household as his wife. John Chrysostom was emphatic in his defense of a wife’s special rank: “Let there be no fault such as to drive you to the necessity of beating your wife. And why do I say wife? It would not be bearable for a free man to beat and lay his hands on even a servant girl. And if there is such disgrace in striking a slave, how much more [disgrace] in stretching your right hand against a

2 See Sara M. Butler, Divorce in Medieval England: From One to Two Persons in Law (New York: Routledge, 2013), chap. 5.

3 Philippe Ariès, Centuries of Childhood: A Social History of Family Life, trans. Robert Baldick (New York: Vintage, 1962).

4 Thus, a proper study of domestic violence in the medieval period should incorporate also master-​ servant abuse and violence against the elderly. Regrettably, this chapter will do neither, as writing about the former will take us far beyond the word limit, and the latter has yet to be studied in any depth. Philippa C. Maddern, “Interpreting Silence: Domestic Violence in the King’s Courts in East Anglia, 1422–​1442,” in Domestic Violence in Medieval Texts, ed. Eve Salisbury, Georgiana Donavin, and Merrall Llewelyn Price (Gainesville, FL: University of Florida Press, 2002), 31–​56, at 34–​35.

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free woman.”5 The Italian canon lawyer, Huguccio (d. 1210), defended a husband’s right to correction over his wife by affirming that the wife is “judged by the law to be almost the husband’s servant.”6 In his Ordinary Gloss, Johannes Teutonicus (ca. 1245) proposed a more moderate outlook: “A husband may judge his wife by correcting her, but not by beating her, because she is different from a maidservant. He may, however, chastise her, because she is a member of his household.”7 Because the universities adopted the Ordinary Gloss as the standard commentary on Gratian’s Decretum, it is likely that Teutonicus ruled the day among jurists, although what role his gloss played in actual courtrooms across medieval Europe remains a mystery. Political theorists also complicated the definition of domestic by seeing the family as a microcosm of the state. In England, where this ideology permeated the law, when a wife killed her husband, jurists classified the act not as homicide, but (petty) treason. This violation did not extend to children who slew their fathers, they remained guilty only of homicide; but it did encompass servants who killed their masters. Jurists across Europe struggled also with the question of whether a married woman might be classified as her husband’s property. In medieval Perpignan, for example, rape of a married woman was a property crime, in which one man “trespassed on the property of another man.”8 The objectification of women is spelled out in an ordinance of 1320–​1340 from the city of Aardenburg in Flanders, which states, “that a husband may beat his wife, since the wife is part of his household effects.”9 Legal codes were seldom this direct in articulating a man’s property rights over his wife: yet, this statement would seem to reflect a more generally prevailing attitude that encouraged men’s ill behaviour. Defining “violence” for the medieval context is no less troublesome. Much of what we today label as violent or abusive, in the Middle Ages was not only acceptable but 5 As cited in: Leslie Dossey, “Wife Beating and Manliness in Late Antiquity,” Past and Present 199, no. 1 (2008): 3–​40, at 8. Dossey recognizes an East-​West divide in which, drawing on Augustine, the West was more tolerant of violence in the home than was the East. 6 As cited in: Henry Ansgar Kelly, “Medieval Laws and Views on Wife-​Berating,” in Proceedings of the Tenth International Congress on Medieval Canon Law, ed. Kenneth Pennington (Vatican City: Biblioteca apostolica vaticana, 2001), 958–​1001, at 986.

7 As cited in James A. Brundage, “Domestic Violence in Classical Canon Law,” in Violence in Medieval Society, ed. Richard W. Kaeuper (Woodbridge: Boydell, 2000), 183–​95, at 186. 8 Rebecca Lynn Winer, “Defining Rape in Medieval Perpignan: Women Plaintiffs before the Law,” Viator 31 (2000): 165–​84, at 176.

9 As cited in: Peter Arnade and Walter Prevenier, Honor, Vengeance, and Social Trouble: Pardon Letters in the Burgundian Low Countries (Ithaca: Cornell University Press, 2015), 26. Arnade and Prevenier also address the somewhat spurious second regulation of Aardenburg that “the husband may split the woman from the bottom to the top, and warm his feet in her blood.” Arnade and Prevenier tell us that R.C. van Caenegem sees this as “exaggerated” and thus untrustworthy as a guide to actual practice (265). However, Shulamith Shahar cites this as fact (The Fourth Estate: A History of Women in the Middle Ages (London: Methuen 1983; repr. Routledge, 1993), 89–​90). A brief search of the internet reveals that a good many non-​specialists have repeated Shahar’s statement.

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400 Sara M. Butler laudable. From the time of St. Augustine, bishop of Hippo (d. 430), theologians advocated the philosophy that “violence (rightly exercised) … was integral to the well-​ governed household.”10 Yet, the fact that some husbands ended up in court defending themselves against allegations of cruelty (saevitia) tells us that not all violence in the name of chastisement was tolerable. Where do we draw the line between “domestic discipline” and “domestic violence”? And are the limits the same when it comes to chastising one’s wife as it was when chastising one’s child? Finding what constituted abuse in the eyes of courts and communities has been the nagging question that has long preoccupied historians of the medieval family.11 Canon law offers some meagre insight into the limits of acceptable violence. The First Council of Toledo (397–​400) provides the foundation for canonical treatments of the subject. Referring explicitly to the sinning wives of clerics, the council proposed husbands restrict their wives’ opportunities for further sin through strict supervision, but “without inflicting death on them; and by confining them to home and compelling them to salutary fasts, but not starving them.”12 Admittedly, it is hard to know how broadly this guideline was meant to apply: as role models for women across Christendom, presumably a high bar was set for clerics’ wives. Clerics may have been granted exceptional latitude to keep their wives on the straight and narrow. Yet, canonists throughout the Middle Ages regularly cited this passage as a base for their understanding of the power relationship within the marital union. Among canonists, a man’s right to “correct” his wife was usually couched in schoolroom analogies –​equating a wife to her children –​centring on a wife’s disobedience, inappropriate speech, or domineering behaviour.13 Huguccio, who seems to represent the most repressive of canonical ideals, included also poor food preparation, not tending to her husband’s goods, being troublesome, and not cleaning her nose well.14 In terms of the implementation of canon law, “enough violence to move a constant man” was the church’s standard for outlining the limits of force in marriage. With such a vague and poorly defined guide, it is not surprising that no two courts seem to have adopted the same criteria; presumably, cultural norms moulded justices’ discretion.15 What is most striking, though, is the manner in which litigants pushed the boundaries of this spurious phrase. Across Europe, plaintiffs regularly brought cases to court that 10 Dossey, “Wife Beating and Manliness,” 10; Philippa C. Maddern, “Interpreting Silence: Domestic Violence in the King’s Courts in East Anglia, 1422–​1442,” in Domestic Violence in Medieval Texts, 31–​56, at 42. 11 Emma Hawkes, “The ‘Reasonable’ Laws of Domestic Violence in Late Medieval England,” in Domestic Violence in Medieval Texts, 57–​72; Sara M. Butler, The Language of Abuse: Marital Violence in Later Medieval England (Leiden: Brill, 2007). 12 As cited in: Kelly, “Medieval Laws and Views,” 985. 13 Kelly, “Medieval Laws and Views,” 998. 14 Kelly, “Medieval Laws and Views,” 986.

15 Richard H. Helmholz, Marriage Litigation in Medieval England (Cambridge: Cambridge University Press, 1974), 91.

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expanded the scope of cruelty well beyond physical violence to comprise also marital neglect, starvation, imprisonment, drunkenness, and verbal abuse. Secular law codes rarely address domestic violence and thus cannot add much to our picture. Those that do touch on family violence are often equally elusive in their instruction. For example, Sweden’s fifteenth-​century Law of Kristoffer declared it acceptable for a man to “rebuke” his wife to a “moderate extent if she had committed a misdeed.”16 There are two notable exceptions to this rule. Philippe de Beaumanoir’s thirteenth-​century Coutumes de Beauvaisis includes an enlightening chapter on marital maintenance that speaks to “incompatibility between married persons, how their lords should deal with it, and the reasons why one can leave the other.”17 In doing so, Beaumanoir offers useful instruction on understanding the limits of domestic discipline: a man may beat his wife without loss of life or limb, providing the beating does not result in bruises or bloodshed. Acceptable grounds for employing wifely correction include adultery, when she “contradicts her husband or curses him,” and “when she will not obey his reasonable orders as an honest woman should.”18 Pre-​conquest Welsh law includes a similar rationale for husbands when it comes to regulation. A man was entitled to beat his wife in only three scenarios: giving away her husband’s property; adultery; and “for wishing shame on his beard.”19 What we do not find in the secular law codes is support for one of the more long-​standing myths about domestic violence in the medieval milieu, that the medieval world endorsed “the rule of thumb,” that is, a husband may beat his wife with a stick providing that the width of the stick is no thicker than his thumb. Henry Ansgar Kelly has been instrumental in debunking the medieval origins of this fiction, proving it to be an invention instead of the seventeenth century.20 Looking beyond the law, the literature of the era promoted a high tolerance for abuse. Church sermons and saints’ lives, for example, prepare women to think of marriage as a form of imitatio Christi (imitation of Christ). St. Basil, bishop of Caesarea in Cappadocia (d. 379) describes an ideal wife as one who has “a duty to be patient in the midst of suffering at her husband’s hands.”21 This phrasing is unnervingly similar 16 Anna Kjellström, “Domestic Violence in the Middle Ages: An Anthropological Analysis of Sex-​ specific Trauma in Five Scandinavian Skeletal Assemblages,” in From Ephesos to Dalecarlia: Thoughts on Bodies, Space and Time in Medieval and Early Modern Europe, ed. Elisabet Regner, Laila Kitler Åhfeldt, Cecilia von Heijne, Anna Kjellström (Stockholm: Museum of National Antiquities, 2009), 145–​60, at 148.

17 The “Coutumes de Beauvaisis” of Philippe de Beaumanoir, ed. and trans. Frank R. P. Akehurst (Philadelphia: University of Pennsylvania Press, 1992), 593. 18 Coutumes de Beauvaisis, 595n1631.

19 Lizabeth Johnson, “Attitudes towards Spousal Violence in Medieval Wales,” Welsh History Review 27 (2009): 81–​115, at 89. 20 Henry Ansgar Kelly, “Rule of Thumb and the Folklaw of the Husband’s Stick,” Journal of Legal Education 44, no. 3 (1994): 341–​65.

21 Joy Schroeder, “John Chrysostom’s Critique of Spousal Violence,” Journal of Early Christian Studies 12, no. 4 (2004): 413–​42, at 417.

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402 Sara M. Butler to Beaumanoir’s “an honest woman should put up with and endure a great deal before leaving her husband’s company,” written some 900 years later.22 Hagiography abounds with examples of virtuous battered wives, among which St. Monica (d. 387) is the most renowned.23 Monica lived her life in perpetual fear of her husband’s fists, and even advised other victims of domestic violence how to avoid provoking their husbands into violence through silence and forbearance.24 This image is complemented by the perception of marriage in secular literature which all too frequently depicted marriage as a form of purgatory on earth. As Justinus advised Januarie in Chaucer’s The Merchant’s Tale before marrying: “Perhaps she may be your purgatory!/​She may be God’s instrument and God’s whip;/​Then shall your soul up to heaven skip/​swifter than doth an arrow out of a bow.”25 This vision harks back to Chrysostom’s assessment that it is more often women who do the abusing. It was a wife’s duty to secure her husband’s safe passage to heaven: “The bad wife did it by nagging, cheating, and squandering to make him a martyr of marriage; the good wife by her devotions as a widow.”26 The church’s advice for husbands was often equally ambiguous, but the one constant was a condemnation of violence enacted through anger, an underlying theme that owes its existence to the Greeks, who saw wife-​beating as a shameful, even effeminate, loss of control.27 John Chrysostom (d. 407) captures the sentiment best when he cautions men, “Do not yourself become a woman, for it is womanly to be abusive.”28 This premise appears repeatedly in sermons of the late Middle Ages. Peregrinus, a Dominican friar preaching in thirteenth-​century Poland, lectured his parishioners: Yet I fear that there are many husbands who are so angry after a visit to an inn that they enjoy beating their wives. They do not dare to strike those who insulted them because they know that if they do, they will be beaten in return. But after they return home, in their rage, they take all the wrong they have suffered in the inn out on their wives: they grab them by the hair and shove them around the room.29

Violence motivated by anger clearly met ecclesiastical expectations for abuse. Better to take the approach advocated by Cherubino da Siena, a fifteenth-​century friar. He advised 22 Coutumes de Beauvaisis, 594n1629.

23 Beverly Mayne Kienzle and Nancy Nienhuis, “Battered Women and the Construction of Sanctity,” Journal of Feminist Studies in Religion 17, no. 1 (2001): 33–​61, at 34.

24 Dossey, “Wife Beating and Manliness,” 12. Admittedly, Monica’s story was related by her son, St. Augustine, who presumably restructured the narrative to teach his audience a moral tale about the appropriate power hierarchy within marriage.

25 English modernized. As cited in Barbara Newman, From Virile Woman to WomanChrist: Studies in Medieval Religion and Literature (Philadelphia: University of Pennsylvania Press, 1995), 116. 26 Newman, Virile Woman, 116.

27 Dossey, “Wife Beating and Manliness,” 4.

28 As cited in: Schroeder, “John Chrysostom,” 423.

29 As cited in: Rüdiger Schnell, “The Discourse on Marriage in the Middle Ages,” Speculum 73 (1998): 771–​86, at 772.

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husbands to beat their wives for serious wrongs, “not in rage but out of charity and concern for her soul, so that the beating will redound to your merit and good.”30 Thomas of Chobham, in his manual for confessors (1215), similarly argued that the punishment must fit the crime: “if she is foolish, moderately and decently correct her, and if necessary castigate her.”31 When it comes to a father’s rights of correction over his children, the church’s advice was similar in nature to that handed down to husbands. He must do so in a reasonable manner. Admittedly, their definition of what is reasonable clearly differed from ours today. In his Commentaria (ca. 1378), Baldus de Ubaldis remarked that it is lawful for a father to imprison his children in chains, providing the goal was legitimate chastisement, but a child should not be submitted to such treatment out of malice or without reason.32 Ancient authorities, which advocated the benefits of frequent beatings, set the foundation for medieval ideas of child-​rearing. In that era, educating children was equated with the training of slaves and/​or animals: all three need their wild spirits tamed in order to learn their place in the world. Even for those writers who promoted moderation, corporal punishment usually included rods, switches, and untempered blows. Seneca explained that even children under the age of seven should be whipped when recalcitrant.33 Childhood was so closely associated with violent punishment that St. Augustine, who also supported child-​beating as an act of pious love, claimed that when given the choice between death and childhood, people invariably choose death.34 As Baldus’s extreme example implies, violence must be justifiable. St. Benedict of Nursia (d. 547), for example, reserved “stripes and other bodily punishments” only for “bold, hard, proud and disobedient characters.”35 Indeed, some authors, such as John Chrysostom, rejected physical violence against children altogether, and advocated instead for “a more lenient education based on respect and understanding.”36 St. Anselm of Canterbury (d. 1109) also advised caution. Only strong souls can withstand rigorous discipline; “the young must be drawn to moral goodness by gentleness from others, kindness, compassion, good humoured calling to account, loving forbearance, 30 As cited in: Kienzle and Nienhuis, “Battered Women,” 34.

31 Thomae de Chobham. Summa Confessorum, ed. and trans. Frederic Broomfield (Leuven: Éditions Nauwelaerts, 1968), 375.

32 Richard H. Helmholz, “And Were There Children’s Rights in Early Modern England? The Canon Law and ‘Intra-​family Violence’ in England, 1400–​1640,” The International Journal of Children’s Rights 1, no. 2 (1993): 23–​32, at 26.

33 Christian Laes, “Child Beating in Roman Antiquity: Some Reconsiderations,” in Hoping for Continuity: Childhood, Education and Death in Antiquity and the Middle Ages, ed. Katariina Mustakallio et al., 75–​89 (Rome: Institutum Romanum Finlandiae, 2005), 79. 34 Laes, “Child Beating,” 81.

35 Leonard J. Doyle, ed., St Benedict’s Rule for Monasteries (Collegeville: Liturgical, 1948), chap. 2. 36 Laes, “Child Beating,” 87.

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404 Sara M. Butler and much else of the same kind.”37 Anselm’s insight is mirrored in the educational treatise of the Dominican friar Vincent of Beauvais (d. 1264), who remarked: “Children’s minds break down under excessive severity of correction; they despair, and worry, and finally they hate. And this is the most injurious; where everything is feared, nothing is attempted.”38 Despite their best efforts, the normalcy of child-​beating is substantiated by two ongoing factors: (1) at universities across Europe, when a man qualified for the degree of Master of Grammar, he received a birch rod as an emblem of his office. The occasion was then marked by flogging a student as part of the degree ceremony;39 and (2) ecclesiastical authorities frequently equated violent discipline with good parenting. That early modern Finnish jurists saw a “lack of discipline” as “a form of neglect” testifies to the longevity of this ideal.40 Of course, while canonists may have had little to say on child abuse, they had much to say on children’s rights in general. All children, even those born outside of marriage, have a right to support. Not only did the canonists endorse this viewpoint, but a multitude of surviving court orders for the payment of child support demonstrate just how imperative it was to ecclesiastical judges.41 The victimization of children at the hands of their spiritually-​minded parents was of particular concern to the church. The Decretum employed its most powerful weapons to punish parents who saw their children as “a form of wealth to be renounced in the quest for holy poverty.”42 Gratian warned, “If anyone abandons his own children, and neither feeds them nor provides them with the necessities (which is the mark of piety), but, under the pretext of asceticism, thinks that they are to be neglected, let him be anathema.”43 Diversity in Space and Time Regional distinctions in ideas about appropriate household governance are to be expected; however, they were greatly influenced by broader marriage patterns. In his landmark 1965 publication, John Hajnal identified two distinct patterns of marriage at play in medieval society, one limited to the northwest, which he labelled the European Marriage 37 As cited in: Gregory B. Sadler, “Non Modo Verbis sed Verberibus: Saint Anselm on Punishment, Coercion, and Violence,” Cistercian Studies Quarterly 45, no. 1 (2010): 35–​61, at 40.

38 David Herlihy, Women, Family and Society in Medieval Europe. Historical Essays, 1978–​1991 (Oxford: Berghahn, 1995), 235. 39 Brundage, “Domestic Violence,” 185.

40 Raisa Maria Toivo, “Violence between Parents and Children: Courts of Law in Early Modern Finland,” History of the Family 18, no. 3 (2013): 331–​48, at 340.

41 Richard H. Helmholz, “Support Orders, Church Courts, and the Rule of Filius Nullius: A Reassessment of the Common Law,” Virginia Law Review 63 (1977): 431–​48. 42 Newman, From Virile Woman, 86.

43 As cited in: Jessica Goldberg, “The Legal Persona of the Child in Gratian’s Decretum,” Bulletin of Medieval Canon Law 24, n.s. (2000): 1–​53, at 19–​20.

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Pattern (EMP), the other dominant in the south (non-​EMP).44 EMP is characterized by a relatively late age of marriage between spouses who are close in age and who form their own household upon marriage. The centrality of the dowry distinguishes Non-​ EMP. As a result, in the south we are more likely to find marriages of the January to May variety. Men settled down once they had completed their apprenticeships and were ready to invest in a business partnership. A wife’s dowry provided a man with capital in order to advance his career. But fears of women’s unchastity led families to marry their daughters off young. Accordingly, thirty-​year-​old men regularly married young women in their teens. After marriage, they lived with the husband’s family, producing much more tensely-​hierarchical households than was usual in the northwest. When it comes to impact on the marital relationship, it seems all too clear that husband and wife cannot be on an equal footing when the wife is half her husband’s age. Such an extreme age difference undoubtedly encouraged Mediterranean husbands to adopt a more paternal style of governance in the home and may also have contributed to the “infamous Mediterranean misogyny,” typified in Boccaccio’s recitation of the Griselda story in his Decameron (ca. 1348–​1353).45 Gualtieri, a long-​confirmed bachelor, resolves finally to take a wife, but in order to effect the ideal marriage, he chooses a young woman of little means who promises never to question his authority. Their marriage is a series of tests of the wife’s obedience: Griselda is told that both of her children were put to death for various reasons, when in reality Gualtieri had them reared secretly away from their noble household. And Griselda did not utter a single complaint. It was only after Griselda helped him prepare for his wedding to a new wife (in fact, his twelve-​year-​ old daughter), that Gualtieri is assured of her sincere loyalty and patience, at which point he revealed that he had been testing her all along and she received her children back into their home.46 While both the Ménagier de Paris and Chaucer’s “The Clerk’s Tale” provide a retelling of Patient Griselda’s tale, the story had different meaning in a northern context. In the Italian world, it was intended to stress the importance of a wife’s obedience. Chaucer’s inclusion of the story presented yet another example of a marriage gone awry because marital “sovereignty” was not shared, but lay entirely in the hands of a tyrannical husband. Indeed, the Ménagier de Paris sees in this story a message also for husbands who make unreasonable, even cruel demands of their wives. He laments: “God keep me from trying you in this way or in others!”47 Not only geography, but also chronology had an impact on power relations within marriage, reminding us that the family is just one part of a larger equilibrium. In this 44 John Hajnal, “European Marriage Patterns in Perspective,” in Population in History, ed. D. V. Glass and D. E. C. Eversley (London: Edward Arnold, 1965), 101–​43. 45 Philip Gavitt, “Infant Death in Late Medieval Florence: The Smothering Hypothesis Reconsidered,” in Medieval Family Roles, ed. Cathy Jorgensen Itnyre (New York: Garland, 1996), 137–​57, at 144. 46 Giovanni Boccaccio, The Decameron (New York: Penguin, 2010), day 10, tale 10.

47 Eileen Power, ed. and trans., The Goodman of Paris (Le Ménagier de Paris): A Treatise on Moral and Domestic Economy by a Citizen of Paris, c. 1393 (Woodbridge: Boydell, 2006), 92.

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406 Sara M. Butler respect, the Black Death functioned as a catalyst for change. In the urban centres of northwestern Europe, the manpower crisis precipitated by the plague created a labour market favourable to the peasantry. With expanded opportunities for work and higher wages, women were able to delay marrying, and perhaps not marry at all, if they so chose. Jeremy Goldberg contends that these changes had a profound impact on divorce rates. He sees that “townswomen were less prepared to put up with unsatisfactory and violent marriages than may have been true of their rural sisters or of preceding or subsequent periods.”48 Tine de Moor and Jan van Zanden, in particular, see this as a natural outgrowth of the church’s campaign for consensual marriage, underscoring the companionate nature of marriage.49 Admittedly, before we embrace too rosy a picture, we need to recognize the limits of this transformation. Women’s expanded liberties were experienced only temporarily, several decades at most, and this phenomenon was confined chiefly to cities in northwestern Europe. Further, we need to recognize that the church’s campaign for consensual marriage had imperfect success. Marriage by kidnap or rape was a feature of society in both the northwest and the south.50 Georges Duby saw this as a facet of elite society, a by-​product of primogeniture. Bored younger sons of the wealthy wandered throughout Europe in gangs, kidnapping daughters in order to make a place for themselves in society.51 Recent research, however, has proven that the problem was more widespread; widows and heiresses at all levels of society were vulnerable to coerced marriage.52 Moreover, the line between consent and force was blurred. As one scholar has observed, there is a “whole spectrum between wholehearted agreement and active refusal.”53

Assisting Victims of Abuse

Victimhood was not the inevitable lot of the abused wife. When her husband’s violent behaviour exceeded acceptable norms, she petitioned the church for assistance. The church’s position on marriage as a sacrament meant that it was the institution’s 48 P. Jeremy P. Goldberg, “Debate: Fiction in the Archives: the York Cause Papers as a Source for Later Medieval Social History,” Continuity and Change 12, no. 3 (1997): 425–​45, at 439.

49 Most recently, see Tine de Moor and Jan Luiten van Zanden, “Girl Power: The European Marriage Pattern and Labour Markets in the North Sea Region in the Late Medieval and Early Modern Period,” Economic History Review 63, no. 1 (2010): 1–​33. 50 See Gwen Seabourne’s chapter in this volume for a more extended discussion of the subject.

51 Georges Duby, The Chivalrous Society, trans. Cynthia Postan (Berkeley: University of California Press, 1981), 112–​22.

52 Sara M. Butler, “ ‘I will never consent to be wedded with you!’: Coerced Marriage in the Courts of Medieval England,” Canadian Journal of History 39, no. 2 (2004): 291–​316; Chanelle Delameillieure, “ ‘Partly with and Partly against her will’: Female Consent, Elopement, and Abduction in Late Medieval Brabant,” Journal of Family History 42, no. 4 (2017): 351–​68, at 357. 53 Gwen Seabourne, Imprisoning Medieval Women: The Non-​judicial Confinement and Abduction of Women in England, c.1170–​1509 (Farnham: Ashgate, 2011), 152.

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staunchest defender. The church courts shared a “presumption in favour of marriage”; they did their best to bring couples back together whenever possible, even when it came to instances of domestic violence.54 Women turned to the church for protection from violent husbands; the courts issued restraining orders, demanded surety for good behaviour, sequestered litigants, and issued threats on pain of fine or excommunication. And when a marriage was beyond salvage, the Corpus Juris Civilis, which lay at the heart of canon law, provided victims of domestic violence with a remedy. “[I]‌f the wife proves that her husband has afflicted her with blows, which are alien to free-​born persons, then we permit her freedom to use the necessary procedures of repudiation and to establish the justifications for divorce according to the law.”55 Separation was granted in two forms: 1) divortium a mense (“separation from table”), which permitted the couple to live separately and granted a wife control of her own finances and/​or a maintenance agreement; and 2) divortium a mense et thoro (“separation from table and bed”), which also annulled any responsibility to pay the conjugal debt.56 In both scenarios, the marital bond remained intact: canon law permitted neither party to remarry, and any evidence of reconciliation spontaneously cancelled the separation.57 Ecclesiastical courts were courts of conscience: notions of precedent, which are so fundamental to modern law, did not guide their decisions. Accordingly, where a litigant sued dictated the suit’s potential for success. English reluctance to grant separations on the grounds of cruelty is represented in the small numbers of cases sued; whereas in Paris, it was the most common grounds for divorce.58 English litigants preferred to sue for a divorce a mense et thoro; in Paris, courts typically awarded only divorce a mense.59 In Poland, battered wives opted instead to sue for divorce on the grounds of adultery or consanguinity, suits with greater chances of success, when “in actuality, it was the intolerable abuse which was the real problem in the marriage.”60 In Wales, a battered 54 Charles Donahue, Jr., “Female Plaintiffs in Marriage Cases in the Court of York in the Later Middle Ages: What can we learn from the Numbers?” in Wife and Widow in Medieval England, ed. Sue Sheridan Walker, 183–​213 (Ann Arbor: University of Michigan Press, 1993), 191.

55 Johannes Fehius of Gailsdort, ed., Corpus juris civilis Justinianei (6 vols., Lyons, 1627; repr. Osnabrück: Zeller, 1965–​1966), 4:1243. There is much debate over exactly when the church first began to allow separation on the grounds of cruelty (saevitia). There is good reason to see the papacy of Innocent III (r. 1198–​1216) as a turning point; Brundage, “Domestic Violence,” 188. See also: Charles Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages (Cambridge: Cambridge University Press, 2007), chap. 10. 56 Sara M. Butler, Divorce in Medieval England: From One to Two Persons in Law (New York: Routledge, 2013), chap. 3. 57 Butler, Divorce, 134.

58 Kristi DiClemente, “Domestic Cruelty: Saevitia and Separation in Medieval France,” Quidditas 36 (2015): 53–​72, at 54. 59 Brundage, “Domestic Violence,” 191. DiClemente argues that Parisian courts reserved divorce a mense et thoro for suits of adultery. DiClemente, “Domestic Cruelty,” 55. 60 Brożyna, “Not just a Family Affair,” 302.

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408 Sara M. Butler wife was entitled to compensation because of the damage done to her honour.61 One of the few common threads is that the courts insisted on proof of a pattern of abuse. Ecclesiastical justices wanted to know that a man’s violence exceeded acceptable norms, was life-​threatening, and had occurred without provocation. A woman’s case was bolstered also if she could prove neglect, deprivation of the basic necessities of life, fear-​mongering, repeated adultery, and/​or household mismanagement. Women were almost always the defendants. Indeed, husbands “were not thought to need recourse to legal separation.”62 When men sued for divorce on the grounds of cruelty, it was because they were convinced their wives were trying to poison them.63 The secular courts were much more limited in the kinds of assistance they could offer. Pleading a suit of assault against one’s spouse was unfeasible. In England, the courts of common law upheld coverture, which saw husband and wife as one person at law, represented by the husband. Accordingly, a wife who sued her husband for assault effectively sued herself (the same holds true in reverse). In most places in continental Europe, the law treated married women as minors. A wife needed the support of her husband to plead any suit at law, and a husband who sued his wife would find he was suing himself as her guardian. Nonetheless, instances of domestic violence did sometimes crop up in local or municipal courts, tasked with addressing breaches of the peace and maintaining a harmonious community. Issues relating to marital violence sometimes appeared in state courts. This is particularly true when it comes to matters of property. In some regions (such as Marseille, Venice, and the Crown of Aragon), the secular courts entertained motions of dowry restitution by battered wives preparing to leave their husbands.64 Perhaps most critically, while it is often thought that a husband might kill his adulterous wife with impunity, we must acknowledge that only certain regions of Europe adopted such an extreme view of a husband’s rights over his wife. Both Sicilian and Swedish law permitted a husband to engage in mortal revenge on his adulterous wife and her lover, but first he had to catch the lovers in flagrante.65 Outside these two regions, there is a much greater diversity in responses. The Crown of Aragon 61 Johnson, “Attitudes towards Spousal Violence,” 89.

62 Julie Hardwick, “Seeking Separations: Gender, Marriages, and Household Economies in Early Modern France,” French Historical Studies 21, no. 1 (1998): 157–​80, at 160. 63 Brożyna, “Not just a Family Affair,” 303; Dean, “Domestic Violence,” 532.

64 Susan McDonough, “She Said, He Said, and They Said: Claims of Abuse and a Community’s Response in Late Medieval Marseille,” Journal of Women’s History 19, no. 4 (2007): 35–​58; Julius Kirshner, “Wives’ Claims against Insolvent Husbands in Late Medieval Italy,” in Women of the Medieval World: Essays in Honor of John H. Mundy, ed. Julius Kirshner and Suzanne F. Wemple (Oxford: Blackwell, 1985), 256–​303; Kelleher, The Measure of Woman, 114.

65 Eva Cantarella, “Homicides of Honor: The Development of Italian Adultery Law over Two Millennia,” in The Family in Italy: From Antiquity to the Present, ed. David I. Kertzer and Richard P. Saller, 229–​44 (New Haven: Yale University Press, 1991), 237; Satu Lidman, “Violence or Justice? Gender-​Specific Structures and Strategies in Early Modern Europe,” History of the Family 18, no. 3 (2013): 238–​60, at 245.

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did not formally condone the actions of cuckolded husbands who murdered their wives’ lovers; yet these men were often pardoned for their crimes.66 In England, “cuckolded men were far more likely to sue than to kill.”67 The same holds true also for France.68 In general, when violence turned fatal, the secular courts took such cases seriously: again, in England, where juries were notoriously reluctant to convict, spousal homicides “were more likely to be hanged or burned than ordinary murderers.”69 And when a defendant was acquitted, he or she was forbidden from marrying in the future without a papal dispensation.70 Children had far fewer defences from abuse. Not only did the ius commune forbid sons from pleading suit against their fathers, as a minor and thus a dependent, what right did a child have to seek assistance from the courts? It is no wonder that when Richard Helmholz went looking for child abuse in the church courts of medieval England, he found only instances of parent abuse.71 Moreover, if courts and communities were sometimes hesitant to criticize a man’s right to correct his wife, how much more reluctant might they have been to intervene in the exercise of a man’s patria potestas? In general, when it comes to the lot of medieval children, historians have assumed the worst. Much of this springs from the genesis of the field. Despite the almost sixty years since the publication of Centuries of Childhood, Philippe Ariès’s formidable shadow still hangs over it.72 This landmark publication made the remarkable claim that the medieval world did not recognize childhood as a distinct phase of life. Rather, children were treated simply as adults in miniature. Based chiefly on paintings and portraiture, Ariès’s conclusions about the Middle Ages have since been roundly dismissed; nonetheless, the view of childhood as a social construct essentially launched the history of childhood as a discipline.73 In so doing, it gave birth to a number of much more problematic streams of thought, among others, the hypothesis of parental indifference, that medieval parents 66 Marie A. Kelleher, The Measure of Woman: Law and Female Identity in the Crown of Aragon (Philadelphia: University of Pennsylvania Press, 2010), 122.

67 Krista J. Kesselring, “No Greater Provocation? Adultery and the Mitigation of Murder in English Law,” Law and History Review 34, no. 1 (2016): 199–​​225, at 204.

68 Leah Otis-​Cour, “De jure novo: Dealing with Adultery in the Fifteenth-​Century Toulousain,” Speculum 84, no. 2 (2009): 347–​92, at 366.

69 Barbara A. Hanawalt, “Violence in the Domestic Milieu of Late Medieval England,” in Violence in Medieval Society, ed. Richard W. Kaeuper (Woodbridge: Boydell, 2000), 197–​214, at 206. 70 Ludwig Schmugge, Marriage on Trial: Late Medieval German Couples at the Papal Court, trans. Atria A. Larson (Washington: Catholic University of America Press, 2012), 229–​33. 71 Helmholz, “And Were There Children’s Rights?,” 23–​32.

72 Ariès, Centuries of Childhood. The impact of his work is best measured by the fact that his work still demands comment. See Kate Retford, “Philippe Ariès’s ‘Discovery of Childhood’: Imagery and Historical Evidence,” Continuity and Change 31, no. 3 (2016): 391–​418. 73 Anthony Burton, “Looking forward from Ariès? Pictorial and Material Evidence for the History of Childhood and Family Life,” Continuity and Change 4, no. 2 (1989): 203–​29.

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410 Sara M. Butler remained emotionally detached from their children because of high mortality rates.74 Once again, copious research by Ronald Finucane, Eleanora Gordon, Barbara Hanawalt, Nicholas Orme, and Shulamith Shahar (to name only a few) has undercut this argument with evidence, underscoring instead the emotional investment parents had in their children.75 Such industriousness has led to a passionate declaration by one pair of authors, who exclaim that “the evidence for child abuse and infanticide being widespread phenomena by any reasonable understanding of such phraseology, is utterly lacking.”76 Notwithstanding, the work of Ariès and his supporters still attracts a powerful following and is rehearsed all too often without reservation by otherwise well-​regarded medievalists.77 These bold assertions have set an ominous tone for the field and help us to understand the often-​grim conclusions drawn despite the absence of evidence. This remains especially true when it comes to studies of infanticide. Historians have tended towards a broad-​based assumption that infanticide was rife. In his 1973 study of medieval Florence, Richard Trexler saw callous single-​women murdering their newborn children to avoid disgrace.78 The following year, Barbara Kellum, working from a narrow collection of legal evidence, reported on “the casual nature and mild consequences of infanticide in late medieval England.”79 Since that time, much has been done to amend this image. Helmholz, for example, explains that historians have been looking for 74 Lloyd DeMause, “The Evolution of Childhood,” in The History of Childhood (Lanham: Rowman and Littlefield, 1974), 1–​74; Lawrence Stone, The Family, Sex and Marriage 1500–​1800 (New York: Harper and Row, 1977).

75 Ronald C. Finucane, The Rescue of the Innocents: Endangered Children in Medieval Miracles (New York: St. Martin’s, 2000); Eleanora C. Gordon, “Accidents among Medieval Children as seen from the Miracles of Six English Saints and Martyrs,” Medical History 35, no. 2 (1991): 145–​63; Barbara A. Hanawalt, Growing Up in Medieval London: The Experience of Childhood in History (New York: Oxford University Press, 1993); Nicholas Orme, Medieval Children (New Haven: Yale University Press, 2001); Shulamith Shahar, Childhood in the Middle Ages (London: Routledge, 1990). 76 Jerome Kroll and Bernard Bachrach, “Child Psychiatry Perspective: Child Care and Child Abuse in Early Medieval Europe,” Journal of the American Academy of Child Psychiatry 25, no. 4 (1986): 562–​68, at 568.

77 This topic is explored in: Albrecht Classen, “Philippe Ariès and the Consequences: History of Childhood, Family Relations, and Personal Emotions. Where do we stand Today?” in Childhood in the Middle Ages and the Renaissance: The Results of a Paradigm Shift in the History of Mentality (Berlin: de Gruyter, 2005), 1–​66. The extent of the hyperbole is manifest in the titles of some publications. See Steven A. Epstein, “The Medieval Family: A Place of Refuge and Sorrow,” in Portraits of Medieval and Renaissance Living, ed. Samuel K. Cohn, Jr. and Steven A. Epstein, 149–​ 71 (Ann Arbor: University of Michigan Press, 1996); Graham N. Drake, “Not Safe Even in Their Own Castles: Reading Domestic Violence against Children in Four Middle English Romances,” in Domestic Violence in Medieval Texts, 139–​63. 78 Richard C. Trexler, “Infanticide in Florence: New Sources and First Results,” History of Childhood Quarterly 1, no. 3 (1973): 98–​116. 79 Barbara Kellum, “Infanticide in England in the later Middle Ages,” History of Childhood Quarterly 1, no. 1 (1974): 367–​88, at 367.

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infanticides in the wrong place. He directs our gaze instead to the church courts, noting that their jurisdiction in family matters led them to be authorities also in infanticide, filicide, and child neglect.80 Philip Gavitt maintains that many infant deaths attributed to the “smothering wetnurse” were probably the result of SIDS.81 English jail delivery rolls confirm that legal authorities seriously investigated instances of infanticide; however, the unique circumstances associated with determining cause of death when it comes to a newborn presented sometimes insurmountable obstacles for investigators.82 Sara McDougall has shown that in France, infanticide was often a pardonable offence, despite its heinousness.83 The most compelling evidence that infanticide was not a normal part of life is the fact that authorities did not single it out as a crime, as did concerned early modern authorities. Medieval jurists simply did not see infanticide as a problem needing special attention.

Distinctly Medieval

In at least one respect, the medieval world proved to be able to better handle issues of abuse than the modern West. When domestic violence is overlooked today, it is usually because of a lingering sentiment that it is a private matter, that what happens between a family’s four walls is better left to that family to resolve. This is a cultural reaction, a product of a society with a highly developed sense of privacy. In the dense, almost claustrophobic world of the Middle Ages, with shared beds, little living space, thin walls, and a strong sense of communal morality, privacy meant something altogether different. As Shannon McSheffrey writes, the result is that “some of those arenas of life that seem obviously ‘private’ to us were not so categorized in the Middle Ages.”84 Sex very much belongs to this ambiguous category. For the most part, today, we see a person’s sex life as private. The medieval world could not, because sexual sin ranked high among offences to God. Turning a blind eye to your neighbour’s bed had the potential to unleash God’s anger against the entire community. Similarly, a marriage might be an intimate relationship, but it was far from private.85 The making of marriage in the medieval world, from spousal selection to exchange of vows, was a public act involving family, friends, and neighbours, ideally embarked upon in a public venue (often an alehouse or a shop), and solemnized at church door. Maintaining that contract through communal 80 Richard H. Helmholz, “Infanticide in the Province of Canterbury during the Fifteenth Century,” History of Childhood Quarterly 1, no. 3 (1975): 379–​90. 81 Gavitt, “Infant Death in Late Medieval Florence,” 137–​53.

82 Sara M. Butler, “A Case of Indifference? Child Murder in Later Medieval England,” Journal of Women’s History 19, no. 4 (2007): 59–​82.

83 Sara McDougall, “Pardoning Infanticide in Late Medieval France,” Law and History Review 39, no. 2 (2021), 229–​53. 84 Shannon McSheffrey, “Place, Space, and Situation: Public and Private in the Making of Marriage in Late-​Medieval London,” Speculum 79, no. 4 (2004): 960–​90 at 961. 85 McSheffrey, “Place,” 986.

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412 Sara M. Butler supervision was a part of the deal. Somewhat unexpectedly, the public nature of marriage made medieval communities more sensitive to issues of domestic violence. Neighbours did not see the home as a bar to intervention. They acted as “important arbitrators of acceptable behaviour,” bursting into homes at all hours of the day and night to put a stop to a marital spat before it spiralled out of control.86 Family and friends took in victims of abuse, and sometimes lost their lives defending them.87 So, too, did parish priests, and the church courts of this period took on such an active role in regulating marriages that L. R. Poos has described them as “heavy-​handed marriage counsellors.”88 The centrality of the community to regulating family disputes was widely understood also by the abused: a victim of abuse knew that the best defence was to run out into the street and make that violence public.89 Once again, political theory reinforced the public nature of marriage and the family. If the family is a microcosm of the state, the welfare of the kingdom relies on the status of the family. If the family is crumbling, so, too, is the state. Equating king and patriarch left husbands to shoulder a heavy burden. A man’s honour and reputation in the community was tied to his ability to govern his household appropriately, and unlike the king, he did not have a privy council to assist him in this work. Mismanagement not only invited ridicule, it impacted one’s business relationships and standing in the community. Recognizing the public nature of medieval marriage has helped historians to understand more clearly the resources available to victims of abuse. When domestic violence is a private matter, the victim is isolated and vulnerable; not so in the medieval setting. Therefore, even if the medieval world had a higher tolerance for physical violence between spouses than do we today, battered wives were far from powerless.

Conclusion

Legal sources inevitably offer a skewed vision of the Middle Ages because their focus is on preventing and punishing deviant and rebellious behaviour. When those are the only sources we have of daily life, it is all too easy to normalize violence and dysfunction. The prescriptive literature tells us that the good husband governed his wife, the good father disciplined his children: but we have little evidence to discern how most men actually behaved towards their wives and children. Much of the advice offered by canonists and discussed in this chapter probably never reached the ears of the average man in medieval Europe. It did guide the church in its teachings and rulings; yet, the ambiguous 86 Marianna Muravyeva, “ ‘A King in his own Household’: Domestic Discipline and Family Violence in Early Modern Europe Reconsidered,” History of the Family 18, no. 3 (2013): 227–​37, at 229. 87 Butler, Language of Abuse, chap.5.

88 Lawrence R. Poos, “The Heavy-​Handed Marriage Counsellor: Regulating Marriage in Some Later-​Medieval English Local Ecclesiastical-​Court Jurisdictions,” The American Journal of Legal History 39 (1995): 291–​309.

89 Hannah Skoda, Medieval Violence: Physical Brutality in Northern France 1270–​1330 (Oxford: Oxford University Press, 2013), 223.

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and contradictory nature of much of the canonists’ pronouncements leave us with the distinct impression that ecclesiastical judges probably ignored it in favour of common sense and a regional sense of justice. When it comes to children, once again, the messages delivered by the church were mixed. Parents were encouraged to discipline their children out of love not anger, and while the line between discipline and abuse remained blurry, key figures within the church cautioned parents against the futility of excessive violence, and advised instead nurturing guidance. The church also ardently defended a child’s right to support. That the church pulled out its strongest weapon (anathema) for the father who turned his back on a bastard is a good indication that abuse had its limits. There is much also to celebrate in this chapter. The public nature of marriage meant that men and women did not turn a blind eye when their neighbours fought; rather, they felt it was their duty to intervene and restore peace. The church courts devised a wide variety of mechanisms to mediate violent marriages, such as restraining orders and sequestration, and when marriages were beyond reparation, a couple might separate lawfully. The secular courts provided other aids to help wives regain their dowries, or to prosecute when assault turned to homicide. As a result, medieval couples probably had greater resources at their disposal than most spouses do today.

Selected Secondary Sources

Brożyna, Martha A. “Not just a Family Affair: Domestic Violence and the Ecclesiastical Courts in Late Medieval Poland.” In Love, Marriage, and Family Ties in the Later Middle Ages, edited by Isabel Davis, Miriam Müller, and Sarah Rees Jones, 299–​309. Turnhout: Brepols, 2003. Brundage, James A. “Domestic Violence in Classical Canon Law.” In Violence in Medieval Society, edited by Richard W. Kaeuper, 183–​95. Woodbridge: Boydell, 2000. Butler, Sara M. “ ‘I will never consent to be wedded with you!’: Coerced Marriage in the Courts of Medieval England.” Canadian Journal of History 39, no. 2 (2004): 291–​316. Butler, Sara M. The Language of Abuse: Marital Violence in Later Medieval England. Leiden: Brill, 2007. DiClemente, Kristi. “Domestic Cruelty: Saevitia and Separation in Medieval France.” Quidditas 36 (2015): 53–​72. Donahue, Jr., Charles. Law, Marriage, and Society in the Later Middle Ages. Cambridge: Cambridge University Press, 2007. Hanawalt, Barbara A. “Violence in the Domestic Milieu of Late Medieval England.” In Violence in Medieval Society, edited by Richard W. Kaeuper, 197–​214. Woodbridge: Boydell, 2000. Helmholz, Richard H. Marriage Litigation in Medieval England. Cambridge: Cambridge University Press, 1974. Herlihy, David. Women, Family and Society in Medieval Europe. Historical Essays, 1978–​1991. Oxford: Berghahn, 1995. Johnson, Lizabeth. “Attitudes towards Spousal Violence in Medieval Wales.” Welsh History Review 27 (2009): 81–​115. Kelly, Henry Ansgar. “Rule of Thumb and the Folklaw of the Husband’s Stick.” Journal of Legal Education 44, no. 3 (1994): 341–​65.

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414 Sara M. Butler McDougall, Sara. “Pardoning Infanticide in Late Medieval France.” Law and History Review 39, no. 2 (2021): 229–​53. Otis-​Cour, Leah. “De jure novo: Dealing with Adultery in the Fifteenth-​Century Toulousain.” Speculum 84, no. 2 (2009): 347–​92. Poos, Lawrence R. “The Heavy-​Handed Marriage Counsellor: Regulating Marriage in Some Later-​Medieval English Local Ecclesiastical-​Court Jurisdictions.” The American Journal of Legal History 39 (1995): 291–​309. Seabourne, Gwen. Imprisoning Medieval Women: The Non-​judicial Confinement and Abduction of Women in England, c.1170–​1509. Farnham: Ashgate, 2011.

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EPILOGUE Hannah Skoda To close the volume, we offer some brief thoughts on why it matters. The modern

media and modern politicians are often keen to use the Middle Ages. We often encounter claims that we have progressed far beyond “medieval levels of violence,”1 or that particular actions in the present day are “medieval” in their horror.2 Sometimes the claim is made specifically with regard to sexual crime. Often the idea is weaponized by politicians and journalists from western Europe or the United States to talk about countries in the Middle East.3 Sometimes, the trope is used humorously, as in the famous “I’m gonna git medieval on your ass” line from the film Pulp Fiction (1994). But we also often find the claim that such and such a society or politician or government is “medieval” in its levels and means of repression. Surely it cannot be both? We cannot both instrumentalize an image of the Middle Ages as rife with brutal unchecked interpersonal violence, and claim a Middle Ages of hideous torture and brutal repression. That in itself should be enough to alert us to the fact that these tropes are unwarranted and silly. But they are more than this: they are dangerous. Here are a couple of examples. The claim that rape was ubiquitous in medieval society and that there was no real redress for victim survivors obfuscates our need to do something about the failure of our own societies to undermine rape cultures and provide safety and respect for everyone.4 Newspaper articles pointing to the victim-​blaming attitudes of the Middle Ages divert attention from the victim-​blaming which continues to suffuse modern responses. In the 1 Most famously, Steven Pinker’s book Enlightenment Now: The Case for Reason, Science, Humanism, and Progress (New York: Penguin, 2019) provides a scholarly framework for this.

2 See for example Michael Gove’s comment that to use the word “gay” as an insult is to bely “medieval” attitudes: “It’s utterly outrageous and medieval to think that to use the word gay as an insult is somehow acceptable”: www.pinkn​ews.co.uk/​2013/​07/​06/​educat​ion-​secret​ary-​ mich​ael-​gove-​using-​gay-​as-​an-​ins​ult-​is-​out​rage​ous-​and-​medie​val/​ (accessed January 10, 2022). Attempts to ban virginity testing in the United Kingdom have been couched in terms of prohibiting a “medieval practice”. 3 Such a trope is used both on the political right and on the left. See, for example: www.lati​mes.com/​ archi​ves/​la-​xpm-​2010-​oct-​16-​la-​oe-​goldst​one-​kar​zai-​20101​016-​story.html (accessed January 7, 2022); www.newsw​eek.com/​its-​not-​just-​tali​ban-​we-​west-​are-​embrac​ing-​medi​eval​ism-​too-​opin​ion​1623​102 (accessed January 7, 2022); www.dailym​ail.co.uk/​news/​arti​cle-​10062​275/​Tali​ban-​publi​cly​hang-​corp​ses-​three-​crimin​als-​digg​ers-​Afgh​anis​tan.html (accessed January 7, 2022). 4 See the powerful article by Carissa Harris on this subject: see https://​aeon.co/​ess​ays/​the-​ hypo​cris​ies-​of-​rape-​cult​ure-​have-​medie​val-​roots (accessed January 10, 2022).

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wake of Sarah Everard’s horrific and tragic murder, authorities in the United Kingdom were still telling women that they should flag down a bus if they feel unsafe, and a judge commenting that Everard’s murder was particularly awful because she was entirely innocent.5 Attitudes to rape and violence against women nowadays often focus on what the women have done or could do differently; they still, implicitly or explicitly, imply gradations of victimhood depending on the behaviour of the victim; they still place an often impossible burden of proof on a woman needing to prove non-​consent.6 The more we allow misleading characterizations of the Middle Ages to go unchecked, the more we implicitly allow a dangerous teleological narrative of self-​congratulatory progress which obfuscates the need for change now. What about claims of general lawlessness and, at the same time, “medieval” style repression? The trope has often been used about Afghanistan, most recently with the resumption of power by the Taliban.7 We know these claims to be misleading at best, but why does it matter? Sometimes it matters because such claims of chronological alterity can serve to reinforce racist narratives about some parts of the world having progressed further than others. Sometimes it matters because it fails to acknowledge the complexity of what pushes people into violent behaviour and to judge it. Simply imposing a chronological otherness on violence, whether against, or by, the law, undermines our own need to confront it. This volume then hopes to offer not only insights for medievalists, but a more general set of reflections about how categories of deviance arise, are instrumentalized, and when they are flexible and nuanced. In doing so, it hopes to shed critical light on the present, and to undermine straightforward narratives of progress. What happens between the cracks of the categories? What is the relationship between the agency of those labelled as deviant (sometimes entirely innocently, as in the case of medieval Jews), those who are victims or survivors of various kinds of deviance, and those with the most power to enforce these categories? We aim to provide a geographically global perspective to show just how complex and multi-​faceted these processes were in the Middle Ages. We try to show how categories shift and are mutable in response to political, social, and economic change. In the 1590s, Michel de Montaigne produced his Essais. He was writing in a period of political tumult and horrific violence during the French wars of religion. In one of 5 Respectively www.theguardian.com/uk-news/2021/oct/01/police-must-win-back-publicconfidence-after-sarah-everard-case-says-minister (accessed January 10, 2022); www.judici​ary. uk/​wp-​cont​ent/​uplo​ads/​2021/​09/​Wayne-​Couz​ens-​Sen​tenc​ing-​Rema​rks.pdf (accessed January 10, 2022). 6 See the illuminating work of Sara McDougall and David Perry: https://​slate.com/​cult​ure/​2021/​ 10/​last-​duel-​movie-​his​tori​cal-​accur​acy.html (accessed January 9, 2022). 7 See the corrective posed by Christian Lange, https://​thec​onve​rsat​ion.com/​the-​tali​ban-​arent-​ tak​ing-​afgh​anis​tan-​back-​to-​the-​mid​dle-​ages-​the​yre-​sub​vert​ing-​isl​ams-​sound-​medie​val-​legal-​ pri​ncip​les-​168​810 (accessed January 5, 2022).

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Epilogue

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his essays, entitled Des Cannibales, he invokes the example of cannibalistic peoples in South America, recently encountered by Europeans, to challenge how deviance is constructed and understood.8 On the face of it, his essay simply turns things on their head. He notes that Europeans are so ready to demonize the behaviour of cannibals, and that yet their own behaviour is more morally repulsive and illogical and deviant. But this is not simply an exercise in mirroring and turning things upside-​down. Montaigne is far more thought-​provoking than that. The essay does not claim that cannibalism is a good thing. It is still repugnant, and readers are still expected to find it repugnant even whilst acknowledging its logic. Montaigne instrumentalizes the study of a very different set of behaviours not to condone them, but to allow his readers to shed critical light on their own practices. We hope that these chapters will respectfully do something like this for our readers.

8 “Des Cannibales,” 1.31 in Michel de Montaigne, Essais, ed. P. Villey and V.-​L. Saulnier (Paris: Presses Universitaires de la France, 1962).

418

INDEX

Note: References to footnotes contain the page number followed by the note number (e.g. 257n3).

Aardenburg, 399 Abbasids, 9, 22, 148, 196–​205, 220 ʿAbd al-​Muʾmin, 247, 249, 252–​53 abduction, 88, 282–​83, 331, 335n35, 343–​44, 351, 359, 367–​69, 406n52, 406n53 Abelard, Peter, 72, 124–​25 abjuration, 39, 40, 354 Ableiges, Jacques d’, 299 Abū ʿAbd Allāh Muḥammad b. Ismāʿīl, 254 Abū Ḥanīfa, 363, 373 Abulafia, Abraham 238 Abū Yūsuf, 363, 373 abuse child, 89, 404, 409–​10 domestic, 286–​87, 395, 398, 400, 402, 406–​8, 411–​13 legal, 180, 186, 214, 294, 355 parent, 409 pattern of, 408 verbal, 106, 125–​26, 401 accusation, 25, 30, 38–​41, 59, 63, 90, 95, 97, 99–​100, 110, 116, 127, 141, 146, 149–​50, 167, 175, 182, 205–​7, 237–​38, 284, 312, 338, 342–​43, 350, 355, 384n38, 385–​86, 395 false, 11, 355–​56, 365n31 active/​passive distinction, 51n10, 91, 98 Ad liberandam, 228 adultery, 27, 88n222, 91, 96, 103, 106, 115–​16, 184n57, 284–​85, 286n8, 343n4, 380n22, 386n8, 394, 401, 407–​8, 409n68 Æthelbert, King, 293 Africa North, 3, 9, 243–​45, 249–​50

West, 9n16, 145n1 Aghmāt, 248, 254–​55 Alexander II, pope, 130, 151, 240, 230n32 Alexander III, pope, 130, 230, 232 Alexandria, 383, 387–​88, 391, 395–​96 Alfonso X, 96n57, 269n41, 291, 296, 344n5 Siete Partidas, 27, 95, 291, 296, 344n5, 352n61 Cantigas de Santa Maria, 95–​96 Alfred the Great, 79 ‘Alī ibn Abī Ṭālib, 200 Almohads, 7, 13, 150–​51, 154, 243–​56 Almoravids, 245, 247–​49, 251–​52 al-​Andalus, 243–​53 Altan Debter (Golden Chronicle), 157, 162, 170 Altan Uruq (Golden Kin), 157, 162–​64, 166, 168 Amersham, Buckinghamshire, UK, 38 anathema, 131, 335, 404, 413 Ancyra, council of, 87 anger of God, 411 Angevin dynasty, 81, 120, 134n63, 295, 354n71, 355n76 animals, 153, 162–​63, 169, 170, 258, 261–​65, 328, 403 Anjou, 81, 137–​39, 226, 334–​35 Anneys, John, 32–​34, 44 Anselm of Canterbury, St., 82, 403–4 anti-​Semitism, 16, 39, 125n22, 125n23, 126n27, 234n48 apostasy, 149–​50, 201–​2, 204–​6 appeal, 103, 113, 263, 283, 297, 300, 320, 342, 344–​55, 391 false, 355 apprentices, 89, 398, 405

420

420

index

Aquinas, Thomas, 57–​63, 87, 91, 136 Aragon, 121, 137, 152, 177n17, 227, 234, 278, 296, 298n41, 309, 318, 323, 408 Ariès, Philippe, 398, 409 Armagnac, party, 187–​88 arms-​bearing, 269–​70 Arras, 301 arson, 95, 295, 306n3, 328, 333, 335, 337–​39 Ashbourne, Derbyshire, UK, 34 (Rabbi) Asher ben Yehiel, 310n15, 321 Ashkenaz, 278, 306, 308, 310–​13, 318, 321n42, 324 assassination, 183n55, 208 assault, 126n27, 152, 164, 223n2, 269, 282, 328, 334, 337, 343–​47, 356, 358–​59, 361–​62, 364, 366, 370–​71, 408, 413 sexual, 282, 343–​47, 356, 358, 361, 366, 370–​71 Augsburg, 301 Augustine, St., 23, 35, 50, 64n45, 70–​73, 86, 128n35, 133, 136, 139, 151, 224–​25, 231, 279, 293, 298, 399n5, 400–​403 Auvergne, William bishop of, 53 Auxerre, council of, 25, 76 Averroes (Ibn Rushd), 23, 47, 49–​52, 368 Averroists, 51–​52, 61 Avicenna, 50–​51 Avignon, 90–​92, 192, 227, 235, 238 Mordecai of, 238 Ayimaq (tribe), 156–​63, 167–​70 Ayyubids, 197n4, 377, 379n15, 381, 390 Aztecs, 153, 273, 281 awliyāʾ Allāh (friends of God), 253–​54, 256 al-​Bābartī, Muḥammad ibn Maḥmūd 362n15, 362n16, 366–​72

Baghdad, 196–​97, 220, 247 Baghy (rebellion), 199–​206, 209 Baldus de Ubaldis, canonist, 403 Ball, John, 182 Banishment, 174n9, 174n10, 193, 298–​302, 322, 352, 373–​74 Bannus (fine), 333

Baraka (divine beneficence), 246, 253–​54 Barcelona, disputation of, 152, 234 Basil of Caesarea, St., 401 bathhouses, 266–​67, 381 al-​Baydhaq, Abū Bakr b.ʿAlī al-​Ṣanhājī 200, 202n30, 246, 247–​50 beating, 168, 209, 302, 371, 397–​404 Beaumanoir, Philippe de, 27, 95, 184, 296, 352n61, 401–​2 Beauvais, Vincent of, 404 Beccles, Suffolk, UK, 40 Bedouins, 196, 210 Benedict of Nursia, St., 403 Benkov, Edith, 94 Bennett, Judith, 94 Bernard of Clairvaux, 124–​30, 227 betrayal, 6, 66, 145–​48, 157, 167–​68, 174–​75, 178–​87, 194, 278–​80, 304 biaothanatos (violent death), 75 Bible, 43, 57, 69, 70, 74, 124 Biligs (sayings/​words of wisdom), 158, 165 Black Death, 224, 265n24, 286, 302, 406 bleeding, 346 Blois, Peter of, Contra perfidiam Iudaeorum, 238 blood libel, 30, 125–​26, 141, 152, 223, 237–​38 Boccaccio, Giovanni, 405 Bohemia, 21, 34, 42, 149, 226 Bologna, 52n12, 216n97, 258, 268, 270n43, 295n28, 296–​97, 301 Bonaventure, 58, 60 book burning, 150, 246n9 bo’ol (bondsman/​servant), 160, 162, 166–​67 bootless offenses, 337 Boswell, John, 86–​87, 91–​94 Bourgeois of Paris, 192, 301 Bourges, William of, 238 Boutillier, Jean, 298–​99 Bracton, Henry de, 180, 338, 345–​55 Braga council of, 25–​26, 74–​77 St. Martin of, 75 brigandage, 201n22, 289–​93, 302–​4



Brodman, James, 307 Buddhism, 29 bulqa (rebellion/​chaos), 145, 156–​57, 161–​66, 170–​71 Burgundy, 122 John duke of, 150, 174n5, 183, 187 Burgundian, party, 187 burial, 74–​76, 79–​81, 102, 107, 122, 128, 136, 181n42 Byzantium, 21, 153, 281

Cabochien revolt, 192–​93, 302 Cadden, Joan, 87 Caen, France, 188–​89 Caesarea, Eusebius of, 72 Cairo, Egypt, 196–​97, 207–​13, 284, 377–​85, 389, 392, 394–​95 Candola, Rostagnus, 92 Capetian dynasty, 20, 134, 234, 333, 336 Cappadocia, 401 Carolingians, 82, 289, 293, 332–​33, 335–​37 Casimir, King of Poland, 302 Castile, 95, 98, 295–​96, 302, 318n36 castration, 91, 94–​95 Castres, France, 36–​37, 42n21 Cathars, 33n2, 46, 59–​60, 99, 239 České Budějovice, Czech Republic, 34 chains, 246, 403 Chanter, Peter the, 129–​31, 141 chaos, 145, 156–​57, 159, 165, 171, 198, 203n37, 204n41, 208n61, 211–​14, 219 Charlemagne, 332–​36 Admonitio Generalis, 87, 332n24 Charles II of Naples, 102, 137–​38 Charles V of France, 173 Charles VI of France, 137, 173–​74, 178n22, 183n54, 185–​86, 235, 353n68 Charny, Geoffrey de, 339–​40 Châtelet, grand, 179, 181n42, 186n71, 188, 300 Châtillon, Walter of, 238 Chaucer, Geoffrey, 266n31, 343n4, 344n8, 353n63

index

421

“The Clerk’s Tale”, 405 “The Merchant’s Tale”, 402 Chen Xiang, 103 child beating see beating custody, 398 -​hood, 398, 403, 409–​10 neglect, 411 -​rearing, 398, 403 support, 397, 404 Childebert, Merovingian king, 293, 331 children, 86, 94, 97, 116, 159, 162, 202, 227n17, 237, 264, 320n40, 322, 334, 363, 384, 397–​400, 403–​5, 409–​10, 412–​13 children’s rights, 403n32, 404, 409n71 China, 3, 7–​9, 12, 22n7, 24, 27–​29, 102–​17, 153, 273 Chinggis Khan, 145, 150, 158–​61 Chobham, Thomas de, 131, 403 Christian, Paul (Pablo Christiani), 234 chronicles, 67, 148 Almohad, 247 Arabic, 244 Christian Crusade, 93, 238 English, 134n62 French, 183, 187, 192, 340n59 Hebrew, 152, 226, 236–​38 Mamluk, 196–​221 Monastic, 334 Mongolian, 156–​57, 162, 170 Persian, 159 Zurich, 80 Chrysostom, John, 286 Church, Catholic, 23, 30, 32–​44, 46–​64, 69–​81, 87–​100, 119–​42, 187, 223–​39, 259, 262, 267, 269, 280, 286–​87, 294, 300, 309n12, 331–​40, 397–​413 Cisneros (Castile), 98 Clairvaux, Bernard of, 124–​30, 227 Clement VI, pope, 235 clergy, 77, 80–​82, 85n11, 87, 120, 122–​23, 128–​29, 136, 141, 223, 226–​27, 229–​30, 234, 331, 335, 349, 353n69 benefit of, 354

422

422

index

Clermont, council of, 226 Cnut, King, 294, 336n41, 337 Code, Theodosian, 151, 224–​25, 230–​31, 280, 328, 333 coercion, 282, 354n71, 358–​59, 360n8, 362–​71, 374, 382, 385, 389 Common good, 15, 30, 136, 139–​41, 146–​47, 179, 186–​87, 270, 289–​90, 293, 340, 326 Comnenos, Alexios, 92 compensation, 79, 292, 295, 312, 328–​32, 337, 342, 344, 347, 349, 353–​55, 362, 369–​70, 373, 397, 408 Comtat Venaissin, 235 concubinage, 89, 349 confession, 11n24, 37, 50, 76, 78, 85n11, 89, 99, 184, 220, 365n31 Confucianism, 105 consanguinity, 407 Consent, 88–​89, 115, 232, 282–​85, 343n4, 344–​47, 351n57, 354n71, 355–​57, 363–​75, 406 Constance, council of, 38 Constantinople, 226, 272, 273n53 Margaret of, Countess of Flanders, 136 Constantine I, emperor, 71, 225, 328 Contra Iudaeos, 224, 238 Corpus Juris Civilis, 78n41, 229n26, 231n33, 291n8 correction, 35, 48n4, 67, 399, 401, 403–​4 corruption, 162, 198, 200, 202, 212, 221, 249, 252–​53 cosmic order, 27, 103, 107 courts Anglo-​Norman, 90 Arab, 50 of Chivalry, 182, 191 ecclesiastical, 32, 34n4, 35, 88, 123, 129–​34, 286–​87, 300, 397–​98, 404n41, 407–​13 eyre, 67–​68 Jewish, 321, 377, 382–​95 Mamluk, 207–​8, 216 Papal, 49, 54 Rabbanite, 383–​84

royal, 175–​82, 194, 225, 233–​34, 282–​83, 294–​97, 299–​300, 329–​30, 334–​35, 338–​40, 356 Qa-​an’s, 164, 165 Sharī‘a, 197–​98, 360 Song, 107–​15 urban, 81, 111, 261, 263, 265, 269 Yuan, 102–​4, 116–​17 Courçon, Robert de, 130, 132–​33, 136 Coutumes de Beauvaisis, 27, 95, 184, 296, 352n61, 401–​2 coverture, 286, 408 crime, 3, 5, 12, 21–​22, 32–​44, 46–​48, 55, 63–​64, 74, 78, 86, 88, 90, 93, 95–​96, 104–​9, 113, 125, 126–​30, 135, 138, 145, 149–​50, 156, 162, 166, 168, 174–​89, 197, 208n62, 214, 227, 244–​45, 255, 260–​73, 279–​83, 289–​305, 306–​25, 326–​27, 338, 340, 343–​54, 358–​68, 373–​75, 380, 394, 399, 403, 409, 411 Crompton, Louis, 95 cruelty, 16, 161, 292, 400–​401, 407–​8 Crusade, 30, 91–​95, 120–​21, 133–​34, 138, 141, 149, 152, 223–​25, 228–​29, 234n47, 236–​38, 311n21, 381n26 Albigensian, 37n10, 40n15, 41, 228 Barons’, 226 First, 92–​93, 125, 224n3, 226, 236–​37, 314 Second, 124–​28, 226 Third, 226 Fourth, 131, 133, 226, 228 Fifth, 131, 134, 136n70, 138, 228 Peasants’, 226 Shepherds’ (1251), 227 Shepherds’ (1320), 227 curfew, 226, 269 custumals, 299 of Clermont-​en-​Beauvaisis, 296–​97 of Saxony, 297 Damascus, 9n20, 196–​97, 203, 205n42, 206, 210–​19 Damian, Peter, Book of Gomorrah, 87, 89



Damietta, 213 Dante Alighieri, 3–​6, 69, 90 Daroca, 309, 317–​25 death penalty, 95, 202, 206, 212, 293–​97, 301, 304, 307, 331, 352n61, 353–​55 Decretum of Gratian, 64n45, 74, 77, 122–​26, 129, 231–​32, 295, 298, 399, 404 defamation, 38, 42, 183n55, 386 defloration, 348, 372 desecration, host, 30, 135, 141, 223, 237–​38 Despenser, Lady Constance, 147, 182, 191 deviance, 3–​30, 33–​34, 46, 64, 87–​88, 100, 103, 119–​41, 145–​54, 186, 188, 20651, 223, 239, 243–​44, 249, 253, 256, 259, 261, 266, 270, 272, 277–​87, 289, 312, 343, 351, 356, 357, 375 Dharmaśāstra, 27 Didache, 88 Digest, of Justinian, 77–​79, 95, 291 discipline, 130, 171, 200, 259–​60, 267, 273, 286, 303, 400–​401, 403–​4, 412–​13 dishonour, 70–​71, 138, 184–​85 disorder, 8, 98, 114n48, 117, 145, 154, 156–​58, 165, 261–​62, 272, 290, 327, 335, 351 dispensation, papal, 409 divorce, 102–​3, 106, 109–​17, 284–​85, 359, 377, 382, 386–​96, 398, 406–​8 judicial separation, 286, 407 divortium a mense, 407 divortium a mense et thoro, 407 rates, 285, 406 Dominicans, 80, 136–​37, 139, 141 Donin, Nicholas, 233 dowry, 111, 114, 372, 405 restitution, 408 Douglas, Mary, 153n12, 258 Duby, Georges, 353n68, 406 duplicity, 167 duress, 282, 359, 360n8, 361–​68 Durkheim, Emil, 82 duty, 29, 148, 151, 162–​63, 170–​71, 175, 185, 216, 333, 339, 346, 382, 384n38, 392, 401–​2, 413

index

423

Edward I of England, 137–​39, 177n16, 180–​81, 235, 345n15, 348n32, 352n59 Edward II of England, 180, 345n13 Edward III of England, 350n51, 351n57, 354n70 Egypt, 14, 75, 132, 154n13, 196n3, 197n8, 198n10, 205n42, 207–​8, 215n93, 217–​18, 273n53, 376–​95 Elliott, Dyan, 88 (Rabbi) Eliezer Ben Natan (Ravan), 237 Elvira, council of, 88 Emicho of Leiningen, 226 England, 8–​9, 32–​45, 173–​95 ​Angevin, 120, 134n63, 295, 354n71 ​Anglo-​Norman, 90, 91n35 ​Anglo-​Saxon, 76n36, 79n44, 292–​93, 294, 336–​37 Enlightened Verdicts by Famous Authors (Minggong shupan qingming ji), 104 environment, 15n31, 258–​75 equity, 6 Essex, 68 Établissements de saint Louis, 296, 344 ethics, 66, 71, 73, 233, 277 Aristotle’s, 73, 360n8, 379n17 Eucharist, 43, 53, 126n27, 238 Eugenius III, pope, 124, 134 European Marriage Pattern (EMP), 286 Eyre rolls, 67–​68, 80, 299n49, 345n13–15, 347 excommunication, 48, 52–​54, 56, 58, 136, 319–​20, 323, 382, 407 execution, 78, 146, 161, 174–​85, 201n22, 206n53, 207–​8, 264, 356 exile, 91, 96, 104, 111, 113, 124–​25, 127, 165, 187, 201n22, 248, 307n5, 311n18, 340 expulsion, 30, 35, 91, 120, 137–​41, 223, 234–​36, 318n36, 323 faith, Catholic, 55–​60 fama (rumour/​reputation), 285, 384

424

424

index

family, 43, 66, 103, 106–​15, 145, 157, 159, 162–​66, 179, 184n57, 193, 208n62, 287n9, 293, 313, 316, 319–​21, 329, 336n41, 344–​45, 353, 356, 364, 376, 370, 376–​83, 392, 397–​413 as a microcosm of the state, 287, 399, 412 fango (“dirt”) officials, 258–​59, 268 fatāwā (legal responsa), 197, 204, 206n5, 207, 360, 367n46 Fatimids, 204, 244n4, 381 al-​Firūzabādī al-​Shīrāzī, Abī Isḥāq Ibrāhīm ibn ʿAlī 361n13, 363–​74 fealty, 166–​68 felony (felonie), 67, 79, 177, 294, 307, 350, 354n71 feudal relations, 178–​79, 289, 294–​95 filicide, 411 Finland, 404n40 Finucane, Ronald, 410 Fiscality, 241 fitna (chaos/​upheaval), 157, 159, 170–​71, 199–​201, 209, 212, 219–​20, 253 Flanders, 174, 399 Count of, 93n42, 174n5, 335–​36 Margaret of Constantinople, Countess of, 136 Florence, 4, 69, 89, 97–​98, 301, 410, 411n81 forisfacta (misdeeds), 334 fornication, 103, 106–​7, 116n59, 349, 386–​94 Foucault, Michel, 15, 271 Fournier, Jacques, 89 France, 3, 24, 36, 67, 79, 84, 90n32, 95, 99, 125, 134, 137, 146, 147, 152n8, 173–​75, 226–​28, 233–​35, 265n25, 266n29, 286n8, 289n3, 292, 294–​304, 307n4, 307n5, 318n33, 323n47, 327, 334n34, 335–​40, 342–​44, 350n52, 351n55, 352n61, 353n68, 382n31, 407n58, 408n62, 409, 411–​13 Capetian, 120, 134, 234, 333 Marie de, 86 François 1er, King of France, 303 Franks, 93n44, 328, 329n8, 330n11 Franciscans, 136–​37, 140–​41

Frankfurt, 137, 301n67 fraud, 107, 117, 120, 126–​27, 193, 198, 268n38, 273, 291 Frederick II, Holy Roman Emperor, 233, 346n17 privilege of, 233 Freiburg, John of, 77 Friars, 120–​21, 136, 141, 230 Frídrich the weaver, 34 Froissart, Jean, 340 Fujian, 103 furūʿ (substantive texts), 282, 359–​62, 366–​68, 373 Fustat, 377, 383–​84, 389–​91, 393–​94

Galenism, 263, 265, 267 gambling, 266, 269, 302 Gandino, Albertus, 299 Gaozong, Emperor, 104–​5 Gascony, 137–​38 Gavitt, Philip, 405n45, 411 Gemara, 233 Gender, 12, 24, 26, 38n12, 68, 84n5, 86, 89, 91n35, 94, 98, 103n2, 147, 175–​77, 181–​42, 191–​92, 237n64, 281n5, 285–​87, 344n5, 353n63, 359, 362, 378n13, 381n24, 386–​88, 408n62, 408n65 Geniza, Cairo, 284, 377–​92 Germany, 67, 96n58, 97n62, 99, 122, 226–​27, 239, 260, 310n17, 311n18, 322, 324 ghaṣb (abduction/​seizure/​ misappropriation), 282, 359, 361, 367–​70 al-​Ghazālī, Abū Ḥāmid 150, 201, 246–​48, 254 Ghazan Qan, 159, 170 Ghent, 189, 262 Henry of, 54, 57n26–​27, 59 ghosts, 72, 82, 316n30 Goldberg, Jeremy, 406 Gordon, Eleanora, 410 gossip, 191, 284, 311–​12, 384–​86 Goths, 70



Gottschalk, 226 Goyt, Margaret, 34–​35 Gratian, Decretum, 35n8, 74–​77, 122–​23, 231–​32, 295, 298, 399, 404 Gregory, Bishop of Tours, 74, 329–​31 Gregory I the Great, pope, 151, 230–​32 Gregory VII, pope, 72, 90 Gregory IX, pope, 53, 135, 226, 233 Gregory XI, pope, 192 Griselda, 405 Grosseteste, Robert, 58, 73n28 guerrae, 339–​40 guilds, 153, 259, 262–​63, 270 guilt, 36, 38, 48, 55–​56, 71, 78, 97, 136, 156–​57, 163, 165, 181, 216, 240, 292, 295, 312, 337, 342, 345–​47, 354–​55, 373, 399

ḥadd (severe physical punishment), 365, 369, 373–​74 al-​Hādī, Muḥammad b. ʿAbd Allāh b. Hūd al-​ Māssī 151, 244, 250–​54 ḥadīth, 199–​200, 206, 365n33 hagiography, 255, 402 Hajnal, John, 404 Halakha (Jewish law), 2333, 309–​10, 379n17 Hales, John, bishop of Coventry and Lichfield, 34 Hanawalt, Barbara, 177, 298, 410 harassment, 334 Sexual, 285, 386–​87 Harries, Jill, 328 Helmholz, Richard, 409–​10 Henry I of England, 337 Henry II of England, 281, 337–​38 Henry III of England 354n70 Henry IV of England, 181–​82, 189–​91 Henry VI of England, 354n70, 355n80 Henry IV, Holy Roman Emperor, 90 Herem (Jewish ban), 312, 382 heresy, 10–​11, 21–​25, 28, 32–​44, 47n2, 48n4, 53n15, 54–​64, 88–​89, 99–​100, 129, 136, 141, 149, 206, 239, 243n2 Hippocratic medicine, 265, 267

index

425

Historia Hierosolomitana by Robert the Monk, 93 Holy Land, 228 holy men and women, 151, 243, 245, 253–​54, 256 Holy Roman Empire, 119, 296–​97, 304 homicide, 66–​68, 275, 273, 290, 293n16, 304–​5, 328, 330–​32, 335–​39, 355, 399, 408n65, 413 spousal, 409 “homosexuality” as concept, 4n3, 26–​27, 84–​100, 230, 239, 264 honour, 71, 73, 116, 138, 146, 167, 175, 181–​82, 184–​85, 218, 290, 293, 304, 320, 323, 329, 334–​35, 336, 348, 380–​81, 408, 412 honesty (honestas), 96, 273 Hood, Robin, 300 Hospitallers, 80, 121 host desecration, 30, 135, 141, 223, 237–​38 Hoveden, Roger of, 84, 134n62 Huang Gan, 104, 112, 117 Hugh, Bernard, 36 Huguccio, canonist, 286, 399, 400 humour, 16, 150, 403 humoralism, 265–​67 Hungary, 226 Hus, Jan, 38 husband, 68, 94, 103–​4, 106–​16, 145, 156, 159, 193, 293, 285–​87, 319, 343, 348n31, 351–​52, 362, 366, 372–​73, 378–​81, 385–​95, 399–​412 husband’s property rights over wife, 399 husband’s rights over wife, 399, 408 Hussite, 149 Hu Taichu, 103 hygiene, 7, 15, 153, 273

Iberia, 92n40, 96n57, 231, 243, 246n11, 249, 251, 256, 308, 310, 320n40, 323, 33, 344n5, 347–​48, 351 Ibn al-​ʿAdīm, 203 Ibn al-​Zayyāt al-​Tādilī, 245, 246n12, 253–​56 Ibn ʿAṭiyya, Abū Jaʿfar Aḥmad 252–​53 Ibn Taymiyya, 201n25, 202n28, 203–​4

426

426

index

Ibn Tūmart, Muḥammad, 151, 244, 247–​51 Ikrāh see duress imitatio Christi, 401 Imperial Canon of the Sacred Governance of the Great Yuan (Da Yuan shengzheng guochao dianzhang), 113 incest, 110, 353n63, 391 indemnity, 362, 364–​65, 369, 372–​74 infamy, 92n40, 110, 128–​30 infanticide, 178, 410–​11 infrastructure, 15n31, 96n60, 258, 262n13, 263–​66, 273 injury, 121, 126, 146, 179, 183, 262, 328, 331, 337, 340, 371–​73 inns, 266 Innocent III, pope, 131, 133–​34, 141, 228–​29, 323, 239–​40, 407n55 Inquisition, 11n23, 34–​36, 42–​43, 49n4, 89, 205n42, 230, 272n51 institutions legal, 284, 377–​78, 181–​82, 385–​92 communal, 383, 392 insult, 38, 126n25, 113, 181–​82, 212, 220, 337, 342, 363, 402, 417n2 intention, 25, 35, 41, 66, 70, 76, 123, 164, 209, 231n33, 262, 264, 279, 280, 286, 295, 316, 343, 346, 366, 373, 396 intersex, 362 irony, 150, 218 Islam, 9n15, 14, 21–​22, 27, 88, 93n47, 99–​100, 136, 148–​54, 168, 196–​221, 243–​56, 273n53, 282, 284–​85, 358–​74, 378–​96 Shīʿi, 200n20, 203–​4 Sunnī, 199n12, 200n20, 203, 220, 248, 374, 378n13 Islamicate World, 273 Italy, 24n11, 15n31, 52n12, 56, 67, 89, 96, 119, 140, 153, 179, 214n88, 258n3, 259, 265n27, 266n28, 268, 281, 289n, 294n23, 296–​302, 349n37, 350n45, 408n64, 408n65 ius commune, 409

(Rabbi) Jacob ben Reuben, 238 Jacquerie revolt, 147n2, 175n13, 192 Jainism, 29 James I of Aragon, 121, 234 James II of Aragon, 227 Jamuqa, 161, 163, 167, 170 Janissaries, 273 Japan, 153, 273 Jarošov nad Nežárkou, Czech Republic, 42 Jasaq (also Yasa, the khan’s law), 157–​71 Jean II le Bon, King of France, 302 Jerome, St., 70, 72 Jerusalem, 237, 309n14, 317 Kingdom of, 27, 91, 100 Jesus, 233–​34, 317 Jews, 5–​6, 12–​14, 21–​24, 29–​30, 39, 50, 87–​88, 92–​95, 119–​44, 151–​54, 223–​41, 277–​79, 284–​85, 306–​25, 376–​95, 418 Jin dynasty, 102, 112 Johannes Teutonicus, canonist, 386, 399 Ordinary Gloss, 399 Joke, 16, 150, 187, 283, 350, 356 Jordan, Mark, 85 Jordan, William Chester, 307 (Rabbi) Joseph Kimi, 238 (Rabbi) Judah ben Shmuel “the Pious”, 308 Judaism, 21n1, 22, 120, 124n22, 128, 135–​41, 223–​25, 233–​39, 249, 379n16 Judas, 66, 69, 70, 290, 304 Judensau, 239 Judge, 77, 81, 107, 109–​11, 117, 129, 136, 139, 197–​99, 203, 206–​10, 214–​19, 225, 246, 251, 254–​55, 278, 290, 295–​302, 334, 350, 360, 380n22, 381, 388, 404, 413, 418 jurisdiction, 48n4, 54, 56, 64, 67, 80, 96, 98, 107, 109, 116, 130, 135, 141, 263–​64, 280n2, 297, 303, 328, 334–​38, 343, 345, 349, 352–​56, 411 Jurists, 146, 148, 177, 179, 197–​204, 206–​7, 214–​15, 221, 245–​48, 282, 284, 295n28, 299, 359–​76, 399, 404, 411 justice, 11n24, 80n45, 81n48, 105, 109, 121, 139, 150n7, 168, 178–​80, 185–​86,



198n11, 213, 216, 227, 244, 253, 256, 258, 261, 264, 278, 289, 293–​305, 319, 323n47, 324, 333, 337–​40, 347n36, 351n57, 355, 358, 361, 371, 373, 375, 382, 400, 408, 413 punitive, 371, 373 restorative, 371 jury, 284, 296n32, 346–​47, 334n7 Justinian, 77–​78, 95, 295–​96, 342n2, 407n55 Kahal (the Jewish community), 318–​22 Kalonymos Bar Yehuda, 237 al-​Kāsānī, 362–​74 Katerina Hetzeldorfer, 94n50, 98 Kedar, Benjamin, 91 Kellum, Barbara, 410 Kelly, Henry Ansgar, 401 Kešik (royal bodyguard), 158, 163n20 Khalīl ibn Isḥāq, 362 Khubilai Khan, 112n39, 280n2 Kidnapping, 169, 304, 328, 367, 406 Kings Bench, 297 Kitāb Akhbār al-​Mahdī Ibn Tūmart, 247–​49 Kitāb al-​Tashawwuf illā Rijāl al-​Taṣawwuf, 246n12, 253–​56 Knobbyng, Richard, 40 Kraków, 302

labelling, 4–​5, 11–​12, 15, 22, 33–​35, 47, 58, 62n40, 119–​30, 140, 154, 206, 342 Languedoc, France, 21, 34, 36, 42n21, 96n58, 139n83, 235, 266n31, 270n43, 272n51 lapidation, 373–​74 Lateran Council, II, 120, 122, 125, 128 Lateran Council, III, 87, 120, 128–​29, 151, 230 Lateran Council, IV, 10, 85n11, 92, 135, 151, 228, 230, 295 Latini, Brunetto, 3–​6 law Anglo-​Saxon, 79n44, 291–​95, 336–​37 Bavarian, 333 Byzantine, 91

index

427

Canon, 6, 34n4, 35, 64, 74–​77, 120–​24, 128–​30, 229, 295–​96, 298, 245n14, 346n22, 351, 399–​400, 407 Common, 14, 158, 180, 260, 281, 283, 295, 337n45, 342–​43, 348, 354, 360n8, 404n41, 408 Customary, 150, 184, 254, 298 Ḥanafī school of, 121n6, 201n23, 202–​3, 360–​64, 373–​74 Ḥanbalī school of, 203, 220, 360, 364, 374 Islamic, 197–​99, 204, 214–​16, 245, 359–​60, 364n25, 378n13, 384n38 of Kristoffer, 401 Lombard, 292 Mālikī school, 121n6, 206–​7, 245–​46, 360, 362, 364, 368–​69, 374 Rabbinic, 124 Roman, 24, 26, 67, 77–​80, 86n12, 97, 128, 131, 146, 150, 179–​80, 183–​84, 186, 224, 279, 285, 289, 291–​92, 295–​96, 328, 338 Salic, 292 Shāfiʿī school of, 121n6, 217–​18, 360–​73 Sharī’a, 197–​99, 204, 214–​16, 245, 359–​60, 364n25, 378n13, 384n38 Sicilian, 408 Sumptuary, 102, 114 Sunni school of, 203 Swedish, 408 Visigothic, 91, 295 Welsh, 348–​49, 354, 401 legislation, 28, 30, 92, 96–​97, 119–​21, 128–​29, 131, 133, 135, 158, 228–​30, 290, 293, 295, 302, 304–​5, 336n41, 344, 356 lepers, 137, 227, 230, 239, 240–​41, 258, 267–​68 lesbians, 84n3, 86n13, 90n31, 94–​95 lèse majesté (high treason), 173, 179, 181 Levirate marriage, 104, 114, 117 Liber Augustalis/​Constitutions of Melfi, 346n17, 348n24, 349n37, 352n58, 355n75, 355n78 Lollard (Lollardy), 32, 38, 40, 43–​44, 47n2, 100, 149, 190–​91

428

428

index

Leicestershire, UK, 34 lies, 109 Lille, Alain of, 86, 238 Linacre, Robert, 38 Lincoln, the bishop of, 34, 38, 58, 80 Linkinen, Tom, 99 Lipton, Sara, 39 Liu Kezhuang, 104, 111–​12, 117 Liu Yun, 105 Livres de jostice et de plet, 27, 93–​95 Loc, Raymond of, 36–​37 Lochrie, Karma, 86 Lombards, 120n3, 138 London, 15, 69, 98, 153, 189, 260–​64, 345n13, 348n31, 355n76, 384n38, 410n75, 411n84 Louis VII of France, 125 Louis VIII of France, 135 Louis IX of France, 135, 226, 233, 235, 302n72, 339 Louis X of France, 235, 339 loyalty, 24, 69, 145, 148, 156–​60, 168–​71, 174–​75, 182, 184–​85, 187, 191–​92, 194, 205n47, 212, 332, 338, 405 Lucca, 97 Lucretia, 70–​71 Lutheranism, 43 Lutton, Rob, 43 Lyons First council of, 229 Second council of, 137–​38 Maghrib, 243–​57 Macrobius, 72 Magistrates, 103, 108, 110, 272 Mahdī, 151, 244, 247–​56 Maimonides, Abraham, 378n8, 388, 395–​96 Maimonides, Moses, 22, 50, 376–​79, 386–​88, 395 Maine, 81n48, 137–​38 Mainz, 135n67, 226, 237 Malegam, Jehangir Yezdi, 327 Mali, 9, 145–​46 malice, 302, 403

Mamluks, 9, 198n11, 205n42, 208n62, 209–​12 manual for confessors, 76–​77, 403 Mansa Musa, 9 al-​Maqrīzī, 196n3, 206–​9 Marcus, Ivan G., 311n19 al-​Mardāwī, ‘Alī ibn Sulaymān ibn Aḥmad 361n10, 363–​69, 370 Mare, William de la, 62n39, 63n43 marginalisation, 15, 46, 198, 223–​42, 246 market, 29, 38, 121, 127, 130, 132, 140, 179, 181, 189–​90, 205, 211–​15, 217–​18, 251, 263, 266, 276, 285, 290, 307–​8, 313n26, 323, 336, 381, 406 Marktschutzrecht, 308 Marrakesh, 246, 248, 250–​52, 255 marriage, 7, 86, 89, 102–​18, 163n20, 282, 285–​87, 346n22, 354–​56, 359, 364, 369, 372–​73, 376–​77, 381, 388–​91, 394–​96, 397–​413 coerced, 406 companionate nature of, 406 consensual, 406 counsellors, parish priests as, 412 January to May, 405 by kidnap, 406 making of, 411–​12 public nature of, 411–​12 as a form of purgatory, 402 by rape, 354–​55, 406as a sacrament, 287, 406 Marseille, 121, 177n17, 261n10, 349n37, 408 Mary, Blessed Virgin, 28 Masculinity, 84n4, 86n14, 87n16, 147, 175n10, 180–​83, 191, 286, 381 Maṣmūda, 247–​50 al-​Māwardī, 201n26, 202 Mayans, 153 McHaffie, Matthew, 334–​35 McSheffrey, Shannon, 411 mediation, 215, 382, 388–​89 Mediterranean, 245, 377n5, 378n10, 380, 389n51, 405 Meir ben Simeon of Narbonne, 238



Ménagier de Paris, 405 Mendicant orders, 121, 136, 139, 267 Merovingians, 332 Middle East, 9, 27, 92, 100, 147, 196–​222, 417 minorities, 75, 79, 151, 223–​41, 244, 250, 269n39, 277–​80, 284, 306–​25, 381–​82, 389–​90 miracle, 11, 28, 68, 80, 254, 334 Miracles de Nostre Dame par personnages, 11n25 Mishnah, 233 Moberlay, Thomas, 38 Moissac, France, 36 Monasteries, 47, 88–​89, 273, 334–​36 moneylending, 29, 119, 119–​41, 227–​29 Mongols, 3, 6, 8, 12, 22, 102, 112, 114, 145, 150, 156–​72, 197, 203–​7, 220, 279–​80 Monica, St., 402 monks, 75, 88, 273, 334 Montaigne, Michel de, 418–​19 Montaigu, John Lord of, 183–​85 Montauban, France, 36–​37 Montboissier, Peter of (Peter the Venerable), 124–​27, 135, 227, 240 Montclus, 227 Moore, R. I., 11, 87, 91, 230, 23–​41 Morpath, Thomas, 38 Muftis (juris-​consults), 360 Muhtasib, 213, 218, 273, 384n38 murder (morter, mother, morð?), 33, 37, 75, 95, 106, 107, 109, 127, 133, 141, 152, 164, 181n42, 182, 184, 213–​14, 223, 235n53, 237–​38, 255, 269, 282, 293, 295, 302–​4, 306n3, 307n4, 331, 337–​38, 370, 382n30, 409–​10, 418 Muslims, 21, 22, 24n11, 92–​95, 125, 151, 211–​21, 231, 240–​41, 243–​56, 376–​96 mutilation, 71, 91, 95, 283, 293, 299, 352, 355–​56 Nablus, council of, 27, 88, 91–​95 Nachmanides, 234, 238 Nantes, 235, 334 Nathan Official, 238

index

429

al-​Nawawī, Abī Zakariyyā Yaḥyá ibn Sharaf 361n10, 361–​374 neglect, 104, 264, 401, 404, 408, 411 Neo-​Confucianism, 24 Neo-​Platonism, 50, 72 Neuilly, Fulk of, 228 Neuhaus, Gallus von, 34 Nevers, Louis I, Count of, 139 Nicholas IV, pope, 137 Nicholas of Tolentino, St., 68 Nogent, Guibert of, 93 Non-​European Marriage Pattern (Non-​EMP), 405 Normandy, 91n35, 134, 294, 304, 335 nuns, 331, 348 Nuremberg, 298n41, 301

0aths, 40n17, 124, 138, 145, 150, 157, 160, 166–​71, 181, 190, 228, 294, 311, 321–​23, 332, 335–​36, 368 obedience, 13, 22, 56, 145–​46, 160, 162–​63, 185–​88, 194, 201, 216, 249, 294, 400, 405 obligation, 27, 56, 78, 82, 86, 102, 104–​9, 113–​15, 166–​71, 178, 352, 376 Office of the Night, 4, 97, 301 Official, Joseph ben Nathan, 238 Official, Nathan, 238 Ögödei, 156, 159, 164–​65, 168–​69 Oldcastle, John, 182 order, 15, 16, 27–​28, 79n44, 92, 96–​99, 102–​9, 114–​17, 145–​54, 156–​71, 179, 189, 199–​206, 211, 221, 243–​45, 247, 250, 256, 259n5, 260, 266–​67, 270, 272, 279–​80, 282, 284, 287, 289, 292, 293, 300, 303–​4, 323, 329, 331–​32, 335–​36, 340, 342, 348, 352, 379n15, 383, 388, 390–​93 Orléans, France, 41, 93, 227, 336 Louis duke of, 183–​84 Orme, Nicholas, 410 Orvieto, 97 othering, 152, 223, 230, 239 Ottomans, 197, 202, 211, 360n9

430

430

index

Palestine, 75 Papacy, 120, 135, 139, 141, 229, 232, 240 Parliament, English, 180, 190 Parlement, of Paris, 177n16, 188n77, 298, 304n81 pardon, 107, 146, 149, 173–​74, 178, 188, 304, 337, 354, 399n9, 409, 411 Paris, 22, 25–​26, 47–​63, 80–​82, 120, 131–​32, 139, 153, 173–​92, 227–​35, 301, 302, 312n24, 336, 349, 352n61, 405, 407 disputation of, 233–​34 patriarchy, 94n49, 271n49 patrilineal regimes, 27, 102, 106–​7, 111, 113–​14 Patschovsky, Alexander, 41 Paul, St., 151, 224–​25, 231 payment, 202, 210n77, 294–​97, 302, 330, 348, 353–​54, 362, 364, 369, 373–​74, 404 peace, 38, 173–​74, 187, 198–​99, 202, 221, 270, 289–​90, 292–​97, 300, 303, 305, 315, 329, 331, 331, 335–​39, 408, 413 Of God, 335 King’s, 33, 281, 294, 296–​97, 337–​38, 351, 352 Peasants Revolt, 1381, 150n7, 182 Pecock, Reginald, bishop of Chichester, 35 penal servitude, 104, 111 Peregrinus, friar, 402 periodization, 8n7, 260 Perpignan, 355n75, 399 persecution, 6, 10, 13, 22–​23, 30, 71, 84, 87–​88, 91, 96, 141, 151–​52, 226–​30, 235–​36, 239–​41, 269n41, 314 Persia, 50, 102, 156, 159, 162, 165, 197, 205n48, 243n2 Peter III of Aragon, 137 Peter the Hermit, 226 Petitions, 103, 132, 189–​91, 213, 216n96, 320, 385, 390, 397, 406 Philip II (Augustus) of France, 234, 339 Philip IV of France, 79, 137, 139, 235, 339 philosophy, Arabic, 47, 51, 67, 69 pilgrimage, 75, 146, 218, 361, 364, 366

plaints, 103, 111, 114, 345n14, 352 Plato, 72, 244 plea roll, 342 poison, 74, 223, 237–​38, 246, 269, 408 Poland, 302, 397, 402, 407 polygamy, 104 pogroms, 226–​27 Poitou, 226 police, 153, 185–​86, 189, 258–​73, 418n5 poor, 73, 115, 117, 119, 137, 140, 153–​54, 156, 188–​89, 196n3, 227, 246, 268n36, 273, 290, 303n79, 307n6, 312, 332, 335 Poos, Lawrence R., 412 polemic, 70–​71, 225n11, 236, 238 Porphyry, 72, 82 Portugal, 137, 247 Poznań, 397 Prague, Jerome of, 38 precedents, 28, 103–​7, 112–​17, 145, 157–​58, 160, 166, 179, 186, 201, 309–​10, 370–​71, 407 Precedents of the Zhizhi Reign: A New Collection of the Imperial Canon of the Sacred Governance of the Great Yuan (Da Yuan shengzheng dianzhang xinji Zhizhi tiaoli), 113 pregnancy, 283, 320, 347, 380n22, 397 priests, 32, 34, 74–​76, 79–​81, 87, 90, 131, 187, 386, 412 primogeniture, 406 printing, 9 prison, 15, 78, 91n33, 117, 137, 161, 173n3, 191, 209–​12, 234–​35, 352, 363, 401, 403, 406n53 privacy, 376, 378n13, 384n38, 411 produce, 265–​66 proof, 64, 123, 224, 264, 282–​83, 296, 317, 346, 355, 358–​59, 365–​70, 374, 395, 408, 418 prostitution, 96n58, 266, 366 Provence, 36, 121, 137, 235, 392n64 proverb, 290, 395n65 provocation, 220, 408 public good, 119, 179, 180, 259, 261



public health, 96, 259n4, 261–​63, 267–​68, 273, 273n55 Puff, Helmut, 89, 94, 96, 98 Pulp Fiction, 417 punishment, 3–​5, 13–​15, 21, 34, 46–​58, 68, 79–​80, 91–​97, 102, 104–​9, 115, 138, 158, 164, 168–​82, 201n22, 202, 208–​14, 278–​84, 289–​302, 307, 319–​21, 322, 324, 342–​44, 352, 352–​62, 365, 369, 371, 373–​74, 388–​89, 403–​4

Qaraču (commoner), 163–​66, 169, 171 Qubilai Qa’an, 156, 161, 164 Qur’an, 199–​202, 206, 217 qawāʿid (legal sets of rules), 359–​60 Quriltai (assembly of notables), 163, 168

Rabbi Yechiel of Paris, 233 Ramadan, 364 rape, 70–​71, 88–​97, 186n72, 282–​83, 295, 302, 306n3, 327–​28, 342–​57, 358–​75, 399, 406, 417–​18 rape, appeal of, 345–​46 rape, compensation for, 347, 349, 353–​55, 362, 369–​70, 373, 397 rape, definition of, 343 rape, drug-​assisted, 283, 347 rape, punishment for, 342–​44, 352–​57, 358–​65, 369–​74 raptus, 88, 283, 331, 333, 335, 343–​44, 351n57, 368n50 Rashīd al-​Dīn, 159 Raskin, Sarah, 40 ravishment, 343–​44, 347n26, 349–​56 rebels, 6, 147–​50, 156, 165, 167, 186–​87, 192, 196–​220, 379n17, 412 rebellion, 145–​51, 157, 160, 166, 170, 175, 182n47, 185–​88, 193, 196, 196–​220, 241n77, 250–​53 recidivism, 279, 299, 301 Reconquista, 92n40, 348 redemption, 283, 295, 353 registers, criminal, 80, 197–​200 reputation, 38–​39, 63, 129, 162–​63, 167, 170, 188, 266, 314, 330, 374, 384, 412

index

431

Reform movement, Gregorian, 72, 77 Renaissance, twelfth-​century, 73 Responsa, 309–​10, 320n40, 360, 378, 380, 383, 383–​88, 395–​96 restitution, 123, 136, 279, 312n24, 371, 375, 408 retaliation, 220, 351 revenge, 215, 329, 351, 408 revolt, 10, 12, 71, 147–​49, 170, 174n9, 175n13, 182, 192, 196–​221, 339 Rhineland, 125, 226, 237, 310n15, 311n18, 313–​14 ribāṭ, 248, 250, 256 Ribāṭ Māssa, 250–​52 Ribāṭ Tīṭ-​n-​Fiṭr, 245n8, 250–​51 Richard I of England (Lionheart), 84, 134 Richard II of England, 98n68, 100, 173, 180, 190–​91 Rimini, Francesca da, 6 riots, 196–​97, 211, 213, 215–​16, 218–​20, 314, 324 ritual, 67, 75, 81–​82, 99, 102, 106, 108, 116–​17, 127, 141, 151–​53, 175, 182, 184–​85, 192, 220, 223, 225, 236–​38, 281, 361, 376, 382, 398 robbery, 107, 123, 126, 201n22, 212, 273, 278, 295, 297, 299n50, 305, 309n12, 315, 328, 337–​38, 365n31 Roman d’Aeneas, 86 Rome, 70–​73, 75, 86, 192, 229, 242n2 Rouen, 227 rule of thumb, 401 rumour, 187, 209, 246, 284–​85, 312, 384–​86, 389, 393–​95 Rykener, Eleanor/​John, 98, 100n75 sacrifice, 66, 102, 106–​7, 237, 281 Salerno, Moses of, 238 Salisbury, John of, 73 Saltzman, Benjamin, 332 Samson, 70–​71 sanctuary, 281, 309, 319, 324, 336, 354 Ṣanhāja, 245, 250–​51 Sanskrit, 29 satire, 98n68, 187

432

432

index

Saunders, Richard, 38 scholasticism, 46–​65, 73 Schulz, James, 86 Scott, James C., 271–​72 secrecy, 277, 279–​82, 308, 332n22, 338n48 Secret History of the Mongols, 156–​57, 166, 171 sedition, 147, 160, 167, 179, 190, 199–​200 seduction, 282, 359, 370–​71 Sefarad, 278, 308–​9, 324 Sefer Hasidim (The Book of the Pious), 308, 310–​17 Sefer ha’Yirah (The Book of Awe), 309, 313 Sefer Nisahon Yashan, 238 Seljuks, 9 Seneca, 66, 73, 403 sequestration, 413 serfdom, 135–​36, 233 servants, 97, 133, 137, 162, 166, 182, 230, 233, 398–​99 service, 126–​27, 130, 166–​67, 170–​71, 233, 252, 264, 266–​67, 270, 280n2, 291 settlement, 329, 330, 332, 336, 342, 354, 389, 390 Seville, Isidore of, 64, 291 sex work, 96, 266, 283 sexuality, 3–​4, 12, 27–​29, 84–​100, 102–​18, 364, 367, 370–​74, 376–​95 Shahar, Shulamith, 410 Shaanxi, 103, 115 Shakespeare, 119, 124, 140 shame, 86n18, 89, 122–​26, 130, 184n57, 287, 311–​14, 344, 351, 354n73, 380, 395, 401–​2 Shandong, 103, 115 Sharī‘a, 197–​200, 204, 207 Shaybānī, 363, 373 Shelomo bar Shimshon (Solomon bar Simson), 236–​37 (Rabbi) Shmuel ben Kalonymus of Speyer, 308, 313, 324 Sichuan, 103 Sicily, 346 Sicut Iudaeis, 230, 232 singlewomen, 397, 410 ṣiyāl (physical assault), 282, 359, 361, 370

siyāsāt (Sultan’s policies), 197–​98, 202 slander, 167, 284, 364n31, 386–​88, 395 slaves, 79, 86, 88, 116, 133, 136, 159, 163, 166, 196, 202, 208–​9, 225, 286, 294, 328, 331, 362, 366–​69, 373, 376, 383, 398, 403 Smelczo, Petr, 34 “Sodomy” as concept, 3–​5, 27–​28, 84–​100, 176n14, 182, 345n15, 364n24 soldiers, 72, 75, 79, 158, 161, 163, 168, 205–​6, 208, 219–​20, 258, 266, 290–​91, 303–​4, 349n38 Somerset, Fiona, 43 Song dynasty, 12, 102, 107 Song penal code, 27–​28, 102–​16 Song of Roland, 70 Spain, 9n20, 50, 56, 75–​76, 93n46, 137, 227, 231, 266n30, 269n41, 295, 310n16, 318, 380n22 Speyer, 98, 226, 308, 313, 324 state, 15, 22, 24, 84, 96, 156–​57, 159, 168, 171, 179, 187, 198, 201–​2, 204, 213–​21, 245, 255, 259–​61, 271–​73, 279–​94, 304, 326, 332, 349, 358n3, 376, 381–​83, 399, 408, 412 statecraft, 9, 12, 153, 279, 281 Stedinger revolt, 149 Stoicism, 23, 26, 66n3, 71–​73, 78 strangulation, 363 students, 48, 55, 78, 95, 130, 349, 363, 385, 404 subjectivity, 4–​5, 10–​11, 14–​16, 23, 25–​26, 30, 68, 96n58, 154, 282, 286–​87, 359, 367–​68 sudden infant death syndrome (SIDS), 411 Su Tianjue, 112 Sufism, 245–​48, 251n26, 254, 256 suicide, 6, 11, 23–​26, 39, 66–​83, 109, 153, 237–​38, 353 Sultan, 148, 162, 197–​221, 363, 390 Summa confessorum, 76–​77, 403n31 surety, 407 Sweden, 401 Synagogues, 126, 133, 139, 225, 235, 237, 278, 309, 317–​25, 377, 380n22, 381–​82, 391



taboo, 14, 24, 28–​29, 67, 75, 82, 153n12, 287 Taihe, Annotated Code (Taihe lüyi), 112 Takana (Jewish communal decree), 308, 318–​19, 321, 324 Talmud, 124, 136, 139, 152, 223n1, 233–​39, 308–​10, 317, 321n41, 322, 377n4 Tang dynasty, 102, 104, 113 Annotated Code (Tanglü shuyi), 27, 104–​5, 107, 114 al-​Ṭarsūsī, Najm al-​Dīn 203 taverns, 32, 34, 189–​90, 258, 266, 268 tax collection, 219 Tenterden, Kent, UK, 43 Teutonicus, Johannes, 386, 399 Ordinary Gloss, 399 theft, 3, 6–​7, 14, 21, 30, 33–​34, 37, 95, 120, 127, 180, 273, 277–​81, 284, 289–​305, 306–​25, 328, 331–​38, 365n31 Theodosius II, Emperor threats, 5–​7, 16, 129, 147, 188, 261, 267, 272, 278, 359, 363, 377, 407 Thurnrodels, 289n3, 299 Tolan, John, 92 Toledo, first council of, 400 Toledo, fourth council of, 68–​69, 82, 23 Torah, 225, 233, 309, 318–​19, 323–​24, 376, 384 tort (civil offenses), 326 Tortosa, disputation of, 152, 234 torture, 66, 99, 165, 184–​85, 300, 316, 417 Törü (Great Principle), 145, 160–​62, 170–​71 Toulouse, France, 36 trade, 8, 29, 41, 96, 119, 121, 135, 153, 188, 215n91, 261n9, 262, 273, 313, 379n16, 383n33, 391n57 Trailbaston, 303 treason, 6, 12, 91n35, 95, 145–​50, 156–​71, 173–​95, 205–​6, 217, 294, 399 Trexler, Richard (Lollardy), 410 Twelve Conclusions, 100 Ubaldis, Baldus de, canonist, 403 ’ulamā’, 148–​49, 197–​99, 207, 210–​11, 214–​21

index

433

Umayyads, 200–​201, 205, 210–​13, 216–​19, 245, 252 Universities, 11, 23, 25, 37, 47–​64, 82, 89, 120, 139, 152, 404 Urban II, 93, 226 uṣūl (jurisprudential texts), 359–​60 usury, 12, 29–​30, 119–​41, 151, 227–​30, 279, 312n24 ‘Uthmān ibn ‘Affān, 200 Uxbridge, Middlesex, UK, 38

vagabondage, 268–​69, 302–​4 Valencia, 262, 348n30 Van Eickels, Klaus, 91 Van Zanden, Jan, 406 vengeance, 292, 329–​38 Venice, 97, 137, 238, 301, 345n16, 408 verdicts, 40, 103–​17, 175, 316, 355n76, 389, 397 Verniolles, Arnaud de, 89 victim, 7, 14, 25, 33, 34, 39, 47–​48, 66, 91, 106–​8, 152, 223, 230, 239, 267, 282–​88, 290–​97, 308, 312–​13, 324, 328–​36, 342, 346–​56, 358–​75, 402, 404, 406–​12, 417–​18 Vienne, council of, 137 violation sexual, 282, 284, 344, 348, 359, 360n8, 362, 367, 368–​71, 368n50, 374, 375 violence sexual, 282n6, 358, 358n2, 359, 372, 373 violentia/​violenter, 280–​81, 327–​41 vis (force), 327–​28, 333–​41 Visigoth, 70, 75, 231 Vitalis, Orderic, 75, 90

Wales, 347n24, 401n19, 407–​8 Walter the Penniless, 226 Waqf, 153, 273 war, 149n6, 156–​57, 161, 171, 173, 184n56, 187–​89, 199, 201n22, 203, 207, 209–​10, 254–​56, 302–​4, 337–​40, 418 water, 161, 166, 180, 193, 220, 258, 263, 265–​66, 273, 300 Weber, Max, 69, 281

434

434

index

wife, 68, 86, 95, 104, 106, 110–​11, 115, 170, 179, 189–​93, 286, 304, 315, 319, 344–​45, 371, 373, 376, 379, 381, 385–​96, 397–​412 Wihtred, king of Kent, 293 William I of England (the Conqueror), 337 William II of England (Rufus), 75, 90 witnesses, 25, 34, 36, 42, 52, 78, 117, 129, 133, 173n2, 177n17, 182, 206, 217, 224–​29, 311, 321, 363n37, 374–​76, 386, 388, 391, 394–​95 writing, 9n18, 24, 37, 43–​44, 54–​63, 67–​72, 84, 103, 108n24, 109, 115, 117, 131, 151, 191, 198, 208n62, 224, 231, 233, 236, 238, 252, 272, 295, 313–​15, 343n3, 396 Wulstan, archbishop, 294

Wyclif, John, 43, 100 Wycliffite, 44

Yacov of Venice, 238 (Rabbi) Yom Tov ben Avraham Asevilli (Ritva), 309, 318 Yorkshire, UK, 38 Yosun (traditions), 157–​61 Yuan dynasty, 9, 12, 27–​28, 102–​17 Yuan, Comprehensive statutes of the Great (Da Yuan tongzhi), 112, 116 Zaragoza, 309, 318–​23 Zhangsun Wuji, 104–​5 Zertla, heresy suspect, 42 zinā (illicit sexual penetration), 359–​66, 371–​75 Zurich, 80–​82

THEMATIC INDEXES OF CONTENTS

PERCEIVED THREATS Perceived Threats to Domestic Units Marriage and Sexuality in China, 960–​1368 CE Christian de Pee�������������������������������������������������������������������������������������������������������������������� 102

Attitudes to Domestic Violence in Christian Europe Sara M. Butler������������������������������������������������������������������������������������������������������������������������ 397 Between the Muslim State and Individual Agency: The Regulation of Sexuality in the Jewish Communities of Medieval Egypt Oded Zinger���������������������������������������������������������������������������������������������������������������������������� 376 Perceived Threats to Political Stability

El and Bulqa: Between Order and Chaos in the Formative Years of the Mongol Empire (1206–​1259) Michael Hope ������������������������������������������������������������������������������������������������������������������������ 156 Treason in France and England in the Later Middle Ages Emily Hutchison ������������������������������������������������������������������������������������������������������������������ 173 Revolts in the Late Medieval Middle East, 1200–​1500 Nassima Neggaz�������������������������������������������������������������������������������������������������������������������� 196 Articulating and Contesting Power in the Twelfth-​Century Maghrib Amira K. Bennison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

Perceived Threats to Religious Integrity

Attitudes to Same-​Sex Sexual Relations in the Latin World Ruth Mazo Karras������������������������������������������������������������������������������������������������������������������ 84

436

436

THEMATIC INDEXES OF CONTENTS

Power, Scapegoating, and the Marginalization of Jews in Western Europe in the High Middle Ages (Eleventh–​Fourteenth Centuries) Rebecca Rist �������������������������������������������������������������������������������������������������������������������������� 223

Censorship and Criminalization of Ideas in Western Europe Ann Giletti�������������������������������������������������������������������������������������������������������������������������������� 46

Medieval Suicide Alexander Murray������������������������������������������������������������������������������������������������������������������ 66 The Heretic: Contingent and Commodified Ian Forrest�������������������������������������������������������������������������������������������������������������������������������� 32 Perceived Threats to Physical Health and Personal Integrity

Social and Environmental Policing G. Geltner and Gregory Roberts ������������������������������������������������������������������������������������ 258 Rape and Law in Medieval Western Europe Gwen Seabourne������������������������������������������������������������������������������������������������������������������ 342 An Analysis of “Rape” in Islamic Legal Discourse (1000–​1500 CE) Yasmine Badr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

The Criminalization of Violence in the Medieval West Warren C. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 Threats to Economic Trust

Usury as Deviance in Medieval Europe Julie Mell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Shifting Attitudes to Theft in Medieval Western Europe Valérie Toureille. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 “This may bring about many evils”: The Jewish Minority Community in Medieval Europe Facing Its Own Thieves Ephraim Shoham-​Steiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306



THEMATIC INDEXES OF CONTENTS

437

COMMUNITIES AND INTERPERSONAL RELATIONSHIPS

Rulers And Ruled El and Bulqa: Between Order and Chaos in the Formative Years of the Mongol Empire (1206–​1259) Michael Hope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Treason in France and England in the Later Middle Ages Emily Hutchison . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Articulating and Contesting Power in the Twelfth-​Century Maghrib Amira K. Bennison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

Sexual Relationships

Marriage and Sexuality in China, 960–​1368 CE Christian de Pee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Attitudes to Domestic Violence in Christian Europe Sara M. Butler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Between the Muslim State and Individual Agency: The Regulation of Sexuality in the Jewish Communities of Medieval Egypt Oded Zinger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 Attitudes to Same-​Sex Sexual Relations in the Latin World Ruth Mazo Karras. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Interpersonal Attempts to Dominate

Rape and Law in Medieval Western Europe Gwen Seabourne. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 An Analysis of “Rape” in Islamic Legal Discourse (1000–​1500 CE) Yasmine Badr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

The Criminalization of Violence in the Medieval West Warren C. Brown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

438

438

THEMATIC INDEXES OF CONTENTS

Urban Communities Revolts in the Late Medieval Middle East, 1200–​1500 Nassima Neggaz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

Social and Environmental Policing G. Geltner and Gregory Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Communities of Belief

Power, Scapegoating, and the Marginalization of Jews in Western Europe in the High Middle Ages (Eleventh–​Fourteenth Centuries) Rebecca Rist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Medieval Suicide Alexander Murray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Censorship and Criminalization of Ideas in Western Europe Ann Giletti. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 The Heretic: Contingent and Commodified Ian Forrest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Communities of Economic Interest

Usury as Deviance in Medieval Europe Julie Mell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Shifting Attitudes to Theft in Medieval Western Europe Valérie Toureille. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 “This may bring about many evils”: The Jewish Minority Community in Medieval Europe Facing Its Own Thieves Ephraim Shoham-​Steiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306