Conclusion

Judge not according to appearances but give a just judgment.^[1769]

I began this study with two Biblical citations. It seems appropriate to con­clude with one more.

Unlike human nature, however, ecclesiastical procedure had changed dra­matically in the course of the twelfth century. While Ivo of Chartres' letters reveal him to be, by the standards of the day, a very competent judge and legal counselor, we have an incomplete understanding of what procedural theory and practice meant to him. Granted, he had at his disposal many legal texts, from the Digest to Pseudo-Isidore, that commented on procedure. Nevertheless, as I emphasized in both the Introduction and Chapter 1, it remains unclear how bishops, even a learned and experienced one such as Ivo, interpreted and applied these remote texts.^[1771]

By 1200, procedural law had been transformed. Romano-canonical process was well underway. While many had a hand in this transformation, few rivaled the authors of the ordines iudiciorum. As we conclude this study, we should reflect on their accomplishment.

In chapter one, we considered labels legal historians have applied to the decades separating the Marturi Case and the Ordo Bambergensis. One we have not yet encountered is, I believe, particularly applicable to our study of proce­dural law: the �Re-romanization of the West.'^[1772] Civilian procedure was attractive to both secular and ecclesiastical courts.^[1773] It possessed venerable authority.

While the assimilation and application of Rome's procedural law would continue for centuries, the era of the ordines was brief. In this respect, they rather resemble the summae of the decretists. One could compare, for exam­ple, Huguccio's Summa to the Ordo Bambergensis. The former was absorbed by the ordinary gloss, the latter eclipsed by the procedural manuals of Richardus Anglicus and Tancred. Within a few decades, ecclesiastical procedure changed again, a change no less important than the passing of the ordeal and the com­position of the ordines. To a jurist working at the curia of Innocent Ill, where accusatorial procedure was giving way to inquisition, the ordines, even the more synthetic treatises like the Ordo Bambergensis, might have seemed rather outmoded, perhaps even, as one scholar has suggested, a failure.^[1776] Certainly, their procedure was inefficient compared to the papally-directed inquisitorial process.^[1777] Given the aspirations of modern law and governance towards increased efficiency and hierarchical control, the yielding of the ordines’ accu­satorial procedure to the inquisition thus marks a milestone on the path to modernity.^[1778] That this led as well towards equity and justice is less certain,^{[1779] [1780] [1781] a point to which we shall return.}

As noted in chapter one, we must look beyond the jurists of Bologna and Rome to follow the development of Romano-canonical procedure. Most of this study has been spent in the Anglo-Norman world, where authors shaped civil and canon law to fit their disputes. Their ordines were probably intended for the same audience addressed by Vacarius in his Liber pauperum: jurists and advocates drawing upon a mixture of Roman and canon law?² No doubt, they were also acutely aware of the great issues of the day, from the disputes between Alexander iii and Frederick Barbarossa to the conflict between Henry and Becket.

The ordines recognized the tension between the ideal and real. Both are evident, for example, in how the treatises handle delays and appeals. In both the civil and canon law, these were normative procedures with which a judge could not dispense and still claim to have judged fairly. Accordingly, our trea­tises catalogue them, and sometimes at considerable length. We also, however, have periodic reminders that the authors knew full well that they were open to manipulation, even abuse.^{[1782] [1783] [1784] [1785] [1786] [1787] Litigants and their advocates sought to exploit them at every turn, beginning with the decision of whether to submit to arbi­tration or go to court. I suspect that William of Longchamp and John of Dublin would have envied the relatively independent, and no doubt far more imme- diate,judicial power wielded by Archbishop Hincmard5 But those days were long past.}

While all disputes concerned the ecclesiastical judge, the many passages in the ordines treating property surely reflect the prevalence of such litigation?⁶ Granted, many readers likely never had to answer questions like the disposal of property in a pending dispute (res litigiosa) or the damage to a contract caused by one party selling land for less than the agreed price (laesio enormis). On the other hand, the sheer volume, and frequency, of cases contesting property and rights, no doubt made our treatises a welcome resource for litigant, advocate, and judge. There is likely no better evidence for this than the ordines’ frequent consideration of prescription.

In recent decades, scholars have paid much attention to a â€?processual’ approach towards understanding medieval law. It is my hope that this study will have also contributed to this focus on process?⁷ At the same time, however optimistic my comments above about the relevance of the ordines to litiga­tion, one cannot be certain as to their role in court given the prevalence of arbitration?⁸ I am aware as well that only an extensive analysis of contempo­rary cases, which this study has not undertaken, could provide some sort of answer, if provisional, to that question. Looking for evidence of the ordines in litigation would certainly be a rewarding, and necessary, enterprise. It would be also fraught with challenges, not the least being the availability of ecclesias­tical court records prior to the thirteenth century?⁹ There are other challenges as well. Similarities between the terminology of a treatise and a record, for example an episcopal act, does not mean one can securely establish any sort of connection, however tempting that might be. With all these reservations in mind, however, we should not exclude the possibility of the ordines’ influence, whether direct or indirect.^[1788]

Whether or not they ever took the ordines to court, readers could value the treatises’ content and thematic arrangement. Causa 2 of Gratian would have been neither complete nor convenient for student, advocate, or judge. By pro­viding treatises that treated just procedural law, both civil and canon, the latter also updated by recent decretals, the ordines transformed how process would be preserved, studied, and applied.Just as the summae were �a tool for cut­ting through the increasing mass of written words,'^{[1789] [1790] so too did the ordines �cut through’ the mass of legal tradition in order to provide useful, comprehensive handbooks for the judge and jurist. They fashioned a new �framework’ in which to view procedure.22}

The ordines thus signal a new way of reading the civil and canon law.

Together, these considerations suggest a rather different model of devel­opment, involving what might be termed the textualization of legal cul­ture; that is to say, moves towards practices which were either experienced or understood in relation to certain written texts.

Prior to the twelfth century, procedural law, if incomplete without the full recovery of the Digest, was everywhere, but nowhere in particular. The ordines helped to change that by gathering and organizing texts, both civilian and canonistic, in formats that could meet the demands of both study and practice.

As noted in chapter three, scholars have emphasized the degree to which the �new law' of papal decretals came early and often to the Angevin realm. It is thus no accident that they play a role in our treatises. No less telling is the increasing attention paid by the ordines to delegated jurisdiction and appeal, subjects frequently addressed by Rome.^[1793] Accordingly, it comes as little sur­prise that Bishop and judge-delegate William of Longchamp composed an ordo, though whether he followed his own counsel we cannot say with any degree of confidence. Perhaps other judges-delegate or, perhaps, an archdea­con or learned cleric in their entourage composed the Ordo Bambergensis or the De edendo. Given their involvement in ecclesiastical litigation, the arch­deacon would seem a particularly attractive candidate?^[1794]

In chapter one, we considered how process facilitated legal change. In the decades following the death of Ivo of Chartres,jurisprudence not only became more elaborate and comprehensive—a profound change from earlier centuries—but also regularized in practice.

Iudex and advocatus were far different at century's end. They were now homo juridicus, expected to be skilled in both civil and canon law.^[1798] This �legal man' took his place in medieval society alongside priest and warrior, and has devoted himself ever since to evaluating and fixing procedural rules^[1799] It was surely a difficult process at first given the profoundly alien quality presented by the classical civil and canon law. Much of what was passed down to the ordines often did not correspond well, if at all, to day-to-day problems that drove liti­gants to court.^{[1800] [1801] [1802] [1803] Any effort towards �rationalization’ thus confronted first and foremost a historical, terminological challenge. Making sense of references to long-vanished imperial offices and provinces is a good example of this.33 Yet our authors pressed on, biased towards the authority of Roman law and confi­dent that they could achieve control of this problematic tradition and accom­modate it to the canon law. The result was the formation of what Dr. Bauer has called �proceduralist society.’''*4 Only when the past was contextualized and updated for the present, signaled by the occasional hodie in our tests, could there be legal education and professionalization.*5 Establishing that present in both study and practice was essential to determining what was �common’ in the ius commmune.}

The appearance of homo juridicus in the twelfth century is undoubtedly one of the most important, and lasting, achievements of the Middle Ages. Our understanding of procedure as a text-based, rule-bound, and academic, was born in the days of Glanvill and the Ordo Bambergensis. For all its differences, I believe that the parties in a modern courtroom, judge, lawyers, and litigants, would at least glimpse some things recognizable in an ecclesiastical court of 1200.^[1804] That would not be likely be as likely for the audientia of Bishop Ivo, just a few decades earlier.

Our litigious society thus emerged in the world of the ordines, a main reason why I began to work on these treatises in the first place. Whether our authors and the �proceduralist society' they fashioned, and which we have inherited, should be praised or bewailed is, of course, a contentious matter^{[1805] [1806] For some readers, the procedural law we have encountered has likely been a portent of evils to come.3s As R.C. van Caenegem noted years ago, unlike thejury sys­tem, the Romano-canonical process not only gave much, perhaps too much, power to the judge but also �prepared the ground for the exaggerations and abuses of the inquisitorial procedure and the excesses of the Inquisition of later times.'3[1807] Even if one does not directly link the procedural developments we have traced in the twelfth century to the later horrors of the Inquisition, and its more recent, secular, imitators, it is undeniable that they contributed to the �descending power' of the modern state, where the system and its func­tionaries, not the individual, logic and efficiency—in theory, if not always in practice—not justice and mercy matter most of all.[1808] [1809] [1810] As noted above, much of what Ivo of Chartres thought about legal process remains beyond our reach. But one thing was clear: he believed, like Saint Paul, that love was the fullness of the law.41 Discretion and mercy, not �the consistent application of rules' was the essence of judgment?2 By century's end, much has changed. Instead of mercy and discretion, we find the terms and procedures of Roman law. In all the many lines of our ordines, caritas, charity, has never appeared. It would seem the ius commune had no place for it. Perhaps this silence was but the first sign of our modern court, where disputes, and their resolution, concern this world alone.[1811] [1812] [1813]}

Some scholars have praised the ius commune and its procedure in the twelfth century. They emphasize its contribution to the developing western notion of the �rule of law.'44 We recall the letter of Ivo of Chartres in chapter one that concerned a disputed mill. In his day, such disputes might very well have been settled by trial by combat. By the time the Ordo Bambergensis was composed, litigants followed Romano-canonical procedure, with many cases referred to Rome.45 No doubt, this was an improvement, particularly in the view of the losing party. To Richard Southern, such transformation of procedure contrib­uted to the �scholastic programme' intent on fashioning �a more detailed and universal system of oversight and enforcement than had ever been possible before.'4^[1814] If some view the ordines as contributing to the development of the state committed to discipline and punishment, Southern, instead, could see as part of a reform confidently striving to �achieve a large-scale reversal of the Fall.'4^[1815] He is not alone in this view^[1816]

But the true legal historian aims at finding out what rulers, jurists and subjects actually thought and did, and knows that they were sometimes less, but never more, than human^[1817]

Hermann Kantorowicz reminds us of the challenges awaiting anyone who explores legal history. The laws are difficult enough to understand; those in the twelfth century who read and applied them in court even more so. Of course, we can never engage them directly. Like our authors, we are �never more than human.' For those taking a more positive, perhaps even pious, view, the ordines reflect the best of the twelfth-century Renaissance, where the law of Rome, both pagan and Christian, was being turned towards the creation of a more just world. If, as Erwin Panofsky argued so many years ago, the achievement of scholasticism was a cathedral of ideas soaring towards heaven, then the ordines numbered among its foundation stones.^{[1818] [1819] [1820] [1821] [1822] I suspect, however, that many take a far darker view: our authors have appeared, at best, alien, and, at worst, repel­lent, their religious, political, and social assumptions utterly at odds with mod­ern, secular orthodoxies. Viewed in hindsight, the medieval judge, lawyer, and jurisprudent can easily become servants of repressive regimes, whether lay or clerical, (and particularly the latter).51 For these readers, our ordines tell the tale of Church ever more committed to power and force, a Church where leg­islation replaced love.52}

Regardless of how one judges the ordines and their legacy^³ they deserve care­ful consideration by both the defenders and critics of the medieval legal tradi­tion. Whatever label one chooses to apply to their consequences—revolution, renaissance, or reform—they cannot be overlooked. Their defenders, no doubt a small band indeed, must confront the pointed, modern criticisms of the legal and political power to which they contributed. For critics who view the pro­cedure of the ius commune as a tool of oppression, it is also well to remember that they cannot claim the truth before confronting the beliefs, buttressed by arguments, of those with whom they have disagreed^⁴

Whether one applauds or condemns the judicial order constructed by the twelfth-century ordines, it is safe to assume, as argued above, that their authors were acutely aware of the difference between the ideal and real. They knew full well the conflict between the norms of procedure and the desires of men eager to avoid or twist the law. Again, our world is no different. Their admonitions to judges, advocates, plaintiffs and defendants remain no less valid today, even if our society often rejects the religious and moral assumptions driving them.^[1823] Obviously, they failed to live up to those biblical values of brotherly love and correction expressed in the opening words to this study.^r>(> I am also confident they did not need to be reminded of this.5⁷ Yet they still believed, as do I, that all are destined for a final court to stand before a judge whose love fulfills the law. That hope inspires our final text in this study, surely the most remarkable of all: a jurisprudent’s prayer^⁸

Give your servant a teachable heart, skill to learn, ability to discern the truth, tenacity to retain what I have learned, so that I can be both instructed in the pursuits of knowledge and able to explore the secrets of sacred scripture. Grant me skill in words so that, whatever You do with your servant, I may be increased to offer patiently and humbly this work for the instruction of others and may it also grant success to me, Your Servant, and, to You, O Lord, glory and honor and, to my listeners, instruc­tion. That He may deign to supply me, He Who lives with God the Father to reign through infinite ages and ages. Amen.