The Ecclesiastical Ordo iudiciorum Around 1100

Rising population, increased urbanization, and the �commercial revolution’ �contributed as well to legal and institutional changed From Italy to northern Europe, the developing ars dictaminis, rhetoric specially applied to the writing of letters and formulation of documents, reflected this growing need for liter­ate men. We see as well an expanded role for notaries.22

New intellectual forces were also at work. As noted in the Introduction, the trivium, especially rhetoric and dialectic, had been allied since antiquity with the law.^{[218] [219] Dialectic, however, took on new importance during the second half of the eleventh century, due to theological and political challenges. The result was the scholastic method?4}

The scholastic method confronted the problem of sacred authorities that apparently conflicted, notwithstanding the principle of �non-contradiction.’ By the eleventh century, tradition contained a vast number of texts on any num­ber of subjects, texts that were often anachronistic, possibly inapplicable, and, above all, contradictory. After the middle of the century, and throughout the next scholars, most famously Peter Abelard, would begin to employ dialectical analysis, the comparison and contrast of apparently contradictory texts, in the hopes of finding harmony, some sort of solution or synthesis that would allow one text to be chosen as more applicable to the problem at hand, but without discarding the other.

Ecclesiastical reform also prompted renewed interest in canonical texts. Born in the monasteries and spreading into the wider church,^{[220] [221] [222] its call for elections free from lay �interference,’ clerical celibacy, and, above all, rejection of simony encouraged bishops and, eventually, the pope, to take an increased interest in the canon law?6}

Reform would also play a role in the development of legal procedure. When the papacy, beginning with Pope Leo ix, assumed an increasing role in leading reform, popes and their supporters turned to the canons (authentic or not), and found, particularly, though not exclusively, in Pseudo-Isidore a valuable body of authorities to support Rome’s primacy andjurisdiction. Integral to these was procedure, particularly Rome’s unique prerogatives as the ultimate appellate court. What the Carolingian forgers had created to protect the immu­nities of contemporary bishops now became, increasingly, a source for papal power.2⁷ The ordo iudiciorum was directed towards Rome.

By the time of the Investiture Contest between Pope Gregory vii and King Henry IV of Germany in the 1070s, we find periodic references to the ordo iudiciarius. One example comes from Bernold of Constance, a staunch supporter of the pope.^[223] Drawing upon Hincmar of Rheims,^[224] Bernold wrote to Bernhard of Hildesheim to defend bishops summoned, but not appearing, at a council at Worms.^[225] He defended them against a charge of contumacy, some­thing that will also concern the ordines composed in the next century. Bernold also mentioned other points of procedure, for example the difference between manifest and hidden crimes^{[226] [227] [228]}

Thus, canon law was changing by 1100³2 The papacy issued privileges, which also often provoked later disputes. It also commissioned legates, whose del­egated jurisdiction will be so important to ecclesiastical procedure during the course of the twelfth century.33 Nor was procedure merely a Roman concern, as we find it emphasized in the regional councils of the Peace of God movement and synodal courts^[229] These remind us that Rome was not the only engine driv­ing renewed interest in legal procedure.

Legal theory was also emerging. From new canonical compilations with more sophisticated, thematic organization to treatises shaped by dialectical hermeneutics,^[230] canon law was on its way to becoming a science distinct from theology.^{[231] [232] [233] [234] Playing a supporting role in this was Bologna, whose �revived’ civil law, discussed in the next chapter, stimulated theory and practice^7}

Given these changes, scholars have long considered the period after 1070, shaped by the Investiture Contest and early scholasticism, a â€?turning point’ for the canon law. Integral to this view has been the reform-era papacy which, by appealing to ancient decretals,3⁸ and more recent conciliar decisions^⁹ revolutionized the canon law and laid the foundation for the â€?imperial’ papacy of the high Middle Ages.

Granted, there have always been critics of this thesis. Rudolf Sohm was surely one of the earliest.^[235] While many scholars since his death in 1917 have challenged his argument that the revolution in canon law,4^[236] a transition from a sacramental to positive law, only occurred after Gratian, some, especially theologians, have remained attracted to his ideas^{[237] [238] [239] It is only comparatively recently, however, that scholars have moved beyond simply refuting Sohm to reconsidering the traditional paradigm of Reform, Rome, and Revolution.}

Most contemporary students of medieval law have learned â€?Reform, Rome, Revolution,’ through the work of Harold Berman?³ What many, however, have not encountered is the body of criticism leveled at Law and Revolution. For example, Rudolph Schieffer criticized Berman’s reliance on a â€?couple of abstract measures’ to analyze such a complex phenomenon as legal changed Even more pertinent to this present study, he cautioned against Berman’s assumption that the Gregorian papacy was somehow intentionally innova­tive, and that its decrees were necessary for the subsequent development of western law.^[240]

In light of such criticism, let us also reconsider the �legal revolution' of the late eleventh century by turning our attention away from Bologna and Rome?^[241] We shall consider French bishops, not popes and their legates^[242] The letters of Bishops Marbode of Rennes and Ivo of Chartres can expand our knowledge of what the ordo iudiciarius meant before the spread of civil-law jurisprudence from Bologna, Montpellier and other schools. Equally, they demonstrate that we should not view developments in ecclesiastical procedure largely in light of papal claims of primacy and power.

Marbode of Rennes

Best known for his lyric poetry and letters, both intensively studied for their style and erotic language, Bishop Marbode of Rennes (ca. 1035-ca. 1123) was praised by contemporaries as a master of Latin^[243] We know as well that he had some experience as an ecclesiastical judge, for he served alongside sev­eral other bishops in 1098 injudging a dispute between two Angevin mon­asteries.^[244] Stephan Kuttner also called attention to one of Marbode's letters that mentioned legal procedure. Writing to the hermit Ingungerius, who had been accused of heresy, Marbode expresses his relief that the accusation was unfounded. He then comments on how canonicaljudgment should take place:^{[245] [246] [247] [248]}

Bad priests ought not be avoided unless after a canonical judgment. (Marbode) least of bishops, to Ingungerius, venerable priest and to the brothers who, with him, serve God: Greetings^¹ I received your holiness' letter in response to our letter. Having read it, I rejoiced not a little, since I perceived that you thought and preached only those things that do not deviate from Catholic truth. For who does not know that all heretics gen­erally ought to be avoided and detested? The sacred canons also show that priests who are fornicators ought to be deposed.5² However, this should never be done universally or without order. For the holy church, whose body's head is Christ,5³ has a distinction of members and diversity of offices, so that one may not be allowed to usurp another's function with impunity. For, surely, not all members are the eye? Do all members speak?^{[249] [250] Our Lord Jesus, speaking to one who had cried to him saying â€?Master, tell my brother to divide the inheritance with me,' responded thusly: â€?Man, who made me judge and divider between you?'55 Therefore, many should not judge or speak, since indeed the tongue itself is not per­mitted to speak unless by order and with the proper word. Such is the constitution and the order of judges that,5[251] though certain things may be true, yet he should not believe them unless declared by judicial order. In each judgment there should be four persons: plaintiff, defendant, wit­nesses, and judge.5[252] You have it in the decretals that no judgment, unless made according to legal order, should be held.5[253] For, besides the general judgment of things to be punished, the quality of persons requires proper discussion in its details. Does anyone therefore dare to disturb this con­stitution of order? Does anyone not permitted to judge dare usurp this license? For, as Scripture bears witness, the danger to the judge is greater than to the one he is judging. The Lord says in the Gospel^[254] â€?Do not judge and you will not be judged.' And the apostle: â€?Do not judge prematurely.'[255] Whence, we read from Blessed Martin^[256] â€?Judging no one, condemning no one.' And the Lord Jesus told those confident of their righteousness, and looking down on the rest, the parable about the Pharisee and the sinner, and added that the sinner wasjustified, not the Pharisee[257] For should you all, whom foolish and impertinent men, deceived by error, jabber- ingly call heretics, be cast out before a hearing? By no means! Therefore, do not, most beloved sons and brothers, condemn and abhor sinners but, with gentleness, correct and pray that God may convert them; or, if it is more expedient, accuse them beforejudges so that, convicted and confessed, they may be justly punished. Indeed, with God willing, there is now great concern that one not openly defend his own iniquity or, I say, argue that such evils as simony and fornication are good.[258] [259] [260] [261] However, I know that you are able to gain what is good more by praying than disput­ing. May omnipotent God hear your holiness praying for us!}

Marbode mixes Pseudo-Isidiorian texts and the Bible/’⁴ However, detached from reference to an actual case, it is difficult to tell whether the Bishop of Rennes read these authorities in any legal sense. It seems more probable that Marbode is moralizing, providing pastoral counsel and comfort, not legal consultation. He condemns fornication and disorder, standard themes in the literature of the Reform and Investiture Contest.’⁵ Since only the court of public opinion had so far charged the hermit with heresy, there was no trial at stake. Thus, the â€?judicial order' appears to mean that Ingungerius should have his say, and that everyone else should remember Christ's injunction to â€?judge not.'

Bishop Ivo of Chartres' letters offer us more legal content and sophistica­tion. They also comment on specific cases. Scholars have long considered Ivo (ca. 1140-1115) the outstanding canonist of his day. While he may have only compiled one canonical collection (his Decretum) and not three, as assumed until recently, his influence on the development of medieval canon law remains impressive.66

For more than a century, Ivo of Chartres has been viewed as a seminal figure in the development of canon law as a legal science.^{[262] [263] [264] [265] However, scholars, with a few exceptions, have fixed their gaze on Bologna and Rome, respectively the academic and institutional futures towards which all things canonistic were progressing. In their view, Ivo was liminal, neither fully �Gregorian’ (the Roman trajectory of the canon law)68 nor entirely �scholastic’ (the future of canonis- tic hermeneutics)69 They have also regarded him as insufficiently informed by the civil law, paling in comparison with the trained jurists of the later twelfth century.7°}

Ivo deserves a closer look. In particular, we should consider his knowledge and practice of procedure. To that end, a comparative approach, a consider­ation of what legal historians outside the orbit of the ius commune have said about legal change,^{[266] [267] [268] [269] [270] [271] may be helpful. Let us reflect on what historians of the early English Common Law have said about procedure?2}

Consider this quote from F.W. Maitland?³

When the medieval church is regarded as a political organism, as a state, it becomes very interesting. As a whole the constitution of this state may be unique, but there is hardly a feature in it for which we may not find analogies elsewhere.

Maitland was acutely aware of comparisons between the laws of crown and church?⁴ The quote reflects his concern to enlarge his contemporaries’ under­standing of the sources of English legal development by turning their attention towards the canon law whose influence would grow markedly over time?⁵ For our purposes, however, we should note as well his emphasis on the state, the institution of the Church. Such institutionalism assuming legislator, legisla­tion, and intent, certainly could mirror at least to some extent to the â€?revolu­tion’ in canon law, which has assumed Roman direction, with increasing help from Bologna and the schools she would inspire.

The paradigm of â€?Reform, Rome, Revolution,’ advanced by Paul Fournier in the late nineteenth century and championed by Berman, thus might be com­pared to Maitland’s views on the history of English law. In critiquing Fournier’s model, one could then look to alternatives to Maitland. Notable among these is the work of S.F.C. Milsom?⁶ I suggest that some of his observations may be instructive for the development of canon law, especially its procedure. Milsom emphasizes the court as the arena of legal change:

The most elegant of answers is no use until the question has been asked; and the point of this essay is that early lawsuits settle disputes without raising questions of substantive law and that progress depends upon pro­cedural changes which allow such questions to emerge.^[272]

Milsom argues that legal change takes place most commonly neither at the leg­islator’s throne nor in his court?^[273] (For the purposes of this study, we might also add �neither at the university nor school.’) Rather, it is in the court of record where, through litigation and negotiation, change occurs?^{[274] [275] Change comes not from the guiding hand of the legislator; rather, it ensues from pragmatic action in court, as advocates contest and judges rule?0 That these efforts left little if no written record does not make them any less forceful or innovative[276] From this process came, gradually, rules, reflecting feudal society, to be recorded, organized, taught, and debated.[277] Procedure spurs legal change. Accordingly, let us search for it in Ivo's letters,8[278] which concerned courts and cases far removed from Rome and Bologna[279]}

Despite invoking it in various letters, Ivo of Chartres never defines the ordo iudiciarius. Often, his view seems little different from Marbode's. Letter 259, written to Archbishop Radulf of Rheims on behalf of Ivo's former mon­astery, St. Quentin of Beauvais, illustrates this.8^[280] Composed late in Ivo's life (ca. 1113-1115), the letter defended the abbot of St. Quentin against the Bishop of Amiens, who had accused him of failing to maintain a mill^{[281] [282] [283] [284] Ivo urged the archbishop to temper his judgment and, invoking a maxim from Isidore of Seville that the law should be �just, possible, and suitable to both time and place,' referred to the ordine iudiciario.87 (It is worth noting that there may be an allusion here to prescription as Ivo, defending the monks, refers to their forty-five year undisturbed possession of the mill.)88}

Other letters give more insight into Ivo's thought concerning procedure. In letter 166, written in the early twelfth century, he treated the case of Matilda. Originally betrothed to the royal chamberlain Waleran of Senlis, she had been seized against her will by Pons, nephew of the Bishop of Troyes:8⁹

Ivo, by the grace of God minister of the church of Chartres, to Humbaldus, by the same grace bishop of Auxerre. Greetings. Your grace should know that last summer, when Lord Bruno, Bishop of Segni, was acting as apos­tolic legate, Hugh the White was there in his presence and related to him how Pons, nephew of the Bishop of Troyes, had taken in marriage his daughter, Matilda, despite her tearful resistance. Matilda had been

previously betrothed to Galeran, chamberlain of the king. As both par­ties were absent, the Bishop of Paris was charged by the aforementioned legate to summon both to a hearing on a suitable day and, after the argu­ments from both sides had been heard, with the counsel and judgment of prudent men to end the controversy between Pons and Matilda. On his return, the Bishop of Paris fixed the date and time for Pons and Matilda and invited me and my fellow bishops to discuss and judge in Christian love. On the appointed day, the plaintiffs and the defendant, along with witnesses and judges, met at Paris to hear the case. Matilda was asked when she had refused marriage with Pons. She responded briefly that she was not legitimately joined to him, since she had first been betrothed to Galeran by her parents and then, though objecting to him with all her might, with her mother also unwilling, wasjoined to Pons. When Pons was then ordered to respond to the accusations, he sought a cer­tain diversion by not responding, and then improperly left the meeting to which had presented himself. He then was ordered time and again that he should not delay either to respond to the accusations or hear the judgment. Since he thus avoided judgment, he was judged by apostolic decree, because one absent ought not to benefit from the sentence’s delay. Then, with opinions offered from the authority of both civil and canon law, since the witnesses for the woman against Pons could prove under oath that she had objected, (it was decided) she should be free from Pons and thus could marry in Christ whomever she wished. Pons was further ordered to come to hear these oaths, in order to legally object against the persons of the witnesses or their statements.

Since Matilda had resisted and Waleran had died, Ivo judged she should marry whomever she wanted. She had not consented to Pons; her marriage to him was void.^[285] Ivo noted as well that witnesses had declared the marriage forced. The original betrothal thus stood. He notes how Pons avoided judgment by neither responding to summons nor appearing at court, delaying tactics which the ordines will treat at length. The ordines will also consider exceptions raised concerning witnesses. Since Pons had not followed these commands, he had defaulted. Unfortunately, Ivo never states which civil and canonical sources he had in mind^[286]

Ivo is more forthcoming in letter 274. Writing to Pope Paschal ii, the bishop declared:^[287]

To Paschal, supreme pontiff, Ivo, humble minister of the church of Chartres, with complete obedience and full joy of salvation. Prevented by bodily infirmity, I was unable to be present at the dispute between myself and the abbot of Marmoutier which you had commanded to be tried before (Cono) the bishop of Praeneste, legate of the apostolic see.9^[288] Nevertheless, to your legate and bishops, whom the former had called together to judge this case, I sent my secretaries9^[289] and letters to refute the calumnious objections of the monks^[290] When the monks were unable to weaken the truth of the letters by any judicial order, but not yet burdened by any judgment or decision delivered against them, they called me, though absent and ill, to the apostolic see. They did this not out of confi­dence in justice but, rather, to cause delays since through my secretaries I wished to dedicate myself to rendering void the charges made against me and also to prove, by means of thejudicial order, those responses I had made by letter against their unjust objections, provided a suitable time and fitting place might be granted my infirmity. That I may conclude briefly the summary of the truth, your holiness should know that these monks held no investiture of that church (which is the point of this con­troversy) either in whole or in part, unless by invasion or theft. When this invasion of the church had been brought to the attention of lord Hugh, bishop of Die, then legate of Pope Gregory VII,^[291] he freed the aforesaid church from those monks' depredations by means of his letters and then, with the canons there serving apostolic authority, left it quit.

The letter describes a typical dispute. Couched in the humble phrases essential to what Geoffrey Koziol has called �the language of the suppliant,'9^[292] Ivo defends himself and asks for papal approval. Such petitions were typical: bishops and abbots were constantly disputing with one another, and their lay and ecclesi­astical patrons^{[293] [294] The monks of Marmoutier had failed to challenge Ivo's letter of defense.99 Without a legal challenge, they had failed, as far as the bishop was concerned, to follow the ordo iudiciarius. (Again, Ivo anticipates a topic we shall find in the ordines. As in the previous letter, failure to appear, against which Ivo had defended himself, as we saw above, is highlighted.) While he never uses exceptio, or cites legal authorities in reference to it, it is clearly what he meant. References to the burdens of age and illness could convey appeal to an exception, not merely excuses.[295] [296] [297] Ivo noted as well that he had sent both let­ters and messengers to communicate his situation. Again, the ordines will treat this procedural requirement. His exasperated comment on the monks' strategy of delay also will echo in coming chapters.}

Letter 280 cites Roman law. Ivo wrote to Bishop Lisidard of Soissons con­cerning an archdeacon whose sister had been charged with adultery and sentenced to the ordeal. Ivo replied that the ordeal was against the judicial order.101 To support his position, he drew upon a Novel}⁰²

To Lisidard, by the grace of God bishop of Soissons, from Ivo, by the same grace humble minister of the church of Chartres, that he keep watch over those sheep entrusted to his pastoral care. Your archdeacon, the son of lord Nevelon of Pierrefond,^{[298] [299] [300] came to us along with other honest broth­ers and diligently asked how, having consulting the laws, he could free his sister from the infamy with which the Count of Soissons, her husband, had hatefully accused her. After hearing this, it seemed to me that this charge neither concerned the judicial order nor summoned her to law­ful purgation. Indeed, the institutes of Novels, which the Roman Church commends and keeps, state that a man suspected by a husband may not be handed over to punishment or convicted because he wishes to accuse his wife of indecency unless, with the support of three suitable witnesses, the husband claims three times that he himself had not had any familiar relations with his wife in their own home or another. With this done, if he found them in a private place, with three suitable witnesses testifying about the rest, then the man could be summoned to judgment or be duly punished. Otherwise, neither the secular nor divine laws concede that someone could become guilty solely on the basis of conjectures,ω4 and your prudence knows well that the condition of both accusers and wit­nesses ought to be inoffensive, so that nothing may be done from enmity, nor should a reprehensible accuser charge another person. However, the count freely testifies that he called her to the test of the hot iron or to trial by combat, things the ecclesiastical laws rather prohibit than command. Whence (Pope) Stephen, writing to Luitbert, bishop of Mainz305 â€?The sacred canons do notjudge that confession should be extracted from someone by means of the examination of hot iron or water, and what is not sanctioned by the record of the holy fathers should not be pre­sumed by superstitious invention. Where there is voluntary confession or crimes have been publically declared with the approbation of witnesses then, with fear before the eyes of God, those are committed to the ruler to judge. However, hidden or unknown matters must be reserved to the judgment of the One who alone knows the hearts of the sons of men.’[301] [302] [303] [304] Accordingly, Pope Nicholas I also saysω7 â€?We do not accept trial by com­bat as law, for we do not find that it was received (by the church), though we do read that certain ones did this,just as sacred history shows (by the example of) holy David and Golia⅛ω8 yet never did divine author­ity sanction it elsewhere to be held as law, since those who do this seem merely to tempt God.’ From these and other statements of this kind it is apparent that the aforementioned count cannot convict his wife of adul­tery unless there is a valid number of witnesses, and he had not shown her conjugal charity, or rendered the conjugal debt. I could reply with more things in this fashion but I judge that these suffice. Farewell.}

Ivo does more than cite the Novel in passing. He integrates it into his argu­ment against both the charge and ordeal. His multiple references to witnesses and their suitability and how they are to be tested before a judge all refer to the civil law. Ivo assumes its applicability, indeed, suitability, to the case. Again, the ordines will treat this as well.

Letter 258, to Pope Paschal ii, presents an equally interesting discussion of procedure^⁹

To Paschal, supreme pontiff, Ivo humble minister of the church of Chartres with the son’s love and a subject’s obedience. Since at the apostolic seat both mercy and justice flourish, all oppressed in any way humbly ought to take recourse to it so that there each and every one may receive either a just judgment for the truth of matters or pious solace from apostolic moderation. Thus, on bended knees of the heart, we beseech your excel­lency to reserve to your audience alone the case of the lord bishop of Senlis, Hubert, where a rash mob may not frighten, no princely violence compel but, instead, the truth alone according to the testimony of his own conscience may defend what is presented and proved. We know indeed that in former years, when the lord Richard, bishop of Albano was performing the apostolic legation, that he celebrated a council at Troyes. There malevolent and envious men accused Hubert of the crime of selling sacred orders (simony) but, because of lack of accusers, the bishops agreed that this accusation was not proven. However, the aforementioned bishop, desiring to avoid the infamy of such a crime, at the judgment of your legate, as those testify who were there, voluntarily purged himself of the crime with which he had been accused and further proved his innocence by swearing an oath. Afterwards, we understand that this case was decided according to the judicial order and, according to the tenor of the laws, ought not be repeated.^{[305] [306] [307] [308] [309] However, since final judgments ought to be referred to the apostolic see so that it may impose the ultimate decision, and that he might confirm the things he stated under oath through honest persons, Hubert presses us and others favor­able to him that justice be observed concerning him so that his inno­cence may not be endangered. This, we hope, the apostolic see would do anyway without our intervention. Yet we desire that the wishes of our mouth be approved by Her.m}

Writing after the legatine council of 1104 held by Bishop Richard of Albano, Ivo reported that the charge of simony against Bishop Hubert of Senlis had failed to go to trial because of a lack of accusers.ⁿ² Nevertheless, in order to clear his name completely, the bishop had willingly taken an oath before the legate. Ivo emphasized that, while final judgment should be reserved to the papal see, he saw no reason for re-trial because the matter had been decided by the judi­cial order and, following the â€?tenor of the civil laws,' ought not to bejudged again. Ivo furnished valuable detail about process in his comments on why the accusation had not come to trial and the bishop's subsequent oath, his purgatio canonical

Ivo was not the first to question a second accusation and retrial. Both had attracted attention early on in canon and civil law. Jerome had commented on Nahum 1.9 when arguing that God did not judge twice. This text later appeared in Gratian and would figure in the dispute between Becket and Henry ii.^u4 The Roman law tradition had been established by maxims such as ne bis idem that first appeared in the late Republic.^{[310] [311] [312] [313] [314] [315] A particularly important formulation by the jurist Ulpian, though in corrupted form, was subsequently preserved by the Digest 43.29.3.13.n6 Save when the accuser had lied, a second accusation was invalid. By the late third century, a more concise formulation, lacking the reference to lying, appeared in the Sententiae Pauli, I.6.BI.n7 Pseudo-Isidore then brought this into the canon law via Benedictus Levita 163, 291.n8 Ivo subse­quently drew from this collection for his Decretum at 16.319. This was probably the text he cited.n9}

As in the preceding letter, Ivo had no difficulty referring to civilian pro­cedure when commenting upon an ecclesiastical dispute. Letter 258, to my knowledge never discussed in the abundant literature on the topic of double jeopardy in medieval canon law, demonstrates this willingness to apply the Roman law. Here, Ivo anticipates the jurists, both civilian and canonist, who later in the twelfth century would treat the issue at considerable length during the Becket conflict?²⁰

Why did Ivo turn to civil law? Was it merely to demonstrate the extent of his learning, a few �proof texts' cited in passing? I do not think so. Given the profound concern Ivo had for justice and mercy, a concern reflected through­out his writings, there is far more at work in these scattered citations. He wanted cases to be resolved, whether his own or those under the jurisdiction of others. All available legal texts deserved consideration. If Ivo did not have the knowledge of the civil law commanded by university-trained jurists later in the twelfth century, he had had enough to see when it could apply.^{[316] [317] [318] [319] [320] [321] His recourse to the civil law illustrates legal change.m}

Ivo of Chartres and Marbode stood on the cusp of the transition towards professional law during a â€?long twelfth century.’^³ While not trained special­ists in civil or canon law, as measured by later standards,^⁴ these bishops were expected to be well-read and at least somewhat familiar with the law. This had been true for centuries. But circumstances were changing. Whatever their degree of legal education, they were caught up in an increasingly bureaucratic and communicative ecclesiastical and secular, government.^⁵ Such â€?users’ of the law, both canon and sometimes civil, were important. Those who followed them would be the authors and audience of the ordines.

As Susan Reynolds notes³2⁶

What Roman law offered to practice... was not merely a method of ratio­nal argument... but a whole mass of prescriptions and distinctions from Justinian’s Corpus that the prestige of Rome made authoritative. Once dug out of the texts, they stimulated those trained in argument to work out principles...

Ivo �dug out’ these texts and applied them. As we shall see, others would dig even deeper and more widely. If the Bishop of Chartres lacked the sophistica­tion of the jurists soon to come from Bologna and elsewhere, this should not diminish his achievement in applying Roman practice to the canonistic ordo iudiciarius. Again, Susan Reynolds:

Doing things differently from either ancient Roman or modern law­yers is not necessarily the mark of confusion or lack of legal technique. Adopting new words may be a sign of trying out new ideas so as to adapt them to different conditions, which is surely an intelligent thing to do...

The important point is not whether Ivo or any of his contemporaries used the Roman law well, though I believe he did, but that he turned to it.¹²⁷ It met the needs of his legal advice concerning two cases. Like those who would follow him in referring to the civil law for study and application in court, Ivo was â€?opportunistic.’^⁸

No single point of view captures the history of law, canon or otherwise, and its moments of change. Still, Milsom’s emphasis on procedure, action in the court, deserves consideration in the formation of the ius commune. Whether or not the phenomenon deserves the dramatic title of â€?revolution,’^ courts, both sacred and secular, were becoming increasingly concerned with process,1³⁰ and were turning to the learned law of Roman antiquity and examining canon law with new interest and critical acumen.131 A â€?proceduralist society’ was appearing,i32 a subject to which we shall return in the conclusion. For now, I believe it not too much to argue that Ivo’s recourse to the civil law, more than learned display, was an early indication of this process at work.133 Ivo anticipated the ordo iudiciarius that soon would evolve under the influence of civil and canon law. The ordines would be the next step.

127 On Reynolds’ article, Piotr Gorecki, “A View from a Distance,” Law and History Review 21.2 (2003): 370.

128 R.C. Van Caenegem, European Law in the Past and the Future. Unity and Diversity over Two Millenia (Cambridge: Cambridge University Press, 2002), 81-83 on �opportunistic’ use of the civil law. See also Gorecki, “A View,” 371, again commenting on Reynolds.

129 It is worth noting that Berman never mentions Milsom.

130 On the �interplay’ of rules and process in this period, commenting also on the works of Hudson and Wickham, Keyser, “Argument Supercedes,” 46 and n. 15.

131 Meens, “Argument Supercedes,” 65.

132 Dominique Bauer, “The Twelfth Century and the Emergence of the juridical subject— Some Reflections,” zrg ka 121 (2004): 214.

133 Another indication of the growing interest in procedure around 1100 are numerous can­ons from Panormia 5, which largely concerns process, in the English Leges Henrici Primi, on which see Bruce C. Brasington, “Canon Law in the Leges Henrici Primi” zrg ka 123 (2006): 288-305.