PRocesos Judiciales en las sociedades medievales del norte peninsular

One of the most innovative and fruitful outcomes of collaborative work between diplomatists and historians is an increasing awareness of how limited traditional documentary classifications may turn out to be. This is especially true if one bears in mind the wide range of early medieval records conveying judicial information (always taken here in the broadest sense). The absence of official court records and archives, as we see them today, prompts us to rethink both the modes and the forms of recording and/or transmitting such information, as much as the function assigned to the extant records, on the grounds that the 'content of form' sheds some light over dispute settlement practices.

In this session comparison shall be directed to: i) assess the weight of documents with a judicial bearing among the total numbers of extant charters in each area (while considering different time spans); ii) identify all several types of dispute records and each type's correlation with three variables: the nature of lawsuits (criminal or civil); the status of the parties; and the authorities before which such cases were brought. These variables must also be borne in mind when looking at the different ways in which conflict resolution was actually achieved. Exploring the extent to which these variables can influence, both in time and space, the writing of dispute-related records will allow further insights into the socio-political contexts in which these records were written and the legal culture models underpinning them.

Les sources sur la résolution des conflits dans l'espace italien sont au premier abord faciles à appréhender grâce à l'existence du corpus de notices édité par Cesare Manaresi entre 1956 et 1960. Si l'Italie est restée longtemps la seule bénéficier d'une telle initiative, c'est parce que les plaids y forment une catégorie documentaire bien identifiée, du fait de l'existence de juges et notaires professionnels publics d'une part et du développement de formulaires et de procédures particulières d'autre part. Mais l'édition des placita italiens a eu aussi pour effet de rejeter dans l'ombre ce qui était considéré comme ne relevant pas des critères de sélection du corpus, c'est-à-dire les plaids dits "privés", ou ceux qui ressortissent de la justice ecclésiastique, de même que les pièces en amont et en aval de l'assemblée judiciaire proprement dite. L'enquête peut être poursuivie par la meilleure connaissance du contexte local des conflits. Elle peut être aussi élargie géographiquement, ce qui est l'occasion de mieux percevoir les conséquences concrètes de l'existence d'un notariat public sur la production documentaire. D'où la possibilité de comparaisons: à l'intérieur de l'Italie d'abord entre le royaume, les terres pontificales et les principautés meridionales; entre l'Italie et d'autres expériences régionales ensuite.

In this paper I will look at the so-called Formulae Visigothicae, with an eye on the questions that frame this colloquium's first session. I will do so from the perspective of an historian who works on formula collections from the Frankish world north of the Alps and the Pyrenees.

The Visigothic formulas are impossible to pin down in time and space; they survive only in a sixteenth century copy of a twelfth century copy from Oviedo. Based on internal evidence, the collection has been dated to ca. 620. This dating assumes that the formula collection was put together at this time as a whole, and transmitted as a whole. There is nothing, however, to say that it was not compiled later by someone who drew on older documents to form the collection he thought he needed; this process is well attested in Francia.

These formulas contain only a few documents concerning judicial or other disputing processes. These records nevertheless illustrate the different ways that information about these processes could be recorded and transmitted, whether at the (speculative) time of their origin or at some (speculative) later time. Some documents record formal judicial proceedings in specifically judicial forms. Others record extrajudicial settlement in less structured ways. Still others tell us about disputes indirectly, in reports of other legal arrangements.

Like similar records in Francia, the categories "judicial" and "extrajudicial" represent poles on a continuum; disputes could flow between or combine the two. Each of the dispute formulas in this collection deals with a different kind of dispute. However, disputes over different specific matters are not mapped onto specific documentary forms. This suggests that the authors of the documents did not distinguish conceptually between different categories of wrong.

Records of disputes conducted in a judicial forum in the ninth and tenth centuries take a wide range of different forms. There are retrospective narratives of judicial process recorded at some distance from the events they describe; material directly deriving from the activity of the court; and records in which judicial process is explicit but briefly mentioned, or implicit, because the main purpose of the record is to record a transaction of some kind.

It is important to try and understand how these different types of record came to take the form in which they now survive. These forms have different elements. There is the formulaic framework within which most scribes wrote, much of which derives from a Late Antique background; there is free-flow narrative of recent, or not so recent, events; there are ritual words repeated at different points of court procedure; there is the occasional attempt to reproduce words uttered by litigating parties. While it is impossible to know how and why each element was selected, careful analysis can demonstrate that there were primary records that noted the raw details of, for example, a confession and secondary records comprising subsequently constructed charters which summarized the appropriate details; in some cases a narrative was constructed in a tertiary stage. While it is relatively easy to detect bias in the construction of records, it is much more difficult to identify deliberate falsification; however, those recording boundary disputes are good candidates.

Understanding the process of construction of these records is important because it bears upon the credibility of events recorded. Appreciating the difference between different kinds of record is important because it can highlight otherwise unexpected aspects of participation in court process, such as the use of courts by lay parties.

From the last quarter of the ninth century, the resolution of disputes in northern Italy often involved a process of ostensio chartulae, namely plaintiffs could furnish the court with documents to bolster their case. When it was time to write the placitum (court proceedings), notaries gathered these documents and either copied them in full or summarised them. In so doing, they fostered the development of a 'record' of ecclesiastical institutions' rights, which were eventually identified by some scriptoria as material capable of becoming part of History.
The paper presented here will analyse the historical consequences of such an approach by examining two specific, yet different, examples of such documents: the placitum of Quingentas from the Abbey of Nonantola (Modena) and Roll no. 3 of Arezzo Canon (Toscana), with the aim of investigating the legal defence strategies employed in court, as well as the mechanisms that enabled the preservation and transmission of records in the 'Regnum Italiae' between the ninth and the eleventh centuries.

Historiography tends to consider political authority or power as the key-feature of the societies upon which it is exerted. But the problem of how political structures are related to judicial practices and to wider mechanisms of dispute resolution – part of a now old debate – is far from being resolved, as it keeps being addressed in a very traditional fashion. Presented through different – often mutually exclusive – definitions (state/non-state; public/private; institutions/social networks…), this question claims for new approaches which may allow for a better comprehension of the undeniable link between institutional resources and political praxis.

This session will thus reflect upon the scale at which judicial authority is exercised, both in its sociopolitical and spatial dimensions. From the royal curia to local concilia, and ranging through several types of lordly courts or community assemblies, the formal settlement of disputes did encompass a wide variety of authorities, which were far from being totally detached from one another. Hence the importance of defining criteria which will allow to map the spheres of influence of all different types of judging authorities as well as their possible overlapping. Looking beyond the more traditional institutional criteria, and the sociopolitical ones put forward by legal anthropology-inspired approaches, attention shall be paid to other manifestations of those spheres of influence, particularly those of a spatial, material or symbolic nature. The place of justice within the broader set of powers that each authority holds – which remain to be determined in every single case – might be used as an index of that authority's rank in the wider scale of the judicial system.

In early medieval societies -as indeed in many others- justice is a major component of power and authority. In the 10th-century Kingdom of León there was a long-recognized tension between 'high political' (mainly royal) and 'lordly' jurisdictions that is often considered from the 'public vs. private justice' perspective. This categorization seems to lock the debate within a formal and highly legalistic framework that is not suitable for the analysis of what seems to be a much more fluid and diversified situation. In this paper I will explore the same basic problem from the perspective of the spatial dimensions of justice, using specific examples from the County of Castile. I will minimize the public-private aspect and consider instead the issue of territorial continuity of discontinuity of jurisdictional networks to suggest that the aforesaid conflicting spheres of the exercise of justice are but one aspect of a long-running process of scale change affecting the whole of the Castilian county.

This paper aims to assess the continuities and differences in handling judicial processes during the important period mediating between the end of the 10th century and the early 13th century, in terms of those involved in solving it and in terms of the construction of the whole process of resolution and its written and non-written rules.

The diocese of Coimbra, settled in one of the most important "frontier" territories, either for the Leonese Kingdom or, after that, for the Portuguese one, is also one where the tensions between the mozarabic elite and culture and the "new" civil and ecclesiastical powers stepping in after Alfonso V's adoption of religious reform are most striking and well documented, thereby allowing us to have a particularly good view of what is happening in this area, in the continuum of time.

The cases chosen to illustrate the enquiry we set, are: a) the evidence patent in the documents regarding the solving of disputes transcribed in the cartulary of the monastery of Lorvão - compiled circa 1120 as a means to protect and prevent external threats, from the counts of Portucale, and the bishop of Coimbra which contain several documents related to previous cases in which the solving of disputes is very well documented and detailed, and b) the 1023-1026 enquiries regarding the dispute between the See of Coimbra and the Regular Canon's monastery of Santa Cruz, in which agents and processes of solving judicial questions seem to have changed drastically, but where all sorts of continuities and the use of ancient forms of mediation is nonetheless still very easily detectable.

The role of judges and warrantees as well as the use of judicial authority – whether in the form of judgment by previous judges, quotations of law or customs, memory of local communities, assemblies or the mere brutal authoritarianism of civil and ecclesiastical powers- is very eloquent.

Both cases help to illustrate and compare how two very different situations and times in a similar environment, allow the detection of change and continuity in the process of dealing with judicial matters, before and after the introduction of roman and canon law in medieval Iberia.

This paper examines the earliest extant 'dispute charters' from the kingdom of Denmark with the aim of discussing the complex interplay in actual conflict processes between judicial authorities and informal mediation and compromise.

The paper first seeks to provide an overview and general assessment of the sources conveying information on disputing practices in high medieval Denmark. Compared to most other regions in Europe explored in recent decades by scholars studying medieval disputes the evidence from Denmark is rather poor. Charters recording disputes do not appear until around 1150 and remain few and far between even throughout the thirteenth century. Like Danish charters in general they are usually preserved as copies or summaries in late medieval monastic cartularies and registers. To make any sense of this scant material it is necessary to apply a comparative approach.

The paper then goes on to discuss the conflict accounts from c. 1150-1250. Almost all disputes reported in this dossier concerned property or territorial control and played out between members of the lay and ecclesiastical elite. In the majority of cases settlement was achieved by some kind of intervention or participation by what may be termed formal judicial authorities: bishops and/or kings. At the same time, however, the evidence makes it clear that micropolitical power, mediation by friends and kinsmen, compromise, ritual transaction, and other features highlighted by medieval dispute studies constituted important elements in the processes.

In order to understand the dynamic interplay between what may – perhaps misleadingly – appear as opposing modes of conflict resolution (formal/informal, public/private), the paper proposes to consider the 'officialisation strategies' by which various agents (litigants, mediators, judges) strove to represent disputes and settlements, both in legal action and in textual discourse.

Perhaps as a means of countering the view of conflict as a social dysfunction with hefty consequences, there is a widespread opinion that every dispute resolution aims at reinstating peace between the disagreed parties (Gauvard, Barthélèmy…), an argument which tends to be taken for granted. This might be part of the much criticized 'functionalist' approach of dispute studies, which this session shall reflect on.

It will thus focus on assessing the role of dispute resolution mechanisms in building social order and hierarchies – which is an ongoing process of negotiating the status (and interests) of individuals or groupings, more than abstract social strata. Bearing in mind the range of authorities who would (or would not) be involved in the settlement of disputes (§2 above), and the to-ings and fro-ings between judicial authorities and contending parties, it is important to understand how justice was part of social and political struggles and/or dialogue between, and within social groups. Aristocrats, clerics and monks of all kinds, local elites or ordinary peasants, all went to court and played different roles there – whether alone or as part of different types of groupings. The judicial dimension of royal authority cannot be excepted from this social and political scenario, but historians have tended to magnify it considerably. Whether the king was able to impose himself or rather appeared as a mediator, it is important to question how and to what extent royal action could actually mould social order/disorder.

While scholars have elucidated well the institutional roles of actors in early and high medieval judicial processes—precisely what judges or boni homines or witnesses or presidents of tribunals did—the question of who these figures were as individuals, rather than as representatives of institutional categories, has been less well studied. This is in large measure because of the state of the evidence, which rarely provides useful information about any but the most prominent members of society. The relative density of the documentation from tenth- and eleventh-century Catalonia, however—in the neighborhood of 15,000 records, including at least two hundred "dispute records"—allows for a proposopographical and network approach to judicial processes, with the prospographical category defined very broadly as "participants in judicial processes" rather than a particular institutional role. The question to be explored is whether known individuals performed different institutional roles in different disputes. If such "versatile participants" can be identified (and they surely can, as the case of the "abbot" Geribert—judge in one case, ex parte witness in another, messenger between disputants in a third—shows), the question then becomes if their place in judicial processes had more to do with who they were than with what they did. Such an approach allows for a new analysis of the place of judicial processes in the construction of social order and hierarchies, one that looks at society not as a constellation of officials or social classes, but instead of dynamic, and often very local, interest groups.

The earliest records from several monasteries in the Western Pyrenees contain brief accounts of conflict resolution whose essential elements bear striking similarities: two or more communities violently confronted each other over the use of parts of the territory, and only the physical presence of the Kings of Pamplona and/or the counts of Aragon re-established peace through the ritual setting of limits in the saltus. These accounts suggest two major sets of issues. On the one hand, a point of interest is their role in the subsequent construction of monastic memories and their later manipulation. This requires an examination of texts that is not always made easy by the available, often uneven, editions. On the other hand, the relationship between the legitimation of political power —still in an embryonic stage in the 9th century— and judicial practice can be dealt with in this light. The military chiefs who had emerged in the periphery of the Emirate of Córdoba were in the process of legitimizing their authority within the territory. It is in this context that the first judicial accounts became apparent which linked the king's in situ representation with monasteries of obscure origins.

The rather extreme socio-political form and context in these examples of conflict resolution can also help clearly raise some issues from a comparative perspective. This is specifically the case for other political structures put in place in Christian Spain as well as for more general ones. While the problems concerning territory limits —but not in terms of land as possession— have been the subjects of some valuable anthropological approaches, in medieval studies they have mainly been dealt with from a local and descriptive perspective. However, this is probably a unique vantage point from which to observe the practice of justice as one facet of a broader game of opposites that fractured and reorganized society in the Early Middle Ages.