Thanks for yesterday’s discussion on judicial duels, everyone. It helped shake loose some thoughts. I now think it’s safer to say that by 1350 the judicial duel was dead in every Italian system of law except military law (see below). Now I have to decide if there’s any distinction between a duel and a judicial duel in Italy between 1347ish and the early sixteenth century.
In Italy circa 1350, multiple systems of law operated in parallel. Church courts oversaw ecclesiastical matters according to canon law and the courts of cities-whether run by a commune or a magnate—ran on a mix of unwritten customary tradition, old Lombard laws, imperial edicts and local statutes. The law schools of universities studied mostly Roman law and their graduates sometimes inserted it into rulings in the secular courts when other precedents were lacking. There were also a multitude of private arbitration services, using more or less the same law as the secular courts. At this point, trial by combat was dead in all of these systems of law.
The one system where it wasn’t dead yet was military law, the law of how soldiers and armies conducted themselves. There isn’t a lot of scholarship on this branch of law but Maurice Keen has written a bit and Steve Muhlberger has looked at some French examples. The problem with military law was that in Italy it was entirely customary law. There were no statutes, just remembered precedents. In Italy, the judges were not the professional jurists who had taken over in other Italian courts, they were military commanders. (Sometimes they could be one of those noble magnates wearing his commander-in-chief hat.) Unlike most other Italian courts, there was not even a sporadic attempt at recordkeeping, just the observations of the occasional chronicler when a case came to his attention.
Military law was also based only loosely in geography. The military law practiced in Italy had more in common with the French law of arms that would later be described by Honorat Bovet, Christine de Pizan and Geoffroi de Charny than with the laws of any Italian city.
The system of military law made Giovanni da Legnano uneasy. He was an academic trained in the Roman law tradition, which required written texts. So he tried to retcon it into some of the existing statute law. But this leads him to conclude that duels are illegal under canon and Roman law, and only allowed under Lombard law in certain circumstances that don’t actually coincide with the reasons that duels were happening in real life by his time. (The real life reasons seem to have included such cases as “because we felt like it” and “dude was a mouthy jackass,” neither of which were actionable by combat under Lombard law.) He also insists that duels are fought with clubs, which they weren’t anymore by his time. We don’t get a proper treatise on military duels as they were actually practiced until Paride del Pozzo, and after him it’s not long before they escape anything resembling a legal system.
If you know someone who wants a thesis, the military law of duelling as it was actually practiced between 1300 to 1550 is a rabbit hole I should probably try not to fall too far down myself.
Thanks for this, Ariella!
No comments:
Post a Comment