Medieval violence, the making of law and the historical present

by Philippa Byrne

15 Jun 2020
Journal of the British Academy
22 (pp. 133-154)

Abstract: This article considers how 12th- and 13th-century law codes constructed their relationship to the justice of the past. These codes did not copy past laws unthinkingly, but evaluated them, engaging in a discussion about the appropriate measure of punishment and violence. Medieval legal writing (from Frederick II’s Constitutions of Melfi to Andrew Horne’s Mirror of Justices, across both Roman law and canon law compilations) recognised the duty of the present to weigh up the utility of old laws. Contrary to common historiographical assumptions, medieval jurists had a subtle sense of the history and development of law, going as far as to suggest that history could be understood as defined by distinct periods of punishment; different levels of violence were appropriate to different eras. The article concludes by using Walter Benjamin’s Zur Kritik der Gewalt to evaluate how critiques of past legal violence could be used by medieval rulers as a means of demonstrating the righteousness of their own regime.

Keywords: Justice, Roman law, canon law, Frederick II, Constitutions of Melfi, Andrew Horne, the Mirror of Justices, Walter Benjamin.

Article posted to Journal of the British Academy, volume 8, supplementary issue 3 (Memories of Violence).

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