FORUM: COMMENT

A View from a Distance

Piotr Górecki

Susan Reynolds's article is a culmination and a turning point. It builds on several approaches to medieval law and culture, of which two strike me as especially important. One is a study of legal history as a domain of human activity, especially habitual or routine activity, pursued by a wide range of social groups. The other is a search for the meaning and the criteria of the enormous transition during the central Middle Ages, which Christopher Dawson at the dawn of this subject, and Robert Bartlett in its currently definitive moment, have identified as "the making of Europe."1 The first subject exists above all thanks to the work of Reynolds herself, while the second is an outcome of a number of quite distinct scholarly trajectories, spanning several generations. Apart from some suggestive and implicit links, those two subjects have, over the past quarter century, been pursued separately. Reynolds's article brings them together.	1
In the most direct sense, the piece moves along a path Reynolds first cleared in 1984 with the publication of her book about medieval groups and their significance.2 Eschewing a then-traditional focus on particular kinds of groups—institutions, lordships, or kindreds, reified, as it were, right at the outset of analysis—she focused instead on patterns of action common to all kinds of groups: on those collective practices that, once they become habitual or routine, in an essential sense create groups and constitute them as communities. Although that book's progression from local groups all the way to kingdoms suggests an innovative contribution above all to medieval politics, its conceptual crux is the meaning of law and its transition between the tenth and the thirteenth century. Law, in Reynolds's view, consists in a continuous interplay of two very big phenomena. First is the myriad of collective activities, pursued by all kinds of groups—large and small, local, regional, central, even national—that were communities in her sense of the word. Second is specialized knowledge, whose acquisition and use were themselves activities—activities that, when performed habitually and collectively, created a particular kind of community, namely those learned in the law.	2
This conception of what medieval law is and how it works has several implications, all substantially and explicitly developed in this article. It sharply reorients the position of learning within the medieval legal order. It complements an alternative approach to the study of law as an aspect of behavior, namely, the focus specifically on disputing, which gained currency in the 1970s and 1980s, above all thanks to the work by Fredric Cheyette and Stephen White in the United States and the group associated with Wendy Davies and Paul Fouracre in Great Britain.3 It represents a subtle and sophisticated approach to the study of transition. Avoiding what she calls (here and elsewhere) teleological models of change, Reynolds portrays the rise of learned law as a spectral shift within the two big phenomena that make up the law. That is, both collective practice and specialization were present throughout the medieval period. But over time the latter—as a body of knowledge and as a domain of specialized activity by a particular population—became relatively much more important.4 Reynolds's article is a close study in just how this worked in the past and how it can empirically be diagnosed at present.	3
In contrast to law and communities, the connection of this article to the "making of Europe" seems quite unintended, indeed fortuitous. This has not been an explicit focus of Reynolds's work either in the past or now. Instead, her contribution to the subject becomes visible and explicit from two vantage points, both at first glance quite distant from the article itself: some central assumptions behind her oeuvre considered in its entirety, of which her approach to the law is an instance; and the perspective of particular regions and localities within medieval Europe on which that oeuvre sheds new light. Her framing of the law reflects the two approaches, one methodological, the other substantive, that inform all of her work. The first is a strong and probing, yet always constructive and creative, impatience with currently received central historiographical concepts and categories—and an active search for their rethinking and revision, so they more adequately correspond to the fluid and diverse past realities to which they are intended to refer.5 The second is her focus on the group as the crucial arena of the historical process and as the empirical base for that big conceptual reassessment. Though explicitly revisionist, and sometimes controversial, she has consistently aimed her revisions at the strong, not simplified, variants of the concepts and categories of which she has been critical. She has cast her reassessments with reference to several different regions of Europe. In sum, hers is the kind of scholarship that creates new historiographical spaces, some quite unexpected and visible from far away—medieval Wales or Poland, for instance.6	4
Which brings me to "Europe" and its "making." In the current generation, three authors have contributed to this subject in ways that closely (though, again, not intentionally) converge with Reynolds's work: Jerzy Koczowski in 1984 and again in 1998, Robert Bartlett in 1993, and the late Richard Southern in the first volume of his planned trilogy published in 1995.7 All three portray "Europe" in the central Middle Ages in terms of a dynamic interaction within a nexus of phenomena, or processes, that are essentially comparable across the Continent. Bartlett's range is the widest, spanning the concrete and the material (such as techniques of warfare or cultivation), the structural or organizational (particular kinds of estates, villages, towns, or parishes), and the highly abstract ("culture," broadly conceived). Koczowski and Southern have both focused more specifically on learning. For Koczowski, this is situated (at least as a point of departure) within an expanding network of parishes and parish schools, specifically in East Central Europe. For Southern, this means the schooling offered by the centers of European education in theology, law, and other disciplines to students from all over the Continent.	5
In an important chapter, Southern sketched the resulting dynamic by noting the pragmatic uses to which individual persons who had had at least some exposure to formal learning put that knowledge, in a large number of contexts, throughout twelfth-century Europe.8 The principal subject on which he focused was law—meaning the several legal systems recurrent throughout Europe—and this is the precise area of legal history, understood as a dynamic and culturally unifying process, that Reynolds's article pursues in new directions. It shifts emphasis away from inquiry into formal matters—the curriculum and the schools, or particular legal systems (especially canon and Roman law)—toward the law as a pragmatic tool as well as a specialized body of knowledge, available as a resource in a myriad of very specific contexts of litigation and disputing throughout Europe. Thanks to her article, what becomes interesting is no longer, strictly speaking, whether or not a particular type of law—canon, Roman, customary, other—is learned or used "well," or whether outcomes of litigation or of other conflict are consistent with rules mandated by the formal law, or a host of similar questions which other scholars have asked before. Instead, we seek the ways in which knowledge of the law, however profound or superficial, worked as one of the many resources in the prevention or settlement of conflict, thanks to the mediation of increasing numbers of individuals, all of whom had some exposure to legal training and practice—in schools, in courts, in monasteries or chapters, and elsewhere.	6
There is a fascinating parallel here to Michael Clanchy's recasting, in 1977 and more fully in 1993, of another learned subject, namely literacy.9 Clanchy shifted attention away from what might be called the high end of this skill—the major school, the learned treatise, the big royal or imperial chancery—toward pragmatic use. He focused on interaction with the written word through its viewing, hearing, and speaking, through its physical placement and display, sometimes in conjunction with nonwritten objects (such as seals, or those highly memorable knives employed as modes of authentication),10 and active inscription, ranging from a nonletter mark to use of characters—in short, practices revolving around an area of skill and objects associated with it, along a very wide continuum of mastery of that skill. Clanchy called all this "practical literacy," and Reynolds here shows us its counterpart in the law—what we, paraphrasing, might call the law as a domain of pragmatic action. This article is an example of ascertaining, pinning down as it were, this somewhat elusive phenomenon, first (as usual for Reynolds) by situating it within collective behavior, second by abstracting out of that behavior a meaningful roster of its symptoms.	7
And thus it is not surprising that Reynolds's work along those lines begins with a reconstitution of a dispute. The kind of pragmatic familiarity with the law—canon, Roman, and other—carefully reconstructed here emerges as one of the many "resources" that litigants, their supporters, and others brought to bear strategically on the course of disputing. In contrast, however, to the early work by Cheyette, White, and others, the purpose here is not, strictly speaking, to shed light on the logic of disputing or on the modes of deployment of the law as one such "resource." Instead, it is to present the dispute as one type of collective activity and to cull the pragmatic role of law out of the patterns of that activity. Reynolds then turns to several other, more fragmentary records of pragmatic activity with reference to the law. The result is a list of criteria in terms of which the law at work, in particular places and contexts, can be ascertained: the use (or misuse) of particular words and phrases; the adaptation (competent or otherwise) of formal legal notions to local circumstances and requirements; the standardization of the written legal record itself; and much else—all situated, in the later part of the article, within the lives and activites of particular persons, such as Abbot Samson or Eike von Repgow.	8
These criteria range greatly in terms of the degree of learning they imply. Quite deliberately, they do not distinguish between different venues of learning (such as school, chapter, or court), or levels of substantive competence, or levels of skill; and they stress the malleability, or pragmatic interchangeability, of the formally different major legal systems of twelfth-century Europe. Reynolds's medieval law is a very big tent, with room in it for the author of Glanvill, for Eike von Repgow, or (a bit beyond her "long twelfth century") for the German-born author of the Law of the Poles.11 These are all exemplars of an expert and systematically expressed knowledge, acquired through personal experience but affected by formal learning, of one kind of medieval law, namely, the law specific to a people or a kingdom. Abbot Samson presents an instance of a pragmatic engagement with the law in service of a monastery very similar to Southern's. At the rudimentary end of the spectrum, there are those many Veronese notaries who wrote documents, consulted archives, and formulated arguments.	9
This conflation of several levels of ability, skill, and pragmatic engagement may be controversial. I would anticipate polemics concerning two issues. On both, I am on Reynolds's side. Yet because she herself is gently but clearly argumentative in the placement of her historiographical contribution, let me try to run ahead of the polemic a bit. The first issue has to do with just where the law as she understands it leaves the law understood in the formal sense—as a highly technical and specialized endeavor and body of ideas, requiring a correspondingly complex range of skills, and, as a historical subject today, similarly specialized and conceptually autonomous. Reynolds's warnings against thinking about the law in developmental or evolutionist terms, her shift of attention away from issues of substantive quality of legal expertise or from the significance of difference among the major medieval legal systems, may be interpreted (inaccurately, in my view) as an argument directed against those legal historians to whom such approaches, subjects, or distinctions continue to matter, indeed to define the subject of the law and its history.	10
Second, it is a bit difficult to grasp the lower limit of the kind of specialization that is crucial for the existence of her subject. The upper leaves no doubt: it is quite clear that Eike von Repgow, Abbot Samson, or the many learned or semi-learned clerics who populate Southern's chapter, were actively and pragmatically engaged with the law and collectively embody, indeed are, that subject. The same can be said about persons and groups who used words and phrases evidently drawn from the formal vocabularies of, say, Roman or canon law. But how little of this sort of thing is enough? A Polish example. Around 1200, a monk or a scribe from the monastery at Mogilno in Great Poland recalled that, at the outset of a property claim against the monastery, Duke Mieszko the Old looked through the charters that the monks kept on their premises. The subsequent case was resolved with reference to several kinds of proof: oral, remembered, and written, the latter consisting of one charter that the duke "found" on his quest.12	11
Here we have activities reminding us of Reynolds's Veronese notaries: recourse to a legal argument, reliance on communities of social memory, consultation of an archive. Yet, are such activities instances of a pragmatic engagement with the law in any but the most general sense? In particular, do they suggest the kind of specialization in skill or in knowledge that this article otherwise brings to the fore in innovative ways and in terms of which it specifies professionalization? Although I intuitively agree with Reynolds's decision not to risk getting bogged down in trying to define that latter construct, it seems to me that when the criteria of its ascertainment become this rudimentary, the law in the sense meant here tends to dissolve into an array of vastly broader, and rather different, subjects: disputing in general, literacy and its alternatives, or collective memory.	12
In fact, both concerns point to the strengths of the article. On one level, they are easily disposed. First, Reynolds does not deny the importance of matters that interest technically specialized legal historians; she is simply interested in other problems, which entail different standards of importance. Her antievolutionist or antiteleological sentiment need not, and in my view is not intended to, detract from the validity and value of asking whether, at different times and places, a particular legal system (say, Roman law) or a legal technique (legal maxims, for example) were being used competently, or consistently with one another, or consistently with practice; on the contrary, inquiries along such lines by Peter Stein or Paul Hyams, if anything, converge with, rather than conflict, with her article.13 As for the second issue, she would, I think, happily accept, indeed embrace, my observation about the fluidity of the boundary between the law as she understands it and the major cognate subjects noted earlier; she would identify Duke Mieszko's consultation of the Mogilno archive as exactly an instance of the subject of her article; and she might add that (as she had first demonstrated in her book about towns) meaningful phenomena or domains of reality are not undermined by apparently limiting cases,14 especially when, in our current historiographical understanding, those major cognate subjects themselves blur into one another in exactly the same fashion.15	13
Yet, the two questions are worth pursuing further: the first because it helps situate Reynolds's brand of legal history within legal history technically understood, the second because probing for that lower limit, far from undermining the subject, sharpens it and confirms its historical reality. Let me briefly suggest how this might be done with reference to one particular example, Abbot Peter of the Cistercian monastery at Henryków in Silesia. Abbot Peter was the author of a history of his monastery, written soon after 1268, in which he engaged with the law in ways closely converging with Reynolds's analysis of how this sort of thing happens.16 Peter is interesting in general as one of those many European clerics who match the profile Southern and Reynolds have drawn—Abbot Samson's fellow traveler, as it were17—and in particular because his Book reflects, and itself comprises, pragmatic engagement with the law on several levels: through activity, through forensic argumentation, and through acquired skill and substantive knowledge. These are Reynolds's criteria for the law at work.	14
Apart from what Abbot Peter recorded in his Book, we know virtually nothing about him. Thus, the clearest activity we are able to attribute to him is the composition of the Book itself and, based on what he reports within it, an earlier acquisition of the knowledge the Book conveys. Peter reported that he had drawn his knowledge from groups or individuals who had been directly familiar with important transactions and from his own direct participation and experience, over about four decades preceding the writing. He explicitly intended the Book to present his monks with a level of knowledge of crucial events and relationships affecting the Henryków monastery adequate to protect them from two kinds of legal conflict: proprietary claims to the holdings acquired by the monastery; and formal relationships of association, patronage, and advocacy over the monastery. His Book is therefore an extended forensic document—a reflection of the kind of specialization to which Reynolds calls attention in her article, and itself an example of a specialized activity, namely, interpretation of social and political reality for an adversarial purpose.	15
The Book reflects one kind of learning that Reynolds puts right in the center of scholarly inquiry: acquisition of pragmatic knowledge through extensive personal experience, which is subsequently systematized by personal reflection. Here and elsewhere in her work, Reynolds has reminded us that, after all, people in the Middle Ages thought18—that is, cognitively processed the knowledge available to them, quite apart from the question of where and how they acquired that knowledge. The Book is, on its face, a product of active cognition at work. Quite explicitly and repeatedly, the text presents views, opinions, or beliefs concerning the monastery's past that, to the extent they were accepted by the monks themselves and the surrounding society, threatened his community with legal danger. It then interprets past events and relationships so as to refute those views, opinions, or beliefs, and thereby defuse the danger. Prior to, and by means of, his forensic treatise, Abbot Peter, much like those earlier Veronese notaries, framed an argument, drew on an existing body of knowledge, and weighed alternative interpretations bearing on legal issues.	16
In so doing, he employed several rather more specific skills. He wrote the Book explicitly to persuade his monks (and perhaps other doubting audiences) of the right or truthful interpretation of the potentially dangerous events and transactions, and he used in his work several strategies of invention, arrangement, and narration that seem related to that purpose. The Book is therefore an exercise in forensic rhetoric.19 In some passages, he set up particular arguments by means of unusually sharp confrontations of plausible propositions with their refutations.20 These places suggest a deliberate use of syllogism and dialectic. In many phrases, he imagined the monastery's creation, that is, foundation and endowment, as an act of "authorship," and at one point he expressed the resulting ties of patronage in terms that seem directly drawn from the Aristotelian language of causation and its use in the medieval theory of authorship.21 Yet elsewhere, he invoked a formal norm of Polish land law, to distinguish inheritances from acquisitions, to classify the estates of several important neighbors of the monastery, and, again, to draw out explicit implications of that knowledge for his monks' security.22	17
These are fragments, very modest fragments, of a bigger knowledge. Knowledge of what? How do we describe Abbot Peter's knowledge in its entirety? Thanks to Reynolds, the answer need no longer be limited to the sum of these formally differentiated parts. That is, his engagement with the law is explicable as more than a cumulation of particular skills in rhetoric, dialectic, scholastic metaphysics, and the Polish law of property; and his acquisition of those skills is explicable in terms other than some particular educational venue where such skills may have been imparted—the cathedral school of Wroclaw, for example. Instead, the answer to those questions emerges from that local and regional universe of relationships, events, people, and memories within whose context he used those skills, and to which those skills were serviceable. Use of formally differentiated knowledge was, for him, one of many approaches in his attempt to navigate his fellow monks through the pitfalls of that universe.	18
Abbot Peter is an excellent example of a certain very useful paradox in Reynolds's recasting of the subject of learning and knowledge in medieval society. Considered in the total context of the material he invoked—his vivid reports of people, places, circumstances, turns of fortune, notions of right and wrong, memories, ambiguities, and much else—the traces of formal learning in his work are marginal. This, paradoxically, is the key to their importance. The genius of Reynolds's approach is to sensitize us to the ways in which formal learning, fleeting and rudimentary as it may have been, was meaningfully, and very specifiably, brought to bear on highly pragmatic contexts specific to particular regions, societies, and (in her sense of the word) communities throughout medieval Europe. When the kind of complicated balance of the learned and the contextual that she performs in this article is pursued in a substantial number of places, we will, I think, have a very innovative new chapter in the history of Europe and its making.	19
Piotr Górecki is an associate professor in the department of history at the University of California, Riverside <gorecki@ucrac1.ucr.edu.> Notes 1. Christopher Dawson, The Making of Europe: An Introduction to the History of European Unity (London: Sheed and Ward, 1932); Robert Bartlett, The Making of Europe: Conquest, Colonization, and Cultural Change, 950–1350 (Princeton: Princeton University Press, 1993). 2. Susan Reynolds, Kingdoms and Communities in Western Europe, 900–1300 (Oxford: Clarendon Press, 1984; 2d ed., Oxford: Clarendon Press, 1997). 3. The publications that both open and define this genre include: Fredric L. Cheyette, "Suum cuique tribuere," French Historical Studies 6 (1970): 287–99; Stephen D. White, "Pactum ... Legem Vincit et Amor Iudicium: The Settlement of Disputes by Compromise in Eleventh-Century Western France," American Journal of Legal History 22 (1978): 281–301; Wendy Davies and Paul Fouracre, eds., The Settlement of Disputes in Early Medieval Europe (Cambridge: Cambridge University Press, 1986). See the historiographical survey in Warren Brown and Piotr Górecki, "What Conflict Means: The Making of Medieval Conflict Studies in the United States, 1970–2000," in Conflict in Medieval Europe, ed. Brown and Górecki (Aldershot: Ashgate Publishing, 2003), 1–35. 4. Reynolds, Kingdoms, 12–66. 5. This conjunction of intellect, curiosity, and constructive impatience has been the common thread of her inquiry ever since her first book on the early English towns, through the Kingdoms of 1984, to the major intervention in the debate on feudalism ten years later, and beyond; see her An Introduction to the History of English Medieval Towns (Oxford: Clarendon Press, 1977, repr. 1982), Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Oxford University Press, 1994), and "The Historiography of the Medieval State," in Companion to Historiography, ed. Michael Bentley (London: Routledge, 1997), 117–38. 6. Two contributions about those two frontier regions of medieval Europe that are explicitly indebted to Reynolds's methodology are Rees Davies, "Kinsmen, Neighbours and Communities in the Western British Isles, c. 1100–c. 1400," in Law, Laity and Solidarities: Essays in Honour of Susan Reynolds, ed. Pauline Stafford, Janet L. Nelson, and Jane Martindale (Manchester: Manchester University Press, 2001), 172–87, and Piotr Górecki, "Communities of Legal Memory in Medieval Poland, c. 1200–1240," Journal of Medieval History 24 (1998): 127–54. 7. Jerzy , Europa w XIV–XV wieku [Slavic Europe in the Fourteenth and the Fifteenth Centuries] (Warsaw: Instytut Wydawniczy, 1984); , Europa: Europa -Wschodnia w cywilizacji [The Younger Europe: East Central Europe in the Ambit of Medieval Christian Civilization] (Warsaw: Instytut Wydawniczy, 1998); Bartlett, Making; Richard W. Southern, Scholastic Humanism and the Unification of Europe, vol. 1, Foundations (Oxford: Blackwell, 1995). 8. Southern, Scholastic Humanism, 163–97. 9. Michael T. Clanchy, From Memory to Written Record: England 1066–1307, 2d ed. (Oxford: Blackwell, 1993). 10. See especially Clanchy, From Memory, 38–40, 156–57, 254–55, 258–60; he returns to the significance of the knife in particular in Clanchy, "Medieval Mentalities and Primitive Legal Practice," in Stafford, Nelson, and Martindale, Law, Laity and Solidarities, 83–94. 11. The last is my own addition; for the source, see Józef Matuszewski, ed. and trans., Najstarszy zwód prawa polskiego [The Oldest Compilation of Polish Law] (Warsaw: Wydawnictwo Naukowe, 1959). For Reynolds's own suggestion of these implications in this geographical direction of the Continent, see her "Rationality and Collective Judgement in the Law of Western Europe before the Twelfth Century," Quaestiones Medii Aevi Novae, vol. 5, Tenth Century: Roma, Gallia, Germania, Sclavinia (Warsaw: Instytut Historyczny Uniwersytetu Warszawskiego, 2000), 3–19. 12. Kodeks dyplomatyczny Wielkopolski, ed. Ignacy Zakrzewski and Franciszek (: Towarzystwo Nauk, 1877–1908), no. 33, 1:40–42. 13. Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999); Paul Hyams, "Due Process versus the Maintenance of Order in European Law: The Contribution of the ius commune," in The Moral World of the Law, ed. Peter Coss (Cambridge: Cambridge University Press, 2000), 62–90, especially 86–90 (appendix on maxims). 14. Reynolds, English Medieval Towns, 80–85, 103–4, 108–10; Brown and Górecki, "What Conflict Means," 14. 15. On this kind of thematic affinity, especially in the current generation of the scholarship produced in the United States, see Brown and Górecki, "What Conflict Means," 16–18, 28. 16. Roman Grodecki, ed. and trans., henrykowska. Liber Fundationis claustri sancte Marie Virginis in Heinrichow ( and : Instytut Zachodni, 1949), reissued with a new preface by Józef Matuszewski and Jacek Matuszewski as Liber Fundationis claustri sancte Marie Virginis in Heinrichow, czyli henrykowska (: Muzeum Archidiecezjalne we , 1991), abbreviated below as K.H., with page references to the 1991 edition. The following is documented in my treatments, cited below, of Abbot Peter's engagement with the law. 17. I am most grateful to Susan Reynolds for alerting me to Abbot Samson as one of several clerics worth considering in the placement of Abbot Peter in a broader perspective. 18. Reynolds's basic distinction between (and association of) cognition and learning (Kingdoms, 4–5) is reiterated and developed throughout the first two chapters; see also her "Introduction to the Second Edition, 1997," in Kingdoms, 2d ed., xi–lxxv, at xlvi–xlvii, and the editors' "Introduction," in Stafford, Nelson, and Martindale, Law, Laity and Solidarities, 1–11. 19. Piotr Górecki, "Rhetoric, Memory, and Use of the Past: Abbot Peter of Henryków as Historian and Advocate," Cîteaux 48 (1997): 261–93, at 268–69, 271. 20. Górecki, "A Historian as a Source of Law: Abbot Peter of Henryków and the Invocation of Norms in Medieval Poland, c. 1200–1270," Law and History Review 18 (2000): 479–523, at 481–84; Górecki, "An Interpreter of Law and Power in a Region of Medieval Poland: Abbot Peter of Henryków and His Book," in Building Legitimacy: Political Discourses and Forms of Legitimation in Medieval Societies, ed. Isabel Alfonso Antón (Leiden: Brill, forthcoming 2003). 21. For Peter's descriptions of the monastery's establishment as an act of auctoritas fundationis, see Górecki, "Politics of the Legal Process in Early Medieval Poland," Oxford Slavonic Papers, n.s., 17 (1984): 23–44, at 35–39; Górecki, "Rhetoric," 286–87, 289 (n. 163), and, at that last reference, citation to K.H., chap. 11, 114–15: "licet claustri vestri prime fundationis causa efficiens extiterim me tamen nequaquam ipsius fundationis auctorem dicatis sed ducem." For the identity of the speaker, see the cited articles; for Aristotelian language of causation (causa efficiens) in this context, see Alastair Minnis, Medieval Theory of Authorship: Scholastic Literary Attitudes in the Later Middle Ages (London: Scolar Press, 1984), 5, 28–29, 75–84. 22. Górecki, "A Historian," 482–91, 514–15, 517–18.

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