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Book Review
| Chris Wickham, Courts and Conflict in Twelfth-Century Tuscany, Oxford: Oxford University Press, 2003. Pp. xxi + 353. $85 (ISBN 0-19-926586-0).
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| Although it is mystifying why we had to wait so long for a book like this to be written, the good news is that Chris Wickham is the one who wrote it. Part Annaliste regional monograph, part legal ethnography, Courts and Conflict surveys all relevant sources from an extensive territory to reconstruct in as much detail as possible that region's practices of dispute-settlement. It is not, of course, simply a matter of adding up evidence. What most impresses here is Wickham's intelligence, in both his questions and his design. The region he chose is the march of Tuscany, partly because of its wealth of evidence, but also because a balance of similarities and differences within the region allows productive, controlled discriminations to be made. The time period (the eleventh and twelfth centuries) begins with old-fashioned placita and ends with the well-articulated legal systems of communes and papal judges delegate, allowing us to inquire how and why this transformation occurred. Tuscany as a whole was open to influences from the empire, Rome, and the schools of canon and civil law, which makes it possible to see how these different influences affected law as actually practiced locally. Within Tuscany, Pisa offers an example of early communal institutions within a commercially active and imperializing city, in which the commune made a conscious decision to Romanize its procedures. Lucca, though also an early commune and exposed to many of the same cultural influences as Pisa, refused to Romanize. And in contrast to both Pisa and Lucca, Florence developed communal institutions late and did not control its contado, so that the Chianti and Fiesole remained a territory of small signorie and a few great monastic lordships. Such differences within a single region allow Wickham to pose a variety of important questions. Why did some cities Romanize their legal systems and others did not? What was the true impact of learned jurisprudence on actual legal practice? How did disputes actually get settled (and settlements enforced) when neither communal courts nor early papal judges had much power to sanction their judgments? |
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Among myriad arguments of great detail and nuance, Wickham shows that there were quite distinctive styles of argumentation in the different cities, Pisans delighting in complex argument about law, Luccans preferring narratized assertions of fact in which principles were assumed. Pisans gave themselves fully over to Roman law forms of action (and exceptions to actions), though very early the Roman law citations became somewhat rhetorical and pro forma. In contrast, Luccans admitted only broad and superficial Roman law categories. The difference, Wickham believes, was at root cultural: Pisans seem to have wanted to accentuate their Romanness as a mark of their distinction among Italian cities; Luccans cared more about continuity with Lombard/Carolingian law. As for the Chianti and Fiesole, ad hoc arbitration, outside any institutional aegis, was the most common form of dispute processing. Disputes there also tended towards greater violence (though such violence was invariably limited and strategically focused). Despite such differences, the commonalities are even more important. All dispute processing was in essence and form arbitral, for though these arbitrations could be scarcely distinguishable from judgments (awarding one party full right and even holding parties contumacious), all still required both parties to agree to the court's cognizance. Wickham also emphasizes that twelfth-century disputing had large components of strategy: there were so many different kinds of courts and settlements that parties could make deliberate choices about how to process a grievance or a claim. For example, the local standing of communal courts made appeals from its arbitrations and judgments difficult, whereas papal justice permitted endless appeals on the flimsiest of grounds. As a result, those who really wanted a dispute settled or those in a position of strength would tend to choose a communal court; those with weak cases would use papal procedures to harrass a rival into compromise. Wickham's finest pages concern fama publica. Wickham sees it first of all as a local consensus about facts, argument, and values—the embodiment of "common sense" that allowed Luccan parties and witnesses to narrate facts in a way that implied arguments. More subtly, he argues that ritual, public action, and violence were intentionally designed to establish or force a fama favorable to one's own interpretation of events: hence, the public acts and formal words of investiture by a winning party after a dispute over church patronage, or the publicity of blatant acts of encroachment by a party who wanted everyone to see that a rival had backed down. |
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Without wanting to detract anything from the excellence of this book, I do have my criticisms. Wickham's emphasis on the strategic aspects of disputing is all to the good and reflects the best recent ethnology; but in choosing, for his ethnographic authorities, Pierre Bourdieu and Simon Roberts (seemingly canonical for historians like Wickham), he has chosen the least political and contentious models possible. Had he chosen Laura Nader (for some reason rarely cited by medieval historians), he would have had access to much more muscular examples of how advantaged litigants can use law and disputing to amass power. In fact, Wickham's analysis of Tuscan judicial practice sometimes sounds too idyllic. In his eagerness to discredit the idea that, lacking state-sanctioned powers of coercion, early medieval law was violent, he quite purposely reduces acts of violence to mere strategies, euphemistically calling them "direct action" (which works, incidentally, remarkably like old-fashioned "seisin.") This is plausible, in some cases, particularly when Wickham notes that disputants seem to have consistently stopped short of the outright killings that would have escalated conflicts. On the other hand, people in these disputes were killed, maimed, and humiliated. One wonders whether a less residually functionalist historian would have examined these same sources (or perhaps looked at entirely different kinds of sources) and found a culture of vengeance and insult. In this sense, Wickham's notion of law still seems too autonomous, the sources within his purview still too exclusively "legal." True, he does cite Bourdieu's "habitus" prominently; even so, whereas Bourdieu's habitus was generalized throughout a culture's practices, Wickham redefines habitus until it is far more specific, far more specifically legal. His analysis might have gained from a rebroadening of habitus; for then one might see how common assumptions that played out in other cultural arenas shaped the culture specific to disputing. In particular, I wonder if he would not find that one of the reasons for the popularity of courts is that courts allowed people to fight by other means, because arguing in court was a protected and strategic extension of fighting out of court. In this view, there would be no paradox between fighting and litigation: they would be seen as expressions of the same habitus. For these reasons, Wickham's readers should also consult the wonderful article by Franz-Josef Arlinghaus on northern Italian law courts, Arlinghaus arguing that a major reason for their success was that they created an arena and procedures which minimized occasions for the kinds of direct, unmediated confrontations that allowed disputes to escalate into open and bloody conflict ("From 'Improvised Theatre' to Scripted Roles: Literacy and Changes in Communication in North Italian Law Courts [Twelfth-Thirteenth Centuries]," in Charters and the Use of the Written Word in Medieval Society, ed. Karl Heidecker [Turnhout: Brepols, 2000], 215–37). |
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| Geoffrey Koziol
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| University of California, Berkeley |
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