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Chapter 16 - Nineteenth-Century French Legal History and the Memory of the Middle Ages
- Edited by Flocel Sabaté
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- Book:
- Memory in the Middle Ages
- Published by:
- Amsterdam University Press
- Published online:
- 09 June 2021
- Print publication:
- 28 February 2021, pp 357-378
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Summary
THE NINETEENTH CENTURY saw a high point in the dialectical conflict between civilization and barbarity that began with the eighteenth-century “Enlightened” philosophers. This opposition was decidedly not neutral but moral and exerted a powerful influence on the nineteenth-century view of the recent and more distant past. This represented a worldview. The grand aspiration of European nations was to disown barbarity and create a civilized society. This required certain ideals of unity and virtuous customs, none of which could be instituted without a set of laws wisely and rigorously administered by a strong, centralized state. In such an environment, historians looked back to Antiquity, particularly the Roman world, where, through study of laws, they discovered a society “arranged” by a “state” that enforced the law.
Traditional legal history has concerned itself with the correct application of laws and has attempted to discover the “legal state” of the Early Middle Ages, an institution like the one (they believed) existed before the ruin of the Western Roman world, which could be found in the modern world. I intend to look at the approach of a number of nineteenth-century French historians through one exemplary topic. A core aspect of any legal question concerns ways of resolving conflicts and through this prism I want to focus not on ordeals, judgements, and the like, but revenge or faida.
The “Natural State” of the Early Middle Ages
With this intellectual framework, it is no surprise that French nineteenth-century historiography had already made a value judgement about the medieval judicial system. The “Roman State,” diluted in the last centuries of the Empire, would, according to certain historians, degenerate into a “natural state” in the West. This is an interpretative paradigm, a set of ideas organized through a logic or, if one prefers, a pre-existing framework of references, to analyze the events of the past. So, the theory by which this particular past is interpreted also responds to the conditions imposed by its historical setting.
With regard to the theme of revenge, the context is a typical nineteenth-century debate, loaded with nationalism, that confronted German historians attempting to highlight the sense of justice—not barbarity—of the ancient Germans, and French historians who sought to demonstrate the strong Romanization the Gallo-Roman population had already undergone before the Germanic invasions, compared with the primitive customs the latter introduced into Gaul.
Chapter 7 - The Duel in Medieval Western Mentality
- Edited by Flocel Sabaté
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- Book:
- Ideology in the Middle Ages
- Published by:
- Amsterdam University Press
- Published online:
- 20 November 2020
- Print publication:
- 30 November 2019, pp 175-202
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Summary
THE TWO-PERSON CONTEST known as the “duel” (duellum, Zweikampf, duel, pugna) was customary in England, Italy, Germany, France, and Spain. It was used by the Slavs and the Normans from Sicily and the Crusaders introduced it in Palestine. Like other ordeals, it is definitely not a typical Germanic institution. It is, however, present throughout the history of the West with different nuances and special circumstances that may be evidence, usually camouflaged, of its use up to the early twenty-first century outside the judicial system. Indeed, in medieval and modern literature, there is plenty of evidence for judicial combat.
The duel has occupied a prominent place in historiography. It was considered a practice inherited from the Germanic peoples to regulate their conflicts, affirmed by Paul Fournier and placed in historical context by Jean Gaudemet. It is originally an ordeal, a “primitive and religious trial,” according to Jean-Philippe Levy, and it is mainly attributed to people of the feudal era. It is truly the symbol of the accusatory system: it begins with a complaint and the procedure compels the accused to prove his innocence; the two parties become adversaries subjected to the same obligation.
The duel, also called single combat, was a small-scale mirror of collective combat. There have been two types of duels, as Charles de Smedt wrote in 1894: firstly, the conventional public duel involving two heads of state or army chiefs or two champions chosen by agreement; and secondly, the conventional private duel, which takes place between two individuals without any intervention by public authority, in which conditions are freely agreed to and outside the law. The reasons leading to either type of duel are clearly different: in the public duel, the victory of a nation or an army is at stake, whereas a private duel may be fought over an insult, an enmity, or even as a demonstration of obvious superiority.
Historiographical Approaches
The riepto is closely related to the duel; it is a special procedure that appears in high medieval Spain and is rooted in a previous conflict, that is, the breakdown of peace or truce among members of the nobility.