Desktop version

Home arrow History arrow Officers and accountability in medieval England : 1170-1300

Elective Affinities

If etatisation does not provide an infallible skeleton key for explaining the diverse coherence that characterizes officials’ accountability in the later twelfth and thirteenth centuries, how may it be explained? Implicit in the analysis just given is that the underlying conditions of institutional development, intellectual capability, and public powers’ self-consciousness interacted and mutually strengthened one another when combined with various practices of holding officers to account. That is to say that between these phenomena there was an elective affinity that provides the basis for explaining parallel, ‘vernacular’ developments in multiple fields and regions. The idea of an elective affinity (Wahlverwandtschaft) between phenomena is easy to describe. It suggests (following Weber’s development of the older German tradition), that distinct social, religious, or economic phenomena may have complementary features that, if brought together, can strengthen the parts and reinforce a whole.[1] Although one cannot tell from the standard English translation, an elective affinity between particular patterns of religious belief and practical ethics is Max Weber’s explanation for the relationship between ‘the Protestant ethic’ and the ‘spirit of capitalism’.[2] It is best to avoid the general idea that an elective affinity is simply a kind a ‘operating system’ that two phenomena share.[3] Weber instead stressed the active complementarity between different phenomena as the characteristic link for hypothesizing any such affinity.[4] The whole was greater than the sum of its disparate parts. In Weber’s Protestant case, there is no reason why the affinity he identified could not be produced elsewhere by a work ethic that was not definitively Protestant nor linked to a singularly specific form of capitalism. The more general point concerned the relationship between a (Protestant) sort of belief and an (early modern) form of capitalism. To describe one variation is therefore not to exhaust the potential repertoire of related affinities.[5] There is nothing to preclude similar conjunctures in other places at other times. So for accountability. One finds similar concerns to those articulated in this book expressed distinctively in the Carolingian Empire with its missi, inquisitiones, and stress on responsibility;[6]

through the oaths, frankpledges, and tithings of later Anglo-Saxon England;89 in the inquiries of and relatable to the Domesday Book;90 or in Mamluk Egypt (1250— 1517). The latter is worth pausing at because of its distance from the tradition that links the European parallelisms and because of its specific legal provision for ‘trials of suspicion’ (dalau>ial-tuham).91 Trials of suspicion could be initiated following the investigative initiative of military authorities, governors, or important market inspectors (muhtasib); did not require a plaintiff/accuser; and were undertaken for the purposes of forbidding wrong (hisba), a judgement made by the authorities.92 Here is another ‘vernacular’ version, strikingly comparable with canonical inquisitions specifically. Through these trials torture was also licensed in order to provide for the convictions that could not be secured through regular testimonial procedure (fiqh). Stressing this aspect, Baber Johansen comments that the

introduction of judicial torture accompanies the rationalization of the system of proof and procedure in the Near East as well as thirteenth-century Europe [. . .] I find it hard to believe that jurists living in Europe and the Near East in the thirteenth century simultaneously introduced a process of rationalization of the law accompanied by the legitimation of judicial torture without there having been any mutual influence and exchange.93

It is not clear whether Johansen is talking generally about European legal torture and the systematization of the ius commune in this period, or if he has canonical inquisitions specifically in mind. Certainly the inquisitorial procedure led ex officio by a judge on the basis or rumour or suspicion and justified with reference to some public good is a striking parallel with dalaui al-tuham. So one should stress that in dalaui al-tuham ‘What needed to be proved was not the specific crime as much as the fact that the defendant was suspicious with a history of criminality. “Suspicion”, therefore, became a formal legal category that had to be established in court before 1995); Rosamund McKitterick, Charlemagne: The Formation of a European Identity (Cambridge, 2008), 142—55, and chs. 4—5; Janet L. Nelson, ‘Kingship and Royal Government’, in Rosamund McKitterick (ed.), The Neu Cambridge Medieval History, ii. c.700—c.900 (Cambridge, 1995), 410—27.

  • 89 For ninth- to eleventh-century England see esp. Patrick Wormald, The Making of English Lau: King Alfred to the Twelfth Century, i. Legislation and its Limits (Oxford, 1999), passim; David Pratt, The Political Thought of King Alfred the Great (Cambridge, 2007), passim; Stephen Baxter, Archbishop Wulfstan and the Administration of God’s Property’ in Wulfstan, Archbishop of York: The Proceedings of the Second Alcuin Conference, ed. Matthew Townend, Studies in the Early Middle Ages 10 (Turnhout, 2004), and the texts previously discussed: Rectitudines singularum personarum, Gerefa, and the ‘Institutes of Polity, Civil and Ecclesiastical’. I am grateful to Stephen Baxter for access to a copy of Patrick Wormald’s unpublished draft chapter (c.1990) on ‘The Pursuit of Crime’ from the unfinished second volume of The Making of English Lau, which discusses many relevant issues.
  • Sally Harvey, ‘Domesday Book and its Predecessors’, EHR 86 (1971), and ‘Domesday Book and Anglo-Norman Goverance’, TRHS 5th ser. 25 (1975); R. H. C. Davis, ‘Domesday Book: Continental Parallels’, in Domesday Studies: Papers Read at the Novocentenary Conference of the Royal Historical Society and the Institute of British Geographers, Winchester 1986, ed. J. C. Holt (Woodbridge, 1987).
  • 91 I first came across this legal procedure through Yossi Rapoport’s ongoing work on the legal history of the Mamluk Sultanate and am grateful to him for references to Baber Johansen’s work.
  • 92 Baber Johansen, ‘Signs as Evidence: The Doctrine of Ibn Taymiyya (1263—1328) and Ibn Qayyim al-Jawziyya (d. 1351) on Proof’, Islamic Lau and Society 9.2, Evidence in Islamic Lau (2002), 168-93 at 190-1.
  • 93 Johansen, ‘Signs as Evidence’, 193. Cf. Lewis, ‘On Not Expecting the Spanish Inquisition’.

the fact-finder could use these procedures [i.e. summary means, including imprisonment and beating].’[7]

Michael Cook in his study of individual Muslims’ private responsibility to ‘command right and forbid wrong’ has noticed other relevant medieval European/ Islamic parallelisms.[8] Focusing on Aquinas, Summa Theologiae, Ila-IIae q. 33 a. 1—8, Cook notes: ‘the duty of fraternal correction modified by material considerations (time, place); the counter-obligation to avoid investigating others’ lives; the general nature of the charitable obligation to correct irrespective of relative status; the burden to do so privately unless there is a public interest reason for its publicity; and further, if private reproof is ultimately unsuccessful, that public reproof should be undertaken’. Amongst differences, Cook notes that Aquinas is dogmatic about the obligation to correct irrespective of the consequences (where Islam is more accommodating), but lacks a general responsibility of physical reproof (as distinct from verbal reproof)—which Islamic thought has (correction ‘with the hand’).[9] Broader examination of the Western material beyond ‘high grade’ thinkers such as Aquinas would certainly reveal a wider medieval story. Ibn Taymiyya is certainly helpful in extracting it. As well as his discussions of ‘trials of suspicion’, Ibn Taymiyyas writings stress the importance of cost-benefit judgements when forbidding wrong and commanding evil for communal ends.[10] That mode of thinking bears strong comparison with the same cost-benefit decision-making which characterized both the legislation and the practice of canonical inquisitions.

Cook and Johansen come to different conclusions, though, about the meaning of such similarities. Johansen believes that the legal similarities must be explicable through direct European-Egyptian influence. Cook allows that ‘monogenetic’ explanations may indeed be the answer (however unprovable), but concedes too that there may be ‘an elective affinity between forbidding wrong and monotheism’. The two complement and strengthen each other. Cook also acknowledges, however, that the doctrinal drivers one might propose for such an affinity (God’s righteousness, his involvement with the world, and a belief in communal, fraternal correction) do not fit quasi-monotheistic Zoroastrianism, which despite its highly moralistic worldview had a strong disposition against correcting oth- ers.[11] Perhaps though this is to hope for too tight a set of infallible parallelisms.

It is more fruitful to follow Cook’s Weberian line of thought. Similar practices may originate independently given similarities of local need and similarities of religious-socio-political structure.[12] This is surely the deeper logic in explaining the parallelisms between, for instance, dalawi al-tuham and canonical inquisitions and infamia. The advantage of this approach historiographically is that one cuts knotty (and sometimes chauvinistic) debates about priority and invention in relation to given practices. It may also help to avoid the ‘wood for the trees’ problem discussed on p. 226: i.e. a text that showed the definitive transmission of European inquisitorial practice to Mamluk Egypt would still need to explain why it was attractive and feasible to Mamluk rulers, adminstrators, and jurists. One is missing the wood for the trees if one stops at a precedent/source to ‘explain’ a given transmission.

Similarities within Europe may be understood on a similar basis. There were no European patents pending on the use, deployment, or fact of inquisitiones, accounts, audits, infamia, scrutinia, end-of-tenure justifications, fixed-term appointments, or regional rotation of officers.[13] In China the regulation of local magistrates by fixing tenures of one to two years, and their geographical rotation, dated at least to the Qin and Han (respectively 221—206 вс, 206 bc—ad 220). Debate about such measures was of comparable duration. In China it was still being debated in the second half of the thirteenth century, much as it was in late medieval Italy.[14] Late Roman tax registers bear similarities to the record of Domesday Book, but a direct causal connection is not per se therefore apparent.[15] Anthropologists in contemporary northern Nepal have detailed the end-of-term accountability or trial of village elders in Mustang province, a procedure rather reminiscent of the sindacatio of podesta, to which it is surely unrelated.[16] This is not to be flippant about particular connections. Investigating concrete links between one usage and another clarifies some of the ways in which ideas were disseminated, but other explanations may still be needed when analysing the context in which such connections flourished, the interests that they served, and the dispositions that made them possible.

  • [1] Michael Lowy, ‘Le Concept d’affinite elective chez Max Weber’, Archives de sciences sociales desreligions 49 (2004), 93—103 esp. 94—5, 99—102. References to Weber’s usages can be found in RichardHerbert Howe, ‘Max Weber’s Elective Affinities: Sociology Within the Bounds of Pure Reason’,American Journal of Sociology 84 (1978), 366—85 at 366; also Hubert Treiber, ‘“Elective Affinities”between Weber’s Sociology of Religion and Sociology of Law’, Theory and Society 14 (1985), 809—61at 810-12.
  • [2] 84 See ‘Die protestantische Ethik und der Geist des Kapitalismus’, in Gesammelte Aufsatze zurReligionssoziologie 1 (Tubingen, 1988, repr. of 1920 edn.), 83, 145. Cf. The Protestant Ethic and theSpirit of Capitalism, trans. Talcott Parsons (London, 2001), 49, 88. The few uses of the term in theoriginal do not fully reflect its centrality to Weber’s explanation.
  • [3] So Pierre Bourdieu (e.g.) seems to assimilate Wahlverwandtschaft to the idea of a habitus, whichis for him a style of thinking, following Erwin Panofsky, that could explain the aesthetic parallelsbetween gothic architecture and scholastic thought: ‘Postface’ to Erwin Panofsky, Architecture gothiqueet pensee scolastique, trans. Pierre Bourdieu (Paris, 1967), 135-67 at 135, and on habitus, 151-2,157-67.
  • [4] 86 See Max Weber, Wirtschaft und Gesellschaft: Grundriss der Verstehenden Soziologie, ed. JohannesWinckelmann, 5th edn. (Tubingen, 1972), 201: ‘Wohl aber laflt sich Allgemeines uber den Gradder Wahlverwandtschaft konkreter Strukturformen des Gemeinschaftshandelns mit konkretenWirtschaftsformen aussagen, d. h. daruber: ob and wie stark sie sich gegenseitig in ihrem Bestandebegungstigen oder umgekehrt einander hemmen oder ausschlieflen: einander “adaquat” oder “inada-quat” sind’.
  • [5] There is an interesting parallelism here with Aby Warburg’s fascination with the meaning andreception of the same artistic motif erupting in different contexts (such as the ‘maenad’s’ flowing dressin Ghirlandaio’s fresco in S. Croce, Florence).
  • [6] Stefan Esders, ‘Die romischen Wurzeln der fiskalischen inquisitio der Karolingerzeit’, inGauvard (ed.), LEnqUete au Moyen Age, 13-28; Mayke de Jong, The Penitential State: Authority andAtonement in the Age of Louis the Pious, 814—840 (Cambridge, 2009), ch. 3; Abigail Firey, A ContriteHeart: Prosecution and Redemption in the Carolingian Empire (Leiden, 2009), passim; Paul Fouracre,‘Carolingian Justice: The Rhetoric of Improvement and Contexts of Abuse’, in La giustizia nelPaltomedioevo (secoli v—viii), Settimane di studio del Centro italiano di studi sull’alto medioevo 42 (Spoleto,
  • [7] Mohammad Fadel, ‘Adjudication in the Malikl Madhhab: A Study of Legal Process in MedievalIslamic Law’, 2 vols. (Ph.D. thesis, University of Chicago, 1995), 192, but also 184—99 esp. 190—9. See also Fadel, ‘Proof and Procedure in Islamic Law’, in Stanley N. Katz (gen. ed.), The OxfordInternational Encyclopedia of Legal History, 6 vols. (Oxford, 2009), iv. 427—31.
  • [8] Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge,2010). Cook excludes rulers’ and censors’ functions in commanding right and forbidding wrong (xii).
  • [9] 96 Cook, Commanding Right and Forbidding Wrong, 573—9, for ‘correction with the hand’ seeindex s.v. ‘hand’ and on the division of labour of the ‘three modes’ of correction (hand, mouth, heart), esp. 474, 583.
  • [10] 97 Baber Johansen, ‘A Perfect Law in an Imperfect Society: Ibn Taymiyyas Concept of “Governancein the Name of the Sacred Law”’, The Law Applied: Contextualizing the Islamic Shari’a, ed. P. Bearman,W. Heinrichs, and B. G. Weiss (London, 2008), 259—94 at 282—4.
  • [11] 98 Cook, Commanding Right and Forbidding Wrong, 578—82.
  • [12] Cf. Chris Wickham on inventing desmesnes, Framing the Early Middle Ages: Europe and theMediterranean 400—800 (Oxford, 2005), 273: ‘To use a Darwinian image: I see the desmesne as alittle like the development of the wing: separately pterodactyls, birds, and bats evolved wings fromdifferent sets of body parts to meet the same sort of environmental needs and opportunities. We seetheir wings as analogous, and all three can/could certainly fly, but the three developments are actuallyentirely unrelated, and could in principle recur in different ways again.’
  • [13] por гре creativity of ‘un-Romanized’ Italian law (including the use of publica fama) ChrisWickham, Courts and Conflict in Twelfth-Century Tuscany (Oxford, 2003), passim. For parallel arguments about the development in the later twelfth and thirteenth centuries about a general capacityfor judicial abstraction see Alain Boureau, ‘Droit naturel et abstraction judiciaire. Hypotheses sur lanature du droit medieval’, Annales. Histoire, Sciences Sociales 57 (2002), 1463—88, his explorationof this in England in Loi du royaume; also John Hudson on the common law in the 1170s and theemergence of a novel royal ‘form of legal expertise [. . .] displaying abstraction, generalisation, sustained legal reasoning’, in ‘From the Leges to Glanvill Legal Expertise and Legal Reasoning’, in StefanJurasinski, Andrew Rabin, and Lisi Oliver (eds.), English Law before Magna Carta: Felix Liebermannand Die Gesetze der Angelsachsen (Leiden, 2010), 221-49 at 245.
  • [14] See Ma Duanlins (1254-?), negative judgement in his Comprehensive Study of Literary Remains,excerpted in William Theodore de Bary and Irene Bloom (eds.), Sources of Chinese Tradition, i. Fromthe Earliest Times to 1600, 2nd edn. (New York, 1999), 665. For Italy see Aurelio Lippo Brandolini’sc. 1490 Republics and Kingdoms Compared, ed. James Hankins, I Tatti Renaissance Library 40(Cambridge, 2009), 76-86.
  • [15] See Davis, ‘Domesday Book: Continental Parallels’, 16-17; Harvey, ‘Domesday Book andAnglo-Norman Governance’, 186-8 explains the variable ploughland figures in Domesday by citingboth Roman (jugum) and pre-/post-1086 (bovate, carucate, iugum, sulung examples of fiscal units offixed value, but not fixed area.
  • [16] Charles Ramble, The Navel of the Demoness: Tibetan Buddhism and Civil Religion in HighlandNepal (Oxford, 2008), ch. 10. I am grateful to him for discussion.
< Prev   CONTENTS   Source   Next >

Related topics