Medieval Church Law and the Origins of the Western Legal Tradition: A Tribute to Kenneth Pennington

423 Pages·2006·2.662 MB·English

by  Wolfgang P. Müller, Mary E. Sommar

Medieval ChurCh law
and the Origins Of the
western legal traditiOn
kenneth pennington
Medieval ChurCh law
and the Origins Of the
western legal traditiOn
A Tribute to Kenneth Pennington
n
edited by
Wolfgang P. Müller & Mary E. Sommar
The Catholic University of America Press
Washington, D.C.
Copyright © 2006
The Catholic University of America Press
All rights reserved
The paper used in this publication meets the minimum requirements of
American National Standards for Information Science—Permanence of
Paper for Printed Library Materials, ansi z39.48-1984.
∞
Library of Congress Cataloging-in-Publication Data
Medieval church law and the origins of the Western legal tradition :
a tribute to Kenneth Pennington / edited by Wolfgang P. Müller &
Mary E. Sommar.
p. cm.
Includes bibliographical references and index.
isbn-13: 978-0-8132-1462-7 (cloth : alk. paper)
isbn-10: 0-8132-1462-9 (cloth : alk. paper) 1. Canon law—History.
2. Law—Europe—History—Sources. I. Pennington, Kenneth.
II. Müller, Wolfgang P., 1960– III. Sommar, Mary E., 1953– IV. Title.
kbr190.M43 2006
262.9'2—dc22
2005033358
Contents
n
Preface ix
Abbreviations xi
Introduction: Medieval Church Law as a Field of Historical Inquiry, 1
wolfgang p. müller
part one. Western Church Law in an Age
without Jurists, ca. 500–1140
1. Kanonisches Recht und Busspraxis: Zu Kontext und Funktion des
Paenitentiale Excarpsus Cummeani, ludger körntgen 17
2. Zu Effektivität und Aktualität von Reginos Sendhandbuch,
wilfried hartmann 33
3. Zur Entstehung des Sendgerichts im 9. Jahrhundert, rudolf schieffer 50
4. Ein Kanonist bei der Arbeit: Kleine Rechtstexte aus Codex Barcelona,
Archivo de la Corona de Aragón Ripoll 77, gerhard schmitz 57
5. Vengeance and Law in Eleventh-Century Worms: Burchard and the
Canon Law of Feuds, greta austin 66
6. Gedanken zum Institut der Chorbischöfe, jörg müller 77
part two. The Formation of Canonistic Theory:
Authors and Texts, ca. 1140–1350
7. Neither Slave nor Free: Theology and Law in Gratian’s Thoughts on the
Definition of Marriage and Unfree Persons, anders winroth 97
8. Reos sanguinis [non] defendat ecclesia: Gratian, mit einem kurzen
Blick erhascht?, titus lenherr 110
vi Contents
9. Twelfth-Century Scholarly Exchanges, mary e. sommar 123
10. Notas sobre las introducciones In prima parte agitur y Hoc opus inscribitur,
carlos larrainzar 134
11. A Fragment of Compilatio prima at Columbia University,
robert somerville 154
12. Die Phi.-Glossen der Collectio Cassellana, peter landau 159
13. ‘Mute Dogs, Unable to Bark’: Innocent III’s Call to Combat Heresy,
keith h. kendall 170
14. Johannes Faventinus on Marriage (With an Appendix Revisiting
the Question of the Dating of Alexander III’s Marriage Decretals),
charles donahue, jr. 179
part three. Canonistic Doctrine in Practice: Courts
and Procedures, ca. 1140–1500
15. The Advocate’s Dilemma: What Can You Tell the Client?
A Problem in Legal Ethics, james a. brundage 201
16. L’usuraio, il testamento, e l’Aldilà: Tre quaestiones di Marsilio Mantighelli
in tema di usura, orazio condorelli 211
17. Ein neues Kapitel in der Geschichte des kirchlichen Strafrechts:
Die Systematisierungsbemühungen des Bernhard von Pavia (†1213),
lotte kéry 229
18. Summarischer Syndikatsprozeß: Einflüsse des kanonischen Rechts
auf die städtische und kirchliche Gerichtspraxis des Spätmittelalters,
susanne lepsius 252
19. Fonti per la storia della giustizia ecclesiastica medievale a Siena,
mario ascheri 275
20. Barbara Zymermanin’s Two Husbands, ludwig schmugge 289
part four. Canonists in Conversation with the Wider World
21. L’origine et la diffusion de l’adage canonique Necessitas non habet legem
(VIIIe–XIIIe s.), franck roumy 301
22. Innocent III, Huguccio de Ferrare et Hubert de Pirovano: Droit canonique,
théologie et philosophie à Bologne dans les années 1180,
charles de miramon 320
Contents vii
23. Considerazioni sulla pervasività della religione nella società e negli
ambienti di studio universitari in età tardo-medievale,
manlio bellomo 347
24. Il diritto canonico, fonte della giurisprudenza occidentale nell’Ungheria
e nella Polonia del medioevo, péter erdö 357
25. Hohfeld on Ockham: A Canonistic Text in the Opus nonaginta dierum,
brian tierney 365
26. Thomas More and the Canon Law, r. h. helmholz 375
Bibliography of Kenneth Pennington’s Published Works 389
List of Contributors 399
Index 401

Preface
n
On October 6, 2006, Kenneth Pennington celebrates his sixty-fifth birthday. The
present volume, with contributions from his teachers, colleagues, friends, and former
doctoral students, was compiled to honor him on this occasion and as a tribute to his
outstanding scholarly and academic achievements.
From his earliest days as an historian, Kenneth Pennington’s research interests have
focused on questions about Church Law and the Origins of Western Jurisprudence, a life-
long pursuit that is recalled in the title of this book. Ken’s scholarly agenda took shape
under the influence of his principal academic advisers, who are themselves among the
leaders of the modern study of medieval canon law. Mentored by James Brundage, Ken
received his master’s degree in history from the University of Wisconsin in 1967; he then
moved to Cornell University where he completed his Ph.D. in 1972 under the supervision
of Brian Tierney. Ken’s post-doctoral years were marked by prolonged visits to Stephen
Kuttner’s Institute of Medieval Canon Law in Berkeley, California. Kuttner’s exacting
standards of manuscript study awakened in Ken an enduring fascination, not only with
the development of medieval legal doctrine, but also with intricate philological questions
related to the authorship, genesis, and transmission of important juristic texts.
While still completing his doctorate, Ken joined the department of history at
Syracuse University as assistant professor in 1971 and remained there for the following
three decades. In 2001, he transferred to his current academic home and became the
Kelly-Quinn Professor of Ecclesiastical and Legal History at The Catholic University of
America in Washington, D.C. Through years of successful teaching, writing, and far-
flung organizational activities, Ken built for himself an international reputation as one
of the foremost experts in the history of medieval jurisprudence. Graduate students
worldwide who are exploring this subject cannot help but be aware of his name and of
his role as a key figure in the field. Ken is indeed very widely known: he is the author
of numerous learned articles and has edited any number of books and journals. He has
also produced two major scholarly monographs, one of which analyzes the twelfth and
thirteenth-century canonists’ teachings concerning the relationship between the Pope
and Bishops (1984); the other explores late medieval jurists’ reflections on the proper bal-
ix
x Preface
ance between the sovereign will of The Prince and the Law (1993).1 Ken conducted much
of the research leading up to these two works while on sabbatical in Florence (1980–81)
and in Munich (1985–87), time he also used to establish close and enduring professional
friendships with German and Italian medievalists, among them several members of the
Monumenta Germaniae Historica. Ken has also played a prominent role as host or co-
host of the quadriennial International Congress of Medieval Canon Law, first at Syracuse
University in 1996 and then, together with Uta-Renate Blumenthal, at The Catholic Uni-
versity of America in 2004. Ken’s great charm and tireless work as a promoter of inter-
national gatherings have also been in demand in places outside of the United States. In
Italy, perhaps his favorite European destination, he has acted (since 1993) as co-director
of the International School of the Ius commune, together with Manlio Bellomo conduct-
ing annual sesssions at the Ettore Majorana Center in Erice, Sicily.
Ken’s impact on the scholarly community is, of course, far too great to be measured
within the covers of a single book. Our volume offers but a small selection of potential
contributors and topics, in an attempt that barely reflects the range of his interests and
of his personal ties. Some of the authors remember him as an undergraduate and as a
graduate student at Wisconsin and Cornell, and in Berkeley. Others came to know him
later as his own graduate students, or as students from other universities to whom Ken
provided advice and support. Still others have been engaged in scholarly exchanges
or have been contributors to one or more of Ken’s many editorial enterprises. It is in
this last capacity that Ken has repeatedly collaborated with David McGonagle, director
of Catholic University of America Press. They have long shared responsibility for the
publication of two series, the monographs printed as part of the Studies in Medieval and
Early Modern Canon Law (since 1987) and the History of Medieval Canon Law, co-edited
by Ken and Wilfried Hartmann (since 1988). When we asked David to lend his support
to a Festschrift in Ken’s honor, he immediately threw his full weight behind the project.
Our most heartfelt thanks go to him and to the editorial staff of CUA Press, especially
to Susan Needham who helped us resolve difficult problems of copy-editing in endless
telephone conversations. We also wish to express our gratitude to Ken’s wife, Marlene,
and to Grace-Ann Lewis of the Catholic University of America staff. As work on the
volume progressed, we have relied on their vigilance as our covert agents, to provide us
valuable ‘private’ data about Ken and his latest whereabouts.
The editors, contributors, and all those active ‘behind the scenes’ hope that the
result of their concerted efforts reaches Ken as a token of their affection and as a sign of
their profound professional respect.
WPM & MES
1. For a full list of Kenneth Pennington’s published works, see his Bibliography, pp. 389–97.