The comments on a recent post at A Corner of Tenth Century Europe have morphed into a discussion on admissions to Oxbridge and whether or not candidates from state schools are disadvantaged. As someone who went to Oxford from a comprehensive school, I’ve added in my opinion, but in many ways the state/public school issue is a red herring. L, my daughter is just five and three quarters, and has one year of full-time education (a reception year at a local primary school). And yet her chances of going to Oxbridge are already vastly greater than many of her classmates.

Along with any inherited advantage in intellect she has (and I don’t know exactly how much that is), she’s also had the benefit of a lot of attention in her early years, both from us and from good quality childcare. Raised in a household full of books and read to a lot, she’s picked up voracious reading almost automatically. She gets taken along on holidays to the museums, castles and places with exciting scenery that we enjoy. During her childhood, she will thus get from us not only the support that any stable family can provide, but a level of cultural capital that many children don’t get. If she is having problems with her homework, we can between us probably help her; we can make sure that her subject choices at school don’t cut down her future academic prospects unduly. And although we’re not rich, we have enough money to spend on her support as required. When she needed speech therapy we could pay for private treatment rather than wait for the NHS to provide it. If she turns out to have artistic or (less likely) sporting talent we can probably afford to pay for lessons or equipment.

All this means that L has a good chance (if she wants to) of getting to a high-ranked university. If she is academically gifted, she also has a higher than average chance of getting to Oxbridge. What both my husband and I, as Oxford graduates can offer is not so much inside information on how to get in (since the admissions system constantly changes) as a more general understanding of Oxford and Cambridge. Perhaps most important is the proof we can offer that ‘people like us’ can go to Oxbridge, that it is not solely for those from a select few schools or with a particular accent.

L will get all these advantages without us needing to be particularly pushy. If we were really determined that she should go to Oxbridge rather than anywhere else, there are further things we could do to boost her chances. We could encourage her to apply for the less popular subjects and to the less popular colleges. We could pay for extra tutoring in some subjects, or for her to go on holiday courses etc. We could network and find people who had studied or taught her particular subject for her to meet. We could coach her in interview techniques. All this might boost her chances a little further, but it probably wouldn’t make a major difference.

Or we could spend thousands of pounds a year to send her to a public school (which would make a more substantial difference). But the fact is that even if we could afford to do that, we don’t really need to. If L wants an academic education she will be able to get a good one, either at Oxbridge or somewhere else. Her friends at school, who live in council houses, whose parents have lived in the same area all their lives and would feel uncomfortable away from it, who live on below average income, will probably not get that kind of higher education even if they have the aptitude for it.

Any simple demands to aid ‘state school’ applicants to Oxbridge will probably largely benefit children like L rather than those starting from a more disadvantaged background. Only measures targeting those from lower social classes and educational upbringing in a far more careful and long-term way will make a real change in which five year olds are on track for Oxbridge.

As I said in the last post, making assumptions about the existence of ‘canon law’ in the ninth century doesn’t seem very helpful. One big problem, for example, is that vaguely legal events in which bishops are involved get discussed in terms of ‘jurisdiction’, with the assumption that a consistent decision is being made about which of two legal systems someone should be subject to. It’s more useful instead to start from the question of why bishops and synods get involved in ‘personal’ cases (as opposed to property disputes), since that is a question that the sources at least sometimes do tell us. I think there are three ways in which bishops and synods get involved in such matters:

1) Cases which involve bishops and their subordinates (both secular clergy and religious men and women).

It seems to be perfectly normal that bishops discipline their subordinates, including judging their cases (as referred to, for example, in the episcopal capitularies). Similarly, a synod of bishops could give a trial to a bishop accused of some crime, and in the ninth century the Pope was clearly claiming the right to judge some cases of episcopal behaviour.

This area looks the most like the church courts of the later period: bishops making judgements on cases involving church personnel because it is their right to do so. However it’s not clear in the period that such matters had to be dealt with by bishops and that secular courts could not be involved. It’s useful to look at the deposition of bishops in the ninth century, because those are the most prominent cases. The bishops who were accused in 818 after the conspiracy of Bernard of Italy (including Theodulf of Orleans) were deposed by ‘synodal decree’ according to the Royal Frankish Annals. In 835 Louis the Pious handed over the case of Ebbo of Rheims to a synod, but that may have been a matter of penance rather than strictly a trial (I will say more about this in the next post). In 859 the Annals of St Bertin say Charles the Bald was going to use a synod of bishops to deal with Wenilo of Sens, accused of treachery against him for his role in Louis the German’s invasion of 858. In the Annals of St Bertin 868, meanwhile, Hincmar says that his nephew Hincmar of Laon shouldn’t be judged by ‘seculare iudicium’ as Charles the Bald wanted, but rather by ‘ecclesiasticum iudicium’ and gets into a long debate on this. On the other hand, the Annals of Fulda 887 (p 106) say that Arnulf deposed Liutward of Vercelli after a discussion with ‘his people’.

The idea that bishops should be dealt with solely by ecclesiastical courts is probably therefore a principle that is being established in the ninth century (mainly due to men like Hincmar), but it isn’t yet absolutely fixed. And I can’t see any good evidence that clerics below the rank of bishop had to be dealt with by ecclesiastical justice if they’ve broken secular laws (although since I’ve only just started looking at this matter, maybe this is being claimed e.g. in some of the Pseudo-Isidorian material).

2) Cases that someone takes to a bishop

There is a Christian traditon (going back as far as the early church) that a dispute between Christians should be taken to a bishop rather than a law court. And I think traces of that survive in bishops (and abbots) being used for various kinds of dispute resolution. This is most obvious in property disputes, but there are other cases where the same thing happens. For example, Hincmar has the following strange story in De Divortio (Responsio 15)(p 205):

And in a certain diocese of ours what we will explain took place. A certain young man of noble birth fell passionately in love with a woman of not ignoble ancestry. And seeking her legally from her parents, he won assent from her father, but the girl’s mother totally refused his request. But, what rarely happens, the father prevailed in agreeing to the young man’s demands. After betrothal, the giving of a dowry and a marriage celebration, the young man led her to a secret room, but he was in no way able to sleep with her as is normal. After they had led a life made tedious by irremediable hatred for two years, the young man went to the bishop, forced by necessity for he could not get advice anywhere else, with words of persuasion, requests and threats: that unless he allowed the marriage to be dissolved, he would take out his sword, through which murder would occur if the marriage could not be dissolved in any other way. But this bishop, sifting through many other such things often done by the devil, brought back to mind what the Lord said through the Prophet: “Son of man, dig in the wall, and see the wicked abominations which they commit here. And when I had digged in the wall, there appeared a door” and the rest which is read there. And he went from meeting to meeting, and through many treatises took the matter from the dispute to settlement, until the works of the devil were dissolved by the grace of God, and sexual relations, which had been possible with enjoyment with a concubine before, but impossible with his legally acquired woman, were made possible for the young man with his wife, after penance and church medicine.

I think this tradition explains why some cases involving only laypeople end up being dealt with by bishops, especially in combination with:

3) Penitential practice

In theory, penance shouldn’t get confused with legal cases, in particular because there is no need to ‘prove’ a case. Someone confesses a sin to a priest or bishop and they’re given penance to do, which is what would count as ‘secret’ confession/penance. Public penance, in contrast, starts from the principle of a notorious sinner, who is somehow causing ‘scandal’ to the community, and on whom a penance can be imposed without their prior confession. Again, in theory, there is no need for the bishop to prove the sinner’s guilt, so it’s not a legal matter.

A lot of what traditional historians of canon law have taken as being about jurisdiction could just as easily be references to penance, or so it seems to me. For example, Pierre Daudet in Études sur l'histoire de la jurisdiction matrimoniale: les origines carolingiennes de la compétence exclusive de l'église (France et Germanie). Paris: Libraire du Recueil Sirey, 1933 (which is still the standard work on the topic), thinks that Carloman’s Capitulary of Lestines 743 (Cap I p 28), which says that ‘according to the decrees of the canons’ (iuxta decreta canonum), adulterous and incestuous marriages are to be ‘prohibited and corrected by judgement of the bishops’ (prohibeantur et emendentur episcoporum iudicio) is about bishops gaining (non-exclusive) jurisdiction over such cases. It seems to me equally possible that Carloman means ‘judgement’ to refer to bishops deciding on suitable penance rather than presiding at a formal trial.

But there are a couple of grey areas through which bishops may have ended up judging some cases in a legal sense. One is that priests and bishops are increasingly asked to make preventative checks that marriages aren’t ‘incestuous’ (consanguineous) before they’re being made (rather than simply separating couples subsequently), so they are potentially getting an inquisitorial role in that. The second is what happens when someone is being called a notorious sinner and their affairs are stirring up public scandal, but it’s not actually clear that they have committed the sin of which they’re accused. And in marriage cases (my main interest), although bishops tend to say that lay courts should decide on such matters, occasionally synods end up ‘proving’ the matter in this way before deciding on penance.

In my next post I want to show how these three different roles of bishops (as judges of ecclesiastical personnel, as settlers of secular disputes and as givers of penance) could interact to create some of the procedures that we actually see in practice.

This is the start of an intermittent series of posts on topics around Hincmar’s text De Divortio Lotharii regis et Theutbergae reginae, which a friend and I are currently translating. One of the things we will need to write about in the introduction is issues of what would normally be considered ‘canon law’ at the time (860) e.g. the church’s rules on marriage. And yet I’m increasingly unsure how useful ‘canon law’ is as a concept for the ninth century. (The term ius canonicum only starts to be used in the twelfth century, although the term ‘canon law’ is often happily used by early medievalists).

What does canon law mean? In medievalists’ terms it would normally be understood as one among several medieval legal systems, applying to Christian organisations and their members. I’d define a legal system in very broad terms as consisting of a) a body of law, b) a collection of courts which apply this law and c) a set of procedures for how the law and the courts together work (what goes to court and how matters are decided). If you’re being picky you could say that something only counts as a legal *system* if it’s systematic, i.e. there is a consistent way of dealing with legal problems. On that view, I’m not sure whether there is a legal system till relatively late on in the medieval period, but I think even without this you do also need at the minimum d) some method for dealing with new problems that arise in cases.

If you take these very loose criteria, there is a secular Frankish legal system in the Carolingian period. There is a body of law even if it is somewhat fuzzy around the customary edges. There are courts and a sense of what ought to be dealt with by them. On the question of how matters are decided, there seems to be a grab-bag of alternative procedures rather than one standard practice, but there are a lot of vaguely standard elements, modular building blocks. And there is a method for dealing with new problems: ask the king (or alternatively make it up yourself).

If this is hazy, things get even hazier looking at canon law/ecclesiastical law. Firstly, the body of law mutates between each ‘canon law’ collection: compilers routinely add or subtract material and it’s not clear even what categories of material count as ‘law’. Although there are church courts, there is no clear sense of what ought to be dealt with them. The decision processes within church courts are a similar grab-bag to secular methods. But unlike in the secular case, there’s no standard person to appeal to; it’s not at all clear that the popes are the final authority or should be. And the ‘making it up yourself’ is complicated by the fact that this tends to be done via the route of forgeries, such as the false decretals.

I think the most you can say is that in the ninth century there is an ecclesiastical law tradition: I think even saying there’s a system of ecclesiastical law is overstating it somewhat. And there certainly is nothing like canon law in its later sense. The problem is, is it useful to say that you have the roots of a canon law system, from which by cumulative changes the later system developed? This is how Carolingian (and earlier) material tends to be dealt with in standard outline histories of canon law. The problem is that assuming this tends to end up implying that there was a deliberate move to develop such a system, and while you can see this in the eleventh century among the Gregorian reformers, I’m not sure whether you can see it in the ninth century. What in particular seems to be to missing is any sense that what was done in particular cases was intended to set a precedent rather than to deal with the specific immediate issue.

In some way, in fact, texts which would normally be considered as legal works (such as De Divortio) might better be seen as forms of legal exegesis or even legal theology. An authoritative collection of texts (whether the Bible or a canon law collection) is taken and extracts from it used to make a specific theological or legal claim. Is there really a substantial difference in method between how Hincmar proves that God does not predestine people to perdition and that Lothar may not remarry? I’m not yet sure, but I’m wary that if I simply use the category ‘canon law’ without care it may obscure more than it reveals.

My holiday reading, courtesy of one of the biggest secondhand bookshops in England, ended up being Eric Hobsbawm’s classic work ‘The Age of Revolution: Europe 1789-1848’, which was first published in 1962. I can’t remember whether I’ve read the whole of it before, but if so it’s so long ago that all memory of its contents has disappeared, so I came to it completely fresh. The result was an appreciation of just how good a historian Hobsbawm is, but also of the gulf that separates his outlook from a twenty first century one. For Hobsbawm in 1962 the developments of the late eighteenth century still had deep and powerful connections to his contemporary world. I was struck, in contrast by the gap between 1962 and now: suddenly I saw more clearly than before what it means to live in post-modern times.

The gap isn’t mainly due either to Hobsbawm’s Marxism or to new historical insights into the material which have since emerged. There are still a number of Marxist historians around today, so his approach and vocabulary is familiar and most of the time in the book Hobsbawm avoids the biggest historical danger of Marxist historiography: the problem of ‘inevitability’. (He is weaker, not surprisingly, on women’s history, but not much worse than many more recent historians). And while his analysis may well have been superseded or corrected on many points, I’m not enough of a specialist on the period to pick up the problems.

Instead, it is the main theme of his book, not Hobsbawm's analysis, that now seem stranded on the other side of a vast historical divide. This is the impact of what he calls the ‘twin revolutions’ (the Industrial Revolution and the French Revolution). Reading a book in which Britain is repeatedly called the ‘workshop of the world’ cannot help but make the modern reader feel in the presence of a lost world. And yet western industrialisation still seemed commonplace to Hobsbawm, who can say at one point (p 42): ‘This is why even today the most reliable single index of any country’s industrial potential is the quantity of its iron and steel production’. Today such a statement seems nearer to comments on how naturally fertile a country’s soil is, a measure that bears little relation to its economic prospects. The world may not be post-industrial (China certainly isn’t), but the west has largely become post-industrial in Hobsbawm’s sense of heavy industry and mass production in factories. One of the neatest illustrations of the gap is at the start if ‘The Full Monty’, where a 1970s publicity film about Sheffield steel blends into a scene where the unemployed chancer hero goes round a deserted factory. Hobsbawm’s book can’t help but have the same black and white air as the publicity film on this topic.

At first, the French revolution seems to have more resonance with today’s world: the significance of concepts like liberty, equality and fraternity has never gone away. Even the fall of the Soviet Union hasn’t made the problems of democracy, dictatorship and revolution any less potent. But as I read the book I did come to see the limits of Hobsbawm’s approach. One of his key questions (although only implicitly) is the necessary conditions for the success or failure of revolutions and his instinct is to seek them in the character of the revolutionary movement: its tactics, its class composition, a region’s sense of nationalism etc. And yet now it’s hard to argue that such aspects are more than second-order factors. What really matters in modern ‘revolutions’ is the extent to which the ruling classes want to hold onto their position and the involvement of outside powers. China, Burma, Iraq, Zimbabwe have shown that ‘people power’ is no match for ruthlessness backed by heavily armoured troops and tanks (as Hungary in 1956 already suggested). The Berlin Wall did not fall because of the superior tactics of the East German populace as opposed to the Chinese. Popular revolutions now (as opposed to coups) succeed if they are ‘allowed’ by regimes whose will to crack down has crumbled or whose military capability have been destroyed by an outside force. (The same analogy is also increasingly true at the level of labour relations. ‘The workers united’ can very often be defeated.)

Because he concentrates on these twin revolutions, Hobsbawm’s geopolitical framework now seems equally pre-postmodern, even though his work is notable for the extent to which he analyses events from Latin America via the Middle East to India. His focus on Britain and France as the key countries in the period is entirely justified, but that simply confirms that the period is no longer our own. The European conflicts of the nineteenth century now seem rather like the battles of the classical Greek city states: how could people get so het up about such insignificant polities? To whom (other than the Italians) does the unification of Italy now matter? Hobsbawm wrote in a world in which individual European countries were still political significant, Russia was supposedly an industrial power and China was a third-world country. The 45 years between his book and now have seen far more changes in that sense than between the nineteenth century and 1962.

All this doesn’t mean that Hobsbawm’s historical analysis is necessarily wrong or even so old-fashioned as to be irrelevant. There are even occasional moments when he seems spookily prescient, such as his pointing out the lack of a Yugoslav national identity. (Some of his comments on religion, which I want to deal with in a different post, also seem very relevant to current concerns). But what I think it does show is that the connection of what happened then (1789-1848) and now must now be proved in a way that was not necessary in the mid twentieth-century. Just as any contemporary discussion of the seventeenth century European wars of religion or the eleventh century conflict of church and state cannot assume that students will have a pre-existing understanding of why these issues mattered, so they will increasingly need to have explained to them the importance of manufacturing and who the proletariat once were. The worlds we have lost are getting increasingly numerous and varied.