The Discourse of Law and Justice in Medieval Europe
24th Annual Medieval Studies Conference
Saturday, March 27, 2004
The Whole Truth and Nothing But the Truth
Paul R. Hyams, Cornell University

The history of European law is generally written in terms of a caesura placed somewhere around the twelfth century. It is undeniable that this was the first time since the end of the Roman Empire in the West that schools had taught the academic study of law, and it is a matter of record that through this legal revolution Roman law became a major determinant not merely of law and dispute resolution in the West but of many of the apparently self-evident truths of Western culture as a whole. The manifold changes resulting from this are sometimes characterized as a move toward rational legal process. Prominent among the evidence for increasing rationality is a new reliance on rational proofs through factual inquiry, through documents and witnesses, as against an older submission to the judgment of God (by ordeals and oaths) which scholars deem irrational. This paper contends in part that, though such information-processing proof methods would indeed emerge as central to the systems of modern law in the West, the shift both was more problematic than has been realized and took much longer to complete.

This paper tries to explain why an apparently obvious discursive shift should have proved so complex. It focuses on notions of Truth current in the Christian West from the patristic period into the high middle ages. It shows how hard it was for churchmen to nudge secular law in the direction of divine standards of absolute truth, even with the somewhat problematic assistance of the ubiquitous oath. It argues in particular that liars (a category that includes all of us) tend to try to avoid outright lies by using ambiguous forms of words. It shows that church writers were constantly aware of this as a problem, but caught between the need to acknowledge and assimilate a plethora of white lies from the Bible and the Fathers onwards and the desire to promote perfect standard of truth-telling for their flocks and themselves. It raises (but does not solve) the problem of whether this disease of economic truth-telling came to an acute crisis in the course of the twelfth century or was a longer-term constant, a chronic affliction of the political culture of the Christian West. And it suggests how the ambiguous oath theme in vernacular literature, such as Tristan and Isolde, may be explained within this context.

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