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Heather Walton

Early works of feminist criticism celebrated the discovery of this remarkable spiritual legacy and demonstrates how the spiritual radicalism of women's creative writing posed a direct challenge to the conventions of domestic piety usually deemed appropriate to women. For this reason women authors often found it necessary to dissemble and communicate their audacious visions in the language of the family hearth and schoolroom. This chapter explores the ways in which Carol Christ and Alicia Ostriker have presented women's literature as the voice of woman. It examines the work of Alicia Ostriker, whose approach to literature is paired with Christ's since both women are united in their characterisation of women's literature as representing distinctively female experiences and apprehensions of the divine. In the work of Ostriker the terms 'literature' and 'theology' lose much of their currency and are supplanted by references to male and female traditions.

in Literature, theology and feminism
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Philippa Byrne

The conclusion divides into three distinct parts. First, it reflects over the persistence of core ideas about the relationship between justice and mercy in the period c.1100 to c.1250, and what attention to debates on this topic reveals about medieval ideas about the ordering of society. It also considers how this study fits into a history of the development of systematic law, and how this research intersects with recent discussions of the development of accountability in this period. Secondly, the conclusion examines change over time, and, in particular, how the debate surrounding justice and mercy changed c.1250, with the introduction of Aristotle and an Aristotelian vocabulary of justice into European schools. The conceptual fluidity of twelfth-century discussions gave way to new ideas about equity and moderation, which drew much from the newly translated Ethics. Finally, the conclusion addresses the methodological implications of this study and what the arguments presented in this book mean for the study of the relationship between theology and law in the middle ages, and the assumptions medievalists bring to that topic.

in Justice and mercy
The crown, persuasion and lordship
Philippa Byrne

This chapter examines how ideas about the correct way in which to judge and to exercise justice were used by twelfth- and thirteenth-century writers to critique royal conduct. Royal justice was subject to close scrutiny, especially as it was accompanied by concerns that the wicked and unscrupulous might attempt to abuse merciful leniency, or use their rhetorical abilities to redefine partiality as impartiality. The chapter examines royal justice across the period, and through a range of sources – from Orderic Vitalis to Matthew Paris, from William I to Henry III. It emphasises how each of these chroniclers was concerned about the effects which wrongful judgment could have on the political community in the long term; and how much of this discussion depended on classical rhetorical frameworks and, in particular, the influence of Cicero in structuring these presentations of royal justice. Finally, the chapter also considers what changed in assessments of royal justice across this period, and how long-running arguments about the nature of justice and mercy engaged with the development of systematic law and the changing nature of royal authority.

in Justice and mercy
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Philippa Byrne

This chapter introduces the central argument of the book: that one of the most important and most vexed questions in theological, legal and political discussions in twelfth-century England was how to reconcile the conflicting principles of justice and mercy, and how to judge ‘correctly’ – avoiding charges of partiality, corruption or vice. The significance of these discussions, however, has gone unrealised because of the assumptions brought by modern scholars to the relationship between medieval theology and medieval law. This chapter provides a historiographical overview of the ways in which medieval justice has been discussed. It then moves to analyse the biographies of several twelfth-century English judges, arguing that they were more than merely royal functionaries and were sensitive to moral arguments and reflected on their position, especially when it came to matters of virtue and punishment.

in Justice and mercy
The Church
Philippa Byrne

This chapter develops the argument – outlined previously in Chapter 5 – that arguments over the status and importance of mercy were as central in ecclesiastical politics as they were in secular courts, and that bishops were engaged in a discussion over the relative merits of merciful or punitive justice. It examines three case studies to highlight these discussions. First, arguments over whether a group of heretics discovered in Worcester in the 1160s should be treated with leniency or severity, and which attitude would best bring them back to the Church. Secondly, how the language of mercy and justice was deployed by both sides during the Becket crisis, and how those events can be interpreted as set of arguments over how best to rebuke, reprimand and punish a king. Finally, the chapter moves to the thirteenth century to examine how Robert Grosseteste and Adam Marsh provided practical advice for office-holders – both within and outside the Church – on how to translate scriptural ideas about justice and mercy into action.

in Justice and mercy
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Moral theology and the exercise of law in twelfth-century England
Series: Artes Liberales
Author: Philippa Byrne

This book addresses one of the most acute moral and political dilemmas of the twelfth century: how did a judge determine how to punish an offender, and what was the purpose of such punishment? It examines how English judges weighed a choice which, if made wrongly, could endanger both the political community and their own souls. That choice was between two ideas which twelfth-century intellectual and legal thought understood as irreconcilable opposites: justice and mercy. By examining the moral pressures on English judges, Justice and Mercy provides a new way into medieval legal culture: rather than looking at the laws that judges applied, it reconstructs the moral world of the judges themselves. The book offers a fresh synthesis of the disciplines of intellectual history and legal history, examining theological commentaries, moral treatises, letters, sermons and chronicles in order to put the creation of the English common law into its moral context. This broad vision brings to light the shared language of justice and mercy, an idea which dominated twelfth-century discourse and had the potential to polarise political opinion. Justice and Mercy challenges many of the prevailing narratives surrounding the common law, suggesting that judges in church courts and royal courts looked strikingly similar, and that English judges had more in common with their continental counterparts than is often assumed.

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Popular mercy in a vengeance culture
Philippa Byrne

This chapter examines how twelfth-century arguments over justice and mercy, previously discussed in the context of Latin texts, extended into the vernacular, and speculates about the possibility of a ‘popular’ engagement with ideas about merciful judgment. The centre of the analysis is the tradition known as the Four Daughters of God (found in a number of sermons and in Robert Grosseteste’s Château d’amour), a work which presents an argument between justice and mercy set in the household of a great lord. The chapter draws on these texts to suggest that ideas of judgment, justice and mercy might have been disseminated more widely than we would otherwise assume, and that there was an audience for such debates beyond Anglo-Norman and Angevin administrators. Texts such as these might invite us to modify our view of twelfth-century England as a ‘vengeance culture’. Finally, the chapter reflects on what these texts suggest about the connections between counsel and persuasion in judgment.

in Justice and mercy
The schools
Philippa Byrne

This chapter provides a detailed analysis of the multiple ways in which the twelfth-century schools attempted to define justice, examining the influence of Aristotle, St Paul, Cicero, Augustine and Anselm. It identifies a central focus of scholastic debates: how to reconcile justice and mercy; whether to privilege forgiveness for offenders or punish offenders in full. These questions invited masters to dwell on how obligations to punish could ever be reconciled with the demands of Christian caritas. The chapter sets out the central problem for twelfth-century judges and what was at stake in judgment: the merciless judge would receive no mercy from God. The chapter reveals the complexity of the debate in the schools, where theologians recognised that any attempt to explain justice had both immediate political and long-term soteriological dimensions. Finally, it highlights how all these discussions emphasised the practicalities of justice, and the connection between theological discussion and political praxis.

in Justice and mercy
The courts
Philippa Byrne

The chapter begins with a comparison of how mercy was discussed in the early common law and in twelfth-century canon law, and suggests what one legal tradition might reveal about the other. It examines in full the discussions of mercy in common law texts (including the Leges Henrici Primi and Glanvill), as well as the historical evidence for legal mercy found in reported cases and pardon records. The chapter argues that there was more space for the exercise of judicial mercy in the common law than is sometimes assumed, and that exhortations to mercy were more than window dressing. However, in order to understand what mercy meant to English judges, medievalists need to go beyond the traditional documentary sources for the history of the common law. The chapter concludes by emphasising that the role of the judge and the complexity of the judge’s moral role should not be overlooked in the history of the early common law.

in Justice and mercy
Philippa Byrne

This chapter argues that the key to understanding judgment in this period is to examine the evidence of exempla. Exempla and the exemplary tradition provided models which helped twelfth-century judges to think through the act of judgment, realise what was at stake and identify common mistakes – including historical and scriptural cases where bad judgment had led to the destruction of the whole polity. The chapter examines scriptural examples of great and failed judges (figures such as Moses, Samuel and Heli), as well as exemplary judges from classical history (such as Caesar and Cato). The exemplary figures introduced here were the building blocks of more detailed and more developed arguments about judgment, and the figures introduced here recur in later chapters. Finally, the chapter argues that there was no clear distinction between the exempla taken from the Bible and those from classical texts. In both traditions one could find arguments in favour of strict justice and arguments in favour of judicial mercy. What mattered was not the texts a judge read, but the principles of selection applied to that reading.

in Justice and mercy