19 explained the transformation in terms of a “rationalization.”29 Peter Brown departs from the idea that the medieval world at the time of ordeals was consensus-minded; ordeals, in turn, were prone to increase and maintain group cohesion. As society grew more complex, the striving for cohesion tended to lose value as a social goal and yield to coercive, authoritative power; therefore, ordeals were no longer necessary to fullfill the function they had before. Bartlett calls this “the functionalist approach” and rejects it by showing that in fact the increased use of ordeals is seen to be in close connection with the growth of royal power. An example of this would the Carolingian Empire, of which there are reported cases of ordeal from the ninth century, whereas in other parts of Europe they seemto be a somewhat later development. According to Bartlett, the ordeals were not only a small-town phenomenon, but essentially part of a lord’s judicial power. The ordeal was a device for kings who “refined and reinforced their kingship by their Christianity and who prided themselves on inculcating that Christianity through their kingly power”; indeed, the ordeal was an “adjunct of royal power” as it was widely used in political trials. Moreover, the ordeal spread with the expansion of the Catholic Church to new areas. Bartlett stresses the point that decisions to conduct ordeals were not of a local-level consensual type, but rather imposed upon the communities by the lords holding judicial and other powers. So far it is easy to agree with Bartlett; however, difficulties arise with his own explanation for the abolition of ordeals. Bartlett provides abundant evidence that parts of the clergy had in fact already been against the practice of ordeals in the ninth century. However, it was not until the beginning of the thirteenth that these reformative forces had acquired positions strong enough within the church to pursue the abolition; it was not until the early 1200s that the ecclesiastical hierarchy had developed to the extent that commands such as the one prohibiting ordeals by the Fourth Lateran Council of 1215 could be carried out effectively in practice. The Council’s decision was not a ratification of a developed practice but a declaration of policy which carried fruit only (in some regions, even centuries) afterwards.^2 As for Germany, Eberhard ^9 Traditionally, the shift has been described as a change from“irrational” to “rational” proof; see Lévy 1965 p. 37, Caenegem 1965 pp. 710-714, Caenegem 1990, and Caenegem 1991 p. 94. In my view, this terminology tends to overemphasize the differences between the two systems for two reasons. Firstly, as mentioned above, even in the “heyday of ordeals” most cases were decided without ordeals; secondly, it is easy to question the rationality of torture, an essential component of the Roman-canon law of proof, as a fact-finding method. 30 Brown 1982 pp. 324. 3' Bartlett 1988 pp. 34-43. The division of powers cannot be applied when speaking of the Middle Ages; in feudalism, the judicial, administrative, and political powers of a lord were all intermingled; see Tierney 1983 p. 30. 32 Bartlett 1988 pp. 70-102; 1983 pp. 205-215. the development of the ecclesiastical hierarchy, see Berman on
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