Holy War and the Medieval Lawyers



 
 Holy War and the Medieval Lawyers

By James W. Brundage

Holy War, edited by Thomas Patrick Murphy (Ohio State University Press, 1976)

Introduction: Violence has always been a problem for human societies. Western European societies, which have traditionally identified themselves as Christian, tend to find this problem especially vexing. The Christian ethic, after all, gives particular prominence in its value system to love of one’s neighbor, and violent behavior is the very antithesis of the virtue of love. Yet both private mayhem and organized public hostilities have continued to erupt in Western European societies. This fact presents a notable difficulty for Christian thinkers and writers, who have commonly felt a need to try to reconcile the violent, warring actions of men, including Christian men, with the theological values they profess.

War represents the ultimate degree of organized violence between communities. War has, accordingly, always been a thorny subject for Christian writers and the Church’s attitude has been markedly ambivalent on this subject. Despite their pacific ideals, Christian moralists and theologians were compelled to recognize that war was a fact of life. During the Middle Ages, Western intellectuals began to analyze in some detail the various aspects of war. Their treatments of the subject became increasingly sophisticated during the years between about 1000 and 1300. Out of the discussions of war in this period there emerged a fundamental transformation of the way in which the problem was treated. This change involved a transition from a consideration of war as primarily a moral and theological problem to a conception of war as fundamentally a problem of law. Likewise, as the Church’s enforcement powers increased, theological moralizing tended to be replaced by a more rigorous categorization of hostile action.




One result of this transition from theological-moralistic thinking about war to a legal treatment of these activities was a change in the kinds of problems that were addressed. There was considerable overlap, of course. Both theologians and lawyers were concerned about such matters as whether a given war was just or unjust, licit or illicit. But they tended to be interested in these questions for different reasons and to judge them by different criteria. Both groups needed to deal with the problem of who has the power to declare war, but again they did so for rather different reasons and might arrive at differing conclusions. Other problems were far more central to the concerns of lawyers than of theologians —questions of property rights, for example, questions about liability for damage resulting from war, the legitimacy of conquest, its implications for possessory and jurisdictional rights.

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