It is a commonplace among legal historians that cases involving the powerful are a bad place to look if you want to find out how the law really worked, or even what it was. The underlying assumption of this attitude is, presumably, that ‘politics’ taints the ‘law’ in such a way as to make the latter unrecognisable. If, however, one takes the view that no law is apolitical, then the study of cases involving the powerful becomes a legitimate object of legal-historical study.
David D'Avray's Papacy, monarchy and marriage takes on what has long been regarded as the most ‘political’ and least ‘legal’ aspect of the Church's legal system in the medieval and early modern periods: marriage cases involving royalty. What he finds is fascinating. In the eleventh and twelfth centuries it had become all too easy for royalty to obtain dissolutions of their marriages on the ground of some impediment of consanguinity, affinity or spiritual affinity, impediments that D'Avray quite rightly refuses to call ‘incest’. In the early thirteenth century Pope Innocent iii perceived that the ease with which royalty could obtain a divorce was a scandal. The Fourth Lateran Council in 1215 cut back quite radically on the range of such impediments, attempted to ensure that those that remained would be discovered before the marriage took place, and instituted procedures that made it considerably more difficult to obtain a divorce on the ground of such impediments.
It worked. In D'Avray's view none of the papal dissolutions of royal marriages that occurred between 1215 and 1600 (and he has looked at all of them) was without solid legal justification, both in the grounds on which they were granted and in the factual support for the grounds. What happened was that royalty sought rather to solidify their marriages by obtaining, in situations where the validity of the marriage was doubtful, papal dispensations. The granting of the dispensation was discretionary, ‘political’ if you will. The interpretation of the dispensations was, however, highly technical. If the dispensation did not precisely cover the existing impediment, it did not protect the marriage.
The book is elegantly and tightly written. It is informed by a theory that is part Weber, part Skinner, and all D'Avray. As applied to this situation, the theory produces an argument that however much later medieval and early modern popes might have wanted to favour some members of the royalty and might have been unconcerned about the law, they were dependent on the support of canonists in the curia and elsewhere who themselves were professionally committed to formal legality.
The book is accompanied by a judicious selection of dispensation documents accompanied by translations. For support for the part of the argument that concerns dissolutions one must have recourse to D'Avray's Dissolving royal marriages. This is mildly annoying, but probably financially necessary.
There will be those who will disagree with D'Avray's judgements about individual cases. As an overall treatment, however, his book is likely to remain definitive for years to come.
