James Brundage has undertaken a truly daunting task, and he largely succeeds in it. He has traced the origins of law as a profession in the Western world from antiquity to the end of the Middle Ages, with an emphasis on the period from the twelfth to the fifteenth centuries. This project required that the author use a wide variety of primary sources and a copious secondary bibliography on the medieval traditions of learned law and related topics. Brundage has focused mostly on canon and Roman law, but he has paid some attention to other legal traditions. Both the teaching and the practice of law participate, as do both professional ethics and the violation of those norms. Brundage's definition of a professional lawyer includes not just training and opportunities to earn a living but some ideas about the proper behavior of practitioners. The arc of the story begins in ancient Rome and ends just before the Reformation.
Writing about ancient Rome, Brundage has traced the emergence of jurists as an identifiable group. These jurists had to deal with complicated legal procedures and efforts in late antiquity to codify laws issued under the republic and the empire. The efforts at codification culminated in the Theodosian Code and the compilations done for Justinian. Justinian's advisors also selected from a large professional literature, creating the Digest. Only a limited amount of Roman legal thought has survived outside that collection. Law schools existed in the East, and there were ideas of legal ethics. In the West, the formal practice of law declined with imperial power. Legal knowledge disappeared. Clergy might have known some texts of Roman law, including the Theodosian Code. The Roman populace retained some legal forms from the empire, but the invading peoples had their own customs and enactments. Some of these barbarian laws were codified, but none of the surviving courts offered opportunities for sustained legal careers. Alongside these legal traditions, the medieval church developed a canon law based on the decrees of councils and other authoritative texts. These canons were employed in church courts and in disciplinary actions by bishops and synods.
By the twelfth century, however, economic and demographic growth permitted stronger governments to create stronger spiritual and temporal tribunals. These became popular for the resolution of disputes, and it became possible to earn a living in law. This demand for legal remedies coincided with the recovery of Roman law, the development of a more coherent canon law, and the appearance of universities at which the learned laws were taught in identifiable faculties. The University of Bologna was in the forefront of both developments, and the University of Paris was important in the teaching of canon law. Brundage has identified this period, rightly, as a preprofessional stage. These developments varied in chronology and scope from place to place. However, he is able to identify a more truly professional set of lawyers, complete by the thirteenth century with formal education and a set of professional standards enforceable by the courts. These standards included the requirement that the poor be represented even when they could not afford a lawyer.
The medieval legal profession was not made up of a single type of practitioner. Learned advocates who knew the Roman law, canon law, or both worked with less learned procurators who spoke for their clients but might have learned the law through practice. The judges before whom they practiced might or might not be trained jurists. Those who were not jurists might be advised by a legal staff or by jurists who provided written advice (consilia) for a fee. Once canon law adopted the procedures of Roman law, with their emphasis on written documents, notaries and clerks also became essential to the practice of law. They, too, had opportunities for training and career advancement. All legal practitioners could consult a growing body of laws, treatises, and books of formulas used in litigation. A sense of corporate identity and professional ethics also grew among legal practitioners, and law faculties set an example of a corporate culture. All lawyers and notaries knew that these careers could lead to wealth and position, but criticism of lawyers grew up with the profits of legal practice. The very intricacy of legal process made it seem like a briar patch from which the uninformed litigant might not emerge unscathed.
Brundage has sketched these developments using the available sources. These are not always plentiful on the side of actual practice, but the author has made good use of the available material. Nor has he been inclined to believe practice always conformed to established norms. The author occasionally suggests that there might have been abuses that escaped being recorded. The picture that emerges here is convincing. Demand for legal remedies bred lucrative careers for professionals about whose arcane procedures and wealth many—unsuccessful litigants among them—complained.
There are a few flaws in this rich and convincing book. The formulation of collections of papal decretals (117–18) is treated too briefly. The reader might not realize that Innocent III promulgated Compilatio tertia in 1210, 24 years before Gregory IX issued the Liber extra to supplement the Decretum of Gratian, the seminal work of academic canon law. This shows how the papacy became concerned with authenticating the canon law, especially to the legal faculties of the universities even before Gregory IX acted. The other flaw is the failure to note how a trial under Roman law might differ from the process under canon law clearly delineated in the later part of the book. The process, founded on Roman practice, was similar; but the reviewer's other reading suggests that canon law allowed much more room for appeals launched at any time during a trial. Neither of these minor flaws, however, is crucial. James Brundage has provided us with a lucid and informative account of how law became a profession in the Middle Ages, a factor in the larger development of the learned professions in the Western world.
