Canon Law: The Development of Criminal Law and Its Medieval Roots

Dear Colleagues,

Nowadays it is generally assumed that criminal law is by definition of public interest. Historically, however, this was not always so. The idea of prosecution being of public interest only originated in the canon law of the Middle Ages. The judicial turnaround came with the pontificate of Innocent III at the turn of the 13^th century. Already in his first year as pontiff, 1198-99, he cited the dictum that ‘publice interest, quod maleficia non remaneant impunita’ in a letter to the Hungarian king Henry that was intended to compel the latter to prosecute clerics who had stolen two sheets of Alexander III’s papal register from the papal chancery.

This turnaround became possible because of a shift in the understanding of guilt, anticipated by the Church’s penitential discipline—a development that had already begun in penitentials. From the 12^th century onwards, theologians and canonists busied themselves to conceptualize the dimension of the depth of guilt, which had considerable, mainly legal, consequences. The emphasis on criminal prosecution based on a new concept of guilt took place approximately parallel to the development of the inquisitorial criminal procedure. The new concept of guilt as the decisive condition for punishment acted as a limitation on official authority.

It was precisely the establishment of the inquisitorial procedure that proved to be the angle from which the idea of a public prosecution of crimes could be established and become commonly accepted, as the ‘inquisitio’ asked not only after the material truth, but mainly after the internal guilt of the offender.  In this light it is very striking that the inquisitorial procedure had originally been developed to enable high-ranking clergy to be to disciplined—which lends additional relevance to this topic with an eye to the current debates about bishops’ negligence in dealing with cases of sexual abuse.

This special number intends to broaden perspective and clarify the contribution of canon law to the development of criminal law. This will result in a better understanding of the inquisition process, which was the common basis for the different forms of Inquisition. In this way, this special edition will explore the general perspective of the claims for public prosecution within the Church of the Middle Ages.

Existing publications are mainly concerned with either Inquisition, primarily from a sociological or political perspective (Edward Peters, Inquisition, 1989; Jean-Louis Biget (ed.), Inquisition et société en pays d’Oc, 2014), or from that of secular law (Wolfgang Sellert, ‘Was wissen wir über den Inquisitionsprozeß? Stand und Ergebnisse der rechtshistorischen Forschung’, in: Doshisha Law Review, no. 318, Kyoto, 2007, pp. 15-29). Only a few recent studies make the connection between canon law and criminal law, while simultaneously attempting to embed the inquisitiorial procedure in the Church’s entire criminal law code (Harald Maihold: Strafe für fremde Schuld? Die Systematisierung des Strafbegriffs in der Spanischen Spätscholastik und Naturrechtslehre 2005; Heikki Pihlajamäki and Mia Korpiola, Medieval Canon Law: The Origins of Modern Criminal Law (Oxford Handbook of Criminal Law) 2014).

This special number aims to accentuate this perspective and to bring together international scholars, offering a broad perspective which could provide new insights for current debates.

Prof. Dr. Daniela Müller
Guest Editor

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• Inquisition
• Criminal Law
• prosecution of crimes
• public interest