Folia Theologica et Canonica 10. 32/24 (2021)

Ius canonicum

138

ELEMÉR BALOGH

In general, it can be said that at the height of the power of the medieval church, it formed a need for a moral and criminal judgment of essentially all kinds of human conduct. According to the famous jurist Pope, III. Innocent, ecclesiastical courts have the right to adjudicate all cases related to human sin. When King Philip Augustus of France and King John of England had a disagreement and the church wanted to involve the case, the French monarch made little success, arguing that the case was of a fidelity nature, and so the church had nothing to do with it. III. Innocence replied: “Non (...) intendimus iudicare de feudo (...) sed decernere de paccato.” As a result, it has become widespread in the Church that all human conduct in which sin is manifested falls under the criminal jurisdiction of the Holy Sees. Based on a similar logic, a broad interpretation, all kinds of oath-confirmed cases were brought before an ecclesiastical court. It is difficult to imagine a broader need for law, therefore it is no wonder that in the course of time the ecclesiastical system of law has been pushed back the most in this area.

The most controversial institution of ecclesiastical criminal law was a sanction, excommunication, because it had the widest impact on the socio-legal situation of those affected. The excluded person (in addition to the almost natural ecclesiastical and religious disadvantages) also suffered a ‘legal death’ in civil society, as, for example, he usually lost his active legal capacity (communicatio forensis), i.e. he could not act as a plaintiff, witness or lawyer (but could be sued by anyone), and he could not make his testament1. The legal position of the person subject to this sanction was roughly the same as that of a convicted person (persona infamis) convicted of defamation. It is noteworthy that ecclesiastical courts have used excommunication in purely secular lawsuits, usually to enforce a course of action, both at the beginning of the lawsuit (against the person not appearing for the summons) and at the end (against the person obstructing enforcement): this is an unacceptable contradiction for our conception today. In the legal system of medieval society, however, there was nothing surprising in it, for it was seen only as a sign that worldly and otherworldly forces constitute a unified and effective reality1 2.

1 It is essential to mention here the provision of Emperor Frederick II (1220J: “(...) excommunicates (...) vitabimus; et nisi prius absolvantur, non concedemus eis personam standi in iudicio, sic distinguentes, quod excommunicatio non eximat eos a respondendo impetendimus, sed sine advocatis; perimat autem in eis ius et potestatem ferendi sententias et testimonia et alios impetendi.” Weiland, L. (Hrsg.), Constitutiones et acta publica imperatorum et regum inde ap a. MCXCVIII usque ad a. MCCLXX11 (1198-1272) [Monumenta Germaniae Historica; Legum IV/2], II. Hannover 1896 (repr. 1963) 90 c. 6. Cf. Schiller, E., Bürgerschaft und Geistlichkeit in Goslar (1290-1365). Ein Beitrag zur Geschichte des Verhältnisses von Stadt und Kirche im späteren Mittelalter (Kirchenrechtliche Abhandlungen 77), Stuttgart 1912. 195. Eichmann, E., Acht und Bann im Reichsrecht des Mittelalters, Paderborn, 1909. 74.

2 Cf. Hashagen, J., Zur Characteristik derr geistlichen Gerichtsbarkeit, vornehmlich im späteren Mittelalter, in Zeitschrift der Savigny-Stiftung Kanonistische Abteilung 6 (1916) 235.