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34 Hitotsubashi J.L. & Pol. 1 (2006)

handle is hein.journals/hbijllw34 and id is 1 raw text is: Hitotsubashi Journal of Law and Politics 34 (2006), pp.1-14. C Hitotsubashi University AN AGREEMENT SUPERSEDES THE LAW, AND AMICABLE SETTLEMENT A COURT JUDGEMENT DISPUTES AND LITIGATION IN MEDIEVAL EUROPE* SUSUMU YAMAUCHI Introduction Defining the bounds of medieval Europe, both in time and space is an almost impossible task, and addressing the issues of disputes and litigation within that framework is a very broad topic defying generalities. Nonetheless, recent work in this field is stimulating, and it has an appeal that transcends medieval European history. This paper summarizes the issue by clarifying its relation to order. In this paper, 'medieval' is not used to refer to the period spanning from 500 to 1500 C. E., but a period that has little direct bearing on modern or contemporary Europe: a relatively primitive time in which a social system ruled based on tribal relations and kinship, a social system that was considerably advanced, beginning around the 6th century and ending around the 12th Although there is no sudden delineation marking the end of the Middle Ages, the 12th_ Century Renaissance1 marked the beginning of a long spiritual and systemic transition to a new social system, as pointed out by George Duby and Aaron Gurevich. The issue of litigation, of course, is relevant to the turning point in Europe, that is, the formation of a more modern Europe. It is from this perspective that I examine disputes and litigation in medieval Europe. I. Iudicium Dei: Judgement of God According to van Caenegem, in the 12th century, the methods of (legal) proof that had ruled for years began to face a crisis. That danger was sufficient to overturn and eliminate the method of proving guilt or innocence in use until then. The old system might be called primitive, irrational, or mystical. The highest authority was held by the judgement of God, oaths with oath-helpers, and other such methods for asserting who is right and who is wrong, or who is innocent and who is guilty.2 * This article is based on my article Doi wa Houritsu ni, Wakai wa Hanketsu ni Masaru in Rekishigakukenkyu- kai, Hunso to Sosho no Bunkashi, Tokyo, 2000. This English version has also received financial support of Hitotsubashi University's 21t Century COE Programme, The Centre for New European Research - Conflict and Settlement. Charles Homer Haskins, Renaissance of the Twelfth Century, Harvard University Press, 1927 (reprint 1979). 2 R. van Caenegem, The Law of Evidence in the Twelfth Century, Proceedings of the Second International Congress of Medieval Canon Law, Vatican, 1965. Cf. Kiyonori Takahashi, 'Chuusei-toshi versus Shinpan' Ron to Sono Parameters, in Hougaku Ronshuu 11-1, p.173ff.

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