Old English Legal Writings: Wulfstan
Edited and Translated by Andrew Rabin
Harvard University Press (Dumbarton Oaks Medieval Library 66)
Archbishop Wulfstan of York is not a household name, even, one imagines, among those with an interest in the Anglo-American legal tradition. However, he was, in the years shortly before the Norman Conquest, a hugely influential figure in England. An accomplished prose stylist, jurist, and preacher, Wulfstan’s influence spanned the reigns of Æthelred the Unready and Cnut. He wrote a number of law codes for both kings—along with political tracts and extensive ecclesiastical legislation. A new edition, edited and translated by University of Louisville professor Andrew Rabin, collects these law codes, political tracts, and ecclesiastical laws. Taking the work as a whole, one finds in Wulfstan a remarkably well developed concept of the commonwealth, sustained by order and justice, animated by Christianity, implemented through his civil and ecclesiastical laws.
At the outset, one must acknowledge that Rabin has done a great service in presenting a handy, portable edition of Wulfstan’s legal writing. His informative and comprehensive introduction presents a helpful introduction to Wulfstan, his career, and his work. He also gets into the thornier problem of settling Wulfstan’s texts. He also discusses with admirable clarity the difficulties editors have faced in settling the question of which works were written by Wulfstan. But few other than experts will really need—or indeed want—to know about the textual difficulties Wulfstan’s editors and translators face. Casual readers may safely put aside Felix Liebermann’s venerable (but imperfect) Die Gesetze der Angelsachsen in favor of Rabin’s edition.
Nothing really is known of Wulfstan before he was elected bishop of London in 996. Given his references, his interests, and what we know of English clergy at that time, we can assume some things about his education and career, but these are assumptions. We do know that he was later translated to the archiepiscopal see of York and the see of Worcester in 1002. Apparently it was the practice at the time to allow the archbishop of York to hold a see in the south of England. There seem to have been political and practical justifications for the practice. Wulfstan was archbishop of York until his death in 1023, though he resigned Worcester somewhat earlier. Despite his election to York, Wulfstan was apparently an indispensable figure at court.
Wulfstan drafted Æthelred the Unready’s law codes promulgated between 1008 and Æthelred’s fall in 1016. Æthelred’s codes cover a range of civil and ecclesiastical topics, reflecting Wulfstan’s vast erudition and knowledge of the law. It is a sign of that erudition and Wulfstan’s political skill (in no doubt in equal measure) that we quickly find him exercising the same function for Cnut, drafting Cnut’s Oxford Legislation of 1018, his Proclamation of 1020, and the two lengthy law codes known as 1 Cnut and 2 Cnut. It is important to note that, in the law codes of both Æthelred and Cnut, one finds numerous injunctions bearing specifically on the clergy. However, it is unclear, according to Rabin, whether these law codes were law codes in the sense we would imagine them today.
But this may be a point on which Rabin might be fairly criticized. His claim in his introduction is basically that these codes were (at least on the evidence available) not used to settle disputes. Yet this is a cramped view of the medieval concept of law. St. Isidore of Seville, writing over three hundred years before Wulfstan, noted that laws have purposes beyond merely being the norms by which disputes are resolved or charters granted (cf. Etym. 5.19–20). This concept of law would remain constant for the Church through the medieval period (and the modern period up to 1917), given the fact that this understanding was taken up by the Church through its common law (Gratian, Decretum D.4, c.1–2).
Given Wulfstan’s sketchy biography, it is, I think, probably dangerous to assume that he knew or did not know a given author. However, it is clear that he was familiar with Carolingian canon law. It is very likely that he had a monastic education. It is, therefore, probable that Wulfstan was familiar with the classical legal tradition represented by St. Isidore and the early canonists. Therefore, one may safely assume that Wulfstan himself understood law—and his law codes—as more than mere norms for decisions or points of ascription for other norms.
Indeed, to reduce law to norms for resolving disputes or as norms that other norms may be ascribed to is one of the fundamental temptations of liberalism. One of the great values of the classical legal tradition, especially in documents like Wulfstan’s law codes, is to see an example worked out of laws that reflect a positive vision for a commonwealth. And it is clear that Wulfstan did have a positive vision for the commonwealth. Indeed, the great value of Rabin’s edition is that we have not only Wulfstan’s law codes but also his theoretical tracts setting forth his concept of an integrated Christian kingdom.
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Rabin’s edition divides Wulfstan’s work into three divisions: political tracts, ecclesiastical legislation, and royal legislation. It is in the first category that one finds Wulfstan’s positive vision for the commonwealth. Wulfstan revised and restated these ideas repeatedly over time, though his vision in broad terms remains consistent. For example, one finds the ideas of the Compilation on Status developed and refined—but not necessarily changed—in the two versions of the Institutes of Polity. Here one notes Wulfstan’s division of society into oratores, laboratores, and bellatores—those who pray, those who work, and those who fight. The fortunes of the commonwealth, therefore, rest upon the clergy, the laborers, and the warriors such that if any one group falters, the entire commonwealth is imperiled.
But it is clear Wulfstan’s vision of order extends well beyond this division. In both versions of the Institutes of Polity, Wulfstan presents his view of how each group in the commonwealth—from kings and bishops to nobles and religious to commoners—ought to behave as part of an integral whole. The principles animating this integral whole are fundamentally the doctrine of the Church and justice. The king, in Wulfstan’s vision, must obey God’s law, protect and promote the Church, and zealously seek justice in all things.
The emphasis on the secular authorities’ supreme responsibility to do justice in Wulfstan’s writings would remain constant throughout the medieval era. One can find various treatments of justice as the core of the medieval concept of rule, for example in Ernst Kantorowicz’s Kaiser Friedrich der Zweite and The King’s Two Bodies. There has been much discussion in recent years about the commonwealth’s duty to God and to the Church; a consideration of Wulfstan’s writings ought to prompt a renewed consideration of the centrality of justice to peace—and therefore to the common good (cf. St. Thomas Aquinas, Super Ep. ad Hebraeos C.7, L.1, no. 332).
Wulfstan also drafted numerous examples of what appear to be ecclesiastical legislation. These include his Instructions for Bishops (titled in the manscript Incipit de synodo), which starts off as an admonition about how to run a provincial synod but quickly turns into more general advice for bishops; the Admonition to Bishops; and the Canons of Edgar (titled Synodalia decreta), a lengthy set of instructions for parish priests. The circumstances under which these documents were drafted and the extent of their enforcement are likewise a little murky.
Nevertheless, it is clear from Wulfstan’s ecclesiastical legislation that he did not see any sort of division between the civil authorities and the ecclesiastical authorities. In his tract On Episcopal Duties, he wrote about the duty of bishops not only to collaborate with secular judges to seek justice but also to duty to review and consent to the laws in his territory. This extended even to the supervision of weights and measures in towns, lest anyone cheat another and thereby sin. The Latin tract, De medicamento animarum (On the Remedy of Souls), however, suggests that there are due limits on the secular jurisdiction of the bishops. These limits are imposed by Wulfstan’s constant emphasis on order and strict observation of one’s duties in one’s state.
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Certainly Wulfstan’s vision of a commonwealth sustained by justice, order, and above all Christian doctrine will seem alien in a society that, through disorder and a rejection of the common good, makes of the people—all pursuing their own private goods—as one tyrant (cf. St. Thomas Aquinas, De regno 1.2). To say nothing of a society that seeks to turn all religion into a purely private matter, rigorously excluded from public life when it is not actively opposed. Nevertheless, the peace of ordered concord has almost always been the Christian understanding of the common good (St. Augustine, De civitate Dei 19.13). Likewise, Augustine makes it clear that orthodoxy is the true prerequisite of justice (and therefore peace, as Aquinas tells us) (De civitate Dei 19.21). In other words, with Wulfstan’s theoretical emphasis on order and justice, animated by Christian doctrine, Wulfstan’s law codes are excellent examples of the classical legal tradition.
Ultimately it is, I think, the existence of the theoretical documents like the Compilation of Status and the Institutes of Polity that makes Wulfstan’s work as a whole so interesting. Certainly one can consult any number of medieval law codes, from Charlemagne’s capitularies to Frederick II’s Constitutions of Melfi, but Wulfstan’s law codes for Æthelred and Cnut are accompanied by more theoretical tracts, setting forth Wulfstan’s political theories. One may, therefore, compare Wulfstan’s principles with the concrete expressions of those principles. That is to say, one may consider how Wulfstan’s law codes established the integral commonwealth, sustained by justice and order as understood by the Church, he envisioned. And, quite naturally, one may even consider how one might return to such a commonwealth.
Pat Smith