Eric Marzo-Wilhelm --
This is an interesting topic, with numerous ramifications. Your
basic impression is certainly correct, namely that medieval canonists,
theologians, and moralists considered openly scandalous behavior a far more
serious matter than inappropriate behavior that was not generally known.
The distinction often crops up in discussions, for example, of sexual
misbehavior by the clergy (concubinage, and the like). I suppose that the
distinction between secret and public misdeeds goes back to the scriptures
(e.g., Mark 14:29; Romans 14:13, etc.); a concordance to the Vulgate will
give you numerous other references s.v. 'scandalizo,' 'scandalum' and the
like. Similarly a good place to start looking for canonistic references
would be in the _Wortkonkordanz zum Decretum Gratiani_, compiled by Timothy
Reuter and Gabriel Silagi, 5 vols., in the MGH, Hilfsmittel, Bd. 10 (Munich,
1990). In addition to entries under 'scandalum' etc. take a look also under
'publicus,' 'notorius,' and 'fama.'
What began as a moral issue, namely the effect of openly sinful
behavior upon others, which magnifies the seriousness of the offence,
ultimately became also a procedural issue concerning the standards of proof
necessary for conviction of a crime. The canonists' reactions to these
issues are fascinating and carry important implications for the history of
the law of evidence, defendants' rights, and due process of law. Richard M.
Fraher wrote a series of important and provocative articles on these facets
of the issue, including "The Theoretical Justification for the New Criminal
Law of the High Middle Ages: 'Rei publicae interest, ne crimina remaneant
impunita,'" _University of Illinois Law Review_ (1984) 577-595; "Conviction
according to Conscience: Medieval Jurists' Debate concerning Judicial
Discretion and the Law of Proof," _Law and History Review_ 7 (1989)23-88;
"Preventing Crime in the High Middle Ages: The Medieval Lawyers' Search for
Deterrence," in _Popes, Teachers, and Canon Law in the Middle Ages_, ed.
J.R. Sweeney and S. Chodorow (Ithaca, NY: Cornell University Press, 1989)
212-233; and "'Ut nullus describatur reus prius quam convincatur:'
Presumption of Innocence in Medieval Canon Law?" in _Proceedings of the
Sixth International Congress of Medieval Canon Law_, ed. Stephan Kuttner and
Kenneth Pennington, Monumenta iuris canonici, Subsidia 7:493-506.
The history of the distinction between public scandal and private or
secret scandal has a great many other fascinating branches as well. One of
them, for example, will lead you into the thickets surrounding the so-called
"right of privacy," while another could readily lead you into the history of
inquisitorial procedure and the _inquisitio heretice pravitatis_, or
alternatively into the history of the repression of usury.
I'm not sure whether this directly addresses your interests in the
matter or not, but I hope it may help, rather than confuse, your research.
JAB
At 01:23 PM 6/19/96 +0100, Eric Marzo-Wilhelm wrote:
> Dear listmembers,
> perhaps you could give me a little help with this:
>
> I remember having heard about a distinction made in canon law (or
> penitential- reglements) between a so called scandalum apertum and a
> scandalum occultum, the first one being much heavier sanctioned than
> the second one.
>
> If a scandalum (sexual relations between clerics and women, in this case)
had become
> known in public, the punishment was heavier - could this be seen as an
example for
>the importance of "publicness" for the fields of law and "honour"? Would a
public
> demonstration of disobediance be regarded as a worse offense than a
> secret (or not come to public eyes or ears) one? Could we assume that
> this was also true for the laic part of medieval society?
> How far would you think can one stress such an interpretation of the
> importance of "publicnes" for law, religion honopur, representation
> etc.?
> Where could I find more info about the distinction public-nonpublic?
>
> I would be thankful for any helpful comments on this,
>
> Eric Marzo-Wilhelm
>
James A. Brundage
History & Law
University of Kansas
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