How lawyers helped us fall in love
Spare a thought for the lawyers who helped you fall in love this Valentine’s Day
In medieval times, lawyers faced a troubling dilemma about love. Back then, love was primarily a spiritual matter – the way God was present and experienced during earthly life. This had the effect of promoting an “elevated” form of love centered on theological values, while making love in its romantic and physical expression a dirty and sinful word.
Many were well aware of the practical impossibilities. As the influential Abbot Bernard of Clairvaux confessed, “we are carnal, and […] therefore, our love must begin with the flesh”. The challenge was whether this spiritual doctrine of love could be integrated into its romantic and, by the standards of the time, more sordid reality. We know from our modern conception of love that this tension has gradually been resolved.
Today we see love through a curious combination of doctrines. The origins of our notion of romantic love can be clearly identified in Plato Symposium where the playwright Aristophanes is recorded giving a famous speech on the nature of Eros, the ancient Greek god of love and desire. Aristophanes explains that mankind was created by the gods dividing human-like creatures with two heads, four arms, and four legs in half. After being split up, these two newly created “humans” would have found themselves desperately searching for their other half. Accordingly, Aristophanes concludes that love is “the desire and pursuit of wholeness”, a romantic ideal still in play today.
However, many of the qualities commonly considered desirable in our romantic relationships can be traced to the medieval doctrine of courtly love which laid down strict rules and courtesies to regulate love for those who were unmarried and therefore were beyond the powers of Church law. Courtly love emphasized particular virtues and moral qualities. Just as the “boyfriend checklist” of a medieval troubadour says, “if he wants me to give my love, he will have to be cheerful, dignified, open and humble”, so today have the meaning of humor, honesty and “being a gentleman” remain important romantic qualities.
Valentine’s Day, being a celebration of both romantic love and traditional acts of kindness, chivalry and gift-giving, is a clear example of this fusion between ancient Greek and medieval. But how did such a merger come about? It turns out that medieval jurists did a lot to reconcile courtly love with its realities and help us fall in love today.
A striking example of this is the 12th century love courts that emerged in parts of France. These courts acted as a tribunal for moral issues in relation to love which were presented to a panel of approximately 30 female judges. Although their existence is disputed, Andreas Capellanus left the courts of love a powerful legacy in his work. The art of courtly love in which he delivers the lessons he learned while working as a chaplain at the court of Countess Marie de Champagne, one of the most important courts of love.
Capellanus’ account can be read as a legal textbook on love. It contains the 31 “Love Rules” and reports on cases brought before and judgments rendered by women-only courts. Among the intrigued dilemmas are the pressing questions of whether a lady whose lover dies suffers more than a knight whose lover deceives him, and whether a lady who has heard nothing from her lover since he left on a crusade three years ago should be allowed to take a new lover.
In a more complex case, a confidant, through whom a man communicated romantic messages to a lady, fled with the lady in question. A court of 60 women ruled that the couple could continue their relationship but could not enter into a relationship with anyone else – a clear judicial answer to the question “so…are we exclusive?”.
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Discernable legal principles have also been developed from these cases. Key principles include the clear distinction between marital affection and true love, and the recognition that the act of teaching a man to love well was considered a valid contract between lovers. The former acknowledges the failures of the Church’s regulation of marriage, while the reasoning behind the latter is that loving in accordance with courtly values was seen as a valuable form of moral improvement. Accordingly, the morally improved man must reward the skill and effort of his lover’s labors: he is bound by a loving contract, with the obligation to love his master.
What these judgments demonstrate is a firm rejection of the rigidity of Church law and the lofty spiritual vision of love. These courts created a legal space that bridged the gap between spiritual love and reality, helping its appellants and defendants to live and love ethically. In this way, the courts were able to begin to fuse romantic love with many of the courtly values that have been preserved in our culture today.
Canonists (Church lawyers) had a similar impact on the issue of prostitution. In the 12th century, as Jacques de Vitry vividly describes, prostitutes were a very present and visible part of society in many city-states. However, they were largely excluded from Church law, enjoying few legal protections and rights due to the inherently sinful nature of their profession. While this gave them a clean tax loophole, as many believed the church could not accept such sinful money, it left them permanently excluded from the rule of law.
Influential canonists such as Rolandus, who later became Pope Alexander III in 1159, controversially sought practical ways to reform the exclusivity of the law by encouraging prostitutes to marry. This was thought to have a moralizing effect, redeeming sinners and bringing them under the jurisdiction of Church law. With a similar goal in mind, efforts (approved by Pope Gregory IX) were then made to create religious orders of penitential nuns (known as “white ladies”) to help prostitutes adopt a life more spiritual.
The fact that popes were willing to compromise rather than forbid such sinful love realities again represents the influence of canonists in adapting the moral principles of Church law.
Many would argue that literature played a bigger role than lawyers in shaping courtly love. But, as we have seen in the work of Capellanus, the two often overlap. In medieval Iceland, however, where the composition of love poems was illegal, law books had an important literary function. At the time, entitlement was an established literary trope. Several important Icelandic sagas (e.g., the Njáls saga) feature lawyers as main characters and use court proceedings as prominent narrative devices.
Given this literary context, this seems plausible, and the style of court narratives in marriage cases had a moralizing function much like a fable. Scholars today struggle with the extent to which these sources should be treated as fact or fiction, suggesting that they may have served a dual purpose. So it seems that in medieval Iceland your “boring old report” was not only written and read by jurists, but also provided a source of moral discussion and guidance to the local community.
The audacity of love courts, the pragmatism of canonists on prostitution, and the influence of thought-provoking Icelandic law reports show how legal practice created a space in which love could be discussed in the face of institutions. oppressive. The result is our modern understanding of love. So this Valentine’s Day might be worth thinking about the lawyers who helped you fall in love.
William Holmes is a future trainee lawyer at a Magic Circle law firm.
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