Around the year 1000, Latin Europe was, generally speaking, a cultural, economic, and political backwater, with the glories of ancient Rome but a dimly recalled memory. The economy was stagnant and there was no centralized or centralizing state power strong enough to bring together the often warring petty states of the region. Consequently, there was little money or opportunity to keep the ancient knowledge alive, much less to create anything new. By the fourteenth and fifteenth centuries, however, this had all changed. By then, Latin Europe contained many strong, centralized states whose economies were booming despite the fighting that plagued the continent almost incessantly. The knowledge of the ancients, once almost lost, had been rediscovered and developed further. Philosophy, scientific enquiry, and medical knowledge became revivified, permitting further discoveries that would eventually lead to Europeans striking out from their homelands to discover the rest of the world.

It was the institution of crusading that was in large part responsible for this transformation in the continent's condition, for it was via the crusading arenas that the knowledge of antiquity, kept alive in the Islamic world and in Byzantium, passed into Latin Europe. The primary arena in which this occurred was the Iberian Peninsula, which was drawn into the crusading movement during the twelfth century as the Christian kingdoms of the north expanded southward and conquered territory from the Muslims during the Reconquista. Yet scientific exchange also occurred in Sicily and southern Italy—where the eleventh- and twelfth-century Norman kingdom and the thirteenth-century Hohenstaufen state contained significant numbers of Muslims, as well as Greek-speaking Greek Orthodox Christians—and in the eastern Mediterranean, where the crusader states provided Latin Christians with close contact with the central Islamic lands for the first time. In these three areas, Latin Europeans enriched themselves by rediscovering knowledge in a number of different fields, eventually leading to the creation of the modern world.

Language Learning

The main mechanism by which all knowledge exchange between Christians and Muslims occurred was through the acquisition of at least one of the languages of the other religious group.

At the end of this brief overview—which has covered no less than an entire millennium!—many questions necessarily remain open, not least what all this means for us today. In recent years, the idea(l) of the nation-state has once again become prominent. So prominent, in fact, that it visibly endangers the accomplishments of a long-term process of political, administrative, and cultural unification in Europe that had and has several objectives—including securing peace between the member states of the European Union (and beyond).

As we have seen, the experience of the World Wars was a major motivation for historians of the post-war period to analyze the Middle Ages in European terms. Several decades after the first pioneering works, the results remain ambivalent: analyses that consciously apply a European framework to medieval history are no longer rare, but many publications still tend to choose the modern borders between nationstates as their frame of reference. As to the more conceptual approaches that seek to analyze the history of the “idea” of Europe, the outcomes are equally hard to gauge. Some of the initial results presented by Fischer, Hay, and others, clearly must be revised: Europe was neither a “rare” notion in medieval texts (especially since it is hard to evaluate exactly how many—or how few—appearances might justify such a qualification), nor was it “purely geographical.” The latter insight is of some importance if we want to adequately describe the mental landscape of the people who lived in the period that we call the Middle Ages. In a cultural setting where the material world was interpreted as God's creation and where everything could acquire symbolic value as a representation of the creator's work, the very idea of the “purely geographical” seems out of touch. And while Europe basically never became a clear-cut political concept during the Middle Ages (in this respect Fischer and Hay were certainly right), it still acquired significant and wide-ranging cultural connotations.

But what might the insights into these connotations tell us today? For one thing, they allow us to avoid misunderstandings that often lead to the misuse of history: Charlemagne certainly did not perceive himself as a “European” ruler, though historians and politicians of the mid- and late twentieth century were quite successful in presenting him as such.

WHILE SCHOLARS OVER the last thirty years have convincingly demonstrated that later eleventh- and early twelfth-century elite women routinely acted as lords, the prevailing interpretation is that after 1150, countesses and their noble peers were increasingly excluded from the direct exercise of power by the extension of administrative kingship and feudalism, and, for some scholars, the development of patrilineage and primogeniture. Thus, three entwined developments—feudalism, the growth of administration, and inheritance practices—are key to understanding if noblewomen exercised lordship in the period of ca. 1150 to ca. 1260. While I reject that power resides solely in offices (traditionally gendered male), noblewomen’s access to power stemmed in part from official duties and authority that resided in inherited lands and fiefs. Thus, like noblemen, noblewomen’s dynastic and official power derived from their inheritance of land and fiefs. There is considerable scholarly debate over the existence of feudalism, and, if it existed, when it arose.1 My own position is that prior to the early twelfth century, feudalism was not a coherent system of land tenure; however, by the thirteenth century, fiefs, dependent tenures, and feudal practices were increasingly critical ele-ments of governance. The growth of administrative kingship in France, including feudal rights, takes off under Philip II (1180–1223). As such, it is necessary to establish the impact of feudal practices on elite women and their lands, and thus its effects on their governmental power.

Prior to Philip II’s reign, there is little evidence that the Capetian kings asserted their authority over the magnates through fealty, homage, marriage, wardship, or knight service. As early as 1180, Philip II began recording the obligations of all his vassals and including a list of pledges in order to enforce these obligations. Royal administration became increasingly bureaucratized in the wake of his preparations to depart on crusade in 1189. In 1202, Philip moved from theoretical to enforceable rights when he imposed the judgment of his court over John, duke of Normandy and king of England, in the matter of his marriage to Isabelle of Angoulême. After the acquisition of Normandy (ca. 1204), Philip and his closest advisors worked to record and supervise the royal rights of suzerainty in the royal registers. In addition, by the late twelfth century, kings and lords were increasing their control over heiresses’ marriages, and inheritance practices were coming under limited statutory elucidations.

“DEVIANCE” AND “CRIME” are terms usually applied to behaviour or actions. Can an idea be deviant or criminal? Or is this what we say about the person who holds it? The censorship of ideas in thirteenth-century Europe offers particular insights into the ways in which ideas themselves can be categorized as deviant—that is, denigrated by normative systems—and outlawed or perceived to be outside the law. By professing the idea, a person could be condemned and punished, but the idea itself also carried the taint of crime. This impression, while not based on a legal definition of crime or involving the absurd possibility of inflicting punishment on the idea, was nevertheless a perception shared by many people in the circumstances analysed here. The discussion below looks at the distinction between criminal people and, in the view of medieval protagonists, criminal ideas. It shows how legal measures criminalized ideas through the use of certain labels; and it identifies perceptions of ideas as criminal, even in the absence of legal measures. To draw out the powerful ways in which ideas can be treated as not neutral but criminal, the discussion concludes by showing how the criminal status of ideas could condition perceptions about people—even when those people were conscientious in their handling of the ideas and did not intend to be transgressive.

The ideas under discussion here are not socio-political, potentially revolutionizing a society or its government (as in the introduction of a commune system), but philosophical and religious. Censorship of ideas and investigations of culprits holding them were by and large carried out by the Church, with secular authorities performing punishments in cases of individuals found by the Church to be heretics. In general the ideas were religious, such as the belief in two deistic principles which Cathars were accused of holding. The focus of this article is marginalized ideas which were not religious in themselves, yet trespassed on religion by conflicting with central beliefs. This was the case with certain Aristotelian philosophical/scientific theories that caused controversy in academic circles in the thirteenth century. The theories were newly introduced into Latin Europe through the translation of ancient Greek and medieval Arabic philosophical texts over the twelfth and early thirteenth centuries. They sparked controversy because they were regarded as denying fundamental Christian beliefs.

THEFT OCCUPIES A very particular place in the history of “deviance.” If our definition of crime follows that chosen by those responsible for punishing it, theft was by far the most common type, and certainly the most prosecuted. Theft was unanimously perceived as a serious transgression, which threatened both morality and law, and which undermined political and social order, as well as the balance of commerce. It was a major crime. However, it was not treated in the same way across Europe. The penal response to theft varied according to period and region. Socio-political considerations meant that sometimes theft was dealt with via composition, sometimes by punishment, sometimes according to a logic of reparation, sometimes in the interests of the common good. It was shaped by the power or dissolution of public authority, from the Carolingian empire to fragmented lordly rule and feudal relationships. Roman law, forgotten and then rediscovered, was also an important influence. Finally, it was intertwined with anxiety about sovereignty when the public peace was threatened by the growth of brigandage and apparently sustained by the intervention of royal justice.

The repression of theft sheds particular light on the complexity of the relationships which bound members of a society and their shared values. At the same time, the category of theft involved a strikingly disparate group of actions, both in substance and in gravity: theft included all incursions on property, from petty theft and pilfering, to felonious theft, and armed attacks. Responses ranged from fines to death, and varied according to circumstances, and the profile of the accused. Courts assessed the role of thieves differently in different areas. Prescribed punishments, in particular violent ones, tended to parallel the evolution of the growth of public justice, both in how they were carried out, and in terms of the theoretical framing of the punishment. At the end of the Middle Ages, legislation against, and repression of, theft, became major political strategies, centred on the preservation of peace and the protection of the common good.

When medieval clerics wanted to evoke the reign of sin and disorder, they often drew on biblical tradition and the Church fathers, and used the metaphor of the Speculum latronum (Jr 7:11). Theft apparently destroyed the trust which should govern a community, and thus undermined the community itself.

Muslim Perspectives on Latin Europeans

Over the course of the nearly 200 years of the crusading period, Muslim writers produced many works describing the Christians from Europe. Most of these were less than flattering. They describe them as physically unclean, sexually promiscuous, having strange and exotic funeral practices, and (perhaps unsurprisingly) extremely belligerent. To these parochial (to the Muslims) practices was added the belief that they were religiously backwards, stubborn adherents to a religion that had been superseded by Islam. Of more direct concern, however, was that they were also religiously unclean, with the resultant belief among many of the more fundamentalist Muslims that the Franks’ mere presence around Islamic sites was enough to pollute them spiritually.

These perspectives did not begin with the Crusades. Instead, they had their origins centuries earlier, and on two main bases. One of these were various Islamic texts, such as the Quran, hadith (the supposed sayings of Muhammad), and biographies (sira) of Muhammad, all of which contain sometimes strongly anti-Christian sentiments. These had originally been employed against the Greek Orthodox Byzantines but were taken and then applied to the Latin Christian Franks upon their appearance. The other consisted of primarily geographical works composed by ancient Greek authorities, such as Pliny and Strabo, which had been translated into Arabic and then incorporated into the Islamic worldview. In the latter,, a primary feature was the theory of the climes, which asserted that where a people lived in the world determined their appearance and behaviour. The Muslim world was in the third and fourth climes—the best ones—and so they viewed themselves as being the most attractive, cultured, sophisticated, and intelligent. The Latin Europeans, on the other hand, were in the fifth and sixth climes and so were stereotyped by Muslim writers as ugly, lazy, stupid, and backwards, in what was little more than a racist trope.

One such example can be seen in the following words by Said b. Ahmad, who was writing in the late eleventh century:

For a medievalist who lives and works in the early twenty-first century, writing about Europe is a highly ambivalent undertaking. Some readers might be tempted to argue that the topic hardly merits our attention, since they consider the medieval evidence too sparse or too inconclusive. Others might think that the choice of subject constitutes per se an unwelcome relapse into Eurocentric tendencies. In any case, it seems clear that the subject inevitably evokes current political debates. Whether one subscribes to the conviction that Europe merits becoming the framework for an increasingly interconnected and profound political and cultural community or, to the contrary, clings to the, historically speaking, relatively new belief that people are best organized in the form of nation-states, talking about Europe has political overtones.

Having studied the use of the notion of Europe for quite some time now, I am very conscious about these effects. It might thus be helpful to clarify my own position: Born and raised in late twentieth-century Germany, I was seventeen years old when the Berlin wall fell. I grew up to be deeply convinced that the European Union (EU) constitutes a vital means of overcoming the numerous problems that the nation-state entails—and I still stand by these convictions. As an historian, however, I am also convinced that political questions and problems cannot be solved by looking backwards: history does not furnish ready-made answers. What it can do, is provide alternative perspectives and information that helps us to better understand our problems in the first place. What we choose to do remains our own responsibility.

In this sense, I would like to stress that the material and the interpretations I present in this little book should neither be read as an affirmation of current EU-policies—nor as their rejection. My work as an historian focuses on analyzing and understanding how people used the notion of Europe in the medieval past and which ideas they connected with that term. I can see no convincing argument that would force us to accept that the phenomena we can see here determine or justify any specific modern interpretation of “Europe”.

FOR MEDIEVAL JEWS, marriage was the only normative framework for sexual gratification and biological reproduction. Marriage bonded a man and a woman together through a complex matrix of economic, legal, and cultural obligations, and established the nuclear family as the basic unit of the community. As such, marriage and the family stood at the confluence of multiple concerns of crucial importance. Marriage occasioned “horizontal” transfer of wealth between different families as well as “vertical” transfer across generations. Proper marriage not only legitimated biological reproduction, it also endowed the resulting progeny with recognized genealogy and social identity. The family was the primary site for the socialization of such progeny, and thus constituted a key locus for social continuity between the past and the future. Indeed, numerous Jewish rituals take place within a family setting just as normative religious texts legitimize and valorize the family as an institution. Marriage and the family also provided one's closest allies and associates. Last, but not least, marriage and raising a family were considered essential for emotional satisfaction and happiness.

With so much at stake, it is little wonder that society tried to regulate marriage and the family. As Maimonides, the great jurist-philosopher living in Egypt in the second half of the twelfth century, began the Book of Women of his legal code:

Through witnesses, the private act becomes public and is subject to social and legal surveillance and control. Indeed, as the self-appointed leaders of Jewish communities, the rabbis made marriage and the family into a major concern of their scholarly tradition early on. With statements like “He who does not know the laws of divorce and betrothal, should have no dealing with them” they sought to carve a monopoly over the arrangement and dissolution of marriage. The regulation of marriage was accompanied by supervision of perceived threats to it, such as interaction between the sexes and extra marital sex.

CATEGORIES OF DEVIANCE are so often bound up with articulations of political power. They work practically to control and manage, but also often draw on political ideologies for their logic. As this section shows, however, political ideologies cannot be disentangled from other normative frameworks: the religious, the moral and ethical, the economic and so on.

This part opens with an article by Michael Hope on treason in the Mongol empire. “Treason” of course fails to translate the precise critical concepts. Hope focuses on the idea of bulqa, which encompasses rebellion, chaos, and disorder. This could be caused by the betrayal of oaths, by breaking laws, or by challenging the social hierarchy: in other words, it was at once an offence against individuals, against a political system, and against social order more generally. The importance of avoiding bulqa was underpinned by a sense of the heavenly mandate—not just an earthly order, but a cosmologically-ordained order was at stake.

The importance of the “great principle” both sustained, and was sustained by, the political ideology of the Mongol empire. Hope explains that order and disorder were articulated in terms of respect for Chinggis Khan's legacy, the great Khan whose actions had unified the peoples of Inner Asia from 1206. He claimed that he needed to impose order because otherwise things fall apart as with “women who have no husbands; as horses who have no pastures.” The normative force of this legacy in defining deviance was threefold: Chinggis's edicts were to be respected, his precedents were apparently sacrosanct, and reverence for his family was to underpin political behaviour. Actions which transgressed any of these three could cause bulqa, and were offences of the most heinous kind. The temporal dimension of this is really important: notions of treasonous deviance were rooted in genealogical respect for this founder of the Mongol dynasty. But, as Hope points out, the temporality of legal authority here was more complex, as most of these rules actually pre-dated Chinggis and originated with the seventh-century precedents of the Törü. This was a normative system, then, which combined the authority of ancient lore with a strong sense of dynastic loyalty.

Indeed, concepts of loyalty and obedience underpinned Mongol notions of treason. Crimes which were punished involved disobedience. Readers might ask whether such stringency arose in part from the requirements of a nomadic empire.

THIS CHAPTER EXPLORES the rise of the Almohads, a radical religious movement that arose in the 1100s, but had an impact that resonated down through the ensuing centuries. By looking at North Africa (the Maghrib) and Islamic Iberia (al-Andalus), it provides a medieval Muslim case study showing how one regime defined religious deviance, the political implications of that, and its contestation by other social actors who inverted the narrative in sometimes radical ways. The Almohad definition of a true Muslim and a just religio-political order resonated widely through twelfth-century Maghribī society but like any such discourse it could be appropriated and modified, particularly by other claimants to religious authority and charisma appearing at the time. The competition between monarchs and holy men to control narratives of righteousness versus deviance, and determine what was or was not criminal, initiated in this crucial phase was to become a long-standing feature of religio-political life in the western Maghrib.

It is important to recognize at the outset that the developmental trajectory of Islam very quickly became imperial and, therefore, differed significantly from the early Christian experience. The Prophet Muḥammad formed a new social and political as well as religious community and early Muslims set about founding an empire before the religious and legal edifice of Islam was fully formed. As Aziz Al-Azmeh has shown, Islamic ideas about the imbrication of the religious and the political were deeply rooted in a variety of models of Near Eastern kingship which infused the monarch with a divine aura and entwined religion and politics in a manner that shared much with the Byzantine vision.

For this reason it can be difficult to disentangle religious and political ideologies in the Islamic context and we often speak of the “religio-political” because religious reform or new interpretations of Islam tended to dovetail with the formation of new political structures in keeping with the paradigm laid down by Muḥammad. This generated contested categories with new movements claiming religious rectitude while their opponents perceived their position as heterodox and deviant. If they had the military might, however, such minority movements could become ruling powers, able to impose their political will upon the territories they acquired.

Introduction

This chapter will begin by highlighting the salient features of the discourse on “rape” and sexual offences in medieval Islamic legal texts with the aim of highlighting the expansiveness of “rape” as a legal concept. Accordingly, the chapter will be divided into several parts. First, I will offer an introduction to the topic and delineate the methodology used in this chapter. Then I will outline the different kinds of “rape” legally recognized as criminal offences and part three will deal with the different forms of justice suggested for these crimes. Finally, the last part will conclude by exploring the implications of the expansiveness of medieval Islamic legal condemnations of sexual violence.

The term “rape” is used in this study in the broad sense recently defined by Pillay as a “physical invasion of a sexual nature committed in circumstances which are coercive.” This definition was chosen for various reasons. First, it does not follow previous definitions of rape, often based on an assumed and inadequate binary of violence or consent. Defining rape as a crime of violence has been criticized for privileging violent sexual assaults, especially stranger rapes, and proof thereof; this focus can obfuscate the more widespread acquaintance rapes that do not resort to the violent suppression of the victim's will. Furthermore, definitions of rape that locate the wrongfulness of rape in the negation of the victim's consent often shift the focus of rape investigation onto the nature of consent or dissent, the victim, her demeanour, sexual history and so on, rather than the perpetrator. Pillay's definition makes coercion the base for the wrongness of rape. This definition includes myriad sexual acts under the rubric of sexual violation without tying such sexual “invasion” to a particular gender, in terms of the victims or the perpetrators. The medieval primary sources explored in this study are similarly capacious in terms of the conception and definition of sexual violence. Consequently, I use the term “rape” in the broadest sense possible to indicate a wide spectrum of sexual offences.

Medieval and premodern Islamic legal texts interested themselves in sexual offences involving violence, coercion, threats, or seduction. Indeed, rape was portrayed as complex and differentiated, and defied a single monolithic definition.