Inheritance Law and Political Theology in Shakespeare and Milton

Election and Grace as Constitutional in Early Modern Literature and Beyond

Joseph S. Jenkins

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138267138
• eBook ISBN: 9781317116646
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Reading God's will and a man's Last Will as ideas that reinforce one another, this study shows the relevance of England's early modern crisis, regarding faith in the will of God, to current debates by legal academics on the theory of property and its succession. The increasing power of the dead under law in the US, the UK, and beyond-a concern of recent volumes in law and social sciences-is here addressed through a distinctive approach based on law and humanities. Vividly treating literary and biblical battles of will, the book suggests approaches to legal constitution informed by these dramas and by English legal history. This study investigates correlations between the will of God in Judeo-Christian traditions and the Last Wills of humans, especially dominant males, in cultures where these traditions have developed. It is interdisciplinary, in the sense that it engages with the limits of several fields: it is informed by humanities critical theory, especially Benjaminian historical materialism and Lacanian psychoanalysis, but refrains from detailed theoretical considerations. Dramatic narratives from the Bible, Shakespeare, and Milton are read as suggesting real possibilities for alternative inheritance (i.e., constitutional) regimes. As Jenkins shows, these texts propose ways to alleviate violence, violence both personal and political, through attention to inheritance law.

Introduction
Theological Will and Human Last Will

Theological Will and Human Last Will

This study investigates correlations between the will of God in the Judeo-Christian tradition and the Last Wills of humans, especially dominant males, in cultures where that tradition has developed. These are Durkheimian correlations, between elementary forms of religious life and socio-legal forms.1 Assurance that survivors will enforce one’s Last Will empowers the dominant male’s will in general, even during his lifetime, giving the impression of Godlike omnipotence in his own smaller realm. Similarly, the theology of Godly omnipotence, including the eternal validity of God’s Word and Covenant, may influence the dominant male’s expectations concerning enforcement of his own Last Will.2

This investigation is concerned with the powers of particular inheritance law regimes to form, to constitute, ways of life. Through various forms of inheritance law, including Last Will, forebears struggle both for and against their followers in time. These tensions are ardently ambivalent, touching places far beyond the usual purviews of legal studies. Forebears—fathers, mothers, monarchs, poets, gods, even state bureaucracies—speak of willing “the good” for their followers. But they also desire, and often require, that their Word be that good. Followers—sons, daughters, readers, subjects, creatures, citizens, and others—are thus magnetized but also repulsed by their loving forebears.

The very extent of this study’s relevance is also one of its greatest challenges. The approach here is to focus on a moment of crisis concerning belief in the will of God: the limit point of late medieval speculation on the absolute nature of God’s will (nominalism), which paradoxically begins the fall of God’s will, his election, as legitimating instance. This study reads early modern English culture, and Shakespeare’s and Milton’s texts in particular, for symptomatic traces of that trauma’s enduring insistences. And in that these texts remain compelling today, this study considers ways that the trauma that marked them may continue to insist. As noted in recent studies of the “post-secular,” reports of the one God’s death may be premature.3 Similarly, the enduring, canonical status of Shakespeare and Milton is both a survival of the fatherly pretensions of forebear poets (their Word as all powerful, immune to time’s vicissitudes, not fallen at all) and a choice of poet fathers who obsessively address the fatherly pretension as such, including its politico-theological implications. This is a book about inheritance law in the mainstream sense of the term—succession of sovereignty and private property—but also inheritance law as addressed through the religious and poetic Word. Only this Word has the power to reveal the creative and destructive desperation that constitutes lawgiving, including Last Will, in the shadows of death. An inheritance law study that shuns this Word, for the seemingly more reasonable and practical approaches of most legal academics, does so at its peril. Violence in the coming generation may depend on the ways it handles its forebears’ desperate insistences.

Reading Early Modern England as It Relates to a Limit Moment for the Willful Subject of Divine Election

It has often been noted that Paradise Lost seems to offer Satan considerable sympathy. The poem can have compassion for Satan’s resentment because of his dis-appointment under the Last Will of perhaps greatest weight in the western tradition: the Father’s proclamation of his “begotten” Son, to which all the created universe, including archangels of the highest degree, like Satan, must bend the knee. Chapter 7 elaborates structural parallels and provocative choices of diction in the poem—for instance, similar temptations aimed, by both Satan and God’s Raphael, at Adam’s desire to know. These leave obvious traces of sympathy with Satan’s follower position vis-à-vis the forebear God. One reason this study reads Shakespeare and Milton together is to juxtapose their attitudes concerning tensions between forebears and followers. As will be argued presently, both writers tend toward sympathy with the follower, while interweaving issues of religion, the family, and the state. In Shakespeare, sympathy is given to the follower even in surprising cases, like that of Macbeth as follower to Duncan (see Chapter 3). In Milton, however, there are limits to this sympathy. For instance, insofar as Satan is a figure for republican rights—the rights of the people as followers of the state—the poem’s backing for these rights is weakened by a certain elitism, dissatisfied with commoners’ levels of skill at “reasoning” in the ways that Milton had envisaged.

While the focus of this study is early modern England, tensions between forebears and followers have existed throughout the western tradition. The tension is universal but it plays out contingently; resolutions are apparent and provisional. To emphasize the longevity of the problem, one might cite a span from Zeus’s overthrow of the Titans in the pre-Homeric oral tradition; to Oedipus’s tragedy (including its later Freudian appropriations);4 to Gnosticism’s challenge to early Christianity’s creator God (its forebear God); to Shakespeare’s and Milton’s works as read by this study; to the eighteenth-century literary battle between the ancients and the moderns; to Wordsworth’s rejection of neo-classicism and appropriation of nature itself (a most powerful forebear) to the poet’s own mind; to twentieth-century modernism’s rejection of traditional cultural forms; and to media fascination, including revulsion, with the heiress Paris Hilton in the twenty-first century—a case that implies, if one listens with care, the currency of inheritance law reform questions, questionings of the forebear generation’s right to control attributions of private property in following generations.5 This book puts this ongoing legal and political question, given additional urgency by the financial collapse of 2008, into cultural contexts that span many centuries. It chooses to focus on early modern moments, through its emphasis on Shakespeare and Milton, because modernity itself comes on essentially as competitions for legitimacy between something like forebear and follower notions: between the authority of what is customary or ancient and trust in innovation, faith in the new. It should not be surprising that in early modern England Debora Shuger finds a language of the sacred—the sacred as a locus sought for in the state—largely foreign to twenty-first century ears.6 This early modern language of political theology, noted by Shuger, might be read as a symptom of the limit moment concerning divine election (the absolute will of the God of nominalism, which has placed its subjects in an unbearable state of exception) on which the present study focuses.7

Blanket arguments that inheritance law has “always” been as it is, and thus should not even be discussed in view of reform,8 not only fail to take account of the very advent of modernity, including its extended and arduous rethinking of presuppositions concerning legitimacy; they also fail to address important transformations in property and inheritance law that took place even during the late Middle Ages. As will be discussed in Chapter 1, from the eleventh through the sixteenth centuries, a family’s possession (seisin) of land in England moves from a merely current status, subject to the continuing discretion of a lord, to a legal right with a history and a future. In addition, the right of the family father to control succession by something like Last Will, vis-à-vis his children and others, also undergoes significant changes during that period. This study’s analysis of “feudal” inheritance law (in fact, these movements from status to right themselves mark limits between the feudal and the modern) helps us not only understand the contingency of inheritance law regimes, but also to experience the interplay between control of sovereignty, including over its own succession, and control of subjects’ estate transmission (of something like succession of private property today).

With certain exceptions (one of which, in Richard II, is about to be discussed), in Shakespeare’s plays succession issues often concern the crown rather than subjects’ estates. And yet the present study argues the relevance of these plays (for instance, Macbeth and Hamlet) to legal questions concerning private property estates today. Crucial to such arguments is the understanding, from the outset, that a simplistic analogy between father and son and king (or state) and subjects just will not do. Not only in the history of English common law, on which this study focuses, but also in ancient Roman law,9 the at-death succession of subjects’ rights, especially those of powerful subjects, is an aspect of law that is calculated by the sovereign as a means of cementing its own grip on power, including control of its own succession. This indicates that such a calculation should be made anew each time circumstances change, as a means to facilitate a polity’s survival. Thus, to the extent that “the people” are sovereign today in western democracies, a similar calculation is incumbent upon them regarding the appropriateness of inheritance law. If inheritance law is constitutional law—and it seems to be so in every circumstance discovered by this study—then the sovereign people’s actions to consider its reform may be a paramount constitutional duty.

This Study’s Genealogy: the Turn to Religion, Psychoanalysis, Benjaminian Materialism, and Law and Literature

This study follows what Arthur Marotti and Ken Jackson have described as a “turn to religion” in early modern studies.10 They see this turn as the belated result of a flaw in new historicist methodologies that has become apparent over time: its treatment of religious discourses and practices merely as aspects of culture. New historicism, in Marotti and Jackson’s incisive sketch, is concerned primarily with relations to cultural “others”; it catalogues ways that descriptions of certain discourses and practices as foreign or strange (as “other”) are correlative with imaginative constructions of the “self,” which do violence to “others” to consolidate the “self” (witness the title of Stephen Greenblatt’s seminal new historicist study, Renaissance Self-Fashioning). According to Marotti and Jackson, religious discourses and practices cannot be treated simply as additional articulations of cultural text, because the new historicist assertion that the “other” fashions the “self” relies on a philosophical insight that refers above all to the absolute other—to God, in western monotheism. There is always a gap in symbolizations of the self’s world; the absolute other, God, takes His place at this gap.11 This absolute other, as gap in the symbolic, cannot be a principle of explanation; it is rather instantiated as impossible demand.

The psychoanalytic terms of Jacques Lacan are helpful in thinking this through. Lacan says that the Other’s desire is “in you more than you.” Lacan’s “Other,” with a capital “O,” is the symbolized world in which the self finds its place; and God, in monotheism, takes His place at the inevitable gap in that symbolization. In short, God plays a fundamental structuring role in the subject’s desire, its “self-fashioning,” including Renaissance culture’s “self-fashioning.” References to God are as different from references to, say, racial others, as the always-already-lost-object (with its ever-insisting impossible demand) is different from a particular object on which the subject’s desire temporarily fixates.

This study, with its focus on tradition’s insistence as it passes from forebears to followers (its focus on passage of “the Word’s” excesses), and its analysis of such passages’ religious inflections (their structure as revelation; see Chapter 1), participates in the “turn to religion” described by Marotti and Jackson—hopefully with sufficient awareness of its philosophical stakes. In this study, the gap as impossible demand is analyzed in its temporal dimension, as insistences of forebears in the forms of election and grace that accompany the Word and register with followers as excessive. Note that the structural place of the gap, emphasized by Marotti and Jackson, is taken in this study rather by the forebear than by God. One could say that this analysis—under the emblem of Jacob’s wrestling with the angel in Genesis 32 (see Chapter 1)—traces effects of this gap (at the place of the eternal) on traditions received through the saeculum. This study’s suggested reading practice, engaged with the excesses of received grace, addresses what Marotti and Jackson call the fundamental problem of God’s impossible demand. Each generation wrestles, Jacob-like, with that demand. It receives it as excessive, feels its cut, and then passes on, in a kind of chain reaction, another cut to the following generation.12 The wager of this study is that law can take account of this structuring and, with the aid of this account, develop strategies to mediate—perhaps disperse and concentrate as appropriate—its violence. The insistence of the forebear, already a mediation of God’s impossible demand, takes material support through the enforcement of state law. Inheritance law is the field that transforms such personal insistences into state enforcements. These are complex interactions readable both in legal histories and early modern literature. Chapter 1’s analysis of the English common law’s origins begins to outline the complexities involved as the sovereign adjusts, under varying circumstances, the constituting power of various schemes of intergenerational enforcement—schemes with the primary aim of maintaining the sovereign’s own power. For instance, lords’ rights to divide their estates will emerge as feudal military hierarchies convert to flatter commercial frameworks. Not least of the issues, as we will see, is the difficult question of what kinds of mediation of tradition’s excesses—of election and grace in the form of forebears’ Last Wills—should be pursued. Among other things, at stake here is not only the follower’s freedom to create, to escape attempts by the forebear’s will to confine her utterly (for instance, through a family father’s strongly conditioned Last Will, or through the enforcements of a totalitarian state, or through the election of a God who demands the utmost in bodily renunciations); also at stake is the interest of the state’s (as well as the ego’s) aptness to endure over time. These two crucial but conflicting stakes are considered in the final chapters of this book, beginning with Chapter 6, on Machiavelli, and continuing through the epilogue. One way of giving both their due is suggested by Hannah Arendt’s The Human Condition: a polis organized as collective remembrance of past public “actions” (in Arendt’s sense of the term), as remembrance of willfulness in past deeds that exceeds the means and ends of particular wills.

This study is indebted to...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures
• Acknowledgements
• Introduction: Theological Will and Human Last Will
• Inter-Chapter Theory Signpost #1
• 1 Reading for Revelation, Election as Willful Curse, and Grace in the Origins of English Common Law
• Part 1 Sons
• Part 2 Daughters
• Part 3 Republicans
• Epilogue: A Humanities-Based Approach to Current U.S. Inheritance Law
• Bibliography
• Index