Law in the Courts of Love

Literature and Other Minor Jurisprudences

Peter Goodrich

• Publisher: Routledge
• Year: 2002
• Topic: Languages & Linguistics
• eBook ISBN:
  9781134925780
• Subtopic: Linguistics
• Index: Languages & Linguistics

Law in the Courts of Love traces the literary history and diversity of past legal systems. These 'minor jurisprudences' range from the spiritual laws of the courts of conscience to the code and judgements of love handed down by women's courts in medieval France. Professor Goodrich presents the 15th Century Courts of Love in Paris as one instance of an alternative jurisdiction drawn from the diversities of the legal and literary past. Their textual records are correspondingly mixed in genre, being in the form of poems, narratives, plays, treaties and judicial decisions. More broadly, these studies trace certain boundaries of modern law and make up one of many forms of legal knowledge which escape today's vision of a unitary law. The author believes that the unquesionable faith in a unity law and its distance from person and emotion is precisely what makes impossible the attention to the individual that justice ultimately requires. Law in the Courts of Love shows how the historical diversity of forms and procedures of law can competently form the basis for critical revisions of contemporary legal doctrine and professional practice. This book will be of interest to undergraduate and postgraduate students of law and literature, critical legal studies and legal history, or anyone wishing to specialise in feminist legal theory.

Chapter 1

Salem and Bizance

A short history of the two laws

The study of law or jurisprudence, according to one of the earliest definitions recorded in the Digest, is ‘the knowledge of things divine and human, and the science of what is just or unjust’.¹ Equivalent definitions elaborated legal study as ‘true philosophy’ and as the ‘art of the good and the equal’.²Law, in other words, was never a merely temporal or secular study, nor was the substance of law ever to be conceived as divorced from its spiritual essence. The positive forms of law, in short, were inevitably and inexorably bound to the methods of an art and the criteria of justice and truth. The Renaissance reception of Roman law reiterated a classical tradition which consistently subordinated municipal or local rules to the image of a universal and theocratic source of law. The order of legal method was thus one which for obvious reasons gave priority to the divine origins of law and ordered the means of temporal justice according to a hierarchy of differing titles of legality. It was not simply that the art of law aspired to wisdom, but rather that the discipline and practice of legal judgment were predicated upon a series of higher orders of knowledge. Even in a late sixteenth-century primer or preparative to legal study, the depiction of law as embedded in the concerns of justice dictated that the law student be familiar with the substance of legal rules only after acquiring a knowledge of and respect for those disciplines which came in advance of law, namely, the rules of divinity, nature, moral philosophy, logic and grammar.³

Insofar as the claims of other disciplines and the dictates of other laws sound strangely in the context of contemporary jurisprudence, which conceives itself to be a modernist science subject to distinct and autonomous rules of legal method, it is worth spelling out this initial historical observation somewhat further. In philosophical terms, law was subject to a variety of other laws, and most notably those of theology, conscience and history. In institutional terms, the profession of secular law or in England of common law, was simply one of numerous legal jurisdictions, a pluralism of laws which reflected the hierarchy and diversity of the sources of knowledge and representations of truth. The courts spiritual, the courts of conscience and of the church, courts of honour and of equity as well as of specific localities and activities, of cities and forests, of trade and matrimony, of war and of the seas all subsisted under different laws, forms of knowledge or sources of justice. Far from being ‘pure’ or based upon the exclusion or repression of other disciplines, the classical tradition incorporated law into a complex and plural epistemological frame in which the diverse disciplines of particular courts and laws were subject ultimately to the dictates or criteria of an absolute knowledge only in part accessible to humanity and its fragile perspectives of reason and faith. In which pluralistic sense it might be noted finally that in hermeneutic terms the truth of law or of judgment was in each instance to be determined ultimately by reference to ontological rather than epistemological criteria. A text, a tradition or a reported rule might provide access to some aspect of nature or truth, but the criteria and methods of human law were only ever forms of return or of partial apprehension of a truth which belonged in its entirety to another order and to the being or essence of the divinity. The text was thus secondary to the meaning (mens legis), the word to the spirit (anima legis), the language of law to the force, power or virtue that underlies its enunciation.⁴

The argument of the present chapter will be that modern jurisprudence, and most specifically the doctrinal tradition of common law which developed in the first half of the seventeenth century, was predicated upon an indicative and historically significant repression of precisely those disciplines, knowledges and jurisdictions that constituted not only the plurality of laws but equally the spirit, virtue and meaning of legal judgment. In that it will not be possible to trace the full history of this displacement of jurisprudence from divine to human, from art to science and from justice to law, the argument will be based around the example of the polemic between spirituality and temporality and will suggest that the defeat or annexation of the spiritual jurisdiction was significantly constitutive of what might in more general terms be elaborated as a positive unconscious of legal science. In the concluding portion of the chapter it will be argued that the repressed returns and that the contemporary crisis of the legal form, its modern history of positivisation, irrationality and injustice are symptoms of the return of a distant and traumatic past, that of the repression of the spiritual jurisdiction and the exclusion or closure of law to those other knowledges which were inherent in its classical designation as being also a form of justice, an art which mixed spirituality and temporality, body and soul.

It is, finally, to the effects of the relationship between knowledge and power or jurisdictions that this chapter is addressed. The history of utrumque ius,⁵ of what can be termed the enfolding of laws, not only effectively repressed the trauma of the dissolution of the spiritual jurisdiction but it also reproduced the social subject, a symbolic or dogmatic subjectivity which could neither know nor directly address the law of its own subjectivity. In this sense, it is the institution which, to borrow the classical formulation of Roman law, institutes life, which functions vitam instituere in its specific forms.⁶ The study of the two laws thus offers elements of a prehistory of the modern subject of law and of its disciplines, a subject whose identity and contours were so copiously and evocatively drawn by Foucault in The Order of Things and in Discipline and Punish.⁷ It should also, however, be said that the period examined, principally that of post-Reformation law, both elaborates and undermines Foucault's thesis of the specifically modern character of discipline. The institution of a disciplined subject and its apparatus of conscience, the fascination or fixation of the body or surface to or by panoptic visibilities already had a history within spiritual law and its successor, the doctrine of common or Anglican jurisprudence.

THE MAN WHO MISTOOK THE LAW FOR A HAT

The conflict of jurisdictions and more specifically the relation between canon, civil and common law was an integral theme of the earliest common law treatises although it gained its most vehement expressions during the Reformation. Rather than review the polemical and apologetic literature in any detail, an indicative sense of the levels and the issues of the division between the different laws can be gained through reconstructing an example from an era somewhat after the re-establishment of the Anglican constitution. It is taken from an exchange between the Anglican Bishop Dr Edward Stillingfleet and the recusant divine Thomas Godden. In A Discourse concerning the Idolatry practised in the Church of Rome, Stillingfleet had defended the Anglican prohibition on the worship (latria) of images, but distinguished civil worship, and gave as an instance of permissible civil reverence the example of honour given to the State.⁸ It is against this example of civil worship that Godden reacts and towards the end of his treatise, entitled Catholicks no Idolaters or a full Refutation of Dr Stillingfleet's unjust charge of Idolatry against the Church of Rome, inverts the Anglican arguments against images by using them to ridicule those engaged in accepted forms of civil reverence.

Godden tells an anecdote of a countryman or peasant before the law. A gentleman passing the Royal Court observes a countryman being apprehended at the entrance to the Court by the ‘yeoman guards’ because ‘the clown, it seems, would have gone into the Presence covered. They pulled him back, and told him when he went into that room he must pull off his Hat’.⁹ He challenged that demand on the ground that he saw nothing in the Court but a chair and a canopy. On being informed that it was the king's Chair of State and that ‘he must do it to the chair out of respect for the King’ the countryman demands to know ‘whether any worship at all were due to the Chair or no?’ Mimicking the scholastic argument against St Basil,¹⁰ the peasant reasons that the reverence or worship shown to the chair has either to be the same as that given to the king or distinct from it. If the same, then proper regal worhip would be given to something beside the king, ‘which were treason’. If distinct, then the chair would be worshipped ‘with regal honour for itself, and not relatively, which were for a man to submit himself to a piece of wood’.

Aside from more general arguments as to the inconsistency of the Anglican position, for example, that it allowed people to bow at the name of Jesus or to kneel at the altar, Godden's argument is that the countryman's objections arise from a peculiarly English empiricism or indeed stupidity. The argument that a chair is a chair is a chair and no more, denies all sense of aesthetics, of history and of the symbolic. It also indicates an extreme inability to distinguish, or radical resistance to, the division between the visible world or ‘spectacle of things’ and the invisibility or force of which it is the spectacle.¹¹ The Protestant position against the image is presented by Godden both as repressive and as denigrating the subject that worships: civil worship simply implies, as does the use of images, an ability or intelligence capable of distinguishing ‘like pro-portionable reverence’ from the honour due divinity. In scholastic terms, honor est in honorante, honour resides in the mind which gives it. More than that, the image is simply writing, a mark of memory, a trace that can touch or depict or reflect the colours of the soul:

if one thing hath connexion with, or analogy to another, although invisible, when the former is represented to a person that understands the analogy or connexion there is between them, it is apt to bring to his remembrance the latter. Hence it is, that although the soul of man cannot be drawn in colours, yet when the body to which it is united, is represented in picture, the representation serves as a means to bring to our minds the perfections or graces of the soul which informs it; and not to draw them down to the figure and lineaments of a body drawn upon a Table, or carved in an image.¹²

Within this perspective latria and dulia can be distinguished by virtue of the difference of their object, one ending in or terminated upon the divine substance, the other relative to the signs or marks of divine governance or dominion.¹³ The idol, upon the same principle of reference, is distinct by virtue of transparency: idolum nihil representat, it is nothing, a simulation, rei mortua.

For the sake of completeness, Stillingfleet's response to Godden requires brief advertisement. The original claim had simply been that there was a category distinction to be made between Divine worship and civil worship and that ‘bowing towards the Chair of State’ or the king's picture or garments was ‘of the same nature with putting off of our Hats’ while in court or church; it was a relative or inferior honour and should be conceived as a natural act of reverence, similar to ‘that way which the ancient Christians did use to direct their worship’.¹⁴ At a more fundamental doctrinal level, the argument in relation to the Chair of State was linked to a distinction between two forms of law. Divine worship was to proceed without the use of either external or ‘inward images’ for the reason that God had so prescribed: the law, the second commandment, dictated that it was forbidden to worship by means of images. In the case of the reverence shown to the Chair of State, a separate and more secular source of law operated: ‘all expressions of respect depend on custom and the Prince's pleasure, or the Rules of the Court, the only question a man is to ask, is, whether it be custom of the Court, or the will of the Prince to have men uncovered.’¹⁵ It is the law of custom or the common practice of the court which determines the material or secular issue of reverence and while it entails an element of symbolism and of indirect representation, the knowledge of civil matters and common laws was, at least for Stillingfleet, distinct from those images that purported to relate to...

Table of contents

• Front Cover
• Half Title
• The Politics of Language
• Title Page
• Copyright
• Contents
• Preface
• Introduction
• 1. Salem and Bizance: a short history of the two laws
• 2. Law in the Courts of Love: Andreas Capellanus and the judgments of love
• 3. Eating law: commons, common land, common law
• 4. Specula laws: image, aesthetic and common law
• 5. Of law and forgetting: literature, ethics and legal judgment
• 6. Transmission and law: or, a sorrow beyond words
• 7. Fate as seduction: the other scene of legal judgment
• 8. Sleeping with the enemy: on the politics of critical legal studies in America
• Index