WHO IS LAW FOR?

One of the most famous clauses of Magna Carta states that law is there for everyone – ‘to no one will we deny right or justice’.  But we all know that everyone doesn’t mean everyone.  Who was excluded?  Quite simply, the charter only included freemen – and huge numbers In England in 1215 were technically unfree and therefore ineligible for the supposed guarantees and protections offered by law.  As David Carpenter puts it: ‘The barons might speak of ‘the common charter of the realm’, but it was far more common for some than it was for others’.  It was radical enough to frighten the pope into annulling it, but not radical enough genuinely to offer the same legal redress to every human being.

I think my point regarding the pared-down legal aid system is probably pretty obvious – law is not there for everyone (if, indeed, it ever has been).  Ken Clarke’s comment about recourse to other forms of negotiation basically means that litigation is only for those who can afford it.

Perhaps a more subtle perspective lies in the visibility of law.  By 1300, lots of copies of Magna Carta were being translated into the vernacular and posted in public places.  But, as Michael Clanchy points out, this wasn’t so much about legibility as about visibility.  The difference being that most of the viewers of the document couldn’t actually read it, but the posting of such a document in the vernacular was a powerful gesture which nevertheless ensured that the specifics weren’t understood in too much detail.  There’s obviously a level of hypocrisy here, intended or not.  Posting such a document is claiming accessibility for all to legal process, but failing to ensure that all are able to understand their rights.

This is surely a kind of hypocrisy that we should aim to avoid.  And one reason why a legal aid system which claims to protect everyone, whilst actually ensuring that legalism remains distant and obscure to many, is surely extremely pernicious.

SELF-HELP

Solomon in old age, c. 1866

In an attempt to obscure the basic financial motivation, Ken Clarke has justified the changes to the legal aid system by condemning what he sees as extreme litigiousness and claiming that ‘people will instead use alternative, less adversarial means of resolving their problems.’  As Joanna Biggs puts it, 'perhaps they imagine that if we all sit in a circle and share our grievances, without lawyers ruining it all, everything will be fine'.  There are many alternatives to litigation - sitting and resolving grievances over a cup of coffee is one of them.  Violent self-help is another.  The latter was, of course, particularly prevalent in the Middle Ages: even in the later period, when 'state' law was apparently more effectively promoted, we still find a bewildering variety of types of law to which people could appeal, and a range of extra-legal 'negotiation', often of a violent type, throughout Europe.

I don't honestly think that violent self-help will rise dramatically because people can't afford recourse to the law - though you never know.  But I do think that the kinds of clearly unacceptable power dynamics which emerge in violent self-help also characterise coffee-table discussions to resolve grievances.  One of the main points of law (and I'm well aware that it doesn't always work like this - but surely it's part of the theory of the way we now think about law - Magna Carta and all that) is to ensure that hierarchies which have nothing to do with the case don't shape the outcome.  In other words, the legal process is supposed to view all participants equally.  Resolving disputes in other ways doesn't necessarily provide this assurance, and all kinds of other factors come into play to ensure that those with power, be it of an economic or a socio-cultural kind (education, cultural capital, powerful friends etc), are in a stronger position.  

A case from Arras in the 1290s makes just this point.  A woman reached a financial settlement with the family of her son's victim, though the amount of the settlement makes it clear that the family must have been pressurised into accepting.  But there is an added twist when it emerges that the mother herself did not want to enter into these negotiations, but was blackmailed into doing so by the local legal official who took a chunk of the financial payment.

There are no obvious parallels here, and I'm suggesting neither that murder cases will be financially 'resolved', or that legal officials will be so blatantly corrupt - but I do think that these types of cases in the Middle Ages remind us of what we hope our legal system should achieve, and to problematise any easy notions that extra-legal solutions do not carry considerable inequities.

1215

This isn't my pin number.  It's the date of Magna Carta.  

I'm pretty appalled by the cuts to the system of legal aid, and I'm going to post some reflections on these each day of this week.  It's hard to know where to start in critiquing these changes, but it's clear that the right of a huge proportion of the population to a fair trial has been undermined.

British people, and particularly politicians, are fond of quoting the constitional freedoms apparently enshrined in Magna Carta: knowledge of this is supposed to be part of the preparation for the citizenship test.  And yet, one of the fundamental, and certainly the most quoted clauses of Magna Carta is the right of all to due process and a fair trial.  And, right now, this is being eroded in so many ways.

This is particularly ironic as many medieval historians are busying themselves for the 800th anniversary of Magna Carta in 2015.  There won't be much to celebrate, as freedoms and access to a fair trial become the preserve of the few.

But 2015 will mark another anniversary - Lateran IV.  This was the hugely important Church council in which the foundations were laid for the systematic persecution of religious difference.  At this rate, this will be a more appropriate anniversary.

If you're interested in Lateran IV, have a look at R. I. Moore's book, The Formation of a Persecuting Society (1987)

'ONLY MADMEN ARE CERTAIN AND DECIDED'

(Michel de Montaigne, Essais, 1.26)

Anonymous portrait of Michel de Montaigne

Having reached the end of term, this seems like a good moment to stop and think about what I'm trying to achieve with this blog.  If I could meet anyone from the past, I think I would choose Michel de Montaigne.  His Essais are a companion through life.  And what I admire so much about Montaigne is his exploration of the idea of doubt.  Through what he writes, as well as the way he writes it, he challenges dogma and certainty, whilst retaining moral integrity - to be able to hold the two in tension should be, I think, one of the greatest goals of civilisation.

With Montaigne as my guide, then, what I'm trying to do with this blog is to challenge myself to doubt and to question.  And it strikes me that this is really why I study history.  The past does not hold any keys for the present, but it provides us with ways to challenge ourselves and to reveal disjunctions, discontinuities and hypocrisies in our ways of thinking and responding to current events.  In other words, it enables us to throw our dogmatic responses into critical doubt.

Montaigne certainly didn't 'invent' doubt though.  Medieval discussions of doubting Thomas, the figure who couldn't bring himself to accept Christ's resurrection and had to touch his wounds before he believed, are fascinating in this respect.

Christ and Doubting Thomas, between 1477 and 1482, from the Basilica of Santa Casa, Loreto

Thomas was referred to disparagingly by early medieval theologians – as an unbeliever, he was an embarrassment -  St. John Chrysostom, for example, described Thomas as ‘grosser and more materialistic’ than the other apostles, and cited him as the epitome of the weakness of human faith and the inadequacy of many Christians – Thomas’s faith was insufficient to convince him of the miracle of the resurrection, and he would only believe when presented with visual evidence. 

In the later Middle Ages though, Thomas was reassessed.  An increasingly positive conception of the role of the senses in the spiritual life, particularly encouraged by the materialistic preoccupations of a growing commercialism, re-validated the figure of Thomas as one whose faith was based upon empirical evidence, and whose concerns about the origins of knowledge were shared by medieval people, particularly merchants, struggling to get to grips with shifting environments.

Second, anxiety about the Docetist and Arian heresies which negated the corporeal aspect of Christ’s humanity, meant that Thomas’ emphasis on the physical body of Christ was particularly welcomed by the established church and orthodox theology.  Thomas became the model theologian.

But third, and most importantly, Thomas was increasingly cited as a model for believers – his own personal journey from unbelief to belief described as paradigmatic for the Christian experience.

Commentators, notably Bede, focused upon the etymology of Thomas’s name, claiming that it originally mean ‘double’ or ‘twin’, and explaining that this ‘doubleness’ lay in his twin personality as the sceptic and the believer.  It was Gregory the Great and his increased focus on the Eucharist and the body of Christ, who most enthusiastically established Thomas as a model to whom Christians could look as they addressed their personal experience of journeying spiritually from scepticism to faith, or from ignorance to understanding.  

I find it really quite inspiring that doubt was given such a positive write-up in the Middle Ages, a period so often dismissed as an era of darkness, intolerance and dogmatism.  The figure of Doubting Thomas was used to suggest that doubt and scepticism are common to us all, but not only that, they are epistemologically and spiritual useful - that is, they are attitudes which allow us to explore and critique and challenge in new and productive ways.

In the early fourteenth century, Dante wrote 'che non men che saper dubbiar m'aggrada' ('it pleases me no less to doubt than to know' - Inferno, XI, 93) - he is quoted by Montaigne, although Dante's point is slightly different as he is claiming that doubt and questions ultimately lead to greater precision.  But the sense of critical doubt is very similar.  Do not take anything for granted; challenge your preconceptions; examine incongruities and try to highlight discontinuities and hypocrisies.  That is just what I am trying to do in this blog.

If you're interested in Doubting Thomas, see Alexander Murray, Doubting Thomas in Medieval Exegesis and Art (Rome, 2006).

WHAT IS ENOUGH? (2)

If the thirteenth century was the century of boom, in many ways, the fourteenth century was the era of catastrophe: whilst towns continued to develop, and vernacular culture to flourish, famine, plague and war affected people’s lives in particularly traumatic ways.

Most notoriously, the Black Death struck in 1348, killing at least 25% of the population.  How did the shift from prosperity to crisis shift thinking about sufficiency?  The theme of excess permeated medieval discussions of plague, its causes and its effects.  In turn, the focus of discussions about excess shifted from moderation to an obsession with status.

Whereas thirteenth-century anxiety had been primarily quantitative, about greed for too many goods,  taking too much money, too many people living in Europe – focus after the plague was upon excess in relation to status.  In a variety of contexts, fourteenth-century thinkers suggested that people were behaving excessively in relation to their station.   This was, of course, not a new thought, but one which received renewed emphasis post-plague.  Writers of politically engaged imaginative literature and chroniclers worried, as Di Tura did, that ‘all money had fallen into the hands of new people’, and legislation responded to such anxieties.  Many were seen to dress excessively in relation to their station – the 1353 sumptuary legislation in England claimed to curb the ‘outrageous and excessive apparel of many people, contrary to their estate and degree’.  People of lower status were seen to be inappropriately engaging in the luxury of commissioning art.  And the labouring classes were perceived to be excessive in their demands of higher pay – a theme on which the character of Piers Plowman dwells in Langland’s famous poem.

San Marino, Henry E. Huntingdon Library, MS EL 27 C9, fol. 133r, c. 1405: see Geoffrey Chaucer, Canterbury Tales: General Prologue, ll. 439-44 - Chaucer's physician is depicted wearing extravagantly rich clothing, paid for with his gains from treating victims of the Black Death.

Historians debate incessantly the question of whether the plague brought about social mobility.  What we can say with certainty is that it helped to transform notions of sufficiency: discussions of what was ‘enough’ focused increasingly on status, showing a contemporary perception that those of lower social status were re-evaluating what they considered to be enough or sufficient, and that those in authority re-directed their discussions of sufficiency and excess to focus upon this question of status.  Indeed, such was the emphasis of legislation attempting to fix wages, for example in Siena.

What can we glean from this? Most of all – that ‘enough’ is relative.  Whenever we try to justify ourselves in terms of enough, it’s useful to remember just how specific our notions of what is enough really are.  At moments of economic and social change, it would seem that notions of what is ‘enough’ get reassessed: whether or not poorer members of society are able to adopt a more expansive notion of what is ‘enough’, those accustomed to enjoy a very generous ‘sufficiency’ realise that there isn’t enough to go around unless they openly define ‘enough’ in relation to status.  Not everyone deserves the same ‘enough’ apparently.

WHAT IS ENOUGH?

We all live in fear of global warming (even those who don’t believe in it) and we are all concerned by ideas of sustainability and protection of the environment.  Many of these discussions centre on the notion of what is enough?  How do we define enough?

The concept of what is ‘enough’ or what is ‘sufficient’ is an extremely interesting one.  It isn’t an absolute.  After all, we all seem implicitly to acknowledge that what is ‘enough’ for a family in the slums in Mumbai would not be ‘enough’ for a family in Oxford – and most of us manage to live comfortably with such an assumption.

But we do worry about what is ‘enough’ and actually those worries seem to reach a peak of times of greatest affluence.  The thirteenth century is particularly interesting in this respect.  It’s widely perceived as an era of prosperity characterised by growing towns, increasingly complex and successful commercial economies and dramatic population increases.

But this very prosperity promoted anxiety about the sustainability of such a boom (rightly so as it turned out with famine and plague in the fourteenth century).  People talked about sufficiency in contrast to the material excess which they perceived around them.  Rapid growth made moralists uneasy and provoked worries about excess and greed which were seen not only as morally problematic, but as endangering the very fabric of these developments.

First, there was a dramatic rise in concern about the sin of avarice or greed as one of the seven deadly sins.  The historian Lester Little has demonstrated that, whereas, prior to the economic boom of the thirteenth century, the prime theme of sermons was pride, prosperity provoked a shift to avarice as the most dangerous sin.  Moral handbooks disseminated a similar message, ironically to those who could afford such texts – often the upper nobility.  Here is the personification of avarice, opposed to the allegorical figure of ‘misericorde’ – pity or charity – thus emphasising the selfishness of avarice.

Frere Laurent, 

Somme le Roy, British Library MS Add. 54180, fol. 122v

(French, end of 13th century). 

Second, anxiety about the excess of commercialisation stimulated economic thought about sufficiency and excess, and, in particular, worries about just price and usury.  This anxiety about excessive pricing reached a variety of audiences, with preachers again discussing the theme, popular oral stories such as the fabliaux showing those who tried to charge too much getting their come-uppance, and, most particularly, legislation, both canon law and secular law,  attempting to regulate prices.  Usury was also the subject both of sermons, and of legislation which meant that ‘excess’ could be prosecuted.  Lending at interest was a necessary adjunct of commercialisation, but, to many, it seemed to encapsulate economic excess, primarily because usurers seemed to be getting money without having to work for it.  In Dante’s Inferno from the 1300s, usurers are depicted obliged to sit for eternity on burning sands, whipped by savage winds.

Third, the rapidity of thirteenth-century expansion, the increasing density of population in towns, and the growing cultivation of the countryside, provoked anxiety about demographic saturation.  This was discussed primarily in a university context by figures such as William of Auvergne, but Peter Biller has convincingly demonstrated that such concerns shaped political discourse, and that concern about soil exhaustion was present amongst agricultural labourers – who, after all, were only too aware of the fragility of agricultural expansion. 

In all these discussions, the focus was upon moderation, a very Aristotelian concept.  Thirteenth-century men and women were concerned about excess in a moral, economic and demographic sense, because it was not moderate.  Moderation was the benchmark of virtue.  In Jehan de Meung’s Roman de la Rose, a late thirteenth-century popular allegorical text, he writes typically:

Ce sont deus extremités

Richeces et mendacités

Le moien a non souffisance,

La gist le vertu abondance (RR, 11273-76)

These are the two extremities: wealth and begging.  The mean is called sufficiency – therein lies the virtue of abundance.

The point is that it’s when we so clearly have too much that we start to worry about what is ‘enough’.  And yet it’s also at such moments we somehow manage to convince ourselves that we really do need all these things. 

If you’re interested in reading more, see Little, L.K., “Pride Goes before Avarice: Social Change and the Vices in Latin Christendom,”  American Historical Review, 76 (1971), pp. 16-49 and Biller, P., The Measure of Multitude: Population in Medieval Thought (OUP, Oxford, 2000).

Yesterday, I published a post about violence on the OUP blog here.  And, by the way, please do feel free to post comments on the blog - I'd love to hear others' opinions...

It was the bicentenary of Wagner's birth on May 22nd.  A lot of people hate him, and a lot hesitate to admit that they love his music.  I find it outstandingly moving, and have a couple of other rather bizarre reasons for feeling a particular interest: first because two of Wagner's operas are about medieval poetic contests (Tannhäuser and Die Meistersinger von Nürnberg), a subject which I'm doing some research on at the moment (and about which more anon); and second because one of my most fun and bizarre orchestral experiences was being one of six harpists for a performance of Das Rheingold in a rickety old barn on a large farm in Buckinghamshire.

Die Meistersinger, image credit http://www.roh.org.uk

He is a tricky composer because his music is so moving, and his personality so repugnant.  Music as an art form works by drawing us in, and involving us emotionally: this is very particularly the case with the Gesamtkunstwerk of Wagner (see here), whose music was deemed so emotionally powerful that people feared it could reduce them to madness.  The idea of being drawn into a particular mental landscape is an alarming prospect with someone so extravagantly anti-semitic as Wagner.

One of my greatest heroes is Daniel Barenboim, and I'm enjoying reading his conversations with Edward Said at the moment.  Barenboim has flouted Israeli taboos against playing Wagner on multiple occasions, beginning with a highly controversial encore in Tel Aviv where he conducted the prelude from Tristan and Isolde.  He has been outspoken and eloquent about what he is thus trying to achieve, in terms of reinterpretation, moving forward and refusing boundaries.

The debate is one which makes us think in broader terms about the role of the author/ composer/ artist.  Are we, as audience/ spectator/ reader, bound by the intentions of the originator of a piece of art?  Should we be passive recipients of pre-formed ideas?  I really don't think so.  I reckon that a piece of music doesn't really become music until it is performed and listened to; that a painting doesn't become art until someone sees it; that a book is not literature until it is read and internalised.  In other words, I think that we, as consumers of art, are part of the artistic endeavour and involved in the production of meaning.  Roland Barthes' famous notion of the 'death of the author' is claiming something similar: that the author is not one who determines meaning, but rather the viewers, readers or listeners.   

If this is right, then we can listen to, and enjoy, Wagner (and many others of dubious moral background) with a clean conscience.  Great art is constantly to be reinterpreted, given new meanings.  The poetic competitions which feature in the Meistersinger and Tannhäuser give us a bit of a clue here: they remind us that medieval literature was, in a sense, drama and spectacle.  It was performed.  It's easy to forget, since we are reliant on surviving written texts, but even into the late Middle Ages, this was a very oral culture.  Even texts which were written down were most often intended for oral performance.  And as they were performed, and re-performed, they were adapted and mutated according to the needs and interests of particular audiences.  These were texts which were constantly in flux, where the notion of authorship (though obviously central in the contests) was often lost amongst the multiple layers of performance and reception.

But not only does this allow us to listen to Wagner.  It reminds us of our responsibility as part of the creative process.  As readers, viewers, listeners - we are part of the creation of meaning.  One of my other great heroes is Michel de Montaigne, who in the late sixteenth century, tried to suggest new ways of reading through the construction of his Essais.  Through a complex writing style, frequent interpolations, and deliberate contradictions within the text, he successfully reminds the reader of his or her own responsibility - that the onus is on us to read pro-actively.

Montaigne's response to those who worry that Wagner's anti-semitism automatically accompanies his art would be the following:

'It's an indication that it hasn't been cooked properly, and a sign of indigestion, when someone regurgitates the meat that he's just swallowed.  The stomach hasn't done its job if it hasn't changed the appearance and form of what it's been given to cook' (Essais, 1. 26)