Law and Poetics in Early Modern England and Beyond

Abstracts

Kevin Curran (University of Lausanne)

The Face of Judgment in Measure for Measure

Like a number of other stage comedies and romances in the English Renaissance, Shakespeare’s Measure for Measure ends with a scene of judgment in which punishment and reward is distributed among a group of characters. One of the things that makes Measure for Measure’s version striking is the way judgment is so insistently linked to the spatial and revelatory dynamics of facing and unmasking: “Is this the witness, friar? / First let her show her face, and after speak” (5.1.167-68); “My husband bid me, now I will unmask. / This is that face, thou cruel Angelo,” (5.1.206-7); “Show your knave’s visage, with a pox to you! Show your sheep-biting face, an be hanged an hour!” (5.1.353-55). Adducing evidence from humanist rhetoric, linguistic theory, performance studies, and theater history, this talk will address two related questions: (1) What can a theatrical and philosophical understanding of the face tell us about the phenomenology of judgment in Measure for Measure? And (2) how might this help us recover a version of judgment (largely absent from liberal modernity) that is creative, participatory, and worldmaking?

 

Maksymilian Del Mar (Queen Mary, University of London)

The Declamatory Tradition in Renaissance Legal Thought: An Essay in Cognitive Legal Poetics

This essay builds a model of theorising the cognitive poetics of Renaissance legal thought by drawing on the tradition of declamatory practice, particularly the controversiae of Senecan Rome. It extracts three elements from a discussion of the declamatory tradition: first, its intensively social and interactive character; second, its experimentalism; and third, its exemplarity. More specifically, the essay argues that one of the ways that normative insights (and, in the legal context, potential justificatory resources) are made is by the social and interactive experimental exchange of variations of exemplary narratives (particularly evident in the invention of colores in the declamations). The essay then applies this model of the declamatory tradition (with its three extracted elements) to Renaissance legal thought, doing so in two stages. First, the essay considers the echoes of the declamatory tradition in Renaissance England, both in education as well as in translations of and replies to declamatory themas (with Erasmus' and More's replies to Lucian's Tyrannicide serving as the key example). Second, the essay turns to education at the Inns of Court, and especially the practice of mooting, drawing on the declamatory model to analyse what might be called the cognitive poetics of Renaissance mooting. 

 

Kathy Eden (Columbia University)

The Shifting Status of Conjecture from Law to Literature            

Traditionally ascribed to Hermagoras (2nd C BCE) for use in the law courts and later developed by, among others, Cicero and Quintilian as the infrastructure of argumentation, the so-called status system, with its three foundational questions—Did it happen? (sitne?); What happened? (quid sit?); What kind of action was it? (quale sit?)—leaves a deep and pervasive impact on the analysis of human agency from antiquity to the early modern period. Focusing on the first of the three status, the conjectural, and more precisely on its two preeminent topics, will and power (voluntas and potestas), this talk will chart their itinerary both in theory and practice from legal through theological to literary discourse.   

 

Alex Feldman (Haifa University)

“As inspiring as the muses, as righteous as the Supreme Court”: The Trial of the Catonsville Nine and Jurisprudential Drama

On May 17th 1968, Daniel Berrigan—Jesuit priest, prolific poet, peace activist—his brother Phillip and seven other Catholic clergy and laypersons entered the Selective Service board in Catonsville MD, removed hundreds of personnel files for the draft to Vietnam and burnt them in the street using home-made napalm. The transcripts of the resultant legal proceedings furnished Berrigan with material for his documentary verse drama, The Trial of the Catonsville Nine (1970).

Punctuating the text with quotations from Sophocles' Antigone (442 B.C.), Brecht's Galileo (1938), Kipphardt's In the Matter of J. Robert Oppenheimer (1964), Weiss' The Investigation (1965), and numerous other legally-inflected dramatic works, Berrigan locates the play within the evolving traditions of jurisprudential drama in the 1960s. Heir to both the secular, liberal, American “trial plays” of the previous decade (Miller's The Crucible (1953) and Lawrence and Lee's Inherit the Wind (1955)), with their impassioned defences of the individual conscience, and to an alternative lineage that might be traced, via Eliot's Murder in the Cathedral (1933) back to jurisprudential drama's Ur-text, the trial of Christ himself, Berrigan's play invokes the Christian-Communitarian ethics of liberation theology, in a prophetic key. My intention is to explore the juridical efficacy and dramatic power of liturgical utterance before the law, to examine the tension between the secular and religious articulations of mid-century jurisprudential drama, and the ideological complexity and aesthetic hybridity of documentary theatre in the 1960s.

 

Peter Goodrich (Benjamin N. Cardozo School of Law)

Comedy, Amity and other Offices of Law

Repetition – though the word is hardly adequate here – is a hallmark of common law and the ensign of its offices. Repetition, and I am doing it already, is also the mark of the unconscious, of trauma and in Marx’s formulation, first as tragedy and then as farce. It is the oscillation of tragic and comic, this speaking twice that merits historiographic attention. I wish to pursue this theme by examining the role of repetition in the offices of the lawyer and so also address the tragic and the comic in the performance of legality. The office of the jurist is already a repetition, a splitting of the subject, the same in the other as Bacon puts it, and this amity with the self, and with the other as another self, already has its comedic dimensions, it elements also of commedia dell’arte. I want also to intimate, though I will undoubtedly be unsuccessful, that this structure of comedic repetition is also acted out in the relationship of trial to theatre, and of law to literature.

 

Rachel E. Holmes (University of Cambridge)

The Transnational Legal Poetics of Adaptation

As we know, many of the most famous plays of Shakespeare and his contemporaries were adapted from continental sources. Often with their recognizable origins in the Italian novella tradition popularized by Matteo Bandello and Giambattista Giraldi Cinthio, such tales as Romeo and Juliet or The Duchess of Malfi are subsequently adapted across early modern Europe. Within critical discussions of source study or intertextuality of this kind, the most prominent model since the late 1980s has been Louise George Clubb's influential coinage of 'theatergrams', which is to say formal, literary “units, figures, relationships, actions, topoi, and framing patterns” that exist within a shared imaginative cache to be combined, altered, even transformed. Perhaps informed by our own disciplinary investments, the focus of such discussions tends toward either the formalistic or the nationalistic, thinking of adaptation as a purely literary exercise or as one that asserts the superiority of a particular national character. However, I turn to these adaptive practices instead to consider the relationship between legal knowledge and literary adaptation. In this paper I contend that early modern poetics is, in a sense, legally-inflected to the extent that literary adaptation is shaped by and actively participates in the legal and historical context of its production. This, I suggest, is both a transnational practice, often dominated by shared preoccupations traversing proto-national bounds, and one with local force, where legal details contribute to particular debates and mimetic representation.

 

Lorna Hutson (Merton College, University of Oxford)

Does a Body Politic Have Knees? Allegory and Anglo-imperialism in the Theory of the King's Two Bodies

The 'Crossroads of Knowledge' project has been working to reveal the interface between imaginative literature and other forms of world-mastering knowledge in early modern England. My paper concerns literature's productive transformation of England's legal and historiographical claims to insular sovereignty. England's kings had, at least since Edward I, claimed sovereignty over Scotland through chronicles grounded in the Galfridian 'British history' of Brutus and Arthur, later backed by John Hardyng's forged legal instruments. These were disputed by Scots historians and lawyers. In the Tudor period, Henry VIII and Edward VI based their unsuccessful but highly destructive invasions of Scotland on the Galfridian ground of these chronicles, asserted as fact. Elizabeth's reign, however, saw the discrediting of Brutus and Arthur as historical figures and their transformation into ostensibly more tentative, sceptical and less assertive 'literary' forms (allegorical poetry, literary chorography, antiquarianism). In this context, I propose to re-read Plowden's theory of the King's Two Bodies. Plowden's most poetic elaboration of this theory occurs in a treatise he wrote on the Scottish succession. His purpose, as I'll show, was to transform England's legal-historical claim of suzerainty into an allegory of the eternal poetic 'truth' of Scotland's affective and spiritual dependence on England. Plowden's recasting of old legal/historical claims of homage as a poetic allegory shows how 'literary' forms of knowledge can efface historical forms precisely because of their numinous, non-affirmative irrefutability. Scotland's own historical narrative of regnal community vanishes in the generative poetic theology of England's ancient constitution.

 

Torrance Kirby (McGill University)

The ‘Bosome of God’ and the ‘Harmony of the Cosmos’: Holy Wisdom, Law and Grace in the Thought of Richard Hooker

“Of lawe there can be no lesse acknowledged, than that her seate is the bosome of God, her voyce the harmony of the world, all things in heaven and earth doe her homage, the very least as feeling her care, and the greatest as not exempted from her power; both Angels and men and creatures of what condition so ever, though each in different sort and manner, yet all with uniforme consent, admiring her as the mother of their peace and joy.” (Lawes I.16.8)

In this passage in Book I of his treatise Of the Lawes of Ecclesiasticall Politie (1593) Richard Hooker identifies Law with Holy Wisdom. Rowan Williams has shown that Hooker’s claims on behalf of Law echo the sapiential books Scripture, viz. Proverbs, Job, and the Wisdom of Solomon. Hooker also appeals to the model of a hierarchical disposition of the species of law contained in the scholastic conception of the so-called ‘lex divinitatis’, especially as formulated by Pseudo-Dionysius the Areopagite and later by such medieval Canon lawyers as Aegidius Romanus. Both his sapiential theology and his invocation of the law of the ‘great chain’ stand in creative tension with his professed adherence to the doctrine affirmed by the Elizabethan Settlement in the Articles of Religion. Is Hooker successful in reconciling his legal ontology with his Reformed soteriology?

 

Doyeeta Majumder (Jadavpur University)

Equity, Exception, and Literary Hermeneutics in Sixteenth-century England

This paper will explore the complex and creative relationship between law, politics and literature in sixteenth-century England, by analysing two symmetrical but distinct concepts—equity and sovereign exception—through the lenses of literature and literary hermeneutics. In sixteenth-century England, equity refers to the power of the individual judge to depart from the rigidity of the letter of the law, in order to serve the ends of justice. Conversely, 'exception' was the royal prerogative to suspend a particular law or indeed the entire legal structure of the kingdom, as and when deemed necessary by the sovereign. Both ideas are, thus, predicated upon a deviation from the letter of the law and are governed by the principle of interpretation.

Since both equity and exception function through the generation of variable meanings from fixed legal principles, they are sometimes, rather uncritically elided into each other in the works of modern literary critics. My contention is that it is early modern literary texts, which in fact, enable us to distinguish between equity and exception with a unique clarity, while methods of literary and textual analyses drive the operation of equity and exception in the political realm. Time and again, by demonstrating sovereign exception as a transgressive exercise of authority, it is literature which reminds us that an interpretive extension of jurisprudential law is not the same as the suspension of laws by the sovereign. The latter is the extra-juridical political authority to decide upon the exception to the law; the former is one of the fundamental principles of positive law itself.

By studying these two ideas through the framework of literary hermeneutics, this paper will probe the more fundamental juridico-political conundrum which underlies the negotiations of law and sovereignty in early modern Europe: is the law-giver subject to the laws of the kingdom or is s/he legibus solutus?

 

Charles McNamara (Columbia University)

Alternative Facts against the “Common Consent of Words”: The Controversy of Hobbesian Legal Rhetoric

As Ioannis Evrigenis notes in his 2014 book Images of Anarchy, an abbreviated English translation of Aristotle's Rhetoric (A Briefe of the Art of Rhetorique), often ascribed to the hand to Thomas Hobbes, “has an awkward place in accounts of Hobbes' intellectual development [, for] commentators have found it difficult to fit it into the neat story of Hobbes' turn to science.” Beginning from the claim of Evrigenis and others that Hobbes is the genuine source of this compressed rhetorical handbook, this paper illustrates how we might understand Hobbes' later interest in Aristotelian rhetoric as one germane to his so-called scientific writings on questions of the source and authority of civil laws. By drawing attention to the English vocabulary Hobbes uses to translate terms for the shared beliefs of a rhetorician's audience and by underscoring the persistent concern of generating such beliefs—particularly beliefs of a linguistic nature—in Hobbes' later political writings, including his Elements of the Law and De Cive, I demonstrate the relevance of Aristotelian rhetoric to Hobbes' “science” of civil law and show why we should not dismiss his translation of Aristotle as a mere pedagogical exercise or errant blip in his intellectual biography.

 

Bernadette Meyler (Stanford University)

Between Royal Pardons and Acts of Oblivion: The Transitional Justice of Cosmo Manuche and James Compton, Earl of Northampton

This paper argues that royalist playwright Cosmo Manuche and his patron, James Compton, Earl of Northampton, both worked out models of transitional justice in their writings of the 1650s. Within their manuscripts rediscovered at Castle Ashby in the 1970s  lie a couple of pages in Compton’s hand that Paul Beattie has dubbed a “Political Treatise” and situated between 1651 and 1652 (How Were the Anonymous Castle Ashby Plays Created, and Why? 129-130). This brief and incomplete “Treatise” tackles the problems of transitional justice posed by the English Revolution and the establishment of a new government and, in doing so, advocates for “an act of indemnitie, or of oblivion stille it what you please,” a form of immunization from and forgetting of punishment that King Charles I himself had advocated.

Manuche’s plays The Just General, from 1652, and The Banish’d Shepherdess, still in manuscript and dating from 1659 or 1660, demonstrate similar concerns for transitional justice; both depict worlds in which the sovereignty is fragile, treachery is rife, and there remain questions about how to manage those who have been disloyal to the prior regime, either within the intermediate world of the play or once a restoration has occurred. Both are concerned with members of the populace who are certainly not upright, and may be easily misled, but could also be reintegrated into a new state in a fairly straightforward fashion. Compton’s Treatise contemplates an act of oblivion as the mechanism by which to accomplish this task, and, in doing so, articulates the virtues of such a device of transitional justice.

 

Subha Mukherji (University of Cambridge)

Knowing encounters: law, legibility and the rhetoric of presence in the early modern imagination

Law and the literary imagination in early modern England had shared stakes in the relation between face and intent, surface and significance, truth and semblance, nature and artifice. This talk will show how the gaps and dualities of these relations are used by literary, especially dramatic, practice to conceptualise the larger interrelation between literary and legal epistemologies. But structures of knowing are entwined with structures of feeling, and it is at the intersection of the two that drama’s judicial scenarios bring the ethics of response and representation face to face with their aesthetics, playing presence off against absence. I will focus on the relational model of the interpersonal encounter, and its rhetorical underpinnings, to ask how the dialogue between law and theatre pitches into a wider conversation about the meanings of justice and responsibility in relationship as well as in mimesis.

Webster and Shakespeare are likely to feature in key roles. 

 

George Oppitz-Trotman (University of Cambridge)

With Hieronimo on the Verge of English Tragedy

As everyone knows, Hieronimo, the chief protagonist of The Spanish Tragedy (c.1589), has a very specific office: Knight Marshal of Spain. There was no such office in the Spanish court. In England, however, the Knight Marshal was an ancient ennoblement. Not only was he responsible for the administration and security of the royal household, he was also associated with an unusual court known as the Marshalsea Court or the Court of the Verge, with jurisdiction over crimes occurring within and around the royal residence. Such was the Marshalsea’s importance and prominence as the sixteenth century began, that it is the first of the ancient courts named in Fitzherbert’s Diversite de courtz. But the potential significance of Hieronimo’s exact judicial function within the political court he eventually destroys, and to a lesser degree the involvement of the play in the history of Tudor office-holding, has received remarkably little notice. During the phase of The Spanish Tragedy’s greatest influence and popularity, from the 1580s through the 1600s, the office of knight marshal was linked by jurisdiction and long history to questions of sovereignty, household space, and the physical extent of an entirely undisturbable royal peace. In mapping this space back onto The Spanish Tragedy, one does not call on a peripheral curiosity in the museum of legal history, but upon an ancient and potent zone in which action and redress could be understood with combined reference to mythologies of royal justice and procedures of common law. This paper will specify – for the first time – whereHieronimo’s revenge happened.

 

Jan-Melissa Schramm (University of Cambridge)

“Towards a poetics of internationalism”: Literature and the Language of “Rights” in Nineteenth-century England

Legal historians are deeply divided as to whether modern concepts of 'human rights' have an older intellectual genealogy. And even those who want to locate the origins of rights in the eighteenth century often chart a stop-start narrative arc rather than a continuous trajectory of development. According to this model, despite the popularity of the rhetoric of 'liberty, equality, and fraternity' articulated in the American Declaration of Independence (1776) and (most famously) the French Declaration of the Rights of Man and of the Citizen (1789), rights discourse was temporarily extinguished in England by the impact of the Reign of Terror, and the rise of Benthamite utilitarianism, until it flourished again post-World War II. Whilst excellent works by legal historians (most notably Jenny Martinez) have begun to challenge this hypothesis, much more needs to be done to uncover the almost forgotten rhetoric of rights in the post-Revolutionary and post-Benthamite period in England. Whilst it is true that rights-based causes were often bounded by national parameters in the early to mid-nineteenth century (for example, agitation for the extension of male suffrage) or positioned within imperial wrangles about ownership of labour and property (for example, abolitionism), there remained a deep and abiding commitment in the literature of the period to the exploration of rights held solely by virtue of being human. In this paper, I'll explore some of those literary and theological sources of 'universal' rights which gesture beyond national boundaries and reach towards a poetics of internationalism – e.g. Chartist poetry, and some examples of Victorian novels (e.g. by Charles Dickens and Eliza Lynn Linton).

 

Regina Schwartz (Northwestern University)

The Spirit and the Letter

This paper will look at a distinction that was made between the letter of the law and its spirit. Because all language necessarily points beyond itself in order to represent, to communicate, what could this distinction have meant? How was it deployed politically? And how do these concepts inform the trial scene in The Merchant of Venice? 

 

Richard Sherwin (New York Law School)

Escalus’s Dream: Re-Imagining Shakespeare’s States

In the penultimate scene of Shakespeare’s Measure for Measure the Duke of Vienna gathers citizens to witness a carefully staged public display that he hopes will restore the authority of law while safeguarding his own reputation against accusations of tyranny. Up until this point, the Duke has performed the power of his office in the register of subterfuge, manipulation, and suspicion. The play compels us to consider how governance, including self-governance, goes awry. Indeed, it teaches us to contemplate how states of mind help to constitute states of polity, and vice versa.

In this presentation, I imagine Escalus, the Duke’s most senior advisor, reflecting on the nature of political power. What are the discrete ways of knowing, feeling, and valuing that constitute the Duke’s calculative plots, and how might the inefficacy of the Duke’s Machiavellian strategies be productively transformed? Can the power of law, as the Duke understands it, be converted from an economy of scarcity into one of incalculable excess? Upon what kind of characters, through what actions and semantic fields, demarcating what forms of knowing, feeling, and valuing, might such a translation depend?

In the end, the Duke’s limited grasp of positive law fails to break the political deadlock of legal validity without significance. An alternative source of meaning must be found for the sake of law’s legitimacy. In Escalus’s dream negative capability, our capacity to tolerate and creatively work through uncertainty, in conjunction with the ethical stance of resistance prove essential to maintaining a judicious balance between the instrumental power of positive law and the immeasurable grace of equity that safeguards law’s sovereignty against tyranny.

 

Sebastian Sobecki (University of Groningen)

Skelton and the Law

This paper will examine Skelton’s grasp of legal practice and of the law as a public institution, while offering an explanation for his sophisticated knowledge of secular and religious law. A closer look at his engagement with these two areas will not only advance our appreciation of Skelton’s public and intellectual position, but it should also offer a rewarding angle from which to consider some of the broader social changes that took place during the early Tudor decades.

Legal references appear in a number of John Skelton’s works, including Magnyfycence, A Replycacion agaynst Certayne Yong Scolers Abjured of Late, and the three satires aimed at Cardinal Wolsey: Collyn Clout, Why Come Ye Nat to Courte?, and Speke Parott. Bradin Cormack has expounded the substantial implications of Skelton’s ideas in Magnyfycence about the juridical role of the Household. Cormack’s argument that Skelton’s views echo the thought of the fifteenth-century jurist John Fortescue is significant, and, as I will argue, holds also true for other areas of the poet’s oeuvre. Furthermore, accurate and technical knowledge of the medieval common law in Skelton’s works raise questions about his access to this body of largely unwritten knowledge. By way of answer, I suggest that lawyers must have belonged to his urban circle and, hence, audience.

 

Christopher N. Warren (Carnegie Mellon University)

Time at the Crossroads: Historicism, Poiesis, and Authority in International Law

One consequence of international law’s recent historical turn has been to sharpen methodological contrasts between intellectual history and international law.  Scholars including Antony Anghie, Anne Orford, Rose Parfitt, and Martii Koskenniemi have taken on board historians’ interest in contingency and context but pointedly relaxed historians’ traditional stricture against presentist instrumentalism. This essay argues that such a move disrupts a longstanding division of labor between history and international law and ultimately brings international legal method closer to literature and literary scholarship.  The essay therefore details several more or less endemic ways in which literature and literary studies confront challenges of presentism, anachronism, meaning, and time.  With examples from Shakespeare, Spinoza, China Miéville, and Antony Angie inter alia, it proposes a “trilateral” discussion among historians, international lawyers, and literary scholars that takes seriously the multipolar disciplinary network in which each of these disciplines makes and sustains relations with each of the others.   

 

Gary Watt (Warwick University)

“A delightful measure” – Imagining Barfield's Poetic Jurisdiction

In this paper, I will take Owen Barfield's idea of poetic diction (especially as he explores it in his book Poetic Diction: A Study in Meaning and his article “Poetic Diction and Legal Fiction”) as the starting point of a movement that I hope might take us a metre or two further towards an imaginative and performative rhetoric of law. Others, including James Boyd White, Lorna Hutson and Kathy Eden, have already taken us much of the way. I will seek to apply Barfield's insights to Shakespeare's stage poetics which, by means of materiality and motion (including in the form of metaphor), operate rhetorically to persuade through pleasure; and I will ask what a poetic of pleasure might mean for law and legal practice. Barfield is for these purposes an ideal motivator. A literature graduate and one of the celebrated Oxford “Inklings”, he worked as a poet and author for a decade before working for a quarter of a century as a solicitor in the family firm in London. His reflections on the tensions between his literary and legal self, as shared in his book This Ever Diverse Pair, provide a stimulating personal insight into what it means to live a life of practice in literature and law.

 

Andrew Zurcher (Queens’ College, University of Cambridge)

Adventures in Spenser: Chance, Cause, and Deodand

Spenser's poetry is, as his life was, dogged by mischance. This paper investigates the operations of fortune, chance, and adventure in his two major works, with particular focus on the 'ill hap' of Algrind in the 'Iulye' eclogue of The Shepheardes Calender (1579), and on the battle between Arthur and Maleger outside the House of Alma in Book II, canto xi of The Faerie Queene (1590). As Abraham Fraunce recognised in The Lawiers Logike (1588), Spenser's representation of accident and fortune is closely connected to thinking about material and efficient causes, misadventure and agency. Temperance emerges from both of these episodes as a 'means' of negotiating the relationship between human agency and material contingency, defining a space between the ancient tradition of deodand and the later development of the tort of negligence.