Category Archives: Sci-fi/popular culture

Law and Lord Peter: some legal content from the Wimsey novels of Dorothy L. Sayers

I have just listened to a good podcast on Dorothy L. Sayers – in the Shedunnit series. Amongst other nuggets, it made an interesting point about the comparative neglect of DLS’s detective novels, in contrast to those of A_____ C_______ . No major film/TV treatment since the 80s! What folly! I think the time is ripe for a big budget, Dowton Abbeyish series. I am casting it in my head already! Anwyay, it inspired me to collect these old posts from 2015 (goodness – that seems a lifetime ago) together in one handy format (and I will be reading a chapter or two of Wimsey before I go to sleep tonight, I think. And maybe expanding on this – how did I not write about the property law aspects???? Bad 2015 me!

 

The Lord Peter Wimsey novels of Dorothy L. Sayers are regarded as among the very best ‘golden age’ detective novels. As well as being enjoyable in their characterisation and their intricate plotting, they also have a lot to say about contemporary attitudes to law and justice, and, although the interwar period is far away from my own medieval research haunts, it is still sufficiently ‘past’ to amount to something of legal historical interest. In these short notes, I will set out some key themes and ideas which occur in the novels (and to a lesser extent, the short stories) involving the aristocratic sleuth, with or without the excellent Harriet Vane and the ever-faithful Bunter. The first topic to which I would like to turn is that of lawyers. The interwar years, the setting for these novels, saw the last years of the noted barrister Sir Edward Marshall Hall, amongst others, and women had recently been admitted to the Bar and the solicitors’ profession. What did Sayers give us in terms of fictional lawyers?

The towering legal figure in the books is Sir Impey Biggs KC, a leading criminal barrister, MP and canary breeder. At the time of Clouds of Witness, he is ‘thirty-eight, and a bachelor’ [CW, 68]. A legal family may be indicated by his Christian name, John Impey having been a famous legal writer of the eighteenth to nineteenth century, and Sir Elijah Impey an Indian judge of a slightly earlier period.

He is physically impressive, with ‘towering height … a shapely, expressive hand that would have made an actor’s fortune [which he found] useful in the exploitation of dramatic moments’, a ‘magnificent build’, ‘[noble] head and mask’, and ‘[flawless] features’ [CW, 68]. He has a ‘beautiful, resonant and exquisitely controlled voice’ [CW, 69]. Wimsey notes his ‘statuesque profile and is reminded of ‘the severe beauty of the charioteer of Delphi.’[CW, 70].

It is in his professional capacity that Biggs is generally seen. He is described as ‘our greatest criminal lawyer’ by Lord Peter, who shows his respect for Sir Impey’s skill on a number of occasions. Sir Impey’s skill in securing an acquittal for his clients is noted [WB, 23]. Biggs ‘was celebrated for his rhetoric and his suave but pitiless dissection of hostile witnesses’ [CW, 68].

Biggs is seen in action in Strong Poison in the most important case of all – the trial of Harriet Vane for the murder of Philip Boyes. He is for the defence in this case. On the subject of Harriet’s having lived with Boyes without being married, the judge described his creative pleading, saying ‘Sir Impey Biggs, very rightly using all his great eloquence on behalf of his client, has painted this action of Harriet Vane’s in very rosy colours; he has spoken of unselfish sacrifice and self-immolation, and has reminded you that, in such a situation, the woman always has to pay more heavily than the man…’[SP, loc. 134].

Biggs’ technique is also described in Busman’s Honeymoon when he defends Frank Crutchley – an unrepentant murderer: ‘Sir Impey Biggs, eloquent on behalf of the prisoner – ‘this industrious and ambitious young man’; hinting at prejudice ‘a lady who may have some cause to fancy herself ill-used’; indulgently sceptical about ‘the instrument of destruction so picturesquely constructed by a gentleman whose ingenuity is notorious’; virtuously indignant at the construction placed upon ‘words uttered at random by a terrorised man’; astonished to discover in the case for the Prosecution ‘not a scintilla of direct proof’; passionately moving in his appeal to the jury not to sacrifice a young and valuable life on evidence so flimsily put together.’ [BH, 421].

Sir Impey fancies himself very perceptive: ‘Sir Impey Biggs was accustomed to boast that no witness could perjure himself in his presence undetected. As he put the question, he released the other’s eyes from his, and glanced down with finest cunning at Wimsey’s long, flexible mouth and nervous hands.’[CW, 72].

He can be a relaxed raconteur, but can also pace, smoking, and can be very businesslike, almost brutally so [CW, 72]. He can manipulate, but remains unmoved himself: ‘Tragic irony, cutting contempt of a savage indignation were the emotions by wh Sir Impey Biggs swayed court and jury: he prosecuted murderers of the innocent, defended in actions for criminal libel, and, moving others, was hard as stone.’[CW, 69]

He is all for his client, even suggesting to Wimsey that it may be best if a particular piece of evidence, or individual, is not found – showing an interesting contrast between the aristocrat’s mission to find the truth, and his own, to win the case for his client [CW, 71]. This point comes out even more clearly in an exchange in Clouds of Witness, when Wimsey says ‘Damn it all, we want to get at the truth!’, Biggs replies, ‘I don’t. I don’t care twopence about the truth. I want a case.’ This leads Wimsey to conclude ‘that the professional advocate [is] the most immoral fellow on the face of the earth’.’[CW, 168]

Sir Impey is not above courtroom stunts, such as having a patient show the court her leg in the Quangle and Hamper v Truth case (a case concerning claims for medicines) [CW, 164]. and uses lots of ‘abnormal cases from Glaister and Dixon Mann till the eyes of the jury reeled in their heads.’ in another case [WB, .22].

He can be slightly cynical in his expression – ‘Lawyers enjoy a little mystery, you know. Why if everybody came forward and told the truth, the whole truth and nothing but the truth straight out, we should all retire to the workhouse’ [CW 69] and ‘It is wonderful what you can suggest to a jury if you try.’[CW, 70] Similarly fitting the lawyerly stereotype is the suggestion of greed in his remarks on hearing that Wimsey is not prosecuting despite having been the victim of attempted murder – ‘Really? Oh my dear Wimsey, this will never do. Lawyers have to live, you know.’[CW, 165]

Biggs does have some morals however. When asked by Wimsey what tactics are justified in dealing with a blackmailer, he replies ‘There you’ve put your fingers on Society’s sore place, where the Law is helpless. Speaking as a man, I’d say nothing could be too bad for the brute. It’s a crime crueller and infinitely worse in its results than murder. As a lawyer, I can only say that I have consistently refused to defend a blackmailer or to prosecute any poor devil who does away with his tormentor’ [LPVB, loc 1535’The unprincipled affair of the practical joker’].

Outside court and the Commons, he cuts a much less significant figure. Two rather belittling quirks are noted: ‘[t]he breeding of canaries was his unexpected hobby, and besides their song, he could appreciate no music but revue airs.’[CW, 68] Furthermore, the qualities which make him such an effective lawyer may mean that he will be unable to find domestic happiness: ‘his .. eyes [are] ruthless’ and Wimsey’s mother, the rambling yet perceptive Dowager Duchess of Denver ‘had once remarked “Sir Impey Biggs is the handsomest man in England, and no woman will ever care twopence for him”’ [CW, 68].

 

The Faithful Family Solicitor

Contrasting in some respects with Sir Impey Biggs is another recurring lawyer: the solicitor, J. Murbles of Staple Inn(UBC loc890). Sayers’s portrayal of Murbles is generally positive, if somewhat condescending. While Biggs, the socially superior representative of what was very much the ‘higher branch’ of the legal profession, is physically impressive, Murbles, a lowlier lawyer, is described as a ‘little elderly gentleman … so perfectly the family solicitor as really to have no distinguishing personality at all, beyond a great kindness of heart and a weakness for soda-mint lozenges’(UBC loc 197), burdened by a ‘delicate digestion’ (CW 30). Nevertheless, Wimsey respects his sense, in law and in life, consulting him on issues relating to property (UD 162) and describing him as a ‘wise old bird’, who takes sensible precautions in dangerous situations (UD 223).

Unsurprisingly for one in his profession and station, Murbles’s political views appear to be Tory-traditionalist: thus, he is impatient with the socialist anti-aristocrat view of the radical Goyles, and is convinced that ‘the law’s the law for everybody’ (CW 162), which the benefit of hindsight tells us is a somewhat naive view to have held (albeit fictitiously) in the 1920s and 1930s. He can take a joke along familiar cynical lines relating to the legal profession – so when Lord Peter asks him whether lawyers ever go to heaven, he responds with a dry ‘I have no information on that point’ (UBC loc 273).

Murbles defers to his legal superiors, and is ready to consult counsel on more involved matters of property law. When a case turns on changes in the rules of succession following the 1925 property legislation (much beloved of English and Welsh law students to this day). Murbles suggests consulting a barrister, Towkington, ‘quite the ablest authority I could name’, on the point (UD 166). Although Murbles has his own ideas about the point, he defers to Towkington (UD 170).

All in all, Murbles is a resourceful and useful professional man who knows his place, both with regard to Lord Peter and with regard to the barristers with whom he has to deal.

 

 

 

Capital Punishment

 

The date of writing and setting of the Wimsey novels means that the killers unmasked by the aristocratic sleuth are liable to execution by hanging. It is not something from which Sayers shrinks, nor something which Wimsey can ignore.

There are anti-hanging voices in the novels. The ‘fast’ and drug-addled Dian de Momerie in MMA expresses negative sentiments about the death penalty, for example, telling Wimsey ‘I went to a murder trial once. There was a horrible old man, the Judge – I forget his name. He was like a wicked old scarlet parrot, and he [gave the death sentence] as though he liked it (MMA loc 3291). In GN, Miss Barton, a rather ridiculous figure, is also opposed to capital punishment. She bases this on a sympathetic view of murderers: ‘Our attitude to this whole thing seems to me completely savage and brutal. I have met so many murderers when visiting prisons, and most of them are very harmless, stupid people, poor creatures, when they aren’t definitely pathological.’ (GN, 36). This view is put down by our heroine, Harriet Vane, who comments that Miss Barton ‘might feel differently about it …if [she had] happened to meet the victims. They are often still stupider and more harmless than the murderers. But they don’t make a public appearance. Even the jury needn’t see the body unless they like. But I saw the body in that Wilvercombe case – I found it, and it was beastleir than anything you can imagine.’ … ‘And … you don’t see the murderers actively engaged in murdering. You see them when they’re caught and caged and looking pathetic. But the Wilvercombe man was a cunning, avaricious brute, and quite ready to go on and do it again, if he hadn’t been stopped’ (ibid.)

A more unusual view is expressed in Gaudy Night by Miss Edwards. While she feels that hanging is ‘wasteful and unkind’, she does not think murderers deserve to be ‘comfortably fed and housed while decent people go short’, and concludes that, as a matter of economics, ‘they should be used for laboratory experiments’. Lord Peter is not keen. (GN, 408).

Wimsey has at some point seen an execution, the implication being that he felt it his duty, if he was involving himself in the investigation of murder, and the conviction of murderers, to take some responsibility for the consequences of so doing: ‘I got permission to see a hanging once… I thought I’d better know … but it hasn’t cured me of meddling.’ (BH, 430). Clearly he has thought about it deeply, and put himself in the position of the condemned prisoner: ‘They give them something to make them sleep … It’s a merciful death compared to most natural ones … It’s only the waiting and knowing beforehand… And the ugliness. … Old Johnson was right, the procession to Tyburn was kinder … “The hangman with his gardener’s gloves comes through the padded door” (BH 430-31). It is made clear that he does feel his responsibility: he suffers from ‘nervous depression’ after an execution, when he has been involved in the case. (TD, loc. 309, and particularly in the last chapters of BH). Wimsey finds it particularly difficult to contemplate hanging a woman, despite an intellectual conviction that there should be equality here:‘Peter was conscious of a curious reluctance. Theoretically, he was quite a ready to hang a woman as a man, but the memory of Miss Twitterton, frenziedly clingng to Harriet, was disturbing to him.(BH, 163).

The overall view of the capital punishment question from the leading characters is positive in intellectual terms, but it is clear that the whole business is emotionally troubling. His views on and involvement in capital punishment provide some of the more thoughtful and thought-provoking moments in the Wimsey books, and give some interesting insights into contemporary non-abolitionist attitudes.

Abbreviations (references are to page number, unless preceded by ‘loc.’, in which case a Kindle location is meant)

WB                  Whose Body? (1923)

CW                  Clouds of Witness (1926)

UD                  Unnatural Death (1927)

LPVB              Lord Peter Views the Body (short stories) (1928)

UBC                The Unpleasantness at the Bellona Club (1928)

SP                    Strong Poison (1930)

FRH                Five Red Herrings (1931)

HHC               Have His Carcase (1932)

HH                  Hangman’s Holiday (short stories) (1933)

MMA              Murder Must Advertise (1933)

TNT                 The Nine Tailors (1934)

GN                  Gaudy Night (1935)

BH                  Busman’s Honeymoon (1937)

SF                    Striding Folly (short stories, published 1972)

 

TD                   Thrones, Dominations (by Jill Paton Walsh, based on a sketch by Dorothy L Sayers, 1998)

 

 

Image: courtesy of Wikimedia Commons

‘If you’re going to write [legal] histories … you have to do the research’

Weird when what seemed to be disparate bits of life come together, isn’t it? Just happened to me when scrolling through Twitter. Context: off (Covid and travel chaos permitting) to the British Legal History Conference in Belfast next week, and the Irish Legal History Society is sending helpful suggestions as to touristy things which conference-goers might do. The latest was highlighting the fact that parts of the TV series ‘Game of Thrones‘ were filmed in Northern Ireland, and there is stuff to see. A comment was made about GoT not being legal history, and I was reminded of the fact that I did once do a bit of a LH analysis of it (based on the books, not the series, granted, but it counts …). Time to collect and stick them up again, I think.

So, here, here, here,  here, here, and here for your delectation, are my pontifications on the subject. Clearly I was living a fulfilling and happy life in 2014 …

Now wondering how to find a tie-in for my similar great works on Star Trek, The Vampire Diaries and Lord of the Rings … (would work if next BLHC were to be at the University of Mordor, I suppose …). And possibly a few more thoughts on Derry Girls leading up to the SLSA conference there next year?

GS

2/7/2022

[And the quote, if you are wondering, is, apparently from s.7 of the TV series, to Tarly, by Ebrose. Thank you internet. May have altered it for added topic-relevance).

Picture: adding general royal vibe – Photo by Ashton Mullins on Unsplash

Derry Girls: a shoe-horned appreciation

For those of us in the UK, this week saw the end of wildly-loved sitcom, Derry Girls, after a perfectly-judged run of three series: out on a high it went, with praise from all quarters.

So – saying it was great is hardly news (though it absolutely was, and I aspire to be somewhere on the Michelle-Sr Michael spectrum, though fear that the Clare-Jenny Joyce continuum would be more like my teenage self …). And I don’t have particular personal connections to vaunt – have in fact never been to Derry (though, if ‘being a Derry Girl is a fucking state of mind’, as Ms Mallon so memorably put it, then maybe we all have a little …) so why muse about it on a supposedly legal history-themed blog?

For anyone working on recent legal history, of course, the relevance is obvious. Working backwards from the last episode, there are all sorts of insights into  legal rules and law-enforcement or law-breaking situations – from the Good Friday Agreement, British-Irish citizenship, release of paramilitary prisoners, British military activities, the RUC,  Orange marches, canon law procedure for recognition of miracles (the crying BVM statue one…) and no doubt much more.

There is also the ‘past meets present’ point made by many, that we (and by ‘we’, I mean in particular the current, appalling, UK government) run the risk of allowing things to descend into bitterness and violence once more, unless we have a mind to the troubled past of Northern Ireland, and the huge change represented by the GFA, and Derry Girls did a massively effective job of fixing that in current consciousness.

But it’s probably the more general lessons/reminders about history which hit home the most for me in my capacity of scholar of legal history. Like the fact that the bits professional historians (legal and other) focus on – the big changes, the high politics and economic generalisations, for example – are not necessarily the main concerns of most of the people at any given time. I mean, it may even be the case that, while the Statute of Uses was being prepared, or while assumpsit was storming the great citadel of debt, teenagers of the past were more bothered about their equivalents of Take That, Fatboy Slim and finding ‘massive rides’. At times, we may all need to ‘catch on to ourselves’ and realise that, unless we are prepared to put a bit of life, good stories, and even humour into our history,  we risk sounding rather more like Uncle Colm than any of the others. For my part, I shall be endeavouring to infuse this summer’s conference paper with something of the spirit of Aunt Sarah –

possibly not at the peak of academic rigour, but, I hope, some memorable lines. Should get back to it, I suppose.

GS

21/5/2022

 

Main Image: everyone has heard of Derry Girls, right?

 

His Dark (Legal) Materials:  Law in Lyra’s World

I have been continuing my farewell tour of children’s/young adult literature, and the latest thing I’ve read/re-read us the Philip Pullman His Dark Materials trilogy, plus the two newer Book of Dust ones. Naturally, when I am reading to myself, rather than to kids at bedtime, nobody can stop me dwelling on the essential law/legal history connections which spring to mind. There is a decent amount of legal content, though some things are not quite clear (I am hoping for a detailed exposition of the legal system in the final book …) Anyway, here are the provisional fruits of my ruminations …

Non-legal basics

If you don’t know, the basic set-up is that there are multiple worlds, some weirder than others. The first one we encounter is the best, with humans having a kind of external soul or daemon, and all sorts of steampunky retro-technology. There are several others, plus various magical or magic-adjacent groups. Our heroine is Lyra Belacqua/Silvertongue (though I prefer Iorek the armoured bear, personally …), who resides, initially at Jordan College, Oxford (one of the versions of Oxford, anyway) and has all sorts of adventures, attempting to put the world(s) to rights. But enough of that; we all know that the story is far less important than the legal/legal historical resonances …

Constitution and ‘secular’ law

Lyra’s world features slightly different countries to those in ours. Hers is ‘Brytain’. There is the odd slip into eliding ‘Brytain’ and ‘England’, (e.g. BS 187) though the existence of Wales, and Welsh, is at least acknowledged, with daemons called  Geraint (BS, 260) and Cariad (SC, 65), and Welsh miners, allowed to speak a bit of your actual Welsh (SC, 333, 339).

Brytain has a king who lives in or uses White Hall Palace, and seems to have some political power – holding a weekly Council of State (NL, 40). Monarchy also features amongst other groups – the gyptians, armoured bears and witches, for example. There is a parliament, a Lord Chancellor, lawyers and police (BS, 19, 103).

Just as the institutions look rather like old British ones, so too does the substantive law look pretty familiar. We might be in the late nineteenth century or early to mid- twentieth century. There seems to be a similar range of secular crimes (we hear of homicide, sexual offences, and others  (BS, 49, 347). The death penalty is used for murder (BS, 49), and there are inquests in cases of suspicious death (BS, 103).

There are ideas about civil liberties which, again, could be those of the early 20th C. They appear to be under threat, especially in the period of La Belle Sauvage, when ‘the old act of habeas corpus had been set aside’, so that ‘one heard tales of secret arrests and imprisonment without trial’ (BS 187). There appear to be what we might call ‘human rights’ lawyers though, who can help free those arrested (ibid.), and some people are still insisting on the need for a cause to arrest somebody, and for a warrant to come into a house (SC, 616, 624).

Lyra’s appears to be a world without sex discrimination law. Women are excluded from Jordan College (though they do have their own, much poorer, institutions (NL, 132). Women can’t be priests (NL, 371).[i]

We don’t hear too much about the workings of secular courts (with one exception, which I will deal with below), but there is a bit on the way in which law can be made via the legislative route. There is a splendid example of an attempt to sneak in serious diminutions of civil liberties under cover of the long and boring Rectification of Historical Anomalies Bill (SC, 113). This, of course, is pure fantasy, and no government would ever try to use statute to smuggle in reductions of rights and hope that people would not notice (would they, Priti Patel?)

Outside Brytain, at least some places have something akin to enslavement, as a punishment. Thus, in Trollesund, Iorek Byrnison is ‘serving out a term as an indentured labourer’ under sentence, having gone on a rampage when his armour was taken, and killed some men (NL, 189). Lyra regards it as illegitimate to treat him ‘like a slave’.  It turns out, however, that this is something more lenient than the penalty which might have been inflicted in Trollesund – shooting. The indentured labour is said to be intended to pay off the damage and the blood money. (ibid.)

 

Church matters

If the ‘secular’ constitution is ‘sort of late-19th/early 20th century-looking’, the ‘Church’ aspects of law make connections with older periods, in our world. The overall conceit is that the Church in Lyra’s world is extremely powerful, and was not diminished as a force in ‘Brytain’ by a Protestant Reformation or later secularising tendencies. Here, ‘Church power over every aspect of life is absolute’ (NL 31).

 The back story here is that there seems to have been a branching off from something like our world’s western Catholic history at the time of (our) Protestant Reformation. Pope John Calvin ‘moved the seat of the papacy to Geneva (SC, 246). When he died, the powers of the pope were shared out between different bodies, and there were no more popes until Lyra was of student age (SC, 246, 358).

Unlike the nice, neat, hierarchy of the medieval Catholic church in our world, the Magisterium is a bit of an administrative mess – ‘a tangle of courts, colleges and councils …’ (NL 31). The inter-relationship of Magisterium bodies is complex and shifting: thus, the Oblations Board is ‘not entirely answerable to the Consistorial Court (NL, 30)’. This last body is, however, constantly to the fore powerful body is this Consistorial Court of Discipline, set up by Pope John Calvin himself (NL, 30).

The Consistorial Court of Discipline has serious powers, and can apparently hand out death sentences, or suspended sentences and exile (NL, 272). It also makes ‘political’, rather than non-judicial orders, e.g. ordering the killing of Lyra, not guilty of anything, but thought to pose a danger (SK, 598). Its core business is ‘heresy and unbelief’ (BS, 31), but this is seen in fairly expansionist terms, as ‘enforcing discipline and security’ (SC, 8) as well as focusing on the intricacies of doctrine.

Heresy includes unbelief in things we would think of as ‘religious’, but also holding views of Dust  other than that it is ‘the physical evidence for original sin’ (NL, 369). (This is what lands Lord Asriel in trouble). Suggesting the existence of other worlds is also a matter for excommunication (NL, 374). The CCD could pass death sentences for blasphemy (SK, 332).

Methods of investigation and trial are reminiscent of some of the heretic hunting methods of our world’s Catholic history. At some point in the period before Northern Lights, there was an Office of Inquisition (NL, 128). Procedure in the CCD seems broadly civilian. It has an ‘Inquirer’, who questions witnesses, a membership of 12 (SK, 596), and a President (SK, 598), These are all male. Nuns get to take notes (SK, 597). In a slightly more U.S. common law vein, it has a ‘stand’ for the witness (SK, 596). The Church seems fine with torturing witches (SK, 319), and has sometimes burned them as well (though, as any of my students would know, because I really can’t stop myself from saying it every year, this is not a reflection of English practice: witches were hanged and not burned in the England of our world).

At the point where ‘church’ and ‘state’ meet, there is mention of some institutions which will sound familiar from the history of our world: tithes and benefit of clergy (SC 112). There are also two very interesting extensions/variations of ‘our’ doctrine: scholastic sanctuary and pre-emptive absolution.

The idea of sanctuary is well-known to those who study medieval and early modern England. The variation in Lyra’s world is the association with scholastic institutions and persons. It seems to have started in a ‘non-scholastic’ way, as an immunity from arrest  associated with ‘oratories’ (BS, 23), but branched our into a power in some colleges ‘to give sanctuary to scholars’ (BS, 23). Dr Hannah Relf dates this scholastic sanctuary idea back to ‘the Middle Ages’, and suggests that it was formerly a power for all all colleges, but, in her day, only Jordan College used it (BS, 95). She notes that claimants have to pronounce a Latin sentence to the Master to claim the right. (BS, 95). A little reminiscent of ‘the neck verse’, perhaps? That suggestion is not made. Lord Asriel manages to claim scholastic sanctuary for his baby daughter, which is an interesting extension, and one not seen in our world.

Not surprisingly, scholastic sanctuary is not popular with the Consistorial Court of Discipline, and the more zealous members of the Church, and there are moves to cut it down, for example telling the Jordan College housekeeper, Alice, who is dragged off by the CCD, that it does not apply to college servants, but only to scholars (SC, 515). Another way around it is financial pressure: Lyra could be made to leave Jordan College despite scholastic sanctuary when money to support her ran out (SC, 112). Then there is the direct approach: the Rectification of Historical Anomalies Bill sought to  abolish it (SC 112). Tudor parallels could be drawn.

The other excellent invention in the book, which builds upon some of the practices of the late medieval church in our world, is that of ‘pre-emptive penance and absolution’. The Consistorial Court pioneered this. The idea was that, by a lot of scourging and flagellation, a person could build up enough credit to get advanced forgiveness for something which is technically sinful – including homicide. Very useful for assassinations at the behest of the Court (SK, 600-603).

 

Sex, honour, fighting

Weirdly fitting in with one of my research projects (yes, the world does revolve around me …) Lyra Belacqua is an adulterine bastard! (NL, 122) She is the child of Lord Asriel and Mrs (Marisa) Coulter (formerly Delamare). As Mrs Coulter put it, she was ‘conceived in sin and born in shame’ (SK, 326). Mr (Edward) Coulter, finding out about the situation, chased down Lord Asriel and challenged him to a duel (with guns). Lord Asriel, however, was successful, and killed Mr Coulter (NL, 123). Imagine how happy I was to read the following words (of John Faa): ‘The consequence was a great lawsuit’! (NL, 123). Killing somebody whilst defending home and child against an intruder seemed to mitigate the sentence, but ‘the law allows any man to avenge the violation of his wife’ – what Coulter was said to have been doing (note that it’s taken as violation even if consensual… definite echoes of medieval English ‘ravishment’ laws, I think). Apparently this was a hard/unusual case, and perhaps the eventual outcome was a bit of a compromise – Asriel’s punishment was that his (very substantial) assets were confiscated (NL, 123). We have a bit of family/child law too. The general rule would be that a mother would get custody, but Lyra’s mother did not want her, and Lord Asriel was forbidden from having custody, because he was ‘not a fit person’ according to the court, so she was placed her in the priory of the Sisters of Obedience, Watlington. Lord Asriel, however, took her to Jordan College (NL, 124, BS, 117).

 

Other groups

Lyra’s world contains other defined groups, some human, some human-adjacent, some definitely ursine.

Gyptians

First the humans. You have to like the gyptians – they are cool, water-dwelling, nomadic types. Their customs are well-drawn. They meet at intervals, or when called, in the Fens, to decide important things, at meetings called ropings (NL, 113).  Here, decisions seem to be made by proposal and open oral agreement (NL, 117). Men are in charge, but both men and women have the right to speak against proposals (ibid.)

Their legal position seems to be exceptional, but at risk, in the time of Northern Lights, one gyptian pointing out that there was a contemporary ‘move in Parliament … to rescind our ancient privileges on account of [their sheltering of Lyra]’ (NL, 135). Free movement by water seems to be the main privilege under threat. It seems that there were previous attempts to remove their right to free movement and other activities, such as buying and selling (NL, 136; BS, 58). Like their equivalents in our world, gypsies, Romany people and travellers, they seem to have been an easy target.

Witches

Perhaps even cooler than the gyptians are the witches – women only and capable of flight and other magic. And very long-lived. They are organised in clans, and make decisions by council (SK, 334). This is how it worked: ‘The witches were democratic, up to a point’ All had the right to speak, but only the Queen has the power to decide (SK, 337).

A fascinating, and, to me, admirable, aspect of witch law is that they do not have property. As the magnificent Serafina Pekkala puts it ‘Witches own nothing, so we’re not interested in preserving value or making profits… We have no means of exchange apart from mutual aid… Nor do we have any notion of honour, as bears do, for instance. An insult to a bear is a deadly thing. To us, … inconceivable. How could you insult a witch? What would it matter if you did?’ (NL, 305).

Like the gyptians, they have known persecution. Some humans are very anti-witch. Father Seymun Berisovitch, for example says the ‘They should be put to death, every one. ‘The church should have put them all to death many years ago’ (SK, 622). They do seem to have been at risk of burning at the hands of the Church. (AS, 28).

 

Bears

And possibly coolest of all, we have the armoured bears. They clearly had their own legal system. We know that Iorek Byrnison ‘was sent away from Svalbard as a punishment because he killed another bear, against the rules (NL, 223). We later learn that the fight was over ‘a she bear’,[ii] and a failure on the part of another bear to ‘display the usual signals of surrender when it was clear that Iorek was stronger’, and that the specific thing Iorek had done wrong was to kill, not just wound, the other bear: wounding would have been acceptable (NL, 305).

Bears had a well-established procedure for trial by battle (a outrance) to settle some particularly intractable issues (such as who gets the she-bear, and who should be king) (NL, 347). There was ‘a whole ceremonial’, including the sweeping of the combat ground and the checking of armour (NL, 342). There may also be a ritual for dealing with a defeated party: before his fight with Iorek, the evil Iofur says that, if he beats Iorek, ‘his flesh shall be torn apart and scattered to the cliff-ghasts. His head shall be displayed… His memory shall be obliterated. It shall be a capital crime to speak his name.’ Then again, this might be a bespoke threat rather than what always happens. The eating of a defeated rival’s heart does seem to be essential, however (NL, 352). Lovely!

 

 

As the second Book of Dust says,  To be concluded …..

 

 

 

Abbreviations

NL           Philip Pullman, Northern Lights (1995)

SK           Philip Pullman, The Subtle Knife (1997)

AS           Philip Pullman, The Amber Spyglass (2000)

BS           Philip Pullman, La Belle Sauvage (2017)

SC           Philip Pullman, The Secret Commonwealth (2019)

(page numbers for books 1-3 are from the Kindle trilogy edition).

 

Photo by Lucas Marcomini on Unsplash

[i] Dress is very gendered. Thus, Lyra won’t wear trousers, saying ‘I’m a girl. Don’t be stupid!’ (SK, 345). It is also a pretty heterosexual world. Virtually everyone has an opposite sex daemon, though there is mention of a pastry cook. ‘one of those rare people whose daemon was the same sex as himself’: NL 125, and some gay angels (SK, 591).

[ii] Gender in the bear world is fairly traditional too. There are ‘bears’ and ‘she bears’ (in accordance with The Second Sex by Simone de Bearvoir (!) the masculine covers both male and neuter) (NL, 345). There seems to be a degree of segregation too – with separate enclosures for ‘she bears’ in the audience at a judicial combat (NL, 345).

Law’s Panempire: a few thoughts on the Hunger Games novels

I am currently doing a bit of a farewell tour through some books and films, and last week I indulged myself in a re-read of the last books which served as out-loud bedtime reading with my kids, Suzanne Collins’s Hunger Games trilogy. We read these (or certainly the first one) before the films came out, so before the heroine, Katniss Everdeen, was inseparable from Jennifer Lawrence, though I can’t now recall the image I had of that character in that pre-Lawrence period. The books certainly kept us engaged, though, and it was with happy memories that I revisited them just now.

They are full of action, of course, and some engaging characters, but naturally enough, I found myself wondering what there was in terms of legal content. As ever with science-fiction, it is interesting to look past the tech gadgets and aliens (if applicable – not so here) to see how societies are imagined. This includes the sorts of rules and constitutions which are set out or assumed. There may be less of this in what is, in the end, an adventure story for older children, but still there are some bits and pieces it seems worthwhile pointing out.

 

District Twelve Tables? Bread, circuses and … Roman Law?

The central idea of the games and the arena, not to mention some of the names – Caesar, Plutarch, Seneca, Claudius, Coriolanus, the Capitol, and Panem itself – obviously show the influence of Rome. I can’t say, though, that I see much of the legal content which looks especially Roman. It’s rather more  akin to modern U.S. law and institutions. The only vaguely legal thing that really screams ‘classical world’ is the end of Seneca Crane – made to kill himself by taking nightlock.[i] This, though, is rather more reminiscent of the death of Socrates than the deaths of Romans who fell foul of the authorities.

 

Histories and Constitution

The story which is fed by the Capitol to the twelve districts which serve it, is that Panem was once (in ‘the Dark Days’) threatened by an  uprising against the Capitol. When the districts were defeated, one, (District 13) was obliterated, and relations between the Capitol and the remaining districts was reset. These relations, interestingly for law-fans, were governed not be a statute but by a treaty (which, I suppose, gave an appearance of consent, even though it was consent to abject subservience). The settlement included the foundation of the Hunger Games. This quotation gives the basics:

‘The Treaty of Treason gave us the new laws to guarantee peace and as our yearly reminder that the Dark Days must never be repeated, it gave us the Hunger Games. The rules of the HG are simple. In punishment for the uprising, each of the 12 districts must provide one girl and one boy, called tributes, to participate. The 24 tributes will be imprisoned in a vast outdoor arena that could hold anything from a burning desert to a frozen wasteland. Over a period of several weeks, the competitors must fight to the death. The last tribute standing wins.’[ii]

In the time covered by the books, Panem is ruled from the Capitol. There is a President (President Snow) but I suspect that he is not democratically elected.[iii] There is some idea that his powers are limited by law, [iv] but it is not clear what those limits might be, and he does not seem to feel constrained from arbitrary action, such as making death threats against family members or friends to ensure that he gets people to do what he wants.[v] Are there lawyers in this world? We do not really know. There is a hint that there are at least some sort of legal experts who might offer an opinion on aspects of the arrangements of the Hunger Games.[vi]

In the later books, we discover that some of the ‘origin story’ is false – District 13 was not obliterated, but has become a strict, underground, society, which, in its way, is as disturbing and controlling as the Capitol.[vii]

 

Capitol Offences

It is not always easy to see what is the law and what is abuse of the law on the part of the Capitol and its emanations, including the paramilitary ‘Peacekeepers’, but the overall picture is one of strict criminal law, with severe sanctions, including mutilation and death by hanging or shooting.[viii] There are also those medieval and early modern favourites, the stocks, and whipping,[ix] and some use of imprisonment.[x]

In an echo of the ‘Bloody Code’, theft and poaching offences are harshly treated, especially if they involve crossing from one’s district into the woods beyond.  ‘Hunting in the woods surrounding District 12 … is punishable by death’.[xi] All forms of stealing are punishable by death.[xii] There is, though, a broad range of possible outcomes, depending on how strictly the local authorities or Peacekeepers want to adhere to the penalties. Initially, the Peacekeepers in District 12 are not interested in punishing poaching ‘because they are as hungry for fresh meat as anybody is’.[xiii] An outside Peacekeeper, Thread, however, imposes a stricter regime and Gale is condemned to forty lashes at the whipping post for poaching a wild turkey (which, it was pretended, had wandered into the district).[xiv] In other districts, punishment may also be stricter: this seems to be the case in District 11, where, Rue reveals, eating crops is punishable by public whipping,[xv] and a boy was killed for stealing night glasses.[xvi] The law does not seem to have much room for defences, but there is some concession for mental incapacity: Coin says that District 13 would not punish as a traitor somebody who was (mentally) ‘frail’,[xvii] and Katniss herself benefits from some sort of mental instability plea, after she shoots Coin.

Treason is, unsurprisingly, treated with severity: death or removal of the tongue and enslavement as an avox seem to be the main responses. [xviii]  The scope of treason/rebellion seems to be fairly wide, encompassing whistling and setting off an anti-Capitol demonstration, [xix] and selling bows.[xx]

 

One boy and one girl …

As with so much science fiction, gender roles are essentially traditional. Thus, the miners in District 12 are all male. I am not sure I can explain, therefore, how it is that, in the Hunger Games, male and female tributes are selected to fight each other.

We do learn a little about marriage – which again seems fairly traditional, and M-F only. It is, at least, not compulsory, and free choice of spouse seems to be the norm. [xxi] There is some variation in terms of traditions, but some form of registration applies throughout, and marriage seems to result in the assignment of property to the new spouses.[xxii] In general, property seems to be state-controlled, and assigned for life only. This applies to the swanky homes given to those who are victorious in the Hunger Games as well as to the rest.[xxiii] So, sadly, I can’t say anything much about the property law of Panem.

 

Other miscellaneous thoughts

I note that, in an attempt to disrupt the Quarter Quell, Peeta (falsely) claims that Katniss is pregnant. This has me thinking about ‘pleading the belly’ in order to defer a death penalty (or torture), but it would seem that pregnancy does not stop a person having to take part in the Hunger Games, even if it does outrage those hearing about it.[xxiv]

Also of interest: there is a fair bit of questioning of what limits there might be on acceptable behaviour in war – idea of war crimes not named, but sort of there: e.g. questioning of whether it is OK to trap people, enemies and ‘collateral damage’ in a mountain tunnel network,[xxv] andy disagreements about the (effective) strategy of bomibing both Capitol citizens and then their rescuers.[xxvi]

 

Ave atque vale, Katniss

That’s about it, as far as I can see. A few bits and pieces of law, along with all the violent excitement and a rather inspiring heroine. Off they go to the charity shop, and all that remains is to say, with the great E. Trinket,

May the odds be EVER in your favour …

 

GS

30/1/2022.

Image: Sand Sculpture at Weston super Mare of The Hunger Games by Marielle Heessels

 

 

 

 

[i]

I               Suzanne Collins, The Hunger Games (2008)

II             Suzanne Collins, Catching Fire (2009)

III            Suzanne Collins, Mockingjay (2010)

II, 285.

[ii] 1, 21

[iii] I, 7.

[iv] For possible questions about the relationship between the President and the constitution, see the questioning of whether President Snow has the power to change the Quarter Quell  II, 303.

[v] II, 36.

[vi] II, 301.

[vii] compulsory military service, strict rules about food, brutal treatment of offenders, even those who did not really get the rules III, 42, 43, 57.

[viii] III, 148.

[ix] II, 221.

[x] I, 19.

[xi] II, 11.

[xii] I, 35.

[xiii] I, 6.

[xiv] II, 127, 135.

[xv] I, 245.

[xvi] I, 247.

[xvii] III, 67.

[xviii] I, 94.

[xix] II, 77.

[xx] I, 6.

[xxi] II, 55.

[xxii] II, 299; III, 262.

[xxiii] II, 7.

[xxiv] II, 309.

[xxv] III, c. 15.

[xxvi] III, c. 25.

Vampire Property Law: fiend simple absolute in possession?

[This is an updated version of something I wrote in 2021, on vampires and property law]

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points (!) in relation to the Undead and their interactions with systems of property.

 

(Vampires outside a house …)

Can I come in?

Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries makes great play of this, and there are certainly resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring – actually played by the bonehead boyfriend from another jurisprudential classic, Legally Blonde) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. s.2 ep. 18 went totally for the Venn diagram overlap between vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her then paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

There is more right-of-entry-related fun in later series. Season 7, for example, goes for it in a big way. In episode 2, Lily, vampire mother of Stefan and Damon Salvatore, during an evil phase, keeps her sons out of the house by signing it over to a compelled Matt Donovan (a rather dim human) and making him refuse them entry. Thrillingly, there is talk of land registration (be still my apparently not undead beating heart)! And also a nugget on the workings of the whole thing – apparently if human Matt were killed and then brought back to life, that would simply ‘open the door’ – so, the seals would not go back up when he returned from the dead. [Issues of property entitlements, succession and return from the dead could, frankly, be fleshed out rather more …] Another human registered proprietor for the Salvatore house (for the same reason as Matt) is the compelled cleaner, Lucy (season 7 ep. 6). [I do wonder how to categorise the interests of Lily’s family in the house – un-life tenants?] Another house which features some property-based refusal of entry issues is the place Bonnie Bennett bought to keep drippy Elena’s coma-coffin, and wanted to use as a love nest for herself and dodgily accented vampire Enzo. In s. 8 ep. 11, Stefan (in an evil phase – keep up!) somehow managed to have title transferred away from Bonnie, thus allowing him to get in, shutting Enzo out and leaving the latter vulnerable to slaughter. I don’t claim any knowledge at all of the property law of New York, so don’t really understand how it is that the realtor has the ability to assume title of the property, but that is what happens (she is, of course, compelled – interesting to wonder how vampire compulsion could be brought up in a property dispute …)

Good stuff, but still so much that we need to know, e.g. …

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8 (or equivalent in your jurisdiction).
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Can we have a little more detail on the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.
  • What about houses subject to a mortgage? Or a long leasehold? Could a vampire move in to one house and acquire an easement to enter neighbouring properties? How would a licence for vampire entry work with s. 62 of the Law of Property Act on reconveyance? So many unanswered questions …
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?
  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 3 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date? And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

(Vampires clearly inside a house …)

There’s just so much we need to know, isn’t there? And very oddly, there is not much in the way of existing scholarship.[i] Too much other stuff to do at the moment, but, like the undead, my article on Vampire Property Law for the Mystic Falls Law Review is a project which will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

updated 20/1/2022

 

(Main Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing. Don’t get me started on ‘mortmain’ …)

[Later thought – on the basis of this case – surely there is scope for a bit of vampiring up of the legal/property aspects of cryptocurrency such as Bitcoin …. Yes, need to get out more …]

[i] Honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2).

‘No Freman …’: Frank Herbert’s Dune Novels, the Updated Unofficial Legal Historical View

 

It has long struck me that science fiction/fantasy is an interesting source for submerged ideas about the legal past. Many of them have ‘sort-of-medieval’ societies, which are set up using assumptions and constructions about medieval law, and other legal ideas can be detected too. The Dune novels of Frank Herbert[1] cover a great sprawl of imagined time and space, in a far-future in which there are multiple planets with human(oid) civilisation. There are various massive changes over the six books in terms of forms of government and social organisation, and focus changes between various groups and individuals. They include numerous references and clues to the legal underpinnings of the various societies involved. These come from a particular perspective – that of the ‘western’ male of the mid-twentieth century, and from a society in which Anglo-American law is a formative influence. Whatever is the equivalent of the ‘Overton window’ for imagination is limited for all of us by such a background, and it is possible to see numerous debts to ideas about law which are clearly based on popular perceptions from Herbert’s own time, as well as that time’s popular perceptions of the legal past. I have enjoyed thinking about this, and I think that there is scope for much further consideration of sci-fi/fantasy as a source or prompt for Legal History.

Here, for what they are worth, are my thoughts.

In the period of the first book, the main systems of law/norms which we see are (i) what I would call the ‘general law’ – overarching rules applying to the Imperium and its constituent parts; and (ii) the specific laws/customs of the Fremen of Arrakis, a.k.a. Dune, a desert-living people, the conception of whom owes much to a 1960s US conception of Arab peoples, viewed through the lens of the film Lawrence of Arabia (1962).

The basic constitutional set-up is that there is an emperor, and a set of hereditary rulers of planets, or planetary systems, owing allegiance to the emperor (leaders of the Great Houses and the Minor Houses). We don’t hear much about the lower orders – though there are definitely slaves.[2] In Dune, the ‘basic law’ governing relationships here is the Great Convention (GC), a ’universal truce enforced under power balance maintained by Guild, Great Houses and Imperium’.[3] It is not quite clear how detailed this is: is this a ‘codified’ legal world’ – should I be thinking of sometihng the length of Magna Carta or something more like the Code Napoléon? Another source of law is legislation by the Landsraad, which seems to be a sort of parliament.[4] There are also imperial Orders in Council.[5]  And public law fans everywhere will be thrilled to learn that there is some rumbling about wanting a proper written constitution.[6] After the first book, things get a bit messier, and there is much more tyranny, much less in the way of widely-agreed rules.

An aspect of the system-building in Dune that I like is the mixing of ideas of hereditary rule with those of corporate law and structure. The relationship between the emperor and the Great Houses is complicated by the presence of a corporate vehicle, CHOAM. Shares, and corporate roles, in this huge development company go along with position in the hereditary structure. I suppose what appeals to me about this is the idea that the crown and hereditary power organisational model is not some sort of high-minded ‘noble’ thing, above the fray capitalist structures: it is all about the money, and employs whatever legal vehicles maximise profits for a limited group of people.[7]

Law and tyranny:  ‘Law is the ultimate science’[8]

It would be safe to say that there is not a particularly positive view of law, overall. We have various statements to the effect that law does not work, or is counter-productive (often, it must be said, from those who would rather not be fettered by any silly rule-of-law nonsense …) Thus, once he is emperor, Paul Atreides is not very keen on the idea of a constitution (which would of course, tie his hands somewhat): ‘Constitutions become the ultimate tyranny’.[9] Convenient. Just begging for a ‘discuss’, isn’t it?  Jessica and Alia agonise over the law/religion/government relationship.[10] The Bene Gesserit Sisters also have an idea that they are above the law, obeying a higher morality.[11]

More general and unfocused law-slagging-off can be seen, e.g. here: ‘What is law? Control? … Law – our highest ideal and our basest nature/ Don’t look too closely at the law. Do and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience. You’ll find the serenity which is just another word for death’.[12]

Often, a dim view is taken of the utility of law (which, in a slightly inexact/lazy twentieth century view seems to mean positive, statutory, criminal, law): ‘Laws to suppress tend to strengthen what they would prohibit.’[13] This is coupled with a slur against the legal profession (otherwise notably absent) which seems a bit lazy and out of place – ‘…This is the fine print on which all the legal professions of history have based their job security’.[14]

The rather limited view of law on display clearly does not involve any room for discretion, mercy, equity. These things have to be supplied from without: ‘Laws are dangerous to everyone – innocent and guilty alike… They have no human understanding in and of themselves … Laws must always be interpreted. The law-bound want no latitude for compassion. No elbow room. The law is the Law!’[15] Apparently legal history scholarship on mercy, pardons, equity, will not survive into the time of the Duniverse …

The God-Emperor Leto II rather gives up on law as a tool of control, preferring religion as a way of keeping people occupied and in order.[16] He sees a need for (civil) law in cities, where ‘many injuries occur’, but there is a significant ‘downside’: ‘ The law develops its own power structure, creating more wounds and new injustices’.

On a more technical legal-scholarship level, I am not sure what public lawyer colleagues would make of the attempts to differentiate ‘law’ and ‘regulation’ in a discussion between a BG sister and the chief Honoured Matre in the last book: ‘If you do not see the difference between regulation and law, both have the force of law/’[17] (Eh?) The following account definitely does not fit in with ideas about Law in historical context: ‘Laws convey the myth of enforced change. A bright new future will come because of this law and that one. Laws enforce the future. Regulations are believed to enforce the past’.[18] Another relevant distinction is that between law and custom. In the first book in particular, we see customary law amongst the Fremen (more below). There is even the odd bit of jurisprudence – an undead philosopher trashes natural law and has a go at classic seminar question ‘What is justice?’.[19]

Substantive legal rules

Many of these are alluded to through the series. I will note just a few here.

In terms of content, the GC includes rules, each beginning ‘‘the forms must be obeyed’.[20] The chief rule is that no atomic weapons to be used against a human target. The penalty for transgression is planetary obliteration.[21] A much later summary of the rule is ‘You blast anyone and we unite to blast you’.[22] Some weapons appear to be on the edge of legality under this rule, particularly the ‘stone-burner’ (radioactive, deadly, blinding …).[23] There is also the Dictum Familia – setting up the rules on non-prohibited assassination (because informal treachery would be really bad …) and strict rules about kanly (feud or vendetta), involving swearing kanly, and then being entitled to kill all agents of the House against which it has been sworn.[24]

The general thrust, then, seems to be an agreement which does not aspire to genuine peace, but tries to keep a lid on excessive disorder by setting a few rules. The kanly idea has certain resonances with ideas about the early medieval period, and the assumed ubiquity of the ‘blood feud’, but with no real central effort to channel people’s grievances towards compensation rather than vengeance (as we see in many compensation-tariff codes set out by central authorities across western Europe in this period).[25]

The GC also includes rules against computers (artificial intelligence having somehow sparked off the ‘Butlerian jihad’, a major upheaval …) and there is an exhortation to ‘Make no device in the likeness of the mind’.[26] Rather of its time in terms of Legal History – the genie is rather too far out of the bottle for this to be a possibility in our future.

Other aspects of organisation are not explicitly tied to the GC or particular legislation, but seem to have the status of law. Family law and succession are clearly important. There is an idea of monogamous marriage, but also other forms of relationship amongst the ruling classes. Baron Harkonnen seems to favour young male partners, and nobody seems to be bothered.[27] The series generally portrays heterosexual pairings, which, I suppose, is characteristic of limits on imagination at this period, as well as being tied to its disturbing obsession with breeding (eugenics really).[28] There is a hint of rape-myth thinking in a statement about submission ‘to a form of rape at first only to convert this into a deep and binding mutual dependence’.[29] Don’t think so, though such views can certainly be dredged up from any study of the history of rape. Probably the most disturbing aspect of sexual behaviour which appears in the series is the not-really-condemned ‘initiation’/ abuse of a male child by an older woman in book VI – perhaps we are supposed to think that this is not wholly abusive and grim because the child is a reincarnated version of somebody who was previously mature. Clearly terrible. A reminder that there were some very wrong ideas about this sort of thing floating about in the not-too-distant past.

Powerful men may have a concubine, and this is a relatively respectable position. Jessica is described as the concubine, or formal concubine, or bound concubine  of Duke Leto (who is unmarried, for political reasons).  As concubine, Jessica has a degree of power and respect, and her son, Paul, is regarded as legal heir to the Dukedom, and then rightful Duke, and Alia Leto’s legal daughter.[30] Still, it is a bit of an unsatisfactory position, even if Leto charmingly tells her that she is actually better off because he hasn’t married her (it seems to be his choice …) as that means she doesn’t have to eat formally with him every night.[31] The pattern is repeated in the next generation: Paul is ‘with’ his Fremen woman, Chani, but is going to marry the Emperor’s heiress, Princess Irulan. It’s OK though, because ‘this is a political thing … [and] that princess shall have no more of me than my name.’ [no sex, no kids – and the name thing shows that gender trumps rank …][32]

There are a few statements about property which are worth noting, in particular in the last book. In a fascinating exchange between the BG Mother Superior, Odrade, and a ghola (much reincarnated being), Teg, the view is expressed that ‘Ownership is an interesting question’, and it is asked  ‘Do we own this planet, or does it own us?’[33] Not a million miles away from some of the discussions arising in modern, thoughtful, Land Law work, which takes in the perspectives of indigenous peoples. Likewise the interpretation of the relationship between the BG and the planet they inhabit as one of ‘stewardship’.[34]

Fre-dom

We are invited – implicitly – to contrast the laws and treachery of the rest of the universe with the honour and law of the semi-nomadic Fremen. There is more than a touch of orientalism/romanticising the ‘primitive’ about this (and before we dismiss the latter as a term we would never use now, I did notice ‘ancient and primitive law’ as a heading within the classification system at a library last week). The laws and customs of the Fremen are strange to outsiders at first, but the suggestion is that they are logical responses to their unforgiving environment, with its extreme shortage of water. I don’t think we are supposed to see the Fremen as misogynist, but some of their rules definitely show the perspective of a man of the mid-20th C. No hint of Frewomen’s Liberation …

They may be Fre, but the Fremen are not individualistic. It is all about the group’s survival, and getting and retaining water.  The overall rule is: ‘A man’s flesh is his own; the water belongs to the tribe’.[35] Leading on from this, those who are net takers of water without providing anything to the group may be sacrificed, and rendered down for their moisture,[36] and the blind ought to be abandoned in the desert, presumably for similar reasons.[37] Taking it a step further, in a sense, it was, at least at one time, the case that ‘someone caught outside the sietch without a stillsuit was automatically killed. To waste water was to endanger the tribe.’[38]

Despite the whole group thing, there is also some sort of individual property right in water. Paul is entitled to the water of a defeated adversary, and Jessica retains rights in the bottled water she brought with her. Giving some of it up to the others whilst in the desert will be compensated tenfold when they get to the Fremen settlement.[39] There are also tokens for water from the common stock, which are involved in courtship (I love you so much I am giving you the moisture captured from somebody’s squished flesh ..). There also seems to be a limited idea of property in chattels – so things belong to people, but are shared out by the leader when somebody dies.[40]

Keeping one’s word is a big deal, and there is a consciousness of being especially honourable in this respect. Contracts are, of necessity, oral.[41] [No specialty rule for the Fremen …]

The Fremen use trial by combat not (just?) for things we would think of as legal, but to determine truth, under the ‘amtal rule’.[42]  Combat seems to be an all male affair,[43] and is to the death. Intriguingly, there is an echo of medieval trial by combat procedure, in that it has to be ensured beforehand that Jessica, who has the special powers of a Bene Gesserit ‘witch’, will not put a spell on a combatant.[44] There is also some form of ordeal – as when Jessica shows she is fit to be a Reverend Mother (this ordeal rather resembling the ordeal of the bitter waters, Numbers 5:11-31).[45] Ordeals are not confined to the Fremen: Paul is also tested by a Bene Gesserit Reverend Mother, to check his humanity (didn’t quite get that …) in a fancy process involving a poison needle and a box of (artificial) pain (if you can have artificial pain ..physiological/philosophical rabbit hole there …). Bit of a step up from hot iron, ploughshares and holy morsels of medieval European ordeals. Interestingly this is not founded on an appeal to God, but on psychological understanding of what humans and animals would do differently.[46]

Anyway, back to the Fremen. Combat is also the way one leader takes over from the last. The Fremen do not have hereditary leadership, but rather the strongest person (well, man) leads: ‘the one who brings water and security’.[47] Paul manages to change the rule, so he doesn’t have to kill Stilgar to lead. Instead, he has Stilgar go through what looks like a homage ceremony, kneeling, handing over his knife, swearing fealty.[48] Hmm – doesn’t sound that Fre to me …

Except there is relatively Fre love. For the men anyway. And assuming that they like women. At least there is a convention that women ‘are not taken against their will’.[49]  Nevertheless, there are certainly situations in which men get to do the choosing as to relationships – we see this after (15 year old) Paul beats Jamis in combat, and gets to decide whether to have his widow as his woman or his servant, or free her.[50] And families appear to decide who a Fremen woman will marry (relatively young).[51] So – not as fre-ly consensual as all that. Another aspect of Fremen Family Law which emerges is that there is a rule against incest: the death penalty (hanging on a tripod) applies to incest.[52] Exactly what amounts to incest is unclear, beyond the example of brother and sister which is the matter in hand in the passage relating to this law. One would have thought that the structure of society would have meant quite a lot of in-marriage within tribes, so the rules would have to be restricted to a small number of banned relationships.

One practical issue which is not addressed is how exactly initmacy works – I don’t mean the complex business of getting into somebody’s stillsuit, but the water issue. They are all so cautious about losing moisture, but there is the issue of, well, fluids involved in ‘the huddlings of sex’,[53] isn’t there?

Law, religion, witchcraft and eugenics: the Bene Gesserit

One of the groups involved in power and overthrow of power is called the Bene Gesserit. Not quite clear to me why that name would have been chosen – it alludes to good behaviour, and for legal historians has resonance with the commission to judges that they shall keep their role as long as they do not misbehave (as opposed to serving as long as the monarch pleases, the older, pre-17th C, rule which made it simpler to remove them). This has been taken to be important for judicial independence (though it can be exaggerated, because it does nothing to ensure that those who are appointed in the first place are independent types rather than subservient ones). I am not quite sure what that has to do with the Bene Gesserit in the Dune books, who are an order of women with highly trained physical and especially mental capacities. They are associated repeatedly with another rather 17th C-resonant thing, though: witchcraft. They are forever being called witches, and we even get a very witch-hunty citation of ‘Thou shalt not suffer a witch to live’ at one point.[54] They have a sort of ‘evil twin’ organisation – the Honoured Matres – in later books, these women being possessed of various skills including deadly foot-fighting abilities and extraordinary sexual abilities, but not particularly interesting from a legal/historical point of view. The BG are supposed to be sort-of sympathetic, but manipulative in terms of religion and mad-keen on eugenics (even though the little ladies don’t always get this right …and it is slipped in that their massive breeding programme apparently involves killing some children).[55]

 

History

Some glimpses of modern popular attitudes to history come through as well. There is a nice episode involving the emperor/tyrant/ weird wormy slug man, Leto II and some historians: he executed them, he said, ‘because they lied pretentiously’.[56] This was not your actual vivicombustion[57] though, so that was better than it might have been, he tells us. Not quite clear what was wrong with their work, but I might be able to think of one or two historical works which might conceivably fall into the category ‘pretentious’ … will say no more.

There is some more general comment on history. Partly it’s a bit trite (and borderline Toryish grumbling about historians revising things …in the wrong way):

‘Historians exercise great power and some of them know it. They recreate the past, changing it to fit their own interpretations. Thus they change the future as well.’[58]

I do think that there is a nice bit of insight/prescience about the way a lot of popular history has gone in a quotation put into the Chronicles of the Bene Gesserit Chapterhouse, which seems a fitting place to end:

‘The ease with which historians can be captivated is explained in part by the fact that bloody events exert a magnetic attraction on humankind. Historians … cater to that ancient human desire you see manifested in the mobs gawking at executions or pepople stopping to stare at the scene of an accident. Historians have the added incentive that catering to this bloody attraction often produces wealth and power. It is popular. Digging deeply into obscure events and the secret machinations of unknown people is not only more difficult, it is observably dangerous to careers’.[59]

I cannot say that working on some of the more grisly aspects of medieval law has brought me wealth or power, but there is some truth here, and it is certainly worth bearing in mind, as I return to the other thing I promised myself I would finish off today, on medieval petty treason (ft. burning at the stake) …

 

A Better New Year to us all: repeat it with me …

“I must not fear. Fear is the mind-killer. Fear is the little-death that brings total obliteration. I will face my fear. I will permit it to pass over me and through me. And when it has gone past I will turn the inner eye to see its path. Where the fear has gone there will be nothing. Only I will remain.”

GS

31st December 2021.

 

 

Photo by Ryan Cheng on Unsplash (Disclaimer – I admit that this is not actually the planet Dune …)

[1] I have read only the six novels by Herbert himself: Dune (1965) = I, Dune Messiah (1969 = II); Children of Dune (1976) = III; God Emperor of Dune (1981) = IV; Heretics of Dune (1984) = V; Chapterhouse Dune (1985 = VI). One day I may get around to reading the various sequels and prequels by others, but there is a limit to my current capacity for nerdery.

[2] I: 39. And obviously he does say ‘slaves’ rather than ‘enslaved people’. 1960s.

[3] I: 596.

[4] II: 75

[5] II: 76.

[6] II, 76.

[7] CHOAM rather fades from view in later novels, I am afraid, fans of company law/legal history.

[8] I: 252 ‘Thus it reads above the Emperor’s door’.

[9] II: 76.

[10] II: 252.

[11] VI: 154, Lucilla.

[12] II: 249.

[13] VI, 119.

[14] ibid. ‘Bene Gesserit Coda’. Sounds more like a grumpy, easy, 20th C thing to say, lashing out at ‘the lawyers’ .. might do as an exam question though!

[15] VI: 154, Lucilla. See also Odrade, 237.

[16] IV: 225.

[17] VI: 152, Lucilla, not really answering the question, it seems to me …

[18] Ibid., and Lucilla again.

[19] II: 151 – Duncan Idaho, a fighter turned zombie type of thing (generally positive character) says of natural law that it is a ‘myth’ that ‘haunts human history’. II: 156 is his go at justice. Fair to say he has no problem with dictatorial power.

[20] I: 596.

[21] I: 514.

[22] VI: 134.

[23] II, 55.

[24] I: 100, 161, 517.

[25] See, e.g. Lisi Oliver, The Body Legal in Barbarian Law (Toronto, 2011).

[26] IV:32.

[27] Duncan Idaho is a big old homophobe though: IV:321.

[28] Limits on the imagniative treatment of scientific development are always interesting – it seemed more likely that a massive, slow, eugenic breeding programme obsessed with ‘Atreides traits’ would be allowed to develop, rather than the ability to alter people more quickly, once born, to get desired characteristics, apparently. The development of living furniture (the ludicrous and unnecessary ‘chairdogs’ was more imaginable than gene-editing …).

[29] IV:209.

[30] I: 54, 57, 589.

[31] I: 54.

[32] I: 561.

[33] VI: 14.

[34] VI: 15.

[35] I: 241.

[36] I: 238, 316-7.

[37] II: 242. Cue a nice bit of legal tricksiness from Paul – he loses his eyes, but initially argues that because he can see with his mystical powers, he doesn’t have to be desert-ed. In the end though, he surrenders to the law, to become properly Fre (though also, to be fair, properly dead). The Fremen Law about sending the blind off into the desert is expressed as consigning them to Shai-Hulud (the great worm) in III:39.

[38] III: 286.

[39] I: 349, 351.

[40] I: 354.

[41] I: 320.

[42] I: 337.

[43] Possibly a little inconsistent with the existence of Fremen amazons – II: 111?

[44] I: 340.

[45] I: 401.

[46] I: 6-9.

[47] I: 328.

[48] I: 489.

[49] I: 330.

[50] I: 389.

[51] III:290.

[52] III:113.

[53] I: 332.

[54] III:58.

[55] V:29.

[56] IV, 70, Year 3508 of reign of Lord Leto, BG Chronicle reports execution of nine historians ‘who disappeared into his Citadel in year 2116 of Lord Leto’s reign… the nine were rendered unconscious then bound on pyres of their own published works.’ See also V:6.

[57] Yes, I have all the vocab – a result of my petty treason work …

[58] V: 403.

[59][59] V:6, Bene Gesserit Chronicles of the Chapter House, from Mother Superior Darwi Odrade’s Argument in Council.

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

There is a new film based on Frank Herbert’s Dune in cinemas at the moment. I am still not entirely happy with the idea of ‘sharing moisture’ with a room full of strangers, given the continued pandemic, but I dare say I will see it one day on DVD or streamed. In the meantime I thought I would re-read the books (well, re-read the first one, read the rest – I don’t think I got beyond vol. 1 as a teenager) and see what they say (explicitly and implicitly) about the legal system(s) in the Duniverse. When constructing a whole world, or set of worlds, like this, an author inevitably draws on contemporary ideas about law. They almost always also bring in (contemporary ideas about) legal history, when setting up certain sorts of ‘alien’ civilisation. I am sure there is a way I could use all of this in LH teaching, but, for now, let’s just get down a few thoughts….

[And note – book I has a glossary and Appendices – feels like home!]

Dune is set in a far-future in which there are multiple planets with human(oid) civilisation. After all sorts of war and chaos, things have come to an uneasy setllement. In the first book, this is more ‘uneasy’ than ‘settled’, but there is definitely an idea of what ought to be going on, and a lot of it is explained in terms which will not be familiar to lawyers and legal historians. The main systems of law/norms which we see are (i) what I would call the ‘general law’ – overarching rules applying to the Imperium and its constituent parts; and (ii) the specific laws/customs of the Fremen of Arrakis, a.k.a. Dune, a desert-living people, the conception of whom owes much to a 1960s US conception of Arab peoples, viewed through the lens of the film Lawrence of Arabia (1962).

The basic constitutional set-up is that there is an emperor, and a set of hereditary rulers of planets, or planetary systems, owing allegiance to the emperor (leaders of the Great Houses and the Minor Houses). We don’t hear much about the lower orders – though there are definitely slaves.[i]

An aspect of the system-building in Dune that I like is the mixing of ideas of hereditary rule with those of corporate law and structure. The relationship between the emperor and the Great Houses is complicated by the presence of a corporate vehicle, CHOAM. Shares, and corporate roles, in this huge development company go along with position in the hereditary structure. I suppose what appeals to me about this is the idea that the crown and hereditary power organisational model is not some sort of high-minded ‘noble’ thing, above the fray capitalist structures: it is all about the money, and employs whatever legal vehicles maximise profits for a limited group of people.

 

‘Law is the ultimate science’[ii]

The ‘basic law’ governing relationships here is the Great Convention (GC). 596 – GC univesal truce enforced under power balance maintained by Guild, Gt Houses and Imperium. It is not quite clear how detailed this is: is this a ‘codified’ legal world’ – should I be thinking of somethng the length of Magna Carta or something more like the Code Napoléon?

In terms of content, the GC includes rules, each beginning ‘‘the forms must be obeyed’.[iii]

  • Chief rule – no atomic weapons to be used against a human target. The penalty is planetary obliteration.[iv] Some weapons appear to be on the edge of legality under this rule, particularly the ‘stone-burner’ (radioactive, deadly, blinding …).[v]
  • Dictum familia – setting up the rules on non-prohibited assassination. Because informal treachery would be bad …
  • rules about kanly (feud or vendetta). There are strict rules. The process involves swearing kanly, and then being entitled to kill all agents of the House against which it has been sworn.[vi]

The general thrust, then, seems to be an agreement which does not aspire to genuine peace, but tries to keep a lid on excessive disorder by setting a few rules. The kanly idea has certain resonances with ideas about the early medieval period, but with no real central effort to channel people’s grievances towards compensation rather than vengeance.

Another source of law is legislation by the Landsraad, which seems to be a sort of parliament.[vii] There are also imperial Orders in Council.[viii]  And public law fans everywhere will be thrilled to learn that there is some rumbling about wanting a proper written constitution.[ix] Once he is emperor, Paul is not very keen on the idea of a constitution (which would of course, tie his hands somewhat).

‘Constitutions become the ultimate tyranny’[x]

Just begging for a ‘discuss’, isn’t it?  Jessica and Alia agonise over the law/religion/government relationship.[xi] Paul, however, is not a great fan of the law – a bit of Marxism, or some such going on here?

‘What is law? Control? … Law – our highest ideal and our basest nature/ Don’t look too closely at the law. Do and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience. You’ll find the serenity which is just another word for death’.[xii]

For the legal historians, we have the possibility of investigating the role of custom, in particular with regard to the Fremen, and pondering again the distinction between law and custom … There is even the odd bit of jurisprudence – an undead philosopher trashes natural law and has a go at classic seminar question ‘What is justice?’.[xiii]

Other aspects of organisation are not explicitly tied to the GC or particular legislation, but seem to have the status of law. Family law and succession are clearly important. There is an idea of monogamous marriage, but also other forms of relationship amongst the ruling classes. Baron Harkonnen seems to favour young male partners, and nobody seems to be bothered. Powerful men may have a concubine, and this is a relatively respectable position. Jessica is described as the concubine, or formal concubine, or bound concubine  of Duke Leto (who is unmarried, for political reasons).  As concubine, Jessica has a degree of power and respect, and her son, Paul, is regarded as legal heir to the Dukedom, and then rightful Duke, and Alia Leto’s legal daughter.[xiv] Still, it is a bit of an unsatisfactory position, even if Leto charmingly tells her that she is actually better off because he hasn’t married her (it seems to be his choice …) as that means she doesn’t have to eat formally with him every night.[xv] The pattern is repeated in the next generation: Paul is ‘with’ his Fremen woman, Chani, but is going to marry the Emperor’s heiress, Princess Irulan. It’s OK though, because ‘this is a political thing … [and] that princess shall have no more of me than my name.’ [no sex, no kids – and the name thing shows that gender trumps rank …][xvi]

One of the groups involved in power and overthrow of power is called the Bene Gesserit – thus my title. Not quite clear to me why that name would have been chosen – it alludes to good behaviour, and for legal historians has resonance with the commission to judges that they shall keep their role as long as they do not misbehave (as opposed to serving as long as the monarch pleases, the older, pre-17th C, rule which made it simpler to remove them). This has been taken to be important for judicial independence (though it can be exaggerated, because it does nothing to ensure that those who are appointed in the first place are independent types rather than subservient ones). I am not quite sure what that has to do with the Bene Gesserit in the Dune books, who are an order of women with highly trained physical and especially mental capacities. They are associated repeatedly with another rather 17th C-resonant thing, though: witchcraft. They are forever being called witches, and we even get a very witch-hunty ciration of ‘Thou shalt not suffer a witch to live’ at one point.[xvii]

We are invited – implicitly – to contrast the laws and treachery of the rest of the universe with the honour and law of the semi-nomadic Fremen. There is more than a touch of orientalism/romanticising the ‘primitive’ about this (and before we dismiss the latter as a term we would never use now, I did notice ‘ancient and primitive law’ as a heading within the classification system at a library last week). The laws and customs of the Fremen are strange to outsiders at first, but the suggestion is that they are logical responses to their unforgiving environment, with its extreme shortage of water. I don’t think we are supposed to see the Fremen as misogynist, but some of their rules definitely show the perspective of a man of the mid-20th C. No hint of Frewomen’s Liberation …

They may be Fre, but the Fremen are not individualistic. It is all about the group’s survival, and getting and retaining water.  The overall rule is: ‘A man’s flesh is his own; the water belongs to the tribe’.[xviii] Leading on from this, those who are net takers of water without providing anything to the group may be sacrificed, and rendered down for their moisture,[xix] and the blind ought to be abandoned in the desert, presumably for similar reasons.[xx] Taking it a step further, in a sense, it was, at least at one time, the case that ‘someone caught outside the sietch without a stillsuit was automatically killed. To waste water was to endanger the tribe.’[xxi]

Despite the whole group thing, there is also some sort of individual property right in water. Paul is entitled to the water of a defeated adversary, and Jessica retains rights in the bottled water she brought with her. Giving some of it up to the others whilst in the desert will be compensated tenfold when they get to the Fremen settlement.[xxii] There are also tokens for water from the common stock, which are involved in courtship (I love you so much I am giving you the moisture captured from somebody’s squished flesh ..). There also seems to be a limited idea of property in chattels – so things belong to people, but are shared out by the leader when somebody dies.[xxiii]

Keeping one’s word is a big deal, and there is a consciousness of being especially honourable in this respect. Contracts are, of necessity, oral.[xxiv] [No specialty rule for the Fremen …]

The Fremen use trial by combat not (just?) for things we would think of as legal, but to determine truth, under the ‘amtal rule’.[xxv]  Combat seems to be an all male affair,[xxvi] and is to the death. Intriguingly, there is an echo of medieval trial by combat procedure, in that it has to be ensured beforehand that Jessica, who has the special powers of a Bene Gesserit ‘witch’, will not put a spell on a combatant.[xxvii] There is also some form of ordeal – as when Jessica shows she is fit to be a Reverend Mother (this ordeal rather resembling the ordeal of the bitter waters, Numbers 5:11-31).[xxviii] Ordeals are not confined to the Fremen: Paul is also tested by a Bene Gesserit Reverend Mother, to check his humanity (didn’t quite get that …) in a fancy process involving a poison needle and a box of (artificial) pain (if you can have artificial pain ..). Bit of a step up from hot iron, ploughshares and holy morsels of medieval European ordeals. Interestingly this is not founded on an appeal to God, but on psychological understanding of what humans and animals would do differently.[xxix]

Anyway, back to the Fremen. Combat is also the way one leader takes over from the last. The Fremen do not have hereditary leadership, but rather the strongest person (well, man) leads: ‘the one who brings water and security’.[xxx] Paul manages to change the rule, so he doesn’t have to kill Stilgar to lead. Instead, he has Stilgar go through what looks like a homage ceremony, kneeling, handing over his knife, swearing fealty.[xxxi] Hmm – doesn’t sound that Fre to me …

Except there is relatively Fre love. For the men anyway. And assuming that they like women. At least there is a convention that women ‘are not taken against their will’.[xxxii]  Nevertheless, there are certainly situations in which men get to do the choosing as to relationships – we see this after (15 year old) Paul beats Jamis in combat, and gets to decide whether to have his widow as his woman or his servant, or free her.[xxxiii] And families appear to decide who a Fremen woman will marry (relatively young).[xxxiv] So – not as fre-ly consensual as all that. Another aspect of Fremen Family Law which emerges is that there is a rule against incest: the death penalty (hanging on a tripod) applies to incest.[xxxv] Exactly what amounts to incest is unclear, beyond the example of brother and sister which is the matter in hand in the passage relating to this law. One would have thought that the structure of society would have meant quite a lot of in-marriage within tribes, so the rules would have to be restricted to a small number of banned relationships.

One practical issue which is not addressed is how exactly initmacy works – I don’t mean the complex business of getting into somebody’s stillsuit, but the water issue. They are all so cautious about losing moisture, but there is the issue of, well, fluids involved in ‘the huddlings of sex’,[xxxvi] isn’t there?

All of which has wandered off the point a bit – ah well, this is a work in progress, and I shall revise and resubmit after I have read some more.

 

[Miscellaneous points – couldn’t find an obvious place to put these, but they need to be in here somewhere …

  1. Everyone seems to be off their face on the addictive drug spice/melange all the time … Is that any way to run a universe?
  2. They have ruffs – ruffs![xxxvii] Sorry – they are never coming back, however far in the future. I make no secret of my extremist anti-ruff stance … Preposterous!]

 

GS

6/11/2021

Updated 19/11/2021, after reading Book III

 

 

[i] I: 39. And obviously he does say ‘slaves’ rather than ‘enslaved people’. 1960s.

[ii] I: 252 ‘Thus it reads above the Emperor’s door’.

[iii] I: 596.

[iv] I: 514.

[v] II, 55.

[vi] 100, 161, 517.

[vii] II: 75

[viii] II: 76.

[ix] II: 76.

[x] II, 76.

[xi] II: 252.

[xii] II: 249.

[xiii] II: 151 – Duncan Idaho, a fighter turned zombie type of thing (generally positive character) says of natural law that it is a ‘myth’ that ‘haunts human history’. II: 156 is his go at justice. Fair to say he has no problem with dictatorial power.

[xiv] I: 54, 57, 589.

[xv] I: 54.

[xvi] I: 561.

[xvii] III:58

[xviii] I: 241.

[xix] I: 238, 316-7.

[xx] II: 242. Cue a nice bit of legal tricksiness from Paul – he loses his eyes, but initially argues that because he can see with his mystical powers, he doesn’t have to be desert-ed. In the end though, he surrenders to the law, to become properly Fre (though also, to be fair, properly dead). The Fremen Law about sending the blind off into the desert is expressed as consigning them to Shai-Hulud (the great worm) in III:39.

[xxi] III: 286.

[xxii] I: 349, 351.

[xxiii] I: 354.

[xxiv] I: 320.

[xxv] I: 337.

[xxvi] Possibly a little inconsistent with the existence of Fremen amazons – II: 111?

[xxvii] I: 340.

[xxviii] I: 401.

[xxix] I: 6-9.

[xxx] I: 328.

[xxxi] I: 489.

[xxxii] I: 330.

[xxxiii] I: 389.

[xxxiv] III:290.

[xxxv] III:113.

[xxxvi] I: 332.

[xxxvii] II:250. It is a foppish traitor wearing one, mind.

Image: sand! (sadly no pictures of giant worms to be found …) Photo by Matteo Di Iorio on Unsplash

Peas, grass and battle beyond The Last Duel

Lots of interest in the merits, and historical accuracy, or otherwise, of the big new film The Last Duel. I hope to go and see it, though feeling a little unsure as to whether I want to sit in a cinema with a load of strangers during current circs. I have the book though, so planning to read it this weekend.

I am not going to presume to comment on the film’s medieval French context, since I am definitely not an expert on that, but, since I suspect that there will be some general wondering about the idea of trial by battle, a little bandwagon-jumping and a couple of quick musings on this from a common law point of view might not go amiss.

For many years, in my Legal History classes, I have included something on proof, including trials by ordeal and by battle. It tends to capture the attention of students just a touch more than the development of the strict settlement and the Bill of Middlesex, for some reason. It is one of the useful areas to push students’ imagination a little, and to try and get them to see beyond the Whiggish distinction between ordeals and battles (stupid) and juries (great and totally unproblematic). With ordeals, there is the fantastic article by Kerr et al.[i] to give them to read, and a case to be made for there having been something of value in the so-called ‘irrational’ mode of proof, when compared to contemporary alternatives. Battle is rather a harder sell, and I confess that I tend to send students off to read the articles by M.J. Russell,[ii] and then in class go for cheap shock value and do Ashford v Thornton in a slightly Horrible Histories way … There is obviously more to say than general agog-ness at the late extirpation of the possibility of TBB though. The gender aspect is, of course, important – women were not supposed to engage in TBB, and do not seem to have done so (though there is one slightly bizarre 15th C story about a duel being ordered between a female accuser and a Franciscan friar, who was supposed to fight with one hand tied behind his back![iii] I have spent vain hours trying to track that one down …) Then there are the accounts, in chronicles and legal sources of battles themselves, and the procedure which they followed, or should follow. Some of these are extremely impractical and ritualistic – with weird weapons, a lot of formulaic language and rules. I was reminded, the other day, when looking for something completely different, that another thing which is really fascinating is the fact that those fighting a TBB took an oath against sorcery.

I stumbled on this version in The Boke of Justices of Peas (printed 1506),[iv] in its little ‘how to’ guide to holding a trial by battle, and was enchanted (!). It’s prescribed for an approver (man who had ‘turned king’s evidence’ and was trying to save his skin by accusing another man of felony and then beating him in a TBB):

‘This here you iustice that I have this day neither ete ne dronke nor haue upon me Stone ne Grasse ne other enchauntement sorcery ne witchecrafte where thoroughe the power of the word of God might be enlessed or demenysshed & the deuylles power encresed and that myn appele is true so help me god and his sayntes and by this boke &c.’

[Justice, hear this: I have not eaten nor drunk today, nor do I have upon me stone, grass or other enchantment, sorcery or witchcraft which might serve to diminish the power of the word of God, and increase the devil’s power, and that my appeal is true, so help me God and his saints and by this book etc.’]

Seems a bit harsh not to let the poor devil eat or drink, but fits with the general religious ritualism of this sort of thing. What about the magic though … what ideas does that reveal about ideas as to how TBB worked, and how it could be derailed. It does seem to suggest that God could be foxed by a magic stone or grass (magic grass – new to me – I assume it is the green lawn stuff, and not some special other early modern meaning – sure somebody will tell me if I am wrong …), which is a rather interesting theological position, when you think about it. Belief in magic is one thing, thinking it could actually transcend the human world and put God off his stride, when intervening to say where the truth and right lay in a trial by battle is several steps further on, I would say. It just seems a really fascinating meeting of two sorts of supernatural belief. And it is made all the more striking as the formula for the duel goes on to bar human intervention to help one side or the other – by advice to take advantage of the opponent, or  physical help. It is as if the magic thing and the weighing in of spectators are on a par, equally likely![v] Possibly the supernatural issue can be rendered a little less blasphemous by thinking that the idea behind it must be that the magic grass etc. could skew the result by acting on the bodies of the combatants, rather than on God. Seems a bit weaselish, but maybe that works.  Feeling once again as if I have a lot to learn! It’s certainly something to think about as we enjoy the big film (or book …) and as we approach Halloween.

GS

16/10/2021

[i] Kerr, MH, Forsyth, RD, and Plyley, MJ, ‘Cold Water and Hot Iron: Trial by Ordeal in England’, Journal of Interdisciplinary History 22.4 (1992): 573-95.

[ii] Russell, M. J., ‘I Trial by Battle and the Writ of Right’, Journal of Legal History 1.2 (1980): 111-34 ; ‘II Trial by Battle and the Appeals of Felony’, Journal of Legal History 1.2 (1980): 135-64; ‘Trial By Battle Procedure in Writs of Right and Criminal Appeals’, Tijdschrift Voor Rechtsgeschiedenis 51.1 (1983): 123-34.

[iii] Bellamy, John G,  The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), 145; Eulogium Historiarum, III, 389.

[iv] Glazebrook, P. R. The Boke of Justices of Peas, 1506 : With an Introduction by the General Editor (London, 1972). It’s a book which sounds slightly unpleasant if you are a Scot (add the peas and it is all a bit graphically vomity). It is a collection of various ‘templates’ for legal proceedings which might have seemed useful to somebody acting as a JP, or one of his officials. The material is not particularly new – it’s 15th C stuff, perhaps quite a bit from the reign of Henry VII, but earlier than that too.

[v] The no sorcery rule appears in  older sources too– see Russell (1983) above, p. 132.

Photo by Artie Kostenko on Unsplash

Friar Tuck in the Fifteenth Century

Here is a by-catch snippet from a King’s Bench plea roll which might appeal to the more train-spotting completist type of Robin Hood fan (not judging you!) … what seems to be an additional reference to Robert Stafford, naughty Sussex chaplain, who conducted a life of crime under the alias Friar Tuck (or, at least, a reference to a Friar Tuck being up to no good in Sussex).[i]

The name of Stafford (if that’s who this was – as seems likely) is not mentioned, but the description of the offence in the KB plea roll for Michaelmas term 1421 (KB 27/642 m. 32 (AALT IMG 305) might be of interest: at Lewes in 1420, it was presented that Robert Southe of Laughton in co. Sussex, gentleman, Thomas Wodhacche of Horsham, yeoman, and John Pyttekene of Laughton, yeoman, on February 1417, at Plumpton in a place called Lynterygge, with weapons including bows and arrows, their faces hidden, and painted with various colours (make up or camouflage paint? RuPaul’s Drag Race or Celebrity SAS: Who Dares Wins?) beat up Walter atte Brome and Simon Martyn, shouting, amongst other things, that they were the servants of their reverend master, Friar Tuck – and they rampaged around the countryside for some time, terrifying the populace.

There is something of the carnivalesque about this, and perhaps the presence of the ‘gentleman’ amongst the gang suggests that this was not quite a band of desperate starving men. Nevertheless, this seems to be a tale of violence, at some distance from the true story of Robin Hood (which, as we all know, is about cute Disney animals in a forest).

Anyway – hope that is useful to somebody. Off to ride through a glen … or would be, if Covid permitted.

GS 13/2/2021

[i] See Holt, Robin Hood (London, 1982) 58, for reference to this man and his band of followers in 1417 and 1429 (CPR 1429-36, 10) Note that current circumstances mean no library access, so I am fairly sure I haven’t seen this reference before, but that doesn’t mean it isn’t already ‘out there’ somewhere! For more Robin Hoody goodness from the same time – clearly a key point in the Robin Hood myth-making – see Seipp 1429.051  http://BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1429.051 For another 15th C emulation of Robin Hood and co., see TNA SC8/27/1317A