Category Archives: Uncategorized

Not giving up the day job

Sometimes the spirit moves me to attempt a cartoon. Snag: absolutely no artistic talent whatsoever. Nevertheless, I am moved to share this fine work of comparative legal historical art created during a very good presentation on an aspect of contract law history, as a contribution to the gaiety of nations on a dark November day …

GS

14.11.2022

Candles, ‘cocoanuts’ and cold courts: further thrilling adventures of Judge Owen

As I sit next to two non-functioning radiators in a rather chilly office, and as we all face the possibility of interruptions to power supplies, I am drawn to some accounts from the life of Judge Owen on closely connected matters. (For more on this ‘character’ of the Welsh bench, see this post.

First, I note that newspapers in 1908 felt that it was worth reporting – under the deathless headline ‘Judge Owen Complains of a Cold Court’ – that – well – just that: he said, in Monmouth, that the court in which he was sitting was ‘as cold as an ice-house’.

Moving from a lack of heat to a lack of light, we have the even more thrilling, earlier tale, ‘Judge Owen and the Electric Light: candles stuck in cocoanuts’ (1895).[i] Again, you can work out the general idea from the headline. This time, the uncomfortable court was in Newport: Judge Owen was presiding over the County Court, in the Town Hall, on a ‘dull morning’ in December. Things were dim at 10.30 in the court. Owen’s first task was to read a judgment, but when he tried to turn on the light …. It did not work! Owen ‘declared that he must have light of some kind.’ No light was to be found, however, despite the scurrying of various court officials. again, without result. He left the bench [flouncingly?] and then Collins, the town hall keeper produced a solution of a sort – putting four candles [Two Ronnies resonances anyone?] around the bench, and the judge came back. He was not going to accept it all as a bit of an accident, though – no, he complained of the ‘want of courtesy’ on the part of the Corporation officials, who ‘knew it was County Court day’ but ‘did not take any steps to provide light for the court’. They did get as far as providing some oil lamps as well as penny candles in ‘cocoanuts’. The problem stemmed from the change-over from gas-lighting to electric lighting: it was explained that connections to the electricity main had not yet been made, and the transition was incomplete.

So, a pretty banal little story, but interesting that the papers found so much that this judge did eminently worthy of note, even so, and perhaps also some sign of the quality of facilities available to courts sitting in Wales in this period.   I am getting the idea that the judge might have had a bit of a temper on him … sending everyone running around. Perhaps he was unconvinced that electric lighting was an improvement on gas. How quickly, or whether, Judge Owen simmered down is not made clear.

3/11/2022

[i] See also this report.

Photo by PhotographyCourse on Unsplash

Legal historians and the Chaucer-Cecily Chaumpaigne Case

CW: rape

(A few short points arising from the recent developments in Chaucer studies: see the special edition of The Chaucer Review.)

It is striking that by far the greatest contribution – for good or ill – to scholarship and comment on the very legal matter of the Chaucer-Chaumpaigne case has been by those from outside the field of legal history, and particularly legal history of the ‘classical legal history’ tradition of Maitland-Milsom-Baker and the Selden Society. In general, the luminaries of this school have not considered women, and raptus, central to their mission, to their subject. To regret that lack of interest in this specific case is not, however, to assume that legal historians would have been likely to be any less influenced by the prejudices of the men of their age with regard to women and rape than were those working in literary studies. Those who did venture into this territory did not necessarily cover themselves with glory.

One of the quotations which is used in descriptions of the unedifying rape-apologism of many past Chaucer scholars is from a legal historical luminary, and Selden Society man, Theodore Plucknett.[i] Plucknett’s short article, in the 1948 volume of the Law Quarterly Review, starts off jarringly, with its title: ‘Chaucer’s Escapade’.  The overtones of ‘escapade’ surely do not need to be spelled out, and a general air of not taking the whole thing terribly seriously is reinforced by his explanation of why he is tackling the topic – it was prompted by an ‘entertaining article’ in the previous year’s LQR, by one P. R. Watts.

Plucknett reconstructs legal events in what was, overall, a not unreasonable way, given the evidence then available, but there is some falling into patterns and tropes which many of us will recognise, e,g, suggesting that Cecily ‘wanted money’ (34), and that she was ‘indignant (or repentant, or just hard-headed)’ and so refused to have dealings with Chaucer himself over the compensation. There is a bit of reconstruction from what he presumably considered common sense: ‘That he seduced Cecilia we may well believe; that she was angry with him, and still more with herself, is extremely probable. She may have honestly thought that because it all happened against her better judgment, that therefore it was without her consent.’ (35-6). Hmm. Women not able to tell their feelings from the truth? Then there is ‘Her scandalised family would naturally treat that as an irrebuttable presumption.’ Would they really? And what would modern criminal law scholars make of this: ‘Rape is a brutal crime and implies a degree of depravity which should make us cautious in fixing such a charge.’ (35-6).

I also had a look at the article which Plucknett found so ‘entertaining’ and stimulating, P.R. Watts, “The Strange Case of Geoffrey Chaucer and Cecilia Chaumpaigne,” Law Quarterly Review 63, no. 4 (October 1947): 491-515. This, too, has some lines which do not bear scrutiny, e.g. calling rape a ‘crime of passion’ (496). And Hale’s old fear about false accusations of rape lying too heavily on the innocent defendant is trotted out (496, citing 1. Hale P.C. 685, as is the very nasty passage from Don Quixote in which a woman is criticised for failing to defend her body sufficiently vigorously, when, on another occasion, she was vigorous in pursuing her financial interests (504, Don Quixote c. 45). Perhaps the part which would have seemed ‘entertaining’ was Watts’s speculative reconstruction of events which might have given Chaucer a defence to a felony prosecution. This involved a story that Cecily might have become pregnant following the rape, which would have been a defence (probably true that it would have been a defence, had it happened, but this really does get speculative. A flavour from p. 509: ‘So far as Cecilia Chaumpaigne is concerned, we have no evidence of pregnancy, and in the absence of evidence we are not justified in assuming it. Nevertheless … [yes we are going there]. And even more … ‘[If it becomes clear that Chaucer did impregnate Cecily through rape, and she had the child, and it was the Lewis to whom he dedicated a book on astrolabes – what every child wants – …] ‘we may be able to close our record of an unedifying chapter in Chaucer’s life with a scene not without some redeeming aspects of tenderness and grace-the poet devoting himself, in the full maturity of his powers, to the inditing of a scientific treatise for the instruction of Cecilia’s son’. [So, right, yeah, I raped your mother, but here – book about astrolabes – OK, bye!].

And now?

The world of legal history has, of course, moved on. Maybe not as quickly as other areas of scholarship, but there are glacial signs of change, of interest in perspectives other than that of the socially and economically fortunate white male, of openness to the insights of feminism and other critical fields. We should certainly note the questionable content in the past of our own discipline, but then we need to pick up the pace, and engage with other scholars, as we can see different groups coming together in this recent Chaucer project. There really is plenty which could be contributed to wider fields of study by legal historians.

GS

16/10/2022

 

 

[i] Samantha Katz Seal; Whose Chaucer? On Cecily Chaumpaigne, Cancellation, and the English Literary Canon. The Chaucer Review 1 October 2022; 57 (4): 484–497, at 493-4, noted as ‘One of the most frequently quoted statements on the matter’; Theodore F. T. Plucknett, “Chaucer’s Escapade,” Law Quarterly Review 64 (1948): 33–36

Daggers, lances, secrets, puzzles

(CW: sexual offences, rape)

The issue summarised

There are occasional late-medieval allegations of sexual offences – rapes in modern terminology – which include references to what appear, on the surface, to be weapons, but this talk of weapons may have been understood as a metaphorical way of referring to male genitalia. It is hard to be certain, at times, whether we are looking at an allegation of rape (modern sense) plus additional assault with an actual weapon, penetration with a weapon (probably not, but just about possible) or rape with a penis described in metaphorical weapon terms. The whole business is made more complicated by the fact that one medieval weapon was actually called a ‘ballock-hafted dagger’ or ‘ballock dagger’, because it was thought reminiscent of the obvious (the hilt – you can imagine … no, really, it’s a real thing – even mentioned in Piers Plowman …). I have written a couple of previous posts on this topic, but it’s time for another one, as I have found yet another relevant indictment.

 

Where I had got to with this …

In a previous post, I noted an entry on the King’s Bench plea roll for Easter 1435 relating to proceedings against a clerk, Thomas Harvy, for alleged offences in Norfolk, including a sexual offence (which was probably understood to be ‘consensual’ – at least in contemporary terms of an absence of overt physical struggle).[i] Jurors had presented before the justices of the peace that, on 1st October 1433, Thomas Harvy of Testerton, clerk, … broke into the house of  John Serjeant of Colkirk, at Colkirk, and attacked Margaret, John’s wife,  wounding her shamefully (turpiter) with a certain carnal lance called, in English, a ‘ballokhaftitdagher’, and so he continued to do until that day, setting a bad example etc., to John’s great damage and against John’s will.’[ii]

I did, at first, question my reading of the carnal lance/ ballokhaftitdagher’: could the lance perhaps have been some sort of butchery implement? Was the dagger just an actual dagger regarded as having a genital-like appearance? But both terms being used together made a pretty strong case for seeing the ‘carnal lance’ and ‘ballock hafted dagger’ as evoking not actual weapons but metaphorical weapons, and, given the context, to refer to male genitalia. It is worth noting that a resort to metaphorical language is unusual within the generally unfanciful context of medieval plea rolls, but that the use of weapon-imagery is a well-known practice in literary sources.[iii] Obviously, I am not a scholar of literature, and it seems to me that there is a definite need for some interdisciplinary discussion of this, but this is where I am at the moment …

I had come across the ‘carnal lance’ image on its own in a very small number of other cases.iv] Sometimes there is additional information linking the lance to specific parts of a woman’s body which appear to make a sexual penetration meaning most likely (though these might be interpreted as penetration with an actual weapon, just about). For example, a case going back to the 1440s shows a Kent jury swearing that Richard Kay, parson of the church of Hartley, on 20th November 1439, broke into and entered the house of Thomas Cotyer in Hartley, with force and arms, and, in a barn, assaulted Rose, Thomas Cotyer’s wife, beat and wounded and mistreated her, and hit her so severely with a certain carnal lance between her thighs, that she fell to the floor onto her back, and then he lay with her, against the king’s peace. They added that Richard was ‘a common adulterer etc.’[v]

A ‘carnal lance’ reference, in a 1483 Devon indictment,[vi] does seem to separate the attack with the lance and the sexual penetration, so did make me wonder once more whether I might be talking fanciful nonsense, but yet another, from the same county and roll, mentions the use in an attack on a female servant of both ‘carnal lance’ and two ‘stones’.[vii]

Another reference to carnal lances and stones, from Devon, from an indictment file for Hilary term 1482 – does, I think, confirm that carnal lances were not actual lances, and stones were not actual stones, in some legal records. It is a deeply unpleasant sexual assault accusation, in which a certain William Gamon, clerk, was accused of what would now be called  a rape (though no ‘rape term’ is used, and neither are words of felony) on Joan, wife of John Stonehewer, on two separate occasions.[viii] A rough-and-ready translation of the case would be:

‘[A Devon jury on 12 October 1480] said on oath that William Gamon, [ff] recently of [Denbury], Devon, on 2nd July and 10th October 1479, with force and arms and against the peace of the lord king, with staves and knives and also a carnal lance, broke and entered  the houses of John Stonehewer at Denbury and Ottery St Mary, hit John’s wife, Joan, several times, and then hit and penetrated her with the aforesaid lance and two stones hanging in the said William’s nether regions, in a certain hairy opening between her two thighs, in the rear, so that her life was despaired of and against the peace of the lord king.’

A metaphorical link between testicles and stones was certainly present in the medieval period, and appears, for example, in the Mirror of Justices, in a discussion of mayhem (Book I c. 9). It is, of course, still hard to be sure that this was not a real lance and real stones, but the more examples I find of the link between weapon-talk and sexual offence cases, the less likely that seems.

Aside from confirming the lance/stones metaphor usage, the Gamon case introduces further examples of figurative language for body parts in the sexual context. The woman’s body is discussed in particularly demeaning terms here, which is not very surprising really, but it reinforces the everyday misogyny which would have pervaded the atmosphere of medieval courts.

Recently, I came across a relevant indictment in a file from Yorkshire, from 1454. KB9/149 m. 21 contains the allegation that William Shepley of ‘Wymbursley’ (Wimberley?), Yorkshire,  tailor, on 31st October 1453, came with force and arms (i.e. with swords, bows and arrows), broke the close and house of Henry Smith of Norton nr Campsall, Yorkshire,  feloniously took seven marks in money, and other utensils to the value of six marks, from the goods and chattels of Henry, and (the relevant bit for me) assaulted Agnes Smith, wife of Henry, with force and arms, ‘i.e. with a large instrument of small value called a ballokhafted dagger, of length of approximately one hand and a half (longitudinis unius manip’li & di’) worth one penny, and pierced and entered her ‘secret parts’, raping the said Agnes then and there. William had been outlawed, but, thus far, I have found no further proceedings.

What exactly was the alleged offence against Agnes? There are several mutually reinforcing layers of mud here: the euphemistic reference to secreta, the well-known obscurity or breadth of raptus, the fact that there actually was a sort of dagger with that suggestive name, and the conventional lists of weaponry commonly seen in allegations of assaults or forceful wrongs, but no imagined by anyone actually to have been used.

There are new complications with this new content, relating to the ‘large instrument of small value’ line, the length cited, and the price cited.

While it is usual to include the value of a weapon or item which caused a death (because it, or its value, would be forfeit) and other items are sometimes listed with a price, in allegations of crime, I have never seen this phrase about something being ‘a large instrument of small value’. It seems an unnecessary piece of verbiage, when the price of 1d is also included. Unless it is not an actual dagger, but a penis-as-metaphorical-dagger. But then why include a price – one presumes that there would be no question of a forfeit. Unless this is either satirical, or just an unthinking, instinctive inclusion on the part of the clerk.

On the question of size of the dagger (or not-really-a-dagger), there is also room for debate. The hand, handsbreadth or ‘handful’ as a unit of measurement was certainly ‘a thing’. We know the ‘hand’ as a unit of measurement for the height of horses. There are other overlapping, if not necessarily identical concepts – the handsbreadth, the shaftment, the pes manualis.[ix] A quick, inexpert, survey suggests that these range from about 4 to 13 inches; 10 to 33 cm (so it’s related to an idea of an average – male, adult – hand, but varies in terms of how you measure it, and whether the extended thumb is included or not). This rather large range of possibilities means that, on the hypothesis that the thing being measured is not really a dagger, it is quite difficult to understand whether the ‘instrument’ is really being presented as large (implications of force, damage, perhaps?) or small (implications of ridicule). If the unit of measurement to be understood here is the 13.1 inch pes manualis, then that is on the large side (that conclusion brought to you by some rough sums and quick and possibly dubious internet information). The horse-measuring hand of 4 inches seems rather more likely (giving us an overall length of about 6 inches?). If we are actually talking about a dagger, a quick search brings up lengths of c. 13-14 inches/35-36 cm.[x] Anyway, I don’t think I can say anything very definite here, but others may be able to.  

I have not gone out looking for references in a systematic way, and it seems unlikely that I have, by chance, found all of them. The best view which I can give at the moment is that this weapon/penis association was a known idiom/image in later medieval England, and an unusual, but not unknown, inclusion in legal records.

 

Why is this interesting, and what does it all mean?

Let us assume, for a moment, that the ‘weapons’ are metaphorical. What then?

What are the implications of this weapon imagery in the legal context?  Several things occur to me, all a little tentative just now – I would certainly be interested to know what others think. Here are some of them:

  1. I wonder whether we can read into the occasional intrusion of this sort of imagery in entries on the legal record something of the mood of discussion about such offences, amongst the men involved in making records, or those in court. Is there validity to my intuitive reaction that it sounds like joking about and diminishing the seriousness, or the wrong, of sexual assault and rape? Might it be argued to show the exact opposite: since we know that these prosecutions almost never ‘succeeded’ in the sense of ending with a conviction and punishment according to secular law, aligning it more closely with the ‘ordinary’ sort of violence (and especially categorising the harm as a ‘wound’, as in ‘ordinary’ batteries etc.) showed a greater-than-usual degree of concern. The ‘rape: an offence (predominantly) of sex or violence?’ question is something of an ‘old chestnut’ in modern legal scholarship, but I think that there is some worth in considering linking up those debates with the work on rape/sexual offences in historical studies, which does not always deal with this point.
  2. What does the weapon imagery say about ideas of men, rape and sex?
  • Does associating offending sex with a weapon in some sense dissociate man and penis, and, if so, is this something which serves to minimise – or ‘outsource’ – culpability?
  • How does the association work with ideas/reality of rape as a weapon in (medieval) warfare?
  • What does it all say about contemporary ideas of (socially sanctioned) sex? We are well used to the medieval idea of heterosexual encounters as asymmetrical, perhaps with a ‘playful’ combat aspect. Does using the weapon idea in sexual offence cases suggest an acceptance of a continuity between offending and non-offending sex?
  • If weapon-imagery is to be used, what is the reason to choose one type of weapon rather than another? What implications might there be in choosing a lance rather than a dagger, a Latin/French term or an English one?

As ever with medieval legal records, far more loose ends and questions than concrete findings, but, it does seem to me that one thing the use of weapon-words must have done was to reinforce the connections between the men involved in the legal process (jurors, clerks, those in court) and place them in opposition to the woman against whom, or with regard to whose body, the offence had, allegedly, been committed. The wielding of such weapons was a thing clearly gendered male, and, as such, something drawing men together in exclusion of women. What hints might there be there about gender, law and justice? Apart from anything else, it does suggest great complexity.

 

GS

This version 20/09/2022

 

Photo by Annie Spratt on Unsplash (Going for a general idea of fog/uncertainty here – get it?)

[i] KB 27/697 Rex m.5 AALT IMG 0183. You can see a scan of the record here on the AALT website.

[ii] For the ‘ballock hafted dagger’ (a real weapon), see the earlier post, and Ole-Magne Nøttveit, ‘The Kidney Dagger as a Symbol of Masculine Identity – The Ballock Dagger in the Scandinavian Context’, Norwegian Archaeological Review 39, no. 2 (2006), 138-50.

[iii] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; C. Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge, 2001), 42; R. Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others, third edn, (Abingdon, 2017), 26, 151, 172; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Among Women in the Middle Ages (New York, 2001), 143-77, 166. The Dictionary of Medieval Latin from British Sources (Brepols, 2018) suggests this meaning too, in its sixth variation on ‘hasta’.

[iv] KB 9/359/mm 67, 68 (these two also mention stones); AALT IMG 141 (1482). There are two on KB 9/359 m.3

[v] KB 9/293 m. 2 This also appears on the KB plea roll: KB 27/725 m. 31d; AALT IMG 567 (1442), in which Richard pleaded not guilty, but made fine, ‘in order to save everyone trouble’.[ The fine was 40s, according to the roll.

[vi] KB9/363 m. 2

[vii] KB 9/363 m.3

[viii] KB 9/359 m.2

[ix] See R.D. Connor, The weights and measures of England (1987), esp. at pp. 2, 29.

[x] I am sure somebody can do better – amateur hour. Looked at, e.g. Ballock Knife | Western European, possibly Britain | The Metropolitan Museum of Art (metmuseum.org) Ballock Dagger – Hundred Years’ War – Royal Armouries coll

A question of Truss

And, after the faffing and fuss,

the answer: it’s PM Liz Truss!

Tax cuts? [heart], workers? – lazy,

beyond that, somewhat hazy

on policy; woe betide us.

 

(No it’s not remotely legal history – but could not let this auspicious day pass without marking it with a work of poetic genius. Either that or I was bored on the train to London for a conference (which features some LH, so there you go – relevant!).

GS

5/9/2022.

Image courtesy of Wikimedia Commons

 

 

 

The Criminal Bibliographic Near-Manel

It is masked by the convention of using initials, but I think Naomi Hurnard is the only non-man who made it into this list in the substantive crime chapter of the latest edition of Baker’s Introduction to English Legal History. Not many lady legal historians interested in this area, it would seem (see also the Landmarks book in this list).

Incredibly heartened that there is work afoot by some young women scholars to do something about LH’s woman problem. Not mine to tell, but it is going to be good.

GS (STP)

30/8/2022

 

Mr. Men and Little Mistresses?

While there is much attention on correct usage of gendered pronouns and cis- and trans- and so on, it is worth highlighting the fact that there are older word-disputes rumbling on, and some linguistic zombies which just seem to refuse to depart. Top of my list of terms which we could really jettison are the metaphorical use of ‘emasculate’ and the description of a woman as a ‘mistress’. The latter term has come up once again in relation to Carrie Symonds/Johnson, designating her role in relation to Boris Johnson in the period before their marriage, during his second marriage. The allegation about his attempt to secure a well-paid job for her in this period, if true, suggests dreadful behaviour, but it seems entirely unnecessary, and certainly inappropriate, to use ‘the m-word’ in this context.

Why do I have a problem with ‘mistresses’? Well, if it’s not obvious, it is a very sexist term. What do you call the male partner in this context? Probably ‘man’ or ‘lover’, I suppose, neither of which carries the same level of opprobrium. There is just no symmetry, and all sorts of unpleasant power-related implications. It suggests a past world in which there was an understanding that rich men would have a wife and ‘keep’ a mistress’, or indeed that an unmarried man might have a ‘mistress’; it focuses any condemnation on the woman involved, whatever may be the marital status matrix, and locus of infidelity, in the particular instance.

I have thought about the word, off and on, for years. No – relax – there is no great personal revelation about to appear. In the early part of my career as a legal academic, one of the predictable disputes in the annual meeting to go over the year’s exam papers was whether it was acceptable to use the term ‘mistress’ in problem questions about wills and inheritances. The usual view was that this should be avoided. There was a slight counter-argument, which was that, if we were setting up scenarios going back some time, and so importing some of the attitudes of a person whose views had been formed in an earlier age, it was not unrealistic to include a ‘storyline’ which involved a person with some considerable property (likely to be a man) ‘keeping a mistress’ at some point, ready to cause disputes with his wife and/or children when he died. Still, we generally thought it best to avoid the whole thing.

Nevertheless, students looking at cases would find quite a lot of mistresses, and I regret to say that, as with newspaper descriptions of Johnson’s relationships, ‘mistress’ is still encountered in judgments, in the 2020s. A five-minute search turned up what seem to be entirely avoidable usage of ‘mistress’ in Jackson v Song [2021] EWHC 1636 (Ch) and Ali v. Luton BC [2022] EWHC 132 (QB). I have no doubt that there are more. These recent comments are not quite up there with the suggestion of a man having ‘a secret bolt hole for his mistress’ found in HHJ David Cooke’s judgment in Downes v. Downes [2019] EWHC 491 (Ch) para. 60, but don’t seem at all necessary to the point being made, As I tell my land law students, legal practice and legal scholarship are all about words and their many shades of meaning: there are better and worse choices, and I am not convinced that there is ever any need to use ‘mistress’ in describing modern life and relationships.

If we go back to the Johnson/Symonds story, though, if I am not too impressed by the use of the m-word, there might also be problems with the usage by the Guardian amongst others of the description ‘his ‘now-wife‘. Deploying this in this context might seem to add a bit of a Whiggish twist to the whole thing – suggesting that hey were always going to be married, so let’s not concern ourselves with the little matter of infidelity and sneaking around at the (allegedly) critical time. Writing about recent history – complicated, isn’t it?

GS

20/6/2022

Photo by Brett Jordan on Unsplash

Dragon looking a bit rough

This is a bit of fluff, but felt moved to do a quick post on this fabulous heraldic picture from the first edition of Fitzherbert’s Graunde Abridgement (it’s c. 1516) without the stress of Twitter (sometimes feels a bit ‘here I am, looking for acceptance … but what if nobody loves me?’, doesn’t it? Oh, just me then …), so here we are. Just look at that dragon – I do like a dragon, and am always fascinated to see the different ‘takes’ artists had on them. This one is looking very rough and scaly indeed. Clearly does not have a daily scale-care routine. I am trying to think what sort of a reptile it looks like – perhaps something like a tuatara? Though of course that would not have been something an artist in England in this period would have seen.

Also, if nobody has made an adult colouring book of these things, they really should. I would buy it.

GS

21/11/2021

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