Abstract
Robert S. Sturges (ed.), Law and Sovereignty in the Middle Ages and the Renaissance (Arizona Studies in the Middle Ages and the Renaissance 28), Brepols, Turnhout, 2011, pp. xviii + 302.
Behind the apparent similarity of their titles, the two volumes hide two totally diverging approaches. The first book, The Politics of Law, is a Festschrift prepared during three seminars held in 2008; it offers a dense discussion of Lauro Martines’s groundbreaking study Lawyers and Statecraft in Renaissance Florence published 40 years earlier, in 1968. The second book, Law and Sovereignty, is a much more heterogeneous collection of essays going back to the annual conference (2008) of the Center of Medieval and Renaissance Studies in Tempe, Arizona. Because the two volumes treat their topic, premodern legal history and political theory, from completely different points of view, employing different methods and different sources, a direct comparison would be a little unfair: as if you put on the same level, say, a thoroughly constructed sonata by Beethoven and a florilegium of preludes by Debussy.
As to the disciples of Beethoven, The Politics of Law is opened by Martines himself with a short account (pp. 3–6) of the heuristic and cultural context in which he conceived his Lawyers and Statecraft. These sober pages are not only a useful reading for students who are planning a historical dissertation or a second book, but also a good preparation for the articles which follow. Julius Kirshner (A Critical Appreciation of Lauro Martines’s Lawyers and Statecraft in Renaissance Florence, pp. 7–39) immediately makes clear the editors’ intentions: to revisit, in the light of the more recent research, Martines’s findings about the social history of Florentine lawmen and their relations with the ruling oligarchy in the late fourteenth, fifteenth and beginning sixteenth centuries. His main critique points to the fact that today’s historians consider Renaissance jurists as less power-revering than Martines claimed. Kirshner presents juristic consilia, neglected by Martines, which contrast with the interests of the government and thus reveal a certain independence of the legal culture from politics. This point is confirmed by Sara Menzinger (Consilium Sapientium: Lawmen and the Italian Popular Communes, pp. 40–54) who explains how the Florentine scenario can be extended to other Italian communes and to earlier periods, especially the thirteenth century. From such a wider perspective, it soon becomes clear that the very omnipresence of the jurists never allowed them to form a monolithic group with specific institutional interests. Therefore, and against Martines, they should not be considered as instru-mental or responsible for the political transformation of Florence during the Renaissance. This transformation is radicalised by Moritz Isenmann (From Rule of Law to Emergency Rule in Renaissance Florence, pp. 55–76) who shifts from the legal to a genuine political perspective. Duly pole-mical with historians who deny the existence of a notion of state in the late Middle Ages, he describes the growth of a repressive regime which gradually abolished the independent law courts of the communal tradition, thus replacing the rule of law by institutionalised emergency.
The next five contributions elaborate on a leitmotif of the book already introduced by Kirshner’s essay: the relationship between Florentine statutory law, ius commune and judicial practice—three barycentres of the city’s legal order and political life that needed continuous mediation by university-trained jurists. The main written result of this activity of mediation are consilia, legal opinions commissioned to a lawyer by a communal office, a law court or a litigant. If all contributors are inspired by Martines’s innovative use of consilia as historical sources, some of them extend the horizon from public to private law. Susanne Lepsius (Paolo di Castro as Consultant: Applying and Interpreting Florence’s Statutes, pp. 77–105) reconstructs the complex interaction between local statutes and Roman law in the courts by analysing a series of opinions written by the famous Romanist Paolo da Castro on problems of dowry restitution; Lorenzo Tanzini (An ‘Oracle of Law’: Tommaso Salvetti and His Adnotationes ad statuta florentina, pp. 106–23) presents one of the only two surviving juristic commentaries on the Florentine statutes of 1415; Thomas Kuehn (Lawyers and Housecraft in Renaissance Florence: The Politics of Private Consilia, pp. 124–40) compares two consilia on a hypothetical dowry question, from 1403 and 1413, and concludes that the general principle according to which the interpretation of laws could appeal to higher values (like the interest of the state) was employed not only to questions of public concern (statecraft), but also to laws ruling private life (‘housecraft’). Returning to the field of public law, Robert Fredona (Baldus de Ubaldis on Conspiracy and Laesa Maiestas in Late Trecento Florence, pp. 141–60) and Osvaldo Cavallar (Laesa maiestas in Renaissance Lucca, pp. 161–83) discuss the use of the Roman notion of laesa maiestas. For Fredona, two consilia by Baldus attest the openness of the notion of laesa maiestas and also a certain autonomy of the juristic profession in the late fourteenth century; however, as support for his general critique of the master narrative about the evolution of the Renaissance state (‘from commune to principality’), two consilia are definitely not sufficient. Cavallar’s more limited approach is more cogent: his reading of two late fifteenth century consilia by Bartolomeo Sozzini shows how laesa maiestas was transformed from a Roman public crime into a ‘device to produce certain legal effects’ (p. 176), a flexible tool capable to mediate between the interests of the state and private rights.
A coda by Lawrin Armstrong (pp. 184–90) completes the circle and immediately reopens it, since the co-editor questions the impression that emerges from the preceding essays: he criticises an all-too-peaceful pic-ture of the growing independence of the juristic profession in the late Middle Ages. Such a picture would modify substantially Martines’s emphasis on the instrumental function lawyers had for the expansion of the political power. According to Armstrong, the fascination with the jurists’ consilia should not make us forget the central dimension of Martines’s work, that is, the social dimension of the history of the lawyers and their role in class struggle. The memento is correct, but the critique misses the point. If we want to go further than simply return to the agenda of the social history of the 1960s or limit ourselves to a better reconstruc-tion of the political events, it is vital to look beyond the jurists’ social role and deepen our knowledge on the principles, notions, metaphors and images which set the mental guidelines for the transformation of the Renaissance states and also for the social struggles which accompanied this transformation. The book proves that for approaching such a historical problem, the texts produced by the jurists are a most important and still not entirely exploited source.
The second book to be presented here, Law and Sovereignty, leads far away from Florence and Central Italy, and this not only for geographical reasons. Seven among its 13 contributions concern medieval and early modern England, the others focus on Spanish, French, Northern Italian and German contexts. Their main sources are literary texts, political treatises or historical documents. Each article deals with a legal or polit-ical issue. However, the historical concepts of law and sovereignty are not systematically discussed and a heuristically productive reflection on the interrelation between the two terms is wanting. As a result, not only the meaning and use of ‘law’ and ‘sovereignty’ are inconsistent throughout the volume, but the way some authors refer to the two key terms is merely associative. Neither the division in four sections (‘Theories’, ‘Fictions’, ‘Contestations’ and ‘Applications’) nor the editor’s introduction (pp. xi–xviii) is helpful for filling this void in the theoretical grounding. For this reason I will not maintain the order of the book, but regroup the articles according to the manner they relate to sovereignty or law.
One can find monographic presentations of sixteenth-century theories of sovereignty, as in the two instructive essays by Harald E. Braun (‘Lawless’ Sovereignty in Sixteenth-century Spain: Juan de Mariana’s De rege et regis institutione, pp. 23–41) and Torrance Kirby (From ‘General Meditations’ to ‘Particular Decisions’: The Augustinian Coherence of Richard Hooker’s Political Theology, pp. 43–65). Other authors use archive documents and chronicles for investigating concrete conflicts on sovereignty: Martina Saltamacchia (The Prince and the Prostitute: Competing Sovereignties in Fourteenth-century Milan, pp. 173–91) is not convincing because she simply identifies sovereignty with urban power and relies on unproven ‘communitarian’ assumptions on the social and religious dimensions of cathedral building in late medieval Italy, whereas Aurelio Espinosa (Sovereignty over the People: Discourses on Popular Sovereignty in Renaissance Spain, pp. 193–213) gives a solid account on the conceptual background of the eventually successful negotiations between the Emperor Charles V and the Spanish local powers.
A third group of contributions approach concepts of sovereignty through literary texts or by employing literary methods to interpret historical documents: Albrecht Classen’s (Unjust Rulers and Conflicts with Law and Sovereignty: The Case of Gottfried von Strassburg’s Tristan, pp. 3–22) argument that the tragic love between Tristan and Isolde is closely connected with the political contents of the romance is certainly acceptable. But why does it open the chapter ‘Theories’ and thus the entire book? Lee Manion’s essay (Sovereign Recognition: Contesting Political Claims in the Alliterative Morte Arthure and The Awntyrs off Arthur, pp. 70–91), for example, has a much higher theoretical charge: using the example of two Arthurian romances of the fifteenth century, Manion analyses literary texts as a site where claims to sovereignty are imagined and negotiated. From a more traditional perspective, Catherine Loomis (‘Withered Plants do bud and blossome yeelds’: Naturalising James I’s Succession, pp. 133–50) discusses how poetry can legitimise a new ruler. Andrew Rabin (Testimony and Author-ity in Old English Law: Writing the Subject in the ‘Fonthill Letter’, pp. 153–71) claims that the relationship between pre-conquest Anglo-Saxon subjects and royal authority was more equilibrated than historians normally think. A close, but not always clear, reading of an Anglo-Saxon document of tenth century’s judicial practice, the Fonthill Letter, is to prove that the dialectic between the speaking of the witnesses and the writing of the act opened a space for an independent subjectivity of the people. A brilliant conclusion—but which certainly overburdens one single short document. The ‘law and literature’ approach proposed by Manion and Rabin—literary texts or methods help to answer questions about sovereignty and law—is inverted by Richard Firth Green (Cecily Champain v. Geoffrey Chaucer: A New Look at an Old Dispute, pp. 261–85): his sources are fourteenth to fifteenth century legal documents (quitclaims) which, after a fine diplomatic, palaeographic, stylistic and semantic analysis, are convincingly reinterpreted in order to better explain a problem in the biography of a famous literate, Chaucer.
In the remaining four contributions, the relationship to legal history or political theory is so loose that one wonders why they have been included in the volume. This is especially true for Sharon D. King (The Fart: An Anonymous 15th Century French Farce, pp. 93–114, with an English translation of the play) and Retha Warnicke (Diplomatic Rumor-Mongering: An Analysis of Mendoza’s Report on Elizabeth I’s Audience with Scottish Ambassadors in 1583, pp. 115–31). But even where the recourse to legal problems seems a little less accidental, the results are questionable: Erika H. Hess (Inheritance Law and Gender Identity in the Roman de Silence, pp. 217–35) assembles a French romance of the thirteenth century whose action is determined by a misogynous inheritance law, with basic second-hand insights in Roman and canonical inheritance rules, but has no proof that these rules were important for the romance; Adrienne Williams Boyarin (Inscribed Bodies: The Virgin Mary, Jewish Women, and Medieval Feminine Legal Authority, pp. 237–59) may be correct when she argues that the figures of Mary and other female saints became sites of interaction between the body and (legal) texts, but fails to explain why this imaginary legal standing of female Christian saints should have influenced (or been confirmed by) the real legal standing of Jewish women in thirteenth century’s English society.
To put it in a nutshell, it is impossible to reduce Law and Sovereignty to a unitary judgement: each contribution has to be appreciated for itself. To come back to the musical analogy quoted in the beginning, the enthusiasts of Debussy’s preludes will certainly find interesting pieces, but also less significant pièces d’occasion. For the historian, I must confess, the dense work in progress presented in the well-structured composition of The Politics of Law—so unusual for a Festschrift!—is a more satisfying reading.