Our contributing editor Disha Karnad Jani introduces her interview with Prof. Jennifer Pitts (University of Chicago), focusing on her recent book Boundaries of the International: Law and Empire (Cambridge: Harvard University Press, 2018):
By guest contributor Rosalie Calvet
A little less than a year ago, a prestigious American university hosted a conference about French-Algerian history, gathering the leading specialists of the topic.
A prominent French scholar closed his presentation by opening the debate to the audience. Immediately, one of his North American fellows asked “Since you do not speak Arabic, do you feel somewhat limited in your work on French Algeria?”
“I see what you mean,” he replied, “but fortunately, we have the archives of the colonial administration, so French is enough.”
Suddenly, a man, sitting on the first row of the audience, stood up, and, speaking in French, replied “I am Algerian. I was born before the Independence. You taught us French and nothing else. We had to learn Arabic after the War of Liberation. Arabic must come back to Algeria.”
And then, another man, sitting next to him, added “Arabic … and Berber. Nobody talks about Berber. Historians have forgotten that North Africa is the land of the Berbers.”
Who are the Berbers?
The indigenous population of North Africa, the Berbers call themselves i-Mazigh-en, “free-men” or “noble” in Tamazight. If over the centuries, the Berbers have split into smaller communities, the Chleus in Morocco, the Touaregs in Libya and the Kabyles in Algeria, they have remained faithful to a clear sense of unity. The history of the Berbers is that of an identity constantly reshaped by internal and external mutations, of cultural blending and ongoing intellectual developments and innovations. Invaded by the Phoenicians around 800 BC, the Berbers were incorporated into the Roman Empire in 200 BC and their land constituted the cradle of European Christianity. The Arab Conquest of the seventh century led to the merging of Berber and Arab culture, the conversion to Islam and the fall of the Christian Church. Between the eighth and ninth centuries, a series of Muslim-Berbers dynasties ruled over the Maghreb (the Arabic name for North Africa) achieving its territorial and political unity. Most of the region, except for Morocco, passed under Ottoman domination in 1553 and remained part of the empire until the nineteenth century. During this period, the three political entities composing modern North Africa emerged. While Tunisia and Morocco were to become protectorates of France, in 1881 and 1912 respectively, Algeria was to be French for over a century.
During the first decades of colonial rule (1830-1871), the French authorities privileged Berbers over their Arab fellows (8). The main goal of the administration was to eradicate Islam from Algerian identity (23). According to French observers, the Berbers seemed keener to renounce their Muslim legacy, as they more closely resembled the French and shared their Christian roots.
To fuel this narrative, the French progressively constructed the “Kabyle Myth.” In 1826, the Abbé Raynal claimed that the Kabyles were of “Nordic descent, directly related to the Vandals, they are handsome with blues eyes and blond hair, their Islam is mild.” Tocqueville wrote in 1837 that the “Kabyle soul” was opened to the French (182). Ten years later, the politician Eugène Daumas claimed that the “Kabyle people, of German descent […] had accepted the Coran but had not embraced it [and that on many aspects] the Kabyles still lived accordingly to Christian principles” (423). This the reason why French colonial officer Henri Aucapitaine concluded that: “in one hundred years, the Kabyles will be French” (142).
The situation shifted in 1871 when two hundred and fifty Kabyle tribes, or a third of the Algerian population, revolted against the colonial authorities. The magnitude of the uprising was such that the French decided to “fight the Berber identity […] which in the [long-run] empowered the Arabs.”
From then on, the differences between the Berbers and the Arabs became irrelevant to France’s main priority: to maintain its control over the local populations by fighting Islam. The idea emerged that to be assimilated to the French Republic, Algerian subjects needed to be “purified” from their religious beliefs.
By the Senatus-Consulte of July 14th, 1865, the French had ruled that “Muslim Algerians were granted the right to apply for French citizenship […] once they had renounced their personal status as Muslims”(444). This law, which had established a direct link between religion on the one hand and political rights on the other, now further reflected the general sense of disregard towards the diversity of cultural groups in Algeria, all falling into the same overarching category of Muslim. After the 1880s, the French gave up on the Kabyle myth, marginalizing the Berbers who had become a source of agitation.
As the independent Republic of Algeria triumphed in the Fall of 1962, the newly funded regime identified the Berbers as posing an “existential threat to the Arabo-Muslim identity of the country” (103).
Repeating the French practice of destroying those regional identities allegedly challenging the legitimacy of an aggressively centralized and centralizing state, the leaders of Algeria denounced the political claims of the Berbers as a “separatist conspiracy,” and after 1965 the Arabization policy became systematic throughout the country.
To assess the respective impact of colonization, nineteenth and twentieth century nationalist pan-Arab ideologies and the role of post-independence Algerian leaders upon the persecution of the Kabyles after 1962 constitutes a somewhat limited debate.
It is, however, critical to acknowledge the responsibility of the French state in the marginalization of the Berbers after the 1871 Kabyle riot. Progressively, the colonial administration changed a model of mixed and complex identities strongly rooted the Maghreb tradition into a binary model (235). Within this two-term model, people could only define themselves on one side or the other of a rigid frontier separating authentic French culture from supposedly authentic colonized culture. As Franco Tunisian Historian Jocelyn Dakhlia argues in Remembering Africa, “the consequence of such a dualistic opposition of colonial identities was [… ] that the anticolonial movement stuck to this idea of an authentic native Muslim Arabic identity, excluding the Berbers” (235).
The very existence of the Berbers thwarts any attempt to analyze Algerian society in a way that resorts to a rigid griddle, whether in racial, cultural or religious terms.
This is probably the reason why the French, and after them the independent Algerian state, have utterly repressed the legacy of Berber culture in the country: for the Berbers could not exist in the dualistic narrative underlying both colonial and anti-colonial. As historian Michel-Rolph Trouillot, would argue, they became unthinkable, and were silenced and excluded from History.
Yet, the most curious factor in this non-history is the paucity of French scholarship on the issue. (50). While some academics do focus on creating conversations and producing literature on the question of Berber identity, the most renowned French scholars systematically fail at doing so. As a direct consequence, most French academic discourses reproduce and maintain the somewhat convenient imperial division opposing the “Arabs” in the North to the “Blacks” in the South of Africa, thereby forgetting that the Sahara is not a rigid racial frontier, and that for centuries the Berbers have been circulated throughout the region.
Ultimately, the Berbers blurry the lines between colonial and post-independent notions of identity in North Africa. To acknowledge the Berbers would require scholars to accept their fluidity – a direct threat to the Western appeal for systemic and pseudo-universalist thinking, still prevalent in French academia despite the emergence post-colonial studies in the 1960s.
Recognizing the Berbers necessitates first, as claimed by Algerian scholar Daho Djerbal, to ask: who is the subject of History? This is the only way in which one can hope to put an end to the overly simplistic politics of identity imposed by the political power—on both sides of the Mediterranean Sea, on both shores of the Atlantic Ocean.
Rosalie Calvet is a paralegal working in New York City, freelance journalist and Columbia class of 2017 graduate. As a history major, Rosalie specialized on the historiography of French imperial history. Her senior thesis, “Thwarting the Other: a Critical approach to the Historiography of French Algeria” was awarded the Charles A. Beard History Prize. In the future, Rosalie wishes to continue reflecting on otherness in the West—both through legal and academic lenses. More about Rosalie and her work is available on her website.
By guest contributor Pranav Kumar Jain
Since the publication of The Last Utopia: Human Rights in History, Professor Samuel Moyn has emerged as one of the most prominent voices in the field of human rights studies and modern intellectual history. I recently had a chance to interview him about his early career and his views on human rights and recent developments in the field of history.
Moyn was educated at Washington University in St. Louis, where he studied history and French literature. In St. Louis, he fell under the influence of Gerald Izenberg, who nurtured his interest in modern French intellectual history. After college, he proceeded to Berkeley to pursue his doctorate under the supervision of Martin Jay. However, unexcited at the prospect of becoming a professional historian, he left graduate school after taking his orals and enrolled at Harvard Law School. After a year in law school, he decided that he did want to finish his Ph.D. after all. He switched the subject of his dissertation to a topic that could be done on the basis of materials available in American libraries. Drawing upon an earlier seminar paper, he decided to write about the interwar moral philosophy of Emmanuel Levinas. After graduating from Berkeley and Harvard in 2000-01, he joined Columbia University as an assistant professor in history.
Though he had never written about human rights before, he had become interested in the subject in law school and during his work in the White House at the time of the Kosovo bombings. At Columbia, he decided to pursue his interest in human rights further and began to teach a course called “Historical Origins of Human Rights.” The conversations in this class were complemented by those with two newly arrived faculty members, Mark Mazower and Susan Pedersen, both of whom were then working on the international history of the twentieth century. In 2008, Moyn decided that it was finally time to write about human rights.
In The Last Utopia, Moyn’s aim was to contest the theories about the long-term origins of human rights. His key argument was that it was only in the 1970s that the concept of human rights crystallized as a global language of justice. In arguing thus, he sharply distinguished himself from the historian Lynn Hunt who had suggested that the concept of human rights stretched all the way back to the French Revolution. Before Hunt published her book on human rights, Moyn told me, his class had shared some of her emphasis. Both scholars, for example, were influenced by Thomas Laqueur’s account of the origins of humanitarianism, which focused on the upsurge of sympathy in the eighteenth century. Laqueur’s argument, however, had not even mentioned human rights. Hunt’s genius (or mistake?), Moyn believes, was to make that connection.
Moyn, however, is not the only historian to see the 1970s as a turning point. In his Age of Fracture (2012), intellectual historian Daniel Rodgers has made a similar argument about how the American postwar consensus came under increasing pressure and finally shattered in the 70s. But there are some important differences. As Moyn explained to me, Rodgers’s argument is more about the disappearance of alternatives, whereas his is more concerned with how human rights survived that difficult moment. Furthermore, Rodgers’s focus on the American case makes his argument unique because, in comparison with transatlantic cases, the American tradition does not have a socialist starting point. Both Moyn and Rodgers, however, have been criticized for failing to take neoliberalism into account. Moyn says that he has tried to address this in his forthcoming book Not Enough: Human Rights in an Unequal World.
Some have come to see Moyn’s book as mostly about President Jimmy Carter’s contributions to the human rights revolution. Moyn himself, however, thinks that the book is ultimately about the French Revolution and its abandonment in modern history for an individualistic ethics of rights, including the Levinasian ethics which he once studied. In Moyn’s view, human rights are a part of this “ethical turn.” While he was working on the book, Moyn’s own thinking underwent a significant revolution. He began to explore the place of decolonization in the story he was trying to tell. Decolonization was not something he had thought about very much before but, as arguably one of the biggest events of the twentieth century, it seemed indispensable to the human rights revolution. In the book, he ended up making the very controversial argument that human rights largely emerged as the response of westerners to decolonization. Since they had now lost the interventionist tool of empire, human rights became a new universalism that would allow them to think about, care about, and perhaps intervene in places they had once ruled directly.
Though widely acclaimed, Moyn’s thesis has been challenged on a number of fronts. For one thing, Moyn himself believes that the argument of the book is problematic because it globalizes a story that it mostly about French intellectuals in the 1970s. Then there are critics such as Stefan-Ludwig Hoffmann, a German historian at UC Berkeley, who have suggested, in Moyn’s words, that “Sam was right in dismissing all prior history. He just didn’t dismiss the 70s and 80s.” Moyn says that he finds Hoffmann’s arguments compelling and that, if we think of human rights primarily as a political program, the 90s do deserve the lion’s share of attention. After all, Moyn’s own interest in the politics of human rights emerged during the 90s.
Perhaps one of Moyn’s most controversial arguments is that the field of the history of human rights no longer has anything new to say. Most of the questions about the emergence of the human rights movements and the role of international institutions have already been answered. Given the major debate provoked by his own work, I am skeptical that this is indeed the case. Plus, there are a number of areas which need further research. For instance, we need to better understand the connections between signature events such as the adoption of the Universal Declaration of Human Rights, and the story that Moyn tells about the 1970s. But I think Moyn made a compelling point when he suggested to me that we cannot continue to constantly look for the origins of human rights. In doing so, we often run the risk of anachronism and misinterpretation. For instance, some scholars have tried to tie human rights back to early modern natural law. However, as Moyn put it, “what’s lost when you interpret early modern natural law as fundamentally a rights project is that it was actually a duties project.”
Moyn is ambivalent about recent developments in the study and practice of history in general. He thinks that the rise of global and transnational history is a welcome development because, ultimately, there is no reason for methodological nationalism to prevail. However, in his view, this has had a somewhat adverse effect on graduate training. When he went to grad school, he took courses that focused on national historiographical canons and many of the readings were in the original language. With the rise of global history, it is not clear that such courses can be taught anymore. For instance, no teacher could demand that all the students know the same languages. Consequently, Moyn says, “most of what historians were doing for most of modern history is being lost.” This is certainly an interesting point and it begs the question of how graduate programs can train their students to strike a balance between the wide perspectives of global history and the deep immersion of a more national approach.
Otherwise, however, in contrast with many of his fellow scholars, Moyn is surprisingly upbeat about the current state and future of the historical profession. He thinks that we are living in a golden age of historiography with many impressive historians producing outstanding works. There is certainly more scope for history to be more relevant to the public. But historians engaging with the public shouldn’t do so in crass ways, such as suggesting that there is a definitive relevance of history to public policy. History does not have to change radically. It can simply continue to build upon its existing strengths.
In the face of Lynn Hunt’s recent judgment that the ﬁeld of “history is in crisis and not just one of university budgets,” this is a somewhat puzzling conclusion. However, it is one that I happen to agree with. Those who suggest that historians should engage with policy makers certainly have a point. However, instead of emphasizing the uniqueness of history, their arguments devolve to what historians can do better than economists and political scientists. In the process, they often lose sight of the fact that, more than anything, historians are storytellers. History rightly belongs in the humanities rather than the social sciences. It is only in telling stories that inspire and excite the public’s imagination that historians can regain the respect that many think they have lost in the public eye.
Pranav Kumar Jain is a doctoral student in early modern history at Yale University.
by guest contributor Boyd van Dijk
Like human rights, the popularity of the term of international humanitarian law (IHL) has skyrocketed since the late 1980s. Following the downfall of bipolarity, the term regularly appears on the covers of various print and digital media. Similarly, IHL has attracted the attention of countless reporters, diplomats, practitioners, scholars, and students. The Jean-Pictet competition, named after its mythicized founder, receives every year record numbers of student applications from across the globe. Similar to human rights, IHL usually guarantees law professors of full classrooms, illustrating the booming nature of this field of international law, despite of its countless violations during recent armed conflicts in Afghanistan and Syria.
Contrasting with this rising interest, it is remarkable how few historiographical insights there exist about the origins or genealogy of this branch of law. Unlike that of human rights, this field of academic study still suffers from the traditional weaknesses in legal-intellectual historiography – e.g. Whig history, triumphalism, and so on. Building upon Nietzsche’s critique of the search for Ursprung, Michel Foucault famously commented in the 1970s on the problem of describing the history of law in terms of a linear development. Genealogical approaches, he argued, are designed to achieve the very opposite, that is to identify the “accidents, the minute deviations, [and] the errors [that] gave birth to those things that continue to exist and have value for us” – IHL, for instance.
When I recently attended two conferences in Uppsala and Berlin about the origins of IHL, I was struck by the continuing relevance of his words. For many colleagues, IHL and its origins can be traced back to certain foundational ideas of either the ancient Stoics, the early modern period, or to the colonial civilizing mission in the late nineteenth century. In reality the origins of IHL are far more recent, dating back to the 1960s. Around this period, the term became more regularly used while the United Nations and ICRC began fusing human rights law with early humanitarian law, as part of their larger efforts to revise the legally amorphous Geneva Conventions of 1949.
The first serious and systematic attempt to define the concept of IHL occurred only in 1966, with the publication of Jean Pictet’s famous essay in the Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge. Pictet, one of the primary founders of the original drafts for the Geneva Conventions, had first coined a briefer version of this term (“droit humanitaire”) in the late 1940s. Then, it still mostly lacked systematic thought. In his new essay, however, he laid out a comprehensive theory of what “le droit international humanitaire” actually meant – or could mean. Essentially, he designed an expansive, colorful legal patchwork whose origins go back to a range of different intellectual modalities – from natural law, positivist human rights law, Hague Law, Calvinism to Genevan humanitarianism. By the 1970s, Pictet’s terminology of IHL, or DIH, became widely known. It was used by various practitioners to protect “victims of war”, the ICRC’s original vocabulary for the law’s main focus-group, against inhumane treatment.
The terminology of international humanitarian law raises another, far more important question: to what extent are the discourses of humanity, humanitarianism, genocide, human rights, and the Geneva Conventions actually related? Echoing an expansive notion of IHL, many scholars have argued in favor of drawing a connection between these fields of law and politics – or both, although this claim is historically contentious. For example, neither the Martens Clause, defining the laws of humanity, and the words of “crimes against humanity”, first catapulted into legal history as an Allied response to the Armenian Genocide, are mentioned in the original Geneva Conventions (see Kerstin von Lingen’s forthcoming Habilitation.) Nor do these treaties strictly forbid the use of scorched earth policies, or even starvation, as a means of warfare. In other words, while often called humanitarian conventions, they have a remarkably inhumane instinct as well as consequences.
Another example of the troubling relationship between the Conventions and other fields of international law is genocide. Like the famous international lawyer Hersch Lauterpacht whose own contributions to the Geneva Conventions are now largely forgotten (see Philippe Sands’ magisterial work and its neglect of them), Pictet found this term, originally coined by Raphael Lemkin, far “too political.” He also disliked its focus on collective as opposed to individual rights. For these and other reasons, the ICRC hardly referred to the term of genocide after its coining in the 1940s, even though the Conventions do make mention of “extermination” (see Article 32 of the Civilian Convention), its apparent moral equivalent. However, this terminology has technically – though not effectively – little to do with genocide: the former was originally suggested by the Soviets in order to ban atomic warfare altogether, a tactic that had turned the Geneva diplomatic conference in 1949 into a major Cold War-battleground.
Still, the most widely discussed topic remains the often contested relationship between the Conventions and human rights. Many Anglo-American scholars – though not only them – question whether there are really any connections between them. Their answer is often negative because they focus almost exclusively on the translated minutes, drafts, and/or ICRC commentaries. Pointing to the fact that none of the four Conventions make any direct reference to human rights, they argue that these two fields had remained fundamentally distinct in this period of the 1940s.
My research employs a more genealogical approach to challenge this assumption. This entails a sharpened focus on the ideas, inspirations, and contributions of influential European continental drafters, particularly those from the Francophone countries, in developing the laws of war before and after WWII. For these men – very few women were involved – there existed in the late 1940s a tight connection between human rights and early humanitarian law, a much closer relationship than might be easily assumed in retrospect.
In 1966, Pictet wrote in his essay that humanitarian law from its very beginnings had been about protecting “la personne humaine.” In his view, this field of law had reached a decisive stage in its development already in the late 1940s, with the signing of the Universal Declaration of Human Rights (1948), the Geneva Conventions (1949), and the European Convention on Human Rights (1950) – interestingly, he did not include in this list the Genocide Convention of 1948. Claude Pilloud, a fellow ICRC-official and a co-drafter of the original drafts of the Geneva Conventions, made a similar claim. In April 1949, right at the start of the diplomatic negotiations, he argued in an essay for the Revue, which was entitled: “La Déclaration Universelle des droits de l’homme et les conventions internationales protégeant les victimes de la guerre,” that there existed “des points communs évidents” between the UDHR and the drafts that he had helped to design for the upcoming diplomatic conference.
Strikingly, the French-Jewish co-drafter Georges Cahen-Salvador, also René Cassin’s colleague at the Conseil d’État, strongly echoed his view at the end of these negotiations. In an article for Le Figaro, he argued that the drafters of the Conventions had finally safeguarded human rights (“des droits et des libertés humaines”) in wartime, which further indicates the degree of closeness between these two fields of international law – why, how, and to what extent this connection was made by the drafters as a whole is more extensively discussed in my research.
Equally important, it is critical to identify not just those moments of overlap, but also the instances when human rights failed to connect with humanitarian law – the occasion upon which a mostly continental European aspiration remained unrealized, to paraphrase Foucault. Put differently, why are human rights not mentioned in the Geneva Conventions? One answer to this question is to refer to the drafting history of Common Article 3, a critical legal provision that the US Supreme Court used in 2006 (look here for its judgment) to end the torture of Al Qaeda detainees. Originally, the text for this article, co-drafted by Cahen himself, had made mention of human rights; they were made part of a list of individual protections against forms of inhumane treatment, such as hostage taking, summary executions, and torture. However, the drafters decided, under pressure from various delegations, to remove this reference to human rights from the final texts, eventually causing a bias in the literature which claims that human rights had nothing to do with early humanitarian law.
What is true, however, is that a direct legal contact between these two branches of law was only established in the period since the 1960s, following the attempts by particularly the UN Human Rights Division in seeking to remedy for the failures of Common Article 3 to regulate so-called “non-international armed conflicts,” such as colonial wars. This was partly a response to the previous years during which it had witnessed how colonial powers had denied the relevance of this article for their brutal counterinsurgency campaigns in Algeria, as well as in Kenya.
As a consequence of these failures of Common Article 3, the UN body and the General Assembly wished to use human rights as a means to fill the law’s gap with regard to insurgencies that were considered short of armed conflict. Such an approach has fundamentally changed the language, typology, nature, and practice of legality in war. Whereas it formerly applied only in peacetime, human rights law now did so in wartime as well (see Guglielmo Verdirame’s criticism of this point). Ironically, the unintended consequence of this effort to strengthen IHL led to its gradual weakening, if not overtaking, by human rights – or, as some prefer to call it, to the weaponization of human rights law.
Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He is currently working on a new international history of the Geneva Conventions of 1949. Previously, he published a book on the bystanders of an SS concentration camp in the Low Countries.
by guest contributor Rachel Q. Welsh
In medieval Castile, between about 1050 and 1300, local municipal lawcodes, or fueros, looked to the body for proof of rape. These fueros provided detailed and practical sets of laws and privileges to newly founded or conquered towns before the advent of centralized royal law, and they were intended to encourage settlement and establish civic order on the expanding Castilian frontier. Although the fueros set harsh penalties for rape, a valid claim hinged on the woman’s own actions of public self-mutilation. In order to prove rape, a woman had to appear publicly within three days of the assault and rend her cheeks, tearing at her face with her fingernails until it bled. If the woman did not appear carpiendo y rascando, “tearing and scratching,” she was not to be believed, according to texts like the Fuero de Alba de Tormes.
The physical action of cheek rending is not unique to these Iberian lawcodes, as it was also part of a larger Mediterranean practice of ritual mourning, in which mourners raised loud laments and tore their hair, faces, and clothing.
These self-mutilating actions were especially associated with women, however, and women’s mourning bodies were understood within a framework that linked bodily expressions of emotion with unrestrained sexuality and self-mutilation. For example, John Chrysostom suggested in a homily that women tore their bodies and clothing not to demonstrate grief, but to show their bodies and attract lovers. Because Iberian women tore their cheeks both as part of ritual mourning and as proof of rape, however, what little scholarship mentions cheek rending as proof usually explains it away in terms of grief and emotion: Distraught women tore their faces in grief at the shame and dishonor of rape. While this could explain why an individual woman might rend her cheeks, it does not explain why the legal system would require torn and bleeding cheeks as proof.
In thinking about cheek rending as proof of rape, I propose that we think of it first as a real, physical action, not just as a ritual or cultural performance. The municipal fueros themselves are very practical legal codes, without overt ideological goals; they deal with everyday life on the Castilian frontier, and they regulate such mundane things as which days Jews and Christians could use the bathhouses or how bakers should be fined for heating their public bread ovens badly. The stipulations on rape and cheek rending should be read within this straightforward framework. The verbs used in Latin and Romance to refer to cheek rending—including rascar, grafinar, mesar, carpir, desfacer, cortar—signify real physical violence; the mourners scratch, rip, tear, cut, and strip their faces. The thirteenth-century Primera Crónica General describes women mourners as tearing and scratching their faces (tornandolas en sangre et en carne biva), stripping them back to blood and to open wounds. Alfonso X’s great royal legal code, Las Siete Partidas, condemns excessive mourning and refers to cheek rending as disfiguring. Moreover, it forbids priests from administering the sacraments to mourners until they had healed from the marks they had made on their faces. This suggests that cheek rending left real visible marks on mourners’ faces, that their bodies were literally marked, and possibly even scarred, with grief. Images of mourners rending their cheeks bear this out, as many show bloody red lines on the mourners’ faces. A medieval medical text on treatments for women, included in the Trotula collection, even describes an ointment which the women of Salerno used to treat the marks on their faces which they made in mourning for the dead (contra maculas in facie quas faciunt salernitane pro mortuis). If women tore their cheeks both in mourning and in rape, would widows and raped women then have the same facial marks or scars?
Because cheek rending was a bodily action performed through real, bleeding bodies, I further suggest that any examination of cheek rending as proof of rape should consider larger questions of how bodies, and especially women’s bodies, functioned before the law. Scholarship on emotion and gestures suggests that weeping was seen as a sign of sincerity, and cheek rending as proof of rape suggests a similar connection between outward appearance and internal mental state. The definition of rape in the fueros hinges on intent, consent, and believability, and in many fueros the cheek rending requirement falls under the heading “What woman should be believed concerning rape[?]” (Qual mugier deue seer creyda por forçada). Cheek rending might actually go further than just proving intention and sincerity, however, as many of these same towns also used the ordeal of hot-iron and the physical bodies of women to prove guilt or innocence. This ordeal was used only with women and only with women accused of certain kinds of bodily, secretive crimes, including poisoning, abortion, prostitution, and witchcraft. For these crimes, the law bypassed the woman’s testimony to access the truth directly from her body.
But why only women’s bodies? If men were dishonored, they proved their civil cases through character witnesses and testimony, not through self-mutilation and bleeding cheeks. I am only beginning sustained research, but I suspect that there’s something about the body itself, an understanding that bodies – and especially female bodies, which were seen as more material and less spiritual than male bodies – could somehow demonstrate truth. In cheek rending as proof of rape, women mark and even mutilate their bodies to make visible the internal violence and dishonor of rape; in ordeal, perhaps, the body speaks for itself.
Rachel Welsh is a doctoral candidate in Medieval History at New York University. Her dissertation focuses on ordeal and the use of the body as legal proof in medieval Iberia, and she is interested more broadly in medieval medical, theological, philosophical, and legal understandings of the body as a potential conduit of truth.
by guest contributor David Kearns
Since his death on 13 February 2016, much has been written on Antonin Scalia’s legacy as a Supreme Court justice. A significant strand within this literature has focused on Scalia’s enduring fascination—both in his judgments and in his statements outside the court—with the relationship between law and morality. Scalia famously remarked that lawyers were “not moral philosophers“; and that judges were not tasked with determining what rights should exist, but rather with what rights exist according to accurate Constitutional interpretation, a doctrine he described as “originalism.” A judge reasoning not through such interpretation but rather through the application of moral philosophy was, in Scalia’s words, a “charlatan.”
Commentators interested in this aspect of Scalia’s work have alleged that this supposed amorality was either a cover for actual immorality—his discussions of homosexuality, in one account, “reflect ugly, stubborn, unevolved beliefs”—or in fact was itself immoral. For Laurence H. Tribe, Scalia’s dedication to originalism precluded him from embracing the “just and inclusive society” that laws “should be interpreted to advance.”
This essay will focus on this latter response, and will show that Scalia’s rhetoric about the importance of accurate interpretation and application of existing law over moral concerns is a modern contribution to a judicial rhetoric that emerged in late seventeenth-century England in response to the British Civil Wars. In particular, it will explicate how Sir Matthew Hale—King’s Bench Chief Justice from 1671 to 1675—justified an amoral legal system rooted in accurate interpretation and application of past law as the only means to protect England against future civil conflict.
Hale was born in 1609, and after briefly attempting to join the priesthood, took up a career in law. He studied at Lincoln’s Inn before working as a barrister, and was appointed to judicial office under Oliver Cromwell, as Chief Justice of the Court of Common Pleas. Under the restored monarchy of Charles II, Hale served as Chief Baron of the Exchequer from 1660 to 1671, and as Chief Justice of King’s Bench—the highest common law court—from 1671 to his retirement in 1675. As well as his work as a judge, Hale wrote extensively on the common law, though published little in his lifetime.
In these works, Hale articulated his understanding of the common law and the role of the judges working in it. In his History of the Common Law in England, written in the 1670s, Hale explained that the common law consisted of the lex non scripta, the laws which existed from “before Time of Memory”: a legal term referring to the period before 1189, even if such laws still existed in written form (Hale, History, 3-4). The laws that made up the lex non scripta had three different origins: customs, practices of governance that survived “from Age to Age”; statutes; and previous judicial decisions, not laws as such but precedents which could aid in interpretation (44-5). Judges were bound to dispense judgments in line with these laws and with the lex scripta, statutes made post-1189 (166).
Hale expanded on this in his manuscript Reflections by the L[o]rd. Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe, written roughly simultaneous to his History. Hobbes’s A Dialogue between a Philosopher and a Student of the Common Laws of England comprised a lengthy attack on common lawyers: particularly Edward Coke, King’s Bench Chief Justice from 1613 to 1616 and one of Hale’s mentors. In the initial exchange between the Philosopher and Lawyer, Hobbes’s Lawyer claimed that, according to Coke, common law judges possessed a form of legal reason distinct from men’s natural reason. This was the “Summa Ratio“—the highest reason—an artificial form of reason constituted through “many successions of Ages,” through which it had been steadily refined by common lawyers (Hobbes, Dialogue, 9, 18).
Hobbes’s Philosopher rejected this argument, insisting instead that lawyers and judges possess no special form of reason, as “all Men… when they have applied their Reason to the Laws… may be as fit for, and capable of Judicature as Sir Edward Coke himself” (18). Judges should not rely on earlier judgments, as these were often contradictory (55). Instead, the king’s judgment, as expressed particularly in statute, should ground judicial work. Furthermore, the Philosopher asserted, the laws that constituted the common law had been made by kings—kings were “Legislator both of Statute-Law, and of Common-Law”—and it was thus the reason of these kings that guided the law (26).
Writing against this, Hale contested Hobbes’s conception of legal reason, arguing that those trained in the common law possessed a form of reason specialized to their discipline. By applying their natural “Facultie of Reason” to the law through “readeing, Study and observation,” men “habituated” their “reasonable facultie” to the law, preparing them to serve as lawyer or judge (Hale, Reflections, 287-8, 292). No natural nor royal reason could thus adequately perform the duties of a judge, which involved interpreting the breadth of existing law—the lex non scripta and lex scripta—and accurately applying it to the present case.
Hale went on to extol the virtue of this method against those who would seek to root law in moral philosophy, deploying a vocabulary very similar to that later used by Scalia. Judges attempting to adjudicate through reference to “Casuists, Schoolmen, Morall Philosophers, and Treatises touching Moralls in the Theory” are “Co[m]monly the worst Judges” (289). Moreover, the accurate application of existing law was preferable to the deployment of any personally formulated legal principle “tho’ I am better acquainted w[i]th the reasonableness of my own theory” (291). Hale acknowledged that this process of interpreting and applying past law without concern for moral questions may indeed result in “some mischief,” but that “more must Suffer by the inconvenience of an Arbitrary and uncertaine law” resulting from a resort to moral theory.
The preservation of peace over legal innovation was particularly pertinent for Hale given his context. Hale had lived through the British Civil Wars and the Interregnum period following Charles I’s execution in 1649. He had witnessed the instability and violence of this period, as well as the threats to the common law that arose in the monarchy’s absence. Hale had chaired Cromwell’s Hale Commission, charged with developing law reforms, none of which were ultimately accepted by Cromwell’s government. As Commission chair, Hale was brought into contact with an array of opponents of the common law, including those who proposed dismantling the common law in favor of a scripture-based legal system (such as Hugh Peters in his Good Work for a Good Magistrate).
Writing in his History after the Civil Wars and Interregnum, Hale described this period as characterized by “Errors, Distemppers or Iniquities,” and claimed that it was only the common law that had “wasted and wrought out those distempers” (History, 30). Hale’s certainty that the common law protected the English state and that threats to his judicial method constituted threats to the state is palpable throughout his Reflections, as he warned of the “Instability, uncertantie, and varietie” threatened by a law grounded in moral theory. Such a grounding would risk “the happiness and Peace of the Kingdome”; it was instead preferable that judges apply “a Lawe by w[hi]ch a Kingdome hath been happily governed four or five hundr[e]d yeares” (Reflections, 291). For Hale, then, the amoral process of accurately interpreting and applying past law was to be preferred to any attempt to reconcile law with moral theory, which he saw as threatening to plunge England back into a state of violence.
Hale’s theories of law have remained central to modern jurisprudence on both sides of the Atlantic. As well as being cited heavily by William Blackstone, who himself remains regularly cited in modern law (see, for example, Lord Fraser’s citation of Blackstone in the immensely influential Gillick v West Norlk and Wisbech AHA), Hale’s judgments have been cited as precedent as recently as 1991, where his 1675 conviction of John Taylor for claiming that Christ was a “whore-master” and “bastard” formed part of the basis of Salman Rushdie’s acquittal for blasphemous libel (R v Chief Metropolitan Stipendiary Magistrate). This early modern English jurisprudence has also had a continuing influence on American law. This appraisal of Hale’s treatment of the law-morality relationship thus ought to give us pause in our criticism of Scalia. Whether Scalia lived up to his own challenge to accurately apply existing law, and whether such a practice continues to constitute a valid judicial method given its now-remote origins, remain questions for current legal commentators. We cannot, though, simply dismiss Scalia’s concern with the primacy of precedent as a personal moral failing, but must contend with it as a contemporary engagement with an enduring and powerfully justified tradition within the law.
David Kearns is a PhD candidate at the University of Sydney. His research focuses on English common law from 1660 to 1688, and in particular, the relationship between the common law and religious thought.