legal history

A History of Humanity, Humanitarian Law, and Human Rights

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.

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Jean S. Pictet (1914-2002)

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.

Cheek Rending, Bodies, and Rape in Medieval Castile, c. 1050-1300

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.

Woman mourner, sacramentary of Ivrea, c. 1000, Northwest Italy. Biblioteca Capitplare d’Ivrea, codex 86, f. 199 verso. Miniatures reproduced in Luigi Magnani, Le miniature del sacramentario d'Ivrea e di altri codici Warmondiani. Codices ex Ecclesiasticis Italiae Bybliothecis Delecti, Phototypice Expressi (Città del Vaticano: Biblioteca Apostolica Vaticana, 1934), tav. XXXVII.

Woman mourner, sacramentary of Ivrea, c. 1000, Northwest Italy. Biblioteca Capitplare d’Ivrea, codex 86, f. 199 verso. Miniatures reproduced in Luigi Magnani, Le miniature del sacramentario d’Ivrea e di altri codici Warmondiani. Codices ex Ecclesiasticis Italiae Bybliothecis Delecti, Phototypice Expressi (Città del Vaticano: Biblioteca Apostolica Vaticana, 1934), tav. XXXVII.

image-2The 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?

Scene of mourning at an honorable death, with women rending their cheeks, late 13th century Castile. From Cantiga 152, Cantigas de Santa Maria. Image reproduced in Heath Dillard, Daughters of the Reconquest: Women in Castilian Town Society, 1100-1300 (Cambridge: Cambridge University Press, 1984), plate 20.

Scene of mourning at an honorable death, with women rending their cheeks, late 13th century Castile. From Cantiga 152, Cantigas de Santa Maria. Image reproduced in Heath Dillard, Daughters of the Reconquest: Women in Castilian Town Society, 1100-1300 (Cambridge: Cambridge University Press, 1984), plate 20.

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.

Mourners tearing their hair and faces in grief, c. 1295, Castile. 1 of 8 wooden panels originally in the chapel of San Andrés de Mahamud (Burgos). The Plañideros panels are currently in Sala 19 of the Museu Nacional d’Art de Cataluyna, in Barcelona, catalog numbers 004372-003, 004372-004, 004372-005, and 004372-006.

Mourners tearing their hair and faces in grief, c. 1295, Castile. 1 of 8 wooden panels originally in the chapel of San Andrés de Mahamud (Burgos). The Plañideros panels are currently in Sala 19 of the Museu Nacional d’Art de Cataluyna, in Barcelona, catalog numbers 004372-003, 004372-004, 004372-005, and 004372-006.

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.

Antonin Scalia’s Originalism and the Rhetoric of Judicial Office in Early Modern England

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.

Sensual Charters

by contributing editor Jake Purcell

I share with JHI Blog editor John Raimo a buzzing affection for philology. On the one hand, it’s a tool I feel I need desperately, helping me to tease out how such fickle things as words might be clumped together into sentences. But philology is also a joy: Thinking philologically lets the historian play with words, and to watch others at play.

But it can be challenging, as a historian of institutions, to find ways also of being a philologist. For one, I feel my amateurism very keenly. I have read articles on the different sounds that people alive in Merovingian Gaul (France-ish, c. 450-751) might have meant when they wrote the letter “a;” I have learned my morphological and syntactical shifts from Late to Medieval Latin; I have devoured everything I can find by Roberta Frank; but is it ever enough? Lest reading continue to serve as a substitute for action, I want to strain some of these underdeveloped muscles of philological practice by looking for some of the sensuality in the medieval legal documents that I work with. In particular, what can focusing on the sensuous reveal about evidence, proof, and facts—about how governments sort information into units that are judged to be “false,” and so ineffectual, or “true,” and so actionable?

The sensual philology that I mean is Martin Foys‘, born of the now-expanding list of things that philology can do. Sensual philology sidles up next to New Philology’s earlier interest in the materiality of the text and urges a more ecumenical attention to the relationship between media, words, and bodies, and also the physical world of senses and silences beyond the visual, including non-linguistic systems of communication. Foys’ insights and methodologies don’t seem unique to the relationship between words and sensation, but the stakes of this intersection are uniquely high. Susan Kus, an archaeologist of Madagascar, has pointed out that semiotics is insufficient for understanding things like proverbs, which rely on routine physical experiences for context. The sensory is given meaning beyond the physical experience of the body, and words are embodied with content that is not just intellectual, but physical and affective.

It is easy to see how a reading attentive to the affective and sensory (especially non-visual senses) tenor of a text can be rewarding in passages like this one, from the medieval Welsh tales collectively called The Mabinogion:

His arms were round her neck, and they were sitting cheek to cheek, but what with the hounds straining at their leashes, and the edges of the shields banging together and the spear shafts rubbing together and the stamping and whinnying of the horses the emperor woke up.

Constellations of love-inflected sensory experiences, indeed. Outside of dreams, historians have found plenty of bodily and sensual experiences within and adjacent to medieval institutions. But in the legal documents that I work with on a daily basis? What is their sensuality?

Copyright Genevra Kornbluth. This charter, Archives National K 3 No. 18, is near-contemporaneous with the placitum I discuss. It was written for another Merovingian king, King Chilperic II, on or around March 5, 716. There are at least two things that are remarkable about this particular text. One is that its royal seal is still attached, after 1300 years. Another is that it is written on parchment, a sign of the document's relative youth. Papyrus, not parchment, was probably the Merovingian chancery's preferred substrate for legal documents until the end of the seventh century.

Copyright Genevra Kornbluth. This charter, Archives National K 3 No. 18, is near-contemporaneous with the placitum I discuss. It was written for another Merovingian king, King Chilperic II, on or around March 5, 716. There are at least two things that are remarkable about this particular text. One is that its royal seal is still attached, after 1300 years. Another is that it is written on parchment, a sign of the document’s relative youth. Papyrus, not parchment, was probably the Merovingian chancery’s preferred substrate for legal documents until the end of the seventh century.

Here is a near-translation of most of a Merovingian placitum (a formula-based, post facto record of a dispute resolution adjudication, but also the word refers to the adjudication process itself and also means pleasing or agreeable):

Theuderic, king of the Franks, to the noble men.

One day, we, in the name of God, were seated at our palace at Ponthion along with our retainers so that we could hear everyone’s cases and judge lawful legal proceedings. Representatives of the church of our special protector the blessed martyr Dionysus (where he rests bodily and where the saintly man Abbot Godobald is seen to preside) came to us here and spoke out against the noble man Ermente. They said against him that he had given some of his land called Boran- sur-Oise on the river Isère in the region around Chambli, which he came by for himself legally through his father Nordbert and his brother Gunthechar, both dead. to the venerable man the abbot Godobald for the church of the lord Dionysisus. He had given and confirmed the gift through a deed of sale, and he showed the document to those assembled for reading. When it was read, and while that Ermente was among those present, it was asked of him by our nobles if he had sold that land Boran-sur-Oise of his to that Abbot Godobald for the church of St. Denis, and if he had taken the purchase price for it. Ermente said to those present that he sold to the Abbot Gondobald for the church of his lord St. Denis that land of his in the aforesaid place Boran-sur-Oise in the recently mentioned Chabliois and asked it to be confirmed and received the purchase price according to his satisfaction, and had asked to confirm the sale. For that reason we together with our nobles agreed to decide that, as the noble man Cumrodobald, our count of the palace, testified how the case had been investigated and completed, we ordered that the aforementioned representatives of the venerable man the Abbot Godobald and of the church of his lord Dionysius for their part hold for all time, inviolably and with all rights that same property of Boran-sur-Oise in the abovewritten Chabliois…, with their charters having been looked over…

Many things are confusing about this document: Where is the conflict? Why is text that is standard for a deed of gift spliced onto the end of a judgment formula? I want to leave those aside to point out that, as a group, the Merovingian placita are very loud. People are always speaking, interrupting, claiming, stating, responding, agreeing, promising, asking, asserting, contradicting, professing, testifying, relating, determining, swearing, reading aloud, requesting, interrogating, ordering, declaring, and pledging. Because of all this noise, or maybe in spite of it, people were also doing a lot of hearing; the placita are peppered with curious assurances that this was the case, or that there were people around to hear all this noise.

The impulse to explain in detail seeing and hearing is symptomatic of a larger epistemological habit of Merovingian diplomas: their effort to convey precisely how information was sent and received, especially information related to critical pieces of evidence. Medieval legal writing loved rhetorical specificity (“that land of his in the aforesaid place Boran-sur-Oise in the recently mentioned Chabliois”), and that specificity could manifest itself at different levels, including over the course of the whole placitum. Someone claims that a charter exists, it is made to appear physically for the purpose of reading aloud, it has been read aloud, it contained such and such information. The information is heard, it is confirmed by an official, taken to another official, written in the document, then confirmed again. (This last part, of the process, notably absent from the placitum above, is often described in others, and also frequently confirmed by notes in a Merovingian shorthand made on the documents.)

Getting information from one charter to another apparently required an odd alchemy, one that created a tangible link between the ink of the words on the page of the charter mentioned in the placitum, the ears of the king and court who made and recorded the decision, and the ink of this new placitum itself. Knowledge here is embedded in sensory experiences as a kind of physical movement. Seeing, hearing, and reading drag pieces of data from out of the secret interiors of people and documents into the open (Merovingian law always happens publice), where their truth can be verified or denied. But the careful nestling of source of information against source of information doesn’t stop here, at the decision; it extends all the way to the scribe, who is, after all, the one to record it. The carefully described passing of information from document to group to official to scribe to confirmer glues all of this information together into a coherent, sure narrative.

So, what does this shifting of perspective do for the legal or institutional historian? Most pressingly, it shows that Merovingian legal writers had assumptions that were different from those of the modern legal tradition about how writing worked as a technology, about what the law could do, and about how legal institutions made and preserved facts. The Merovingian placita offer a good opportunity to think about these issues: The placitum is probably a Merovingian genre. developed and use by Merovingian legal writers to meet the needs of Merovingian institutions. The documents are not transcripts, but recollections structured by formulas designed to elicit specific kinds of information.

A more traditional approach to this essay would have asked about categories of and rules for evidence – the relative efficacy of testimony versus written documents, or the place of oath-taking and the ordeal. Looking at the physical world of the placita shows how unsatisfying a Merovingian scribe might have found those sharply drawn categories. Facts were facts not because they could be isolated and examined individually, but because they could maneuver so lithely among texts and between text and speech, they could be read, spoken, and heard.

Philology Among the Disciplines (II): Roles, Limits, Goals

by John Raimo

“Those who don’t know, do theory.” As per Nikolaus Wegmann, this slogan of modern philology touches upon something odd this “ancient form of knowledge” and its persistence into the present day. Philology fitfully attempts to absorb theory in his reading: it historicizes both the scholarly subject at hand and the attendant methodology at a stroke. Different sorts of distances open up between the two according to the field, the scholar’s present moment, the lengths of historical and cultural distance involved, the languages present, and finally the great accumulations of previous scholarship. The philologist stands on the shoulders of giants rather than astride a cemetery. Yet it would be a disservice to varied scholarly traditions and achievements to consider philology an impossibly-idealized historicization or plain recognition of temporal distance. Something more rests at stake. It requires the most ecumenical mind to start making sense of what may no longer be a discipline, but which nevertheless continues to inform all our work.

Scholars at Notre Dame’s Rome Seminar’s “Philology Among the Disciplines” continued to move between philology’s definitions and applications, limits, roles, and problems. The primary fields of discussion included literary study, classics, philosophy, and theology. Each conversation unearthed issues regarding hermeneutics, exegesis, historical semantics, and finally practical techniques—both our own and those of past readers. At least one larger question nearly began to answer itself, namely what relationship pertains between Sach- and Wortphilologie. That is, clear historical developments and scholarly practice link text-driven philology with other disciplines and (crucially) vice-versa. The scholarly traffic ran and runs both ways. The larger question haunting the seminar, however, concerned neither philology’s influence nor history per se but rather its status as a body of techniques, a science, a proto- (or even a post-) discipline, and its potential roles today. Is it a “sublime form of craftsmanship” practiced by scholars rather than anything like a science, as Lorenzo Tomasin recently charged? Or do philology’s claims to authoritative interpretation extend more broadly and perhaps somehow more ‘particularly’ today?

Example of a 'stemma' tracing text transmissions in the model proposed by Karl Lachmann (Stemma for De nuptiis Philologiae et Mercurii by Martianus Capella proposed by Danuta Shanzer. "Felix Capella: Minus sensus qum nominis pecudalis," Classical Philology 81,1 (1986), p. 62-81).

Example of a ‘stemma’ tracing text transmissions in the model proposed by Karl Lachmann (Stemma for De nuptiis Philologiae et Mercurii by Martianus Capella proposed by Danuta Shanzer. “Felix Capella: Minus sensus qum nominis pecudalis,” Classical Philology 81,1 (1986), p. 62-81).

No single conversation definitively answers such questions, of course. Yet some brief notes drawn from the conference may at least underline these problems’ significance and the intellectual openness they provoke for scholars across fields and more particularly for intellectual historians.

Ralf Grüttemeier’s talks on literary trials and authorial intention opened the second week of seminars. The angle of legal history clearly binds the two. If a single, authoritative recovery of one coherent authorial intention remained a philological ideal for a great deal of time, it persists well into today’s categories of libel, blasphemy, and obscenity. Landmark literary trials such as those surrounding Flaubert’s Madame Bovary, Baudelaire’s Les Fleurs du malOscar Wilde, Joyce’s Ulysses, and D.H. Lawrence’s Lady Chatterley’s Lover as well as the Obscene Publications Act of 1959, the Committee on Obscenity and Film Censorship (helmed by Bernard Williams), and the United Kingdom’s current libel laws together demonstrate drives to institutionalize philology within modern state judiciaries. That is, this does not concern literature-as-law or vice-versa but rather attempts to identify interpretation with social consensus and enforce disciplinary boundaries in the matter of professional expertise–whether literary, juridical, or otherwise.

Sketch of Closing Trial Scene: half page (Illus. Police News, 5/4/1895)

Sketch of Closing Trial Scene: half page (Illus. Police News, 5/4/1895)

For Grüttemeier then (borrowing from Bahktin), independent philology can otherwise act as a break on centrifugal flows of knowledge both into state control and within disciplines. Historicization and scholarly differentiation occur even in the act of positing authorial intention. The process itself affords a varied and still contentious history from Augustine and Hugh of St. Victor (with untroubled authorial intent available to recover), Schleiermacher’s imperative to “understand the text at first as well as and then even better than its author,” Wimsatt and Beardsley’s famous injunction against the “intentional fallacy,” and the great moment of the ‘death of the author’ in thinkers as diverse as Kristeva, Barthes, Foucault, and Derrida among others held against the so-calledCambridge School’ of intellectual history and indeed all historians of ideas. Whether the idea of intent remains a necessary or even possible working fiction in different fields remains as much a philosophical and political question as one for philologists.

The history of philology itself presents different challenges for classicists, not least when looking to perhaps the most fundamental object of philology—etymologies. Enrica Sciarrino and W. Martin Bloomer looked to Roman translations and transformations of Greek philology. Latin translators and poets from Livius Andronicus and Ennius to the playwright Terence worked in a dual capacity as philologists and writers. A recognizable literary space grew in the shadow of imperial conquest as Rome absorbed Greek culture. That is, demonstrable philological skill with Greek lent original literary authority until a gradual rift opened between creative writers and professional critics.

From Terence, Comoedia: mit Kommentar von Aelius Donatus und Johannes Calphurnius (for 'Heauton Timorumenos'; printed Venice: Reynaldus de Nimwegen, 1482).

From Terence, Comoedia: mit Kommentar von Aelius Donatus und Johannes Calphurnius (for ‘Heauton Timorumenos’; printed Venice: Reynaldus de Nimwegen, 1482).

Yet etymologies and semantics (especially as a matter of innovation) remained huge decisions, as Bloomer made clear when discussing Varro’s etymologies in his De lingua latina libri. A rough sort of early antiquarianism combined with social, political, and moral imperatives to record the past. That is, Varro saw morphological changes, the preservation of texts, and political consensus as intimately related in a project of historical transparency. Hence a ‘politics’ of philology was present from the beginning as actual methodologies—appeals to a complex sense of natura (something apart from social usage), analogy, grammarians, custom, authorities, and citation—crossed from Greek refugees to the Roman elite. Etymology as such possesses its own particular rhetoric of fundamental nature and politics which has enchanted thinkers from Isidore de Seville to Martin Heidegger and beyond.

In the wake of modern classical studies, however, the question remains: has philology become a self-justifying, “normal science” or does it remain a sensibility, orientation, or even a simple goal? Dieter Teichert approached the impasse via a reexamination of Hans-Georg Gadamer’s work on hermeneutics. In extraordinarily brief terms, one can well ask whether Gadamer’s notions of understanding prior to scientific explanation, hermeneutic circles, ‘historically-effected consciousness’ (wirkungsgeschichtliches Bewußtsein), and ‘less-subjective’ exegesis together pose the gravest challenge to historicization. Is philology still possible? Naturally—even Gadamer’s own readings of Celan suggest as much as opposing philosophical claims from Husserl, Dilthey, Ricœur and others such as Gregory Currie and Joseph Margolis. What may be more broadly deduced, however, would be that philology itself cannot level purely hermeneutic claims against competing interpretations.

Justin Martyr presenting an open book to a Roman emperor (Jacques Callot, c. 1632-1635)

Justin Martyr presenting an open book to a Roman emperor (Jacques Callot, c. 1632-1635)

Lewis Ayres‘s talk on the development of early Christian thinking demonstrated another important register of philology, namely its ideological presuppositions. This characterization is not quite right, however, in the light of early Christian reading practices drawing apart from Hellenistic traditions. Ancient philosophy (its links to rhetoric and grammar), dogma, and polemics were tightly interwoven into considerations of what constituted scriptural texts—let alone how to actually read them. IrenaeusAgainst Heresies invented something like textual commentary in the act of contesting Valentinians via close readings of soon-to-be-canonical texts, while Justin Martyr’s Dialogue with Trypho demonstrated shifts between literal and figurative readings as permitted (or demanded) by theological dogma. A distinctly Christian hermeneutics arose in the circle again between text and practice; yet as Ayres demonstrated, the philological assumptions were embedded from the beginning.

The Rome seminar’s concluding symposium brought all these terms together in a final framework: disciplinarity. Carsten Dutt offered a forceful characterization of philology as an epistemic means and an end unto itself, then as a Hilfswissenschaft (or ancillary discipline) in historical and comparative linguistics as well. This is not exclusively tied to textual studies, however. More importantly, philology serves to historicize the objects of scholarly study as a means towards “a disciplinary framework whose constitutive aim is to acquire historical knowledge about language and texts.” This methodologically-disciplined historicization may be well-termed normative and problematic at the most detailed levels, yet neither scholarship nor scholarly communities can function in its absence.

Brad Gregory seconded this claim while emphasizing philology’s role as a common denominator or even basic ideology with and between disciplines. That is, philology’s ideals at the least serve as the basis for any interdisciplinary endeavor in the humanities. Similarly, its pervasive presence admits the possibility of wider scholarship within the proper fields themselves: one can think here of classicists making recourse to pottery fragments in reconstructing texts, or legal historians turning to literature. Philology is not always visible, but its ideals guide almost every scholarly humanistic practice, as James Turner, Rens Bod, and Sheldon Pollack among many others have persuasively argued.

If philology generally forbids one from making generalizations—even ones primarily intended for intellectual historians–I will nevertheless hazard a few. The same gap between Sach- and Wortphilologie calls for an awareness of other disciplines’ methodologies and research agendas (past and present). Moreover, some sense of the history of one’s own respective discipline remains necessary at the methodological level. Interdisciplinary studies need not be forced in light of common languages and complementary bodies of expertise. The act of scholarly interpretation always functions in light of previous scholarship: even ‘the death of the author’ was not a reset-button. As such, philology can also act as a break on flows of knowledge, whether institutional or otherwise: the insistence on history also situates each individual work against the larger field of humanistic inquiry.

Finally, the imperative remains to learn languages to a deeper extent as a matter of professionalism. One doesn’t need to talk about graduate training here so much as perhaps to critique the notion of ‘reading knowledge,’ or at least criticize ignorance of scholarship in other languages. This entails something more than renewed self-reflection or a more conservative turn against theory. Take the rise of global history. ‘The state’ in the abstract has become the premier unit of analysis. Yet moving beyond questions of classical origins to flatly equate ‘the state’ with ‘stato,’ ‘état,’ ‘Staat,’ ‘estado’ and so forth rings a false note. Every one of those words has multiple histories and hence presupposes different techniques, competencies, bodies of knowledge, and finally methodologies to study in full depth.

Where then does philology ultimately land us? It’d be nice to say on the page itself, but the better answer would be to say continually looking up from the text and then back again.

ca. 1940, London, England, UK --- Holland House Library is left roofless following an air raid, ca. 1940, London. --- Image by © Hulton-Deutsch Collection/CORBIS

Holland House Library is left roofless following an air raid, ca. 1940, London. (© Hulton-Deutsch Collection/CORBIS)

The author thanks W. Martin Bloomer, Carsten Dutt, and Brad Gregory among all the seminar presenters and participants for their work and thoughts—many of which unfortunately had to go unaddressed above. Anthony Grafton, Suzanne Marchand, Madeleine McMahon, and Gregory Mellen also deserve thanks for key references and exchanges.

Accessing the Secrets of Early Medieval Relic Labels

by guest contributor Jake Purcell

Sometime in the eighth century, a nun sat at her writing desk in the scriptorium of the monastery at Chelles and cut a small strip of parchment measuring about 90 by 15/22 millimeters. In a script recognizable as a hallmark of her institution, she recorded, perhaps a little hastily, the words “rel sci gennouefe,” that is, “relics of Saint Genovefa” (Chartae Latinae Antiquiores, ed. Atsma et al., Vol. 18, No. 669: XL). She or one of her sisters took the piece of parchment and attached it to a small sack containing, presumably, a piece of the body of the saint, or perhaps some piece of matter associated with her or her miracles. Whatever the relic’s source—likely a wealthy patron—when the label was finished, a nun brought the relic to a small chassis and deposited the relic inside, where it sat undisturbed among many similarly encased and identified relics until the next relic that arrived at the monastery needed to be added.

This eighth-century relic label for relics of Pope Marcellus comes from the large body of labels that survive from the Sens cathedral treasury. It features a decorated chrismon, or cross, at the beginning (not uncommon for a label), as well as a series of markings at the end that might be the scribe's monogram or a note in a bureaucratic shorthand system called Tironian notes. Both of these features make it look like a tiny legal document. ChLA Vol. 19 No. 682:LIII Image courtesy Genevra Kornbluth.

This eighth-century relic label for relics of Pope Marcellus comes from the large body of labels that survive from the Sens cathedral treasury. It features a decorated chrismon, or cross, at the beginning (not uncommon for a label), as well as a series of markings at the end that might be the scribe’s monogram or a note in a bureaucratic shorthand system called Tironian notes. Both of these features make it look like a tiny legal document.
ChLA Vol. 19 No. 682:LIII
Image courtesy Genevra Kornbluth.

Early medieval relic labels are tiny objects with short texts—often frustratingly so, I find. As historical sources, however, they punch well above their weight in dispelling some of the obscurity of the worlds that produced them. Relics were closely connected with specific geographies, either because individual saints (like Genovefa) were venerated at and patrons of particular institutions in particular locales (such as Paris, which she was said to protect), or because those relics were associated with events that took place in specific places, such as the river Jordan in the Holy Land. As a result, labels reveal a lot about the geographic horizons of an institution like Chelles, as well as how those horizons changed over time. It is not too surprising to find evidence of a Parisian connection to Chelles, since only about twenty kilometers separated the two sites. But there are also some seventy further labels from the seventh and eighth centuries, allowing scholars to construct something of a network. The relics that were at Chelles earliest, copied in scripts that can be dated to c. 700, almost all come from saints in Gaul (examples include Martial of Limoges or Cassian of Autun), with single examples from Italy (Pope Martin) and the Holy Land (the Seven Sleepers of Ephesus). Relic labels in scripts datable to the eighth century or the second half of the seventh century suggest slightly wider horizons for Chelles, as more relics from Rome and the Holy Land appear, as do multiple relics from Egypt and Byzantium (Michael McCormick, Origins of the European Economy, 308-314). This is only one of the shifts visible in the labels from Chelles, but it is enough to provide a sense, otherwise quite dim, of where else and to what degree the female monastery of Chelles was connected with its outside world.

In addition to situating a female monastery in an international network, relic labels also reveal something of the institutional culture of a female monastery. Part of this is the construction of a dramatis personae of the saints venerated by the nuns. Devotion to saints was a localized affair in Merovingian Gaul, based on the relics, patrons, and liturgical texts at a given institution. The list of saints is not a blandly generic comment on early medieval superstition, but a reflection of the religious life at Chelles specifically. In addition, these lists provide some sense of the annual rhythms of the liturgical year that regimented the lives of the women who lived at Chelles (Yitzhak Hen, Culture and Religion in Merovingian Gaul, 92-96). After Genovefa’s relics arrived at the nunnery, every year on January 3, those relics were placed on the altar, prayers to her were added to the mass, and a feast was held in her honor. The same was probably true for most or all of the saints whose relics were housed at the monastery, though the day on which the saint was venerated depended usually on the date on which the saint died, giving Chelles a fairly busy sanctoral cycle, honoring at least 48 saints.

Finally, the need for labels suggests a set of complicated semiotic and theological issues that surrounded relics in the early Middle Ages. Another label at Chelles proclaimed the contents of its sack to be “de barba sancti bonifatii,” “from the beard of Saint Boniface” (ChLA Vol. 18, No.669:XXIII). This label distinguished the contents of its silk container as unique hair: holy hair from a holy individual, and thus separated from the general category of “hair” (Julia M.H. Smith, “Portable Christianity: Relics in the Medieval West (c.700-1200),” Proceedings of the British Academy 181 (2012): 143-167). It was not enough that the venerator of a relic know that the matter was in some way holy, however—Late Antique and medieval writers were clear that relics of uncertain status or uncertain identity should not be venerated (however imperfectly that dictate might have been followed). The label thus also did the important work of indicating that this holy hair came from the holy beard of St. Boniface, distinguishing it from the several other holy beards housed at Chelles in the eighth century. To lose knowledge about the identities of objects housed in a nunnery was a terrible tragedy for an institution whose reason for being centered, at least in part, on those objects. This was a risk that the humble relic label could help to address.

Relic labels are useful for pulling back the curtain on the geographic and institutional worlds of Merovingian Gaul, but their production and use also offer a host of questions about the relationship between documentary practices, authenticity, and institutional knowledge-making. When the nun of Chelles wrote “rel sci gennouefe,” she was making an epistemological claim about the matter contained in that particular sack and an argument about the authenticity of the relic itself. Crafting a label established an institutional, intellectual, and social context for the relic. The labels themselves did not simply relate names, but gestured to stories about holy figures and sacred geographies, revealed the nuns’ engagement with the relic as a relic, and suggest a kind of bureaucratic processing of holy matter—not that there were official guidelines in eighth-century Francia—that gave the relic a confirmed home in the institutional church.

Jake Purcell is a Ph.D. student in Columbia University’s history department studying the institutional and legal history of early medieval Europe. He is interested in documents, legal or otherwise, and the institutions that produced them in Merovingian and Carolingian Francia.