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A Tale of the Rise of Law (Part One of Two)

In Arts & Letters, Britain, Christianity, Fiction, Historicism, History, Humanities, Imagination, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Politics, Rhetoric, Rhetoric & Communication, Western Civilization on March 9, 2012 at 10:09 pm

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.

 The Jurisprudence of John Austin

Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6).  Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.

Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis.

Although medieval jurisprudents based their theories on classical notions of law – most notably Cicero’s notion from The Republic that “true law is right reason, conformable to nature, pervading all things, constant and eternal” (211) – Austin’s jurisprudence incorporates classical law, applying as it does to any command habitually followed during any era. Austinian command theory even encompasses the Ciceronian notion of the pactum – a tacit contract between governor and governed – because the pactum is manifest in Austin’s discussion of equilibrium between commander and commanded: a sovereign may issue law only so long as the polis allows.2 In Geoffrey’s time, Henry I went to great lengths to establish a system whereby the king’s commands were universally and habitually followed within England. The indeterminacies and contingencies of monarchical rule and succession meant that law and the king were not necessarily wedded because a king could forfeit sovereignty if sociopolitical circumstances disrupted the populace’s habits of following him. If the “bulk of the given society is not in a habit of obedience to one and the same superior,” Austin explains, “there is no law (or simply strictly so styled) which can be called the law of that given society or community” (Province 184). When no king issues commands or when the populace disregards a king’s commands without being punished, there is no sovereign that is king – despite possible claims to kingship – and the rules and principles that the populace follows are customary laws, defined by Austin as “laws which are set or imposed by the general opinion of the community, but which are not enforced by legal or political sanctions” (Province 184). As soon as legal or political sanctions accompany customary laws, the sanctioner becomes the sovereign. A sanctioner is not necessarily king, unless he evidently governs several individuals that together make up a state: a body of people subject to one sovereign who commands rules that, along with their corresponding punishments, are immediately effective upon the body.3

The History is the product of an era when kingship and sovereignty are not definite because questions of who can punish and with what authority are in flux. Giorgio Agamben defines the sovereign as “the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence” (32). The sovereign is the state of exception because it is the site either where the illegal becomes legal, or where an individual or institution stands outside or constitutes law. The sovereign’s actions are legal because they emanate from the sovereign. Geoffrey’s chronicle about legendary kings promotes sovereign authority by attending to justice and rule of law while strategically avoiding references to particular contemporary sovereigns or kings. Geoffrey maps the continuity of British customary law while working within the framework of myth to sponsor and legitimize the official narrative of nationhood, but he champions a governable state more than any specific governing person or group of persons. His aim seems to be to validate the concrete figuring of Britain as a state confected by law.

Stephanie L. Mooers posits that the “theory, if not the practice, that every individual is entitled to uniform and rational justice is a direct outgrowth of the twelfth-century principle that one law should apply equally to all free men” (340). Is Mooers right to locate this principle in the twelfth century? The answer, if we believe Geoffrey’s accounts in The History, is no. For Geoffrey takes pains to plot the development of the British nation as well as the skeleton – law – that holds that nation together. In so doing, he grounds English customary law not in the twelfth century but in antiquity, suggesting that uniform and rational justice is not only nothing new but also, quite conveniently, something old. I say conveniently because in Geoffrey’s historical moment, the legal mores of the ancients were so celebrated that they were taken as given, and law was assumed to be organic: an outgrowth of earlier principles and doctrines.4 Law was therefore crucial to any legitimizing narrative of peoples, nations or laws. For an idea to gain purchase at this time, it had to suggest continuity with a classical past.

The History is as much a case for the establishment and continuity of British law as it is for the establishment and continuity of British culture, which of course is never entirely divorced from law because it informs and enables legal rules and institutions. One might say that law is an embodiment of culture. Narrative, even its fictional variety, is amenable to policy and hence to the promulgation of rules and regulations. The History, likewise, is amenable to lawmaking. Geoffrey probably sought to celebrate law with his text because the British legal order was beset with factions and divisions leftover from Norman Conquest, with contests over monarchical succession and with civil war always threatening to undermine sovereignty.

Austin criticizes the idea, seemingly endorsed by The History, that a sovereign is not the author of law but merely one who defines and describes preexisting rules (Lectures 567). Austin agrees that a sovereign can define and describe preexisting rules, but he maintains that “the Sovereign makes it law, not by the mere description, but by the sanction with which he clothes it” (Lectures 567). Whereas Geoffrey uses The History not only to authorize British customary laws that precede his historical moment, but also to suggest that these customary laws will obtain no matter the sovereign, Austin would argue that customary laws have no practical bearing unless the sovereign commands them to have practical bearing. Applying Austin’s proposition to Geoffrey’s historical moment, we might say that The History is a response to anxieties about a pluralistic legal order whereby many sovereigns govern small pockets of people, as opposed to a definite, centralized legal order whereby one individual and his various agents govern society writ large. In this respect, The History makes the case that British customary laws are worthy of being commanded and governed by a centralized order.

Part Two will follow next week.  Works Cited will appear in Part Two.

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