Archive for the 'legal history' Category

Coerced consent

July 28, 2015

I wrote a paper years ago about the validity of coerced consent in Roman Law, which focused on the person coerced and what responsibility they had for their subsequent (coerced) act and whether that act was valid from an external point of view.  But it occurred to me this morning that I haven’t much thought about the consequences of the coercion to the person engaging in — doing —  the coercion.  I don’t have any particular desire to go see how Roman Law thought about this.  I do know that rule over Rome by kings ended with Tarquin’s and that he was overthrown (the paper took as its point of departure Livy’s telling of the story of Tarquin’s rape of Lucretia).  How I myself would think about it is that a coercer cannot expect the same consequences to flow from a coerced act as would flow from an act freely engaged in by the other person.  Or rather, while a person who has engaged in coercion can expect whatever they want, I don’t think the consequences to the coercer from a coerced act will be the same as the consequences to them from what looks like a similar act but is freely given.

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Word association

June 13, 2015

I wrote a comment Friday night in which I used the word “amanuensis.”  I even replied to a reply about my word choice Saturday morning.  And, as I said there, the word was something that “burbled up” from within me, and when I thought about it after it did, I liked it enough to use it.  It was in reference to Gov. Scott Walker, in a comment on a Joe Nocera column.

It occurred to me later that there was probably an element of word association going on.  Earlier on Friday evening on I had watched Washington Week on PBS, and one of the participants was Manu Raju, senior congressional reporter at POLITICO.  I see his first name on my television screen and I immediately think of the Latin word manus, particularly in the ablative case, manu.  And I wondered if there was any connection between the two words, what with all the branches and roots on the Indo-European language tree.

Manus in Latin means “hand.”  I am particularly attuned to noticing the word because of its usage in naming a particular type of Roman marriage, marriage with manus, since I spent some number of years worrying about Roman marriages and inheritance practices and such.  Whether or not the marriage was with manus was significant for determining whether the woman would inherit from her father or from her husband.

So I think one of the ingredients in the stew that produced “amanuensis” in my comment was my earlier mulling over the name of POLITICO’s reporter.  I don’t whether to apologize or to say thank you, I mean no offense and I am grateful for the word choice coming to me.  I think my larger reaction is to be interested in how things seem to ebb and flow (or maybe go up and down, surfacing and descending, like bubbles in boiling water) and mix within the mind.

Visigothic widows

March 15, 2015

I am pretty sure I’ve mentioned my old project about Visigothic widows and succession to the Visigothic throne.  When I was doing research on that, I couldn’t help but notice in legal texts like the Theodosian Code how children of first marriages were put in jeopardy as to their inheritances by the remarriage and subsequent children of a parent.

I got somehow involved recently in a colloquy online about divorce of wealthy parents, and I made reference to this issue.  So in keeping with the initial premise of this blog, this post is to spell out a little further what I meant.  To spell it out even further than what I’ve written would require me to get that part of my brain out of mothballs and then get up to speed on the subject again.

Compare and contrast

March 17, 2014

I made a quip the other day in a reply to what I think was somebody complimenting my ability to distinguish different situations accurately according to what makes them the same or different.  I said something to the effect that sometimes having been trained to think like a lawyer comes in handy.

In law school students learn to distinguish a case from precedents and to try to harmonize seemingly disparate cases.  I think it is probably just a more intensive form of “compare and contrast,” which I think we all learn to do at some level.

It’s not as simplistic as dualism — in which there are only two categories.  With compare & contrast there can be many categories and gradations, there can be a continuum, there can be multiple axes and dimensions along which things are evaluated.

Compare & contrast I think is one skill involved in finding patterns.  It is probably related to metaphorical thinking, as it involves the use of analogies often.  Maybe it’s a bridge between dualism and unitary thinking, I don’t know, but I have thought that my learning to think like a lawyer, in the Anglo-American tradition and Roman law traditions, is not irrelevant to where I’ve ended up, although I think my first choice was learning such techniques through the study of Jewish law.

Consent

January 27, 2013

I remember, after hearing about Todd Akin’s claims about “legitimate” rape, being surprised that the issues I explored in an article on Roman law and culture were actually not quite as obsolete as I had thought when I wrote the piece about twenty years ago.  The article is about the validity of coerced consent in Roman law, how the Augustan moral legislation made a distinction between forced sex that was degrading and consensual sex that was degrading, relevant.  Then even more recently I found yet another modern analog to a consent issue I had touched on — constructive consent, as opposed to freely given consent.  This was raised in a case that has been in the news, a case involving paternal consent to an adoption.  Surprises me that we don’t gain a better take on consent, that we seem to reinvent the same conceptual wheels and ride them into the same pitfalls.

Sister Maria and detours and phases

July 19, 2012

The Sister Maria I have in mind is the main character in Richard Shindell’s song “Transit,” which I know I’ve mentioned here before.  This nun is on her way to her calling, and she ends up having to change a tire on her van before she can get to the main event.  The song starts off with the very clever and moves into the extremely fantastical and finally ends up in the very moving.

Richard Rohr writes about two halves of our lives, and in my own I’ve noticed phases.  (I maybe should note that while I finished The Naked Now, I’ve only read a small part of his Falling Upward,about the different halves of our lives.)

For me, the image of Sister Maria changing that tire resonates with a phase in my life that corresponds roughly with my involvement with legal history.  That “phase” includes over ten years during which I didn’t work in the field at all but was home with kids.  It felt, in retrospect, like two forays (it took two tries) into some old unfinished business, like I went back twice to beard an old lion in his den and resolve an old karmic problem.  The unresolved problem had made progress impossible, as if, when people tried, they slipped into an unseen sink hole.  In my own life, I think it meant that what I might have done in my twenties as Plan A didn’t come together.

The good news is that I resolved the problem.  It was complicated and complex.  During it I experienced a spiritual life that in retrospect was probably pretty adventuresome.  It also blew a pretty large crater in my life.

Having done all that, I think I sort of got back into the van, like Sister Maria in Richard Shindell’s song, and proceeded on to the main event.  I think I’ve been in some sort of transitional phase, doing that proceeding, for a while.  It feels like when you realize you’re done doing the research for a paper because you now find yourself reading the same stuff over and over again in new sources.

I don’t know exactly what this new phase entails.

My marriage to Willy was wrapped up in the resolving-the-old-karmic-problem phase of my life.  That second go-round within that phase came after his death and, I think, needed to be done alone.

As I said, I don’t know exactly what this new phase entails.  Gita suggested that I have more leeway at this time of my life.  That certainly feels like that’s the case in some ways, although in other ways I feel constrained.  We’ll see.

Mourning customs

June 10, 2012

At a monthly meeting last week where I volunteer (at a visiting nurse and hospice agency) we were given some hand-outs, and one of them was about customs for different religious and ethnic groups surrounding terminal illness and death.

I read it through with a view to patients and their families, but I was also struck by how my template for mourning seemed to match best with what was described under “Portugal,” at least the pull if not the implementation:  “The traditional widow is expected to remain unmarried and to wear black clothing for the rest of her life.  She visits the grave frequently and has a picture of the deceased spouse evident in the home.”

I’ve had the urge towards a contemplative spiritual life since becoming a widow, and if I subscribed to a set of beliefs that coincided with a religion that had  convents, I would be tempted to try to enter one.  The black clothing thing I have struggled against — I did manage to get out of black and into multi-hued drab, and if I make a concerted effort I can do colorful from time to time.  The grave thing has worn off over time, and when I got negative feedback from a guest about (still) having a wedding picture in the foyer, I replaced it with a family photo, until I realized a couple of years later how dated even that photo had become and I put it elsewhere in the house.

I also became interested again, a couple of years after Willy’s death, in my Visigothic Widows research from long ago, especially in a law code provision about widows and support through property relinquished upon remarriage.

I was wondering why I might tend in this direction and I was staring out my front door thinking it over, and it suddenly occurred to me to wonder whether I had picked up something from the folks across the street — a multi-generation family from Portugal.  Who knows …

Church Latin translations

November 28, 2011

I am wondering whether the current contretemps over the new Vatican translation of the Catholic mass needs a wider context to be understood better.

My last paying job was to edit somebody’s translation, from the Latin, of medieval church court records in marriage cases for a book on medieval marriage.  And one of my frequent reactions was, “Yes, but is this English?  colloquial English? English that is not too distracting in its usage?”  And some of the time Charlie changed the wording and sometimes he decided to keep it the way he had translated it originally (which he attributed to his “stubbornness”).  I didn’t much care which way he decided, it was his book, I only felt obliged to bring up this stuff that I found jarring (we agreed pretty easily on the other stuff, the stuff that was less stylistic and more objectively in need of a little editing), and I think he enjoyed both using what I thought were anachronisms and uncommon phrasings, and my reaction to his usage.  But he also said since I was one of the twenty-five or so people who would possibly be interested in the book, he wanted to know what I thought, and he knew I came to it through classical Latin, not a Church context (much to his disappointment).  It seemed to be a friendly enough exchange, and his acknowledgments I think reflect that, even if they don’t accurately reflect the structure of my assistance to him (an issue which is unfortunately in keeping with my previous experience of our relationship, although I can thank Charlie for by his behavior leaving me open to other callings).

Anyway, this Latin mass translation situation indicates to me that Charlie’s translation style may not have been idiosyncratic to him, that there may be a proud tradition within certain circles of the Church of using what sound to outsiders like peculiar translation fashions (there’s a wonderful essay somewhere on fashion and idiosyncrasy in scholarship).  Maybe indeed a taste for these fashions is an important currency for belonging, within the Church, a kind factor for separating out groups of members within the larger group.  I don’t know.  But my experience is too close a parallel not to be relevant, I think, to understanding the current, wider issue of controversy regarding the mass translation.

Codes

September 24, 2011

My Visigothic Widows project was going to involve a lot of work with (Roman, barbarian, etc.) law codes.  Much to Dr. Gross’s dismay, I never pursued that project beyond some initial stages.

It’s funny, that as a legal historian (as in, historian of things legal, not an allusion to some sort of licensing procedure for historians), I was using the codes to try to see beyond them and into something closer to actual social practice.  For example, I could juxtapose various provisions and then deduce from those an attitude about how a widow was viewed as relating to her deceased husband’s family, for example, or about the vulnerability of children from first marriages to subsequent ones.  A big drawback to using codes for social history, and not just for a narrow subset of intellectual history, is how unclear it usually is how much they are aspirational, normative, descriptive, or reflective of much other than lawyers’ thinking.

So, when people want to embrace codes as the best way to organize community behavior, the legal historian in me is skeptical that codes capture a society’s actual practice.  But I can see how they can be helpful in delineating broad outlines of a group’s thoughts about how it might operate.  And understanding such a code might also give its community members a frame of reference, and even a floor, for their own understanding of what they will do in their private lives.  I can also see how for people who have trouble developing what we now seem to label “empathy” and “intuition,” relying on codes can be a necessary and helpful accommodation.  Or how they could be necessary during a certain developmental stage for everybody.  But I don’t see glorifying them, because I don’t think rigid adherence to codes is what we’re striving for — maybe they are like the forms we use into which concrete is poured but are later removed, or rather, like the chicken-wire forms beneath the plaster sculptures I used to make years ago, or like the sketch beneath the painting, the rules of language we modify in poetry —  some kind of template we ultimately move beyond.

Maybe I need to understand better why a person more enamored of codes than I finds them so helpful, and why they are loathe to try to delve beyond them.  I could imagine it could be due to a lack of faith that an individual human being can do better than a group, or that a particular person could be sufficiently detached, or that oneself has the wherewithal to do the delving.  I don’t know, but I do know that I have the urge myself to delve.

Past lives

September 8, 2011

To give a fuller context to my previous post, in which I mentioned my trouble mustering the desire to learn content in a particular area of study, I did used to do that, though it seems as distant as a past life.  In case anybody’s curious, there’s a paper of mine in a volume succinctly titled, Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, edited by Angeliki Laiou.  As I recall, Angeliki and I nicknamed the seminar we co-taught at Dumbarton Oaks, out of which this volume arose, “Sex and Violence.”  I wrote on the validity of coerced consent in Roman law — I called it, “Livy’s Lucretia and the Validity of Coerced Consent in Roman Law,” since I began by puzzling over why Livy wrote his version of the myth of Lucretia the way he did and what the term stuprum really meant.  Sometimes I think we might do well to revive the concept, or, rather, having a name for the concept, of sex in which one partner uses the other.