Overview
Examining how Dante probes the limits of the law in this juridical otherworld, Steinberg argues that exceptions were vital to the medieval legal order and that Dante’s otherworld represents an ideal “system of exception.” In the real world, Dante saw this system as increasingly threatened by the dual crises of church and empire: the abuses and overreaching of the popes and the absence of an effective Holy Roman Emperor. Steinberg shows that Dante’s imagination of the afterlife seeks to address this gap between the universal validity of Roman law and the lack of a sovereign power to enforce it. Exploring the institutional role of disgrace, the entwined phenomena of judicial discretion and artistic freedom, medieval ideas about privilege and immunity, and the place of judgment in the poem, this cogently argued book brings to life Dante’s sense of justice.
Product Details
| ISBN-13: | 9780226071121 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 12/22/2013 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 256 |
| File size: | 976 KB |
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DANTE AND THE LIMITS OF THE LAW
By Justin Steinberg
THE UNIVERSITY OF CHICAGO PRESS
Copyright © 2013 The University of ChicagoAll rights reserved.
ISBN: 978-0-226-07109-1
CHAPTER 1
Beneath the Law
Infamia
Of the limits to the law discussed in this book, infamia was the one that affected Dante most deeply. When he was convicted in absentia of graft and sentenced to perpetual exile, he suffered a loss in official status that would have placed him "beneath" the protections of the city statutes. In addition to this legal form of infamy, fama in the sense of common knowledge was increasingly considered juridically relevant in Dante's time. According to contemporary records, the common "fama" was responsible for prompting the initial investigation into Dante's crimes.
In this chapter I will examine Dante's continued engagement with fame and infamy, from the early exilic work Convivio to the central cantos of Paradiso. For Dante, fame and infamy operate within the politics of reputation—of one's self and one's texts. They also play key roles in the representation and reproduction of social reality. In crucial passages in his work, Dante seeks to expose the mechanisms by which fama and infamia perpetuate a seemingly self-evident image of society. The famous realism of Dante's Commedia, for instance, assumes a more dialectical and polemical shade when viewed in light of the contemporary legal context, especially in terms of the growing reliance of lawyers and judges on fama in constructing a plausible likeness of an event. His mimesis is not only a diachronic development of an artistic trend, but also a synchronic challenge to the ways in which legal authorities harnessed the social imaginary of "what everyone knows." In lieu of this naturalizing picture, Dante celebrates the estranging detail.
Exile and Disgrace
In the fall of 1301, the government of Florence dispatched Dante Alighieri and two other envoys to the papal court in Rome. The mission capped a period of intense political activity for Dante, including a stint the preceding year as one of the six priors of the city (the highest office in the Florentine government). His diplomatic charge was to block, stave off, or at least mitigate the intervention of the French prince, Charles of Valois, in the factional struggle between the White and Black Guelphs. Charles had been sent as a mediator on behalf of Pope Boniface VIII.
When he was a prior, Dante had approved the expulsion of the most violent leaders of both the White and Black Guelphs. His political allegiance, however, was to the former—or perhaps more accurately, was set against the Blacks. Under the leadership of the arrogant and violent nobleman Corso Donati, the Black party was allied with Pope Boniface and his French troops. In the decisions he took as prior and, immediately after his term, in local assemblies, Dante had forcefully rejected the pope's claims of jurisdiction over Florentine affairs.
Dante's mission was unsuccessful; Boniface apparently had little interest in a truce. In early November 1301, Charles entered Florence with five hundred troops, nominally as a peacemaker. He was accompanied, however, by Corso Donati and other exiled Blacks who, in addition to committing outright acts of violence, immediately removed the current priors and installed priors of their own choosing. In this tumultuous political climate, Dante was accused of political corruption along with four other prominent Whites. Since he refused to return from his ambassadorship to answer these charges, he was heavily fined, exiled, and eventually sentenced to death should he set foot in Florence again. He never did.
We tend to think of Dante exclusively as a political exile. But he was also a convicted criminal who bore the disgrace of a guilty verdict. The Florentine podestà had sentenced him in a regular tribunal and through valid procedures—not as an enemy of the state, but as a corrupt public official. After failing to appear in court for charges of fraud, extortion, and other crimes connected to his term as prior of the city, Dante was convicted in absentia on January 27, 1302. Sentenced to two years of exile, he was also fined an exorbitant five thousand florins, ordered to repay any illicit gains within three days or risk confiscation of his property, and banned from public office for life. For refusing to heed these penalties and other summonses, in March of 1302 he was ultimately sentenced, along with fourteen other former Guelph officials, to death by fire. In 1311, an amnesty offered to a number of exiled White Guelphs expressly denied pardon to Dante and his sons. In 1315, a final condemnation designated Dante as a Ghibelline insurgent "rebel," who was to be beheaded if he came within the commune's purview.
Given the severity of these punishments, it is easy to understand the animosity and sense of betrayal that suffuses Dante's writing. In early post-exilic works such as De vulgari eloquentia, for instance, he bitterly evokes the conditions of his banishment while ridiculing Florentine localism. In the Latin epistles, he tellingly identifies himself as "Dante Alighieri, a Florentine, and an undeserving exile." Most significantly, in the Commedia, Dante draws upon his personal experience to construct a critique of human judgment vis-a-vis God's judgment. Many of the damned he places in Hell belonged to Florence's most respected and illustrious citizenry, the elite members of the populace who had originally judged him. The poet reverses the earthly hierarchy of judges and judged by revealing the former's adherence to a moral universe driven by power and money, which he often represented as the infiltration of the Church in secular politics and its collusion with the emergent French monarchy. To cite just one example of Dante's textual revenge against his judges: In the Heaven of Mars, Cacciaguida decries "lo puzzo / del villan d'Aguglion" (the stink of the peasant from Aguglione; Par. 16.55–56), a reference to the jurist Baldo d'Aguglione, who had authored the amnesty of 1311 that excluded Dante and his sons. With marked symmetry, Dante accuses Baldo of "barattare" (committing graft; 57), the same crime with which the poet was charged on earth.
Despite the trauma of his banishment, there was apparently at least one thing worse for Dante than exile: infamy. In the "Letter to a Florentine Friend," written around 1315, Dante refuses a newly proposed amnesty that might let him return to his city. His reason is the ignominy that would follow his return: he refuses to be counted among the infamous. As he states in the letter, he will neither pay a settlement to those who unjustly accused him nor suffer, as a common criminal, the "stigma of oblation."? Unless he can return without diminishing "fame Dantisque honori" (Dante's fame and honor)—the only time in the Epistles Dante names himself—the poet will find his bread, and contemplate the stars and universal truths, elsewhere.
Why did Dante prefer exile to a tarnished reputation? Certainly, shame punishments had profound ramifications in a "face-to-face" society such as medieval Florence, and affected one's social, political, and economic status. But his reluctance to accept the proposed amnesty was not solely based on social pride. After fifteen years of exile, he had established himself as a "preacher of justice" by explicitly distinguishing between truth and appearance, using his own undeserved punishment as a primary example. The dramas of judgment in the Commedia continuously call into question the institutional mechanisms of infamy and the instability of its juridical foundation. If Dante were to accept a settlement and submit to these degrading rituals, he would implicitly acknowledge and ratify the laws of public opinion and, in doing so, delegitimize the mission of his life's work. The cost for Dante of reintegration under these terms would be to discount the aesthetic, epistemological, and even metaphysical basis of his masterpiece.
Forms of Infamy
Dante's reluctance becomes more comprehensible when we consider the special legal repercussions of medieval infamy. Legal writers of the period distinguished primarily between two types of infamy: infamia iuris (infamy of law) and infamia facti (infamy of fact). The sources of infamia iuris were law and legal procedures. Infamia facti referred to social infamy deriving from the opinion of the community.
Glossators of Justininian's Digest defined infamia iuris as a privation or diminution of fama—fama signifying, in this usage, positive reputation or civic honor (existimatio). As a legal sanction incurred for a transgressive act, this type of infamy damaged a culprit's legal capacity, disqualifying him or her from specific rights. Above all, it targeted one's juridical credibility (fides). Individuals labeled by public authorities as infamous lost the right to sue for damages; to accuse a non-infamous citizen of a crime; to act as a representative or advocate for others; to testify; and even, in the most extreme cases, to draft a valid last will.
Civil lawyers organized the sources of infamy cited in the Digest (esp. Dig. 3.1–2) into three basic subcategories. First, infamy was incurred per sententiam (by sentence) when a culprit became infamous after conviction and sentencing in a regular trial. Second, infamy was incurred ipso iure (by law) when a culprit was considered infamous from the very moment of having committed a crime, even in the absence of a regular trial and sentence. Debased professions and scandalous acts violating the sexual and moral norms of the community, such as adultery and sodomy, automatically defamed "by law." Third, infamy ex genere poenae (from punishment) resulted from submission to degrading corporal punishments, such as public scourging, exile, imprisonment, and forced labor. These punishments marked the culprit with infamy even when conviction for the crime did not in itself normally defame.
The civil lawyers responsible for creating this tripartite schema (per sententiam, ipso iure, and ex genere poenae) strove to construe infamy as a predominantly legal phenomenon and to distinguish this juridical form from its looser counterpart, infamia facti. For the most part, civilists limited their discussions of infamia facti to those few cases treated explicitly in the Corpus iuris civilis, such as when a son was disgraced by his father in his will. But the social origins of disgrace were never far from the surface. For example, many of the categories of undesirable persons defamed by infamia ipso iure were the same ones excluded by infamia facti from testifying in court. Further, civil lawyers acknowledged the porous border between social and legal disgrace when they used terms such as notare (to mark) and macula (blemish) in defining infamy. Visible to the entire community, the blemish of infamy depended as much on public shame as on legal censor. For this reason, it would often remain even after a punishment was rescinded or a sentence repealed, like the scar from a wound.
In canon law, on the other hand, the applications of infamia facti were more expansive. Church authorities could not ignore the scandal created when members of the clergy openly engaged in illicit behavior. In the wake of the Gregorian reforms, canon lawyers elaborated a doctrine affirming the juridical relevance of what "the people of a certain city ... commonly consider, judge, or perceive" about a person or event. In this usage, infamia facti, mala fama, or often simply fama referred to the common hearsay about a crime, and was considered a verifiable form of public knowledge, situated between self-evident fact and untenable rumor. Social infamy could be invoked to initiate a criminal investigation, justify the torture of a suspect, and even to facilitate a conviction when direct evidence was otherwise lacking.
The legal use of infamia facti gained prominence in the decretals of Innocent III (1160–1216), and was sanctioned by the Fourth Lateran Council in 1215. For the reformist pope, a proactive approach to infamy was necessary to control the "clamor" about a crime. Innocent's concern was with the damage that manifest transgressive behavior on the part of the clergy could wreak on his Church's credibility. By incorporating and codifying fama within canon law, Innocent and his lawyers attempted to head off the destabilizing effects of ill fame, mediating the reality depicted by the Church and the one observed daily by its parishioners. In the ritual of purgatio canonica (canonical purgation), for example, the Church authorities attempted to reestablish their representation of the world by compelling the defamed priest to publicly swear his innocence. What counted in this ritual was not legal truth—since to be eligible for purgation the charges against the priest needed to be already dismissed—but the social fact of his purity. By the same logic, if no infamy arose from an offense, Innocent found that there should be no prosecution, expanding on the idea that "the Church does not judge hidden offenses."
While Innocent III used fama to turn the machinations of justice inward, to purge the Church leadership of any disgraces, jurists and judges working in communal Italy turned it outward, to more effectively prosecute local subjects and punish criminals. The "popolo" governments of late medieval Italy, ruled primarily by elected members of various guilds, drew much of their fragile authority from the public enforcement of justice. As a result, any undiscovered crime and any unpunished criminal could be perceived as a threat to their legitimacy—a notion captured in the oft-quoted maxim: "It is in the interest of the republic that no crimes go unpunished."
Infamia facti was a crucial instrument in the emergence of a public penal order because of the role it played in the inquisitorial procedure, a new method of prosecuting crime. According to Roman law, there was no case without an accuser; public authorities could not initiate an investigation of a crime unless a victim came forth. In this transactional vision of justice, the primary role of institutions was to mediate private conflict. In the inquisitorial procedure (not to be confused with its radicalization in the later Inquisition of Heretical Pravity), however, judges investigated crimes on their own initiative, as part of the normal functions of their office. Originally sanctioned by Innocent to combat the potential scandal of wayward clerics, it quickly gained popularity with secular judges. Albertus Gandinus, a contemporary of Dante's and an active judge in various Italian cities, promoted the streamlined inquisitorial method as the most efficient way to get to the truth of a crime: "Since it does not require many formalities, guilt can be established more easily."
The legality of this innovative procedure was maintained through the fiction that fama itself could accuse a defendant. As Innocent III put it: "It is not so much that the judge is himself the accuser; rather it is as if fama were accusing and clamor denouncing." Standing in for the voice of the injured community, "fama deferente" (or "fama denunciante") quickly became an established feature in legal proceedings. City judges could use these formulations to inquire about a crime or charge a defendant even when no complaint had been lodged. Simplifying the process of legal discovery was not the only effect infamia facti had on the legal system. It also lessened the burden on whoever chose to "denounce" a crime: in existing accusatorial procedure, the complainant had been responsible for providing evidence and was normally bound to suffer a penalty, the pena talionis, if the case ended in acquittal. Infamia facti eliminated that impediment to prosecution.
Both infamia facti and infamia iuris touched Dante's life directly. As revealed in the transcription of his sentence, his crimes were denounced by public report ("fama publica referente") and he was thereafter investigated according to inquisitorial procedure ("per inquisitionem"). His ban from holding public office was a classic defamatory punishment, and his perennial exile could also be construed as infamy ex genere poenae. Yet the primary source of his legal infamy was the charge itself, baractaria. Although conventionally translated in English as graft, the term referred more generally to the misuse of public funds. As with other crimes harming Florence's bene commune (common good), baractaria was considered legally defamatory not only in doctrine but also in practice. Its severity can be measured by the fact that, as part of his sentence, Dante's name was to be recorded in the city statutes in order to underscore and perpetuate his infamy in the collective memory ("ut perpetua fiat memoria").
(Continues...)
Excerpted from DANTE AND THE LIMITS OF THE LAW by Justin Steinberg. Copyright © 2013 The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS.
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Table of Contents
AcknowledgmentsIntroduction
1 Beneath the Law: Infamia
2 Beyond the Law: Arbitrium
3 Above the Law: Privilegium
4 Beside the Law: Pactum
Conclusion
Notes
Bibliography
Index