Gregory the Great. Register of Epistles (590-604).

September 18, 2007

Generic Book“My writings which I have sent to the peasants cause thou to be read over throughout all the estates, that they may know in what points to defend themselves, under our authority, against acts of wrong; and let either the originals or copies be given to them. See that thou observe everything without abatement: for, with regard to what I have written to thee for abservance of justice, I am absolved; and, if thou art negligent, thou art guilty.”

Pope Gregory the Great wrote a lot of letters, and well, I read them all. These letters fascinating look into the medieval world through the eyes of a Pope. They are also packed full legal tidbits. The letters often act as the Pope’s conveyance of his official rulings on a number of different matters. He, as the Pope, was the judge on numerous canon law activities.

As these are letters (and owing to the difficulties of research law this old), instead af searching out a specific legal theme that runs through them all, I am just going to list the highlights. Of course, I’m positive I’ve missed some. Enjoy.

BOOK I
IX: Gregory sends Peter the Subdeacon to investigate a property dispute in which a group of monks are having their land encroached upon by a farm owned by the church. Gregory rules that if the land has been in their possession for 40 years they are the rightful owners even if it doesn’t benefit the church. If the boundary has been disputed in the last 40 years though then Peter is to appoint arbiters to resolve the problem.

X: Gregory responds to a petition from a group of Jews who claim to have license to hold under the churches authority a synagogue on the grounds of church property. He rules that if the voices from the synagogue can be heard in the church. He commands that if they are expelled that they should be given a new place of worship and one that will keep any complaint from being levied. He notes that the Jews “live under the protection of Roman laws” and therefore have the right to worship. He also notes though that the Jews should not possess Christian slaves.

XIX: Gregory overrules the ruling of a Synod that condemned Archdeacon Honoratus. He does this on the ground that the ruling ofthe synod was biased, stating that “no one who is innocent should be deposed from the ministry of his order unjustly.” He commands that the Archdeacon be restored and that if there is still a problem the Archdeacon should come and present himself to Gregory.

XXV: Gregory first discusses, in this letter to numerous patriarchs, the qualities of a ruler: “He orders well the authority he has recieved who has both learnt to maintain it and keep it in check.” This is a fairly good statement of what good law is, it creates order but does not get out of hand. He then says that “the virtue of humility ought to be so maintained that the rights of government be not relaxed.” He means that the ruler should not be so humble as to relax his own authority and lose the respect of his subordinates. At the end of the letter Gregory upholds the validity of four law creating councils that happened before: the Nicene, the Constatinople, the first Ephesine, and the Chalcedon.

XXXIII: Gregory calls for a synod to determine the guilt of a Blandus who has been held for some time by Romanus Patrician and Exarch of Italy. He asks for his release if he is not being held for a crime.

XXXIV: Gregory declares that “according to the ordinance of the law, it is not lawful to walk on the Sabbath.”

XXXVI: He writes to Peter the Subdeacon that the guidelines Gregory gave him must be “diligently perused” so as to keep Bishops from entangling themselves in secular causes except to the extent that they need to assist the poor. He then notes that their have been reports that in the past that property has been taken by the church without judicial process. He request Peter upon discovery of such a matter to make restoration to a claimant. He also requests that Peter investigate reports of people that have been enslaved illegally without trial. He wants these slave’s possessors dispossessed “by regular process of law.” He also mentions that any decree made under pain is anathema. Early evidence of the illegality of torture.

XLII: Gregory declares that Monks should not migrate from monastary to monastary, they should not hold property, should not have wives, and they should not, if they were once priests, return to being a priest.

XLIII: Gregory is rejoicing at the conversion of King Richard to Catholicism and to a “citizen of the eternal realm.” This comments a bit on the idea of jurisdiction between temporal and divine realms. Or maybe I’m stretching it.

XLIV: He rights to Peter that payment for grain should be in accordance with the Market. He then instructs Peter on collecting of taxes asking him to draw up “Charters o security” which declare what each person is to pay. He also bars the use of “unjust” weights for exacting payments. He rules that relatives of farmers on who live on church property shall have the right to succeed them. Next he decrees that a person who commits a crime shall be the only person punished and not his family as well. This is a long letter in which Gregory also rules on specific cases.

XLVIII: Gregory requests that Theodorus, Duke of Sardinia, send a property dispute to trial so it may be resolved. He also asks Theodorus to look into a will that a person wants to have annulled.

LXII: In this letter he seeks to have a woman saved from the “annoyance of legal proceedings,” but to still submit to a “just judgement.”

BOOK II
VI: Gregory mentions a Demetrius who “has been found to be involved with transactions to such an extent and of such a kind that, if he had recieved judgement without mercy according to the character of his deeds, he would undoubtedly have been condemned to a most hard death by both divine and human laws.”

XIV: The lady Timothea wishes to found and oratory in Ariminum. Gregory lets the local bishop know what must be conveyed to the church in trust for this to be done.

XVIII: Gregory seeks to resolve a dispute between Natalis and Honoratus and while doing so “keep the rule of justice.” The suit involves some finer points of canon law including the use of a pallium, which is a garment granted by the Pope to a church which says something about jurisdiction (I think).

XIX & XX: These two letters follow up on the dispute addressed in XVIII.

XXXIV: Gregory admonishes Maximianus, Bishop of Syracuse to not be so harsh with his punishments when ruling on cases.

XLI: If there is a property dispute between monks and the Church, then the dispute shall be taken up quickly by “selected abbots and other fathers.” A great deal of this letter deals with what an abbot can and con not do under canon law.

XLIX: Gregory sends to trial Januarius, Archbishop for “a mass of complaints . . . against . . . his fraternity.” One of these has to deal with the unjust excommunication of Isidore.

BOOK III
I: Gregory writes to Peterm a subdeacon, about a recent crime of sedition. Gregory asks Peter to punish those that are manifestly guilty. Additionally, he is sending Scholasticus, a judge, there to investigate the matter and bring to trial any others.

V: Here we have a bit of jurisdiction. The Catholic church claims both divine and temporal jurisdiction. Gregory in this letter addresses an instance where a laymen has judged improperly. He says that when judged wrongfully, the decision of the secular judge should be resisted with “moderate authority.” Gregory makes it clear, though, that acting against such judgements “is not to act against the law, but to support law.”

VI: In this letter Gregory acts as an appelate judge. He writes to John, bishop of Prima Justiniana that he has recieved a complaint from Adrian, bishop of Thebae that John had deposed him unjustly. Gregory states that he gives no creedance to such complaints until he reviews the record of the case. He tells John that from the documents he holds, that John “hast investigated almost nothing pertaining to the questions named and assigned” to him. He overrules the lower proceedings. Here’s the catch though he sends a punishment down to John. How many appellate judges would dig on sending punishments down to lower courts.

VII,VIII, IX: He follows up on the previous letter and declares a retrial with a new judge.

XXXVIII: He requests that Libertinus investigate a Jew named Nasas, who has been enslaving Christians. He requests that after the investigation, if this is true that those slaves be freed “according to the injunctions of the laws.”

LVI: This letter addresses a dispute that is ongoing throughout the letters: that of the Pallium. In this letter we find a nice example of the use of precedent wherein Gregory seeks to determine what is just through the examination of historical customs.

LXV: He addresses a Roman law that keeps people in the public administration from holding ecclesiastical office. Old timey Church and State separation. Gregory agress with the implementation of the law. He however with certain provisions of it that keep people from becoming monks, as he thinks that their accounts are easily rendered and their office much different from that of a priest.

LXVI: He follows up on the previous letter to have Theodorus the Physician to lobby the Emperor to change the law.

BOOK IV
IX: Gregory counsels Januarius on the proper way to administer his jurisdiction. This seems like an executive order of sorts.

XXI: Again we learn that Jews are to be forbidden from holding Christian slaves.

XXVI: He addresses here a situation in which priest are being “oppressed by lay judges.”

BOOK V
XVIII: This letter and numerous others following it begin Gregory’ account of the dispute of the Universal Bishop in which the Bishop of Constantinople declared himself the head of the Church. Gregory notes that this honor was actually extended to the Roman Bishop (the Pope) by the council of Chalcedon, but was declined, so as to keep the three bishops in equal power. These statements are still used today by many evangelical protestants to dispute the Popes standing. It is fascinating reading if you are into that sort of thing.

XX: Universal Bishop.

XXI: Universal Bishop.

XXXVI: Gregory in this letter discusses issues relating to Agiluph, King of the Lombards and his unwillingness to conclude a general peace. Agiluph will not consent to arbitration unless all parties are present, because “many acts of violence were committed in his regions during the time of peace.” Agiluph has stated that he will make satisfaction for any wrongs committed by his side.

XL: Gregory writes to Mauricius Agustus. Apparently the peace made with the Lombards was violated and the Emperor accuses Gregory of some sort of crime. He uses ecclesiastical history to argue his case citing a case wherein bills of accusations had been presented to the Prince of Constantinople against some bishops. The Prince burned the bills stating that it was not fit for the temporal power to judge the bishops.

XLI: Gregory is writing about pagans in Sardinia who are sacrificing to idols. He comments that many of them bribe judges to get a license to do this.

XLIII: Universal Bishop.

LIII: Gregory discusses the simonical heresy and the unlawfulness of ordaining ministers in exchange for bribes.

LIV-LV: He grants “according to ancient custom” Virgilius, Bishop of Arelate, “vicariate jurisdiction” in the dominion of King Childebert. He will rule on all cases in the region.

BOOK VI
I: Gregory settles a dispute over a will and a bequest to the Church.

XII: Gregory executes a will.In this he frees to slaves:”it is a salutatory deed if men whom nature originally produced free, and whom the law of the nations has subjected to the yoke of slavery, be restored by the benefit of manumission to the liberty in which they were born.” One of these slaves recieves property with the annexed “law and condition” that if the recipient dies without legitimate children (those “born in lawful wedlock”) the property will revert to the Holy Roman Church. Gregory sums up with a nice little legal quote: “For the rule of justice and reason suggests that one who desires his own orders to be observed by his successors should undoubtedly keep the will and ordinances of his predecessor.

XV: He rules on an appeal over heresy finding that the judges were motivated only by injuring the accused instea of “justly.”

XVI: Writing about the case in the previous letter, Gregory discusses the evidence that was presented at trial that the judges ignored.

XXIV: Gregory asserts Papal jurisdiction in a case between Marinianus’ Church and the Abbot Claudius after “people have cried out that it is contrary to the laws and canons that the cause” be decided in Rome. He states that the interests of the Abbot are not served by having the proceedings there.

LXVI: Gregory is addressing a case of heresy and he makes an observation about a defense: “. . . things done under compulsion by no means fall under the censure of the canons, and they are rightly accounted to be of no weight (since he himself invalidates them who compels what is unjust to be confessed and done) . . .”

BOOK VII
XXXVIII: Slavery law: “The ordinances both of the sacred canons and of the laws allow the utensils of the Church to be sold for the redemption of captives.”

XLII: Gregory notes a canon law that forbids a church to be without a bishop for more than three months.

BOOK VIII
III: Gregory has rcieved a complaint from a son that his father bequethed some things to a parish that did not belong to the father. Gregory notes the “secular law” that the son must pay for these items to redeem them. He tells Donus, Bishop of Messana who recieved the items, that it should be decided by “the law of God and not the world.”

V: Gregory transmits to his bishops a Roman law forbidding people with public liabilities from taking any ecclesiastical office or becoming a monk.

VI: Gregory seeks an extradition of sorts of a criminal who has taken refuge in another church.

XX: Gregory request a “legal” inquiry into the status of a woman.

XXI: Gregory requests an inquiry into a freed Chritsian slave whom others are trying to enslave again.

Gregory the Great

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Rushdie, Salman. Shalimar the Clown (2005)

September 13, 2007

Shalimar the Clown

“Freedom is not a tea party, India. Freedom is a war.”

Shalimar the Clown is another deeply metaphorical tragedy from the pen of Salman Rushdie. He returns to his old theme of partitioning and fragmentation not only geographical, but also personal. In this novel, he tells the story of Kashmir through Kashmiris as well as through foriegn interlopers and a strangers to the land. I am going to avoid plot summary here as it would only get convoluded, and jump right into the legal aspects.

Rushdie’s use of magical realism extends to his manifestations of the law in his novels. In Shalimar the Clown Rushdie goes a step or two further than he did in Midnight’s Children. He takes us outside the minds eye of a single person, and into numerous versions of the same story. These different characters also symbolize the numerous regions that these views and actions originate. This illustrates that the partioning that we understand as legal boundaries also has an effect upon his characters in creating identities that must engage with the legal landscape around them (which is created by the boundaries). All the characters have mixed identities, a fracturing which is enhanced by the legal implications of the borders. Enhancing these ideas and themes is Rushdie’s use of fractured storytelling.

Max Ophuls, in the story, is a European that was transplanted to the United States and later became the US Abassador to India (he is also a lawyer). After that he became a Ambassador to terrorists. He flew around clandestinely supporting movements on behalf of the US government. It is he who tells us the “freedom is war,” invoking the idea that one must struggle in order to have freedom, if it is given then it is not freedom. He also is representative of the Western World’s post World War II architecture of world order:

He tried to believe that the global structures he had helped to build, the pathways of influence, money and power, the multinational associations, the treaty organizations, the frameworks of cooperation and law whose purpose had been to deal with hot war turned cold, would still function in th future that lay beyond what he could forsee.

Max forsaw and helped create the structure of world peace and security as we know it. In the Story, it is his musing on International Relations that helps to create the United Nations. The UN adopts Western ideals about international law, and as it gained power these ideals were carried worldwide.

Rushdie is not entirely damning of the idea that the West created and forced its vision of world order on everybody else, though. By making Max a French Jewish survivor of WWII, he shows us what the Western world feared, and the gravity of the battle just fought. Its vision of order was indeed one sided, but it also meant well in that it was trying to avoid another event as catastrophic as WWII. The West’s identity was fragmented due to the nationalism that results from war. Identity became fluid in the west as Europe’s borders became fluid. This is represented by Max’s work during WW II forging passports an papers to get people out of the battle zone. The West’s vision of order sought to reaffirm and resolidify those identities.

Max represents the Western force that acted on the Eastern world. The Eastern world is represented by Boonyi and Shalimar. The two live in a small village in Kashmir, which boasts a mixed population of both Hindus and Muslims. Boonyi is Hindu and Shalimar is Muslim. They fall in love and despite the religious differences they are allowed to be married. In Kashmir as this story unfolds the idea of partition is beginning to occur. As both Pakistan and India make claims on Kashmir the people of Kashmir are forced to choose a political side. Initially the claim seems to be “Kashmir for the Kasmiri’s,” but as the violence escalates power begins to overtake the people, who are forced to choose political sides. The political division runs down religious lines with Muslims wanting to join the Muslim state of Pakistan and Hindu’s wanting to join the more appealling secular state of India.

That the law in this situation becomes magically real can be found in a a passage in which Rushdie explores the legal pposition of Colonel Kachhwaha of the Indian Army: “[t]he legal stance of the Indian military presence in Kashmir had the full support of the population, and to say otherwise was to break the law.” Kachhwaha makes it clear the breaking the law and being criminal are the same thing. What we see from this is that the law has magically created a situation in which full support of the population is given. The right to dissent is undermined , by the idea of a thought crime. The result is an illusion, but one that is still none the less a fact.

Later, Kachhwaha realizes that the Kashmiris on the Indian side of the partition are ungrateful for the war, that they still sought self determination. On that side, only Kashmiris are allowed to own land, but on the far side anyone can the land was being populated by non-Kashmiris. Kachhwaha sees this as the answer “the valley should be emptied of all these people and refilled with others.” Kachhwaha’s sentiments demonstrate the meaning of identity under the law. On the Pakistani side Kashmiri meant land ownership in Kashmir, an the Indian side it meant something deeper and more historical. Kachhwaha endorses a change in the law to redefine the identy of the people in Kashmir in order to garner support needed for his conquest, a use of the law for political ends and not necessarily justice.

The severe problems in Kashmir arguably could be traced back the West’s disengagement from its colonies in the region, which left a semblence of the Western order, but one that was having trouble adapting to Eastern ideals. It is not fair to say that these former colonies were completely abandoned, the West still sought to control them. Thus Max Ophuls enters the story as the US Ambassador to India. He is sent in the midst of the US trying to exert its power in this part of the world, and India is a problematic area for them. The US is cozy with Pakistan at the time and willing to turn a blind eye on Sino-Pakistan relations. This of course causes tension with India, who is at war with Pakistan. Thus Max is sent to give “those Indian gentlemen . . . a good old American spanking.” Max symbolizes the West’s attempt to re-exert its power and values on the region.

Max attempts to resolve the problems between the two countries by attempting to get them to engage in International Cooperation. At the same time though he has inserted himself between the two. As represented in his seduction of Boonyi and her estrangement from Shalimar. He negotiates a “joint statement of accord” between himself and his new mistress, and she leaves her village, her husband, and more importantly her identity. When Max no longer needs her she is abandoned, pregnant with his child.

Boonyi returns to her village, but finds that she has been declared dead in and official and legal sense. She has been made a ghost by the law as “the dead have no rights” and no property. This idea plays directly into Rushdie’s commentary on identity. The law can change ones identity quite easily, i.e. from Kashmiri to Indian to Pakistani. This identity changed again for Kashmiri’s when Kashmir was declared a “disturbed area.” The criminal code gave immunity to public servants (including soldiers) for crimes committed in the line of duty. Furthermore, “in a disturbed area, search warrants were not required, arrest warrants ditto, and shoot-to-kill treatment of suspects was acceptable.” Thus Boonyi’s fear of attempting to come back to life and claim her rights only to be murdered is realized for the whole region. By asserting rights the ghosts that were citizens can be murdered. The criminal procedure was amended to allow torture and jailing without charges (particularly if the person challenged India’s territorial integrity in Kashmir. A presumption of guilt was allowed, and a failure to disprove the presumption would result in the death penalty.

Shalimar, becomes a terrorist and an assasin. his sole goal in life is to Kill Boonyi and Max (or maybe their mataphorical counterparts. In this we can find what I think is the most important message of the book. Effects of these turmoils are felt world wide. Insurgents in Kashmir tap into a network of terrorists who rely on different nations with shifting allegiances for funding and weapons. Max is one of the people that doles out this secret assistance. Shalimar comes to the states to assassinate Max. He lives with Max and understands Max, but Max never understands him. Thus killing Max can only be an external message (i.e. terrorism), because Max will never understand. This is a wonderful metaphor for terrorism in general. Terrorists often insert themselves into a culture in order to carry out their missions. So often though the people that become their victims have no real understanding of what the terrorists complaints are. It is an external message only.

The book ends with two significant items. First, Shalimar is taken into the American Justice system where justice is given. However, Rushdie doesn’t leave it at that. While the American justice system is one of the most highly developed in the world it has its moments where it is “a mirror of everywhere else.” Rushdie points to high profile Los Angeles cases as examples including the gas chamber, Rodney King, and O.J. There is a wonderful bit of lawyering where Shalimar’s Lawyers attempt to use a sorcerer’s defense wherein he argues that Shalimar has been bewitched by India/Kashmira (Max and Boonyi’s daughter). The defense claims that Shalimar was under the belief that sorcery was real and that he was under “extreme vulnerability to external manipulation.” His case however is lost when India/Kashmira testifies that Shalimar also killed her mother. While Shalimar’s case is interesting it isn’t the legal thrust of the book (but is probably worth a more in depth look than I have given here).

The second event of signifigance is that after Shalimar kills off an old ideal (Max), we find that he too is an old ideal. His ideas about identity are just as out moded as Max’s, thus he has to now confront India/Kashmira who represents a new globalized world. One which recognizes its Western legal traditions, but at the same time is willing to embrace new ideas emerging from around the globe. Significantly, Rushdie leaves us at the moment of confrontation and with no resolution.

Salman Rushdie


Hilton, Adrian. The Principality and Power of Europe: Britain and the Emerging Holy Roman Empire (1997).

August 29, 2007

The Principality and Power of Europe
“The Union is a creation of law, and is now an autonomous law-making body in its own right, with full and final authority over its citizens. British national law is now subordinate to European law . . .”

UPDATE: My reviews on this blog are based purely on my impressions of the books that I read. I would hate to mislead anyone, so by all means read Mr. Hilton’s response to this item that is in the comments area to get the full story. Cheers.

Adrian Hilton begins his book about Euroscepticism declaring that he should not called xenophobic or accused of bigotry towards Europeans. He’s right, too, no where in this book does he really say he hates Europeans. Instead the book is all about his fear of Catholics. So bigotry towards Catholics is a better accusation.

Hilton’s book is an attack on the United Kingdom’s integration into the European Union, and (while I don’t have a horse in the race) I agree that the EU is a bad fit for the UK. At the same time Hilton’s argument is terribley flawed in that it is primarily based on arguments about the Church of England and the powers of the Queen. These seem, to me, to be very weak arguments to be making about a liberal and autonomous society such as the UK. He argues that because England is a protestant country, it should stay out of the EU because the EU is essentially a Catholic entity. It makes a great conspiracy theory, but doesn’t hold water. He bases this on Pope John Paul II (the book is a bit dated) support of the EU and on his opposition to the Yalta Agreement which subdivided Europe.

He reaches all the way back to Henry VIII’s split with the Rome to assert that England should be autonomous of the EU. He refers to Henry’s statement “This realm of England is an Empire” as legal grounds for Englands independence. What he is overlooking is the ongoing jurisdictional battles that had been occuring between Popes and temporal Princes. Rome claimed that it had both divine and temporal authority (granted at the Council of Chalcedon) over the leaders of Europe. Henry simple wouldn’t play along anymore (for reasons of divorce), but Rome abandoned the policy of asserting the temporal power that it claimed (although it still claims it), and has continued to so. One of his major critique’s is the Pope’s political persona. For example the Pope can address the UN. He claims that no other religious leader has that right, but he fails to realize that the pope is also a head of state and this is what allows him to address the UN. It is disconcerting that Hilton is worried about the Pope’s abilities as a religious leader, but endorses the English law that keeps the Queen and Prime Minister from being ROman Catholic.

To be honest though, I’m way behind on my posting, and just can’t be bothered to delve deeper into this book. Its got some interesting legal history and a very skewed and dated approach to the European Union. Probably, not the best place to begin your research, but hey, its your research – do as you please.

Adrian Hilton


Rushdie, Salman. Midnight’s Children (1981).

June 6, 2007

Midnight’s Children“Mr. Kemal, who is the thinest man Amina Sinai has ever seen, sets off with his curiously archaic phraseology (derived from his fondness for litigation, as a result of which he has become infected with cadences of the law courts) a kind of chain reaction of farcical panic . . .”

Trying to summarize a book by Salman Rushdie in a small paragraph to start a blog article discussing it is just futile. This is due to the multiple competing topics that one could claim to say one of his books is “about.” Midnight’s Children is no exception and may even be the epitome of his layered and complex storytelling. I will take the overt metaphor from the book though, and make the claim that it is about India, but only with the reservation that this is only one of many themes and in a story about fractured land, fractured people, and fractured plots. In fact this is probably to simple. Thus I could also be very happy claiming that it is about fractures. What I won’t do is attempt to tell you what happens in any detail as it would bog down the legal analysis. Instead I will write from the oh so academic stand point that you the reader have already read the book (and if you haven’t you should) and commence with the legal analysis forthwith.

My reading of the novel is that Rushdie presents the law as a magically real experience that attempts to define and control man but in the end causes postmodernesque fragmentation and fracturing instead. This is a theme that I think can be traced throughout Rushdie’s work, but this is my initial foray into this little project so what I present below is more formative than anything else.

Saleem Sinai is Rushdie’s overt metaphor for the state of India, and was born at the exact moment that India gained independence from Great Britain. This can be seen as an initial jumping off point for Magically Real Law. At this moment India became India again, and not the British Colony of India. The magically real aspect is that this is treated as a birth, but does anything new actually exist, are the people suddenly different? Or instead is it simply that the legal matrix has shifted? Rushdie’s answer, I think is that it is only a legal matrix, which attempts to create a concrete existence for the people.

As is proper, we learn of the birth of India, but we must first look at the history. Rushdie examines Ghandi’s attempt to defeat the British domination with silence, the British counter of the Rowlatt Act (against political agitation), and Martial Law regulations. These are battles that are occuring not so much between peoples as between legal frameworks. That is not to say that people aren’t affected, indeed they are highly affected in that the law helps to support culture. The metaphor for this can be found when Methwold insists that those that buy his estate live like the English until the exact moment of Independence. In doing this he forces his culture, through a contract, upon the Indian Families that move into to his estate. Not only do they must absorb his culture, but they must also absorb his law. The contract is probably based on the British model, as is the property law that supports it. The larger picture is that after the British leave, the remnants of their legal order doesn’t, and those remnants may not support the underlying culture of the people as well.

The theme again arises in light of the partition of Pakistan from India. It was all occupied by the British, but upon independence there were two countries with competeing views. These two regions, before the British colonization had not existed as any sort of nation state, yet afterwards they had embraced the idea of nationalism. This is a very real thing, but its basis is ephemeral. Time even was suceptible to it as the clocks in Pakistan “would run a half an hour ahead of their Indian counterparts.” These partitions and borders, while real and enforced are only magical divisions and do not reflect the actual layout of the culture and the population. Furthermore they are suddenly Western nation states, thus creating the need for a large legal net as opposed to micro legal systems.

Much of this partition is drawn along religious lines, with India becoming a secular state and Pakistan becoming a Muslim state. But this partition can’t hold up under its own terms, because of the deep religious currents in India. We find this when Ahmed’s assets are frozen by the government because he is a Muslim. It is fought in the courts but only won by bribes, which further exposes contradiction within the law, which is meant to be secure and final. As Nehru consults astrologers for his 5 year plan for his secular state, the legal system for the people becomes just as malleable and susceptable to non legal argumentation. Hindu’s and Muslims clash, but they now clash under the framework of a Western legal tradition. Later in the book, there is an attempt to reorganize India into states of Languages, an analysis of this would follow the same sort of reasoning.

The magically real partioning on the territories then becomes magically real in Saleem who feels himself literally fracturing into pieces. What Rushdie has achieved is showing the consequences of the law on the person or body. The fracture is more than legal, more than mental; it is a physical affliction to the people and the culture. This physicality is repeatedly shown in the main character of Saleem.

Saleem describes his existence in India as one of an “infinity of alternate realities,” but in Pakistan where truth is what the law says it is he is beset with and “infinite number of falsenesses.” The differences in the two cultures can be explained by the differences in the law. Secular law allows for possiblity, whereas theocracy allows only for the binary of truth an falseness. When the law enforces this binary the truth becomes magically real as it is supported by an item that is also magically real (if you accept that the law is a magically real structure i.e. that it comes from nowhere yet we accept it as a solid and binding force). The dichotomy between the two exhibits exactly this point. If the law were a real thing it would be substantially the same in each country, instead the law is created in reaction to the presence or lack of religion exposing the law’s preoccupation with rule and its lack of concern with justice.

These are just really initial thoughts and formulations on a somewhat perfunctory read of the novel. It should be noted that legal themes run through out. On can find criminal law, contract law, family law, tax law, immigration law, and probably scads of other items throughout. Each of these in turn can probably have this idea applied to it and be used as a way of exposing weakness in the system.

Salman Rushdie


Harris, Thomas. Hannibal Rising (2006)

May 22, 2007

hannibalrising“It’s a juvenile crime, Etienne, a crime of passion. I don’t want a conviction, I want him declared insane. In an asylum they can study him and try to find out what he is.”

We should have seen it coming. With the horrendous ending that Thomas Harris gave to Hannibal (luckily rectified in the movie), why would he bother to give Lector a beginning that was worthwhile? I read one reviewer that said that Harris had “gone gay” for Hannibal. I disagree, if he had he might have bothered to write this book with some tender loving care instead of making it read like an “I’m drunk and need money” read (not that I know if Harris is even prone to drinking, but that is what it reads like . . . comparable to Ringo Starr in Shining Time Station.)

Hannibal Rising tells the story of a young Hannibal Lector and his journey from a priviledged child prodigy in Lithuania to his college days in Paris with his Japanese aunt, Lady Murasaki. The story lacks the psychological intrigue that made the previous novels in the series such gripping books. We learn that Lector is twisted due to the fact that his sister was eaten by starving war criminals and . . . and well thats it. I’m not saying that this wouldn’t be traumatic, but it is a hardly adequate explanation for Lector’s perverted predilictions. The book leaves the reader empty in that it is all story and no development, and thats what the reader of this book wants: the development of the monster. Instead, Harris shields Lector within Lector’s own mind. We learn how he gets his skills, but not why he exercises them after his gains vengeance for his young sisters death.

The legal thrust of the book is mainly in the realm of International Law and specifically International Criminal Law in post World War II Europe. Once the war enters the storyline the reader is treated to a series of war crimes committed by a group of pseudo German soldiers or Hilfswillige. For instance at one point Grutas (the antagonist) and his band of merry bad guys go looting disguised as the Red Cross. They also carry a barrage of false documents in order to seem like legal operatives to whomever they may encounter. Of course their war crime of eating Hannibal’s sister is included in the series of atrocities they commit.

Soon after the war ends and the post war era begins, there are references to the War Crimes Trials at Nuremberg. The first of which is a newspaper headline runs “Doctors Indicted at Nuremberg.” Then the reader meets Inspector Popil who delivered evidence at Nuremberg. Popil, as an investigator of war crimes, comes to the small French village to investigate the murder of the butcher that Hannibal kills. He comes because the butcher was suspected of war crimes and these “do not end with the war.” Popil investigates these because he lost his own family in the war. Later it is revealed that Hannibal is hunting (in vengeance) a few war criminals who were charged in absentia at Nuremberg. The result is that there is a conflict of sorts between Hannibal’s substantive justice and Popil’s formal justice. Popil wants to see these men go through the proper channels to recieve punishment. Hannibal, on the other hand, simply wants to see them punished.

The book also deals with crimes of art theft in the post war period. Specifically, a painting that Hannibal’s family owned appears on the market. According to the book it must be exhibited so anyone with a ownership rights my make a claim. When the art is confiscated, Inspector Popil demands the invoice and the Arts and Monuments advisory that is “required” to be on the premisis. The investigator and Hannibal then set a trap for the person that owns the mate to the painting. This man attempts to get Hannibal to sell to him due to the backlog of hearings (created under article 46 of the 1907 Hague Convention) that could keep Hannibal from actually getting ownership until he is an adult.

There are also aspects of general criminal law represented in the book. After Hannibal’s first violent outbreak he is questioned by the French Police. There is false testimony presented to try and protect Hannibal, but the commander is more concerned with protecting Hannibal himself. Thus he takes Hannibal into a jail cell and tells him, “Use judgement and you will never occupy a cell like this.”

Hannibal is later arrested, there is very little evidence against as pointed out by the prosecutor and he secures his release based on good behavior and good references. Hannibal’s incarceration is interesting because it helps to display a bit of the Lector character. He doesn’t feel guilt because he feels that his murders are completely justified. However, there is a gap in his thinking. Because he will kill if there is an attempt to bring him to justice. These enforcement officers are by all means innocent, yet they also recieve his retributive justice. This is the main failing in Hannibal’s thinking. This isn’t fleshed out in the book at all, but just something that occurred to me.

Later in the book, when Hannibal is in medical school, he must get death sentenced inmates to donate their bodies to science. To do this he must get them to sign a release. In probably the best few moments of the book, he must negotiate this deal with an inmate who acts as the lawyer for his client (a pile of clothing). The negotiation ends with the prisoner donating his body for a dose of laudanum before the execution. Inspector Popil is there and doesn’t want it administered because he feels that it diminishes the actual punishment that has been sentenced. Popil, “believe[s] in consequences.” In reality though the inspector wants one last chance to interrogate the prisoner about Klaus Barbie.

This is also a small question of Tax Law. When Hannibal’s uncle dies his chateau must be auctioned off in order to pay for the death taxes that have been levied. Since Lady Murasaki’s “resident status” comes into question with the death of her husband the tax collector cannot accept her sureties.

There is a bit of animal law also. We find out that the law of importation of insects in the “new republic” was “fuzzy” from a cricket dealer, and there is an ordinance against serving a local bird called an ortolan, that “came and went.”

Thomas Harris


Brown, Dan. Angels and Demons (2000).

May 17, 2007


“‘I guess lawyers haven’t evolved much over the centuries.’

‘Neither have sharks.'”

I have read another Dan Brown book. It must be that I am a glutton for punishment. Really I blame my wife, both of these books have found their way into our home and been carelessly left on the shelf, and I (due to mild OCD) have been compelled to pick them up and read them. Oh, the injustice.

Angels and Demons is a prequel to The Davinci Code and despite having some terrible plot holes and a simply ridiculous ending is, in my opinion, a better book (note: this doesn’t say much…its like saying that Jeffery Dahmer was a better serial killer than Jack the Ripper – they were both awful). It has a more flow and more a more action. Even the stakes are a little higher as it has Robert Langdon rushing about Rome trying to keep cardinals from being murdered and the Vatican from being destroyed (compare to the loss of some documents no one will ever read). But let us not kid ourselves it is essentially the same book as its progeny.

It does a have a smattering of all sorts of law in it, but no continuous themes of any sort, so (for those of you that care) here it all is set out quite haphazardly. It should be noted that these are the representations of law in the book and Mr. Brown isn’t exactly known for his historical research.

Air and Space Law – When Langdon is initially swept up into this crazy mess, he boards a space plane (the Boeing X-33) that took him up to 60,000 feet, but according to the pilot if they’d been going to Tokyo it would have gone up a mile. The legal question is one of International Space Law and the delimitation of space. The unresolved issue of where space begins has been kicked around since the sixties and the two competing views on making the determination are one that is based on the function of the craft and one that is based on a set altitude. This craft could go into a space where it would be unclear whether space law or aviation law applied. Furthermore due to its hopping around the world, it could become quite muddled as to what state is the launching state for purposes of the liability convention.

Later in the novel, Langdon must convince a pilot that Vatican Air Law could be ignored due to the circumstances.

Immigration Law – Langdon is able to bypass a passport check in Switzerland due to a “standing agreement with the Swiss government” that CERN has. He then gets into Italy and the Vatican the same way. Brown doesn’t tell us how he gets home.

Natural Law – Brown’s plot device of starting his books with a dead father, has a man who saw physics as “God’s natural law” killed.

Church and State – Maximillian Kohler, when discussing the tension between science and religion, notes that “half the schools [in the United States] are not allowed to teach evolution.”

Religious Law and Canon Law – Langdon, when asked about his religious beliefs, states that he struggles with religion because all the competing religions require adherence to a “code.” Non-compliance is of course the punishment of hell. He doesn’t think that God would “rule” that way. This highlights the idea of God as a law giver and a ruler, which defines God in mans political terminology.

Canon Law is where the book really shines (legally speaking, otherwise it doesn’t really shine at all). The entirity of the novel occurs during a Vatican Conclave to elect a new Pope. Brown goes into detail about the process. The “protocols,” according to the Swiss Guard commander, Olivetti, “are holy – not subject to modification.” These protocols require, according to the book that the Cardinal that is elected must be in the room at the time of the vote, once closed the conclave cannot be opened except to remove the ill or to admit late cardinals, and that only Cardinals are eligible for the job (although a Vatican scholar at the end of the book declares that a noncardinal can be elected by adoration according to ancient Vatican Electoral Laws). Of course later one of the cardinals moves to set aside the protocols as “man’s laws.”

Langdon and Vittoria can’t get anywhere with Olivetti so they request to see the chamberlain. As an interesting point of Law, when the Pope, head of state of the Vatican, dies “complete autonomous power” is transferred to the Pope’s personal assistant until the new pope is elected. The chamberlain later tells Olivetti that “by law” he is in charge. Langdon later uses this to his advantage to get into the Vatican archives which can only be done by either written decree from the Vatican Librarian or by Papal Mandate. Since the chamberlain holds that position he can deliver the mandate.

Brown also discusses what happens upon the popes death. Traditionally, the Chamberlain confirms the death by checking the Pope’s pulse and calling the Pope’s name three times. There is no autopsy “by law.” This is because the Pope’s body is seen as holy and shouldn’t be violated for forensic curiosity. However, the tomb is reopened in the novel due to a command from the chamberlain who feels that the law must be violated in order to preserve the Church.

Also of note is that Langdon has to search through the documents of the “Galileo Affair,” “the longest and most expensive legal proceedings in Vatican history.” We later find out the Galileo’s “legal trouble” began when he described planetary movement as eliptical (which differed from the Church’s view of circular).

There is reference to Rome in the 1600s when churches were, by law, the tallest buildings. And also that when an artist created art under the patronage of popes back then that the work automatically became property of the Vatican.

Law and Economics – Langdon gives an account of the masonic and illuminati symbology found on the United States $1 bill. He attributes this to Vice President Henry Wallace who was a high ranking Mason and would have had Illuminati ties. Wallace told Roosevelt that the Latin Novus Ordo Seclorum meant New Deal, Roosevelt accepted that because he was also a Mason. I always knew something trippy was going on on that bill.

Later the book reveals that President Woodrow Wilson gave radio broadcasts that warned of the Illuminati control over the U.S. Banking System.

Vatican Law – Throughout the book Langdon deals with the Swiss Guard who are both the police force and the military of the Vatican City. Initially they are very concerned with the Vatican dress code because Vittoria, the girl in the book, is wearing shorts (that’s a no no at the Vatican in case you are wondering).

One of the BBC journalists that gets involved, is asked to hand over film by the Swiss Guard. She claims that under Article 12 of the Free Press Act the film is property of the BBC. I don’t know if the free press act is International, British, or Italian, but it makes no difference as the Swiss Guard retorts that due to the holy doctrine governing the Vatican that she is subject to search and seizure. This teaches you not to mess with the Swiss Guard no matter how fru fru they look in that outfit.

English Law – It is mentioned that Churchill once said that “if English spies had infiltrated the Nazis to the degree the Illuminati had infiltrated English Parliment, the war would have been over in one month.”

It then turns to the 1998 decree by the Parliment Committee Chair, Chris Mullin, that all members of parliment who were Masons must declare their affiliation. This decree eventually applied to Judges and Police Officers (all three branches of government there). This was in response to “concern that secret factions within the Masons exerted considerable control over political and financial systems.”

Italian Law – The young Chamberlain, at 16, was obliged by Italian law to serve two years in reserve military training. He chose to do this even though he could have avoided his duties by going ahead and entering seminary.

Angels & Demons
Dan Brown


Gayle, Mike. Brand New Friend (2005).

March 14, 2007

“. . . or the Bell and Basin in Clapham, which, when it came to licensing laws, was a law unto itself . . .”

I feel that I need to defend myself for, knowingly, picking up such a piece of rubish to read (how did I know it was rubbish? The review quote on the back that touted it as “Bridget Jones for boys” was what gave it away). The wife and myself had just moved to Charlton in the Greenwich Borough of London. While we were out exploring our new environs, we happened upon the Charlton House. As we went in we were asked if we were there to see Mike Gayle speak. The next thing we know we are watching a discussion with the author over his new book, which has been chosen by the Greenwich Borough as the book that they want everyone in the Borough to read (so that everyone will be “buzzing” about it). Being good community people (and suckers for autographed books) we bought a copy.

Why Greenwich would choose such a trite novel as the “one book to get the borough reading” for its Greenwich Reads campaign is beyond me. The author isn’t even local (hell he isn’t even from London and had never been to Greenwich until the day we happened to see him at Charlton House). The book follows Rob who is a graphic designer that moves from London to Manchester in order to be with the love of his life, Ashley. This decision though causes him to move away from his friends, and the focus of the book is his inability to make new friends. Finally after many miserable pages he makes a friend, the hitch is that she is a girl. This causes all the cliched friction that is customary, and the situation ends just about how you think it will. The characters are stereotypes, the plot is meaningless, and the only consolation is that is a very fast read.

The books moments of legal inquiry are brief and unexciting. SInce there is no sort of legal theme that I could identify, I’ll just run through it willy nilly and be done with this stupid review of this stupid book.

Rob’s group of friends in London include in their pub discussion topics “will a socialist utopia ever be possible.” The reason I mention this is that whenever one is reading English history, one finds that everything from literature being written to scientific discoveries happens in pubs. So why not a healthy discussion of the law.

When, Rob moves in with his friends during University he is told not to steal food from a certain roomate unless he wants to start World War III. I once answered a question on an international law exam to the effect that the law among the nations is analogous to the law among roomates. I got an A.

Rob’s girlfriend asks him “who died and made you Minister of Boozing?” What a wonderful government position. I’m running for it next year.

Jo, Rob’s “brand new friend,” is a housing agent who must insist (due to legal requirements) that a man who breaks his own toilet only to have it repaired must fill out the requisite forms. He refuses and tells her that she’ll be hearing from his solicitor.

One of Ashley’s friend’s ex’s married a trainee barister.

And finally some questions “weren’t issued in a digging-for-information-that-can-and-will-be-used-as-evidence-against-you way.” This simply illustrates the prevalence of the United States’ Miranda Rights in world culture.

Brand New Friend
Mike Gayle