Proposed Sponsored Session for 35th Medieval Congress at Kalamazoo,2000
LAW AS CULTURE IN THE MIDDLE
AGES:
WHEN IS "TIME OF THE ESSENCE"?
This year's topic has been chosen with the
approaching Millennium in mind. Since the pundits are not even agreed on
when the new millennium starts, we felt free to indulge our fancy and examine
different aspects of Time in a more general sense. "Time is of the essence"
is a maxim familiar to modern lawyers, to whom the meaning is (as with
most maxims) eternally in dispute. Time is obviously equally a theme of
constant interest to students of literature. It is, of course, one of Aristotle's
three dramatic Unities and may as such have shaped the literature of Law.
We welcome papers on any temporal
aspect of medieval Law as Culture, and list below only a few
initial suggestions.
-
Time is of the Essence" The legal importance of this tag are evident
from legal textbooks. One need only mention the need to deliver a cargo
of bananas before they rot. Time is clearly of the essence of such contracts.
But Law is ruled in a more general sense by time, with the need to make
appearances in court on days fixed in advance, to keep one's terms etc.
And these constraints can be put to literary work too, as in the tense
waits to see if the fairy guarantor, the surprise witness or key evidence
will emerge in time to save the hero's skin.
-
Cooling Time This is a lawyers' term for the time allowed to recover
"cool blood" after provocation. Leave your response too long and you will
not be permitted the defenses of provocation and self-defense. (Why were
these defenses never gendered before the Bobbit Case of our own days?)
Similar rules cover the right to self-help (4 days to regain possession
of land after ejection in Anglo-Norman law).
-
Then there is Quarantine, a period of 40 days used as a time limit
for a whole number of purposes, among them a widow's occupation of her
home after her husband's death; the King's Truce in France (within which
kinsmen and associates must decide whether or not to join a private war).
Why 40 days?
-
Prescription and Limitation How long delay is too long? If I neglect
to challenge the illegal possession of my property for too long (30 years
is a common figure), I may be barred for ever from doing so. This is Prescription.
Many legal remedies are limited by their ever hoipeful framers to "recent"
events and wrongs. Thus one could sue in "Novel" Disseizin only for acts
committed since (for example) "the king's last crossing to France" or "the
king's first coronation". But ...
-
"Time does not run against the King" Kings can recaim their lost
rights at any time. Why so favored?
-
Time Immemorial How and why did the legal limit of time "beyond
which the memory of Man does not run" get fixed at Richard I's coronation,
1189? What were the equivalents elsewhere? What implications did the whole
notion have for the scope of oral memory? What literary themes stem from
or are related to this? Surprise witness who recall the true circumstances
of a hero's birth and blood are not limited to Victorian melodramas. What
other roles does the (limited) role of Memory play in literary depictions
of Law?
-
Time Measurement was quite important in an age when the great problem
of litigation was to get your opponent in court at the same time as you
and the judges. Having "your day in court" is a phrase with a medieval
origin. To make it come true, those concerned needed to be able to agree
on how to calculate and define the day, term and year with precision. Did
this require an official legal calendar of Saints' Days and Holidays, the
original "Red Letter Days"?
-
The Time of Your Life The influence of the human life cycle. You
have to be of age to make full use of the Law. Those under age will in
the middle ages be under someone else's custody (Wardship, Fosterage,
Nurturing).
The aged may be so too, once they are beyond running their own lives. So
we find maintenance arrangements of every kind, also schemes for transferring
property and power to the young while their elders still live. Hence the
different attitude of the Law toward Deathbed Grants as against
ones made at other times?
-
Mortmain and Eternity Those already dead can presumably not be affected
by legal time. The best example is the saint who having died
once will never do so again. Yet these dead saints, in the form of undying
monasteries and other ecclesiastical corporations, hold much property.
The Law use the evocative negative image of the "dead hand" to describe
the blighting effect of such grants from a secular point of view. Their
lands are eternally free from the incidents that normally occur on a tenant's
death. Lawyers also constantly talk of eternity in the form of perpetual
grants, though only Jewish draftsmen (in my limited knowledge) refer to
debts (for example) contracted since the Creation of the World. When if
ever does the End of the World, the Second Coming carry legal effects?
-
Precedent and Memory In what way did real and literary courts
use memories of previous decisions to guide them in deciding cases before
them? How might the act of "following custom" have developed into being
"bound by precedent" ("stare decisis")? How, more generally did courts
and their members use memory? Do new laws always supersede older ones?