Riding the Black Ram: Law, Literature, and Gender

By Susan Heinzelman

Unruly women are not often represented in a good light. Whether historical, or fictional, disruptive women with their real or imagined excesses have long provided the material for literary and legal narratives. This probing new work analyzes a series of literary, legal, and historical texts to demonstrate the persistence of certain gender stereotypes.

In her 1820 adultery trial, Queen Caroline was depicted in a cartoon riding into the House of Lords on a black ram that had the face of her Italian lover. As this book reveals, a number of women, remembered largely for their insubordinate presence, have metaphorically "ridden the black ram" in the last 700 years. Heinzelman's historicized understanding of the relationship between law and literature reveals a disquieting pattern in the legal and literary representations of women and provides a new recognition of the significance of sexuality and gender in the way we narrate our world.

• Language: English
• Publisher: Stanford Law Books
• Release date: Feb 25, 2010
• ISBN: 9780804773683

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e9780804773683_cover.jpg

THE CULTURAL LIVES OF LAW

Edited by Austin Sarat

Riding the Black Ram

Law, Literature, and Gender

Susan Sage Heinzelman

Page xxvi illustration: Steward’s Court of the Manor of Torre Devon. Etching attributed to Theodore Lane (1800–1828). Published by G. Humprhey, London, 1820. The Elton M. Hyder, Jr. Collection, Accession 0982. On loan to The University of Texas School of Law, Jamail Center for Legal Research, Tarlton Law Library. Courtesy of Michale Horn, curator.

Stanford University Press

Stanford, California

© 2010 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved.

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Heinzelman, Susan Sage.

Riding the black ram : law, literature, and gender / Susan Sage Heinzelman. p. cm.—(The cultural lives of law)

Includes bibliographical references and index.

9780804773683

1. English fiction—History and criticism. 2. Law and literature—England—History. 3. Women and literature—England—History. 4. Women—Legal status, laws, etc.—England—History. 5. Law in literature. 6. Women in literature. I. Title. II. Series: Cultural lives of law.

PR830.L39H45 2010

823.009’3554—dc22

2009035617

Typeset by Bruce Lundquist in 10/14.5 Minion

For Kurt,

It’s all I have to bring today—

This, and my heart beside—

—Emily Dickinson, #24

Table of Contents

THE CULTURAL LIVES OF LAW

Title Page

Copyright Page

Dedication

Preface

Acknowledgments

CHAPTER ONE - Termes Queinte of Lawe and Quaint Fantasies of Literature

CHAPTER TWO - Public Affairs and Juridical Intimacies

CHAPTER THREE - Black Letters and Black Rams Law, Gender, and the Novel in Early Eighteenth-Century England

CHAPTER FOUR - How to Tell a Story That Might Prevent a Hanging

CHAPTER FIVE - Statues, Statutes, and Queens on Trial

Postscript

Notes

Bibliography

Index

THE CULTURAL LIVES OF LAW

Preface

At a crucial moment in late seventeenth- and early eighteenth-century England, two discursive realms, each claiming to represent what was real and true, underwent significant change. No longer regarded jurisdictionally and aesthetically as intimately related, law and literature (specifically, the novel), appeared to part company and assume separate disciplinary formations with fixed boundaries. By the mid-eighteenth century, one consequence of this distinction between legal and novelistic discourse was the articulation of territorial claims about what was true: law staked its claim in epistemology (fact as a kind of truth), the novel in ethics (character as a kind of truth). Moreover, each discourse granted the other the privilege of a monopoly, what I term a gentlemen’s agreement, in articulating those claims. I use this term deliberately to draw attention to the gendered quality of this arrangement, under which a certain kind of judicial and literary subject, appropriate to advance a Protestant, proto-capitalist economy, appeared.

The historical timing of this emerging distinction between legal discourse and novelistic discourse coincided with the gradual marginalization of women writers in the literary marketplace—a marginalization achieved in part by linking their public texts with their licentious and secretive private characters. Thus the moral and ethical claims made by the genre were reinforced by their apparently natural embodiment in the personal character of the novelist. When women writers as active agents were forced out of a rapidly expanding and profitable profession, they were replaced by authors like Henry Fielding and Samuel Richardson, whose claims for the moral value of the novel preemptively marked women’s productions as dangerous or irrelevant. Moreover, the aesthetic preference for what would be retroactively termed realism in the English novel only emphasized the inadequacy, both morally and aesthetically, of women-authored romance histories and amorous narratives. Thus what appeared to be an aesthetic preference for one kind of narrative over an earlier version was, in part, the result of a set of gendered preferences articulated through specific generic representations.

While the English novel gradually became associated with a certain way of representing reality, so, too, did legal discourse appear to consolidate and then override its relationship to theological forms of proof and logic, apparently banishing other and earlier ways of representing the subject’s structural and individual relationship to the law. As professing the law gradually became restricted through the eighteenth century to an all-male elite, the law itself became more codified and centralized, marginalizing the rural practice of customary law as well as the more informal and familiar relationships among judge, jury, plaintiff, and defendant. That sense of a shared and local understanding of the law was in part replaced by the numerous legal texts, treatises, and summaries that were published in the seventeenth and eighteenth centuries for the benefit of a literate and upper-class (and mostly male) citizenry.

I offer this critical moment in the history of the novel and the history of the common law as one (and not the only) instance of how gender infuses different discourses and helps define their status. This book addresses the affiliation between law and literature through the lens of gender to reveal hitherto unacknowledged blind spots in our contemporary account of their relationship. To begin: the claim that literature is extralegal and that law is extraliterary is not, and has never been, true. Despite the vigorous policing of boundaries between the two discourses, each absorbs and rewrites rhetorical strategies and symbolic structures of the other, an argument now generally accepted in the field of law and literature studies. My argument will show how the struggle to set up distinctions that would hold the law apart from (and more powerful than) literature has consistently been conducted through and on the body of the woman.

In this discursive contest, the woman’s body is paradoxically represented both as the embodiment of uncontrollable sexuality and as the pure and idealized virgin. These conflicting notions of womanhood justify the necessity of gendered legal restraints and restricted literary representations.¹ Laws are thus written to limit the damage done by women’s inability to constrain their bodies and so that men’s property can be properly transferred from one generation to the next. Similarly, certain literary genres associated with neoclassical aesthetic and political forms were off-limits to women authors, who were constrained to popular genres or apparently unrealistic forms of representation, like scandalous tales of love or the romance. I am suggesting that these limits are neither accidental nor coincidental but the result of historically specific conditions under which law and literature collude, a collusion that is obscured by those very gender constructions that it produces. This book undertakes a comparative, historical analysis of these moments, focusing on both the occasions when the collusion renders women powerless as well as those when women are empowered by the generic confusion of legal and literary forms.

One might think that no genre could be further from law than romance, in part because of romance’s seemingly natural relationship to women and the feminine. Romance narratives from the twelfth century through to the twenty-first invoke a world of enchantment and magical transformation that stand, apparently, in opposition to the intellectual rigor and empirical bias of legal narrative. And yet, as Fredric Jameson and others have argued, romance reflects and produces political and social consciousness, and its contours embrace both the real and the unreal, both the public and the private. Romance, then, engages directly with questions of gender representation.² I distinguish between two ways of approaching these gendered social and political representations—one articulated by the term nomos, as employed in Robert M. Cover’s 1983essay, "Foreword: Nomos and Narrative," and the other, a necessary supplement to nomos, that I term nostos.

In his now-canonical text, Cover asserts that "We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. The legal world may narrow that normative world to formal legal procedures, the principles of justice, and the conventions of a social order but, Cover insists, the formal institutions of law are but a small part of the normative universe."³ Constituted not just by legal rules, nomos comes into being through narrative. Indeed, Cover contends that law’s narrative is itself structured by "alternative contending narratives and contending nomoi."⁴ Cover’s etymological derivation of nomos comes from the translation in the Greek Septuagint of the Hebrew word Torah (the Law). Nomos also reflects, however, its original Greek meaning of sorting, or ordering, as in taxonomy, as well as the allotment of property, as in a pasture or district, the space temporarily occupied by nomads within which they lived according to those particular laws and social conventions that marked them off from other nomadic or settled communities. Thus the term implies a sense of a bounded universe, a regulated society, or a set of institutions and the disciplinary narratives by which those institutions secure their place in the social consciousness. These narratives do not merely articulate the laws, regulations, and mores of a particular social group; as Cover suggests, the myths formally constitute the very meaning of those laws and regulations. Together, law and narrative make meaning and thereby produce a version of history.

For Cover, nomos refers to the corpus of all related normative material and to the teaching and learning of those primary and secondary sources. In this fully extended sense, the term embraces life itself, or at least the normative dimension of it.⁵ Under this definition, nomos cannot be reduced to a catalogue of laws but includes a broader sense of equity upon which a community generally agrees. Nomos, then, has the flexibility that norms do, and recognizes that strict obedience to the law sometimes results in a failure of justice. Cover’s nomos might be said to accommodate what Aristotle calls the Lesbian law, a term that describes those instances when the law should defer to a higher principle of equity, which Aristotle defines as

a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, that about some things it is impossible to lay down a law, so that a decree is needed. For when the thing is indefinite the rule also is indefinite, like the leaden rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts.⁶

Despite the flexibility that results from his inclusion of the principle of equity, Cover’s normative dimension, Marie Ashe argues, excludes women’s experiences of law, narrative, and religion through its elaboration and privileging of male kinship relationships and by narrating a universe that is uncritically male-dominated. ⁷ It seems, then, that even Cover’s fully extended sense of nomos is itself in need of supplement, or more specifically, in need of a term that acknowledges the gendered nature of nomos. For this I offer nostos.

Like nomos, nostos describes a universe of meaning, one produced by narratives that define a community and its constitutive myths; nostos, however, specifically articulates the gendered nature of nomos. Nostos, in the sense of nostalgia, has traditionally been associated with Odysseus and his homesickness. In turning to The Odyssey, however, I wish to emphasize not Odysseus’s nostalgia—his longing to return to Ithaca, to his homeland, to Penelope—but rather Penelope’s narrative, her construction of a nostos of her own, of a gendered universe of desire and community. In making this distinction, I am not asserting that nostalgia is gendered male while nostos is embodied in and identified with women; rather I am suggesting that nostalgia conventionally understood aligns itself with and articulates the narratives of a normative universe (a nomos), while the narratives of nostos actively rework and thereby disclose the operations of gender in that normative world. Odysseus’s nostalgia is produced by and reinforces a universe rife with war, heroism, and the exchange of women, and his longing is expressed as a desire to return to a particular, individualized version of that universe, embodied in the body of his wife, Penelope. (Even when in the arms of Calypso, whose beauty and wisdom he recognizes as far greater than Penelope’s, Odysseus’s nostalgia for Ithaca is repeatedly rehearsed in terms of his longing for his wife). But Penelope also has a story to tell: one that discloses the many ways in which not only men but women actively engage in negotiating and producing the gendered and hierarchical structures of power and knowledge.

Penelope’s story recognizes her as equal to Odysseus in her cunning and management of the household: despite her fixity in the home, Penelope’s behavior metaphorically resembles Odysseus’s. Her wiliness in refusing to submit to the suitors, her refusal to be defined by the constraints of her gender, exhibit the same flexibility and ingenuity that defines her husband’s heroic behavior. That behavior does, however, mark her as unruly in respect to normative laws.⁸ Nevertheless, Penelope’s negotiations with power, produced by her desire to maintain the nomos for Odysseus, are vital to the security of the home and state, without which Odysseus has nothing to claim upon his return from Troy. Nostos, then, is not just a supplement to nomos but the necessary supplement; while nomos produces narratives of regulation as well as equity, nostos identifies and produces otherwise unarticulated and gendered narratives of desire. These narratives, like those jurisgenerative (world-creating) narratives that Cover claims constitute nomos, are endlessly generative, although not necessarily always liberatory for women.⁹

In his account of nomos, Cover argues that law may be viewed as a system of tension . . . linking a concept of reality to an imagined alternative—that is, as a connective between two states of affairs. Those two states might be termed reality and what Cover, quoting George Steiner, calls alternity: the ‘other than the case.’¹⁰ I would suggest that nostos is precisely that alternity: a world—creating narrative parallel to nomos that is always on the verge of disrupting the narratives generated by nomos and that such disruption finds frequent expression through the bodies of women. In articulating the play of legal and literary discourses, my argument shuttles, like Penelope’s weaving, among strands of literary, legal, and historical narratives. I do not claim to present a seamless, historical account, although the chapters do for the most part move chronologically. There is, however, a consistent focus throughout the book on the strategic management of the figure of the unruly woman. That figure is sometimes an historical woman, sometimes a fictional character, but either way, one whose real or imagined excesses simultaneously provide the material for and yet inevitably call up the disciplining and disciplinary powers of both literary narrative and the law in specific, gendered ways. I have named this trope of excess and discipline riding the black ram, a metaphor for woman’s disruptive presence literalized in the nineteenth-century political cartoon featured on page xxvi depicting Queen Caroline’s entrance into the House of Lords. The trope recurs in various forms throughout my argument—for example, as Geoffrey Chaucer’s Wife of Bath riding flamboyantly to join the pilgrimage, as Paulina injecting herself vociferously into the sham trial of Hermione in William Shakespeare’s The Winter’s Tale, or as an example of quaint folk law in an early, eighteenth-century treatise on women’s legal status.

The trope suggests both the naturalizing effect of this repeated set of images and narrative strategies and its inevitable sexualization.¹¹ Moreover, in a conventionally nostalgic move, each version of the trope seems tied either explicitly or implicitly to the past, usually localized in some juridico-political institution, such as manorial customs, parliamentary privilege, or ancient laws that find their origins, as English common law does, in time immemorial. Thus the leitmotif functions to organize gendered and hierarchical social relationships, as well as to invest the disciplinary versions of those relationships with the illusion of a timeless, self-evident, natural gender hierarchy that deflects critical analysis of their history. Even though women’s legal status and their concomitant jurisprudential and literary depictions have undergone considerable change over the centuries, their representations remain strangely constant, as if they have been removed, to quote R. Howard Bloch, from the world historical stage.¹²

Many critics besides Bloch have noted the ancient mythical roots of gender stereotypes. Interdisciplinary studies, for instance, have generally acknowledged historical influences on the representation of women. Thus far, however, most critical analyses of law and literature have been restricted to the comparative study of specific legal or literary texts within a distinct historical period. This synchronic analysis must be supplemented with diachronic analysis if we wish to uncover the historical roots of certain gender, genre, and disciplinary stereotypes, as well as to critique the complicity among disciplines and their generic forms in promoting these gender hierarchies. As scholars such as Wai Chee Dimock have argued, we must analyze the historical and historically shifting relations between law and literature to reveal the gendered nature of their relationship, one that has contributed to the persistence of certain representations of women.¹³ This book’s return to history will link previously unrelated texts and contexts, thereby offering what one might call a critical nostos, a new way of reading the familiar which alters the paradigm that still dominates feminist critical theory. This theory represents women, and other groups feminized by their relationship to power, as constantly struggling for recognition from others with power, as if they themselves were not always already powerful.

To promote this critical nostos, the present study asks three questions: (1) Why is it so difficult to rewrite the narrative of women’s unequal status? (2) What narrative and generic strategies have enforced the impression that women’s position vis-à-vis power and knowledge must repeatedly be reclaimed, restated, or reimagined? And (3) why do the powerful appear to be detached from the struggle to make meaning, from the contest to define the terms and structures of our lives, even though they are as caught in the contestation for meaning as the seemingly powerless? This shift in perspective requires that we drop the terms powerful and powerless as synonyms for male and female, for men and women, and replace them with ones that are historically specific and therefore both more precise and more nuanced.

I begin the book with ‘Termes Queinte of Lawe’ and Quaint Fantasies of Literature: Chaucer’s Man of Law and Wife of Bath, in which I juxtapose two Chaucerian tales to illustrate the historically specific and gendered nature of the relationship between law and literature, or to put it somewhat reductively, between narratives of nomos and of nostos. Claiming the authority of legal and religious texts to dispel the fantasies of romance and compel adherence to a juridico-religious sensibility, Chaucer’s Serjeant-at-Law offers a hagiographic narrative that focuses on the exilic journey of Constance, daughter of the Christian Emperor, whose beauty is used to convert the heathen to Christianity. The very opposite of those unruly women like the Wife, the dutiful and submissive Constance nevertheless produces the same responses when she engages with the non-Christian world: she incites the desire to discipline, exercised in this tale by the mothers of those sons Constance converts from Islam to Christianity. In his effort to control the representation of women’s desiring (fantastic) body, the Man of Law doubly displaces their sexual desire from the apparently non-desiring body of Constance on to the incestuously desiring bodies of her powerful mothers-in-law and then, through the power of fantasy that limns the Man of Law’s narrative, onto the genre of romance itself.

In what I take to be a response to the Man of Law’s misogynist professional narrative and his attempt to replace (or at least control) fantasy with law, the Wife of Bath insists on her kind of authority that she names experience. In the prologue to her tale, the Wife simultaneously confirms the authority of texts and their interpretation (although her own readings are subversive) and also contests that same version of textual authority by offering her body, specifically her queinte, or her genitalia, as the foundational authoritative text, the sacred text of her nostos. In thus aligning the text of her body both with and against the textual body of religious and political authority, the Wife complicates the gendered distinction between the material and the nonmaterial, the body and the spirit. She suggests that what looks like authority is a certain kind of experience disguised as an official claim to truth, while experience, frequently dismissed as merely female knowledge, exposes the contingency of supposedly universal truths.¹⁴

In the Wife of Bath’s Tale, the gendered associations of authority and experience are arraigned within a court adjudicated by Queen Guinevere.¹⁵ Once again, the Wife complicates the gendered distinctions that accompany forms of knowledge and their generic forms both by politicizing the medieval romance genre and simultaneously reinvesting that genre with the magic of fantasy, now equated with the woman’s desiring body. The story of the knight’s penance for the rape of a young woman equates women’s experience with juridical authority.

Read together, then, the Man of Law’s Tale and the Wife of Bath’s Tale suggest the complexities of two gendered narrative orders. Nostos, articulated through the Wife’s revision of the pastourelle and Arthurian romance, interrupts and supplements the nomos, the normative world of the Man of Law, articulated through the narratives of the law and Christian hagiography. At the same time as the Wife’s interruption reveals the necessity of nostos as a supplement to the normative, it also demonstrates its inevitable participation in the dominant discourse.

The second chapter, Public Affairs and Juridical Intimacies: Seventeenth-and Eighteenth-Century French and English Women Novelists, continues the juxtaposition of the romance genre with juridical narrative, focusing not on individual narrators but on the function of the genre itself as a participant in the struggle for access to politics. Employing Peter Goodrich’s insights into the history of the relationship between eros (which I argue informs nostos) and nomos, I suggest that there is a history of women’s writing and theorizing about the public sphere that has been lost in favor of a predominantly and nationalistically English and male version of the history of the novel.

The chapter situates the early English novel, traditionally associated with Daniel Defoe., Richardson, and Fielding, in the context of seventeenth-century French women novelists, such as Anne de Montpensier, Marie-Madeleine de Lafayette,