Fables of the Law

Daniela Carpi, Marett Leiboff, Daniela Carpi, Marett Leiboff

• Publisher: De Gruyter
• Year: 2016
• ISBN:
  9783110493504
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The latest development concerning the metaphorical use of the fairy tale is the legal perspective. The law had and has recourse to fairy tales in order to speak of the nomos and its subversion, of the politically correct and of the various means that have been used to enforce the law. Fairy tales are a fundamental tool to examine legal procedures and structures in their many failings and errors. Therefore, we have privileged the term "fables" of the law just to stress the ethical perspective: they are moral parables that often speak of justice miscarried and justice sought.
Law and jurists are creators of "fables" on the view that law is born out of the facts (ex facto ius oritur) so that there is a need for narrative coherence both on the level of the case and the level of legislation (or turned the other way around: what does it mean if no such coherence is found?). This is especially of interest given the influx of all kinds of new technologies that are "fabulous" in themselves and hard to incorporate in traditional doctrinal schemes and thus in the construction of a new reality.

Part I: Fabulising Law

Luis Gómez Romero

The Wondrous (Baroque) Gender Revolution, or the Rise and Fall of the Empire of Fairies

“[…] hat die Menschheit einmal ihren Erzähler verloren so hat sie auch ihre Kindschaft verloren.”88Peter Handke/Richard Reitinger/Wim Wenders:
Der Himmel über Berlin

Introduction: The ambivalent pleasures of baroque89 imagination

The essay which follows is mainly concerned with how the history of ideas on norms, justice and power is shaped by the stories we tell and how we tell them. It specifically addresses the normative codes introduced into Western imaginaries by the raise of the literary fairy tale in France during the late seventeenth century. In both their oral and literary varieties, wonder fairy tales (Zaubermärchen or contes merveilleux) have constantly charted and undermined the contours of our cultural and political realities by escaping or retreating from them.90 The merveilleux genre allowed the first writers of fairy tales to act ideologically by embedding their own views on social conditions and conflicts into their narratives, while they interacted at the same time with each other and with past writers and storytellers in the public sphere.91 The question of the history and meaning of the first literary fairy tales hence reflects the paradoxical cultural and political realities of the Baroque, which is the cultural and historical context in which they were created. In other words, the baroque aesthetic strategies deployed in the first literary fairy tales mirror specific political and juridical tensions which, I will argue, continue to relate to our understanding of the world today.

Theorising about the Baroque implies settling the previous and complex matter of defining it. What do we mean when we use such a term? Are we speaking of a precise moment in the history of art or, on the contrary, are we alluding to a lasting and universal aesthetic style and, even more, to a philosophical mood and modus? In other words, has the Baroque transcended seventeenthcentury Europe? This dilemma is far from being just a matter of convoluted erudition which can be easily dismissed or quickly analyzed in a footnote commentary. The work of the main theorists of the Baroque – from Heinrich Wölfflin to Walter Benjamin, Eugenio d’Ors, José Antonio Maravall, Gilles Deleuze or Bolívar Echeverría – has been consistently troubled by these questions.92

The aesthetic debate about and around the Baroque can be illustrated by reference to the opposed approaches to this concept respectively championed by Eugenio D’Ors and José Antonio Maravall. D’Ors claims that the Baroque is a “cultural style” whose key feature – the negation of classicism – transcends historical contexts in such a way that it embeds the possibility of being “reborn” in different times and places by translating its “inspiration” into “new forms.”93 The problem with this approach is its inherent conceptual promiscuity: D’Ors finds baroque forms both in Prehistory “among the savages” (Barocchus archaicus) and in contemporaneous popular cultures (Barocchus vulgaris).94 Maravall, on the contrary, argues that the Baroque is merely “a defined period in the history of some European countries” whose limits can approximately be established from 1600 to 1680.95 Maravall’s narrow periodization, however, simply brings to light the problem of defining the Baroque since it is clearly inaccurate, for example, in relation to baroque music.96

Walter Benjamin makes evident the substantive dilemma that lies behind the obvious tension between D’Ors and Maravall’s approaches to the Baroque. Benjamin advocates the necessity of a transdisciplinary study of the Baroque, capable of critically surmounting the historical and epistemological constraints imposed on artworks by both the philosophy of art and the history of art. In his view, aesthetic concepts such as “Renaissance” or “Baroque” do not aim at making “the similar identical,” but “they effect a synthesis between extremes.”97 This sort of aesthetic concepts thus aim at abstracting rules to assess individual artworks by comparing them to the “outstanding representatives” (hervorragender Vertreter) of each genre or epoch, which supposedly set in the aesthetic “laws of art” (Kunstgesetze) which apply to each and every work.98 On this basis Benjamin claims that, from a conceptual perspective, historical types and epochs risk to dissolve the aesthetic structures or forms of the artwork by denying their “irreducible multiplicity” (unreduzierbare Vielheit) for the sake of an illusory unity of art.99

Deleuze overcomes the epistemological perplexities around the definition of the Baroque that Benjamin pointed out. For the purposes of this essay, I will endorse Deleuze’s reading of the Baroque not as an “essence,” but as an “operative function” (fonction opératoire) or “trait” in the historical development of Western thought.100 Deleuze considers the Baroque as a trope which can be used to designate a current of thought that, radiating through time, has expressed an “attempt to reconstitute a classical reason” by dividing the divergences in our reality “into as many worlds as possible,” and also by transforming incompossibilities – that is, the incapability of joint existence of diverging realities – into “as many possible borders between worlds.”101

I do not vindicate, of course, any sort of originality in such a theoretical choice. During the last three decades a good number of authors have argued that the general aesthetic trends of the late twentieth and early twenty first centuries, instead of being called postmodern, should be more accurately labelled as neobaroque.102 I must clarify, however, that though this is undoubtedly an appealing thesis which has shown itself quite useful for understanding the basic traits of our present cultural landscape, I am not interested in exploring the recurrence of baroque aesthetic patterns, but rather in delving into the permanence – coterminous with the development of modernity – of what William Egginton has compellingly called the baroque “problem of thought.”103 This problem refers to the cultural continuity of the Baroque’s obsession with discerning paths of truthful knowledge among “the ephemeral and deceptive appearances” of the world we live in, that is to say, “the reduction of whatever difference exists between those appearances and the world as it is.”104

A problem of thought is not simply a philosophical problem. Problems of thought, according to Egginton, affect or unsettle “an entire culture in the largest possible sense, that permeates its very foundations and finds expression in its plastic art, in its stories and performances, in its philosophy as well as in its social organization and politics.”105 I will therefore claim that some traits of our modern conceptions of justice and social order are rooted in baroque political realities, concepts and controversies.106 There is a specifically baroque way of being modern that has unfolded from the seventeenth century to the present in some regions of world (for example, in Latin America107) and, beyond those regions, in some particular political matters (such as gender roles). In this sense, the permanence of the Baroque as a problem of thought is remarkably evident in the literary fairy tales that were published in France between the last decade of the seventeenth century and the first decade of the eighteenth century – that is, the marvelous stories which are historically situated at the basis of the institutionalization of the fairy tale as a literary genre –, whose cultural influence has stretched to our days mainly through the works of Charles Perrault (1628–1703).108

Lewis C. Seifert has adequately categorized fairy tales as one of “the most marginal and the most central of all cultural forms.”109 While, on the one hand, fairy tales are hardly taken seriously nowadays by the wide public (and a substantial number of academics and critics) because a series of widespread prejudices hold them as somewhat simplistic, preposterous and childish narratives; on the other hand, fairy tales are also powerful normative narratives to the extent in which they establish social and cultural patterns of personal initiation, becoming and maturity. Fairy tales are no strangers to the symbolic force of myths,110 which are in turn foundational elements of what Robert Cover calls nomos (after the Greek word νόμος, meaning “convention,” “custom” or “law”), that is, the narrative universe of norms we live in or, in other terms, the discursive site where we constantly define, negotiate and resist the notions of right and wrong, lawful and unlawful, just and unjust. “This nomos,” writes Cover, “is as much ‘our world’ as is the physical universe of mass, energy, and momentum.”111 Its constitutive narratives are resources in signification that enable us to carry out diverse normative actions: for example, “to submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify.”112

The construction of meaning within the domain of nomos depends heavily on storytelling. In this sense, fairy tales are sources of law.113 Desmond Manderson has neatly expressed the importance of narratives for the settlement of normative orders when he observes that while “[s]tories do not prescribe behaviour” as “they do not lay down laws for us,” they instead “inscribe behaviour” as “they lay down ways of being in us.”114 Regardless the hegemonic disenchantment of Western culture, we are still prone to become the kind of persons that fairy tales teach us to be: bold or obedient, courteous or clever, generous or cautious. Fairy tales may have been gradually reduced from offshoots of the sacred myths to nursery trifles and amusing lies, but such trifles and lies continue to rule our lives today.

Literary fairy tales, contrarily to the common belief, were not first and originally created for children. It was not until the late eighteenth and early nineteenth centuries that fairy tales were published for children, and even then they were frequently considered unsuitable for the youngest members of the elites because of their “coarse” roots in the folklore of the lower classes.115 In seventeenth-century France, these stories were intended for adult readers. The works of the first generation of French conteurs and conteuses – Marie-Catherine d’...

Table of contents

• Cover
• Title Page
• Copyright
• Table of Contents
• Introduction
• Part I: Fabulising Law
• Part II: Contemporary Fables
• Part III: Fables of Family
• Part IV: Law, Myth and Magic
• Contributors
• Subject index
• Endnotes