Wikipedia tells me that
The vase of Soissons was of marvelous size and beauty and was stolen (together with other holy ornaments) from a church in the pillage that followed the Battle of Soissons of 486, a battle won by the Frankish king Clovis I, who at that time had not yet converted to Christianity.[2]
Saint Remigius, the bishop of Reims, sent messengers to Clovis, begging that if the church might not recover any other of the holy vessels, at least this one might be restored. Clovis agreed to do so and therefore claimed the vase as his rightful part of the booty. One soldier disagreed and smashed the vase with his battle-axe. Clovis at first did not react to this and gave the broken vase to Remigius. A year later, however, he saw the soldier again, took the man's axe and threw it on the ground. The man bent down to pick up his axe, and Clovis smashed his skull with his own axe, commenting "Just as you did to the vase at Soissons!
Why might the Church have preserved this story? Clearly, we are speaking of an offense against God by infidels. Clovis showed an inborn inclinations to heed the call of the true Religion. He converted to Catholicism- i.e. would bow his head to the True Lord- and became the first King of France- indeed, the name Clovis, became Louis, eighteen of whom reigned as most Christian majesties. Thus something better than the vase of Soissons was restored. The soldier who broke it also bent down. But it was to retrieve his battle axe- that crosier of an auto-cephalic creed- only to never raise his head again.
What does Foucault make of it? In his 'Society must be defended' lectures he says that Clovis was not a king. He was a Civil Magistrate with respect to a bunch of 'individual landlords' who acknowledged no higher authority.
Boulainvilliers was a partisan supporter of the rights of the Aristocracy against the King as much as against the Third Estate which, however, saw the true origins of France in the Romanized Gauls and rejected the notion that invading German thugs were natural aristocrats. Yet, Boulainvilliers celebrated Charlemagne as having reversed the absolutism established by Clovis (Christianization is an example of absolutism) and rebalanced the polity by giving greater salience to the Barons and to Parliament. The fool- like others of his caste- thought Parliament would be a weapon in the hands of meritorious blue-bloods against the King and the rabble. However, there was little merit among his ilk. The Guillotine awaited them.No system of rights was centred on the King. This was obvious because there were periods when there was no King or two or three Kings. Some stupid academics may have pretended there was a problem with some shite they had made up but nobody gave a toss about them.
In England, for centuries now, we have thought of both the Monarchy and the Law as essentially service industries- we pay the Crown and the Bench well to do a useful job. The late Duke of Edinburgh referred to the Royal Family as 'the firm'- it was an enterprise paid to perform certain services which, during the course of the Eighties, became increasingly undignified but addictively entertaining. The Bench, in England & Wales, choosing not to remain the butt of Monty Python type satire and fearing to take on the Tabloid press which could not understand why Judges didn't simply sentence every oik that came before it to being hanged, drawn and quartered, decided to get rid of the offense of 'contempt of court'. In Scotland the offense of 'murmuring Judges' remains but English Judges understood that, by admitting they had no power to protect themselves and thus were tradesmen simply, they would be left alone.
France, of course, never really understood the notion of limited monarchy or how that might turn into constitutional monarchy of a gemutlich kind. Foucault, certainly, remained dazzled by a Sun King who considered any emulation of Anglo Saxon Law & Economics as a type of lese majeste.
In his History of Sexuality, Foucault writes- 'In thought and political analysis, we have still not cut off the head of the king.' But, though phrase-making may be French, Thought is English and considers the King's head or tail to be but two sides of what really matters- namely coin.
Foucault claimed, in a lecture given in Brazil in 1976, that the West had no means of representing or analyzing power save in terms of the law. Yet, power had always been understood in the English speaking world as a function of wealth considered as any type of differential endowment. The very notion of an unconscionable contract hinges on one side having superior bargaining power. But determining whether such power exists is an empirical matter. A Jury must make a determination of the facts. The Judge merely clarifies that if superior power obtained and was misused, either at the time of negotiation or with respect to subsequent outcome, then the contract can't be enforced in good conscience.
In France, a Court could arrive at the same conclusion by saying a contract must have an 'objective cause'- a raison d'etre- and it was unreasonable to suppose this did not involve reciprocity. I need hardly say this is very un-English. The notion that two people must have a reason for transacting business is utterly unreasonable in a dank and melancholy island where any violation of solitude is made bearable only by sweet tea and polite tedium.
In any case, whether appealing to French 'objective cause', or English 'conscience', the law clearly considered power to be something empirical and ideographic, not intensional or nomothetic, and held that proof of its unjust exercise voided a contract.
In France, there was a growing feeling that the Napoleonic Code re. Contract law was obsolete. More and more firms elected for their contracts to be justiciable in Anglo-Saxon jurisdictions. France was slipping down the 'ease of doing business' table. The French did finally reform their Contract law some years ago but there are still some characteristic differences from English jurisprudence. In France there is a general duty to negotiate or perform a contract in good faith whereas the English have been wary of going down this road. Similarly the duty to disclose information is stronger in France. Essentially, the English feel that a business deal is no better than it should be. France clings to the hope that the two contracting parties approach each other clothed in purity and in truth. On the other hand, unlike the purlieus of the Thames, the banks of the Seine are blighted by nimbly hopping notaries, blithely bounding after frogs, hoping to bite their legs off.
I suppose one could say, if one were that way inclined, that the opposite of law is war. Politics can certainly change the law as it can start or stop war. But it would be foolish to speak of either as being merely the continuation of politics. Clausewitz little wotted that Wars might not merely cause Prussia to wax or wane, it might cause it to disappear as a political force. Where now is the Junker caste?
Mathematical Game theory can give a representation to both Legal and Military strategies and tactics. But, if Knightian uncertainty obtains, it is evolutionary game theory, featuring co-evolved processes, which has salience. Thus the 'absolute metaphor' for both Law and War is to be found in the Life Sciences. This is not the case for Politics because it is itself the self-conscious attempt to mediate what is seen as a bunch of co-evolving processes. One could say the same thing for Foucault's shite, or indeed this last paragraph of mine. Since we aint actually solving an actual problem, we are like, unlike the more prestigious type of French notary, merely hopping around vainly without ever taking a bite out of the legs of imaginary frogs.
No comments:
Post a Comment