Lex Animata: Jesús R. Velasco
Lex Animata: Jesús R. Velasco
For a medievalist, thinking about a political concept for our modernity is at the same time a curse and a moment of revelation. For some, the Middle Ages are just too far away, constituting a radical alterity. 1 Others, like Hans Robert Jauss, view this alterity as an advantage, as something that could beget a new, fresher view on modernity.2 The Middle Ages surround us: in the form of architecture and urban planning, in the form of legal and political institutions (the university!), in the vestigial forms of thinking about religion and spiritual life. They also survive as undesirable leftovers (violence, torture, the inquisition, etc.), which we feel tempted to rubber stamp as properly medieval as a way of getting rid of them, or at least of avoiding thinking of them as modern.
But the curse is politically present. The Middle Ages have become a historical weapon used by the far right and the ever re-emerging neo-Nazis, sexists, bigots and religious zealots, Islamophobes and Antisemites, and white supremacists in general.3 Any political thinking that includes the Middle Ages must fight against this curse, must present itself as a form of revelation.
Where is, however, the revelation? Weren’t the Middle Ages profoundly inegalitarian, patriarchal, racist? They were indeed. And more. Medieval forms and strategies of tolerance and inclusion also have a flip side, when they reveal the juridical tactics of actual exclusion they entail. Revelation, here, does not mean redemption: one cannot redeem the past—it is not for sale anymore, there is nothing we can return in exchange for either money or fragments of salvation.4
The only revelation I can think of is reading the Middle Ages in a manner of poaching: entering illegally into the territories of foreclosed times, in order to capture pieces of the past that are said to be dead, but which are still active, albeit sometimes concealed by processes of naturalization.5
We are strange poachers. Our self-imposed role is not only to hunt the prey, eat its meat, make a rug or parchment from its skin, and hang the horned head above the mantelpiece. Instead, we want to ask difficult questions with the help of this booty. We want to refashion it, to consider how this thing became what it is, and whether it is still a thing. We might even toil to turn it into political production, openly transforming its genetic code.
The concept I am proposing for this critical lexicon is lex animata. This expression is a Latin translation—a lexical calque—of the Greek nómos émpsychos. Both expressions have been translated as ‘the living law’, or ‘the embodied law’.
I will put these expressions in relation with two other expressions which convey the problem of the embodiment and soulfulness of law: the Spanish definition of the people as the alma sensitiva del reino (‘sensitive soul of the kingdom’) and the Arabic expression faqih al-nafs (that I will translate as ‘a judge of oneself’). I will not really question the translation of the two classical Latin and Greek expressions but will offer other translation possibilities based on specific uses of the idea of lex animata and its existing linguistic versions. My purpose is to redirect the political potential of this concept from the sovereign power (Foucault) to the forms in which democratic discourse can be renewed when the State is becoming increasingly authoritarian (as it does today)—when the State forecloses the freedom of speech, academic freedom, intellectual freedom, and, in general, the necessary practice of having democracy submit itself to constant critique.6
This renewal implies a politics of the soul that is an awakening of both the external senses and the internal post-sensorial operations. This politics is described in several commentaries, philosophical interventions, political theories, and legal practices, which arise from the crucial tradition of Aristotle’s Treatise on the Soul and other related pieces of the Aristotelian corpus.7
The history of the expression lex animata is relatively clear and mostly stable. In general terms, the nómos émpsychos or lex animata is an ideal embodied in whoever represents the head of a central form of government: the basileús or king in Hellenistic thought, Moses in Philo of Alexandria, Jesus in Clement of Alexandria, or the Emperor in Justinian Roman Law.8 There are further variations or combinations of these possibilities in other historical moments.9
In some of these accounts, lex animata establishes a direct, unmediated relation to the logos or to the orthos logos, that is, the ultimate and the most-fair legal decision. In some of them, like Philo, there is a dichotomy between the living law—Moses, a person who channels God’s orthos logos—and the written law. According to the Hellenistic Pythagorean texts on politics and royal authority, preserved by Stobaeus in his Anthologia (with authors like Pseudo Ecphantos, Diotogenes, Pseudo Archytas, and Sthenides), the written law is apsychos (a term that translates as lifeless, although it can also be understood as soulless), while the king is nómos empsychos or living law. This apsychic character of the written law has its own genealogy, which is related to the distinction between living voice or the embodied form of address of the legal subject, and dead voice, which corresponds to the more permanent character of documentation and written statutes. The latter are dead insofar as they do not necessarily match a biological lifespan and are resistant to change due to being written objects.10
I do not intend to revive the idea, or the ideal, let alone the doctrine or the political theory of the lex animata, which, when used in the straightforward manner that it has been previously studied, directly points to the forms of authoritarianism that lie behind the idea of revelation I was considering above. Instead, I will open up the possibility of a different, more literal translation of the concept as ‘insouled law’ in following with Goodwin’s nineteenth-century translation of the Greek émpsychon as ‘a law endowed with a soul.’ 11 The question is: What does it mean for a law to be endowed with a soul? What soul is this and what are its limits? What would be the space of political action for such a soul—or in other words, how can we talk about the politics of the soul? I will seek inspiration for my answers in the medieval Iberian thinkers and lawyers.
Reading these Iberian thinkers could help us discover the possibility of how to liberate the concept of lex animata from the monopoly of sovereign power. Maybe this was not the intention of those medieval thinkers, but now we the poachers can imagine with them ways in which lex animata could be thought not as the sovereign central power, but, rather, as a political and legal actor. It is the individuals who are not necessarily professionals of law, but who are concerned with law. In other words, the animated law inheres in those whom the state has erased from the constitution of the state, citizens and non-citizens alike, those who within a democratic system decide not on the exception, but rather on the formation of multifaceted, interconnected forms of political action.
To be sure, some of those medieval thinkers also convey elements of mutual surveillance and forms of inquisitorial delation. Sadly, we live in an era in which those same inquisitorial forms and mechanisms of mutual surveillance and delation under the guise of processes of democratization of information are alive and well, maybe more than ever. There also lie some of the foundations of authoritarian theories and practices. And again, one should strive to shed light on those authoritarian practices, to not allow them to be hidden or disguised, let alone treated as unavoidable progress or as a price to pay for security. Indeed, those forms of mutual surveillance that negatively impact the freedom of speech, privacy, and foster new forms of slavery must be unveiled as well and fought against within the manifestations of democratic critique.
I suggest that the concept of lex animata could be used as a springboard for a radical examination of the forms of sovereign power and authoritarianism, on the rise across the globe and threatening—sometimes in the name of neoliberalism and conservatism—the political and legal conquests of constitutional democracies.
I will suggest that lex animata is an action and a political responsibility on the part of the citizens, political actors, and juridical persons––all those whom Frédéric Gros locates in an éthique du politique.12 This responsibility lies in the continuous and radical animation of law, in a permanent adoption of a soulful practice of checks and balances when the state structures have either failed or resigned to carry their responsibility. These checks and balances may have the same name as those that traditionally limit and constraint state action. But the point is that we need to redefine these checks and balances as a responsibility of those who participate in a constant, permanent, perhaps even radical democratic action. In other words, checks and balances are not necessarily related to the democratic terms or election periods, but rather to political action with no deadline (no election day). Maybe this is one of the possible ways in which the state can self-limit, as Balibar proposes, its own sovereignty: by recognizing the state not as an unreachable body, but as a result of the soulful action on the part of those, citizens and non-citizens, who participate in politics and legal thinking. If there is a relationship between state sovereignty and democratic citizenship, it must come from the redefinition of sovereignty as, precisely, something that does not inhere in the state, but rather in the very practice of daily democracy.
In other words, lex animata is our responsibility to re-appropriate the modes of perception and the right to carry out post-sensorial operations that do not fit with the narrowing concepts of democracy. The latter are currently producing innovative and more creative forms of authoritarianism. Lex animata works to unveil the masks of authoritarian practices, their ways to present themselves in society and public life, and the manner in which they foster superficial but basic agreement by promoting a broad brush-stroke critique that narrows down the complexities of present life, and, in particular, the present lives of those who are being pushed away at the borders during this rebirth of cruel nationalism.
The first order of business is to deal with the very meaning of the expression. Émspychos, as well as animatus, only means ‘living’ or ‘embodied’ if we consider it a metonymy. Otherwise, the lexical roots of those two adjectives are, respectively, psyché and anima, that is, ‘soul’. This is conceptually important, because I suggest that it is necessary to relocate the relationship between the law and the soul within a historical affinity between the legal discipline and the Aristotelian science of the soul, with a political projection that was underscored by the early Aristotelian commentators, in particular during the Middle Ages, and in particular in al Andalus, and then elsewhere. So, I will talk about lex animata from the perspective of what I have called a ‘legal soulscape’, that is, a kind of affinity between the law and the science of the soul.
The idea of affinity comes from Goethe. In Chapter Four of his Elective Affinities he calls affines those elements of nature which, after finding each other, get immediately interlinked and mutually determined. Weber used this idea to develop some of his sociological interpretations, although he never gave a full definition of the concept, relying, perhaps, on the knowledge of Goethe. I will loosely use the Weberian idea of affinity, as presented by Enrique Gavilán, who in his edition of Weber’s Sociology of Religion explains that “[affinity] is a reciprocal relationship of benefice between two phenomena (different from the situation in which one of them unilaterally produced the other). Affinity alone does not suffice as the explanation of a phenomenon— it requires the intervention of other elements.”13 Lex animata is perhaps the most central expression of an affinity that has many legs, and that composes a crowded legal soulscape.
Two preliminary questions: what is the science of the soul? And why would the legal science and the science of the soul become interested in each other? Jacques Lacan, in his seminar number 20, Encore, says that we think with our soul, and that, therefore, we think with Aristotle. The pervasiveness of Aristotelian thought cannot be exaggerated and sometimes it must be unveiled. When I talk about the science of the soul, I am talking about an Aristotelian creation. Aristotelian science of the soul includes Aristotle’s De Anima and the shorter treatises called Parva Naturalia, as well as the large tradition of commentaries on those treatises in the Mediterranean basin and beyond.14 One of the parts of this science is the discussion of the three faculties of the soul, sometimes simply referred to as the three souls. The first one, common to all human beings, is the nutritive or generative soul, the second is the sensitive or sentient one (I prefer the first form, which in Greek is called the aisthetikon), and the third one is the rational one. I will mostly focus on the sensitive soul, which is said to be common to all animated beings, both animals and humans, and that includes the five external senses, and, more importantly, the so-called internal senses, which include the five post-sensorial operations known as common sense, imagination, fantasy, thought (diánoia), and memory. I suggest that the sensitive soul is at the center of the affinity between the law and the science of the soul, precisely because it deals with sensations, affects, as well as internal faculties with which animated beings do things with those sensations and affects.15
The principal questions that the science of the soul asks are: What animates the being? If the soul is what animates the being, then, what is the soul? These questions are an entry door to further physiological and psychological questions: How does perception work? What do beings do with their perceptions? How does memory work? What do people do with memory? And what about animals? Is there an intellect that inheres in the soul? Is such an intellect purely individual? The investigation suggested by those questions is ultimately metaphysical; Andalusi and Parisian philosophers asked new questions that point in that metaphysical direction: Is the intellect something with which individuals think, or is it rather something with which individuals are thought? In other words, does the intellect of one single person die when the person dies, or is it some sort of superstructural intellect that outlives biological frailty? Does the soul belong to the person? Where does it go after the biological death of the natural person? The list of questions is much longer than this paper reasonably permits to include.16
The science of the soul constitutes a discipline to explore forms of subjectivity. The subject of such discipline is not only a body, but a soul. Its subject is not only the soul, but also the body. This is a different kind of breech into the subject, as the science of the soul and its ramifications in Politics, in Ethics, or in Rhetoric intend to understand how affects, perception, and post-sensorial operations work, but also how to manage them in a way that is politically and legally productive.
The lexicographical characteristics of the noun soul, furthermore, are historically complicated. One lexicographical problem regarding the soul and animation stems from the varied degrees of synonymy between soul and spirit created throughout time. In Chapter One of his Tractatus Theologico-Politicus, Spinoza comes up with seven semantic clusters regarding the varied meanings of spirit in the Hebrew text of the Bible (ruah), and their translatability into Latin. The ideas of the soul, movement, inspiration, animation, and others play a central role in his study of the semantics of spirit. Spinoza tries to rein in the meaning of a word that crosses freely the human and the divine, and that is sometimes a source of political and theological confusion.17
The interchangeability of ruah, spirit, and nephesh, soul, was frequent in the Middle Ages and the Early Modern period. The case is similar in Arabic, as the twelfth-century Saragossa philosopher Ibn Bajja reminds in his political treatise Regime of the Solitary: “In the language of Arabs, spirit [روح, rūħ] and soul [نَفْس, nafs] are the same thing, and philosophers use those terms as synonyms. Sometimes, with these terms, they refer to the natural warmth, which is the first organ of the soul.18 Ibn Bajja is probably echoing his near-contemporary, the Persian thinker and law scholar al-Ghāzālī. Al-Ghāzālī made a distinction between nafs, and rûh (spirit). The former refers to the lower soul that requires self-discipline, because it is the site of affects, the senses, and the post-sensorial, internal cognitive operations. Nafs, indeed, refers to what the Greeks called the psyché, the individual soul (as al-Ghāzālī himself calls it in book 32 of his Revival of religious Sciences, devoted to the discipline or riyâda of the soul). This self-discipline is the result of a process of self-examination. Rûh, instead, is the spirit, a transcendent form of being. However, al-Ghāzālī also concedes that those two words are to be understood as “the selfsame thing” and that they work as synonyms, insofar as, unlike the body, which comes from the realm of clay, both nafs and rûh are from the realm of God.
Equally exchangeable are the relevant nouns in Greek and in Latin. Rather than competing in the world of semantics, psyché and pneuma (or spiritus and anima) are collaborating to achieve their epistemological claims—namely that thought, feelings, and beliefs are part of the same path to knowledge. The introduction of new concepts, based on the readings of Aristotle’s De Anima, book 3, complicate the lexicographical labyrinth, as they present a synonym of nous (thought) with other faculties like intellectum, ‘aql, or the mind.
The extraordinary lexicographical complexity attached to the various terms meant to express the idea of “soul” presents an opportunity rather than an impediment for legal scholars. They see the productive side of invading a soul that is a combination of physical, physiological, psychological, and, of course, metaphysical elements. Getting to create such a complex subject from a legal perspective is the dream of the empire of law.
Legal discipline is not free from its own lexicographical issues. During the Middle Ages, the noun law was frequently used to describe religion. Establishing the topology of religion in terms of its legal sources was very astute on the part of scholars, theologians, and other intellectuals. Ever since Spinoza wrote his Tractatus we have been talking about political theology, but perhaps it would be more accurate to recognize that political theology is a disguise for the legal systems. Political theology permits legal systems to work as if they were not touched by either politics or theology, as if legal science held an intrinsic autonomy and was isolate from other disciplines, as if a legal system, as Luhmann characterized it, had its own auto-poetic form of internal replication and functioning.19
Specific agents, agents with names and places of origin, agents who lived in a specific city during a specific period of time, agents who were mostly male, to be certain, were the ones who made the affinity between the two disciplines possible. Perhaps because there was already an underlying common ground of metaphysical character, something linked to religious beliefs more than to any other thing—namely, the belief that the soul was something created and infused into a being to animate it. In some medieval paintings of the moment of conception, we see how a soul, transparent like a ghost yet shaped like a body, is sent into a physical body from a divine locus of enunciation.20
Perhaps these specific agents were all following in the footsteps of Socrates in Plato’s Gorgias. In it, Plato puts the following words in the mouth of Socrates: “The [art] that has to do with the soul, I call politics.”21 Immediately afterwards, he adds that the two components of politics are a savoir faire called legislation and a deeper concept called justice.22 This is what politics, the science of the soul, is about, and this is why Socrates can ask Kallikles, another one of his interlocutors, to agree to the following definition: “And the regular and orderly states of the soul are called lawfulness and law, whereby men are similarly made law-abiding and orderly; and these states are justice and temperance. Do you agree or not?” And Kallikles to say: “be it so.”23
Of course, this is not what normally interests those who study the Platonic idea of the soul, including Aristotle, who, setting the ground for the future commentators, focuses on Timaeus, an extraordinary work on cosmology and metaphysics that was at the center of the study of Platonism until Calcidius and beyond. But this idea of the ‘soul politics’, as it were, is crucial for all the other agents I was talking about, whether they knew about the text or not.
Those agents—Averroes, Ibn Bajja, Ibn Tufayl, Ibn Falaquera, Maimonides, Thomas Aquinas, Giles of Rome, Alfonso X of Castile and León, among many others whose names remain unspoken today—explore varied ways in which the legal science and the science of the soul interact.
Going forward, I propose to explore one of them—Alfonso X, the king of Castile and León. This exploration would give us a specific way to understand the challenges and the political productivity of the idea of lex animata or the legal soulscape.
In the piece of legislation I am about to briefly analyze, the notion of lex animata underlies the interconnections between the law and the science of the soul that endeavor to reformulate the legal subject.
This legislation comes from king of Castile and León Alfonso X’s Siete Partidas. The first edition of the Siete Partidas was composed between June of 1256 and August of 1265. Further editions have all sorts of variants, but none affects the main structure of the work.24 The Siete Partidas is a vernacular legal codification that, in seven parts, simultaneously addresses legal science and legislation regarding canon law, administrative law, procedural law, property law, family law, trade and commerce law, inheritance law, and criminal law.
The Second Partida, devoted to politics, society, and administration, addresses the people in titles 10-13. The first order of business in the legislation is to define the people.
Cuydan algunos quel pueblo es llamado la gente menuda assi como menestrales e labradores e esto no es ansi ca antiguamente en babilonia e en troya. e en roma. que fueron lugares muy señalados ordenaron todas estas cosas con razon e pusieron nonbre acada vna segund que conuiene pueblo llaman el ayuntamiento de todos los onbres comunalmente delos mayores e delos medianos e delos menores ca todos son menester: e no se pueden escusar porque, se han de ayudar vnos a otros porque pueden bien beuir e ser guardados e mantenidos. Partidas 2.10.1
Some think that the word people means the common people, as, for instance, artisans or peasants. But it is not so. For in ancient times, in Babylon, Troy, and Rome, which were very important places, all these matters were regulated according to reason, giving each thing its proper name. People are called the union of all men in common, those of superior, middle, and inferior condition. For all of them are necessary, and none can be excepted, for the reason that they are obliged to help one another in order to live well and be protected and supported.25
By stating that contrary to the common opinion that the notion of the people is composed of what were then thought to be lesser members of society, like peasants or artisans, these laws stipulate that it is composed of the totality of the citizens of the kingdom, regardless of their social or economic category and that they exist in a regime of solidarity. People is then a legal category encompassing all the juridical subjects of the kingdom, including the king himself, who also needs to examine and modify himself according to the laws—as the legislator stipulated in the First Partida.
A second definition follows shortly thereafter. According to this second definition, the people is nothing other than the sensitive (aisthetikon) soul of the kingdom—el alma sentidora. What did Alfonso X mean by that?
This definition comes after the legislator had briefly summarized the Aristotelian science of the soul, which, from about seventy years prior to the date of composition of the Partidas, and during the entire thirteenth century, was being commented on and debated. The lawmaker ended up inscribing in the law that, according to the philosophers (which he left unnamed, but he refers to an Aristotelian varied corpus, including the Aristoteles Latinus tradition of Arabic commentaries in translation) there are the three kinds of soul: a nutritive, sensitive or sentient, and a rational one.
Although Alfonso explains that the first kind of soul, the nutritive or generative one, is common to all beings. He sets it aside as the object of law. Since both in Latin and in Arabic the semantic field of intellectus and ratio or ‘aqlare linked to the rationality of the law, or to dialectical thought in regards of the law, one would expect that the legislator might devote more importance to the rational soul. However, he likens this rational soul to the concepts of love and fear––both affects and related to god as well as the king. The law does not provide the people with a set of tasks based on the rational faculty of the soul. It is possible that this equivalence between the rational soul and the king as the conduit of god comes from the Neopythagorical treatises on politics preserved by Stobaeus.26
The law considers the people as specifically the sentient soul of the kingdom, as the external and internal senses of the political entity transferred to the political person of the king. The people are responsible for perceiving through external senses, and for working internally with those perceptions through the five internal senses: common sense, fantasy, imagination, thought, and memory.
With this special kind of lex animata, we seem to enter into a very primordial equation of the noun with its adjective. There is no king to be lex animata, but rather a lex having an anima that is the people.
The Second Partida, title 13, includes eleven laws that explain, sense by sense, how the people constitute the sensitive soul of the kingdom. Each of the eleven laws has a tripartite structure. The first part includes a physical description of a specific sense; the second part gives a tropological interpretation of this sense, thus translating the physiology of the cognitive process into the political realm; in the third part, the law determines that failing to comply with this political interpretation of the sense would lead to a crime of lèse majesté.
I will offer just one example. The sense of sight, the legislator explains, is naturally devised to see things up close and in the distance and to distinguish forms and colors of things. The legislator’s philosophical sources include specific descriptions of the eye, theories of how it channels the images into the body, and debates about those theories in Avicennian and Averroistic philosophies.
The tropological interpretation of this sense regulates how it serves the purpose of seeing the name of the king, who is the projection of God, from different distances. Political and legal sight are fundamental to the protection of the king’s name, the king’s life, and the king’s reputation or fama—the integrity of his dignity. In this sense, the rhetorical device of tropological interpretation permits the transformation of physical sight into another kind of surveillance that leads to legal responsibility with political consequences.
The third part of law addresses legal responsibilities of the persona ficta, that is, the legal subject, the artificial person, by identifying the punishment due to those who break the second part of the law. Supporting his argument with the help of preexisting Iberian-imperial regulations, Alfonso specifies that breaking the legal-perceptive rule contained in the law is punishable by death, or, if the life of the convicted person is to be spared, he must have his eyes removed.27 The final connection between the crime, the tropological reading, and the legal consequences for the organ of external sense are thus established.
By describing each sense, the laws also give a typology of crimes against the king and the kingdom (crimen maiestatis or lesa maiestatis). In other words, misperception is what provokes the crime of lese majesté. The laws thus regulate how to understand legality. Understanding legality implies learning how to feel politically, how to manage political affects. Feeling politically, that is, learning how to translate feelings into political thought and political acts, is in its turn vital for legal concepts necessary for the integrity of the kingdom. Conversely, misperception and its political consequences may elicit the inception of a civil inquest. Indeed, notions linked by these laws to the senses, like fame (fama), rumor, public opinion and public knowledge, systems of observation, and perception of the functioning of the kingdom are at the core of a jurisdiction for which civil inquest, as regulated in the Third Partida (16), is a method of mutual surveillance. Each of the sensitive souls of the kingdom must be vigilant of what other sensitive souls perceive and how they act upon those perceptions, including their speech, since speech is related to the sense of taste through the tongue as its organ.
Along with political feelings and political aesthetics, these laws also stipulate the infractions against them, thus providing the client of law with an anti-aesthetics of power. Citizen’s virtue is learning how to read natural feelings as political. Sensory stimuli provoke positive political performance tuned to juridical aesthetics. Anti-aesthetic reactions to the same stimuli constitute the frontier of crime against the kingdom itself.
The question of mutual surveillance, fame, and perception are to be found throughout the legislation regarding the external and internal senses. I will simply focus on memory, the fifth and last internal sense to be the object of legislation, which is also at the top of the hierarchy of internal senses. Memory is the most important sense because it is a repository (repostura) and gatekeeper (guardador) of other senses, both internal and external, and it can assign a time to each of the things that have been registered and collected; these, in their turn, can be retrieved in due time.28
According to the corresponding tropological interpretation, the legislator identifies the two things that need to be remembered. In the first place, the people must remember power itself and sovereignty as the central expression of this power. People must also remember that sovereignty is above the people, as it is practiced by the king under the form of ordinary jurisdiction, as opposed to delegate jurisdiction.
The second thing the people must remember is what the Partidas refer to as voz muerta or the dead voice. Dead voice is the written expression of both the law and the legal documents. Indeed, the people must remember mandamientos and posturas. Mandamientos, or ‘commands’, are the set of rules and laws codified in the Siete Partidas. The posturas, however, are a larger body of written resolutions. The word postura is widely used in the Partidas to designate contracts, documents, and many other legal transactions that can be ascribed to the concept of the dead voice. The governing element of the concept of dead voice is a fictio legis, a fiction of the law that regulates how every single legal piece of the past needs to be treated as if it were new, thus transforming the temporality of the law in a permanent present. Remembrance is of the past, but, like dead voice itself, memory makes it new: to retrieve a memory means to enforce it again, by virtue of how such memory transmits the idea of sovereignty and the practices of legal, jurisdictional power.
The relationship between memory and written record has been fraught since Plato’s Phaedrus. What seems particularly important in this specific case, is that legislator, Alfonso, dissolves this relationship into a different one. In Alfonso’s view hypomnemata—that is, the collection of written reminders—is, in fact, memory, or better yet, memory for him is equivalent to written record. Alfonso erased the difference, even the teleology, of the narrative trope that established the transition from memory to written record.29 This erasure of the difference between memory and written record is possible because of the fictio legis governing dead voice.
Memory, finally, is not individual memory. It belongs to the juridical person, as do all the other senses that inhere in the sentient soul, for this soul is the site of the political responsibility of persona ficta. The soul of the juridical person or persona ficta is a soul defined by the management of legal and political affects, political emotions, and, ultimately, political memory. This is the real consequence of the politics of the soul and the legal soulscape. This, in the end, is what animates the law.
This short account gives us an idea of the legal and political possibilities of lex animata by exploring the legal soulscape. Alfonso’s underlying question is about who animates the law. And the answer is the legal subject, as he is the one who constitutes the fragmented, constellational, and sensitive soul of the kingdom.
It would seem that the affinity between the law and the science of the soul works at the level of the individual subject, whether that subject be legal or natural. In other words, it would seem that the affinity works at the level of disciplinary power, or, in the words of Michel Foucault,
a particular, as it were, terminal, capillary form of power; a final relay, a particular modality by which political power, power in general, finally reaches the level of bodies and gets a hold of them, taking actions, behavior, habits, and words into account; the way in which power converges below to affect individual bodies themselves, to work on, modify, and direct… ‘the soft fibers of the brain.’30
I have chosen this specific definition of disciplinary power both because it is one of the moments in Foucault’s work where he engages in a thorough definition of power and also because he himself is talking about the science of the soul, the psyche, from the perspective of his interest in forms of internment, criminal law, and punishment. This text comes from a lecture given at the Collège de France on Le pouvoir psychiatrique. We see the tentative character of the definition, the clash, as it were, of different forms of power circulation.
These clashing, or, perhaps, interlocking, forms of power circulation are fundamental to the affinity between the law and the science of the soul. Whereas legal treatments of the soul ultimately engage with this “final relay,” or this “capillary form of power” Foucault writes about, they are part of what he also calls sovereign power, that is, the central power of the king, the very act of primal authority.
The importance of the legal soulscape is indeed part of a disciplinary legal power that emerges at the same time as the concentric jurisdictional structures and is not as opposed to them. This double emergence of the disciplinary and the sovereign power within lawscapes is so pervasive that when Thomas Hobbes publishes the Leviathan in 1651, he devotes the introduction to the discussion of a juridical subject as a part of the state body. He also dedicates the first chapters of the book to the question of the external senses and internal faculties of the soul in order to appropriate the science of the soul for the examination of the legal and political body, or, as Foucault had it, to the political anatomy—which, for Hobbes, is essentially a legal anatomy.
I am suggesting that concentric monarchical ideas of power and practices of jurisdiction marshal disciplinary methods. Disciplinary methods displace the circulation of power not to the central jurisdictional power, but rather to the capillary environments which escape institutionalization, or that have hitherto escaped institutionalization. The processes of appropriation of the soul and its science by the legal discipline and the configuration of a legal soulscape are some of the ways to marshal such disciplinary methods.
All this gives us a different view on the lex animata, a view in which the combination of different sorts of power circulation may open up new lines of inquiry. The first line of inquiry may be—how can we use this affinity between law and science of the soul in a productive way? Can we imagine a lex animata of the modernity? To what extent can we modify the legal soulscape in the understanding that it is fundamentally political?
I will finish this with another concept that interconnects soul and law. In this concept, the individual combines the knowledge of the self and of legal wisdom. To this kind of combined knowledge al-Ghāzālī gives the name of faqih al-nafs, an expression that is difficult to translate. In the past, it has been frequently translated in a terse, soulless way as a ‘discerner of the self’. Faqih (fuqaha in the plural) is a judge who is well-versed in fiq or jurisprudence, and who is a wise person, knowledgeable in history and science. In a way, he is not unlike the prudent man in Aristotle’s Ethics and Politics—for he too understands that prudence is an ethical and dianoetic virtue.
A person translating this expression should not forget that it always comes up in juridical contexts. Al-Ghāzālī uses it in such contexts and so do Iberian muftis from the Middle Ages. A proper translation for this expression would apply to somebody who is a ‘judge of his own soul’, in a sense that this person possesses historical as well as ethical knowledge of the soul, and that he can discipline his own soul with specific techniques.
Legal interests of appropriation of the soul concern the sensitive soul––what al-Ghazālī calls the lower soul or the self in charge of perception and post-sensorial operations. It is, therefore, not an immortal soul, but a mortal life. In other words, when we talk about the affinity between the law and the science of the soul, what we are after is the way the law defines how a subject must—or should—perceive; which internal operations are lawful and which ones are not.
This fundamental distinction indicates that affinity between these two disciplines is instrumental for the creation of a juridical subject whose persona ficta, or artificial person, is her soul, rather than body. This is a way for the law to access perceptions and post-sensorial operations and to redefine them in legal, political, rather than natural terms. It then befalls the law to explain how the people, that is, juridical subjects, perceive and what they do with those perceptions.
Al-Ghazālī invents another notion: al-ḥadith al-nafs. It could be roughly translated as ‘the narrative that the soul presents to the self,’ the inner voice, the inner rationalization that agrees with the right and legal modes of perception and knowing of the self. It seems to me that the affinity of the law with the science of the soul aims to create that very narrative and to legalize it in a way that the legislators may hack the processes of subjectivity, the very construction of subjects.
As a medievalist, I am interested in the study of the Middle Ages. But I cannot read the Middle Ages without thinking that I am more interested in my young sons, or in the hundreds of thousands of people around the world right now, among whom some are privileged enough to stay at home because of COVID-19, while others may not even have a home where to take shelter. The way in which we perceive, imagine, memorize things is nowadays subject to scrutiny. The world of structures of power around us—of which the state is perhaps the least important one, if we compare it to the social media with its ability to gather information—is hacking our soul constantly, largely because we ourselves are eager to share those perceptions. Maybe, the study of the affinity condensed in the concept of lex animata can give us a perspective on how voluntary forms of servitude and legalization of the modes of perception and the politics of the soul have worked, and what kind of work they may still be doing at different levels of our existence, both private and public. The kinds of soul-storytelling that we put at the disposal of corporations and other structures of ultra-liberal domination may define how we build the soulscape around us.
1. Paul Zumthor, Essai de poétique médiévale (Paris: Seuil, 1972), 19.↩
2. Hans-Robert Jauss, “The Alterity and Modernity of Medieval Literature,” New Literary History 10 (1979): 181-229.↩
3.Some of the disputes against the appropriation of the Middle Ages by the right wing can be easily searched by means of the ever-present archival device we call hashtag. Some of them are #MedievalTwitter, #RaceB4Race, #ShakeRace, #LitPOC, and many others. I would be glad to add the names of those scholars whose work in the social networks have made a difference against this right-wing form of appropriation that is also based on white privilege, sexism, and, in general, racism. Those people include Dorothy Kim, Jonathan Hsy, Cord Whitaker, Jeffrey J. Cohen, Noémi Ndiaye, Nicholas Jones, Shama Boyarin, Sara J. Pearce, Mohamad Ballan, and many others. I will not, however, utter the names of the racists themselves. The disputes, academic and otherwise, also take place beyond (or maybe on this side of) the social network, in bookish form. Philippe Büttgen, Alain de Libera, and Irène Rosier-Catach edited the volume Les grecs, les árabes et nous: enquête sur l’islamophobie erudite(Paris: Fayard, 2009), to counter another book that I won’t even mention, in which the author (a professor of the École Normale Supérieure of Lyon) defended that Greek philosophical culture in the West did not owe anything to the Arab thinkers who translated and commented the corpus of philosophy, because the Mont Saint-Michel already contained the works in Greek of the corpus of Aristotle. As recently as 2018, a professor at Northwestern University redacted a book in which he intended to demonstrate the lack of worth of Andalusi culture in general. A professor of History at Chicago University, in contact with a prominent activist from the far right, continues producing work on the superiority of white Christians during the Middle Ages. And so on, and on, and on.↩
4.See the beautiful book by Peter Brown, The Ransom of the Soul: Afterlife and Wealth in Western Christianity (Cambridge: Harvard University Press, 2015). ↩
5. Michel de Certeau, “Lire: braconnage et poétique des consommateurs,” Projet 124 (1978): 447-457. This article was then re-used for his book L’invention du quotidien I. Arts de faire (Paris: Union Générale d’Éditions, coll., 1980), 279-296. ↩
6. Michel Foucault, Psychiatric Power. Lectures at the Collège de France, 1973-1974 (New York: Palgrave, 2008), 41; Etienne Balibar, Libre Parole (Paris: Galilée, 2018). ↩
7. Maybe it is convenient to notice that I am not suggesting a revival of Aristotelianism as a philosophical model, but rather acknowledging the extraordinary weight is has had in traditions of thought that I suggest to reexamine in order to reflect on contemporary affinities between the science of the soul, the legal science, and political theory.
8. Although I am proposing lex animata as a concept, I don’t want to extend the categorization of concept to all iterations of lex animatahappening in history. In other words, I want to reserve the concept to the one I am proposing. Now, Artur Steinwenter called lex animata a politische Theorie, and some other scholars have called it ‘an ideal’ (for instance, John Martens). Kantorowicz refers to it as a ‘doctrine’. I may use all those terms, and even that of simply ‘expression’ to consider historical ideas about lex animata. ↩
9. Bibliography on the subject is large, but at the same time it follows on the footsteps of a closed tradition inaugurated in hellenistic times around the group of treatises, or fragments of treatises, known as Perí Basileías, or On Monarchy, preserved in the second part of the Anthologia of Stobaeus. Stobaeus gathered those fragments of authors like Pseudo Ecphantus, Pseudo Archytas, Diotogenes, or Sthenides. In English, the treatises were compiled and translated in the work of Thomas Taylor, Political fragments of Archytas, Charondas, Zaleucus, and other ancient Pythagoreans, preserved by Stobaeus, and also, Ethical fragments of Hierocles, the celebrated commentator on the golden Pythagoric verses, preserved by the same author, translated from the Greek (Chiswick: Taylor, 1882). See Antonella Squilloni, “Il significato etico-politico dell’immagine re-legge animata. Il ‘nomos empsychos’ nei trattati neopitagorici ‘Peri Basileias,'” Civilità Classica e Cristiana 11.1 (1990): 75-94 . Arthur Steinwenter, “Nomos Empsychos: Zur Geschichte einer politischen Theorie.” Anzeiger der Akademie des Wissenschaften in Wien 133 (1946): 250-268, considers it a political theory. Kantorowicz thinks of lex animata as a doctrine to emphasize monarchical power, in The King’s Two Bodies (Princeton: Princeton University Press, 1957). Although lex animata may have appeared as a political theory, or at least as a theory of a particular political idea (namely, the centrality of monarchical power), it cannot really be considered a doctrine, as it never became a mainstream operative discourse—unlike the theocracy of some monarchies, like the French during the Middle Ages, or the English during the Early Modern period. There are hosts of shorter essays to explain the peculiarities of the expression in specific authors, that shed light on the metaphoric character of the notion. See for instance John Martens, “Nómos empsychos in Philo and Clement of Alexandria,” in Hellenization Revisited: Shaping a Christian Response Within the Greco-Roman World, ed. Wendy E. Helleman (Lanham: University Press of America, 1994), 323-338. Justinian included this idea in his Novellae, 105.2.4: “Omnibus enim a nobis dictis imperatoris excipiatur fortuna, cui et ipsas deus leges subiecit, legem animatam eum mittens hominibus: eo quod imperatori quidem iugis indesinens <est> consulatus omnibus civitatibus et populis gentibusque in singulis quae placent distribuenti, advenit autem cum ipse annuerit trabea, ideoque et imperii consulatus per omnia sit sequens sceptra.” The idea probably arrived to Justinian through the Byzantine interest on this possible political theory, that some Christian authors, including Eusebius of Caesarea, fought against. See also J.H. Burns, ed., The Cambridge History of Medieval Political Thought (Cambridge: Cambridge University Press, 1988), 25-28, 64. It is not unlikely that the knowledge of the nomos empsychos / lex animata trope in the Latin Middle Ages owes a lot to the work of Eusebius, which was translated, complemented, and commented by Hyeronimus of Stridon (saint Jerome).
10. For this, see my book Dead Voice: Law, Philosophy, and Fiction in the Iberian Middle Ages (forthcoming from University of Pennsylvania Press). ↩
11. Plutarch. Perí tou eauton epainein anepiphthonos. De laude ipsius [contra invidia], in Plutarchus: Moralia. III. 544E, eds. M. Poehlenz and W. Sieveking (Leipzig: Teubner, 1972), 385. English translation of William Watson Goodwin, Plutarch’s Morals. Vol. 2. (Boston: Little, Brown, & Co., 1874), 306-325. (the latter, accessible through Perseus Digital Library). ↩
12. Frédéric Gros, Désobéir (Paris: Albin Michel, 2017), 36-37. ↩
13. Weber, Max, Sociología de la religión, ed/trans., Enrique Gavilán (Madrid: Istmo, 1997), 448.
14. Sander W. De Boer, The Science of the Soul: The Commentary Tradition on Aristotle’s De Anima. C 1260-c. 1360 (Leaven: Leuven University Press, 2013). ↩
15. The distinction between external senses (as the organs of perception), and internal senses (to name the post-sensorial operations) derives more directly from the commentators of Aristotle’s work. More concretely, it seems that the parallel between the five internal senses and the five external senses could come from the Arabic tradition, and more in particular the Rasāʾil or Letters of the Ikhwān al-Ṣafāʾ or Brethren of Purity. Farhad Daftary, Epistles of the Brethren of Purity, the Ikhwān al-Ṣafāʾ and their Rasāʾil: an introduction, ed. Nader El-Bizri (Oxford and New York: Oxford University Press, 2008). Letters 32-36 are devoted to the soul and the intellect. See the new edition of these letters: Paul E. Walker, Ismail K. Poonwala, David Simonowitz, Godefroid de Callataÿ, ed/trans., Epistles of the Brethren of Purity: Sciences of the soul and intellect. Part I, An Arabic critical edition and English translation of epistles 32-36 (Oxford and New York: Oxford University Press, 2015). See Henry Austryn Wolfson, “The Internal Senses in Lartin, Arabic, and Hebrew Philosophic Texts,” The Harvard Theological Review 28.2 (1935): 66-133; E. Ruth Harvey, The Internal Wits. Psychological Theory in the Middle Ages and the Renaissance (London: Warburg Institute, 1975). ↩
16. Some of those questions have become the bread and butter of philosophical historical inquiry, of theology, and of metaphysics altogether. Some of them were constantly questioned during the 13th century in cities and universities. There were edicts prohibiting specific theses regarding the soul and the investigation on the soul, and the best known is the one promulgated by the bishop of Paris, Etienne Tempier, in December of 1277. D. Piché, ed., La condemnation parisienne de 1277. Texte latin, traduction, introduction et commentaire (Paris: Vrin, 1999); Roland Hissette, Enquête sur les 219 articles condamnés à Paris le 7 mars 1277 (Louvain: Université de Louvain, 1977). Among the vast bibliography about the preeminence of the study of the soul in Paris and other centers, under the influence of Arabic Andalusi commentaries, one could mention as the most innovative the work of Alain de Libera and his archeology of the subject: Thomas d’Aquin, L’Unité de l’intellect contre les averroïstes (Paris: Vrin, 2004); Métaphysique et noétique. Albert le Grand (Paris: Vrin, 2005); Archéologie du sujet. I. Naissance du sujet (Paris: Vrin, 2007); Archéologie du sujet. II. La Quête de l’identité (Paris: Vrin, 2008); Archéologie du sujet III. La double révolution.L’acte de penser, 1 (Paris: Vrin, 2014). L’invention du sujet moderne (Paris: Vrin, 2015). Also, Alain Boureu, De vagues individus: la condition humane dans la pensée scholastique (Paris: Les Belles Lettres, 2008). ↩
17. Baruch Spinoza, Traité théologico-politique. Oeuvres III, trans. Jacqueline Lagrée and Pierre-François Moreau (Paris: PUF, 2012). In his recent complete translation of the Hebrew bible, Berkeley professor Robert Alter decided to get rid of the English word soul as a translation for the Hebrew nephesh in a very bold and interesting movement. Spinoza, in a certain way, already warned, basing his attention of the word ruah (also translatable by ‘soul’, but more related to the English ‘spirit’) of the complications derived from the introduction of a theological concept of soul of Christian origin. See Robert Alter, trans., The Hebrew Bible (New York: W.W. Norton & Co., 2018). Alter addresses the question of translating nephesh as ‘soul’ on a few occasions, including his interviews with NPR and The New York Times. ↩
18. Ibn Bayya, Régimen del solitario, ed. Joaquín Lomba (Madrid: Trotta, 1997), 111. “The first organ of the soul” refers most probably to the Greek concept of entelechía. ↩
19. Nicklaus Luhman, Law as a Social System, trans. Klaus A. Ziegert (Oxford: Oxford University Press, 2004). ↩
20. See Jérôme Baschet, Corps et âmes. Une historie de la personne au moyen âge (Paris: Flammarion, 2016). ↩
21. Plato. Gorgias 464b, in Plato. III. Lysis. Symposium. Gorgias, ed. W.R.M. Lamb (Cambridge, MA: Harvard University Press, Loeb Classical Library, 1991), 316-317. I offer here a slightly different translation. “δυοῖν ὄντοιν τοῖν πραγμάτοιν δύο λέγω τέχνας: τὴν μὲν ἐπὶ τῇ ψυχῇ πολιτικὴν καλῶ” (“There are two different things to which I assign two different arts; the one that deals with the soul, I call politics.”) ↩
22. The Greek word is κολακεία, which translates as ‘flattery’ or ‘fawning’ but in the end points to the fact that it is not an art, but a way to do things, a savoir faire (Gorgias 465b) (see LSJ). ↩
23. Plato, Gorgias 504d. ↩
24. The material history of the dissemination of the Partidas tells a different story that I explored in an essay a few years ago. ↩
25. It is important to note here that the Partidas always reads “hombres,” or “men.” Sometimes I translate this as ‘men’, literally following the text and following Scott, and other times I translate this as ‘humans’, following the specification made by Alfonso in Partidas 7.33.6 in which he explains that “man” means both “man and woman.” Partidas 1.2.5 also defines the concept of “pueblo”: “Pueblo tanto quiere dezir como ayuntamiento de gentes de todas maneras de aquella tierra do se allegan. E desto no sale ome ni muger, ni clerigo ni lego.” (“Pueblo is the gathering of all the people from all categories in the land on which they converge. And there is no exception as to whether it is man or woman, cleric or secular.”) ↩
26. Antonella Squilloni, “Il significato etico-politico dell’immagine re-legge animata. Il ‘nomos empsychos’ nei trattati neopitagorici ‘Peri Basileias’,” Civilità Classica e Cristiana 11.1 (1990): 75-94. According to Squilloni’s interpretation “nello stato il capo compie la funzione dell’anima razionale, il cittadino quella della parte irrazionale e l’obbedienza alle leggi corrisponde alla moderazione delle passioni. Proiettando le considerazioni psicologiche sul piano politico, si puo dire che come la virtú morale era costituita dall’accordo dell’elemento razionale con quello irrazionale, così la virtú politica risulta dall’accordo dei governanti e di colora che sono governati.” (85) Only the first part of the analogy is possible here, although none of the authors make it as explicit as Alfonso does within the legislation. ↩
27. See Augustin. Confessions, 10. Now, also, Peter of Limoges, The Moral Treatise on the Eye (Toronto: Pontifical Institute of Medieval Studies, 2012); The “Fuero antiguo de España” or “ancient charters of Spain” (that is, the Liber Iudicium). ↩
28. Augustin, Confessions, 10; Mary Carruthers, The Book of Memory (Second Edition), (Oxford: Oxford University Press, 2001). ↩
29. See the wonderful and groundbreaking work of M.T. Clanchy, From Memory to Written Record: England 1066–1307 (Malden, MA: Wiley-Blackwell, 2012). Also, Sebastian Sobecki, Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463–1549 (Notre Dame, IN: University of Notre Dame Press, 2015).↩
30. Michel Foucault, Psychiatric Power. Lectures at the Collège de France, 1973-1974, 41.