Abstract
Art often follows the (contradictory) biblical texts which tend to impose a predetermined punishment in a summary way. To any contemporary jurist this is harsh; and it becomes totally repugnant when one considers with little short of amazement the severity of penalties envisaged by texts such as Leviticus159 and Deuteronomy.160 These, it must be remembered, are not ordinary laws but laws given to man by his God. This is an aspect of the problem that these great works of art raise but few if any seem to have addressed in any great detail. To the extent that I am aware of, this is, indeed, true even of the huge literature generated about Paradise Lost, even after the re-orientation this discussion received following the appearance of the seminal monograph Surprised by Sin first published in 1967 by Professor Stanley Fish, now of Duke University in the USA.
21.13: death for homosexuality; 21.15: death to those who rape animals.
22.22-4: death for a woman guilty of adultery; 21.18-21: death by stoning for a son denounced by his father as “stubborn and rebellious”.
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References
(1723) 1 Stra. 557.
Judge Pitt Taylor’s A Treatise on the Law of Evidence (12th ed. by R. P. Croom-Johnson and G. F. L. Bridgman), 2nd vol. (1931), note (o), at p. 1095.
Matt. 25, 31 ff.
R. F. V. Heuston, Essays in Constitutional Law (2nd ed. 1964), p. 185.
Paradise Lost and the Seventeenth-Century Reader (1947, reprinted 1964), at p. 107.
The Works of John Milton, xv, 181–83.
Caesarius de Heisterbach, quoted in extract in Life in the Middle Ages (selected and translated and annotated by G. G. Coulton C.U.P. (1967), pp. 67–68. True to Christian tradition, the Abbot of Cîteaux who gave the orders of the massacre was, subsequently, promoted to Archbishop of Narbonne while Pope Innocent III, known often as the Great, rejoiced that, through this incident, God had “enabled as many as possible of the faithful to earn by their extermination a well-merited reward.” Today’s lawyers might have been tempted to think in terms of crimes against humanity! Whose attitude is better? That is not the point. More to the point is that a particular conception of justice and behaviour, lauded eight centuries (or more) ago, would be condemnable by all today.
1 Kings 3:16.
For a feminist interpretation of this famous incident see Professor Ann Althouse’s “The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook,” 88 Northwestern Uni. L. Rev., 914 (1994).
To my knowledge the most balanced (and intriguing) legal interpretation of this instance of Solomonian justice can be found in Professor L. H. LaRue’s “Solomon’s judgment: a short essay on proof,” 3 Law, Probability and Risk (2004), pp. 13–31.
For instance, Exodus, 21.
In his Kreutzer Sonata, published in 1889.
Leviticus 21:13. It is, for me, particularly interesting to see that this “move” towards a “different” approach to the problem can be found as early as in Dante’s Hell — Canto 15 and 16 — where, though homosexuality is condemned by the very Christian poet, it nonetheless receives a compressed and nuanced treatment that does not tally with earlier religious understandings. After all, Dante is guided to his redemption by Virgil; and it is in his second Eclogue that we find the shepherd Corydon yearning for the lovely Alexis. I see this treatment of homosexuality by Dante as providing early signs of the “spring” of humanism or, to put it slightly differently, the beginning of the return to classical antiquity.
“An Essay in Autobiography” reprinted in Poems 1955–1959 and An Essay in Autobiograpy, Harvill Pres ed. (1990), p. 39.
In the context of imposing the sentence of life imprisonment the German Constitutional Court put the point beautifully when it said in BVerfGE 45, 187 at 229: “With all this, one must not lose sight of the following: Human dignity is something that cannot be disposed of without more. Insight into what is required by the obligation to respect it cannot be separated from historical development. The history of the practice of criminal law shows clearly that most cruel methods of punishment were replaced by milder penalties. Progress leading from crude to more human, from simpler to more differentiated forms of punishment has continued, with the distance yet to be covered becoming clearly recognisable. Any judgement on what [which treatment] accords with human dignity can therefore rely only on the present state of knowledge and insight, and cannot rightly demand to be considered valid timelessly”.
See, for instance, the jury verdict in the Pontyn case the details of which can be found in the following BBC file note http://news.bbc.co.uk/onthisday/hi/dates/stories/february/16/newsid_2545000/2545907.stm Last viewed in September 2006.
“Sex in Literature,” published in the Sunday Telegraph, No. 87 (30 September 1962) and reprinted in Lesley Walmsley (ed.), C. S. Lewis, Essay Collection. Literature, Philosophy and Short Stories (2000), p. 71.
Charles Matthew v. The State [2004] 2004 WL 1372517 at p. 8.
In a famous “death sentence” case the South African Constitutional Court, which decided against the legality of its imposition, referred to the idea of a forgiving society as a factor to be taken into account when deciding the issue before it. Thus, see, The State v Makwanyane and Mchunu (Case No. CCT / 3 / 94 of 6 June 1995).
The late E. H. Gombrich, The Story of Art (11th ed. 1966, reprinted 1967) at p. 227 talks of life entering the “beautiful body of vigorous youth.” The lawyer’s mind, duller than that of the art historian, needs proof to be convinced, and I see none in either the depiction of the creation or in the story of life in Eden to suggest “vigour”.
Dr. Northrop Frye, analysing the Miltonian texts, comes close to the same ideas when he states that these texts “suggest that we ought to revise our conception of creation: it is not so much imposing form on chaos as incorporating energy into form.” See The Return of Eden: Five Essays on Milton’s Epics (1966), p. 52.
125 S. Ct. 1183, 1195 (2005).
“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.” See Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869 (1982).
“[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting.” See Steinberg and Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty,” 58 Am. Psychologist 1009, 1014 (2003).
For instance, Justice Scalia at p. 1126.
536 U.S. 304 (2002).
Matthew, 18.22.
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(2007). Just Deserts?. In: Good and Evil in Art and Law. Springer, Vienna. https://doi.org/10.1007/978-3-211-49919-1_4
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DOI: https://doi.org/10.1007/978-3-211-49919-1_4
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