Justice Blindfolded: The Historical Course of an Image [1 ed.] 9789004368675, 9789004362208

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Justice Blindfolded

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_001

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Catholic Christendom, 1300–1700 Series Editors Giorgio Caravale, Roma Tre University Ralph Keen, University of Illinois at Chicago J. Christopher Warner, Le Moyne College, Syracuse

The titles published in this series are listed at brill.com/cac





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Blindfolded Justice, from the title-page of the Penal Constitution of Worms, printed at Frankfort by Christian Egenolff (Egenolph), c. 1531. From a copy of the 1553 edition. Munich, Staatsbibliothek.





Justice Blindfolded The Historical Course of an Image By

Adriano Prosperi Translated by

John Tedeschi Anne C. Tedeschi

LEIDEN | BOSTON

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The translation of this work has been funded by SEPS –SEGRETARIATO EUROPEO PER LE PUBBLICAZIONI SCIENTIFICHE

Via Val d’Aposa 7 – 40123 Bologna – Italy [email protected] – www.seps.it This book has been translated thanks to a translation grant awarded by the Italian Ministry of Foreign Affairs and International Cooperation. Questo libro è stato tradotto grazie ad un contributo alla traduzione assegnato dal Ministero degli Affari Esteri e della Cooperazione Internazionale Italiano. Cover illustration: Giuseppe Valeriano, Gaspare Celio, Cristo bendato (Ludibrio di Cristo nel pretorio). 1596-1597. Chiesa del SS. Nome di Gesù, Roma (Lazio, Italia). Original title: Giustizia bendata. Percorsi storici di un’immagine (Giulio Einaudi Editore). Copyright ©2008 by Adriano Prosperi Library of Congress Cataloging-in-Publication Data Names: Prosperi, Adriano, author. Title: Justice blindfolded : the historical course of an image / by Adriano Prosperi ; translated by John Tedeschi, Anne Tedeschi. Other titles: Giustizia bendata. English Description: Leiden ; Boston : Brill, 2018. | Series: Catholic Christendom, 1300-1700, ISSN 2468-4279 | Includes index. Identifiers: LCCN 2018028209 (print) | LCCN 2018031861 (ebook) | ISBN 9789004368675 (E-book) | ISBN 9789004362208 (hardback : alk. paper) Subjects: LCSH: Justice (Personification) | Justice in art. Classification: LCC N7745.J87 (ebook) | LCC N7745.J87 P7613 2018 (print) | DDC 700/.453--dc23 LC record available at https://lccn.loc.gov/2018028209 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2468-4279 isbn 978-90-04-36220-8 (hardback) isbn 978-90-04-36867-5 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Contents

Contents Preface to the Italian Edition ix Preface to the English Edition xvii Figures  xx xxIv 1 Scale and Sword, Eyes and Blindfold: the Attributes of Justice 1 2 Justice, That is to Say God 12 3 The Blindfold 35 4 Jesus, Barabbas and the Good Thief  74 5 Justice and Grace 83 6 Miracles and Salvation 138 7 The Divine Eye of the Law 175 8 Changes in Symbols 214 9 The Veil of Justice and the Risks of the Limelight 236 Select Index of Names 253 254

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PrefacePreface to the Italian to theEdition Italian Edition

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Preface to the Italian Edition A Very Beautiful Blindfolded Woman I saw a beautiful woman with bandaged eyes Standing on the steps of a marble temple. Great multitudes passed in front of her, Lifting their faces to her imploringly. In her left hand she held a sword. She was brandishing the sword, Sometimes striking a child, again a laborer, Again a slinking woman, again a lunatic. In her right hand she held a scale; Into the scale pieces of gold were tossed By those who dodged the strokes of the sword. A man in a black gown read from a manuscript: “She is no respecter of persons.” Then a youth wearing a red cap Leaped to her side and snatched away the bandage. And lo, the lashes had been eaten away From the oozy eye-lids; The eye-balls were seared with a milky mucus; The madness of a dying soul Was written on her face— But the multitude saw why she wore the bandage.1 The author of this poem was a lawyer who, between one trial and another, furiously pursued a poetic ambition, an ambition that was crowned by success when in 1915 he published what would become his most famous work, the Spoon River Anthology from which the above passage is taken.2 In the Anthology the text is presented as the comment of a journalist, Carl Hamblin, dedicated to the memory of Chicago’s anarchists. In 1904 Edgar Lee Masters had defended—in vain—before the Supreme Court in Washington an Englishman 1 Edgar Lee Masters, Spoon River Anthology. With a New Introduction by May Swenson. Tenth Printing (New York: Collier Books, 1967), p. 148 (“Carl Hamblin”). 2 The complete edition had been preceded by the serial publication in Reedy’s Mirror under the pseudonym of Webster Ford and by critical essays on American imperialism (see Herbert K. Russell, Edgar Lee Masters. A Biography [Urbana-Chicago: University of Illinois Press, 2001], pp. 57-61).

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accused of anarchist sympathies.3 In his poem justice is portrayed as a beautiful blindfolded woman. The official significance of the blindfold is explained by the man in a black toga: justice “is no respecter of persons.” The truth discovered by the young revolutionary in a red beret is another: justice is possessed by “the madness of a dying soul.” The text appears under a pseudonym. Masters would only disclose his true identity in January 1915. Justice, mad or impartial? That justice about which Carl Hamblin spoke in Masters’ poem was not impartial: the sentence to death of seven anarchists at the conclusion of the great demonstrations of 1 May 1886 agitating for an eighthour work day, would leave its mark on the history of the lower classes of the entire world. Of those victims of a ferocious vendetta between classes there would be a lasting trace in memory: the consecration of 1 May as the International Day of the Worker was the most celebrated consequence. Masters’ poetic text also is part of that inheritance with its youth in a red beret. In Italy a demand for justice was recognized when his words were inscribed on the tombstone of a Milanese anarchist: Giuseppe Pinelli, the railway employee who died under obscure circumstances while he was being interrogated in Police Headquarters in Milan about the carnage perpetrated in the Banca dell’Agricoltura in December 1969—a great mystery that continues to hang over contemporary Italian history. From the day of that bloodbath, the first of many, the ancient specter of justice denied has recurred to haunt the consciousness of Italians, inspiring political pamphlets and stimulating impassioned debates. Today the image of blind justice and the dream of impartial justice appear continually in the country’s daily press, telling of judges who were threatened or killed because they were honest, and also of corrupt judges: a country where the difficulty of obtaining legal justice has become so onerous as to discourage anyone from knocking at the courthouse door. One word still, occasionally, revives discussions about the administration of justice: grace. When it is uttered it frequently finds itself linked to a series of terms that are more or less connected. They extend from the granting of pardon to amnesty, repentance, regeneration, recovery. The lexicon of this strange linguistic family, in its confused commingling of such disparate things as the Christian idea of 3 It concerned the trial “United States versus John Turner”: on that occasion Masters spoke passionately for over an hour before the Court on behalf of Turner, threatened with expulsion from the United States where he had come to lecture on the anarchist martyrs of 1887 (ibid., p. 49). In his autobiography Masters recalled Turner as a “philosophical anarchist,” in other words as one who had anarchist opinions “but did not throw bombs” (Edgar Lee Masters, Across Spoon River, with Introduction by Ronald Primeau [Urbana-Chicago: University of Illinois Press, 1991], pp. 274-275).

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mercy for the penitent sinner, the Jewish tradition of the jubilee as the periodic restitution of property and of liberty, the enlightenment confidence in the re-education of the delinquent, suffices to suggest why it is so difficult to achieve an understanding. But one thing is evident: today the historical and religious roots of the periodic cancellation of punishment have become progressively weaker and the hopes of the condemned are in the hands of the irregular functioning of an impersonal bureaucratic machine which cannot manage to cram into prison cells all the human beings that it would like and so now and then it produces a perfunctory skimming of the punitive kettle. Meanwhile in the speeches of protest, of hope, of deluded cynicism, of puffed up celebratory rhetoric, appear those symbols described in the poetry of Edgar Lee Masters: the sword, the scale, the blindfold. Ambiguous symbols: the official language endows them with a positive, solemn and reassuring significance which often returns like an echo turned into its opposite. The symbolic image of justice lends itself to celebration and to protest, to invective and to legitimation: and the efficacy of this text resides in having resurrected and dramatically resolved the dilemma which over the centuries has accompanied the symbol of the blindfold and which is frequently employed in current discourse. Here is an instance taken at random from an Italian daily paper: “I have always imagined ‘justice’ represented as a scale held in one hand and a sword with which to punish in the other. But now justice seems to me to resemble more the image that I have of ‘fate,’ blind fate. A justice consisting of preliminary hypotheses that already identify you as a criminal.”4 This passage, which appeared recently in a newspaper interview, testifies how deeply rooted is the habit of having recourse mentally to symbolic images. The deposit in memory of images of this type is what creates an inner expectation and allows the projection of symbols and meanings on external reality even when they are materially absent.5 And, as that passage demonstrates, the need to think through images has a special reference point. Justice with the scale and the sword and “blind” justice are perceived here as alternating symbolic messages: on one hand the power of judging and punishing exercised with open eyes and on the other a preconception which blindly determines the individual to be guilty without evidence of any sort. And yet the symbolic 4 From the letter of a reader, signed Alessio Pace, partially reproduced by the Tuscan daily, La Nazione, chronicle of Empoli, Wednesday, 28 March 2007, p. ii 5 On the participation of the observer as a condition of the illusion caused by the images, see E.H. Gombrich, Art and Illusion. A Study in the Psychology of Pictorial Representation. 6th ed. with New Preface (London and New York: Phaidon Press, 2002), chap. 7, pt. 1. Gombrich also speaks of “mental set”( ibid., p. 190).

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image that the lawyer Edgar Lee Masters used to encounter in his daily professional experience appeared to the public eye as exhibiting all those attributes as positive qualities: these were, as we recall, a beautiful woman with bandaged eyes Standing on the steps of a marble temple. In her left hand she held a sword. In her right hands she held a scale… Monumental representations of Justice still preside in those places where judges and lawyers carry on their work. Here are two examples chosen at random: the figure that dominates the Palace of Justice in Milan has its face uncovered; instead the figures which welcome visitors before the Supreme Court in Washington D.C. or the Palace of Justice in Brasilia have blindfolds over their eyes. But more than documents it is the thoughts of people who have to deal with the law which animate these figures, thoughts which do not only insinuate themselves among the daily preoccupations of defendants and litigants: they emerge and take the form of thought in the reflections, long pondered, of those who meditate on Justice, thinking of it as the key to the problems of the modern world. If we leaf through a work that in the last few decades has been central to the discussion on this subject—A Theory of Justice by John Rawls we discover that a fundamental element in his theory of justice is the “veil of ignorance,” in other words precisely the conceptual version of the symbol of the blindfolded eyes. But the Italian publisher placed on the dust jacket the reproduction of a celebrated painting by Paolo Veronese in which Justice (painted in 1551 and preserved in the Duomo of Castelfranco Veneto) bears the symbols of the sword and the scale but whose eyes are wide open and free of a blindfold.6 Evidently the symbol of the blindfold, widespread in Europe and especially in the Anglo-Saxon world, does not find a parallel in the otherwise great iconographic tradition of Italian art. Why? And how did the history of that image evolve? These are among the questions which initiated this investigation. In general, we are well aware that the play of symbols is historically determined. The language of images is capable of overcoming ordinary linguistic barriers and thus has always been a favorite of propaganda; but that this is apparent within a common culture is only discovered when our practices are juxtaposed to those of other cultures. One example: in Greenland the symbol of justice is 6 John Rawls, A Theory of Justice (Cambridge MA: Harvard University Press, 2003) [1971). On the “veil of ignorance” see the passages indicated in the index (p. 538).

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the image of a drum and two figures of litigants. This is due to the fact that in Inuit culture the judicial practice of the musical duel is traditional, in the course of which the guilty party will be compelled to confess the truth.7 It would seem that this culture has founded its idea of justice on the special value of the word in judgment and on the recourse to music as the way to re-establish a harmony violated by an infraction. On the other hand, as the example from Greenland demonstrates, an image is not a game that is an end in itself: through images the reality of the experience seeks to render itself understandable and in the process establishes more or less consciously a pre-existent deposit, which came into being in remote times, through causes now forgotten. In that justice, blinded by the suspicion about which the person interviewed by the newspaper speaks, facts based on reality meet images elaborated by culture. The reality of trial mechanisms and a mentality of a country where certain recent hasty reforms have not yet succeeded in cancelling out the ancient inquisitorial habit of considering the suspect a “criminal” and inflicting on him the burden of proving his innocence; or even distant images, crop up suddenly in the urgency of bitter experience. Perhaps it was the echo of a great literary text, Kafka’s The Trial and its unforgettable first words: “Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.” After this text, any discussion about justice and the penal trial necessarily must be post-Kafkian, about men over whom hang not only that unforgettable beginning of a sordid drama but especially that which was to follow and which Walter Benjamin thus foresaw in 1938: “… Kafka’s world, frequently so serene and so dense with angels, is the exact complement of his epoch, an epoch that is preparing itself to annihilate the inhabitants of this planet on a massive scale. The experience that corresponds to that of Kafka as a private individual will probably first become accessible to the masses at such time as they are about to be annihilated.”8 The oneiric logic (Günther Anders spoke of the logic of the fable) which governs Kafka’s account eliminates the possibility that he was attempting to give a realistic rendering in a historical and juridical sense. And yet for that suspension of everyday censures which sometimes render dreams profoundly 7 See Hanne Petersen, “On Law and Music. From Song Duels to Rhythmic Legal Orders?” Journal of Legal Pluralism, no. 41 (1998): 75-87. 8 The Kafka passage is quoted from his The Trial. Translated from the German by Willa and Edwin Muir. Revised, with Additional Notes by E.M. Butler (New York: Everyman’s Library, 1992), p. 1. Benjamin’s letter to Gershom Scholem, dated Paris, 12 June 1938, is in The Correspondence of Walter Benjamin, 1910-1940. Edited and Annotated by Gershom Scholem and Theodor W. Adorno. Translated by Manfred R. Jacobson and Evelyn M. Jacobson (Chicago and London: The University of Chicago Press, 1994), p. 564.

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truthful, Kafka perceived something that readers who came after him recognized from time to time in their own experiences. In his The Trial we find the anguish of an appalling century concentrated and anticipated, which would be remembered for the summary trials and the destruction of entire populations. One could speak of prophecy in a non-religious sense: in the sense of an intuition of the future concealed in the folds of a present where the deceptive perception of contemporaries abides like a simple extension of the most familiar forms of the past. Only through oneiric logic and a fantastic projection was Kafka able to perceive that unforeseeable assemblage of pieces of the past through which the future was taking form. And it was from reading Kafka that Walter Benjamin deduced with prophetic intelligence the imminent emergence of the extermination camps. From that time the image of historical knowledge proposed by Benjamin—to master the past so that it flashes like the gleam of lightning in a moment of danger—is destined to reappear before us every time we search for a guiding thread in the labyrinth of the present: we would grasp it willingly as a motto and herald of a tale open to duty and to the risk of deciphering reality. Let us return to that blind justice which appears in books and in thought: what inheritances of the past have composed the two faces of this image, the man in the black robes and the youth with the red beret? Because one thing is certain: a story lurks behind those symbols, and the efficacy of that poetic text resides in having recaptured and brusquely resolved the dilemma which through the centuries has accompanied the symbol of the blindfold. But even before this question a doubt assails us: in a reality dominated by the impersonal gaze, diffused and inexorable of a technology which misses nothing and that renders everything visible, what place can there still be for a symbolic image that exhibits a blindfold as a merit? The eyes of justice in the television age are pervasive, comprehensive, participated in socially by human masses which form and communicate by means of that sense that dominates all others, that of sight. The penal trials dramatized and viewed in all their aspects on the television screen have transformed every spectator into a potential judge. The vigilant eye of justice has become something akin to the eye of the television or of the satellites that rotate around the earth. And from the moment that the eye of the satellite is able to document our acts and behavior, the day approaches when judicial investigation and the role of the judge will be joined in a link between the eye of satellite cameras and that of television viewers, an immense collective body dominated by the new Leviathan which will guide its sight. What we have today, at any rate, is a provisional point of arrival pointing to something quite different: something of which we are ignorant. What we

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can learn through historical documents is the course that has brought us to this point. We shall try to accomplish it by following the traces of the meta­ morphoses of the image of justice over time—that image that reposes within us like an innate, unreflective possession but which is ready to awaken when a traumatic experience causes it to surface in our consciousness.

Acknowledgments

The research, the fruits of which are presented here owes its first and most decisive impulse to Mario Sbriccoli, a scholar who has given us exemplary studies on the tormented but always actual history of the relationship between power and justice. A first draft of this book profited enormously from the valuable advice I received from Gherardo Ortalli and Antonella Tarpino. Many useful suggestions subsequently came from many other persons on various occasions: I should like to thank at least Utzima Benzi, Sabino Cassese, Vincenzo Lavenia, Pasqualino Masciarelli, John Tedeschi, the jurist Alberto Mittone, and Prof. Umberto Vincenti. For the research on sources and the secondary literature I have found indispensable the efforts of the librarians of the Scuola Normale Superiore in Pisa and especially of the always assiduous and knowledgeable Dr. Laura Baschieri; for the dossier on German sources I have been able to count on the help of two colleagues from the University of Göttingen, Prof. Franziska Meier and Dr. ­Luciano Bossina. In releasing the volume I should like to thank in a special way Mariagrazia Negro of Edizioni Einaudi, the publisher of the original edition, who once again, knowing from past experience what awaited her, agreed to apply all her dedication and skill to the preparation of a text which has labored to assume its definitive form and has continually been modified by the author. I should also like to express my gratitude to Dr. Monica Aldi, also of Einaudi, for her generous commitment to the identification and insertion of the iconographic sources. Without the contribution of all the aforementioned this book would have reached port rich in defects and poor in imagery. Finally, a thought and a dedication to some persons who by their mere existence have made it wholly natural and instinctive to think of justice not as an abstract symbol but as a living expression of an undying hope, rooted in the patrimony of errors, delusions and hopes that every generation transmits to the next: these persons are my wife Anna, my daughters, Margherita, Marilena, Valentina, and my grand-daughter Sofia.

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We know how to speak many false things, as though they were true; but we know, when we will, to utter true things (Hesiod, Theogony, Hymn to the Muses, vv. 27-28. Translated by Hugh G. Evelyn-White, 1914). What is man, that thou dost make so much of him …? Why dost thou not pardon my transgression and take away my iniquity? For now I shall lie in the earth; thou wilt seek me, but I shall not be (Job 7: 17-21)

PrefacePreface to the English Edition Edition To The English

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Preface to the English Edition This book was first published in Italian in 2008. It is now presented to an Anglophone public in a modestly revised edition which corrects errors and takes account of recent contributions to the field. The scholarship that has appeared since the original edition has not substantially altered our understanding of the subject treated here. True, interest for everything that pertains to the power of images continues to grow, a consequence of that cultural unification of the world brought about by the diffusion of visual images. Even the field of legal justice is especially well tilled. The subject touches a basic collective concern, always capable of arousing intense emotions. And yet I believe I can state that no other work explores in its entirety the phenomenon that I have attempted to reconstruct here. To this should be added that the present translation fulfills one of the author’s strong desires, and not only because generally one aspires to surpass the limitations of one’s own language and turn a book into an instrument for the broadest possible dialogue. There is an objective reason for saying this: in large part the present work concerns Anglo-Saxon culture and a fundamental American symbol. It can be demonstrated by a simple consideration. The events that are recounted here using words and images begin with the appearance in a book printed at Basel in 1493 of a representation of Justice in the form of a woman and she, besides holding the traditional symbols of a scale and a sword, is blindfolded. With that singular attribute the author of the work, Sebastian Brant, a man of the law, hoped to convey to his readers his denunciation of law courts which, in his opinion, acted blindly and no longer fulfilled their basic responsibility. That small novelty in the portrayal of Justice enjoyed great and unexpected success. A debate erupted around the symbol of the blindfold that was especially lively in the Germanic world, at the time in the throes of social and religious conflict. On one side were aligned those who with the blindfold intended to denunciate the corruption and ineptness of judges; on the other, were persons who made it the symbol of the impartiality of justice guaranteed by the supreme authority of the prince, who did not direct his gaze to anyone’s face. These were the premises of long standing events also involving the schism in western Christendom. Behind the representations of the two human types of Justice, that involving the blindfold and the other with an unimpeded and free look, the antithesis between Protestants and Catholics was played out. Half a millennium later we find the image of blindfolded justice triumphant in the Anglo-Saxon world. In the U.S. it appears extensively in the court system: the splendid monument by James Earl Fraser in front of the Supreme Court

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building in Washington D.C. is a reminder that Justice is jealously defended by the Nation. This is just one of the reasons why this is a story that pertains to Anglo-Saxon culture and the American people. In the face of such an unforeseeable and vast success a question quickly arises: what transformed an unusual image, the polemical and satirical expression of the state of mind of a man of the law, a critical observer of his time, into a celebratory and solemn idea of justice that spread through a majority of European cultures and triumphed in one of the world’s principal democracies? Was it by chance? Actually by now we’ve learned that in the migration of symbols and in the refashioning of ancient images a latent memory of cultures is at work which selects certain characteristics and cancels others. There was obviously something directly persuasive concealed behind that blindfold, but what? Leaving the answer to that last question to those who will want to discover it by reading the book, we should recall in the meantime that the success of the image was neither total nor without ambiguity. In its diffusion the symbol of the blindfold over the eyes of Justice encountered an insuperable limitation in the barrier which separated Catholic and Protestant Europe in the 16th century. The grand heritage of Italian Renaissance painting had revived the classical tradition of representing Justice symbolically as a goddess and had circulated it broadly. It was impossible to find a seat of authority, secular or ecclesiastical, which did not display an artistic representation of the ancient goddess of Justice: but she was not blindfolded, on the contrary her most prominent quality was precisely a penetrating gaze capable of discerning crimes and punishing them. In the centuries that followed this tradition remained in force and was accepted by persons who had remained faithful to the Church of Rome, against the image of blindfolded Justice popular in the Protestant world as exaltation of the impartiality of the Christian prince. Not a universal success, then; but also not without some ambiguity. In fact, the character given to the symbol of the blindfold by the person who had invented it, the man of the law Brant, persisted and was always on the point of being revived: the blindfold as the intention of denouncing the blindness of a justice exercised by corrupt and inept judges. That this perception was strongly rooted is demonstrated yet again by a famous creation of American culture, the Spoon River Anthology, the celebrated poem by the jurist Edgar Lee Masters. Here the blindfold ripped by an anarchist from “a most beautiful woman,” the symbol of the judicial establishment, reveals the blindness and the folly of the administration of justice. In the revision of the book I have benefited greatly from the assistance of friends and colleagues to whom I am indebted for the translation and

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publication of the work, first of all the generous commitment of a consummate historian, Giorgio Caravale, who offered a place for this book in the distinguished series of which he is a co-editor and indefatigably exerted himself to raise the necessary publication subsidies. Equally, I should like to thank two old friends, John and Anne Tedeschi, not only for their clear and readable rendering of a difficult text but also for bringing to my attention a number of points where clarifications or corrections were required. Finally, I should like to acknowledge with my heartfelt gratitude the two Italian public institutions which generously defrayed the translation expenses: SEPS (Segretariato Europeo per le Pubblicazioni Scientifiche), and the Commissione per la Promozione della Cultura Italiana all’Estero (Commission for the Promotion of Italian Culture Abroad), under the auspices of the Italian Ministry of Foreign Affairs and the Italian Institute of Culture in London.

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Figures

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Figures

Facing title-page. Blindfolded Justice, from the title-page of the Penal Constitution of Worms, printed at Frankfort by Christian Egenolff (Egenolph), c. 1531. From a copy of the 1553 edition iv 1 Pietro da Miniato, Justice holding scale with single plate, fresco, c. 1415. Prato, Palazzo Comunale, Salone del Consiglio 2 2 The Egyptian goddess Ma’at, from the Book of the Dead of Hor, late New Reign. Turin, Museo Egizio, Cat. 1808. 4 3  The Litigants, allegory of Blindfolded Justice, woodcut (1493), from Sebastian Brant, The Ship of Fools, Basel 1494. 8 4 Theodor Van Thulden, Osculum Iustitiae et Pacis, oil on canvas, 1649. 15 5 Heavenly tribunal and earthly tribunal, oil on panel, c. 1400. 17 6 Giulio Clovio, Armed Justice kisses Peace, miniature from the Book of Hours of Cardinal Alessandro Farnese, 1546. 18 7  Pietas, Justicia, Equitas, miniature from a French edition of the Divinae Institutiones of Lactantius, c. 1525. 19 8 Gislebertus, the archangel Michael and the weighing of souls, relief, tympanum of the Autun cathedral, c. 1130. 22 9  Christ judge of the Apocalypse, miniature, c. 1400. 23 10 Albrecht Dürer, The sun of justice, engraving, c. 1499. 24 11 Jan Provost, The Last Judgment, oil on panel, early 16th century. 25 12 Ambrogio Lorenzetti, allegory of Justice, fresco, 1337-1340, detail from Gli effetti del Buon e del Cattivo Governo in città e nel contado. 30 13 Rogier Van der Weyden, the archangel Michael weighing souls, oil on panel, pre-1450, detail from the polyptych of the Last Judgment. 31 14 Albrecht Dürer, Melencolia I, engraving, 1514. 32 15 Idem, Four Horsemen of the Apocalypse, woodcut, 1498. 33 16 Sebastian Brant, A madman with a scale, woodcut from The Ship of Fools, Basel 1494. 37 17  The madness of blind judges, woodcut from the Constitutio penalis ­Bambergensis, Mainz 1507. 39 18 Cornelys Matsys, Justice and Prudence, engraving, c. 1538. 41 19 Gaspard Heuvick (also known as Gaspare di Puglia), allegory of Justice, oil on panel, 1589. 42 20 B. Salomon, In Senatum boni Principis, engraving from A. Alciato, Emblemata: in Senatum boni Principis, Lyons 1551. 46 21 Cesare Giglio, Judges with severed hands, fresco, 1604. 47

Figures 22

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A judge praying before a blindfolded Justice, wood, model for the bronze sculptures by Guillaume Dannole, 1552. 51 23 Peter Vischer, Luther and Justice, engraving, 1524. 53 24 Hans Holbein, the Younger, allegory of the Old and New Testaments, oil on panel, first half of 16th century. Edinburgh, National Gallery of Scotland. 57 25 Blindfolded synagogue with broken lance, sculpture, 13th ­century. 59 26 Benvenuto Tisi, known as Garofalo, representation of the Old ­Testament, fresco, first half of the 16th century, detail. Ferrara, ­Pinacoteca Nazionale. 61 27 Hans Holbein, the figure of Folly on a pulpit with a cap and bells on its head, from the Comment to the Encomium Moriae of Erasmus. 63 28 Coppo di Marcovaldo, Christ mocked, detail from a cross painted with scenes from the Passion, 13th century. 65 29 Beato Angelico, Christ mocked, fresco, fourth decade of the 15th century. Florence, Museo di San Marco. 66 30 Andrea Mantegna, Ecce Homo, painting on panel, c. 1500. Paris, Musée Jacquemart-André. 68 31 Matthias Grünewald, Christ mocked, oil on panel, 1504. 70 32  Christ mocked, detail from a polyptych at Opitter-Bree (Belgium), 1540. 71 33 Lucas Van Leyden, Ecce Homo, engraving from the Passion cycle, 1521. 72 34 Ferrarese school, Dante and the Justice of Trajan, miniature. 85 35 The legend of Trajan and of Herkinbald, tapestry, mid-15th century, detail (from Rogier Van der Weyden). 88 36 Christ the judge, detail from the Last Judgment, mosaic, 12th-13th centuries. Torcello, Cathedral of Santa Maria Assunta. 92 37  Justitia et pietas, lex et ius, miniature, from the Evangeliario of Henry II of Saxony (from Montecassino), Ratisbon, before 1024. 94 38 Giotto, Justice, fresco, 1302-1305. Padua, chapel of the Scrovegni. 103 39 Duccio di Buoninsegna, Christ blindfolded and mocked, 1308, detail from the predella of the Maestà. 106 40 Simone Martini, Diligite iustitiam, fresco 1315, detail from the Maestà. ­Siena, Palazzo Pubblico. 107 41 Battista Dossi, Justice, oil on panel, c. 1544. 108 42 Giovanni Pisano, Justitia and Temperantia, marble 1311, detail of the ­pulpit. 109 43 Andrea Orcagna, Justice, marble, 1359. Florence, Orsanmichele, ­tabernacle. 110 44 Jean de Boulogne, called Giambologna, Justice, bronze, second half of the 16th century. 111 45 Sassetta, Miracolo del beato Ranieri, the freeing of ninety poor prisoners from jail in Florence, oil on panel, 1437-1444. Paris, Musée de ­Louvre. 114

xxii 46

Figures

Cristoforo di Iacopo, flagellation and crucifixion with the martyrdom of Saints Lorenzo and Biagio. 115 47 Daniele da Volterra, allegory of Justice, fresco, 1532. Volterra, Pinacoteca e Museo Civico. 117 48 Filippo Calendario (?), allegorical representation of the city of Venice as Justice, relief, mid-14th century. 118 49 Justice, detail from the title-page of Lorenzo Priori, Prattica criminale, Venice 1622. 119 50 Paolo Caliari, called Veronese, allegorical representation of the city of Venice with Peace and Justice, mid-16th century. Venice, Doge’s Palace.­  120 51 Raphael, Justice, fresco, 1508-1511, detail. Vatican City, Monumenti, Musei e Gallerie Pontificie, Stanza della Segnatura. 123 52 Justice as a popular image, wall painting, 16th century. Vicosoprano, Switzerland, Palace of Justice. 124 53 The story of Antonio di Giuseppe Rinaldeschi, 1501, detail. 126 54 Gérard David, The Judgment of Cambyses: the corrupt judge, oil on panel, 1498. 129 55 Idem, The Judgment of Cambyses: the skinning alive of Sisamnes, oil on panel, 1498. 130 56 Hieronymus Bosch, Avaritia, detail of the seven capital sins, end of 15th century. 132 57 Jean Provost, Christian allegory, oil on panel, early 16th century. Paris, Musée de Louvre. 133 58 The Corrupt Judge, woodcut, from the Constitutio penalis Bambergensis, Mainz 1507. 134 59 Hans Holbein, The Corrupt Judge, engraving from Caspar Huberinus and Urbanus Rhegius, Simolachri, historie, e figure de la morte, Venice 1545. 136 60 Jacob Jordaens, Human Justice and Divine Justice, oil on canvas. 137 61  The Inquisitor, miniature, from the Decretum Gratiani with a gloss by Bartolomeo da Brescia, 14th century. 140 62 Enguerrand Quarton, the Trinity crowning the Virgin, oil on a panel, detail from the polyptych of the Crowning of the Virgin. 144 63 The Madonna, graffiti from the Inquisitorial prison of the Steri, Palermo, 17th century. 145 64 Christ condemned, graffiti from the Inquisitorial prison of the Steri, Palermo, 17th century. 146 65 Albrecht Dürer, Triumph of Maximilian I, pen and ink drawing, 1518. Vienna, Albertina, Graphische Sammlung. 149 66 Giorgio Vasari, allegory with Justice, Truth and Vices, oil on canvas, 1543. 150 67 Medal of the reign of Henry III, 1580-1587. 152

Figures 68 69

xxiii

Medal of Giacomo Antonio Moro for Pope Urban VIII, Justice, 1624, verso. 152 Vexillum Inquisitionis Hispanae, emblem of the Inquisition with the symbols of mercy. 154 70 Justice with the scale, fasces and Roman axe, typographical mark of the Roman Inquisition, detail from the title-page of the sentence in the trial of Sara Marini, Rome 1770. From the Sacra Congregatione Sancti Officii coram Sanctissimo Romana pro Sara Marini, ac Universitate ­Hebraeorum Urbis, et litis et c. contra DD. Philippum Orozonti, ac Sabatum Segni, et litis et c., Rome 1770. 155 71  Vexillum Inquisitionis Goanae, emblem of the Goa Inquisition with the symbols of mercy and justice and with the figure of the Dominican who watches over the Christian world. 162 72 The instruments of execution as Calvary, title-page from the Constitutio penalis Bambergensis, Mainz 1507. 165 73 The comforting of the condemned, woodcut from the Constitutio penalis Bambergensis, Mainz 1507. 166 74 The confession of the condemned, engraving, from Joost de Damhouder, Praxis rerum criminalium, Antwerp, 1562. 168 75 Domenico Ramponi, Comforting the condemned, illustration executed in 1818 for Giuseppe Guidicini, Vestiari, usi, costumi di Bologna cessati nell’anno 1796. 171 76 Ibid. 172 77 Hans Memling, Last Judgment, oil on panel, 1471-1473. Danzig, ­Pomorskie Museum. 174 78 Pieter Brueghel, Justice, engraving, 1558. 176 79 Two-fronted Justice, title-page from Joost de Damhouder, Praxis rerum civilium, Antwerp, 1567. 178 80 Utopian, irenic and protomasonic engraving, from Hendrik Niclaes, Eyn gebet in den geest, Antwerp, 1548. 179 81 Giacomo Lodi, One-eyed Justice surrounded by the coat of arms of the governing officials. (Anziani), miniature, from the Insignia of the Anziani, 1642. 183 82 Hans Gieng, fountain of Justice, Bern, 1543. 184 83 H. Henz, fountain of Justice, Aarau, 1643. 185 84 L. Perroud, fountain of Justice, Solere, 1561. 186 85 Joseph Werner, allegory of Justice, oil on canvas, 1662. 188 86 Johann Heinrich Schönfeld, allegory of blindfolded Justice, pen and ink drawing, 17th century. 189 87 Title-page of Hugo Grotius, De jure belli ac pacis libri tres…, ­Amsterdam, 1712. 190

xxiv 88

Figures

Abraham Bosse, Leviathan, title page from Thomas Hobbes, Corps politique, 1652. 193 89 Jost Amann, Justice as Fortune, printer’s mark for Sigmund Feyerabend, Frankfort 1560-1570. 197 90 Johann Daniel Preysler, blind Justice in the world illuminated by the law or the allegory of Jurisprudence, engraving, 1737. 200 91 William Hogarth, Paul burlesqued before the Roman official Felix, engraving 1751. 202 92 The Great Seal of the United States of America printed on a dollar bill. 204 93  Declaration des Droits de l’Homme. Declaration of the Rights of Man, engraving, 1789. 205 94 Pass issued by the Committee for Public Safety of the French Republic: Roman fasces, a cannon, the scale, 1793-1794. 206 95 Jeremy Bentham, plan of the Panopticon. The Works of Jeremy ­Bentham, tome 4. 208 96 Giovanni Lapi, Justice spurns the severed heads offered by the ­executioner, engraving from Cesare Beccaria’s, Dei delitti e delle pene, 3rd ed. Livorno, 1765. 216 97  Decollazione di San Giovanni Battista, engraving by Silvestro Neri, drawing by Domenico Fratta, Bologna 1733. 219 98 Francisco Goya y Lucientes, Divina razón, Indian ink and sepia, 1820-1824. 221 99 Henry VIII, presents the Bible to his bishops, engraved title-page, 1539. 223 100 Justice weighing souls, enamel (Meuse), 1160-1170, detail from a reliquary cross. 226 101 Jacques-Louis David, the execution of Marie-Antoinette, pen and ink drawing. 229 102 Female allegorical figure with the beret of the Revolution, celebratory postcard for the holiday of May 1, printed in Vienna, 1890. 231 103 Feminine allegorical figure representing “the defense of labor,” ­portraying Marx, Engels and Lassalle, commemorating May 1, published in Der Wahre Jacob, 1890, no. 98. 232 104 Gustav Klimt, Jurisprudence, oil on canvas, 1903-1907. 234 105 James Earl Fraser, Contemplation of Justice, statue before Supreme Court building, Washington, D.C. 239 106  Lady Justice, tattooed figure. 251

Introduction

1

Chapter 1

Scale and Sword, Eyes and Blindfold: the Attributes of Justice We know how deeply rooted in our culture is the need to represent ideas, vicissitudes, institutions with symbolic images and the importance among them of the portrayal of justice. Beyond concrete cases, criminal figures and written rules, beyond institutions and powers, the image assumes and fixes an ideal profile of that which we await, desire or fear. And among all the symbolic images the one pertaining to justice possesses primacy by its nature, bringing with it a special patrimony of emotions and values and a capacity to kindle the sentiments of individuals as well as those of the masses. Justice: a system of laws and courts, a complicated institutional arrangement of men, of powers and of roles, a complex machine where rituals rich with tradition and rational, continually updated norms define crime and punishment—all of it summed up in the feminine image which holds a scale in one hand and a sword in the other. The sword is in itself a threat, but even the scale is worrying: one can be weighed there. Such a thought can cause great distress. A character in Franz Kafka’s The Trial, an accused person who trembles and drags himself along the ground and kneels, thus reproaches Josef K. who contemplates abandoning any sort of defense: “People under suspicion are better moving than at rest, since at rest they may be sitting in the balance without knowing it, being weighed together with their sins.”1 The scale which weighs transgressions is only one of the components participating in the formation of the European image of justice. This simple and ancient instrument from daily life which measured the weight of goods in shops and places of business very early experienced a symbolic transfiguration. Its best known rendition is the one with the two plates in equilibrium (less frequent is the representation of the scale with a single plate).2 We know of Egyptian and Greek precedents. In canto 22 of the Iliad Zeus weighs on a golden scale the lives of Hector and Achilles; Hector’s scale flexes earthward, toward the subterranean realm of the dead and instantly Apollo, the sun god, abandons him. Greek deities, subject to fate, could not conceive of any connection between human merits and divine rewards. Instead the 1 Franz Kafka, The Trial (New York, London, Toronto: Knopf, 1992), p. 210. 2 This is how Justice is depicted, for example, in the painting by Pietro di Miniato (datable to 1415) in the Palazzo Comunale, Prato.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_002

2

Figure 1

Chapter 1

Pietro da Miniato, Justice holding scale with single plate, fresco, c. 1415. Prato, Palazzo Comunale, Salone del Consiglio. Photo, the Bridgeman Art Library/Archivi Alinari, Florence

Scale And Sword, Eyes And Blindfold

3

elaborate Egyptian construction of the world of the dead imagined a test for the entrance of the soul of the deceased in which the goddess Ma’at weighed the sins. It was probably from this that the image derives of the divine scale which makes its appearance in late Judaism (Dan. 5: 27). It was this second model which came to prevail in European medieval culture, together with many other funerary traditions and practices to do with relations between the living and the dead. Here the scale becomes familiar through Christian iconography of divine judgment. Images sculpted or painted in churches made extensive use of it, joining it to more familiar social practices. On the façade of Ferrara’s cathedral the arbiter of sins assumes the familiar aspect for that geographical area of a fiscal official, to whom sinners reveal the sack filled with their sins before hurling it like a damned seed to be ground in the jaws of a demon represented like the millstones of the mills on the river Po. Thus it is a remote past which emerges in the image of the penal process as a course or ordeal (“trial”), as the engine of rewards and punishments. This is only one example of how a long process of sedimentation of representations of the law and of justice created mental habits ready to spring up with instinctive reflexes, as if there existed in our intellect a natural deposit which could be reached without cultural mediations or suggestions. The symbolic education through sight takes place by many means: from figurative art to literature, from deliberate propaganda to the occasional perception of symbols and representations able to mediate relations with the seats and dispensers of justice. The symbolic images are a language and like any language maintain relationships with historical transformations and with the passions and needs which move the speakers. To painters and other artisans of visual representation has fallen the task of fixing the words of this language. At the end of the Quattrocento it was the Mantuan humanist Battista Fiera who asked how the image of Justice could be represented. And he thought he could suggest it to the most famous painter living at the time, Andrea Mantegna, engaging him in a serene dialogue in that elegant Latin which was at the time the language of culture in Italian society. The dialogue De iusticia pingenda, which claims to have taken place in Rome in 1489, was published in 1515 by which time Mantegna was deceased. The question it treats concerns the way or rather the many ways in which a painter like Mantegna, who had been asked to depict justice, could imagine how to satisfy the commission. To his somber interlocutor (Momus), Mantegna related that he had collected the opinions of the ancient philosophers on the subject and that he had also turned for advice to a pious religious of his day. He then went on to say that many suggestions had resulted from his research: Justice, supposed by

4

Figure 2

Chapter 1

The Egyptian goddess Ma’at, from the Book of the Dead of Hor, late New Reign. Turin, Museo Egizio, Cat. 1808

tradition to be in the form of a woman, naturally had to be distinguished from the multitude of female allegorical images through symbolic attributes that indicated her special virtues. And on this subject there were numerous opinions: some suggested painting her seated and others standing decorously, still others holding the scale with one hand, but lacking the other hand, while yet others depicted her holding a threatening looking sword, or dressed in penitential garments. The choice of symbolic attributes was concentrated especially on the auditory and visual, the two fundamental senses of long-standing. And for ages the two had competed over which carried greater weight in the ascertainment of facts before a judge. Should greater credence be accorded to an eyewitness of a fact or to someone who had heard with his own ears about what he was testifying? The victory of the visual was easy to foresee; and the theme itself dealt with by the book was proof of it. Moreover, Saint Augustine had already observed that “sight is the principal sense by which knowledge is

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5

acquired.”3 But the penalists long continued to object against the reliability of eyewitness testimony: one witness alone did not suffice, it was not enough to see a man holding a bloody sword over a cadaver to consider him guilty. It was important, instead, for the questioner to collect every word, to heed every whisper so as to be able to consider the course of the crime and establish its context. Additionally, in Roman law, hearing had been more important than seeing.4 And in the daily practice of medieval cities the norm had to be heard and be transmitted through the voice of the town crier with a ritual reading to the assembled crowd so that the transgressions could then be challenged. The proposals collected by Battista Fiera declared that it was essential to emphasize the special ability of the judge to discern any intimations of doubtful reputation from the very first murmuring. This could be done by depicting the human figure of justice with many ears. But those suggestions insisted above all on the visual faculty which nothing could elude; familiar to humanistic culture was the mythological personage of Argos, the “panoptes,” namely, he who sees everything, placed by Hera as guardian over IO. The ability of Justice to watch over human behavior could thus be suggested depicting her with the many eyes that the myth ascribed to Argos, or with a third eye placed, for example, at the center of the forehead. One thing was indisputable: a subject of the highest order, the place of Justice was in the supreme sphere of divinity. Hesiod had made her the sister of Zeus and the Hebrew tradition had attributed to God Himself the duties of punishing and forgiving. The religious to whom Mantegna had turned for advice, the pious and highly learned Carmelite Battista Spagnoli, had told him that justice was nothing other than the will of God, and that divine will was so profoundly rooted in that fragile and fallible human nature that no one could escape it: only one thing could be defined from life, in fact, to be precise, by death. Because death was equally just with everyone and was the great leveler.5 3 Saint Augustine, Confessions. Translated with an Introduction by R.S. Pine-Coffin (Har­monds­ worth: Penguin Books, 1974), Bk. 10: 35 (p. 241). 4 Émile Benveniste, Dictionary of Indo-European Concepts and Society (London: Faber, 1973). I have used the Italian edition, Il vocabolario delle istituzioni indoeuropee (Turin: Einaudi, 1976), 2: 414. The author attributes this to the importance recognized by Roman law to the solemn enunciation of formal words; see the citation of the passage from the Satapa-Brahmana which considers of higher value testimony “de visu” in respect to “de auditu.” 5 Battista Fiera, De iusticia pingenda, ed. James Wardrop (London: Lion and Unicorn Press, 1957). The text of the dialogue has been translated and published in Italian by Rodolfo Signorini, “De iusticia pingenda Baptistae Fiaerae Mantuani dialogus.” Tipologie iconografiche della Giustizia. Edizione critica e prima traduzione italiana del dialogo,” in Leon Battista Alberti e il

6

Chapter 1

The image of justice portrayed on Mantegna’s tomb in the church of Sant’ Andrea in Mantua was conceived in the milieu of devout humanists.6 Their antiquarian taste was what drove Battista Fiera to collect symbols of justice from the most diverse traditions, combining ancient mythology and the Christian religion. And the destination of the images recorded could have the same limitless breadth, serving as playing cards as well as for devout paintings. Battista Fiera had foreseen all the possible forms of representation, or almost all. He had not anticipated one that another painter--Albrecht Dürer perhaps—represented in an engraving executed in Basel in 1493 which appeared printed in the work of a jurist of that university revealing his qualities as writer and moralist: Sebastian Brant (1457-1521). His poem Das Narrenschiff, appearing in 1494 and promptly reprinted in various subsequent editions, described an imaginary sea voyage to the land of folly, castigating the vices and weaknesses of clerics and laymen, noblemen and literati. It devoted special attention to the world of judges, for the obvious reason that it was where the author carried on his professional activity.7 The engravings, from the hands of Dürer Quattrocento. Studi in onore di Cecil Grayson e Ernst Gombrich. Atti del convegno internazionale, Mantova 29-31 ottobre 1998, eds., Luca Chiavoni, Gianfranco Ferlisi and Maria Vittoria Grassi (Florence: L.S. Olschki, 2001), pp. 381-434. Long extracts from Battista Fiera’s text are cited in translation in the ample and well informed essay by Dennis E. Curtis and Judith Resnik, “Images of Justice,” The Yale Law Journal 96, no. 8 (July 1987): 1727-1772. The two authors developed this work further in “Representing Justice. From Renaissance Iconography to TwentyFirst Century Courthouses,” Proceedings of the American Philosophical Society, 151 (June 2007): 139-183, where they state that a book on the subject will follow. On the hieroglyphic of the eye as the symbol of justice, see Guy De Tervarent, Attributs et symboles dans l’art profane, 14501600. Dictionnaire d’un langage perdu, 1450-1600 (Geneva: Librairie E. Droz, 1958), coll. 286-287. 6 See David Chambers, Jane Martineau and Rodolfo Signorini, “Mantegna and the Men of Letters,” in Andrea Mantegna, ed. Jane Martineau (London: Thames and Hudson, 1992), pp. 8-29: 22. In his profile of Battista Fiera written as a review of the Wardrop edition, Carlo Dionisotti recalled that in 1514 Fiera had arranged to have a solemn sepulchre constructed for himself, about which he was the subject of epigrams (“Battista Fiera,” Italia medioevale e umanistica 1 [1958]: 401-418: 417). 7 For a recent critical edition, see Sebastian Brant, Das Narrenschiff: nach der Erstausgabe (Basel 1494) mit den Zusätzen der Ausgaben von 1495 und 1499, ed. Manfred Lemmer (Tübingen: Max Niemeyer Verlag, 1968; new ed. 2004), the chapter on Justice is no. 71, pp. 180-181. The work experienced three reprintings already in 1494 at Nuremberg, Augsburg and Reutling, as well as a counterfeit edition with a different title at Strasbourg. These were followed in 1497 with an adaptation printed at Lübeck and an edition at Basel based on a Latin version by Jacob Locher, a student of Brant’s, reprinted in 1498 and used as the basis for the French, English and Flemish versions, as well as for various loose adaptations. Greeted in Germany as the

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7

and others, together with the vigorous German of the language, contributed to the work’s great success. It enjoyed numerous reprintings and translations and was even made use of from the pulpit (the celebrated preacher of Strasbourg Geiler von Kaisersberg drew material from it for a series of sermons). But let us turn now to the engraving: the feminine figure of justice was represented with the usual attributes of sovereignty and of the authority to judge--a crowned head, a sword in the right hand, a scale in the left. But the eyes, so important in the tradition known to Battista Fiera, were covered by a blindfold which a jester (recognizable by his cap and rattles) was placing over her eyes. One fact is certain: of all the representations Fiera recorded none would know the singular success of this engraving. That image has continually returned to the fore in symbolic communication, with different values and meanings, some actually in opposition: born, as we shall see, as criticism of the defects in the administration of justice, it was resurrected and then continually revived with a positive connotation to indicate an ideal model worthy of approval. And the two ways to interpret it, the negative and critical on the one hand, and the purposeful and propagandistic on the other, joined together in various ways. A study by two American lawyers was inspired precisely by the recognition of the enduring actuality and powers of suggestion that the blindfolded figure continued to exercise in the two opposed directions of celebration and of satire.8 That there can be a positive value is the most immediately astounding phenomenon. And this is so for obvious reasons. It is a given that blindness in nature has wholly negative connotations, in fact that it is decidedly intolerable. It is very difficult to imagine that it can assume positive significance on a symbolic level. And, in fact, in Sebastian Brant’s day it was considered not only a defect and an insupportable punishment in actuality but also a decidedly negative attribute in its figurative sense.9 As Erwin Panofsky observed, only love is blind: and it supports this condition badly. Not for nothing Cupid, the Teutonic Dante, Brant did not find a public in Italy where the work was not translated until the 20th century. Even if not all the engravings of Das Narrenschiff can be attributed to Dürer, as Erwin Panofsky pointed out (The Life and Art of Albrecht Dürer [Princeton: Princeton University Press, 1943]), the image of Justice is usually considered Dürer’s work. See, for example, D.E. Curtis and J. Resnik, “Images of Justice,” p. 1756. I have not been able to consult Friedrich Winkler’s Dürer und die Illustrationen zum ‘Narrenschiff’ (Berlin: Deutscher Verein für Kunstwissenschaft, 1951). As testimony of Sebastian Brant’s professional activity, see his, Expositiones sive declarationes omnium titulorum iuris tam civilis quam canonici (Basel 1505). 8 D.E. Curtis and J. Resnik, “Images of Justice.” 9 Erwin Panofsky, “Blind Cupid,” in Studies in Iconology. Humanistic Themes in the Art of the Renaissance (New York-Evanston: Torchbook Edition, 1962) pp. 95-128 (1st ed. 1939).

8

Figure 3

Chapter 1

 The Litigants, allegory of Blindfolded Justice, woodcut (1493), from Sebastian Brant, The Ship of Fools, Basel 1494. Foto AKG Images/Photoservice Electa, Milan

Scale And Sword, Eyes And Blindfold

9

god of love, was painted by Lucas Cranach the Elder in the act of removing his blindfold. A satisfactory history of the senses has not yet been written, but there is no doubt about the space that sight occupies nor about the constant ascent of this sense in respect to others in the course of the Middle Ages. If it is true that, as we read in a Florentine sacred representation of the Quattrocento, “The Eye we say is the first door by which the intellect comprehends and takes pleasure,” the closing of that original door of light and thought simply signifies death.10 The figurative uses and the images connected to the act of the eyes as they are closing leave no doubt on the matter. In the world of judicial practices, after all, placing a blindfold over the eyes of a person condemned to death was (and is) the symbolic equivalent of the condemnation itself and announces its imminent enactment. Digging into the system of punishments leads to Germanic traditions as their point of origin.11 But in the fifteenth century a trace of those rituals lingered even in the penal systems of the Latin world. Let a single example from a celebrated case suffice: at dawn on 23 February 1513, while Battista Fiera was readying himself to print his dialogue, in Florence the executioner was preparing “to place a kerchief over the eyes” of a condemned man, the Florentine anti-Medicean conspirator Pietro Paolo Boscoli.12 How this abyss of negativity can co-exist with the positive value of the symbol is a problem that leaps before our eyes (if the expression may be permitted in this case). Because certainly that positive value is an undoubted fact today. According to the two aforementioned American jurists the positive significance attached to the blindfold of Justice resides in the guarantee of impartiality that it offers: a guarantee that becomes more and more desirable hand in hand with the advance of old and new powers endangering the impartiality of the judge. So, blindfolded justice is not necessarily blind justice. The blindfold is, however, an instinctive measure of protection against the risk of blindness. And this leads us back to the precepts of the Hebrew Law which, while imposing impartiality on the judge, remind him not to allow himself to be blinded by gifts and not to depart from a just sentence, not even out of mercy toward the 10 See Sacre rappresentazioni manoscritte e a stampa, inventario a cura di Anna Maria Testaverde and Anna Maria Evangelista (Florence: Giunta Regionale e Editrice Bibliografica, 1988), pp. 144-145, illustration no. 22. 11 See Jacob Grimm, Deutsche Rechtsaltertümer (1828), II: 260; and Karl von Amira, Die germanischen Todesstrafen. Untersuchungen zur Rechts-und Religionsgeschichte (Abhandlungen der Bayerischen Akademie der Wissenschaften, Philosophisch-philologische und historische Klasse, vol. 31) (Munich 1922), p. 99. 12 Luca Della Robbia, “Narrazione del caso del Boscoli, edita da Luigi Filippo Polidori,” Archivio storico italiano 1 (1848): 307.

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Chapter 1

poor.13 So, from one perspective, sight is a vehicle for corruption, from the other of merciful and unjust partiality. From this ideal of justice also derives the advice not to look at the appearance of the person who is to be judged.14 The theme was discussed extensively in the Christian world and occupied a prominent place in the thought of theologians and jurists. Dealing with the problem of the ideal comportment of the judge, St. Thomas urged consideration of the truth of a thing and not the poverty or wealth, the enmity or friendship, the outsider status or familiarity of the accused.15 Here then is the source of the constant flow of positive interpretations of the blindfold. The threat from corrupt judges is a fundamental fear in the history of western society, which from the time of St. Thomas has had to recognize the importance of their function and conferred on them special social prestige. The law and its administration, besides, have long been a basic test for the pretensions to universal validity of our culture. Consequently, the incorruptibility of judges has assumed a rather lofty distinction, one which in the Middle Ages was attributed only to the morality of the clergy. This is only a slight foretaste of the weighty tradition which has formed around the representation of the judge and of justice. It should not surprise us that the subject continues to interest so many different branches of scholarship. It has occupied iconologists and institutional historians, students of classical cultures and of ancient traditions, legal experts and historians of Church and State.16 What has emerged clearly from all these works is that the repre13

14 15 16

Exodus 23: 1-9. On the evidence of a headless Egyptian statue of Justice which we read about in Diodorus Siculus, and on the sixteenth-century tradition of the interpretation of the hieroglyphics Guy de Tervarent establishes the origin of the representation of blindfolded Justice, the diffusion of which he seems to ignore totally (Attributs et symboles, coll. 42-43). “Qui cognoscit in iudicio faciem non bene facit” (Prov. 28:21). Summa Theol., qu. 109, art. 3.2.2. Among the students of the images of Justice we find iconologists and art historians: E. Panofsky, “Blind Cupid,” pp. 95-128; E.H. Gombrich, “Icones symbolicae,” Journal of the Warburg and Courtauld Institutes 11 (1948): 163-192; Robert Jacob, Images de la justice. Essai sur l’iconographie judiciaire du Moyen âge à l’âge classique (Paris: Le Léopard d’or, 1994); a magistrate who is also the president of the German Bundesarbeitsgericht: Otto Rudolf Kissel, Die Justitia. Reflexiones über ein Symbol und seine Darstellung in der bildenden Kunst (Munich: Beck, 1984); two jurists (D.E. Curtis and J. Resnik, “Images of Justice”); a legal historian (Mario Sbriccoli, who will be discussed below); and another historian of the law who was the first and most significant student of the question, but also the most forgotten: Ernst von Möller, “Die Augenbinde der Justitia,” Zeitschrift für christliche Kunst, no. 4 (1905): coll. 108-122; 141-152. The historian of institutions and of political thought Michael Stolleis has devoted a brief study to the vicissitudes of the metaphor from the

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sentation of justice in symbolic images includes a large variety of cultures and expresses deeply rooted sentiments. But sentiments and ideas, criticism and programs, propaganda and laments have had to make their way through whatever the symbolic language permitted: and in that language the borrowings, the limitations, the survivals were constantly interwoven. Let us attempt to survey briefly some of the salient moments in the process. Baroque to the twentieth century (Das Auge des Gesetzes. Geschichte einer Metapher [Munich: Beck, 2004]). And we should also keep in mind the historical sketch of the representations of justice traced by Ludovico Zdekauer in his lecture at the University of Macerata in 1908 on the theme of the Idea of Justice and its image in the figurative arts, published in the journal of the Commission for Sienese local history of which he was the editor: “’Iustitia’: immagine e idea,” Bullettino senese di storia patria 20 (1913): 382-425. As Zdekauer correctly noted, “the bibliography on the ‘idea’ is endless … everyone or almost have thought of the image; Giambattista Vico has been the only one, or almost, to have seen the connection linking it to the idea”; and he added prophetically: “my work easily will be added to” (p. 425). Since Zdekauer did not record the image of the blindfolded deity, these pages may present themselves as one of the possible additions.

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Chapter 2

Justice, That is to Say God As we have suggested, in the West justice for the first time assumed the characteristics of a woman of the culture and religion of ancient Egypt: to the goddess Ma’at was assigned the duty of judging the soul of the departed on the threshhold which separated the deceitful and despicable earthly life from that of the beyond. Ma’at was portrayed with a scale and with an ostrich feather, instruments used to weigh the souls of the dead before presenting them before Osiris. If the weight of the faults placed on one of the plates of the scale exceeded that of the feather the soul was excluded from the realm of the dead.1 So, from the very beginning of this long history the idea of justice was projected against the backdrop of an imagined religiosity, as something which exists in a perfect form only in the divine world of the dead. In the Hebrew Bible justice belongs only to God, His is the retribution and the vendetta. But God’s wrath will not be eternal, it will not endure from generation to generation, the Psalmist tells us. And here one of the most lasting images among the medieval European representations of justice comes into being: four female figures, four virtues meet, stroll together and embrace: Mercy moves toward Truth, Justice embraces and kisses Peace.2 God’s wrath is placated, the offense is forgiven, the heart of the people of God is converted and hearkens to the word of peace spoken by God. Thus the earth will bear fruit and the glory of God will dwell on the earth, says the Psalmist. This song of hope had profound echoes in the Christian world where the coming of a time for mercy and amity between God and man was no longer a messianic hope. With the end of the time of the Mosaic Law the age of Grace had begun. Already the attempt to pluck from the system of social and political relations some gain from the descent of Grace among human creatures can be found in an aspect of the functioning of the Law, especially the penal: the constant restatement of grace understood as the obligation to cancel punishments. The figurative tradition accompanied the interpretations of theologians and the ideas of jurists, proposing the translation into images of the evolving 1 There is a reproduction of a statuette of the goddess Ma’at from the 5th century B.C in O.R. Kissel, Die Justitia, pp. 19-20. 2 The text of the Vulgate reads: “Misericordia et veritas obviaverunt sibi; justitia et pax osculatae sunt” (PS. 84:11)

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_003

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compromises between the Roman component of Christianity with its sense of the law and the Hebraic component, with its notion of the authority to pardon as the foundation and essence of justice. In the words of Gratian’s Decretum, that is in the fundamental text of medieval ecclesiastical law, the alliance between Mercy and Justice found an expression capable of suggesting direct pictorial transposition: “the just judge holds a scale in his hand and on the two plates carries justice and mercy: the sentence will be pronounced according to justice, but the punishment will be softened according to mercy.”3 Here the frequency of the image of the scale and the reduction of the four virtues to only two, which for the moment are still in equilibrium is noteworthy: the time would come when mercy would become a handmaiden of justice and not an equal. But we should not forget the other female figure of the quartet, Peace, which will play the role of a protagonist. The movement for “the peace of God” which arose c. 1000 ad was the first attempt to close a phase of disorder and violence involving “the lords of war” with a commitment sworn before God to renounce the vendetta: by dint of that oath, anyone, whatever his crimes might have been, had the right to live in society without fear. Violence did not disappear: but the figure of Peace returned to figure in symbolic images to recall that the fundamental purpose of justice was not revenge. That image was to enjoy a long history, adapting itself to the most varied situations. We shall encounter it in the representations of justice in medieval cities. The association of these symbolic figures carried with it for a long period a message that jurists elaborated and translated in famous aphorisms, to explain that justice carried to the extreme becomes distorted into the ultimate injustice. The utopia of a Christian society capable of living according to new principles which abolished war soon revealed itself impossible to realize. But that union of peace and justice when it was transferred from the realm of private relations to the international sphere was accompanied by the principle that crimes committed in war were to be forgotten and settled by peace. It was precisely at the conclusion of the last great war of religion of the modern era, the Thirty Years War in the seventeenth century, that in a painting by the artist Theodor Van Thulden completed

3 “Omnis qui iuste iudicat, stateram in manu gestat, et in utroque penso iustitiam et misericordiam portat; sed per iustitiam reddit peccanti sententiam, per misericordiam peccati temperat poenam” (Decretum, I. 45. 10). The passage is cited by Mario Sbriccoli, “La benda della giustizia. Iconografia, diritto, e leggi penali dal Medioevo all’età moderna,” in various editors, “Ordo iuris.” Storia e forme dell’esperienza giuridica (Milan: Giuffrè, 2003), pp. 43-95: 62, note.

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in 1649, the Peace of Westphalia was represented as a kiss between Justice and Peace.4 Naturally, the association of the two figures allowed for an opposite interpretation: namely, that there could be no real peace without justice. And this principle would become institutionalized, in the course of time and wars, in the tribunals established by the victors to punish the vanquished. Meanwhile one thing is certain: during the long European Middle Ages this group of symbolic figures brought with them the affirmation of the ideal principles of a justice inspired and directed by God, tied to the Christian’s experience of himself, conscious of his sins, wanting to be pardoned and to receive divine mercy. The medieval conception of Christianity inherited the Hebrew Tradition of assigning to God the supreme judicial office; the aphorism of the medieval jurists states it clearly: “iustitia id est Deus.” How greatly medieval justice was dependent on the divine will is demonstrated most visibly by the long persistence of the so-called “judgment of God.” In the ordeals God was obliged to act as judge directly, issuing signs of absolution and condemnation, ascertaining guilt and innocence by means of such tests as incandescent fire, freezing or boiling water, the duel. The manifestation of God’s judgment passed through a magical mediation upon which was entrusted the decision concerning the truth of the accusation. Only gradually did the use of torture become established on the one hand, and, on the other, the opinion of jurors. Juries first appeared in England and in Denmark at the beginning of the 13th century, while judicial torture began to be applied in the Italian cities.5 There thus emerged a fault line which was to influence profoundly the evolution of penal systems in the western world: on one hand, the barbaric traditions in which God’s judgment was manifested through a body joined by the sacred bond of the oath; on the other, the consolidation between Roman law and the Christian concept of the individual sinner. But in delegating to human representatives the divine authority to judge, it was necessary to be aware of the political constitution of Christian society and of the diarchy of powers in delicate equilibrium, in fact often in open conflict, that of pope and emperor. “To judge like God (“iudicare ut Deus”) long remained in the thinking of jurists to indicate a prerogative of the Holy Roman Emperor: it was he who could resolve judicial questions without submitting to the forms of written law, with the summary procedure 4 Theodor Van Thulden, Osculum Iustitiae et Pacis, Deutsches Historisches Museum, Berlin, reproduced by Ottavia Niccoli, Perdonare. Idee, pratiche, rituali in Italia tra Cinque e Seicento (Rome-Bari: Laterza, 2007), fig. 4. 5 See Robert Bartlett, Trial by Fire and Water. The Medieval Judicial Ordeal (Oxford: Oxford University Press, 1986), pp. 137-139.

Justice, That Is To Say God

Figure 4

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Theodor Van Thulden, Osculum Iustitiae et Pacis, oil on canvas, 1649. Berlin, Deutsches Historisches Museum

based on the “truth of the fact” (“sola facti veritate”).6 The very awareness of a supreme divine investiture soon passed from the highest authorities—the emperor, the pope, subsequently individual sovereigns—down to their judges, and with it that solemn consciousness of themselves as “ministers of God” which could still be encountered until well into the 17th century.7 God’s watchfulness over the world and men, symbolized by the eagle or by the shining eye inscribed in the Trinitarian triangle, penetrates souls and witnesses secret sins, just as the ear also hears words not spoken but only thought--this is the true source of justice to which all the others can be traced and on which all the ­others depend. Its tribunal dominated and inspired those of earthly judges. 6 This continued to be the view of Filippo Decio in his comment on the Decretals (In Decretalium volumen perspicua commentaria (Venice: Giunta, 1593), fol. 223 r. See also Annamaria Monti, Iudicare tamquam Deus, I modi della giustizia senatoria nel Ducato di Milano tra Cinque e Settecento (Milan: Giuffré, 2003). 7 According to the judge Marcantonio Savelli of Modigliana (1624-1695), author, among other works, of an important “Pratica universale,” judges are “ministri Dei” and have to be ”inexorabiles, erecti et ardui” in the search for truth, thinking about that God “cuius vices gerunt”: see Daniele Edigati, Una vita nelle istituzioni. Marc’Antonio Savelli giurista e cancelliere tra Stato Pontificio e Toscana medicea (Pisa: ETS, 2007), pp. 101-102.

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But for Christians the reconciliation of God with sinful humanity was not merely a hope nor did it still pertain to the Jewish people: it had actually taken place at a moment in which divine justice had manifested itself through Christ’s sacrifice. Thus, it is to Christ that the task will fall of judging men’s deeds and it is to Him as a model of mercy that the powers of the Christian world will have to look for guidance. This will find symbolic expression in various ways: by accentuating one virtue over others, by separating one pair of virtues from another, and finally by articulating the arrangement of the four figures with the assignment of handmaidens (thus Justice could have in its service “Piety” and “Equity.”)8 The fundamental image of the act of divine mercy, the crucifix, the Christian sign of justice, was destined to inherit the symbolic office, as we shall see more clearly below. But meanwhile, in medieval Christian culture the confluence of pagan antiquity and the Hebrew tradition assured a place to the feminine image in this succession. To the goddesses of the ancient world—the Greek (Themis and Dike, the norm which also governs the gods and she “who dwells next to the gods of the underworld”)9 and the Latin Justitia—a new feminine incarnation took their place. Inserted in the group of the cardinal Christian virtues, she appears together with her three companions in the act of defeating the four vices, in the representations of the spiritual conflict between the forces of evil and the forces of good (“psichomachia”). We encounter her thus in the miniatures of the sacred books and in the decorations of cathedrals. In the Bible of Saint Callixtus (9th century) she appears with the symbol of a pair of scales.10 Dante 8

On these diverse matters, we have an excellent account in the anthology of images collected and contextualized by Wolfgang Schild, “Gerechtigkeitsbilder, III: Gerechtigkeit als eine der virtutes,” in Recht und Gerechtigkeit im Spiegel der Europäischen Kunst, eds. Wolfgang Pleister and Wolfgang Schild (Cologne: Dumont Buchverlag, 1988), pp. 86-171 (but the entire work is fundamental). “Pietas” and “Equitas” appear, for example, in the miniature of a French manuscript of the Divinae Institutiones by Lactantius (Ibid., no. 183, p. 112). And in the image with which Giulio Clovio illustrated the splendid Book of Hours of Cardinal Alessandro Farnese (1546) an armed Justice leans over to kiss an unarmed Peace against a background of a landscape with ancient architecture (no. 157, p. 97; and see below figs. 6 and 7. 9 Sophocles, Antigone, 5:451. 10 See Adolf Katzenellenbogen, Allegories of the Virtues and Vices in Mediaeval Art from Early Christian Times to the Thirteenth Century (London: The Warburg Institute, 1939), p. 31; Percy Ernst Schramm, Kaiser, Könige und Päpste, gesammelte Aufsätze zur Geschichte des Mittelalters, Beiträge zur allgemeinen Geschichte (Stuttgart: Anton Hiersemann, 19681971), fig. 32.

Justice, That Is To Say God

Figure 5

Heavenly tribunal and earthly tribunal, oil on panel, c. 1400. Würzburg, Episcopal Palace

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Figure 6

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Giulio Clovio, Armed Justice kisses Peace, miniature from the Book of Hours of Cardinal Alessandro Farnese, 1546. New York, the Pierpont Morgan Library, MS. 69, fol. 18

Justice, That Is To Say God

Figure 7

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 Pietas, Justicia, Equitas, miniature from a French edition of the Divinae Institutiones of Lactantius, c. 1525. Paris, Bibliothèque Nationale, Cod. Lat. 1671, fol. 127 v

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describes her in the Divine Comedy as one of the four dancing women behind their leader, the three-eyed Prudence.11 But it is especially in Dante’s lyric poem, “Tre donne intorno al cor mi son venute” that the allegorical meanings come into contact with and are overthrown by living images of exceedingly beautiful women: the mother of all is “Uprightness,” “Drittura,” as the universal idea of the just, and from her is born the second who because she was generated at the source of the Nile represents the universal law of people. The last in the line of descent is to be understood as positive law. But the Christian allegory of the cardinal virtues here cedes its place to the absolute primacy of Justice and the cry of civil protest, while the feminine image acquires an unknown physical presence of flesh and blood woman and new expressive gestures. The first of them, while speaking, laments “While right hand cradled head/Like rose plucked from its bed/(The naked arm, white hand, grief’s capital,/Swayed in the storm that fell from her stricken face/… Barefoot and beltless, way-worn but lady still.” It suffices to recall that Petrarch took from this the model and the words to describe the nude and totally human beauty of Laura bathed in “clear, fresh and sweet waters.” And that weeping face resting on a hand anticipates Dürer’s Melencolia I. It is certainly not by accident that the transformation of the moral symbol into a vivid and sorrowful human image takes place thanks to Dante precisely in what has been described as the “great lyric poem of exile,”12 when the violence of the political conflict and of the division between vanquished and victors restored to earth the abstract ideal of rectitude, thereby inaugurating the tradition, also figuratively, of the accusations that there was no justice in the world of men. From this began the construction of the divine world of the Commedia as a poem of justice divinely restored in the hereafter. But meanwhile the justice awaited from the God of the Last Judgment produced its effects on earth. Those hidden sins which according to St. Paul God was preparing to judge on that day (“the secrets of men,” Rom. 2:16) gradually were taking shape not only through the images of the Judgment but also in the figures of a mental world ever more densely furnished by law and morality: the 11

12

Purgatory, 29: 132. A useful introduction to the theme is offered by P. Réfice in the entry on “Giustizia” in the Enciclopedia dell’arte medievale (Rome: Istituto della Enciclopedia Italiana, 1996), 7: 1-10. The translated verses come from Dante’s Rime. Translated by Patrick S. Diehl (Princeton: Princeton University Press, 1979), p. 189. The definition, “the great lyric poem of exile,” was coined by Gianfranco Contini, in his edition of Dante’s Rime (Turin: Einaudi, 1946; pp. 172173 of the Turin 1965 ed.).

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space of the inner man opened itself not only to the uneasy meditation of the individual searching for God and for himself, but also to the irruption of external authorities who presented themselves with powers delegated by God Himself. A mass of moral entities—vices and virtues, sentiments and thoughts—was taking visible form in the instructions for that exercise in the exploration of conscience that from monastic milieus and their search for perfection was gradually to transfer itself to all Christians. Though among the papers of ecclesiastical judges formulae and judicial acts connected to behavior and deeds as well as to sentiments and thoughts mingled and overlapped, it was in their relationship with the confessor and the judge that people had to learn at their own cost to formulate in words the secrets of their consciences, harmonizing spoken words with the secrets of the heart.13 Thus, in the Christian world the course of earthly justice and divine judgment crossed: the scale as an instrument to weigh souls was the fundamental attribute of the figure of the archangel Michael (prophesized in Daniel 12: 1-2): and the flaming sword in his right hand, borrowed by the Biblical Cherubins (Gen. 3:24) became the symbol of the punishment of the wicked.14 The pedagogical emphasis in ecclesiastical preaching on the terrifying images of the punishment of sinners contributed to the popularity of the image of the Last Judgment; the common opinion of the divine law which supports the world found expression there. It was no accident that it was expressed in sacred places both in the cult as well as in the administration of justice, such as the portals of cathedrals. That sword wielded by angels in the Hebrew Bible was placed by Christian texts directly in the mouth of Christ, the judge with a countenance luminous like a flaming sun (Apoc. 1: 16). 13

14

Michel Foucault and Pierre Legendre have made a special contribution to this theme: see L’amour du censeur. Essai sur l’ordre dogmatique (Paris: Seuil, 1978). For an important study investigating the passage from the exercise of monastic perfection to the practice of ecclesiastical governance established by the Fourth Lateran Council, see Peter Von Moos, “‘Occulta cordis.’ Contrôle de soi et confession au Moyen Ăge,” Médiévales (1995), no. 29 and (1996), no. 30, now collected in Idem, Entre histoire et littérature. Communication et culture au Moyen Ăge (Florence: Sismel, 2005), pp. 579-610. See, for example, the image of the archangel Michael weighing souls, from the polyptych of the presentation in the temple by Jacopino di Francesco: reproduced by Francesco Arcangeli, Pittura Bolognese del ‘300 (Bologna: Cassa di Risparmio in Bologna, 1978, table 19). The Greek origins of the symbol of the sword, revived not in Rome (where Justitia is unarmed) but in the course of the Middle Ages is discussed on the basis of the work of others in the brief synthesis by Juliane Baer-Henney, “Wie kommt die Jungfrau zu Waage, Schwert und Augenbinde? Zur Darstellung der Justitia,” Juristische Arbeitsblätter (1997): 610-613.

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Figure 8 Gislebertus, the archangel Michael and the weighing of souls, relief, tympanum of the Autun cathedral, c. 1130

And thus the figurative tradition was born of an apocalyptic Judgment presided over by Christ with a countenance radiant like the rays of the sun, with a double edged sword clenched between his teeth. The two traditions stood side by side on the pictorial plane in the course of the 15th and 16th centuries, when the expectation of the end of the world and meditation on images of the Apocalypse circulated ever more widely thanks to the invention of the engraving and of printing with movable type and nourished by the collective fears of an age of war and religious strife. The surviving prints from the late Quattrocento and the early Cinquecento document the circulation of the image of Christ in judgment with sword clenched between his teeth.15 This is the context that saw the appearance of the most celebrated exemplar, that of Christ as the sun of Justice engraved by Albrecht Dürer. Also dating from the early Cinquecento is the representation of the Last Judgment by the painter Jan Provost (today in the Kunsthalle of Hamburg) where the apocalyptic figure of Christ, the judge, radiant with light, dominating the world with a foot resting on an open book, entrusts to angels the sword and the lily, symbols of punishment and forgiveness.16

15 16

Richard S. Field, Fifteenth Century Woodcuts and Metalcuts from the National Gallery of Art. Catalogue (Washington D. C. [n.d]), reproduces three engravings, nos. 66, 95, 101. Reproduced also by O. Niccoli, Perdonare, fig. 1

Justice, That Is To Say God

Figure 9

 Christ judge of the Apocalypse, miniature, c. 1400. Paris, Bibliothèque Nationale, Néerl. 3, fol. 18

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Figure 10 Albrecht Dürer, The sun of justice, engraving, c. 1499

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Justice, That Is To Say God

Figure 11 Jan Provost, The Last Judgment, oil on panel, early 16th century. Hamburg, Hamburger Kunsthalle

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In this way the images of the two judges, one over sin, the other over crime, competed against one another and began to exchange their attributes: the confessor assuming the role of judgment over spiritual transgressions and the lay judge as he who heard the confessions of criminals. They were represented with exchangeable symbolic images: the angel whom Dante describes at the entrance to his Purgatory is a judge seated on a resplendent tribunal resembling the stone of a diamond who inscribes with his sword the sign of the sins that are to be erased.17 The interweaving and exchanges between the two symbolic figures accompany the long duration of the bonds between the terrestrial city and the city of God in the tradition of western Christendom. Here the rebirth of Roman law brought into prominence a body destined to enjoy an unrelenting rise, that of the jurists. The especially intense gaze, capable of taking in a plurality of things and of seeing in many directions and the feminine nature of the goddess were celebrated as attributes of justice in the Quaestiones de iuris subtilitatibus, a 12th-century dialogue which takes us to the beginnings of the university level teaching of law. Attributed to Irnerius, then to Piacentino is that exaltation of law described as if it was at work within a sanctuary, “the most holy Temple of Justice” about which the author tells us he had received a vision.18 The temple is dedicated to the idea or to the goddess who pre-existed law and created it. The matter is worthy of our attention: thus the distinction between the concrete norm of the law and the superior abstract entity which confers it strength is transferred from the world of religious representations to the field of the new science of law. At the center of the vision there is a description of the goddess who has “Reason” (Ratio) above her head and turns her gaze to human and divine things, observing everything ”with many sighs.” Melancholy as the fruit of the acute contemplation of human misery thus becomes a characteristic of this symbolic figure. Justinian (this was noted by Kantorowicz) was the first who imagined erecting a temple of justice: and he conceived that temple as dedicated to Roman Law “Iustitia Romana,” in other words to that which in the 12th century was to be reborn along with the first University and inspire the work of the new and influential corporation of jurists. We should keep this image in mind because it is connected with the consciousness of the birth—or rebirth—of an ideal source capable of promoting and on occasion correcting the law. Thus, Justice presents herself on the horizon of medieval culture as a subordinate divinity, which keeps a watchful eye on the will of God and the affairs 17 18

Purgatory, 9: 103-114. E.H. Kantorowicz, The King’s Two Bodies, A Study in Mediaeval Political Theory (Princeton: Princeton University Press, 1957), pp. 107-111.

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of men and from this contemplation draws the trace of sadness that marks her. The characteristics that Aulus Gellius had attributed to her were becoming reality. That page from the Attic Nights long exerted its influence on the new traits of the symbolic image. Citing Crisippus, Gellius had written that the ancient artists customarily portrayed the image of justice like a majestic virgin “with penetrating eyes and with a certain venerable sadness in her bearing.”19 And “the judge who is the priest (‘antistes’) of justice, ought to be dignified, holy, austere, incorruptible, not susceptible to flattery, pitiless and inexorable towards the wicked and guilty, vigorous, lofty, and powerful, terrible by reason of the force and majesty of equity and truth.”20 Unlike the judge of antiquity, the Christian judge had above him God Himself: He was the omniscient deity who intervened in the judgment, revealed the guilt, pronounced the sentence. The expression “judgment of God” (“iudicium Dei”) has been found in texts dating to the 4th and 5th centuries of the Christian era; it became established with the Carolingian capitularies and would know its greatest success with the ritual of the ordeal, until the return to Roman law, on the one hand, and the affirmation of ecclesiastical mediation on the other removed the impending danger that the earthly power to judge would be annulled.21 In this period the direct presence of God had been evoked by the symbol of the cross: especially significant in this regard is the story of the special ordeal which in the confrontation consisted of two champions facing off before a crucifix to see which of the two could keep his arms extended the longest in the shape of a cross.22 This is an exemplary case because here we

19

20 21

22

Ibid., p. 110, note (“Forma atque filo virginali, aspectu vehementi et formidabili, luminibus oculorum acribus, neque humilis neque atrocis, sed reverendae cuiusdam tristitiae dignitate,” Noctes Atticae, 14:4). After the editio princeps of 1469 the work was often reprinted. The Aldine edition is from September 1515 (the quoted passage is at foll. 204v-205r.) The Attic Nights of Aulus Gellius (The Loeb Classical Library) (London: Heinemann; Cambridge MA: Harvard University Press, 1952), III: 37 The tradition of God’s judgment has been studied by Robert Jacob, “Le jugement de Dieu et la formation de la function de juger dans l’histoire européenne,” Histoire de la justice (1991), no. 4: 55-80. I cite from the reprinting in the Archives de la philosophie du droit (1994): 87-104. See also Marie-France Renoux-Zagamé, Du droit de Dieu au droit de l’homme (Paris: PUF, 2003); Idem, “Justice divine,” in Dictionnaire de la Justice, ed. Loïc Cadiet (Paris: PUF, 2004), pp. 751-754. Robert Jacob, “La parole des mains. Genèse de l’ordalie carolingienne de la croix,” in Claude Gauvard and Robert Jacob, Les rites de la justice. Gestes et rituels judiciaries au Moyen Ăge occidentale (Paris: Le Léopard d’or, 1999), pp. 19-62. Jacob has reconstructed the origins of Irish penitential practices.

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see the distance cancelled between the invocation of God the Judge and his actual presence, in other words between representation and reality. With the rebirth of Roman law the Biblical reference to God the judge was not lost but His presence became less immediate. It was up to the earthly judge to be aware of his own responsibility before God in the exercise of the duty which was entrusted to him in God’s name. Appeal was no longer made to the direct presence of God but rather to the interpretation of His word in the Bible. The prohibition of ordeals pronounced by the Fourth Lateran Council took place at the moment when the ecclesiastical authority to judge took as its model that God who had descended among men, listened to the clamor of his people (Gen. 18:20), interrogated the guilty and pronounced sentence (Gen. 3: 9-24): ecclesiastical justice traced its legitimacy to this. The Decretal which gave form to inquisitorial procedure cites the Biblical passage of the clamor of Sodom and Gomorrah which even reaches up to God—and God decides to descend from the heavens to see (“Descendam, et videbo”).23 The fire that consumes Sodom and Gomorrah will be interpreted as the image and legitimation of the fire that incinerates the heretic or the sinner against nature. But it was especially the interrogation to which God subjected Adam in the Garden of Eden that offered the most appropriate and richest image to the claim of ecclesiastical judges in inscribing God Himself on the first page of their professional register. The judge who presides over a conflict between two litigants thereby abandons the post to the questioner who, reached by the clamor of fame, subjects the offender to the rigorous interrogation of the “quaestio” not because he does not know the truth but because he wants the confession of the guilty party to be the beginning of repentance. And the “fur lined tunic” with which God clothed Adam and Eve will become the Biblical equivalent of the abitello, the garment of the penitent heretic.24 Meanwhile the image of justice as virtue emanating from God resumed its ancient aspect of a feminine figure. From that moment on, the rise of that figure symbolizing the ultimate foundation of peace and social order would be uninterrupted. Contributing to its success, more than the humanistic return to the imitation of the ancients, was the new political and juridical structure ­originating around the question of the “buon governo,” the good government 23

24

Concilium Lateranense IV, cost. De inquisitionibus, in Conciliorum Oecumenicorum Decreta (Bologna: Istituto per le Scienze Religiose, 1973), pp. 237-238. Cf. Marie-France Renoux-Zagamé, “Justice divine,” in Dictionnaire de la Justice, pp. 752-753. Thus we read in the chapter dedicated to the sin of Adam by the Spanish Inquisitor of Sicily: Luis De Paramo, De origine et progressu Officii Sanctae Inquisitionis, eiusque dignitate et utilitate (Matriti [Madrid], Ex Typografia Regia, 1598), pp. 2-26

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of the city. It was at that time that the feminine figure of classical tradition experienced its greatest diffusion. The representation of Peace in the Sienese fresco by Ambrogio Lorenzetti hearkens back to the concept of justice suggested in a passage of the Psalms (84:11). And the words from the Liber sapientiae so dear to Dante—“diligite iustitiam qui iudicatis terram”—is just one more of the Biblical echoes feeding into this political art. The human head resting on the knees of Justice and the evil doers bound among the guards who are at her service explain to us under what conditions one might be able to guarantee the effects of good government and enjoy the coming of pure and restful peace. From that moment justice as guarantor of peaceful civic cohabitation permanently entered into the language of communication through images and political propaganda. We shall return to the constant features and variants of this representation, but meanwhile we should bear in mind the nature of ideological projection in respect to a reality which was that of sectarian strife and of the function of the jurist as “privileged interlocutor of authority” in the city.25 Let us glance now at some aspect of that other tradition, the religious, which delayed the advent of justice to the final reckoning of the judgment of souls. This was a parallel and diverse course concentrated on the scene of the angel and of the weighing of souls. In European society of the Late Middle Ages the circulation of apocalyptic expectations and of prophetic announcements mingling with astrological predictions are documented also by heightened representations of scenes from the Apocalypse and the Last Judgment. About the time of Dürer and of Sebastian Brant, a great painter, Lucas Cranach the Elder, gave form to this tradition depicting an archangel with functions and forms identical to those of the ­ancient pagan goddess.26 But the intensity of the reflection on problems of justice in those years is demonstrated by another detail which has been ignored up to now: the scale hanging on the wall in the celebrated engraving by Dürer, Melencolia I. Here the forlorn gaze of the woman with majestic bearing is directed toward a supreme distance while the scale, symbol of justice hangs uselessly on the wall.27 25

26 27

According to Sara Menzinger, Giuristi e politica nei comuni di popolo. Siena, Perugia, e Bologna, tre governi a confronto (Rome: Viella, 2006), p. 6, summarizing studies by Mario Sbriccoli. The work dates to 1506. It is reproduced in Lucas Cranach, Incisioni, scelte e annotate da Fritz Baumgart (Florence: La Nuova Italia, 1970), no. 20. In the analysis of the attributes of Melencolia I the scale is totally ignored in the classic work by Raymond Klibansky, Erwin Panofsky and Fritz Saxl, Saturn and Melancholy; Studies in the History of Natural Philosophy, Religion and Art (Nendeln [Liechtenstein]: Kraus

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Figure 12 Ambrogio Lorenzetti, allegory of Justice, fresco, 1337-1340, detail from Gli effetti del Buon e del Cattivo Governo in città e nel contado. Siena, Palazzo Pubblico, Sala dei Nove. Foto Scala, Florence 1990

Justice, That Is To Say God

Figure 13

Rogier Van der Weyden, the archangel Michael weighing souls, oil on panel, pre-1450, detail from the polyptych of the Last Judgment. Beaune, Hôtel Dieu

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Figure 14

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Albrecht Dürer, Melencolia I, engraving, 1514

Justice, That Is To Say God

Figure 15

Idem, Four Horsemen of the Apocalypse, woodcut, 1498

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This is another clue to the perception of a crisis which must have been felt especially acutely. It suffices to consider the way in which the attributes of justice—the scale and the sword—appear in the famous panels engraved by Dürer for the in-folio edition of the Apocalypse of John published at Nuremberg in 1508: the medieval iconographic tradition of the four horsemen of the Apocalypse is here beset by a new dramatic tension and the blind eyes of the third knight who holds in his right hand a scale buffeted by a divine wind announce divine judgment over the human bodies crushed by the horses’ hoofs.28

28

Reprint, 1979). This is due to a focus concentrated exclusively on the tradition of the symbolic figure of Geometry. Other symbols of the engraving are placed halfway between geometry and justice: for example the T-square (la squadra) (see G. De Tervarent, Attributs et symboles, col. 160). The profound transformation worked by Dürer on the medieval representations of the figure of the third horseman emerges from the astute analysis of Anna Maria Cetto, “Der dritte Apocalyptische Reiter,” Metropolitan Museum Journal 9 (1974): 203-210.

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The Blindfold At the close of the sixteenth century Cesare Ripa’s Iconologia recapitulated the principal attributes of justice permitting us to trace a long course of development and to look retrospectively at what had transpired. Here for the theme “Justice” the author hailed the victory of the female figure but had to take note of the appearance of discordant properties especially concerning the eyes of the goddess, with the result that the entry had to be sub-divided into separate chapters: on the one hand there is “Justice as discussed by Aulus Gellius,” represented as a “woman in the form of a beautiful virgin” who not only has “eyes of exceedingly keen vision” but also a third eye in the guise of Dante’s Prudence, painted over “a necklace about her neck.”1 And this was so that the ministers of justice “with keenest vision may penetrate even to the hidden and occult truth.” On the other hand, there is the representation of justice as a “blindfolded woman.” Other characteristics follow: “an ostrich,” recalling an ancient Egyptian symbol badly interpreted by Piero Valeriano; and “on the left, a flame of fire … or rather, she holds the sword and the scale.” Ripa explains that this “is the sort of justice, that in the tribunals is applied by judges and executioners.”2 The sword had appeared, to indicate the punitive function. But even for Ripa what remained obscure was the significance of the new symbol: the blindfold over the eyes, an image that evidently clashed with the ancient feature of keen vision. Erwin Panofsky, casually reading this passage, noted that only human justice was blind according to Ripa, while divine justice from on high observed the world as a low thing.3 But he recognized that the attribute of blindness could assume in this case the positive value of guaranteeing impartiality. ­Panofsky also recalled the circulation of another image, that of a two-faced Justice, on one side with her eyes open and on the other blindfolded and he interpreted it as referring to “utrumque ius” (canon and civil law). Panofsky’s 1 In the allegory of justice painted by Giovanni Andrea de Ferrari about the year 1620 (Palazzo Bianco, Genoa) the third eye is painted in the upper portion of the breast-plate of a female figure severe in appearance armed with a sword, who bears on an open book the augury of unalterable force (“Inconcussa vigeat”). 2 Iconologia di Cesare Ripa Perugino (Venice: Cristoforo Tomasini, 1645), pp. 246-247. 3 E. Panofsky, “Blind Cupid,” pp. 109-110. Ripa had described a divine justice which from on high “with penetrating eyes, observed the world as a low thing, holding in her right hand an unsheathed sword and in the left the scale” (Iconologia di Cesare Ripa Perugino, p. 246).

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_004

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explanations are superficial and unsatisfactory, not only because his attention was concentrated on the image of Cupid with his eyes blindfolded but also for a more substantial reason: concerning allegorical images of justice some reasonable competence in the field of judicial practices and doctrines is required. As in other fields, even in that of the administration of justice, images express synthetically historical processes and developments that require experienced eyes to decipher them. A study that limits itself to comparisons will lead to a de-contextualization not much different from what happens to pictorial representations removed from churches once they are placed in museum collections. And for this reason the interpretations of images of justice have progressed only when they have been studied by true experts. On the origins of the attribute of blindness new and definitive light was cast by a brief but lucid essay published in 1905 by a historian of the law, Ernst von Möller: here the origins of the image of blindfolded justice in the 1494 Basel edition of Sebastian Brant’s Das Narrenschiff was established with precision. Von Möller also reconstructed its subsequent circulation, noting, among much else, that the origins and progress of the image had not followed a linear course. In Brant’s work, von Möller observed, blindness was not a symbolic attribute on a par with the sword or the scale but rather an incidental negative fact, an obstacle created by human folly. The denunciation of that folly was to recall for readers the need to eliminate the blindfold and to restore to Justice the sharp-sightedness of her vision. On the subject of the Christian sense of life and death he reiterated his denunciation of the folly of those who wanted to live ignoring God’s judgment, preferring worldly pleasures to the kingdom of ­heaven. The mind of Sebastian Brant, as a Christian reformer, is also evident in the way he interpreted the symbolic figure of Fortune; among her most fundamental characteristics Fortune had blindness and the wheel to suggest the absolute uncertainty of acts and movements, while Virtue was represented as being seated on a solid, square base.4 In Brant’s work the wheel of fortune was entrusted to God, following the tradition which had thus placed it under His

4 “Sedes virtutis quadrata, sedes Fortunae rotunda,” one reads in the Liber de sapiente by Charles de Bovelles. See Erwin Panofsky, “Good Government or Fortune? The Iconography of a Newly Discovered Composition by Rubens,” Gazette des Beaux Arts, ser. 6, 108 (1966): 305-326, tome 68, who indicates among the other possibilities for encounters and symbolic borrowings between the two images a Greek bas-relief of a “kairos” with wings and a scale housed in the Archeological Museum of Turin and the winged Nemesis of Dürer.

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Figure 16 Sebastian Brant, A madman with a scale, woodcut from The Ship of Fools, Basel 1494

control and thus Christianized the energy of the pagan divinity.5 Any authority which parted ways with justice was warned to fear the judgment of a God who held firmly in his hand the movements of that wheel. This was far removed from developments in Florentine mercantile culture where the symbol of fortune was intended “to encourage the value of decisive action.”6 And the lament over the denunciation of blind justice represented by the attribute of the blindfold was fundamentally Christian: Justice is blind and dead, “Gerechtigkeit ist blind und tot.” Insane is “one who loves to quarrel like a child and wants his eyes to be blind to the truth.”

5 “Gedenket klüglich an das Ende/Dass Gott das rad nicht plötzlich wende” (Narrenschiff, par. 56: “Vom Ende der Gewalt”); the passage is cited by August Doren, “Fortuna im Mittelalter und in der Renaissance,” in Vorträge der Bibliothek Warburg, 2 (1922-1923), vol. 1: 71-144: 105 (ed. Fritz Saxl). 6 Aby Warburg, “Le ultime volontà di Francesco Sassetti,” in Opere, I. La rinascita del paganesimo antico e altri scritti (1889-1914), ed. Maurizio Ghelardi (Turin: N. Aragno editore, 2004), pp. 427484: 459.

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Whoever might read these verses as a moralistic warning, addressed to everyone and nobody, would be in error. It was not interpreted this way by the contemporary public to which it was addressed. The men of the time well knew that to place blindfolds over the eyes of judges, in other words to alter the rules of the functioning of justice was only possible to political authorities and to the legal scholars of the universities. And it was precisely from these quarters that the response came, while editions and translations of Brant’s work multiplied. It was an efficacious reply in two stages. The first was limited to altering the polemical objective continuing to give a negative significance to the symbol of the blindfold. In the edition of Bamberg’s penal laws (the Constitutio penalis Bambergensis) we find from the very first edition in 1507 the image of a tribunal where all the judges are blindfolded and wear caps with tiny bells as a sign of folly: a caption explains that “to judge on the basis of wrong practices opposed to the law is the way of these blind fools.”7 There is no doubt that this was a reaction to Sebastian Brant’s protest. The image of blindfolded justice evidently refers to one which had been put into circulation in Brant’s highly popular poem. But it is the caption which provides the clue to understand on what points there was a dialogue at some length between the two images. Bamberg’s penal constitution, reviving the image of the blindfold, explained that folly was not external to the tribunal but was actually seated on the benches where some crazed judges had been substituted for the solemn figure of Justice. The caption explained of what folly and blindness consisted: the obstinacy of unfit judges who wanted to continue to administer the law in line with customary norms, as opposed to the true law. Here then the blindfold continued to have a negative connotation. But there was a second stage in the reply which abandoned the defensive position to regard the blindfold decisively as a positive and essential attribute of Justice. This progress by the image terminated with the edition of another collection of written norms, the penal Constitution of Worms appearing for the first time in 7 “Auf böss gewonheyt urteyl geben/Die dem rechten widerstreben/Ist diser blinden narren leben” (Bambergische halszgerichts-und rechtlich Ordnung, [Mentz: Johann Schoffer, 1507], fol. 77v.). For the publication history of Bamberg’s penal constitution, see Josef Kohler and Willy Scheel, Die Carolina und und ihre Vorgängerinnen. Text, Erlauterung, Geschichte. II. Die Bambergische Halsgerichtsordnung (Halle 1902; anastatic reprint Aalen: Scientia Verlag, 1968), which reproduces several engravings, but not the one which interests us here. I am grateful to Vincenzo Lavenia for his help in locating the work. For a modern edition, see Bambergische Halsgerichtsordnung, ed. Johanna von Schwarzenberg (Nuremberg 1979) (Schriften zur Reformationszeit, 4). The engraving from the 1507 edition is reproduced by M. Sbriccoli, “La benda della giustizia,” pp. 41-95 (fig. 8). It appears with variants but with the same caption in the Mainz 1510 edition (reproduced in R. Jacob, Images de la Justice, p. 162).

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Figure 17  The madness of blind judges, woodcut from the Constitutio penalis Bambergensis, Mainz 1507

1498 and often reprinted. In the edition produced by Christian Egenolph (Egenolff) at Frankfort in 1531 a beautiful engraving placed at the beginning (reproduced in this book facing the title page) showed a blindfolded justice with the symbols of the sword and the scale dominating over a base where three female figures with children in their arms seem secure under her protection. The two small plates of the scale are in perfect equilibrium, unaffected by the differing weight of the two opposed figures of a great personage and a peasant.8 Thus the symbol of the blindfold again had found a place, but assuming a 8

Satzungen, Statuten und Ordenungen rechtmessiger, beständiger und ordentlicher Policei in geschribenen Rechtenn und natürlicher Billicheit gegründtes Ebenbild. Von Möller cited it in the Frankfort 1531 edition of Christian Egenolph (Ernst von Möller, Die Augenbinde der Justitia, col. 115). I reproduce the frontispiece from the copy of the Frankfort 1553 edition

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totally different meaning: that of an irreproachably positive character, the guarantee of the impartiality of the judge. The incidental obstacle foolishly imposed by others to the vision of Justice whose removal had been called for became transformed into a stable feature freely assumed and proudly exhibited, a symbol capable of finding acceptance in the language of visual communication, at least when the culture of the patron was familiar with it and demanded it. Flemish painters active in Italy, for example, had recourse to it only when working outside the country.9 Traced back in its context and reconstructed in the scansion of a cut and thrust polemic, the image in its different versions (that of Sebastian Brant and that of the statutes of Bamberg and Worms) takes us back to a precise historical moment, a turning point in the development of the law in Germany: the victory of common law over customary justice thanks to the roles of Humanism and Reformation.10 Subsequent studies in the history of law have confirmed the shrewdness of Von Möller’s observations. The connections between the two versions of blindfolded justice need to be reconstructed by considering the contents of the texts. Sebastian Brant’s gave expression to a broadly diffused malaise, a sense of insecurity because of widespread criminality and criticism over the decadence of customs and religion. As for the Constitutions of Bamberg and Worms, if they are innovative in the images they display, they are even more so for what they represent in the history of the administration of justice in Germany. It was Harold Berman who recently forcefully stressed the importance of what he has defined as “the second revolution” (the first, according to him, had been the papal one of the Late Middle Ages) in the history of justice in

9

10

housed in the Staatsbibliothek, Munich. I should like to thank prof. Franziska Meier for her help in locating the text. On the Italian activity of some, especially of Gaspare di Puglia, see now the study by Giuliana Sapori, Pittori fiamminghi nel cantiere Italia (Milan: Electa, 2008). But on the reactions of the organs of repression during the Counterreformation era toward the work of artists who came from countries of different cultures and religious confessions, there is still no satisfactory study. Von Möller can take credit for having established clearly the significance of this juncture in the history of German penal law: “The years during which the eyes of Justice were blindfolded signaled a turning point also for the development of German law (“Auch für die deutsche Rechtentwicklung bezeichnet die Zeit, in der der Justitia die Augen verbunden wurden, einen Wendepunkt…”); and it was Humanism and the German Reformation which furnished the decisive thrust in the full victory of Roman law (“volle Sieg des römischen Rechts”: E. Von Möller, “Die Augenbinde der Justitia,” col. 148).

The Blindfold

Figure 18 Cornelys Matsys, Justice and Prudence, engraving, c. 1538

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Figure 19 Gaspard Heuvick (also known as Gaspare di Puglia), allegory of Justice, oil on panel, 1589. Oudenaarde, Stedelijk Museum

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Europe.11 This second revolution was accomplished by the Protestant Reformation when it cut away decisively from any interference in this field by spiritual authorities, leaving the wielding of the sword exclusively in the hands of the sovereign. Along the way leading to this outcome the Bamberg Constitution represented a crucial stage: in fact it can be called the first modern penal code.12 Its revolutionary character consists of the fact that for the first time in Germany a systematic and complete collection of laws regulating crimes and punishment had come into being. Before this date nothing of the sort had existed: only Italian civic statutes offered something similar. By this route we can clarify the connection between the attribute of blindness in the Narrenschiff and the use made of it in later legal texts. Actually, as Von Möller noted, there was an interior connection to which we can trace both the negative reception of the blindfold in Sebastian Brant’s satire as well as the positive value of the attribute of blindness accepted subsequently. In both cases it was a matter of reactions to the reception of a penal law written to replace the traditional forms of customary justice: the new jurisprudence that was received with favor by humanists and reformers could instead provoke hostile reactions among a people wrestling with new rules and new judges. A transparent moral fable evoking this situation can be read in the proverb Scarabeus aquilam quaerit by Erasmus of Rotterdam (datable to 1515, when it appeared in the Basel, Froben edition of the Adagia). Here the regal eagle with its penetrating stare represented the new centralized sovereign power, inexorable “devourer of peoples,” with a band of magistrates and jurists at his command, while the earth-bound scarab beetle covered in dung, master of medicinal secrets, hard-working and patient, represented the poverty-stricken and insignificant populace, but still capable—if provoked and offended—of launching a fierce attack on the heavens of the powerful. Erasmus’ s proverb, “a violent anti-monarchical pamphlet” in the words of Silvana Seidel Menchi, thus registered indirectly popular tension against the new jurisprudence; at the same 11

12

Harold J. Berman, Law and Revolution. II. The Impact of the Protestant Reformation on the Western Legal Tradition (Cambridge, MA and London: Harvard University Press, 2003), p. 138. See, especially, chap. 4, “The German Revolution and the Reform of Criminal Law,” pp. 131-155. “The first modern code of criminal law” (H.J. Berman, Law and Revolution, II: 138). On the importance of the Bamberg code as a model for the penal Constitution of Charles V (the Carolina) and as testimony of the reception in Germany of romanist penal law of Italian origin, see the well documented dissertation presented at the University of Bonn: Timo Holzborn, Die Geschichte der Gesetzpublikation insbesondere von den Anfängen des Buchdrucks um 1450 bis zur Einführung von Gesetzblättern im 19.Jahrhundert, Dissertation 203, Juristische Reihe Tenea, vol. 39, pp. 94-95.

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time the author’s humanistic culture induced from him the first modern interpretation, in a positive sense, of the symbol of blindness. It was Erasmus’s proverb, in fact, which opened the door to the positive acceptance of that attribute. He did not invent it, but had found it in an ancient source—Plutarch’s Moralia—and he restored it to circulation. In a passage of Plutarch’s De Iside et Osiride we find a description of the symbolic Egyptian representations of a judge lacking hands (to prevent him from accepting gifts) and without eyes (to shed desires and sentiments and any regard for persons). By way of Erasmus and thanks to the enthusiasm that, after the discovery of the Hieroglyphica of Orapollo (1419), was attached to the symbolic language and writing of ancient Egypt, echoes of this text reached the great jurist Andrea Alciato, who mentioned them, as we shall see, in his widely popular Emblemi.13 We should note that humanistic culture was well aware of the other and apparently contradictory character of the keenness of vision: Erasmus did not lose the opportunity of making it the subject of one of his Adagia (Dikes oftalmòs id est Justitiae oculus). And from the same source Alciato took the same citation to show off his erudition and to praise in a more properly juridical context the sublimely keen gaze of Justice.14 The co-existence of the two opposed characterizations did not create problems in a language capable of bending images according to the occasion and need. However, there was a real contradiction in the reasons which allowed the image of blind and deficient justice to progress in European culture. The historical phenomenon to which Sebastian Brant, Erasmus and Alciato were reacting in one way or the other was one and the same: that of the advance of a power to judge as the exclusive prerogative of the central authority of the state, which imposed its body of laws on a judicial corps, cancelling out local customs and the social practices connected to them. The eagle’s keen eyesight was the characteristic of an implacable justice which from above controlled all 13

14

E Von Möller, “Die Augenbinde der Justitia,” coll. 144-145 (Plutarch and Erasmus), pp. 148 ff. on the introduction of Roman law. Cf. Erasmo da Rotterdam, Adagia. Sei saggi politici in forma di proverbi, ed. Silvana Seidel Menchi (Turin: Einaudi, 1980), p. lviii. On the circulation of the Plutarch passage and on the sixteenth-century images of a handless justice, see also Michael Evans, “Two Sources for Maimed Justice,” Notes on the History of Art (1982), no. 12. Erwin Panofsky has spoken about “an enormous enthusiasm for everything Egyptian”: Meaning in the Visual Arts (Chicago: University of Chicago Press, 1982), p. 159. As Claude Minois recalled in his comment to the emblem “in Senatum boni principis,” Alciato in his Oratio in laudem Iuris civilis had cited Crisippus in his description of Justice as “puella … luminibus oculorum acerrimis”(quoted at second hand from Aulus Gellius, Noctes Atticae, l. 14, chap. 4). On ancient metaphors of this kind, see also the substantial and synthetic study by M. Stolleis, Das Auge des Gesetzes, pp. 21-25.

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society’s movements; the blindness of the judges served as the guarantee of their impartiality. But the power of the people huddled in their huts like beetles in their burrows could explode threateningly against the violence of harassing and cruel power. Anyone who stops to reflect on the forces which were about to explode in German society with the rebellions of the knights and the peasants cannot help finding in Erasmus’s Adagia the combined presence of the two faces of the representations of justice. Erasmus inveighed against the violence of the centralized power of the prince and the rapacious surveillance of the ruler over his subjects and he entertained Augustinian bitterness toward sovereigns throughout history: but this did not prevent him from perceiving the positive potential in a law which freed the judge from the maze of social relations of a place and the accompanying corruption. In the ironic and allusive style of the Adagia we discern all the ambiguity of the symbolic image of the blindfold; but also that of humanistic culture at a crossroad between the critique of the violence of the new sovereign power and the consensus toward the guarantees of impartiality offered by written norms imposed on judges who were the instruments of that authority. Thus, the transition of the blindfold from the symbol of foolish blindness to ennobling attribute is a leap in quality that certainly cannot be interpreted as the fruit of a common humanistic language. “The useless ruminations” of humanists, Panofsky remarked offhandedly, treating Brant and Alciato as one. Now, it is true that the language of the humanists attempted to advance its own symbolic elaboration to defend the principle of a legal norm imposed from the height of Romanist doctrine. But that proposal was not as successful as the image of the blindfold. In Italy, it took the prince of jurists of his day, Andrea Alciato, to introduce into the channel he had created—the figurative language of emblems—something he had conceived for the purpose. Here the impartiality of those judging was represented by the blindfold, placed over the eyes not of Justice but of the prince. In the emblem in Senatum boni principis Alciato portrayed a central, blindfolded figure surrounded by a group of men of grave and authoritative demeanor, but lacking hands: and the comment read: “Caecus at est princeps, quod solis auris absque/Affectu, constans iussa senatus agit.”15 15

“The prince is blind because he adheres faithfully to the indications of the senate, thanks only to hearing and without showing favoritism.” Von Möller cites the Augsburg 1531 edition as the first to include this emblem, subsequently reproduced in the numerous editions of the work until that of Lyons in 1600 with rich annotation by Claude Minois (Andreae Alciati V.C. emblemata cum Claudii Minois ad eadem commentariis. Lugduni, apud haeredes Gulielmi Rovillii, 1600, emblem CXLIII, “In Senatum boni Principis,” pp. 513-518). Even Panofsky, relegating to secondary importance the engraving that appears in the 1494 edition of Brant’s Narrenschiff, called attention to Alciato’s emblem

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Figure 20 B. Salomon, In Senatum boni Principis, engraving from A. Alciato, Emblemata: in Senatum boni Principis, Lyons 1551

So, the “princeps” appeared as the first and most important member of a senatorial body: it was an adequate representation for the political frameworks of many Italian States where the personal power of the prince was beginning gradually to separate from the influence of a patrician citizenry. And the pictorial echoes of the idea came from civic governing bodies of a republican type.16 Instead, it would seem that Alciato was not acquainted with the work of Sebastian Brant, which did not circulate in Italy where blindfolded Justice remained unknown: at least as a visualized image. As exigency and ideal program

16

where blindness assumed the value of the symbol of impartiality (Panofsky, “Blind Cupid,” pp. 109-110, note 48). Awareness of Plutarch’s text is attested by a representation of judges with their hands missing, painted in the Hôtel de Ville in Geneva c. 1620 by Cesare Giglio (a different date is offered in D.E. Curtis and J. Resnik, “Images of Justice,” pp. 1734, 1750; attention was drawn to the painting by M. Evans, “Two Sources for Maimed Justice,” see fig. 21).

Figure 21 Cesare Giglio, Judges with severed hands, fresco, 1604. Geneva, Hôtel de Ville

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of a state still formally republican we find it formulated in a discourse, which has remained unpublished, by Niccolò Machiavelli written on the occasion of the installation of a new magistrate (probably in 1520). Here Machiavelli, interpreting in his own way the regulations established by the Florentine statutes for the ritual “protestatio de iustitia,” substituted for the traditional citations from Holy Scripture a reading from Dante’s verses on Trajan and invited reflection on the greatness of the “State of the Greeks and the Romans” as the fruit of a justice that “defends the poor and the powerless, restrains the rich and the powerful.” His discourse closes with these words: “You must, therefore, most eminent citizens, and the rest of you who are charged with judging, close your eyes, stop up your ears, bind your hands when you happen to see before you to be judged friends and relatives, or to hear unreasonable pleading or arguments, or receive something to corrupt your soul to divert you from pious and just actions. If you will do these things, where there is not Justice, it will return to dwell on this earth; when it is here, it will remain willingly and will not want to return to the heavens; and thus, together, you will make this city and this state glorious and perpetual .”17 Things went differently: the long agony of republican institutions in Florence and the rapid decline of senatorial and conciliar institutions rendered Machiavelli’s warning and Alciato’s emblem useless. In Germany, instead, more or less contemporaneously with the appearance of Alciato’s Emblems, Christian Egenolph printed the engraving of a feminine figure with blindfolded eyes armed with a sword and a scale placed before two men, one rich, the other poor.18 This suggestion circulated in the iconography of Justice throughout the world of German culture and from there to other circles as well; Alciato’s remained limited to learned citations traceable to Plutarch. All this shows how quickly men of the law succeeded in taking charge of the issue transforming it into an argument in their favor. The image created by a desire for reform was immediately appropriated by official justice, reversing its meaning: and this with the sole device of abolishing the retinue of fools who derided blind Justice in the work of Sebastian Brant. Now, Justice, seated solemnly on her bench, exhibited the blindfold with pride: it was the symbol of 17

18

Newly translated from Niccolo‘ Machiavelli, “Allocuzione ad un magistrato,” in Idem, L’arte della guerra, scritti politici minori, a cura di Jean-Jacques Marchand, Denis Fachard and Giorgio Masi (Rome: Salerno editrice, 2001), p. 611. (The italics are mine). Cf. JeanJacques Marchand, “Una ‘protestatio de iustitia’ del Machiavelli: l’Allocuzione ad un ma­­ gistrato,’” La Bibliofilia 76 (1974): 209-221. Von Möller also indicated the existence of an autonomous printing of the engraving, the work of Christian Egenolph (“Die Augenbinde der Justitia,” coll. 115-116, 120).

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the impartiality of a superior authority. With the imposition of a new jurisprudence, that authority promised impartial judgments and inflexible punishments. Ernst von Möller’s interpretation has not been impaired or modified; Mario Sbriccoli, the most recent and authoritative student of the question, has made it his own. The rapid re-evaluation of the image of Blind Justice must therefore be understood in terms of the passage from local trial procedures to common law. The new sort of trial announced itself as the product of a severe justice which followed written rules and which was not beholden to anyone. “An inquisitorial trial,” Sbriccoli wrote, “structured and not easily manipulated replaced mixed practices where there was ample room for negotiating:” judges arrived, “trained in Roman law,” ready to replace “blind” and incompetent judges. The matter was not allowed to pass, however, without opposition and faultfinding. Sebastian Brant’s poem was the forerunner of other polemical voices which, far from accepting the presumed superiority of the latest model, accused the new judges of blindness, and of injustice in the trials conducted according to the modern rules. This marked the onset of a twofold progression which was to accompany the subsequent fortune of the symbol of the blindfold. The harshly critical point of view argued skillfully in a treatise by the French jurist and magistrate Pierre Ayrault is of special interest: here it was antiquarian culture that permitted the introduction into the discussion of a penal law which emphasized precisely its Romanist foundation. Contrasting the trials of the Greek and Roman world with those of modern times Ayrault demonstrated the weakness of the public aspect of the ancient models. In France the secret character of the inquisitorial trial had been introduced with the ordinance of Blois in 1498 and confirmed in the later more famous one of Villers-Cotteret in 1539.19 According to Ayrault that secrecy had grave consequences for justice. Only democracy could guarantee an efficacious public control over the action of judges: “There will always be something with which to find fault if the trial has not been seen, executed and examined in public. This countenance (of the public) consisting of more eyes, more ears and more heads than all of the monsters and giants of the poets, has greater force, greater energy to penetrate consciences and allows one to decipher which side is in the right, than this way of proceeding so secretly.”20 19

20

See Adhémar Esmein, Histoire de la procedure criminelle en France, et spécialement de la procedure inquisitoire depuis le XIIIe siècle jusqu’à nos jour (Paris 1882; anastatic reprint Frankfurt a. Main: Verlag Sauer & Auvermann KG, 1969). “Cette face composée de plus d’yeux, de plus d’oreilles, de plus de testes que celles de tous les monstres et geants des poëts, a plus de force, plus d’energie, pour penetrer jusques aux

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In reality the face with a hundred eyes could see some things: to it was reserved the public spectacle of the punished delinquent. That was the preferred occasion chosen by the sovereign to legitimize his authority but also to demonstrate the power of his law.21 But the course followed by the judge to reach the sentence remained concealed: this key moment in the process remained hidden behind the blindfold imposed by power whether in the lay version of the centralized state or in the ecclesiastical one of the Inquisition against heretical pravity. Judges now worshipped the formalities of that justice: at the mid-point of that century which in France had known the Ordinance of Villers-Cotteret, a pictorial representation, it too French, revealed a judge in the act of praying before a blindfolded justice.22 The question of the piercing gaze would occupy an ever more central position in the representations and in the concepts of the exercise of power as legitimate intervention in the lives and property of individuals. But meanwhile, unquestionably, the symbolic image of blindfolded justice originated from a conflict surrounding the power to judge which was not a marginal aspect of the age of the European wars of religion but rather constituted the salient moment. The word “justice” assumed then the highest sort of value: the question of how the human being could appear just in God’s eyes was at the heart of violent conflicts, creating intense human dramas and lacerations of every sort, even unleashing revolts and wars, with human costs and tragedies which afflicted European history and left their stamp on an entire epoch. It is generally assumed that it was a purely religious question: whether human beings could function in a just manner or could be pardoned by a gratuitous divine act for the faults and sins which were the fruit of their corrupt nature. In reality around the question of justice revolved a profound reappraisal of all forms of power. Behind the modifications in symbolic representations we find important changes not only in the justice meted out in the courts but also in the relationships among the traditional authorities of Christian society, the spiritual

21

22

consciences et y faire lire de quel costé gist le bon droit que ceste instruction si secrette” (Pierre Ayrault, L’ordre, formalité et instruction judiciaire dont les anciens Grecs et Romains ont usé és accusations publiques … conféré au stil et usage de nostre France (Paris: J. du Puys, 1576), l. III, art 3, nos. 21-64). The passage in the original French text is reprinted in Thierry Pech, “Des procès à ciel ouvert. Secret et publicité des affaires criminelles sous l’Ancien Régime,” Histoire de la Justice (1998), no. 11: 183-197: 183-184. The observation on this twofold aspect of the publicity given to executions during the Ancien Régime is made by Judith Resnik, “Uncovering, Disclosing and Discovering. How the Public Dimensions of Court-Based Processes are at Risk,” Chicago-Kent Law Review 81 (2006): 521-570. See R. Jacob, Images de la Justice, p. 79, fig. 24.

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Figure 22 A judge praying before a blindfolded Justice, wood, model for the bronze sculptures by Guillaume Dannole, 1552. Cambrai, Musée Municipal

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one of the Church and the temporal one of the sovereign. This is demonstrated by the career and culture of the person who was the principal author of the penal Constitution of Bamberg: Johann von Schwarzenberg. It was he who later would head the commission charged with drawing up the famous criminal code of Emperor Charles V, the “constitutio penalis Carolina” of 1532. The fact that Schwarzenberg was also a fervent Lutheran confirms the profound concordance between the far-reaching changes occurring in those years in the Germanic world around the questions of the right to punish and the religious crisis provoked by the Lutheran Reformation. Schwarzenberg’s efforts as reformer of the penal system were directed at fleshing out the principle of the exclusive authority of the prince to guarantee the social order: a power above the individual parts, regulated by norms valid for everyone and thus capable of reducing arbitrary judgments as well as of opposing the corruption and favoritism generated by local intrigues.23 It was a deep-seated crisis, the break-up of a tradition consisting of compromises between Christian values of the individual soul and of man in God’s image and the magical and tribal base of the religion of “barbarian” people, with their notion of the death penalty as collective sacrifice.24 The new system clearly divided the world from the supernatural and assigned to the sovereign the exclusive authority of legislating and punishing, cancelling in one swoop what had remained of that religion founded on the communities of a warrior people. The message was accepted by Luther’s first enthusiastic followers and it contained an echo of the figurative module of the blindfold as guarantee of impartiality. A striking proof merits recalling here because it represents the first known testimony of the positive force of the blindfold and because it introduces Luther directly into the history of the symbols of penal justice. The German reformer appears as an ancient Hercules at the center of a crowded scene on a painted–over engraving by Peter Vischer, dated 1524: here a Luther/ Hercules removes the chains from conscience and leads the people toward Christ separating them from a papacy in ruin, while on earth a naked Justice stands by a blindfolded sovereign holding a sword in his right hand.25 Vischer’s engraving is an eloquent and timely comment to Luther’s On Secular Authority, addressed in 1523 to the Elector of Saxony. The work defended 23 24

25

See H.J. Berman, Law and Revolution, 2: 137-153. The immense number of case studies collected by K. von Amira, Die germanischen Todesstrafen leave no doubt about the religious character of the death penalty in the Germanic traditions. The engraving is housed in the Goethe-Haus in Weimar. It is reproduced in R. Kissel, Die Justitia, p. 61, fig. 47.

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Figure 23 Peter Vischer, Luther and Justice, engraving, 1524

the idea of the sovereign power of the sword as an instrument of a supremely impartial justice, the only one capable of holding in check evil doers in a world inhabited by the devil. Luther, who as a theologian had a negative opinion of jurists and as a Christian suspected the learned (for him jurists were “böse Christen,” that is bad Christians, corrupt intellectuals), felt no hesitation in regard to the reform of justice in a romanist sense.26 Vischer’s engraved image was meant to celebrate the turning point achieved by Luther in the arrangements accompanying the power to judge: a revolutionary development or, better, a reactionary one, in the sense that there descended over the Christian, subject to the dominion of the political power, the exclusive identity of subject .

26

“The leaders of the Reformation, beginning with Luther, comported themselves as huma­ nists in regard to Roman law”: this according to E. Von Möller, “Die Augenbinde der Iustitia,” col. 149. On Luther’s negative opinion of the learned, see Carlos Gilly, “Das Sprichwort ‘Die Gelehrten die Verkehrten’ oder der Verrat der Intellektuellen im Zeitalter der Glau­ bensspaltung,” in Forme e destinazione del messaggio religioso. Aspetti della propaganda religiosa nel Cinquecento, ed. Antonio Rotondo‘ (Florence: Olschki, 1991), pp. 229-375.

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in a world dominated by divine anger.27 And that it was reactionary can clearly be seen in 1524, with Luther’s call not to tolerate the peasants’ revolt but to crush it. Thomas Müntzer, who broke with Luther over this point and supported the rebellion published at the time a violent booklet, in which he asked that the might of the sword be given not to princes but to the people and that the traditional types of criminal trials be retained because they were more apt to protect innocents from the violence of authority. “The people,” Müntzer wrote, “must have the power of the sword … princes are not the masters but the servants of the sword…. Therefore it is essential, following good and ancient custom, that the people be present when judgment is given according to God’s law.”28 Much has been written on the revolutionary character of this appeal: in mid-nineteenth century Europe, torn by class conflict, Friedrich Engels wrote on the Peasants War in Germany as a conflict between bourgeois reformation and socialist revolution. But Thomas Müntzer certainly could not imagine the future vistas of class warfare in the world of the industrial revolution: his prophecy penetrated the hearts of German peasants because he spoke the language of a distant past in which the will of God manifested itself through the judgment of the assembly gathered in a sacred space. In the High Middle Ages the written codification of the law had been “a necessary step toward the elimination of the pagan cult.”29 In sixteenth-century Germany the imposition of a hegemonic justice on the part of an absolute sovereign represented the second and decisive step toward the shattering of the tradition of the barbarians’ communal assemblies on the most important point: the power to eliminate evil and to kill the wicked. It is against the background of the ongoing conflict over the power of princes and of a Germany set aflame by the Peasants’ War in which Müntzer was to die that the dispute over the interpretation of the symbols of the sword and the blindfold finds its place. A small detail in the history of the interpretation of Peter Vischer’s engraving makes us reflect on that veil of ignorance laid by the passing of time over the meanings which at the moment of the political and religious polemics of an epoch appear crystal clear. In 1818 the work was given to Goethe as a 27

28 29

Still fundamental on the Lutheran concept of the law are the clarifications offered by Johannes Heckel, Lex charitatis. Eine iuristische Untersuchung über das Recht in der Theologie Martin Luthers (Abhandlungen der Bayerischen Akademie der Wissenschaften) (Munich 1953). Cited from the modern Italian translation: Thomas Müntzer, “Confutazione ben fondata (1524),” in Scritti politici, ed. Emidio Campi (Turin: Claudiana, 1972), pp. 192-193. Karol Modzelewski, L’Europa dei barbari. Le culture tribali di fronte alla cultura romano-cristiana (2004) (Turin: Bollati-Boringhieri, 2008), p. 113 (I have used the Italian translation).

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birthday gift. To be sure, Goethe was not unaware of the significance of the symbolic images. And yet faced with a representation so crowded with figures and informational captions he experienced some uncertainty: he thought, for example, that the gesture of Justice was not that of placing the blindfold over the eyes of the sovereign but, on the contrary, removing it.30 And this demonstrates that even in his case the perception of the symbolic material was influenced and guided by projections of expectations and knowledge already possessed by the observer.31 The significance of the gesture and of the symbol could be comprehended only within the culture which had appropriated the positive value of the blindfold: a culture that was bound now to an idea of political power of Augustinian stamp. But there is still more to the image: only by keeping in mind the profound revolution which had occurred in the world of values and of power in much of Europe even before Luther assumed its direction to a certain extent, can we understand the undeniable importance of what Harold J. Berman has defined “the Protestant Revolution” in the judicial system. From this moment on, once the alternative of returning to the customary forms and to the ancient law backed by the peasant revolt was eliminated with frightening violence, justice was sundered in Europe. Its traditional forms were now cancelled by the slaughter of the peasants—which Dürer memorialized with a monument—and a profound chasm separated the two ways of administering punishment and of judging crimes connected to the common model of a superior power beyond dispute and answerable only to itself. On the one hand was the Catholic system in which the temporal authority was subordinate to the spiritual, on the other, the system prevalent everywhere else in Europe which entrusted the sword of justice to the sole supreme power of the prince responsible only to God and his own conscience. In a painting by Hans Holbein the Younger (1497-1543), today in the National Gallery in Edinburgh, we see a representation of an allegory of the Old and New Testaments: on the left is the tablet with the laws given to Moses on Sinai, against the background of a stormy sky where the word “Lex” appears, and the image looms of the sin of Adam and Eve; on the right the crucifixion and resurrection of Christ fill a scene dominated above by the word “Gratia” (Grace) inscribed on 30

31

See O.R. Kissel, Die Justitia, p. 134, note 167. Goethe’s familiarity with the image of blindfolded justice is attested by verses from his Tasso, 2: 3 (“Auch die Gerechtigkeit trägt eine Binde,/ Und Schliesst die Augen jedem Blendwerk zu,” (“even Justice has a blindfold and shuts its eyes to any illusion”), already noted by E. Von Möller, “Die Augenbinde der Justitia,” col. 109. On the projection of the spectator as a guided reading of the image, we can cite the fundamental pages of E.H. Gombrich, Art and Illusion (especially pt. 3, chap. 7, “Conditions of Illusion”).

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the luminous streak of sky from which an angel descends to bring the cross to a praying Christ. The distinction between the age of the law and the age of grace originated in the Pauline letters and more generally by the need of primitive Christianity to sever its ties with Judaism; but this differentiation between the two ages was revitalized and powerfully relaunched in the early modern period by Erasmus of Rotterdam and by Christian humanism before becoming a fundamental theme in the new religious currents of the Reformation. The exegetical tradition increasingly exerted itself in emphasizing that the descent of Grace on all Christians and the ensuing freedom gained from the fetters of the Law had to be understood as limited to relations in the religious sphere, distinct from the political and civic. In the worldly realm the Christian remained enslaved and not free. Martin Luther’s, On the Freedom of the Christian Man (1521) was fundamental in emphasizing this point. It was essential to avoid any possible confusion between the sphere of social relations and that of relations with God or, as it was said at the time, between flesh and spirit. But, as we know, this did not prevent opinions of other sorts from re-emerging periodically or of expectations and hopes from flourishing concerning transferring the grace of the children of God into the order of terrestrial life. And so repeatedly the sectarian longing to see the Kingdom of God realized on earth for the communities of the chosen resurfaced. A sort of compromise was reached at times which moved ahead the phase of freedom on earth, as Joachim of Fiore had done with his celebrated tripartite division of world history into segments of the Father, of the Son and of the Holy Spirit. In 1531 the new significance of the symbol of the blindfold was recognized when it appeared contemporaneously as the attribute of justice in the edition of the Wormser Reformation printed by Christian Egenolph at Frankfort and in Alciato’s collection of Emblemata. The status of the relationships between powers and forms of the law began to seem resolved. The criminal law of the Empire was on the point of being defined according to the model offered by the penal Constitution of Charles V (the famous “Carolina”). Thus, in the battle waged against customary practices the process “imbued by Roman and Canon law”32 had emerged victorious. Uncertain, instead, was the outcome of the battle between those who wanted to ascribe to the temporal power alone the duty of maintaining order with the sword and those who defended papal authority and the law of the Church as an ecclesiastical body protected by the walls Luther had attacked. On this point an epochal struggle was yet to be waged during the next century: and the result was a division of Europe along a 32

Mario Sbriccoli, “La benda della Giustizia,” p. 85.

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Figure 24 Hans Holbein, the Younger, allegory of the Old and New Testaments, oil on panel, first half of 16th century. Edinburgh, National Gallery of Scotland. Photo National Gallery of Scotland/The Bridgeman Art Library/ Archivi Alinari, Florence

boundary line, still in place today, which enables us to understand much of our present reality. As we advance toward a first conclusion, we can say that the attribute of the blindfold came about by chance, the fruit of the ill humor of a man of the law and of the collaboration between a painter and a printer, in a centrally located university city but detached from the greater European stage, in a poem written in a language—German---not considered viable culturally. In spite of these drawbacks, the proposal was immediately accepted: the image, from birth, took its place at the center of representations of Justice and was assured a long subsequent history. But meanwhile it still bears observing that in the success of this image born casually from polemical humors and from the genius of a man of the law there is something singular and apparently unexplainable, more so than naturally occurs in innovative processes within a figurative tradition. In research on this point one fact is certain, the representation of justice was especially lively and engaged painters and men of letters, as demonstrated by

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Battista Fiera’s pamphlet. And the rapid and lasting fortune of the image invented at Basel in 1494 is proof that this proposal had touched deep roots. Predicting future developments on existing outcomes, we could say that the profound transformations occurring in the world of justice and religion sought an outlet in the codes of figurative language. To render the prediction less banal we shall have to ask ourselves if that success was based on something preexistent. Earlier we spoke of an assemblage of pieces of the past serving in the construction of the future: in the history of cultural events, the work of that great “jack-of-all-trades,” time, can easily be seen in the composition and decomposition of the various parts. Can we verify this idea in the case of blindfolded justice? The image proposed in the work of Sebastian Brant was directed to elements already present in the mental patrimony of the observer: something strongly suggestive, capable of producing echoes and resonances, of expanding the effect of the proposal beyond where it had originated, and then of having the reflexes return, just as do circles in a pool. That certainly was the symbolic image of Justice as a woman. It would be a different matter if we were to ask ourselves what were the precedents for the blindfold. The only woman represented as blindfolded at the time was the image of the Jewish Synagogue: the blindness which clouded the minds of Jews according to Christian apologetic attached itself to other symbols—a broken scepter, a servile pose—to rub in the victory of Christianity and the humiliation of the ancient people of God. Habitually counterpoised to it was the Christian Church in the form of a woman, with a free countenance enlightened by the grace of God. Images of the Synagogue as a blindfolded woman could be seen on the facades or walls of the great cathedrals in Strasbourg, Bamberg and Paris; and Strasbourg was not far from Brant’s Basel. Could this have been the source that suggested to him the representation of Justice? This hypothesis has been broached, but not convincingly.33 The negative value connoted by the symbol stands in evident contrast with the positive quality of the image of justice. The blindness of the 33

According to R. Jacob, Images de la justice, pp. 234-236 the symbol of blindfolded Justice should be considered in relation to the iconoclastic bent of the Reformation era, as a refusal to gaze upon images and the substitution of the humanized image of God the judge with an allegorical figure. Mitchell B. Mermack, The Thief, the Cross and the Wheel. Pain and the Spectacle of Punishment in Medieval and Renaissance Europe (London: Reaktion, 1999), pp. 192-193, has, instead, pointed out a possible allusion to the blindness of Jews in the representations of the reprobate thief in the act of lifting his gaze from the crucified Christ or with a blindfold (as in a panel of c. mid-fifteenth century by the Master of Benediktbeuren, today in the Alte Pinakothek of Munich [ibid., p. 40]). For that matter, if the reprobate thief was blind like the Jews, the legend of the Roman soldier Longino

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Figure 25 Blindfolded synagogue with broken lance, sculpture, 13th century. Strasbourg, Musée de l’Oeuvre Notre-Dame

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Jews was an exceedingly serious accusation: according to Christians, it was God Himself who had placed a blindfold over the hearts of the Jews (so said Paul to the Corinthians, II Co. 3:15). It becomes difficult to conceive how the symbol could be rescued from this abyss of negativity. And, for that matter, the attribute of blindness was ill-omened in all its occurrences.34 One can cite a case that shows how the image of the blindfolded Synagogue could circulate without evoking any of the symbolic values which from Brant on were connected to that symbol. At Ferrara, about 1523, the painter Benvenuto Tisi, known as Garofalo, painted a large fresco in the refectory of the Augustinian convent, in which he represented the Old and New Testaments in a scene dominated by the action of a living cross: one of the four animated arms of the cross strikes a blindfolded woman holding a broken scepter in the heart while she rides away astride a mule with its fetlocks cut: the Synagogue.35 Garofalo returned to this theme in a later oil painting which is more schematic but displays the same feminine figure representing the defeat of the religion of the Jews.36 The apologetic purpose of the painting probably was stimulated by the presence in Ferrara of a Jewish community which for centuries had been the object of ecclesiastical vexations. In any case in figurative Italian culture no one used that symbol to suggest values connected to justice. As we shall see more clearly below, the figure of Justice remained at a standstill in Italy where the feminine symbol of an intense gaze and a proud punitive attitude enjoyed a rich tradition. Nevertheless there is something useful in the proposal which harkened back to the representation of the Synagogue: the direction that research should take, concentrating on traditional Christian iconography so as to understand the origins of the suggestion appropriated by Sebastian Brant and his illustrator. Brant, a radical but profoundly religious spirit, sought to point out the failure of every good rule in a human society which by now for him resembled a boat load of fools headed for shipwreck. He was not alone in thinking this. A few years later another writer found success pursuing a similar theme but ingeniously reversing the plan: in Erasmus of Rotterdam’s Encomium Moriae it

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36

asserts that he recovered use of his eyes thanks to the blood of Christ struck by his spear, after which he converted and became a Christian martyr (ibid., p. 223). It is R. Jacob, Images de la Justice, p. 233 who once again recalls the other allegories of blindness: Death, Ambition, Ignorance, Error, Anger, and so forth. The detached fresco is presently housed in the Pinacoteca Nazionale of the Palazzo dei Diamanti in Ferrara. See Anna Maria Fioravanti Baraldi, Il Garofalo. Benvenuto Tisi pittore (c. 1447-1559) (Ferrara: Edit Faenza, 1993), pp. 163-165. The canvas, housed today in the Hermitage at St. Petersburg, is dated c. the 1540s (ibid., pp. 234-235).

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Figure 26 Benvenuto Tisi, known as Garofalo, representation of the Old Testament, fresco, first half of the 16th century, detail. Ferrara, Pinacoteca Nazionale. Foto Mauro Magliani, 1994/Archivi Alinari, Florence. By permission of the Ministero per I Beni e le Attività Culturali

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is the person of Folly which in elegant Latin presents herself and talks about her presence in human life. With Erasmus, the objective which Brant barely touched on was squarely the focus. In the images with which Hans Holbein illustrated the Erasmian text in the Froben 1515 edition, the cap with little bells on the heads of the fools, in the engravings of Brant’s Narrenschiff, is attributed directly to the feminine figure of the protagonist. But here the disappointed lament concerning the course of the things of this world becomes transformed into the amused and diverting discovery of the absurd logic which regulates human comportment—a logic by which the world itself can be saved. Like his Florentine contemporary Niccolo‘ Machiavelli, Erasmus succeeded in turning the protest and the lament into a lucid description and instead of inculcating how things should be he attempted to comprehend how in fact they were. Thus, he discovered that the things of the world function by following not wisdom but folly: were they not demented, those modern preachers of religion armed not with the sword of the faith of the ancient Apostles but with that of thieves and parricides? (Hans Holbein proposed for greater clarity the drawing of a crossbow and a large arquebus, weapons used in those years in the Christianization of non-European people). And certainly crazed—Erasmus continued—were the cardinals and popes who, having abandoned the labor of ministering to souls, wallowed in luxury and other pleasures. Even judges and jurists participated in the general folly of the world. They had achieved a primary position in the ranking of university education and as for power, Erasmus mentions them immediately after popes and princes. They loved money which the true wise man despises and thus were always ready to sacrifice the law for profit. So no one follows the straight and narrow line of that which officially is deemed wisdom, but the opposite, regardless how absurd it is and how senseless it is judged to be. And yet here is the unforeseeable final blow, worthy of that carnivalesque laughter which at the time of Erasmus still enlivened the feasts of fools and turned the solemn rite of the Cathedral sermon into buffoonery: God Himself “chose what is foolish in the world” (I Cor. 1:27); and certainly most foolish of all is Christ who made Himself man, who chose to die, who prayed for his enemies, who selected ignorant and obtuse apostles seducing them with his own folly—that of the Cross. The religion that progresses thus is not the progeny of wisdom but folly itself. It has a common root with Sebastian Brant’s poem: the proclamation of a Christian conscience in revolt against the society of the time in the name of a return to the spirit of the Gospel and a Christian overturning of values. In his Enchiridion or Manual of the Christian Knight Erasmus had indicated the remedy that would give a new direction to all things human: the Word of God, known and mediated through the Gospels and Sacred Scripture to put it into

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Figure 27 Hans Holbein, the figure of Folly on a pulpit with a cap and bells on its head, from the Comment to the Encomium Moriae of Erasmus. Drawing from the Basel, Froben edition, 1515

practice. The theme of “the imitation of Christ” would characterize a large segment of the religious movements of that age which grew under the name of a willingness to reform, in other words of a return to that form of Christianity which had gone astray. Folly of the world, folly of the Cross: the voyage sailing to disaster of the ship of fools lamented by a poet who was also a man of the law, became in the meditations of the Christian humanist, an invitation to return to the sources of an evangelical and disarmed religion, as removed from the Church of the time as Christ’s cross was distant from the pomp and ambitions of its modern vicars. Taking into consideration the sentiments and moods which were feeding the unhappiness of the world in those years and which would explode shortly in a

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vast conflagration of confessional conflict, it is not difficult to identify the figure hidden behind the image of blindfolded justice. The cloth over the eyes as a detail in a scene of derision did not have roots in the practice of the courts. It was familiar instead in the religious iconography of the epoch, that of the Passion. We recall the biblical passage of the mockery of Jesus: “Now the men who were holding Jesus mocked him and beat him; they also blindfolded him and asked him, “Prophesize! Who is it that struck you?”37 Justice took the place of the mocked Just One; and the madman who ties the blindfold behind the head of the goddess with a gesture that redounds to its own disadvantage immediately recalled the image of Jews who according to the evangelist struck Christ’s blindfolded head without being aware of the harm they were inflicting on themselves. It was an image that, as far back as the 13th century had become a part of European iconography and which at the end of the Quattrocento dominated religious representations, from the frescoed walls of monastic cells executed in Florence by Beato Angelico to books of piety.38 The rapid success of the figure of the blindfolded goddess was influenced by familiarity with the image of the Christ of the Passion, which for some time had been at the center of practices connected with pardon and the religious sentiment of sin and Christian redemption. The suggestion was so transparent for the artistic culture of the day that when the penal Constitution of Bamberg was printed, in renewing the theme of blindfolded justice, the single fool was substituted by an entire human group, thereby approximating the iconographic model of the Passion scene.39 The power of the devout image of the “Man of tears” was superior by far to that of the scenes seen and experienced in contemporary practices of justice. It had deep roots and even a detail such as the blindfold could evoke

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39

Luke 22:63. See also Matthew 26: 67-68, Mark 14: 65. According to Anne Derbes (Picturing the Passion in Late Medieval Italy. Narrative Painting, Franciscan Ideologies and the Levant [Cambridge: Cambridge University Press, 1996]), the subject of Christ’s Passion entered European iconography in the 13th century thanks to Franciscans and their missionary contacts with the Levant. The iconographic theme of the blindfold is documented from the mid-13th century: see ibid., chap. 4, “The Mocking of Christ,” pp. 94-112, where Derbes notes a first occurrence in a painted cross by Coppo di Marcovaldo from 1261, now in the Museo Civico of San Gimignano. “The Mocking of Christ” was painted by Beato Angelico in a cell of San Marco as well as among the stories of the silver cabinet. See above note 7.

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Figure 28 Coppo di Marcovaldo, Christ mocked, detail from a cross painted with scenes from the Passion, 13th century. San Gimignano, Musei Civici. Foto Fratelli Alinari 1979/Archivi Alinari, Florence

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Figure 29 Beato Angelico, Christ mocked, fresco, fourth decade of the 15th century. Florence, Museo di San Marco. Foto Scala, Florence 1990. By permission of the Ministero per I Beni e le Attività Culturali

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immediate echoes.40 No connection can be established between the blindfold of Justice and the blindfolds of the condemned: that sign of degradation and of scandalous death had no possibility of being elevated to the height of the noble symbolic image. Someone who attempted to read the artistic tradition of the offenses against the Christ of the Passion as a standardized reflection of the judicial practices of the Late Middle Ages has compiled a dossier of c. 250 images, almost all from the 15th and 16th centuries, where Christ appears blindfolded 74% of the time ; but the research has had to take note that this was a false approach, as regularly happens when we assume from the documents (figurative and not) a mechanical recording of the facts.41 The case is quite different for those painters who appropriated realistic data taken from judicial practices to represent Christ: the figure of the Redeemer making his way toward capital punishment with a noose around his neck as in the paintings of two Italian masters, Antonello da Messina and Andrea Mantegna, results from a deliberate anachronism. If the Christ of the Passion is thus portrayed it is to evoke in the eyes of contemporaries the ordinary condition of those condemned to death in that epoch: the rope dangling around the neck by which they were dragged to the scaffold had nothing to do with the form of execution, but rather signified for them and for the public, as was correctly recalled, “the actual reduction to a state of abject slavery and subservience, at the mercy of public authority.”42 The two painters knew perfectly well that Christ had died on the cross: only after this event at the foundation of the Christian religion— 40

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Among the endless work on the argument, one contribution stands out, Erwin Panofsky’s “Imago Pietatis. Ein Beitrag zur Typengeschichte des ‘Schmerzensmann’ und der ‘Maria Mediatrix’,” in the Festschrift für Max Friedländer (Berlin: Verlag von E.A. Seemann, 1927), pp. 261-308. We cite it from the French translation (Peinture et devotion en Europe du nord à la fin du Moyen Ăge, introduction by Daniel Arasse (Paris: Flammarion, 1997). There is also an Italian translation (Imago pietatis e altri scritti del periodo amburghese (Turin: Il Segnalibro, 1999). Christine Bellanger, “Le Christ outragé: une iconographie judiciare? Autour des images de la Dérision du Christ en Occident à la fin du Moyen Ăge,” in C.Gauvard and R. Jacob, Les rites de la justice, pp. 145-171. The situation is different when the image has documentary purposes: in the representation of capital punishment by Pierre de Montferrand (reproduced at p. 164 from a late 15th -century manuscript), the condemned person is blindfolded because this was the usage in beheadings. The quotation is from Giancarlo Schizzerotto, Sberleffi di campanile. Per una storia culturale dello scherno come elemento dell’identità nazionale dal Medioevo ai giorni nostri (Florence: Olschki, 2015), p. 479. He cites the important study by Jean-Marie Moeglin, “Le Christ et la corde au cou,” in Elisabeth Crouzet-Pavan et Jacques Vergier, La dérision au Moyen Ăge. De la pratique sociale au rituel politique (Paris: Presses de l’Université ParisSorbonne, 2007), pp. 275-289.

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Figure 30 Andrea Mantegna, Ecce Homo, painting on panel, c. 1500. Paris, Musée Jacquemart-André. Musée Jacquemart-André, Paris 1999/Foto Scala, ­F lorence

and because of it—hanging had replaced crucifixion as ignominious punishment. If they made recourse to that detail it was only because they took into consideration a concrete fact: in medieval capital executions it had become standard practice to place before the condemned and spectators representations and paintings of the Passion of Christ and of the martyrs as symbolic images, religious filters through which to observe the reality of the contemporary judicial bloodletting. Meanwhile, we should record the fact that the blindfold in a scene where justice was being dispensed was an iconographic given

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“immediately and absolutely comprehensible for contemporaries,” as Mario Sbriccoli has observed:43 the image of the blindfolded “mocked Christ” was certainly familiar in the circles of Albrecht Dürer and Sebastian Brant. This is demonstrated by the painting of the mocked Christ, dated 1503, by the great and mysterious master working between Mainz and Alsace, Mathis “the painter” (“der Mahler,”) known by the name of Grünewald.44 This was a specific theme at the heart of an artistic tradition which dedicated itself to scenes of the Passion with special intensity to respond to a persistent question. What was being sought was a direct relationship to Christ as a suffering man outside of ecclesiastical mediation, the key to understanding the concentration of images on scenes of the Passion and the growing popularity of artistic production on this subject. The “ecce homo” engraved by Luke of Leyden in 1510 was, it would appear, an image especially sought after and sold at a high price.45 With the intense devotion centered on the destitute, wounded and suffering Christ of the Passion which shortly would assure an immediate hearing for the Lutheran concept of the “theology of the Cross,” the image of the Just One insulted, derided, tried and condemned, summed up every possible aspect of human justice. Here we also find the key to understanding the suggestive force that the figure of blindfolded Justice was to exercise: a force so powerful as to be considered one of the “formulae of pathos” (Pathosformeln) discussed by Aby Warburg, and not the least in importance. Here the pagan “pathos” of the god of Justice had appropriated a trait which belonged to the central figure of Christian compassion, the “man of tears.”46 The profound current of ancient 43

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M. Sbriccoli, “La benda della giustizia,” p. 80. And before him Christian-Nils Robert, after recalling the precedent of Beato Angelico’s blindfolded Christ, had observed that “le sens de ce geste, aveuglement et dérision, était donc connu à travers les récits de la passion du Christ, avec une signification non équivoque” (Christian-Nils Robert, Une allégorie parfaite. La Justice: vertu, courtisane et bourreau [Geneva: Georg Éditeur, 1993], p. 82). On the painting of the mocked Christ, now housed in the Alte Pinakothek in Munich, and on the connections to Dürer, see the old but still fundamental monograph by Heinrich A. Schmid, Die Gemälde und Zeichnungen von Matthias Grünewald, 2 vols., (Strassbourg: Heinrich, 1908-1911). Luca di Leida, Incisioni, scelte e annotate da Annamaria Petrioli (Florence: La Nuova Italia, 1978), plate 27. A comparison with the Gesú incoronato di spine created toward midcentury by Giulio Bonasone in the series of his twenty-eight engravings of the Passion permits us to verify the popularity of the theme but also suggests the diverse course of devotion and figurative language in the Italian world. On the profound antithesis between the notion of “formula of passion” conceived by Warburg and the “compassion” of medieval Christianity, see Carlo Ginzburg, Jean Fouquet. Ritratto del buffone Gonella (Modena: Panini, 1996), pp. 39-60.

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Figure 31 Matthias Grünewald, Christ mocked, oil on panel, 1504. Munich, Alte Pinakothek, Bayerische Staatsgemāldesammlungen

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Figure 32  Christ mocked, detail from a polyptych at Opitter-Bree (Belgium), 1540. Opitter-Bree, St. Trudokerk (Belgium)

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Figure 33 Lucas Van Leyden, Ecce Homo, engraving from the Passion cycle, 1521. Foto AKG Images/Photoservice Electa, Milan)

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iconography thereby received an irruption of strong and impetuous force: it was the Christian idea of justice incarnated in the image of the Just One whom a human tribunal had condemned to scorn and death. From that time on the ancient feminine figure of Egyptian origin which had long resided on the pagan Olympus was endowed with Christian sentiments and values which would no longer abandon her.

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Chapter 4

Jesus, Barabbas and the Good Thief At the dawn of Christian history we encounter the prototype of that contradiction destined to mark centuries of thinking and imagining about justice: the sentencing to death of the Just One, of the Son of God, as the necessary passage to open for mankind the door of superior divine justice. The trial of Jesus, a necessary and inexhaustible theme in a long Christian tradition of commentaries, meditations and interpretations, has left a profound mark in the concepts and in the exercise of the power to judge. The interweaving between the judicial culture of the Roman tradition and the mysterious theme of the revelation of a divine message, through the agency of a hidden God whose death is the condition of life, has laid the foundation for myriad developments which it would be difficult to categorize, even if only indicatively. It is enough to reflect how the meaning of words have changed that constitute the basic vocabulary used in speaking about the concept of the trial. Let us look at some that come to mind: guilt, punishment, confession, reparation, ransom, pardon, absolution, judgment. From this simple listing the immense subject matter covered by the words appears as if suspended between the religious sphere and the concrete dimension of judicial practice. The theological problem, whether man can ever be without sin, becomes conjoined with the experience of the accused, of any accused, in court. Mankind, heir of original sin, will be able to turn to the figure of the man-God, condemned even though he is without sin, only with the prayer of the Good Thief. As for the judges, the problem they face in regard to any of the accused has been fixed once and for all in the question which closes the colloquy between Jesus and Pontius Pilate: “What is truth?” Even antiquity had its hero in a condemned innocent man: Socrates. Not for nothing did Marsilio Ficino in 15th-century Florence see in the Greek philosopher a precursor of Christ and in the next century Erasmus of Rotterdam proposed to venerate him as a Christian saint. But the prophecy which Plato in the Apologia has Socrates utter against the judges who have condemned him (“After my death an even greater punishment will befall you”) remains in an urban milieu; the ancient horizon of the question of truth and justice which crops up in a famous fragment of the Sophist Antiphon is confined to the relationship between the laws of the city and the norms of nature.1 In the Christian tradi1 Text and Italian translation in I sofisti, ed. Mauro Bonazzi (Milan: Rizzoli, 2007), pp. 308-363: 337-341.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_005

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tion, guilt and innocence found a radically different measure in the figure of the man-God unjustly condemned. From that time on at the center of the judicial machinery of the trial we find the person of the judge, a terrestrial instrument, and the anticipation of that unveiling of hidden sins and of the exact retribution for the just and the unjust that only God will be able to fulfill in a perfect way. It is with Christianity that the link between death and justice, already known to ancient Egyptians, has resurfaced in a new form. Human life now appeared as the brief and painful phase of preparation before the justice of the divine tribunal, gateway to the true life. Consequently the justice of the earthly tribunal is placed in immediate relationship with divine justice, in respect to which the Christian judge has assumed the role of honest if imperfect servant. Once again let us turn to the educational representations of the Gothic cathedrals, those places where Gregory the Great’s idea of images as books for the illiterate took place (“quod legentibus scriptura, hoc idiotis praestat pictura cernentibus”).2 The frequency with which the figure of Christ as judge appears on the facades or apses of the great cathedrals is the clearest evidence of that culture’s constant concern. In the Cathedral of Notre Dame in Paris, for example, Christ the judge is presented accompanied by two angels, ministers of his ire and his forgiving. The symbol of justice is the sword, that of mercy is the cross. But the sword which had expelled Adam and Eve from the Garden of Eden is vanquished by the cross which becomes consequently the symbol of justice in its perfectly Christian form. Here once and for all the significance of the cross as a symbol was established: as such it was to long endure, even if generalized diffusion contributed to its employment in the specific judicial context passing almost unnoticed. The transformation of the cross from ordinary instrument of death to religious symbol of salvation was the first and most important among the metamorphoses induced by the centrality and by the absolute exceptionality of the trial of Jesus in Christian culture. To wish the evil cross on someone had a very specific meaning in the ancient world.3 The bifurcated tree was the symbol 2 Greg. Ep. 11:13. 3 “In malam crucem” (Plautus, Cas., 978). Partially correcting, on the basis of new documentation, the thesis of Theodore Mommsen, Römisches Strafrecht (Leipzig: Duncker & Humblot, 1899), Jean Christian Dumont has documented the especially ignominious and terror-inspiring punishment of the cross, reserved exclusively for slaves (“Le supplice de la croix,” in La Croce, Iconografia e interpretazione, secoli I-inizio XVI. Atti del convegno internazionale di studi, Napoli 1999, a cura di Boris Ulianich [Naples: Elio da Rosa editore, 2007], I: 89-96).

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and the instrument of an ignominious and painful death. It is how rebellious slaves were executed. The defeat of Spartacus in the “slave rebellion” was celebrated by the massive use of crucifixions. But with the victory of Christianity and from the reign of the emperor Constantine—to be precise from 315 ad— the tree of infamous and agonizingly slow death ceased to be used in capital punishments and was substituted by the other tree, the gallows.4 In the new religion the intense concentration on the sentencing and death of Jesus resulted in the sanctification of the instrument of justice. The cross thus became obsolete in the circle where it had originated (in the Divine Comedy as punishment it appears only once in Inferno 23: 124), losing in Christian culture any denotative significance and any connection to the ordinary process of capital punishment.5 The Germanic traditions of capital punishment as a human sacrifice to the gods would complicate in numerous respects the process of the Christianization of judicial practices and introduced next to the tree that was the cross, the trees of the forest as instruments of death within an animistic cult. And this is only one aspect of a complex and contradictory affair, that of the cultural reflexes of the process of Christianization on the concept of justice. In the Easter liturgy concentrated on the passion and death of Christ one could find all the ingredients for both a critique of the fallibility of the human courts as well as the symbolic reparation for all injustice: one could draw from it both an attitude of radical refusal and the abandonment of any desire to rebel. If the statute of the representation is by definition that of compensating for an absence, the images of the crucifixion played an essential role in projecting the expectation of justice in space and time totally different from those of 4 See T. Mommsen, Römisches Strafrecht, p. 921. In the Digest (6th century ad) “for the word crux, as a means of execution, one always sees regularly substituted the word furca: Pio Franchi De’ Cavalieri, “Della ‘furca’ e della sostituzione alla croce nel diritto penale romano,” Nuovo bollettino di archeologia cristiana 13 (1907): 65-114; now in idem, Scritti agiografici 2 (1900-1946), Biblioteca Apostolica Vaticana (Studi e Testi, 222) (Vatican City 1962), pp. 141-179: 151. On the choices made by Christian art to avoid any “embarrassing analogy” with the punitive and defaming connotation of the cross, see Meyer Schapiro, Words and Pictures. On the Literal and the Symbolic in the Illustration of a Text (Berlin: de Gruyter, 1983), quoted from the Italian edition, Parole e immagini. La lettera e il simbolo nell’illustrazione di un testo (Parma: Pratiche editrice, 1985), pp. 31-33. 5 Among the “obsolete” objects which crop up in European romantic literature, Francesco Orlando in his study has assessed the edifice itself of the great religious construction born of the cross which figures in a poem by Alfred de Musset as a grand and venerable ruin around which revolves the ghost of Voltaire: but the cross is represented there as a living and bleeding tree (Gli oggetti desueti nelle immagini della letteratura. Rovine, reliquie, rarità, robaccia, luoghi inabitati e tesori nascosti [Turin: Einaudi, 1993], pp. 125-126).

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earthly life. What was solemnly celebrated every year in the ceremony of Good Friday was a story of supreme injustice: the need to relive it led to repeated performances in the public squares and the churches of Christian cities of theatrical events focusing on the trial and execution of Jesus. And the instrument of the fulfillment of the most unjust sentence in the history of humanity became the fundamental symbol in which the entire Christian world recognized itself: the cross. Having left behind its use as punishment, the cross thus became one of the symbols of salvation and hope. Only after European culture expanded beyond its own borders did the original significance of that instrument of death reappear before it as an obstacle. This occurred about a millennium after the era of Constantine, when Portuguese vessels reached the Orient flying the cross as a glorious insignia next to the cannon: and rather than to the cannon, it was to the cross that the glory of the victory over the Muslim ships was credited, along with the establishment of the colonial empire. But when missionaries landed in Japan and China and tried to convert people who had not been dominated by arms, they quickly came to realize that the cross was not a presentable symbol: In Japan it was still the instrument used in capital punishments, the symbol of a shameful death and of social inferiority.6 Anyone who attempted to promote the religion of a man who had been crucified risked being rejected by Japanese society. In China too, it would seem, the Jesuits were careful not to exhibit excessively the sign of the cross and the image of the crucifix; what is certain is that this led to their being denounced to The Holy Office at the start of what became the long drawn out conflict over Chinese rites.7 The origins

6 This was noted by the Jesuit missionary Alessandro Valignano: see Franz Joseph Schütte, S.J., Vallignano’s Missionsgrundsätze für Japan, I/2 (Rome: Edizioni di Storia e Letteratura, 1958), p. 381. And the general of the Society Claudio Acquaviva in a letter dated 24 December 1585 accused him of “concealing … the power of the cross” in his efforts to adapt to Japanese customs: Il cerimoniale per I Gesuiti del Giappone di Alessandro Valignano, S.I. edizione critica di G.F. Schütte, S.I. (Rome: Edizioni di Storia e Letteratura, 1946), p. 321. 7 The pertinent documents, dated 1656, which dealt with this problem are preserved in the historical archive of the Congregation of the Holy Office (Archive of the Congregation for the Doctrine of the Faith, St. st., OO, 5-f) and were brought to my attention by Dr. Sabina Pavone who has been studying the history of oriental rites. See, for recent examples of her work, “Riti cinesi,” and “Riti malabarici,” in Dizionario storico dell’Inquisizione, diretto da Adriano Prosperi con la collaborazione di Vincenzo Lavenia e John Tedeschi (Pisa: Edizioni della Normale, 2010), 3:1324-1329. Naturally the image presented within the Catholic world was the apologetic one of the missionary, crucifix in hand, as we see in the front matter of the work by Daniello Bartoli, Dell’Istoria della Compagnia di Giesú. L’Asia (Rome: Nella stamperia del Varese, 1657).

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of Christian history thus were reshaped in a totally unexpected way against the hopes of a great and definitive expansion of Christianity in the world. In the course of that millennium the trial of Jesus became a theme for meditation, and constituted the nucleus of the entire Christian tradition which was constantly renewed through images, texts and rites. The apocalyptic expectations of Christianity early on took the form of a last judgment, where the condemned innocent would become every one’s judge. Thus, the model of the trial and the images of justice assumed new meanings and values occupying the center of life for individuals as well as entire societies. But not only for Christian societies. An Israeli judge has dedicated years of his life to studying the trial of Jesus of Nazareth.8 It is not difficult to imagine what might have inspired his arduous labors. For more than a millennium that trial has conditioned the life of Jews who have found a homeland and an autonomous existence (even if they are continually threatened) only at the price of the almost total physical elimination of its members. Until the 20th century of the Christian era the ritual accusation against perfidious Jews (”perfidi Judaei”) has resounded without interruption in churches dressed in mourning before the image of the body of Christ in the liturgical days of the Passion, when Jews had to conceal themselves and could not even bury their dead without incurring risks.9 And if the lives of Jews in a Christian land, their thoughts, their very possibility of existing as a people have been dominated by the trial of Jesus of Nazareth, the question of who controlled the sites of the condemnation and burial of Jesus—the Holy Sepulchre—has over the centuries poisoned relations with that other Mediterranean monotheistic religion, the Muslim. But it is especially within the Christian world that in that special trial-but also in the trial as a central construction of the system of justice—an inexhaustible laboratory of meanings has been found. The more inexhaustible, we might say, the more the historical facts concerning the deed avoid investigation and its truth eludes us and entrusts itself solely to the Gospel narratives. Granted, we know from the Annals of Tacitus that 8 Chaim Cohn, Processo e morte di Gesu‘. Un punto di vista ebraico (1997) (Turin: Einaudi, 2000). 9 “In case any of them should die on Thursday or Friday of the Holy Week, they will be permitted to accompany the body to the burial site, up to the number of ten among them, and to prevent any problems, in these cases they shall have to be escorted by guards … for their own safety” (Codice di leggi e costituzioni per gli stati di Sua Altezza reale, Book III, title IX, Degli ebrei [Modena: Nella stamperia reale, 1816], t. 2, p. 54). And Ferrara’s statutes, under the year 1287, had decreed that, out of devotion to the Madonna, no Jew should dare to leave his house on the days of Holy Friday and Saturday (Statuta Ferrariae anno MCCLXXXVII, ed. William Montorsi, in Atti e memorie della Deputazione Prov. Ferrarese di storia patria, ser. Monumenti, 3 [1955], p.274, liber IV, chap. LXVII).

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this trial was conducted during the reign of Tiberius, by the Procurator of Judea, Pontius Pilate.10 But this is the only historical source the reliability of which has not been questioned. The situation is very different concerning that evidence which has come down to us under the name of that other great historian of the epoch, Flavius Josephus. In his The Antiquities of the Jews (18,3,3) we can read this passage: “Now, there was about this time Jesus, a wise man, if it be lawful to call him a man, for he was a doer of wonderful works,--a teacher of such men as receive the truth with pleasure. He drew over to him both many of the Jews and many of the Gentiles. He was [the] Christ; and when Pilate, at the suggestion of the principal men among us, had condemned him to the cross, those that loved him at the first did not forsake him, for he appeared alive to them again the third day, as the divine prophets had foretold these and ten thousand other wonderful things concerning him.”11 As has been observed, only a Christian could have written this, and Flavius Josephus was not a Christian. We do not know how and by whom this passage on the trial of Jesus was inserted or rewritten. What is certain is that the text was used by apologists for the new religion, beginning with Eusebius of Caesarea (Historia Ecclesiastica, 1: 2) for the same reasons which made necessary the continued residence of the Jews among the Christians. The Jewish people were witnesses of the truth as possessors of the Biblical prophecies of the Messiah; and foremost among them was Flavius Josephus, a descendant of the Jews who described the final tragedies of the destruction of the Temple and of the Diaspora. Thus, we are left with Tacitus: his information points to Pilate as the authority who condemned Jesus. The account in the Gospels, instead, identifies the Jewish authorities and the people of Jerusalem as those who sought his death. How and why and through what adjustments and adaptations it has been possible to transfer the responsibility for the condemnation of Jesus from the Roman authority of Pilate to the deicidic will of the Jewish people, is a subject that has been minutely analyzed. The Fourth Gospel, ascribed to the apostle John, constitutes a crucial step. Verse 19:16a narrates the conclusion of the trial 10 Tacitus, Annals, 15: 44 11 The Works of Flavius Josephus: Comprising the Antiquities of the Jews; A History of the Jewish Wars; and Life of Flavius Josephus, Written by Himself. Translated from the Original Greek by William Whiston (Philadelphia: David McKay, Publishers [n.d.]), p. 548.The hypothesis of a secret conversion on the part of Flavius Josephus suggested by Santo Mazzarino, Storia del pensiero storico classico(Rome-Bari: Laterza, 1966), 2/2: 104-106 is unsupported (a manuscript note by Arnaldo Momigliano on his copy of the work judges the hypothesis to be “irresponsible”); and even Santo Mazzarino recalls that the passage does not exist in the text of the Antiquitates read by Origen.

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of Jesus: Pilate has had Jesus whipped, then had him presented to the Jews with a crown of thorns and a purple cloak and when the Jews demanded that he be crucified, Pilate replied that he could not find a reason to condemn him. Then, become fearful, he spoke anew with Jesus and in this colloquy stated that he had the authority to crucify him. Finally, he again brought Jesus before the Jews and they repeated their demand that he be crucified. All this confused back and forth concludes here: “Then he handed him over to them to be crucified.” The next verse begins: “So they took Jesus.”This is followed by a sentence which a commentator finds “overworked and not clear,” suggesting that the reading of this text given in the papyrus Bodmer is clearer: “having taken him they led him to a place called the place of the skull … where they crucified him.”12 Who took him? Who crucified him? “The subject of ‘they took’ and ‘they crucified”, observes Giancarlo Gaeta, “are the soldiers … and not the Jews.” In fact, further on in the Gospel of John (19:23) we read that “when the soldiers had crucified Jesus they took his garments and made four parts.” Consequently, “he handed him over” (“paredoken auton autois”) is not correct. Someone has inserted the pronoun which indicates as consignees the Jews in a sentence which initially read: “Pilate consigned Jesus so that he could be crucified.” In the light of an internal examination of the text, a comparison of the synoptic Gospels and of the textual tradition itself there emerges evidence of a later interpolation which altered the original narrative sequences of both Johannine and synoptic texts which pointed to the authority of Pilate and of the Roman executioners as being responsible for the condemnation.13 From the image in which He who was by definition the Just was made the object of insults and condemned to death by the will of a hostile people—the Jewish—one could conceive revengeful feelings of intolerance against them but also sentiments of solidarity with any victim of injustice. The intolerance was entirely against the Jews. As the Israeli judge Chaim Cohn noted, it was only in 1965 with Vatican Council II that the Catholic Church came up with an 12

13

See G. Gaeta, I Vangeli, pp. 697-699 and note. For a recent, excellent discussion of the trial before Pilate, based on a text found in a provincial archive, Aquila, see Vincenzo Lavenia, “‘Che cos’e’ la verità.’ L’apocrifo della sentenza di Pilato e la sua storia,” in Andrea Del Col and Anne J. Schutte, eds., L’Inquisizione romana, I giudici e gli eretici. Studi in onore di John Tedeschi (Rome: Viella, 2017), pp. 177-208. The hypothesis of a revision of the Fourth Gospel has been formulated by Julius Wellhausen, Erweiterungen und Ănderungen im vierten Evangelium (Berlin: Georg Reimer, 1907). It has been revised on the basis of new data by Fausto Parente, “‘Paredoken autòn autois ina staurothé.’ Jn. 19:16 and the Christian Interpretation of the Destruction of the Temple of Jerusalem in 70 ad,” in Athenaeum. Studi di letteratura e storia dell’antichità pubblicati sotto gli auspici dell’Università di Pavia 95 (2007): 349-376.

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official declaration which, while still insisting on accusing “Jewish authorities and their acolytes” of having wanted the death of Christ, did not want to impute that death “indistinctly on all the Jews of that time nor on the Jews of today.”14 This affirmation in itself, has a singular ring to it for the average reader accustomed to reason on the basis of the fundamental legal principle of the personal rather than hereditary character of responsibility for a crime. Only the history of the millenarian Christian persecution of Jews allows us to appreciate the value of the conciliar declaration. But that same inexpert reader might instead ask himself why no hostility historically speaking has been discovered to have been nurtured by Christians against those Romans, who, after all, had pronounced the death sentence against Jesus of Nazareth. Even in this case the reply comes not by way of an abstract procedural truth but from the examination of the rapid transformation of the balance of power as demonstrated by the modification of texts. Melito, bishop of Sardis, was the first to accuse the Jews of deicide in an Easter sermon which can be dated c. midsecond century ad. For him it was the Jews who had committed the incredible crime of having put to death the bearer of life. And one could not adduce as justification that the death had been necessary so that the figurative image of the sacrificial lamb of Exodus 12: 1-32 could be realized. Nor could the Jews defend themselves by appealing to prophecies and by affirming that it had been necessary for the Messiah to suffer and the Lamb to be sacrificed. That of which they are accused is a new sort of crime, one not foretold in the prophecies, namely the fact of having killed Him with their own hands. Here the accusation of deicide is clear and simple: and the transfer of responsibility from Pilate to the Jews is complete.15 This preamble was necessary to understand the characteristics of an idea of justice which took form from that time and progressed until it occupied a central place in Christian culture. The guilt for the killing of Jesus fell on the Jews and shaped an endless religious conflict. To the Roman Empire, instead, fell the role of a providential entity for the administration of justice in the world. Reflections of this change can also be noted in the posthumous fame of that Roman soldier who had pierced Christ’s side (John 19: 34) who then became a Christian saint called Longinus.

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Conciliorum Oecumenicorum Decreta, p. 970; cf. C. Cohn, Processo e morte di Gesu’, p. 36. Méliton de Sardes, Sur la Pâque et fragments, ed. Othmar Perler (Paris 1966). The importance of this text is recalled by F. Parente, “Paredoken autòn autois ina staurothé,” p. 356. He points to the destruction of the Temple in 70 ad as the decisive watershed in the relationship between Christians and Jews.

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The reasons are obvious: with the destruction of the Temple, even before Constantine’s decisive conversion, Rome had become the religious capital of the Christian world. The balance of power and crucial cultural ties compelled the victorious Christian religion to submit to the Roman Empire for longer even than the historical duration of the latter. From it derived the power of public administration entrusted to bishops and more generally the tradition itself of a set of laws, the Roman canon, which through Christian and ecclesiastical mediation would be revived by the medieval universities.

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Justice and Grace As with many important inheritances, the Roman Empire’s was at the center of a bitter conflict among its heirs. With the affirmation of the supreme power of the Roman pontiff during the papal revolution of the eleventh to thirteenth centuries,1 a struggle ensued between the papacy and the Germanic Roman Empire primarily over the right of primogeniture in the succession. The consequences of that battle were promptly projected on the representations of justice and consequently on the rereading of the trial of Jesus. One of the celebrated witnesses to that clash, Dante Alighieri, participated in it with the iconographic suggestion of an image in the form of words, the imperial eagle placed in the highest sphere of the heavens. According to Dante the condemnation of Christ had been pronounced “de iure” by one who had the power to do so and was therefore just (in the sense of being formally correct). The plan of divine Providence required that Adam’s sin be punished in Christ. But so that it might be legitimate punishment and not an unjust offense (“iniuria”) the sentence had to be pronounced and carried out by a judge possessing legitimate jurisdiction. God had granted to the Romans universal sovereignity over the world precisely for this reason; proof of this was the fact that Christ had wanted to be born at the time of the edict of the Roman census, in this way recognizing its validity. Thus Tiberius Caesar by condemning Christ through his vicar Pilate was exercising a legitimate authority bestowed on him by God.2 The model of justice which triumphs in Dante’s poem, is, therefore, the one represented by the Roman emperors; Justinian, naturally, but prior to and above him was an emperor who had not been a Christian and who had, in fact, persecuted Christians, Trajan: Trajan the Roman emperor I mean: And a poor widow to his bridle clung Whose tears and grief were in her gesture seen. Round him appeared a trampling and a throng Of horsemen, and the eagles on gold brede Visibly in the wind above him swung. 1 The definition was coined by Harold J. Berman, Law and Revolution. The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983). 2 Dante, Monarchia, II: 10-11.

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‘Mid them all that forlorn one seemed to plead: “Avenge me for my son, I supplicate, Who is dead, and whose death makes my heart to bleed.” And he appeared to answer her: “Now, wait Till I return.” And she; “My Lord (like one In whom grief presses forth importunate) “If thou return not?” He: “It shall be done By one in my place.” She: “And what to thee Is another’s goodness if thou lose thine own?’ Wherefore he: “Comfort now, for needs must be That I fulfil my duty, ere I stir. Justice wills it, and pity holdeth me.” He, to whose sight no new thing can appear, Fashioned this visible language, to us new, Since such a thing never was fashioned here.3 For the soul of Trajan, the subject of the living bas-relief which challenged with its “visible language” Italian Trecento art, is reserved an eminent place in the animate representation of justice as an eagle (Paradise, 20: 43-48). This is a significant choice if we think of the fundamental characteristic of the Divine Comedy, that it is a poem about justice: here among the five resplendent images which compose the drawing of the eagle in Jove’s sky those sovereigns dominate who have provided an example of good government and for this reason, even if they were not Christian in their earthly lives, have been elevated to that supreme beatitude. The justice administered on earth was thus an instrument capable of doing violence to the kingdom of heaven. And the case of Trajan constitutes an exemplary episode. If we want to have an idea of the consequences in the world of images and myths of that alliance between Christian religion and the Roman Empire, no case is more significant than that which made a Roman emperor, persecutor of the first Christians,4 a triumphant soul in Paradise and a symbol incarnate of the Christian idea of justice. The story of Trajan celebrated the ideal image of an imperial power which, ignoring the glory of military conquests, makes itself the protector of the world of the humble and thus traverses the border between ancient paganism and Christianity. In the story the images are fundamental. 3 Dante, Purgatory, 10: 76-96 (The Portable Dante, The Divine Comedy Complete, in the Incomparable Verse  Translation of Laurence Binyon… Ed. Paolo Milano (New York: Viking Press, 1967), pp. 237-238. 4 Pliny the Younger, Epistulae, 10:9.

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Figure 34 Ferrarese school, Dante and the Justice of Trajan, miniature. Vatican City, Vatican Library, Cod. Urb. lat. 365, fol. 127r

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The origin of the legend as it is recounted in a passage probably interpolated into the Vita S. Gregorii Magni by Paul the Deacon (Paulus Diaconus), might actually go back to the “opus mirificum,” the “marvelous work” of Trajan’s Column: Pope Gregory strolling through the Forum, was said to have admired a scene which showed the emperor on horseback in the midst of his army with a kneeling woman before him. The image had been thusly interpreted: the Roman emperor, asked to render justice to a poor widow as he was about to leave on a military campaign, had delayed his departure to do what had been asked of him. Due to the insistent prayers of Pope Gregory to obtain from God eternal salvation for Trajan’s soul, it was thought that the miracle of a temporary resurrection of the pagan emperor had ensued so that he could be baptized: it was assumed to be an isolated and exceptional miracle as recounted in the medieval tradition collected and retold by the Legenda Aurea (Golden Legend) of Jacopo da Varazze. In reality miracles of this sort were produced plentifully in the permanent conflict between sacramental exclusivism and the universal vocation of the Christian religion: one needs only to recall what occurs around the problem of the eternal salvation of souls of the new-born who die without being baptized. Through events in Trajan’s life we can follow the thread of a much bigger story: that of how the Christian idea of justice came to legitimize Roman political authority and juridical tradition by conferring on them divine investiture. It was the apologue of an idea of sovereignty which singled out in the justice administered for the weak and the poor (the little widow) the supreme virtue of the powerful, worthy of being recompensed with the suspension of the fundamental law of Christianity—salvation only for believers and the baptized. The legend of Trajan as the vehicle of the idea of justice at the basis of the Christian model of governance enjoyed long life in spite of the confutations by Robert Bellarmine and Caesar Baronius.5 The idea that power had its justification in justice was at the origin of the use of the legend of Trajan in the pictorial cycles destined for the places and functions of government: in the 15th century we find it in public spaces, as a warning to judges that God would assess them on the basis of their sentences. Here its popularity, completely Roman and imitative of the ancients, allied itself to another representation of different Cristo-Germanic origin and of analogous significance: the act of feudal justice performed according to the legend of Lord Herkinbald 5 Salvatore Settis, “La Colonna,” in idem., La Colonna Traiana (Turin: Einaudi, 1988), p. 243. For the medieval transmission and the occurrence of the theme in the Divine Comedy, see the entry by Manlio Pastore Stocchi, “Traiano, Marco Ulpio” in the Enciclopedia dantesca, Istituto della Enciclopedia italiana, 15: 564-566.

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or d’Archambault de Bourbon. Of this noble and powerful man, great lover of justice (“tantus amator justitiae” according to Cesario of Heisterbach), it is told that while he was resting in bed severely debilitated, he had personally slit the throat of one of his nephews guilty of having violated a woman and for this reason was denied communion on his death bed (but received it miraculously from God himself).6 In a large painting executed in 1439 for the Palace of Justice in Brussels by Rogier Van der Weyden the histories of Trajan and Herkinbald were juxtaposed.7 In the sign of justice, the waning Christian and feudal Middle Ages encountered the memory of a Christianized Rome. But the Italian pictorial tradition appropriated only the theme of the legend of Trajan which thus became part of that great current of antiquarian culture (Botticelli dedicated a citation to him, among the many episodes which crown his famous Calumnia). The legend of Trajan thus arose from an image—the panel (formella) of the Column of Trajan—to be transformed into other images which served to exalt the Christian ideal of the monarch’s mercy as protector of the weak. Here justice is not an abstract and anachronistic equality before the law but the exercise of power which benignly bends down toward the humble and downtrodden. This new ideal of justice which guaranteed to Trajan a posthumous Christianization originated from the wholly Christian tradition of the trial which had unjustly condemned the Just One. And here we find the source of an aspect of justice which historically has been called different things but which can be summed up in the function of pardoning. To get at its origins we must return to the story of the trial of Jesus as told in the Gospels. A fundamental passage in the text attributed to Mark but with 6 The legend was narrated in the 13th century by Cesario of Heisterbach in his Dialogus miraculorum and enjoyed a certain diffusion not only in painting but also through prints and theatrical representations: see Campbell Dodgson, “An Ilustration by Holbein of the Legend of Herkinbald,” Journal of the Warburg and Courtauld Institutes 3 (1939-1940): 241-243. In the story of Herkinbald there is an echo of the practice of denying the sacraments to persons condemned to death, common in much of Europe at the time (see Adriano Prosperi, Delitto e perdono. La pena di morte nell’orizzonte mentale dell’Europa Cristiana, XIV-XVIII secolo (Turin: Einaudi, 2016) (1st ed. 2013). 7 The diptych was destroyed in the French bombardment of 1695; a copy survives in a tapestry created in mid-15th century which is now housed in the history museum at Berne: see Robert Mills, Suspended Animation. Pain, Pleasure and Punishment in Medieval Culture (London: Reaktion Books, 2005), pp. 59-72; Wolfgang Schild, “Gerechtigkeitsbilder,” in W. Pleister and W. Schild, eds., Recht und Gerechtigkeit, pp. 52-53, 156-163; R. Jacob, Images de la justice, pp. 65-71.

Figure 35 The legend of Trajan and of Herkinbald, tapestry, mid-15th century, detail (from Rogier Van der Weyden). Bern, Historisches Museum

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echoes and allusions to other passages in the canon, speaks of the so-called “Pasqual indulgence.” To commemorate the freeing of the people of Israel from servitude in Egypt the Roman governor is thought to have customarily granted to the Jews the liberation of one prisoner. “Now at the feast he [Pontius Pilate] used to release for them any one prisoner whom they asked. And among the rebels in prison, who had committed murder in the insurrection, there was a man called Barabbas. And the crowd came up and began to ask Pilate to do as he was wont to do for them. And he answered them, ‘Do you want me to release for you the King of the Jews?’ For he perceived that it was out of envy that the chief priests had delivered him up. But the chief priests stirred up the crowd to have him release for them Barabbas instead. And Pilate again said to them, ‘Then what shall I do with the man whom you call the King of the Jews?’ And they cried out again, ‘Crucify him.’ And Pilate said to them, ‘Why, what evil has he done?’ But they shouted all the more, ‘Crucify him.’”8 In the same text that served as the basis for the long vendetta against the Jewish people we also encounter the attempt to root in the Jewish tradition a practice that was familiar to Christian culture: the so-called Paschal privilege, the tradition of freeing a prisoner at Easter. The Jewish populace described by the Gospels rejected Jesus and chose Barabbas: and this—it is told—occurred in the context of dispensing grace tied to the Jewish Passover. The origins of this privilege have been searched for in vain. A possible trace has been found in a vaguely similar norm: the offer of the Paschal sacrifice even for prisoners whose release had been promised for Easter eve.9 Nothing else. Thus, the Jewish “Paschal privilege” is, in fact, “only a fantasy.”10 And as for the hypothetical Roman judicial practice of amnesty granted “by popular acclamation,” not only do we not have other evidence for it;11 but it was something wholly contrary to Roman law which, as Mommsen observed, lacked “amnesty” not only as a word (which was of Greek origin) but even as a concept. From the age of Augustus we begin to know of “venia,” that is the prince’s pardon of the vanquished, the unilateral act on the part of a victorious power; to Christians Trajan agreed to grant it only if they were repentant and beseeched it.12 8 9 10 11 12

Mark 15: 6-13 (Revised Standard Version). Comment by G. Gaeta, I Vangeli (Turin: Einaudi, 2006), pp. 1118-1119. Paul Winter, On the Trial of Jesus (Berlin: De Gruyter, 1961), p. 94. According to G. Gaeta, I Vangeli, p. 846 (comment on the Gospel of Mark 15:6) See Wolfgang Waldstein, Untersuchungen zum römischen Begnadigungsrecht, Aboli­tioIn­­dul­gentia-Venia (Innsbruck: Universitätsverlag Wagner, 1964) (for Trajan, see the epistle to Pliny, 10.97.1).

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Even though we lack the precedents for Pilate’s presumed gesture, frequently applied and continuous is the tradition of special acts of clemency at Easter time. Beginning with the victory of Christianity in the Roman Empire the Easter privilege took hold and developed prolifically. On Easter day 367 the Emperor Valentinian I initiated the practice of throwing open the prison gates for the detainees.13 He was followed in this by Valente, Gratian, Valentinian II, Theodosius. The Theodosian Code recalled the practice with memorable words: on the day of the ‘Paschalis Laetitia” (“Easter time joy”), the jail is opened up, light is restored to eyes which no longer remembered it: “pateat insuetis horridus carcer aliquando luminibus.”14 From that time the tradition of full or partial acts of remission of sentences experienced growing acceptance in the judicial practices of both temporal and ecclesiastical authorities. We find some of its consequences in the convention of the appeal to churches as places of refuge before which the violence of the authorities is to cease. And it is not by chance that on this point the conflict between the liberty of the Christian and the subjugation of the subject should have often been rekindled, obedience to Caesar or to God. After Constantine’s conversion, the process toward the formation of Church law distinct from that of the State but in agreement with it became necessary precisely because of the discord that cropped up between them.15 Seeking refuge in the mercy of the Church (“ad misericordiam Ecclesiae confugere”) against the harshness of the State meant searching for protection by using the sacred places of the Church as havens of asylum. This posed a serious problem and required a set of rules which also served to restrict such practices. A prolonged echo of it remained in the prevalent mentality, requiring also a juridical definition of the special character of holy places and the right of asylum.16 Divine mercy was the general premise on which the material constitution of Christian society was founded; in the rhetoric of justice we encounter it regularly. We must be careful not to confuse the image which the powerful everywhere projected of themselves with the reality of the effective exercise 13 14 15 16

“Ob diem paschae, quem intimo corde celebramus, omnibus, quos reatus adstringit, carcer inclusit, claustra dissolvimus” (W. Waldstein, Untersuchungen, p. 189). Theodosian Code, Ix.38.6. Cf. Pierre Duparc, Origines de la grace dans le droit pénal romain et français du Bas-empire à la Renaissance (Paris: Librairie du recueil Sirey, 1942), pp. 28-29. See Jean Gaudemet, La formation du droit séculier et du droit de l’Église aux IVe et Ve siècles (1957) (Paris: Sirey, 1979). The formula “ad misericordiam Ecclesiae confugere” appears in canon 8 of the Council of Sardica convoked by emperors Costante and Costanzo (see Anne Ducloux, Ad Ecclesiam confugere. Naissance du droit d’asile dans les églises (IVe-milieu du Ve s.) (Paris: De Boccard, 1994).

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of power. At this point we should recall the manifestations of power as legitimized by the vicarious function of grace and forgiveness. Spiritual and temporal powers were induced continuously to emphasize their divine investiture through the exercise of that virtue which was par excellence divine, that of pardon and mercy.17 Pardon as a fundamental aspect of punishment in the history of medieval Europe has been studied in detail in the various political and juridical settings. An attempt has even been made to draw up a composite picture joining under a common religious and anthropological model the national and local variants of a connection which unified religion and justice (one need only think of the relationship between confession and justice, whether spiritual or temporal).18 We can sum up the religious basis of this phase in the history of penal justice by the notion that whoever holds power does so as one entrusted by God to administer justice. The image of the sovereign and more generally of whoever has the authority to punish crimes is that of a representative of God, chosen by God and possessing a vicarious function of guide for the people on the road to justice. And the more definitive this was, the more the intervention of written rules and of persons authorized by the central powers began to take the place of direct assignment of the adjudicatory function to God himself through the judgment of the ordeal. The “judgment of God” defined in the rituals of north-western Europe of the high Middle Ages was a true judicial miracle, a direct communication with the supernatural, with that supreme justice which—according to the aphorism subsequently coined by jurists—was God Himself (“iusticia id est Deus”).19 In the long march of the central authorities of the European States toward the objective of effectively taking the place of God, the prerogative to cancel guilt and remit punishment had an essential place: it was the fundamental perquisite of divine omnipotence and there was no need to refer to the Bible to remember it. The iconography which expressed the concept of justice was concentrated essentially on a few, fundamental Christian themes. During the Late Middle Ages it was the divine judge who was insistently represented, in the churches and in public buildings, where he sometimes appeared in the image of the Crucified Christ and at other times as the Last Judgment with the symbols of the scale, the sword and the book. The diffusion of the theme of the Judgment in sacred art, which commenced in the early 11th century was characterized by Byzantine 17 18

19

See Viktor Achter, Die geburt der Strafe (Frankfurt a. Main: Klostermann, 1951), p. 83. The collection of essays edited by Jacqueline Hoareau-Dodinau, Xavier Rousseaux and Pascal Texier, Le Pardon (Limoges: Pulim, 1999), extends from the classical world to the modern “Reconciliation” in South Africa. See M.-F. Renoux-Zagamé, Justice divine.

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Figure 36 Christ the judge, detail from the Last Judgment, mosaic, 12th-13th centuries. Torcello, Cathedral of Santa Maria Assunta. Foto Fratelli Alinari, c. 1915-1920/Archivi Alinari, Florence

influences, documented by the mosaic in the cathedral of Torcello. At its origin it had a probably Manichaean imagery in the vision of the twofold fate of souls and of the terrible punishments that awaited some of the living: to the western tradition belongs the extension of the theme of infernal punishments as a projection into the beyond of a terrifying terrestrial justice.20

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The “progressive spread” of infernal punishments in the Judgments of the Later Middle Ages has been noted by Marcello Angheben, Alfa e Omega. Il Giudizio Universale tra Oriente e Occidente, ed. Valentino Pace (Milan: Ultreya, 2006), p. 16. On the Byzantine origins of the design of the Judgment (the theme of Christ the judge in his majesty is fundamental) and on its European reception, a well documented analysis has been proposed by Wolfgang Schild, “Gott als Richter,” in W. Pleister and W. Schild, eds., Recht und Gerechtigkeit, pp. 44-85: 61-72. On the possible Cathar origins, see Michele Bacci, “Artisti eretici ed eterodossi a Bisanzio,” in idem., ed., L‘artista a Bisanzio e nel mondo cristiano-orientale (Pisa: Edizioni della Normale, 2007), pp. 177-209: 184 ff.

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The greatest flowering of the phenomenon seems to have occurred between 1200 and 1350.21 Subsequently it was the scene of Jesus crucified and especially that of the suffering Jesus of the Passion which seemed to prevail, without, however, cancelling out the fundamental iconography of the Universal Judgment. Temporal sovereigns attempted to place themselves in the shadow of that divine judge, presenting themselves as the executors of the will of God, since a king exercises his power in God’s name. Upon him are transferred the divine virtues of the Psalm: “the principal royal virtues are two: justice and mercy,” wrote Isidore of Seville in the section dedicated to the names connected to the reign and to the militia; and he adds that “of kings, nevertheless, it is their mercy that is principally praised, since justice is of itself severe.”22 In a miniature of the 9th century “Iustitia” and “Pietas” appear above the image of the emperor in the Evangeliarium of Henry II of Saxony, while below appear the symbols of “lex” and “ius.”23 French sovereigns received the sword, symbol of their power, and anointment with oil from the sacred phial in the rite of consecration in the Reims cathedral. They were proceeding to exercise that which even Louis XIV defined simply as the “royal occupation” accompanied by the admonition that in performing the function (not the power) of king they had to obey the divine laws.24 The words “Pietate et iustitia” would appear in the emblems of the kings of France into the sixteenth century.25 The texts of the ceremonials contain various formulations of this fundamental reference to the divine legitimation of power in terms of the justice to be administered to subjects. In the fourteenthcentury ceremonial of the coronation of the kings of Castile we read the assertion that the king must provide peace and justice since he was the minister of God. And there recurs a particularly solemn use of the metaphor of the eye as 21

22 23 24 25

This is the opinion of Yves Christe, Il giudizio universalle nell’arte del Medioevo (Milan: Jaca Book, 2000), p. 349 (I have used the Italian translation). There is an allusion to the Torcello mosaic in Francesca Marcellan and Umberto Vincenti, La giustizia di Giotto (Naples: Jovene editore, 2006), p. 45. Etymologiae, Bk. IX.iii.5 (translated from Isidore of Seville Etimologie o origini, ed. Angelo Valastro Canale (Turin: UTET, 2004), 1: 736-737. See Marie Tanner, The Last Descendant of Aeneas. The Hapsburgs and the Mythic Image of the Emperor (New Haven and London: Yale University Press, 1993), p. 85. fig. 40. See F. Olivier-Martin, Histoire du droit français des origines à la Révolution (Paris: ed. Domat Montchréstien, 1948), pp. 329-330. In the coat of arms of Charles IX the motto “pietate et iustitia” shows two columns which cross and support each other (G. Ruscelli, Imprese [Venice: per Comin da Trino, 1572], Bk. 2, fol. 35r.).

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Figure 37  Justitia et pietas, lex et ius, miniature, from the Evangeliario of Henry II of Saxony (from Montecassino), Ratisbon, before 1024. Rome, Vatican Library, Cod. Ottob. Lat. 74, fol. 193v

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symbol and instrument of justice, which in this case appropriates to itself the power of the sword because it becomes capable of destroying evil: “Et por esta iusticia son llamados los Reyes que la asi façen, ministros de dios, et han la su bendicion. Et los Reyes que quieren guardar iusticia solamiente con los oios destruen todo mal.”26 The grace of the sovereign took its inspiration from divine grace to recall the lofty reasons for the legitimacy of temporal power. Naturally the glorifying of clemency as a fundamental virtue of the sovereign that we generally encounter in medieval treatises of the ideal ruler (the “specula principum”) was also an indirect form of persuasion and can be read as an implicit criticism of the harshness of power.27 But one fact is certain: in the long span of European history, the pardon granted by the sovereign has been a fundamental aspect in the administration of justice. The petitions for grace preserved in the archives are extraordinary testimony of a judicial concept dominated by the unlimited breadth of royal power to which one appealed with supplications containing detailed descriptions of crimes which were repeated in the letters of “grace, pardon et misericorde” emitted by the French royal chancery in the late Middle Ages. They are documents which, when examined as narrative texts, offer an exceptional array of stories of crimes necessarily filtered through the rhetoric of justifications and attenuating circumstances.28 But we should also remember the hopeful feelings of those who wrote or dictated them to their lawyers: last hopes were always more susceptible to delusion with time, on the part of whoever appealed to the supreme authority for pardon, that is to the other face of a justice dominated by extremely harsh penal practices and by the bloody efficacy of the executioner. In reality, the large number of pardons were often the sign of the weakness of the central authorities unable to punish the abuses and violence of an 26

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The image is taken from the book of Proverbs, 20:8: “Et assi lo diz el sabidor. Proverbiorum XX, ‘Rex qui sedes in solio iudicii intuitu suo dissipat omne malum,’” (“A king who sits on the throne of judgment winnows all evil with his eyes”). (Claudio Sanchez-Albornoz, Estudios sobre las instituciones medievales españolas [México: Universidad Autonoma de México, 1965], p. 755). Cary J. Nederman’s observation in an essay that I have not been able to consult, has been taken up by Michael Hohlstein, “‘Clemens Princeps’: ‘Clementia’ as a Princely Virtue in Michael of Prague’s De Regimine Principum,” in István P. Bejczy and Cary J. Nederman, eds., Princely Virtues in the Middle Ages, 1200-1500 (Turnhout: Brepols, 2007), pp. 201-217: 217. For the socio-anthropological aspects, see Natalie Zemon Davis, Fiction in the Archives. Pardon Tales and their Tellers in Sixteenth-Century France (Stanford: Stanford University Press, 1987).

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arrogant nobility. But this does not in any way attenuate the fact that the king was always the intended recipient of the supplications and that it was his responsibility to dictate how the pardons were to be granted: thus a compelling image of the sovereign took root in human hearts, complementing that of “the king executioner” to the spread of which the spectacles of capital punishments contributed. In granting his pardon the monarch was not under any constraint, not even by the gravity of the crime; and in the ritual act of forgiveness an analogy quite correctly has been seen with the sacerdotal and divine act of the gratuitous remission of sins.29 From the point of view of what we could define as the rhetoric of justice, the scenario delineated by the petitions for pardon and by the sovereign’s acts of remission is undoubtedly that of the divine grace granted to sinners as a consequence of Christ’s death on the Cross. It was a canopy that covered everyone: the penitent who presented a supplication to the king, the victim who threw open the door to grace swearing his pardon on the Gospels “in the name of the death and passion of Our Lord Jesus Christ,”30 the sovereign who concluded the case with the final dispensation of grace. Therefore, even if any given day was appropriate for such rites, in reality they were concentrated in the paramount days of Christian redemption: Christmas and especially the Easter of the Passion and of the Resurrection. In the larger European states Good Friday became the date in which petitions for grace were considered during ceremonies in which the ritual exalted the remission of sins as the highest function of justice. In Christian Spain, for example, the day of the year chosen by the sovereigns to examine the petitions for grace was in fact Good Friday. On this date the Siete Partidas of Alfonso X (1348) state that the king “perdona generalmente a todos los omes que tiene presos” (P. VII.32.I). In Castille it was called “el da de Indulgencias,” in Portugal “Endoenças.”31 On that day, we read in the solemn declaration of don Juan de Castille and don Juan de Aragón dated 1485: “Nuestro Señor Jesu-Cristo recibió muerte e pasyon por salvar el umanal linaje

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“La rémission serait donc une sort d’absolution laïque dont le roi serait le prêtre,” (Claude Gauvard, “L’image du roi justicier en France à la fin du Moyen Ăge d’après les lettres de rémission,” in La faute, la répression et le pardon. Actes du 107oè Congrès National des sociétés savantes, Brest 1982 (Paris: CTHS, 1984), 1: 165-192:170. “De sua propria vontade lhes perdoava a onra da morte e paixon de Nosso Senhor Jesus Cristo”: this is a formula that one finds in 15th-century Portuguese documents (Luís Miguel Duarte. Justiça e criminalidade no Portugal Medievo (1459-1481) (Coimbra: Fundaçāo Calouste Gulbenkian, 1999), p. 471. In Portugal this is what the pardons granted on Good Friday were called (ibid., p. 479).

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e perdonó su muerte.”32 The royal pardon became an unassailable aspect in the tradition of the administration of justice on the part of the Spanish monarchy, which found in it a motive of political and religious legitimation. The king, who in the name of Christ opened the prison gates on the day of the Passion, demonstrated that he was really invested in his office by God.33 Consequently, pardon was total, cancelling out all stains of infamy and any pending case and restoring the beneficiary to the honorable status which had preceded the crime. A description of the principal forms of amnesty practiced by the European monarchies generally leads back to the model of divine pardon brought about by the redemption obtained through Christ with his death on the cross: and around the power of grace we find a number of cases which unite the administration of penal justice of reigning dynasties and many other forms of power, all traceable to a religious idea of pardon.34 The motivating principle can be summed up in the words of Emperor Justin (Giustino) (520-523): to imitate the clemency of God toward the human race was the duty of whoever held power; otherwise they would render themselves unworthy of divine forgiveness.35 The sovereign was not master of the laws which distinguished the good from the bad but he whom God had chosen as his representative. As Paolo Grossi has written, the medieval prince identified his function of supreme ruler more by the dispensing of justice (“iustitiam ministrare”) than in legislating; and even when on rare occasions he legislated, as occurred to Frederick II of Swabia, he felt the need to define himself “father and son, lord and servant of justice.”36 Exercising the divine power to pardon was a structural privilege of sovereignty, “a great advantage of monarchy in general on any 32

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On the history of the system of grace in Spain, see Maria Immaculada Rodriguez Flores, El perdon real en Castilla (siglos XIII-XVIII) (Salamanca: Universidad de Salamanca, 1971) (Acta Salmanticensia, Derecho 26). See Francisco Tomás y Valiente, El Derecho penal de la monarquía absoluta (siglos xvi, xvii y xviii) (1969) (Madrid: Editorial Tecnos, 1992), pp. 397-409; Rudy Chaulet, ”La violence en Castille au xviie siècle à travers les ‘Indultos de Viernes Santo’ (1623-1699),” Crime, histoire et société 1 (1997), no. 2: 5-27. See Gérard Guyon, “L’héritage religieux du pardon dans la justice pénale de l’Ancien Droit,” in J. Hoareau-Dodinau, X. Rousseaux and P. Texier, eds., Le pardon, pp. 87-115. For a study based on an Italian area, see O. Niccoli, Perdonare. “Nam ita credimus dei benevolentiam et circa genus humanum nimiam clementiam quantum nostrae naturae possibile est imitari, qui cottidianis hominum peccatis semper ignoscere dignatur et paenitentiam suscipere nostram et ad meliorem statum reducere: quod si circa nostro subiectos imperio nos etiam facere differamus, nulla venia digni esse videbimur” (cited from W. Waldstein, Untersuchungen, p. 217). Paolo Grossi, L’ordine giuridico medievale (Rome-Bari: Laterza, 2006), pp. 134-135.

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o­ ther form of government,” as we read in the celebrated 18th-century commentary to English law by Sir William Blackstone.37 It was not an unopposed advantage. We have already mentioned Dante’s poem on justice. In this work even though the pagan emperor triumphs in Paradise, a place in the depth of Hell is reserved for the Christian pontiff Boniface VIII. One can understand why imperial propaganda would make Dante’s ideas its own: not surprisingly the first printed edition of Dante’s Monarchy was sought by Mercurino Arborio da Gattinara, Charles V’s Grand Chancellor. Conspicuously opposed were the positions defended by the papacy. Putting themselves above every sovereign, king of kings and dominators of the dominant, the Roman pontiffs defined themselves as more than men, inferior only to God.38 In the struggle for hereditary rights over imperial power the papacy found the best arguments precisely in the repertory of the Christian image of justice and in the precedence of the salvation of the soul over and above the fate of the body. Supplications of Christians were addressed to the pope: not only to obtain forgiveness for notoriously grievous sins but also and especially to seek absolution for a vast congeries of infractions, not the least for those committed by ecclesiastics and against ecclesiastics. The second half of the thirteenth century saw the beginning of a special office, the Penitenzieria, which would expand dramatically in successive centuries. The petitions that from that time forward began to accumulate in the archives of the Roman Church have many characteristics in common with the requests for grace which poured into royal chanceries.39 But it was difficult to exceed what the papacy could offer. The rivalry between the conflicting forces was played out in 37 38

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Daniel J. Boorstin, The Mysterious Science of the Law. An Essay on Blackstone’s Commentaries (Cambridge, MA: Harvard University Press, 1941), p. 149. Thus, in the “Sermo” of Innocent III perhaps delivered on the same day as his election. See Piero Bellini, Respublica sub Deo. Il primato del Sacro nella esperienza giuridica della Europa preumanista (Florence: Le Monnier, 1981), p. 114. After studies on the subject were launched by Filippo Tamburini’s essay, “Il primo registro di suppliche dell’Archivio della Sacra Penitenzieria Apostolica (1410-1411),” Rivista di Storia della Chiesa in Italia 33 (1969): 384-427, systematic research got under way with the volumes published in the Repertorium Poenitentiariae Germanicum, eds. Ludwig Schmugge et al., 5 vols., (Tübingen: Niemeyer 1998-). A comparison among the different types of grace is the subject of the colloquium Suppliques et requêtes. Le gouvernement par la grâce en Occident (xiie-xve siècle), ed. Hélène Millet (Rome: École Française de Rome, 2003). On the formal similarities between petitions to the Penitenzieria and those to the king of France, welcome attention has been cast by the essay of Wolfgang P. Müller, “Violence et droit canonique: les enseignements de la Pénitencerie apostolique (xiiie-xvie siècle),” Revue Historique 131 309/4 (2007): 771-796.

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the ritual space of the memory of the trial of Jesus and of the Redemption. To Christians the days around Easter were sacred for confession and the forgiveness of sins. The triumphant progress of papal power drew strength from it. In the culminating dates of the liturgical year, the days of the trial and of the death of Jesus, the sacramental rituals took place, not only the confession of sins but also the special bestowal of “pardons,” that is, of those indulgences which Luther’s polemic would render notorious. While Innocent III in the Fourth Lateran Council had made official the obligation of an annual confession and of the Eucharist to be received reverently at least at Easter (“ad minus in pascha”), the special offer of pardons instituted by Boniface VIII in spring 1300 was so successful it suggested to the papacy the idea of repeating it at regular intervals. The gridlock caused by the crowds of pilgrims on the bridge of the Castel Sant’Angelo which, as attested by Dante, was the origin of the first one-way streets, gives an idea of the latent force concentrated in the religious notion of the cleansing of evil. The willingness of the temporal power occasionally to cancel a crime paled in comparison. Therefore of that aspect of justice only the version offered by the ecclesiastical power survived: from that time on, Good Friday became fixed in collective memory as the day when in the churches one obtained the forgiveness of sins and indulgence as a cancellation or reduction of punishment; and it was received with regularity thanks to a sacrament, in situations where in the secular tribunals the act of the sovereign’s grace was only a vague hope. The growth of the Roman papacy translated all this into centralized institutions tied to the theme of mercy and amnesty. Thus, on the one hand we had the ever more frequent repetition of jubilees and pardons, and on the other the establishment of central organs such as the Penitentiary tribunal. But here too, as with the solemn rites of temporal sovereigns exalting the “gracious power” of revoking condemnations, the language of power spoke in terms of grace and pardon, presenting itself as authorized to do so by a supreme judge who had suffered unjust punishment which he had forgiven. Profoundly rooted in Christian religiosity, the notion of mercy and grace as a divine model to be imitated inspired forms of moral economy for society in its entirety and inscribed itself in the rituals of customary law.40 In fact, awareness that above the justice of the tribunals there was a divine justice consisting of mercy constitutes the leitmotif which reappears in different times and places offering the justification and fundamental basis for judging and punishing. When the work of the tribunals, which in reality was 40

Attention to this question has been paid by A.M. Hespanha, La gracia del derecho. Economía de la cultura en la edad moderna (Madrid: Centro de estudios constitucionales, 1993). But see also O. Niccoli, Perdonare.

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practiced out of sight, became visible in dramatic representations, one could hear in the theaters solemn and lofty words such as these: “But mercy is above this sceptered sway…. Consider this, that in the course of justice none of us should see salvation.”41 In Shakespeare’s day the Protestant Reformation had formalized ln theological doctrine the human renunciation to demand justice before the tribunal of God, with the result of opening a great chasm between the earthly and divine tribunals. But up to that time the two were represented as being tightly connected. It was against the background of the race between empire and papacy to claim for itself the monopoly of divine protection that certain important developments in the representations of justice occurred. The absence or weakness of imperial power as the emissary of divine justice marked the beginning of the communal ordinances of Italian cities and suggested new forms to the representations of good government. In cases where imperial rule did not succeed in establishing itself and was not replaced by a central monarchical authority, the iconography of justice developed characteristics of its own, different from those of other European political entities. It is a turning point in the history of the representations of justice which appears to come to maturity in the early 14th century. At this date in urban life there had been a transition from “the era of the cathedrals” to “the era of city halls.”42 The Buon Governo and Justice leave behind the churches and with ever more secularized symbolic images dominate the representations of power in the offices of the free cities and communes, as a warning to the rulers even more than to the citizens. In the Palazzo della Ragione in Padua a profusion of symbols and images of the act of judging served as a reminder of the purpose of the municipality and of the ancient models from which its officials drew inspiration. In Florence Giotto painted a fresco (now lost) in the Palace of the Podestà where he represented the town council “in the guise of a judge seated with a scepter in his hand … and a scale balanced overhead for the just reasons administered by him,” and he did it “to throw fear into the people,” according to Vasari.43 And a similar policy of the image was followed in Rome by Cola di Rienzo who ordered a painting for the 41 42 43

William Shakespeare, The Merchant of Venice, Act 4, Scene 1 (edited by William Lyon Phelps; The Yale Shakespeare, 1957 printing, p. 75). The definition has been offered by Christian-Nils Robert, La justice dans ses décors (xvexvie siècles) (Geneva: Droz, 2006), p. 15. Giorgio Vasari, Le vite de’ piu ‘eccellenti architetti, pittori et scultori italiani, da Cimabue insino a’ tempi nostri, eds. Luciano Bellosi and Aldo Rossi (Turin: Einaudi, 1986), p. 127 (the Florence Torrentino 1550 ed.); S. Morpurgo (“Bruto, il ‘buon giudice’, nell’udienza dell’Arte della Lana a Firenze,” in Miscellanea di storia dell’arte in onore di Igino Benvenuto Supino

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Campidoglio, a “similitude” with which “he admonished the Rectors and the People to proper behavior.”44 Images of this kind can be found everywhere in somber council halls and continued to be painted well beyond the first flowering of the cities.45 Let us examine the municipal administrations of the Italian peninsula. In the north-central cities the question of the characteristics and foundations of justice which all ages and societies had to confront were being cast anew. The terms in which these problems were posed cannot be understood if we do not consider the special condition of the power structure. The battle conducted by the empire against the papacy and against those Italian cities ruled by bishops had concluded with the emperor abandoning the struggle. Thus the sentences emanating from the civic judiciary lacked the sanction of a supreme authority resting on divine investiture. This was something that radically differentiated the Italian civic world not only from the lands of the Germanic Christian empire but also from the Christian reigns of the rest of Europe. The difference is clearly visible in the iconography of justice, which recorded, moreover, the various political tendencies dominating in the individual cities. In Ghibelline Pisa, where in the time of Dante the emperor Harry VII was awaited (a solemn funerary monument preserves the memory of the occasion), on 19 February 1329 the emperor Ludwig of Bavaria celebrated a public trial against the Avignonese pope John XXII, represented by a wood and straw puppet dressed in papal robes.46 In that city the idea of justice was expressed by the image of Christ “pantocrator” in a painted mosaic in the apse of the cathedral. And it was the religious theme of the Last Judgment which dominated the frescoes of the Florentine painter Buonamico Buffalmacco in the Camposanto:47 in that place suggestive by its very nature of the triumph of death and of justice a message was launched of a supreme power above all the terrestrial hierarchies

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[Florence: Olschki, 1933], pp. 141-143) has identified a contemporary iconographic offshoot in the audience hall of the palace of the Arte della Lana. Roman Anonymous, Vita di Cola di Rienzo, ed. Arsenio Frugoni (Florence: F. Le Monnier, 1957), pp. 38-41. On the difference between these propagandistic and defamatory paintings, see Gherardo Ortalli, “Pingatur in Palatio.” La pittura infamante nei secoli xiii-xvi (Rome: Jouvence, 1979), p. 29 (but see also the French translation: La peinture infamante du xiiie au xvie siècle. “… pingatur in palatio” (Paris: Gérard Monfort Éditeur, 1994). The fresco of Justice in the municipal palace of Prato, attributed to Pietro Miniato, is dated 1415. See Wolfgang Brückner, Bildnis und Brauch. Studien zur Bildfunktion der Effigies (Berlin: Schmidt Verlag, 1966), pp. 197-198. The attribution has been solidly argued in the fine book by Luciano Bellosi, Buffalmacco e il Trionfo della Morte (Turin: Einaudi, 1974).

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symbolized by the three decomposed and putrefied corpses of wealthy laymen and ecclesiastics. The fresco of the Pisan Camposanto has been dated to 1336: among the probatory elements that have been suggested is the fact that the figures depicted in the vestments, “almost match”48 those of a slightly earlier fresco of the Buongoverno painted in the municipal palace in Siena by Ambrogio Lorenzetti. The chronological proximity and similarity in details highlight the substantial differences between the two works: while the message of the Pisan fresco recalls the religious foundation and non-terrestrial perspective of the medieval idea of justice, the choice made by the Sienese differs radically. It has even been seen as a secularized image of the Last Judgment.49 But, as the written comment accompanying the images demonstrates, responsible for and the beneficiary of the good government is the “common good,” in other words nothing other than the new (and uncertain) political reality of the municipality. The severe figure of the protagonist of good government is associated with the pure feminine image of Peace. Justice and peace were fundamental necessities and especially urgent during a crisis of legitimacy—the absence of the imperial bearer of sovereignty—and of a social transformation in full flower: Lorenzetti’s frescoes in the municipal palace in Siena constituted the program of a government capable of restoring security to daily life and of maintaining in good running order the rich flow of commercial traffic at the sole price of giving work to the executioner. Where ropes hung unused from the gallows thieves and assassins worked undisturbed. Harsh punishment was thought to be the necessary condition for the enjoyment of a tranquil peace. We find something of the sort also in Giotto of the Scrovegni, where “Justice” which, with her scale guarantees the orderly conduct of civic life and opposes the corrupt judge who ensconced in a crumbling castle in a forest leaves a free hand to wrongdoers.50 Nevertheless, we shall have to consider, as Mario Sbriccoli has observed, that Giotto’s woman “echoes the Virgin Mary (she has … the mantle of the ‘Mother of Mercy’ [‘Mater Misericordiae’], large and long reaching to her feet).”51 In Lorenzetti’s fresco the regal figure of the elderly man who dominates the scene is, as we have seen, “the common good,” the very same about which Thomas Aquinas spoke as the goal of virtuous acts and legal justice: he 48 49 50 51

Ibid., p. 52. Quentin Skinner, The Foundations of Modern Political Thought. 2 vols. (New York and Cambridge: Cambridge University Press, 1978-1979). On the interpretation of the images and the writings on the Paduan frescoes, see Chiara Frugoni, Gli affreschi della Chiesa degli Scrovegni a Padova (Turin: Einaudi, 2005). M. Sbriccoli, “La benda della giustizia,” pp. 60-61.

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Figure 38 Giotto, Justice, fresco, 1302-1305. Padua, chapel of the Scrovegni. Foto Scala, Florence 1990

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is the protagonist and the patron of this “visual political lexicon” consisting of words and images.52 And it has been noted, correctly, that in the Middle Ages “‘commune’ is always more comprehensive and more Christian than ‘public’.”53 The principle of a collective interest in an administration capable of rewarding the good and punishing the bad and of guaranteeing peace in society was increasingly evoked in the Italy of that time as the factional fighting and the growing tyranny of the feudal lords fomented in the cities a climate of violence and of general insecurity. Not for nothing is the negative face of the Buon Governo in the Sienese fresco represented by Tyranny, signifying “suspicion, wars, plundering, betrayals and deceit.”54 This municipal justice had the duty to strike at the defeated political faction and to guarantee the security of the movements and precedence of commercial activity by applying definite, severe sanctions. Offsetting with an offer of merciful intercession the harshness of the punishments administered on earth 52

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Thus, according to Maria Monica Donato, “Testi, contesti, immagini politiche nel tardo Medioevo: esempi toscani,” Annali dell’Istituto Storico Italo-Germanico in Trento 19 (1993): 305-355. Donato correctly interprets the words in the Sienese scroll, “the many souls create a common good for their lord,” against the hypothesis of Quentin Skinner, who sees in the elderly royal the nobleman summoned to bring order in the city (“L’artista come filosofo della politica,” Intersezioni 7 [1987]: 439-482). Peter von Moos, “Le ‘bien commun’ et ‘la loi de la conscience’ (Lex privata) à la fin du Moyen Ăge,” Studi Medievali 41 (2000): 505-548; new, revised ed. in Idem, Entre histoire et littérature. Communication et culture au Moyen Ăge, pp. 471-510: 476. This point has been underlined in the fundamental study by Nicolai Rubinstein, “Political Ideas in Sienese Art: the Frescoes by Ambrogio Lorenzetti and Taddeo di Bartolo in the Palazzo Pubblico,” Journal of the Warburg and Courtauld Institutes 21 (1958): 179-207: 184189. It is an obligatory reference after the discussion which followed the essay by Quentin Skinner, “L’artista come filosofo della politica,” in which among the participants we have Randolph Starn, “The Republican Regime of the Sala dei Nove in Siena, 1338/40,” in Idem and Loren Partridge, Arts of Power. Three Halls of State in Italy, 1300-1600 (Berkeley-Los Angeles: University of California Press, 1992) and Maria Monica Donato, “‘Cose morali, e anche appartenenti secondo e’ luoghi’: per lo studio della pittura politica nel Due e nel Trecento,” in Paolo Cammarosano, ed., Le forme della propaganda politica nel Due e nel Trecento (Rome: École française de Rome, 1994), pp. 491-517. To the restatement of Quentin Skinner’s theses, (Virtu‘ rinascimentali [Bologna: Il Mulino, 2006], pp. 53-154), there has been a response from Maria Monica Donato, “Ancora sulle fonti nel ‘Buon Governo’ di Ambrogio Lorenzetti: dubbi, precisazioni, anticipazioni,” in Simonetta Adorni-Braccesi and Mario Ascheri, eds., Politica e cultura nelle repubbliche italiane (Rome: Istituto Storico Italiano per l’età Moderna e Contemporanea, 2001), pp. 43-80. On the reality of the sectarian conflicts which constitute the actual motif of political art, see Giuliano Milani, L’esclusione dal Comune. Conflitti e bandi politici a Bologna e in altre città italiane tra xii e xiv secolo (Rome: Istituto storico italiano per il Medio Evo, 2003).

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and threatened in the beyond, the figure of the Madonna as merciful mother enjoyed a growing success in the world of the city states, ending up by even influencing judicial iconography. Entire cities placed themselves under her protection, civic statutes were dedicated to her, her image presided over the civic rites of the city halls, alone or with that of Justice55 and she was invoked and carried in procession during collective calamities. Once again, it is in the most celebrated and studied episode in the iconographic history of justice, that of 14th-century Siena, that we can observe the progress and development of this special devotion to the Virgin. It was to the Madonna “in majesty,” as guarantor of peace for the city and of life for himself, that Duccio di Buoninsegna had addressed his invocation in the Siena of the early 14th century. The image of Christ blindfolded and beaten before Caiaphas offered subjects for meditation about justice to the faithful who in the Duomo of Siena perused the stories on the verso of the painting. Transferred to the municipal palace, the theme of Majesty is found in the work of Simone Martini (from 1315) a version which emphasized the subject of justice in the parchment scroll held in the hand of the infant Christ (“diligite iustitiam qui iudicatis terram” (“love righteousness, you rulers of the earth”) (The Wisdom of Solomon 1:1).56 And on the steps of the throne one may read verses which threaten the suspension of the Virgin’s protection “if the powerful abused the weak” (“se I potenti à debil fien molesti”). A few years later and in the same municipal palace Ambrogio Lorenzetti painted his secularized version of the Buon Governo using the identical Biblical citation but substituting Justice for the Virgin. 55

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In the municipal palace of Prato two great 14th-century frescoes, attributed to Pietro di Miniato, present a Madonna and Child with saints on one side and a “Militant justice” (“Justicia militante”) with scale, sword and olive branch. In the caption one reads “dilexi iusticiam et odi iniquitatem” (“delight in justice and hate iniquity”); the image is reproduced in Leonardo Castellucci and Cosimo Bargellini, I palazzi del potere. Storia delle strutture pubbliche delle province di Firenze, Lucca, Pistoia e Pisa (Milan: Trainer International Editore, 1991), p. 62. In other Tuscan municipal palaces recorded in the volume we generally encounter the image of the Madonna and Child. For this inscription Guido Mazzoni (“Influssi danteschi alla ‘Maestà di Simone Martini,” in Almae luces malae cruces: studii danteschi [Bologna: Zanichelli, 1941], pp. 333-348) has juxtaposed, however cautiously, Simone Martini to Dante. Gianfranco Contini, throwing caution to the wind, has accepted without question Dante’s influence affirming that “this was the first time that, the Comedy, not only not yet completed, but circulating only in one part, exercised a decisive influence precisely in the circles of a civic representation,” “Simon Martini gotico intellettuale,” introduction to Maria Cristina Gozzoli, ed., L’opera completa di Simone Martini (Milan: Rizzoli, 1970), p. 5.

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Figure 39 Duccio di Buoninsegna, Christ blindfolded and mocked, 1308, detail from the predella of the Maestà. Siena, Museo dell’Opera Metropolitana. Foto Opera ­M etropolitana, Siena/Scala, Florence 1990

But municipal justice could not use the sovereign power of grace. In its representations this absence is revealed by a symbolic vacuum which corresponds to a dearth in reality. In the works painted and carved in the Italian art world, from Giovanni Pisano to Andrea Orcagna, from Andrea del Sarto to Giambologna, the sword always stands out while, instead, in general there is no reference to the power of grace. And it is also in Italy that, from the ancient Roman world forward, we see emerging the subsequently severe and threatening symbol of fasces and hatchet (we encounter this in a painting by Battista Dossi).57 57

The oil painting by Battista Dossi, dateable to c. 1544, is in the Gallery at Dresden. The statue of Justice by Giovanni Pisano is part of the pulpit complex in the Duomo of Pisa.

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Figure 40 Simone Martini, Diligite iustitiam, fresco 1315, detail from the Maestà. Siena, Palazzo Pubblico. Foto Scala, Florence 1994

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Figure 41 Battista Dossi, Justice, oil on panel, c. 1544. Dresden Gemāldegallerie, Alte Meister, Staatsliche Kunstsammlungen

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Figure 42 Giovanni Pisano, Justitia and Temperantia, marble 1311, detail of the pulpit. Pisa, Duomo

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Figure 43 Andrea Orcagna, Justice, marble, 1359. Florence, Orsanmichele, tabernacle

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Figure 44 Jean de Boulogne, called Giambologna, Justice, bronze, second half of the 16th century. Genoa, Palace of the University

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The iconographic fact can easily be verified in the context of the reality of the times: it occurs when some personage or other emerging from among the citizenry attempts to advance himself, currying favor among the people by dispensing grace. In this we detect the signs of the feared personal regime of a princely type.58 It was not by chance that the men who exercised the judicial function were summoned from outside. They were expert professionals and their characteristic trait was the impassible severity with which they applied rigorous formal models. Their reputation long endured, kept alive by celebrated cases. A noted historian who was also a man of the law, Francesco Guicciardini, became famous as papal governor of Reggio Emilia for his “extreme, and incredible justice: which without regard for anyone was exercised equally against all.”59 In the face of a style of this type the Christian impulse to formulate acts of justice according to the ideals of mercy and pardon did not disappear: it sought other outlets. Pardoning the condemned assumed in medieval Italian cities the form of a charitable intervention on the part of individuals and associations and developed only in the religious sphere. No one has examined to the extent merited the connections between the historical reality of the administration of criminal justice and the sacred representations of the Passion, between the wailing of the condemned, of their friends and relatives and the words of Iacopone’s laude and of the religious theater. But that connection existed in reality, when the confraternities chanted their hymns under prison windows and before gallows; and it was fresh in the minds of the people. It could be found, for example, in the way that St. Catherine comforted Niccolo‘ di Toldo of Perugia by urging him to endure his death sentence as another Christ and she convinced him to go to his death as to a new Calvary, “a holy place of Justice.” A similar case occurs in the sorrowful astonishment of a man condemned for heresy in Venice in 1570 who protested to the inquisitors, “Even

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The sculpture by Andrea Orcagna, dating from 1359, is in Orsanmichele in Florence, the fresco by Andrea Del Sarto of 1515 is in the Chiostro dello Scalzo in Florence, the statue by Giambologna is in the main building of the University of Genoa (see W. Pleister and W. Schild, eds., Recht und Gerichtigkeit, pp. 126-129). In the recurrence of the “ottava di Nostra Dama,” (the celebration of the Conception) Walter of Brienne, duke of Athens, “made an offering [freeing] more than a hundred and fifty prisoners…. In this manner by a betrayal the duke of Athens usurped the freedom of the city of Florence” (Giovanni Villani, Cronica, Bk. 12.3). From the chronicle of B. Cartegni, cited in Giambattista Bebbi, Reggio nel Cinquecento, ed. Carlo Baja Guarienti (Reggilo[Re] 2007), p. 47.

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Judah would have found mercy every time he had shown remorse.”60 Expressions like this tell us that, though people in our day tend to live every trial like that of Kafka, in the distant past the filter acting on real experience was that of the sacred mysteries of the Passion: it was to Christ of the Passion, to the Madonna and to the saints that one turned to save one’s life or to be miraculously freed from prison (as we see in a painting by Sassetta).61 A reflection of it, the dimensions of which have not as yet been adequately explored, is the elaborate religious practice of the visitation of prisoners as a work of evangelical mercy, to which pious confraternities and single individuals dedicated themselves: an activity which in mid-seventeenth century was to receive exhaustive treatment in a vast treatise by Giovan Battista Scanaroli dedicated significantly not only to the visitation but also to the protection of the prisoners and to the task of seeking their freedom.62 That at this date in the Papal State the impulse of evangelical fraternity toward prisoners should have become institutionalized and that their comforters should also be their jailers is a striking example of the complicated historical process experienced by the penal system in the Christian West.63 The consideration of prisons and gallows as places especially suitable for reliving the drama of the Passion was nurtured by an intense pedagogical program on the symbolic level. In carrying out this educational function, iconography allied itself to the laude and sacred representations to convince Chris­tians to see themselves among the personages in the religious theater and to await the sentence on their own souls resulting from the deliberation which Justice, Mercy and Truth were conducting before God as judge.64 Time had to pass before the theater and other forms of narration would select other 60

His name was Simeone Simeoni and he was executed in Venice by the Inquisition in 1570. His words are recorded in the transcripts of his trial (Archivio di Stato, Venice, Sant’Uffizio, b. 178, unnumbered leaves). 61 Sassetta, Liberazione di novanta prigionieri poveri a Firenze (The freeing of ninety poor prisoners in Florence)(panel painting; miracles of the blessed Raniero da Borgo San Sepolcro, Paris, Museum of the Louvre). 62 Io. Baptistae Scanaroli Mutinensis Sidoniorum Episcopi, De visitatione carceratorum libri tres, quibus omnia ad visitationem, patrocinium, et liberationem carceratorum spectantia explanantur, Romae, Typis Reverendae Camerae Apostolicae, 1655. 63 Vincenzo Paglia, La “Pietà dei carcerati.” Confraternite e società a Roma nei secoli 16-18 (Rome: Edizioni di Storia e Letteratura, 1980). 64 See Bernard Faivre, “Procès sacré, procès farsesque,” in Christian Biet and Laurence Schifano, eds., Représentations du procès, droit, théâtre, littérature, cinéma (Nanterre: Université Paris-X Nanterre, 2003), pp. 197-202 (I am grateful to Alberto Mittone, himself a lawyer, for introducing me to this volume).

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Figure 45 Sassetta, Miracolo del beato Ranieri, the freeing of ninety poor prisoners from jail in Florence, oil on panel, 1437-1444. Paris, Musée de Louvre. Foto RMN/Daniel Arnaudet/Archivi Alinari, Florence

judicial cases in place of the trial of Jesus: only between the seventeenth and eighteenth centuries did the literary fortune of notorious trials commence to gain in popularity.65 Until then, the single model of the Passion was multiplied in the images of martyrdom shown to persons condemned to die through the means of painted “tablets.” And if the confraternities of justice selected as their icon the severed head of St. John the Baptist it was because Christian humility did not allow aiming so high as to the unattainable model of the suffering and death of the Son of God. To these fraternal associations was given the privilege of selecting each year to be absolved and freed one or more person condemned to death. The date usually fell on the principal liturgical celebrations (Easter, Christmas). In this way the supreme sovereign power of granting mercy was delegated to simple citizens and became transformed into a charitable act. The iconography of Justice, taken out of the cathedrals, was transferred then to the edifices of lay authority. Here the symbols of good government and 65

A number of interesting probes are collected in the aforementioned Représentations du procès.

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Figure 46 Cristoforo di Iacopo, flagellation and crucifixion with the martyrdom of Saints Lorenzo and Biagio. Stuttgart, Staatsgalerie

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of the fair minded judge could assume different forms: in addition to the Biblical and evangelical repertory we find the versatile parlance harking back to antiquity of feminine figures, the only ones able to evoke contemporaneously both classical virtues and Christian angels and to give a face and a body to the city as maternal entity to which everyone could belong and which watched over everyone. The iconographic choices reveal political strategies which varied depending on the organization of the State, its territorial dimensions, the framework of power. Systematic research dedicated to the halls of justice in the Swiss cities, in the principates and cities of the Empire and in the kingdom of Poland has identified the existence of a precise iconographic repertory intended to remind the judge of his grave responsibility before God.66 And similar results have emerged from an investigation of the Italian city-states and the area of the ancient Lotharingia, that vast territory which joins northern Italy, Flanders, the Swiss Confederation, the free German cities: here the failed or tardy concentration of authority in the hands of a single person favored the development of “a public lay possession of power which was neither feudal nor ecclesiastic.”67 The guarantee of the political stability of the oligarchic republics was entrusted to a regime where authority could not be in the guise of a sovereign but had to be represented by a symbolic figure. In Volterra conquered by Florence, the image of a woman menacingly brandishing a long sword, frescoed in 1532 by Daniele da Volterra in the ancient Palazzo dei Priori, reminded the vanquished who and what they had to fear.68 In the case of an oligarchic republic such as Venice proud of its own legal system, which differed from the imperial Roman, the image on the prow of the State barge, the Bucentaur, was a statue of Justice, “seated, gilded, holding a sword and a scale … as a sign that the Venetians dispense justice to all equally.”69 66 67 68

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See Susan Tipton, Res publica bene ordinata. Regentenspiegel und Bilder vom guten Regiment: Rathausdekorationen in der frühen Neuzeit (Hildesheim: Olms, 1996). C.-N. Robert, Une allégorie parfaite. La Justice: vertu, courtisane et bourreau, pp. 114-115. The “Justice” painted by Daniele Ricciarelli of Volterra c. 1530 is today housed in the Pinacoteca of Volterra. On the function and architectural actuality of the ancient city halls in the new regime, see L. Castellucci and C. Bargellini, I palazzi del potere. So we read in Marin Sanudo’s De origine … urbis venetae, quoted by Gaetano Cozzi, Repubblica di Venezia e Stati italiani. Politica e giustizia dal secolo XVI al secolo XVIII (Turin: Einaudi, 1982), p. 319. See also by the same author, “Politica, cultura e religione a Venezia,” in Idem, Ambiente veneziano, ambiente veneto (Venice: Marsilio, 1997), p. 346. Among the apparatuses in the great procession which celebrated the birth of the League of Blois in 1513 there appeared Venice “in the form of a seated virgin,” ”a Justice holding a sword and a scale,” and numerous writings of “justice and peace” (Marin Sanudo, Diarii, eds. Rinaldo Fulin et alii [Venice: F. Visentini, 1879-1903], 15: col. 288).

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Figure 47 Daniele da Volterra, allegory of Justice, fresco, 1532. Volterra, Pinacoteca e Museo Civico. formerly in the Palazzo dei Priori of Volterra

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Figure 48 Filippo Calendario (?), allegorical representation of the city of Venice as Justice, relief, mid-14th century. Venice, Doge’s Palace

It was the Serenissima itself that wore the vestments of Justice, indicating that in its tribunals judgment was dispensed not on the basis of the common law valid in its subject cities and communities but by applying the norms (“parti”) voted in by its Great Council: in this manner it was represented in the relief of the Doge’s Palace in mid-14th century and also with scale and sword on the frontispiece of Lorenzo Priori’s Prattica criminale printed in 1622.70 Between these two images should be placed one painted within the Doge’s Palace by Paolo Veronese: here Venice appears as a royal woman looming over the figures of Peace and Justice. This image had been destined for the officials of the palace but it did not pertain only to them. For anyone observing from outside, arriving from the mainland or from the lagoon two statues in stone were projected to be placed over the pinnacle of the great windows which opened respectively toward the 70

Filippo Calendario (?), Venezia come Giustizia, Doge’s Palace (see Arte e storia nel Medio Evo [Turin: Einaudi, 2004], vol. 3: table no. 18). Cf. also Lorenzo Priori, Prattica criminale secondo il rito delle leggi della Serenissima Republica di Venetia … con nota delle parti, et publiche deliberationi sopra ciascun delitto (Venice: Antonio Pinelli stampator ducale, 1622).

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Figure 49 Justice, detail from the title-page of Lorenzo Priori, Prattica criminale, Venice 1622

quay and toward the small square: one was the statue of Justice, the other represented Venice “in the form of justice,” with the symbols of the sword and scale.71 The “perfection of political life,” according to a Venetian with the experience and culture of Paolo Paruta, consisted precisely in an administration of the law capable of adapting itself to the diverse conditions (“equality”) able “to preserve peace and unity among citizens.”72 Even according to Paruta, how­ever, the highest position by far in the scale of authority was that which pertained to the prince, he who according to the ancient definition knew no power superior to his (“superiorem non recognoscens”) and answered directly to God: The true law of the prince is the law of nature, which is above him, and which must serve as his guide in establishing particular laws; since he has such an obligation to obey this, in respect to God, true judge of all his doings, as do his subjects in regard to the written law, out of respect to the 71 72

The project was entrusted to the sculptor Alessandro Vittoria, as part of the restorations after the fire of 1577 (G. Cozzi, Repubblica di Venezia e Stati italiani, p. 318). Paolo Paruta, “Della perfettione della vita politica,” in Opere politiche, ed. Cirillo Monzani (Florence: Le Monnier, 1852), p. 221.

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Figure 50 Paolo Caliari, called Veronese, allegorical representation of the city of Venice with Peace and Justice, mid-16th century. Venice, Doge’s Palace. Foto Musei Civici Veneziani

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prince, who is almost certainly the minister appointed by that highest King of Kings for the specific governance of all people.73 The celebratory investment in the abstract figure of Venice as Justice tended to suggest the Serenissima as the incarnation of the principate and as just and impartial legislator. But the permanent social differences and the differences of the legal traditions between the mercantile oligarchy of the Republic and the civic aristocracies of the Terrafirma rendered the undertaking difficult. Instead where the judge was simply the instrument of an established sovereign authority, as in France and England, the iconographic celebrations of the virtues and models of the power that sat in judgment seems to have been diminished: perhaps because here there was no need to caution or educate the judges and to insist on the observance of regulations or the imitation of models. It was the sovereign himself, through the authority received from God, who implemented divine justice and thus rendered useless the function of representation.74 In fact, in France it was the symbolic image of the crucifix which prevailed.75 In the territories of the German empire, instead, what dominated was the iconography of the Last Judgment among the religious themes applied in the places where the judicial power was exercised: the portals of the churches, the churchyard, the municipal residences. Detailed research exists furnishing precise details on the subject.76 The images in question had been entrusted 73

Ibid., p. 229. On the history of the relationship between justice and politics in Venice, the research possibilities opened by the fundamental study of Gaetano Cozzi, Repubblica di Venezia e Stati italiani, have stimulated further work on the institutions of government and the practices of justice through which the priority of the notion of “public order” over that of peace is affirmed with the consequent advance of the inquisitorial trial but also setting in motion between the seventeenth and eighteenth centuries new “open” procedural rites: see Claudio Povolo, ed., Processo e difesa penale in età moderna. Venezia e il suo stato territoriale (Bologna: Il Mulino, 2007). A brief synthesis is now offered by Leonida Tedoldi, La spada e la bilancia. La giustizia penale nell’Europa moderna (secc. XVI-XVIII) (Rome: Carocci, 2008), pp. 55-59. 74 C.-N. Robert, Une allégorie parfait. La Justice: vertu, courtisane et bourreau, p. 15 speaks in regard to this area of an “aniconie de la Justice.” 75 Idem., La justice dans ses décors, p. 41. 76 Between 1937 and 1939 the research of Georg Tröscher, “Weltgerichtsbilder in Rathäusern und Gerichtsstätten,” in Wallraf-Richartz-Jahrbuch 11 (1939): 139-214, and of Ursula Lederle, Gerechtigkeitdarstellungen in deutschen und niederländischen Ratshäusern (Diss. Heidelberg, 1937) (unfortunately not seen), have made definitive contributions to this theme, collecting a vast documentation: Tröscher identified 122 examples of the Last Judgment in the Rathaus and in the courtrooms. In the municipal palace of Maastricht the representation has been noted of a judge undecided between a rich man and a poor

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with the function of spurring judges to exercise their office with the knowledge that the eternal fate of their souls was at stake: and contributing to this was the same incumbent presence of the majestic cathedrals with their artistic portals –such as the one at Strasbourg—before judicial activity moved from the sites of cultic practice to the halls of the palaces of government.77 In fact, the theme of the Last Judgment enjoyed a broad diffusion and not only in the lands of the Germanic Empire. Those representations evidently offered an image that was more immediately comprehensible and broadly accessible, to judges and the judged, to rich and poor, to the powerful and also to ordinary people. In the German sphere the insistence on the terrifying aspects of the Last Judgment was so virulent as to provoke Luther’s objections, who urged meditation on the theology of the Cross as salvation earned for mankind by the Passion of Christ. But in this very time the rebirth of ancient paganism imposed a new language destined to become predominant: in the Roman heart of the Christian world, specifically in the Vatican’s Stanza della Segnatura, that is in the supreme site of judicial papal authority, Raphael painted a pagan goddess who, seated on a throne of clouds, raised a sword on high and displayed the scale as a symbol of impartial justice. The accompanying caption reads “to each his law,” “ius suum cuique tribuit.”78 Evidence of the diffusion of the new ideas brings before us differences in time, place, and momentum caused by the distances, not only physical, but also cultural between centers and peripheries. Obviously, visual interchanges in the urban world developed at a faster pace than in the villages and countryside, although they were not absent even there. From a few traces that have survived in Alpine regions we perceive a need for symbolic communication

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man while a devil tempts him with gold and an angel points out what awaits him at the Last Judgment (Jacqueline Van Leeuwen, “Emotions on Trial. Attitudes towards the Sensitivity of Victims and Judges in Medieval Flanders,” in Elodie Lecuppre-Desjardin and Anne-Laure Van Bruaene, eds., Emotions in the Heart of the City (14th-16th Century) (Turnhout: Brepols, 2005), pp. 157-175: 173. Ulrich Andermann has called attention to the specific function for which images of justice were destined in addition to their documentary value: “Das Recht im Bild. Vom Nutzen und Erkenntniswert einer historischen Quellengattung (Ein Forschungsüberblick),” in Mundus in imagine: Bildersprache und Lebenswelten im Mittelalter (Munich: Fink, 1996), pp. 421-451 (volume in honor of Klaus Schreiner). See Ernst H. Gombrich, “Raphael’s Stanza della Segnatura and the Nature of its Sym­ bolism,” in Richard Woodfield, ed., The Essential Gombrich (London: Phaidon, 1996), pp. 485-514.

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Figure 51 Raphael, Justice, fresco, 1508-1511, detail. Vatican City, Monumenti, Musei e Gallerie Pontificie, Stanza della Segnatura. Foto Scala, Florence 1990

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Figure 52 Justice as a popular image, wall painting, 16th century. Vicosoprano, Switzerland, Palace of Justice. Photo by Sandro Bianconi

not inferior to that in urban milieus together with a special presence of the idea of Justice.79 But it is in the cities that function organizes space and renders itself perceptible in topography (from the palaces of the podestà, the courts and the police, to the prisons, the pillory and the scaffold),80 and in the way in which those places were animated and maintained with rituals and myths (from the solemn and terrifying rites of execution to symbolic messages of various types), interposed with the many expressions of social and political life. Here we can decipher the results of the political struggle. Beginning in the 13th century we find evidence of the defeated factions in their destroyed homes and demolished towers: in Florence the residences of the Uberti, in Pisa those of the Del79

80

Sandro Bianconi, Plurilinguismo in Val Bregaglia (Locarno: Armando Dado‘ editore, 1998), p. 44 has noted a 17th-century mural painting of Justice, of which he kindly provided me with a reproduction. See Marino Berengo, L’Europa delle città. Il volto della società urbana europea tra Medioevo ed età moderna (Turin: Einaudi, 1999), pp. 626-634.

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la Gherardesca were leveled. A similar fate was reserved for the dwellings of persons guilty of serious crimes. The trial was a public spectacle that became an instrument of propaganda and infamy not only in minor political and social conflicts but also in the clashes of great European import involving the empire, the king of France and the papacy. We mentioned previously the trial organized in Pisa on 19 February 1329 by Emperor Ludwig the Bavarian against the Avignonese Pope John XXII, represented by a puppet made out of wood and straw dressed in papal clothing.81 It was only one of many instances of rituals intended to dishonor and of executions “in effigy”: the absent offender—distant and beyond the reach of the law or perhaps even deceased—was replaced by a portrait which after sentencing was affixed in a public place. Beginning toward the end of the 13th century we see with increasing frequency images on the walls of Tuscan city halls of persons portrayed in grotesque and degrading poses: hung by the neck or feet, dragged through the dust by donkeys. Recourse to defamatory portrayals as a form of aggravating the sentences of the tribunals was a device to intensify and make more lasting a lesson in shame which found in urban settings the ideal conditions to display its message.82 Thereby, a symbolic language came into being which was not limited to wall paintings: colors and signs of diversity and exclusion were deposited on the corpses, highlighting good and evil as social categories. While the Biblical Judah was the absolute, universally known, negative model, prototype of the accursed, depicted in paintings with the negative symbols of red hair and left-handedness, the signs of his malediction were extended to the Jewish people forthwith, obliged to distinguish themselves from Christians by apposite tokens.83 81 82

83

See Wolfgang Brückner, Bildnis und Brauch. Studien zur Bildfunktion der Effigies (Berlin: E. Schmidt Verlag, 1966), pp. 197-198. To have reconstructed this aspect of medieval communal justice is the merit of the standard work by G. Ortalli, “Pingatur in Palatio….” For the continuation of the practice beyond the medieval period, we should recall that to the column of infamy erected in Milan following the trial of the unguent spreaders suspected of causing the plague in 1630, Alessandro Manzoni dedicated his famous The Betrothed. And for a Florentine episode of the early 16th century, see now the study by William J. Connell and Giles Constable, Sacrilege and Redemption in Renaissance Florence (Toronto: Centre for Reformation and Renaissance Studies, 2005). On the color red used to represent Judah and on distinguishing marks, see Michel Pastoureau, Une histoire symbolique du Moyen Ăge occidental (Paris: Seuil, 2004). I cite from the Italian translation, Medioevo simbolico (Rome-Bari: Laterza, 2007), pp. 178-188. But the executioner’s sword is of a dark color while that of the archangel Michael is red from divine anger (see Hannele Klemettilā, Epitomes of Evil. Representations of Executions in Northern France and the Low Countries in the Later Middle Ages (Turnhout: Brepols, 2006),

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Figure 53 The story of Antonio di Giuseppe Rinaldeschi, 1501, detail. Florence, Museo Nazionale del Bargello

This is an important aspect in the history of the administration of justice which serves as significant confirmation of the space that was beginning to be accorded to the sense of sight. And it was not only marginal groups (lepers, prostitutes, Jews) and those guilty of common crimes who were thusly defamed; even the powerful were affected by this instrument. In Florence the Duke of Athens was punished for having “to his shame and disgrace allowed himself to be painted.”84 The signs of defeat were reckoned as those of infamy. And the shame of the individual defamed publicly had weighty consequences. Let one detail suffice: the sentence to death in contumacia (in the absence of the criminal) was announced by striking his image. Although it could not

84

pp. 160-161; ibid., for some cases of the negative representations of persons, among whom Judah is characterized by left-handedness. Giovanni Villani, Cronica, 8:12.

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cause his physical demise, it did establish what was defined as his “civil death,” namely the judicial eradication of all forms of social relations.85 The culture of shame and the culture of the image thus discovered the extraordinary potential of their alliance. Naturally, the primary object of that pedagogy of terror remained that of offering to the gaze of the crowd not a painted image but the actual body of the condemned and the physical tortures imposed by the court. Here too the function of terrorizing was entrusted to sight. It pertained to the deepest and most powerful essence of political power: the true face of authority revealed itself not in the rites of Christian pardon but in the relentless violence of the punishment of traitors, real or presumed, and in :: Alcanthe vendettas against defeated rivals. For a harsh analysis of reality what was needed was the perspective of such an observer as Niccolo‘ Machiavelli, unfettered by religious rhetoric: it was clear to him that the spectacle of death aggravated by atrocious sufferings would stop anyone from nurturing disobedient thoughts or subversive projects. In this use of the iconography of punishment in the service of authority it has been suggested that we have one of the “first symptoms of the birth of the modern State.”86 But—apart from the difficulty of giving a well defined stucture to the phantasm of the modern State—it is rather in the variety of practices and in the uses of the image that we can pursue the versatility of the instrument in the service of diverse powers. We meet along this path the echoes and traces of the many discrepancies of statehood in Europe.87 It was the medieval urban world which demonstrated a special vocation to make use of it. As Gherardo Ortalli observed, the walls of communal Italy learned to speak: “With writings, figures, symbols … places all become useful to affirm and defend the role of whoever administers or controls in a more or less provisional way the institutions and sometimes (much more rarely) also to activate 85 86

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We owe the definition to 18th-century French jurists: see W. Brückner, Bildnis und Brauch, pp. 262-264. J.M. Nieto Soria, “Popaganda and Legitimation in Castile: Religion and Church, 1250-1500,” in Allan Ellenius, ed., Iconography, Propaganda and Legitimation (Oxford-New York: Oxford University Press, 1998), p. 113; I have cited this reference from Gherardo Ortalli, “Luoghi e messaggi per l’esercizio del potere negli anni delle sperimentazioni istituzionali,” in Pensiero e sperimentazioni istituzionali nella ‘Societas christiana’ (1046-1250), Atti della XVI settimana internazionale di studi medievali, ed. G. Andenna (Milan: Vita e Pensiero, 2007), pp. 761-800. Still useful on this subject is the classic work by Henri Pirenne, Histoire de l’Europe des invasions au XVIe siècle (Paris: Alcan; Brussels: N.S.E., 1936). I cite from an Italian edition, Storia d’Europa dalle invasion al XVI secolo (Florence: Sansoni, 1956), especially pp. 433454.

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dissent.” The passing of time and even more the intervention of powerful personages intent on eradicating public infamy have selected the sources.88 A considerable portion of what had been destined for the populace has been lost, while countless items have been preserved that were intended for judges and persons who had authority in the municipal seats of government. Some are still in place today, others are housed in museums. So unbalanced is our perception of the images tied by function to the administration of justice, that it perpetuates the unequal relationship between palace and piazza. These places, in such proximity in the urban space of the city of the ancien regime, were often separated—as Francesco Guicciardini wrote—by “such a heavy fog or such a thick wall, that since the eyes of man could not penetrate them, the populace knows as much of what rulers are doing or of their reasons for doing it, as of things happening in India.89 And just as diverse and separate were the faces of justice that the two spheres propagated. In the palace sat the prince or the magistrate; and it is there that justice was administered and the sentence was decided, shielded from the public gaze, in conditions of secrecy that were (this should be underlined) the customary ones until the 18th century. Thus, it is easy to understand why the images of justice situated within the palace frequently differed totally from those of the piazza, especially in situations and times when palaces ceased being public edifices of the communes and became courtly residences, or seats of judicial magistracies. An emblematic case is that of the Judgment of Cambyses, a famous diptych painted in 1498 by Gérard David for the hall of judgment in the Palace of the City of Bruges: it tells the story of the corrupt judge Sisamnes who was ordered to be skinned alive by order of King Cambyses II. This episode, narrated by Herodotus, was appropriated by medieval preachers. The function of the painting was to remind judges seated around that hall the fate to which corruption could bring them. It was not only a problem of malfeasance but of power: to prevent the caste of magistrates from throwing a shadow over political authority has been a recurring issue in European history and the memoirs and admonitions of kings to their heirs (such as those of 88

89

To eradicate the images of important persons, “one saw occurring … even agreements between governments, diplomatic negotiations, recommendations by the powerful” (Gherardo Ortalli, “Comunicare con le figure,” in Arti e storia nel Medioeveo, eds. Enrico Castelnuovo and Giuseppe Sergi (Turin: Einaudi, 2004), 2: 477-518: 513. Francesco Guicciardini, Ricordi (Opere, ed. Vittorio De Caprariis [Milan-Naples: Ricciardi, 1961], p. 126).

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Figure 54 Gérard David, The Judgment of Cambyses: the corrupt judge, oil on panel, 1498. Bruges, Gröningenmuseum

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Figure 55 Idem, The Judgment of Cambyses: the skinning alive of Sisamnes, oil on panel, 1498. Bruges, Gröningenmuseum

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Louis XIV) have underlined the importance of this well before the modern democracies found themselves experiencing it. The pressure exerted over judges by political power thus assumed the aspect of a preoccupation to moralize the administration of justice. The argument was specious: threats and appeals against corruption were taking place within a society in which the dissemination of gifts was paramount and what one earned from the profession consisted much more of largesse than of nominal wages. If we add inflation, which in the sixteenth century assumed the form of a revolution in prices, then even the strictest moralists were ready to justify what was occurring in practice and it was generally accepted: gifts and compensations were considered a necessary complement to a stipend transformed “from just to unjust” and which only by these means returned to a “just measure.”90 Reality upended all legal barriers. To the king of France who with the Ordinance of Blois in 1579 ordered judges to refuse any gift proffered by the parties in a dispute, magistrates could retort that their impartiality was guaranteed also in other ways: for example, by accepting gifts and compensation not from one litigant in a dispute but from both.91 In any case, their greed was proverbial: when Hieronymus Bosch painted the seven capital sins, he represented avarice with the image of a bailiff holding a baton, the symbol of his authority, seated on the bench of judgment while, leaning forward to hear a litigant with a full purse, extends his hand toward the purse of the other litigant. But his painting offers something more than a critique of social behavior: at its center the Christ of the Passion is portrayed with the caption: “Beware, God sees you” (“Cave cave, D[omi]­n[u]s videt”).92 Nicholas of Cusa had spoken of the eye of God as an infinite sphere in which everything was reflected without distinction of time and place.93 And artists built on this idea in symbols and images. Thus we have a confirmation of the value which, in the context of the religious beliefs of the time, was seen in the idea of the divine countenance over 90

91 92 93

Federico Chabod, “Stipendi nominali e busta paga effettiva dei funzionari dell’ammi­ nistrazione Milanese alla fine del Cinquecento,” in Miscellanea in onore di R. Cessi (Rome: Storia e Letteratura, 1958), reprinted in idem, Carlo V e il suo impero (Turin: Einaudi, 1985), pp. 283-450: 300-305. See Natalie Zemon Davis, The Gift in Sixteenth-Century France (Madison: University of Wisconsin Press, 2000), pp. 86-90. The painting is housed in the Museo del Prado in Madrid. Recalled by Laura D. Gelfand, “Social Status and Sin: Reading Bosch’s Prado ‘Seven Deadly Sins’ and ‘Four Last Things’ Painting,” in Richard Newhauser, ed., The Seven Deadly Sins. From Communities to Individuals (Leiden: Brill, 2007), pp. 229-256: 235.

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Figure 56 Hieronymus Bosch, Avaritia, detail of the seven capital sins, end of 15th century. Madrid, Museo Nacional del Prado

the world and the accompanying faith in the utility of the visual stimulus for moral behavior. The contemporary campaign of warnings and appeals to the dispensers of justice has left behind many traces. In the illustrations of the aforementioned “Penal Constitution” of Bamberg of 1507, the corrupt judge is represented alongside the criminal with a caption which explains that while the robber plunders, greater thefts are carried out by the “Judge of the Pocketbooks” (“Taschenrichter”).94 It would not be far-fetched to read these images as documentation of reality.95 The corruption of magistrates pertains to every historical age and is therefore timeless. But the concentration of this theme in one place and in a 94

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“Auff landt und wasser raubt man ser/Noch rauben Taschenrichter mer” (Die Bambergische Halsgerichtsordnung, fol. 76v. The engraving is reproduced in Gernot Kocher, Zeichen und Symbole des Rechtes. Eine historische Ikonoraphie [Munich: Beck, 1992], p. 20, no. 11). Which does not exclude the fact that images can be powerful aids to visualize past methods and practices of justice, as the Kocher volume actually does.

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Figure 57 Jean Provost, Christian allegory, oil on panel, early 16th century. Paris, Musée de Louvre. Foto RMN/Daniel Arnaudet/Archivi Alinari, Florence

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Figure 58  The Corrupt Judge, woodcut, from the Constitutio penalis Bambergensis, Mainz 1507

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particular moment is evidence of a state of mind that was not only widespread but also nurtured deliberately to justify the advent of a new rite and new rules. It was a question of affirming the supreme power over that other delicate and fundamental authority possessed and administered by lawyers. Images could serve as a reminder. The figure of the sovereign which in the Judgment of Cambyses menacingly confronts the corrupt judge could remind the magistrates of Bruges of the reality of the concrete authority of Maximilian of Habsburg, imposed over the rebellious city some years before. Similar functions had been entrusted in those years to other representations of equally emblematic episodes in the palaces of cities in the Low Countries: at Louvain Dirk Bouts had presented a “Justice” of Emperor Otto III, at Brussels Rogier Van der Weyden had proposed the episode of Trajan and Herkinbald. In those places destined to exalt by their prestige the pride and sense of belonging of the citizenry, the scenes of punishment meted out to corrupt judges had to function as reminders for the assembled magistrates. In the highly urbanized world of the Low Countries, where the magistrates in the cities proud of their autonomies constituted a danger for the new princely powers, a secondary tendency had been born in the genre of pedagogical art intended to educate judges. We can read these images as a sign of the prestige and social standing achieved by members of this profession and of the necessity to keep them under control. Not for nothing did they have a special place in the penitential appeals to not forget the death and judgment of God. Here is what could be read in an illustrated book of the first half of the 16th century under an engraving of Hans Holbein in which the corrupt judge turns his back on a poor person and extends his hand toward the purse of a rich man: I shall chase away from amongst people the judge who with an avaricious heart; that makes the poorest be hurt to whomever offers more he sells justice.96 And again at mid-17th century the tradition of admonishing judges was renewed in a painting by Jacob Jordaens where Justice received sword and scale from a heavenly emissary, while next to her the figures of Moses and Aaron

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[Caspar Huberinus and Urbanus Rhegius], Simolachri, historie e figure de la morte (Venice: Vincenzo Vaugris, 1545), unnumbered leaves. The text is a liberal rendering of Amos 5:12.

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Figure 59 Hans Holbein, The Corrupt Judge, engraving from Caspar Huberinus and Urbanus Rhegius, Simolachri, historie, e figure de la morte, Venice 1545

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Figure 60 Jacob Jordaens, Human Justice and Divine Justice, oil on canvas. Antwerp, Koninklijk Museum voor Schone Kunsten

urged the reading on two tablets of the law two cautionary passages from the Bible directed against biased and corrupt judges.97 The addressees of these threatening warnings were the men of the palace; on the populace in the public square fear was instilled by other ways and with other means. 97

The painting by Jordaens is housed in the Koninklijk Museum voor Schone Kunst in Antwerp. It is reproduced in the frontispiece of W. Pleister and W. Schild, eds., Recht und Gerechtigkeit.

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Miracles and Salvation Just what those means of instilling fear might have been we certainly cannot ask of these images. The most appropriate response might come from persons who experienced that sensation at the time: for example, Mengo di Ugolino, tried in Bologna in December 1299, suspected of theft. He was interrogated by Alberto Gandino (or di Gandino) in the privacy of his chambers, a judge by profession known throughout north-central Italy as “knowledgeable and discrete” (“sapiens et discretus”). At the trial, which commenced on 5 December, Mengo denied every charge; but on the 7th of the month he was put to the torture and confessed everything. He named many accomplices. Among others, he revealed that a certain Pecciolo, who resided with him in the parish of San Leonardo, stole geese and hens for the communal meals of the circle of thieves. On 14 December Mengo was condemned to the gallows and hung.1 His was only one of the many cases tried before that judge, which included rioting students, domestic violence, games of chance and especially robbery. The judge’s participation in the case commenced with the initial suspicion, no formal accusations were required. In the judicial work, both theoretical and practical, of di Gandino not only in Bologna but also in Lucca, Perugia, Siena, Fermo and Florence we have the model of the new penal justice, allied to the intellectual developments of Scholasticism and to the requirements of civic authorities committed to guaranteeing the peace and security of a rapidly developing society. The various forms of justice had for some time followed the new method of “inquisitio” which had received a precise institutional form and a powerful impulse from the Church. In the cities criminal suspects were now officially prosecuted by a person expert in the law, who did not have to wait for an accusation to be lodged by the offended party before proceeding but had the responsibility of guaranteeing public safety by keeping a watchful eye out and imposing punishment: this was a duty he carried out secretly, ­without litigants or curiosity seekers, without clamor (“sine strepitu).” His investigation, based on evidence and the testi­mony of witnesses, culminated in the “quaestio,” which the Digest had solemnly defined as synonymous with torture and physical suffering for the sake of discovering the truth (‘tormenta et 1 Hermann U. Kantorowicz, Albertus Gandinus und das Strafrecht der Scholastik. I. Die Praxis. Ausgewählte Straffprozessakten des dreizehnten Jahrhunderts nebst diplomatisher Einleitung (Berlin: J. Guttentag, 1907), pp. 203-218.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_007

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corporis dolorem ad eruendam veritatem”):2 thus, not a simple interrogation, but an inquest that could avail itself of the pain of torture. This was considered an essential method to attain the prize most desired by the judge, one that Pilate had been able to obtain: truth. The truth of the inquisitorial system was “absolute or substantial, and consequently unique”3—as opposed to the disputed and fragmentary evidence obtained in the accusatory process, in the confrontation between the different versions of the facts offered by the prosecution and the defense. The culture of a Christianity convinced of its truth to the exclusion of any other and the image of the divine judge, scrutinizer of hearts, gave a formidable impulse to the launching of a system which was to leave its mark on later centuries. A new theory of justice had begun and Alberto di Gandino contributed to defining and spreading such provisions as secrecy, torture and the confession of the defendant as a witness against himself.4 Inquisition: the term is better known from the aspect of the prosecution of the crime of heresy by the Catholic Church than that of lay justice. Even the first pictorial representations of torture emerge from the sphere of canon law. A nuanced miniature of Gratian’s Decretum provides a scene of a defendant receiving the customary “pull of the cord” in an ecclesiastical trial.5 In this case at least the facts are not in doubt: the religious basis and the ecclesiastical priority are undeniable and the decisive contribution of Pope Innocent III in institutionalizing the new state of affairs with the Roman canonical trial is equally certain. The secrecy of the procedure was related to something which was to have a long history: the distinction between sins (occult) and crimes and the birth of the intimate dimension of moral sin. At the origins we find the Gregorian reform of the clergy and the beginning of special 2 D.47.10.15. 41; cf. Roger Vigneron, “La douleur vue par les juriconsultes romains,” in Bernard Durand, Jean Poirier and Jean Pierre Royer, eds., La douleur et le droit (Paris: PUF, 1997), pp. 3145: 32. 3 Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale (Rome-Bari: Laterza, 1989), p. 626 (the cursive is in the original). 4 “Iudex in secreto recipiet dictum torti ad similitudinem testis” (“The judge will receive in secret the declarations of the defendant under torture considered as a witness”): Albertus Gandinus, Tractatus de maleficiis, critical edition by Hermann Kantorowicz, Albertus Gandinus und das Strafrecht der Scholastik (Berlin-Leipzig: De Gruyter, 1926), 2: 169. See the biographical sketch by Diego Quaglioni, “Gandini, Alberto,” Dizionario biografico degli italiani, 52: 147-152. 5 It refers to the text of the Decretum with the gloss by Bartolomeo da Brescia, housed in the Bibliothèque Municipale of Avignon (MS 659, fol. 189v). It is reproduced in R. Jacob, Images de la Justice, p. 144, fig. 17. On torture, after the fundamental work by Piero Fiorelli, La tortura giudiziaria nel diritto comune, 2 vols., (Milan: Giuffre,‘ 1953-1954), see now also John Langbein, Torture and the Law of Proof (Chicago: University of Chicago Press, 1976).

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Figure 61  The Inquisitor, miniature, from the Decretum Gratiani with a gloss by Bartolomeo da Brescia, 14th century. Avignon, Bibliothèque Municipale, MS. 659, fol. 189v

inquests on the part of ecclesiastical justice to ascertain and heal clerical transgressions by way of private penances: it was essential to protect the honor of the clergy and avoid the scandal of notoriety.6 It fell to the Dominicans to complete the work: they did it by bending even the traditional religious vocabulary to the requirements of the new system, with the result that the an6 See Winfried Trusen, “Der Inquisitionsprozess. Seine historische Grundlage und frühen Formen,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Kanonistische Abteilung 74 (1988): 168-230. That it was a matter, basically, of “avoiding scandal” is the opinion expressed in the important study of Jacques Chiffoleau, “‘Ecclesia de occultis non iudicat’? L’Église, le secret, l’occulte du XIIe au XVe siècle,” in Micrologus, 14, Le secret (Florence: Edizioni del Galluzzo, 2006), pp. 359-481: 371.

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cient word for divine pardon—grace—came to signify the offer of benevolent treatment for persons who spontaneously accused themselves and others.7 But the word “Inquisition” applied to a practice which concerned all those cases in which authorities, both ecclesiastical and secular, felt obliged to investigate and to punish. Although Innocent III was the inventor of the process, it was Frederick II who as king of Sicily immediately grasped its importance and made it become the fundamental expression of the new sacral character of the State.8 From that time on the progress of this new way to administer justice became identified with the advance of central authorities endowed with divine prerogatives and, as such, creators of laws, in fact incarnations of the law (“lex animata”). As we read in one of the manuals intended for the use of active magistrates, “Inquisition is properly an inquiry, investigation, and examination, conducted by the judge to discover the truth about crimes.”9 Inquisition thus became synonymous with the search for truth. Today in the formalized language of the law we speak of the prosecuting magistrate and of the obligation of penal action: in these earlier times the term “inquisitor” was used to identify the figure of the policeman-judge who was obliged to carry out precise investigations into every crime and strike down delinquents. That personage received the support of the people and the protection of authorities. It resulted in the rapid diffusion of the inquisitorial trial well beyond the sphere of the struggle against religious dissidence, as an efficacious instrument for imposing order and obedience to the law in cities ripped apart by factional strife (or political “cliques”) and frightened by the growth of the criminal element. The Inquisition, it was said, had first been practiced by God himself when he had interrogated Adam in the Garden of Eden; and the last to employ it would be Jesus Christ when he judged the dead and the living at the end of time. It was not by chance, then, that where problems of social control were confronted with these new instruments, civic governments gloried in the 7 Andrea Errera, “Il tempus gratiae, I domenicani e il processo inquisitoriale,” in Praedica­­tores, Inquisitores: I. The Dominicans and the Mediaeval Inquisition. Atti del 1o Seminario internazionale su Domenicani e Inquisizione, Roma, 23-25 febbraio 2002, ed. Wolfram Hoyer, OP (Rome: Institutum Historicum Fratrum Praedicatorum, 2004), pp. 655-680. 8 Ernst Kantorowicz, Kaiser Friedrich der Zweite (cited from the Italian edition: Federico II ­imperatore [Milan: Garzanti, 2000], p. 222). The entire chap. 5 is pertinent. 9 Lorenzo Priori, Venetian, Prattica criminale secondo il rito delle leggi della Serenissima Republica di Venetia (Venice: Antonio Pinelli, 1622), p. 11. A useful survey by Ettore Dezza is dedicated to the diffusion of the inquisitorial model in the legislation of the states of the early modern era: “‘Pour pourvoir au bien de notre justice.’ Legislazioni statali, processo penale e modulo inquisitorio nell’Europa del XVI secolo,” in Diritto e storia, no. 3 (May 2004).

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reflection of the symbolic images of divine justice. “We must paint in the place where Elders and consuls gather in the palace of government the image of Our Lord Jesus Christ and of the Blessed Virgin Mary his mother, with the aspect and pose of those who must judge the world”: this is what was decided in Bologna in the days of Gandino.10 It was a reassuring and protective image, and the government shielded itself behind it to achieve consensus. The laws aimed against thieves and evildoers, which excluded from the community various disruptive elements, from Jews to lepers from witches to heretics, were presented with the aura of religious certainty, guaranteed by the punishments that the Divine Judge would fulminate at the end of individual life and of humanity in its entirety. For the others, for fully fledged members of Christian society, religion had a different outcome in reserve, that of powerful intercessors entrusted to guarantee from the heavens above protection and help. But, just as terrestrial kings and judges were watched over by the supreme Adjudicator, similarly on that complex collection of mediators and patrons the undisputed sovereignty of a feminine figure was asserting itself: a celestial Mother, provident and gentle. It was her faithful who sang under the windows of prisons and before gallows invocations such as this one: Mercy oh highest God supreme Oh sweetest Lord clement and pious Mercy oh highest eternal God Oh highest queen with crown of stars11 Mercy and grace: “That whoso crave grace, nor to thee repair, Their longing even without wing seeketh flight” (Paradiso XXXIII: 13-15; the Viking Portable Library). And the favors being beseeched were many: from the forgiveness of sins for life in the hereafter to the interventions in the sorrows and dangers of earthly life, including those provoked by the violence of the courts. The pictorial representations dominated by the figure of the Madonna had long circulated even outside those places chosen for religious rites where the 10

11

“Debet facere pingere in loco, ubi antiani et consules congregantur in palatio primiceriorum, conspectum Domini nostri Jhesu Christi et beate virginis Marie, matris eius, eo modo et forma, qualiter debet iudicare mundum” (H. Kantorowicz, Albertus Gandinus, 1: 369). Text taken from the laude of the Bolognese Confraternity of Santa Maria della Morte (Alfredo Troiano, Il Laudario di Santa Maria della Morte. Il MS. 1069 della Yale Beinecke Library (Pisa: Edizioni della Normale, 2010), lauda xlvii, pp. 281-283. Troiano is the editor of the “Manuale quattrocentesco della Conforteria di Bologna,” in A. Prosperi, ed., Misericordie. Conversioni sotto il patibolo tra Medioevo ed età moderna, pp. 347-479.

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afflictions and fears of daily life provoked the search for signs of restoration and of hope. The presence of Mary beside Christ the judge signified a promise of mercy as a mitigator of justice. How much that promise met expectations and desires we can deduce also from commercial transactions, such as one involving Jean de Montagnac who purchased a painting of the Last Judgment which the artist Enguerrand Quarton executed at Avignon in 1453. With the Late Middle Ages the progress of the theme of Purgatory in devotions and images led to the growing triumph of the figure of the Madonna as merciful mother who intercedes for suffering souls. Before this decisive turning point toward an ultraterrestrial projection of maternal mercy we should take note of words and episodes different in tone, which demonstrate the way in which specific and concrete intercessions were awaited from the heavenly mediators, sufficient to guarantee forgiveness and the sparing of lives even for delinquents as long as they were repentant. Among the stories of miracles one stands out, that of the hanged man supernaturally saved by the intervention of heavenly powers, Jesus and the saints but especially the Madonna. Thieves were favored protagonists because of the special place that theft had in the laws and work of judges. They might be truly larcenous or honest pilgrims accused of stealing by dishonest innkeepers—and in such cases it was up to the saint protector of pilgrimages, especially to San Giacomo of Compostella, to save the accused and establish the truth. But salvation was guaranteed even to actual thieves: to one of them, tradition gave the name of Ebbone.12 Here is the story told by preachers and illustrated in miniatures and in polyptychs: the thief, condemned to death, is led to the gallows and hanged. But he does not die: the Madonna, mother of mercy, holds him up and prevents the rope from strangling him. “The Virgin came to his rescue and held him erect with her own hands for three whole days,” recounted the 13th century Jacopo da Varazze’s Legenda aurea.13 Many times revived and adapted for preachers’ “exempla,” the account always continued to highlight the Madonna’s function as savior, capable in her mercy of rescuing a hanged person from death. But with the passing of time the story was modified on a fundamental point: the thief, pious but guilty, was replaced by a woman, she too de12

13

Important also for its iconographic apparatus, see Baudouin de Gaiffier, “Un thème hagiographique: le pendu miraculeusement sauvé,” in Revue belge d’archéologie et d’histoire de l’art 13 (1943): 123-148, reprinted in Idem, Études critiques d’hagiographie et d’iconologie (Brussels: Société des Bollandistes, 1967), pp. 194-232: 196. Nicola da Tolentino is numbered among the saints popular for this type of miracle: two works reproduced here show him holding up the hanged men with his own hands. Cited from the Italian translation by Alessandro and Lucetta Vitale Brovarone (Iacopo da Varazze, Legenda aurea [Turin: Einaudi, 1995], chap. 131, p. 733).

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Figure 62 Enguerrand Quarton, the Trinity crowning the Virgin, oil on a panel, detail from the polyptych of the Crowning of the Virgin. Villeneuve-lès-Avignon, Musée de l’Hospice

vout but innocent and wrongfully condemned. The tale of the hanged woman saved by the Madonna was printed in France in 1589: here judges were urged not only to be scrupulous in the evaluation of the evidence but also to apply the full rigor of the law: “they must be careful not to condemn a criminal to death lightly,… they must listen carefully to witnesses if they want to have a clean conscience so that they not condemn anyone without proof.”14 The Madonna was asked only to intervene to correct judicial errors. It was a sign that criminal justice no longer tolerated the miraculous interventions of heavenly powers capable of annulling decrees and granting reprieves to the guilty. And that sign should be looked at carefully for what it could tell about the changes in the promises and hopes which swirled about in the sphere of crime and punishment. The actual triumph of the Madonna in the iconography of justice rivaled that of the crucified Christ and harmonized pedagogies from on high and visions from below, those proposed by ecclesiastical and temporal authorities 14

Roger Chartier, La rappresentazione del sociale. Saggi di storia culturale (Turin: Bollati Boringhieri, 1989), chap. 6, “Gli usi del miracolo,” pp. 126-167: 134 (the Italian translation).

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Figure 63 The Madonna, graffiti from the Inquisitorial prison of the Steri, Palermo, 17th century

and those that cropped up in the minds of prisoners and the condemned. We find the triumph of the Madonna painted in the solemn images of the divine judgment, in the images that preachers and the confraternities placed in the hands of the condemned and even in the art which anonymous captives in the secret dungeons of the Inquisition scratched on the walls of their cells.15 The Madonna was beseeched to free supplicants from punishment, terrestrial punishments but also those that threatened souls in the hereafter. The success of her popularity had deep roots such as might be possessed by a suffering and infinitely merciful maternity. It was also essential for religious propaganda to appeal to her to complement (and correct) the terrifying aspects of 15

For the plates, see Samuel Y. Edgerton, Jr., Pictures and Punishment. Art and Criminal Persecution during the Florentine Renaissance (Ithaca: Cornell University Press, 1985), p. 168. In one of the images from the Steri prison in Palermo the Madonna is the addressee of a long invocation scratched on a wall by a prisoner (see fig. 63).

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Figure 64 Christ condemned, graffiti from the Inquisitorial prison of the Steri, Palermo, 17th century

God’s judgment summoned by earthly powers to bolster their cause. While the popular tales circulated by preachers promised miracles and gave prominence to the merciful intercession of the Madonna, the images of justice where it was administered exuded a solemn and terrifying message: exalting the function of the divine Judge, sole possessor of the power to condemn and absolve, they demonstrated that heavenly Justice was allied to and the guarantor of earthly justice and that after the judgment of the human tribunal there was still one more to confront regarding which one could only hope in the mercy of

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God who had died on the cross. In this journey toward the divine legitimation of power temporal sovereigns had in the papacy a model and a rival well beyond reach: the Last Judgment painted by Michelangelo for Pope Paul III on a wall of the papal palace in the Vatican represented the heights attained by the self-exaltation of the supreme ecclesiastical authority. And that this grand scenario should be reserved solely for the eyes of power suggests what the intended audience for such representations was indeed meant to be. This does not negate the impact of the propaganda which might radiate to the point of reaching the most remote of the faithful: the obscure painter who a few years later would reproduce the model in the small church of Fiumalbo in the Modenese Appennines was the forerunner of a trend which from then on was crisis free. The proliferation of images in the churches of that future judgment sufficed to recall the masses to the obedience of ecclesiastical authority which claimed a supreme mandate to anticipate and modify here on earth the sentences of the divine tribunal. It was from the Church itself that meanwhile there originated a speculative and complementary message in respect to the gesture of condemnation of the “Ite maledicti” (“Go cursed ones”) of Christ the judge painted by Michelangelo: another Christ, wounded and suffering, victim of an unjust and cruel tribunal, came out to meet the people through an endless series of private and collective experiences, the fruit of assiduous mediation and intensive propaganda by preachers and confessors. A multitude of devotions, old and new, imposed Christ’s image as that of a lifelong companion constantly present in everyday thoughts and acts, especially in the dark hours of sickness and death but also in such commonplace experiences as entrusting ourselves to sleep as a general token of death: the “man of sorrows” and the sorrows of men met in the “Via Crucis,” seen on the walls of churches and relived among the painted statues of the Sacred Mount, recited in the Good Friday processions and in the prayers of the Rosary. It was here that the meditations and religious experiences converged which had come to maturity in Italy during the most acute crisis experienced by the medieval ecclesiastical establishment. The circles of Italian evangelism, in which women were a prominent presence, with their restless oscillation between doctrinal dissent and mysticism of the Redemption, brought to it their own faith in the exclusive “benefit” of Christ crucified. The new religious orders which reestablished the presence of the Catholic Church in society did so by translating into practices and thoughts accessible to all, those sentiments which had animated the creative and organizational impulse of their founders. Thus we encounter precisely in the tradition of the Society of Jesus founded by Ignatius of Loyola the extraordinary image of the blindfolded Christ in “the mocking of the praetorium”

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painted by the Jesuit Giuseppe Valeriano on a column of the Chiesa del Gesu‘ in Rome. In the Catholic world the blindfold of the original injustice did not transfer its symbolic significance to the work of the tribunals, either as satire or as prideful affirmation of impartiality. It remained one of the attributes of the merciful power to remit sins upon which the papacy would base its strategy to affirm itself after the Protestant Reformation and the new hegemony of the European monarchies had quenched the reality—if not the ambition—of direct ecclesiastical authority over “temporal” things. On another level and with other forms there now played out the phenomena of the public representations of papal power, entrusted to a symbolism overflowing with celebratory allusions and images intended to make the names of dynasties without a history familiar, some as brief as the duration of a single papal reign. They were games of invention in which the courtly exaltation of pontifical glories could be joined to menacing messages: experts in public communication –painters, engravers, literati—found employment in the production of images and in the dissemination of chivalrous eulogies. And it was especially the artifacts intended for broad diffusion, such as coins and medals, or for solemn occasions of public exhibition such as the triumphal arches erected for victorious “entrances” which became a form of communication intended to underline that justice was always subordinate to power, a servant ready to crown it as Albrecht Dürer had shown in the grandiose expressions of the triumph of Maximilian I. The imitation of classical styles in the symbolic representations which filled the production of celebratory images with pagan divinities and Roman emperors was a customary practice, tried out by “The Arts of Power” even for new dynasties and the unstable rulers of the minor Italian States.16 In Giorgio Vasari’s Giustizia Farnese a scholar recently has seen “a reaffirmation of papal power in the face of a Europe threatened by heresy, by the Turks and by internal instability.”17 The arrival on the papal throne of a Dominican who attained this pinnacle through the exercise of his duties as inquisitor saw the return of the terrifying image of the Last Judgment, with “St. Michael separating the good from the 16 “The Arts of Power” have been discussed in connection to the Sala dei Nove (Hall of the Nine) in Siena, to the Camera del Mantegna in Mantua and to the Sala Grande (Great Hall) of the Palazzo Vecchio (see R. Starn and L. Partridge, The Arts of Power). 17 Irene Fosi, La giustizia del papa. Sudditi e tribunali nello Stato pontificio in età moderna (Rome-Bari: Laterza, 2007), p. 209. On the image of Justice painted by Vasari in 1546 as a commission for Cardinal Farnese, see Alessandro Del Vita, ed., Il libro delle ricordanze di Giorgio Vasari (Rome: R. Istituto d’Archeologia e storia dell’arte, 1938), pp. 54-55.

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Figure 65 Albrecht Dürer, Triumph of Maximilian I, pen and ink drawing, 1518. Vienna, Albertina, Graphische Sammlung. Foto AKG Images/Photoservice Electa, Milan

bad” and for greater emphasis of the exaltation of “the martyrdom or death of St. Peter Martyr,” the Dominican killed in the exercise of his functions as judge of heretical pravity.18 The language of force prevailed over all others. Without needing to refer to the figures on executions—it is no accident that precisely in that century the stark numbers of judicial killings began to circulate widely – the images spread by public authorities indicate a clear inclination toward threatening tones and displays of vlolence. The sovereign of the modern State could thus assume the mythological characteristics of the forceful hero: this was the case with the Gallic Hercules, namely Henry IV, shown with a club and lion’s skin. Or he might appropriate the attributes of the lion as was done by Pope Sixtus V (Peretti), who to make himself recognizable had a branch of pears placed between the paws of a wild animal. The symbols of sovereign power adopted by Henry III of France were the judicial scale and Jove’s thunderbolts.19 18

19

The entry recorded by Giorgio Vasari listing the panels painted for the Chiesa del Bosco of Alessandria as a commission for Pius V is dated 10 July 1569 (Il libro delle ricordanze di Giorgio Vasari, pp. 99-100). Thus according to the medal (Cabinet des Estampes in the Bibliothèque Nationale, Paris), reproduced in O. Catanorchi, D. Pirillo, eds., Sogni, favole, storie. Seminario su Giordano

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Figure 66 Giorgio Vasari, allegory with Justice, Truth and Vices, oil on canvas, 1543. Naples, Museo Nazionale di Capodimonte. Foto Luciano Pedicini, 1999/Archivi Alinari, Florence, by permission of the Ministero per I Beni e le Attività Culturali

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Sixtus V’s harsh anti-feudal campaign was recorded in the efficacious and far-reaching symbolic language of medals and coins, with an image that showed a scale resting on a sword.20 In the medals of Pope Urban VIII, who provided a strong impetus to this form of propaganda, the image of a seated feminine figure appeared with a sword pointed downward and a scale held suspended in the air.21 However, contrary to Robert Bellarmine’s attempt to reduce papal authority over temporal matters to a “potestas indirecta,” an indirect power, the papacy of the late 16th and early 17th centuries did not hesitate to promote, even in images, a totalitarian concept (it was Paolo Sarpi who spoke of “totatus”) founded on the symbol of the sacred “double-edged sword in the midst of the divinity of the spiritual and temporal authority, resplendent as the brightest sun, a weapon sent to the popes from the highest heavens.”22 Substantial arguments existed to support that claim in the concrete functioning of the tribunals. The execution of Count Pepoli in Bologna was the episode which shook to the core the life of impunity of the noble houses, both great and small, and of the brigands who took protection behind them.23 Moreover, in addition to the authority exercised by the pope as temporal sovereign over the States of the Church, ecclesiastical power over human lives outside those confines assumed the form of the tribunal of the Inquisition. It is true that an ancient interdiction prohibited priestly hands from contaminating themselves with human blood: and a canonistic tradition founded on the distinction between the sun of the spiritual power and the moon of the temporal placed on the latter the obligation to strike down rebels and spill blood, in order to cast over earthly shadows the reflected light of divine justice.24 But the separation of duties between the ecclesiastical sentence of excommunication and the carrying out of the death sentence by the “secular arm” did not prevent the condemned person from believing that the two parts appeared united as in fact they were. Nor could anyone avoid thinking that the human life dear to the Hebrew God who did not wish the death of the sinner (according to 20 21 22 23 24

Bruno (Pisa: Edizioni della Normale, 2007), p. 724, note 13. I. Fosi, La giustizia del papa, p. 212. The medal was struck by Giacomo Antonio Moro in 1624. I owe this information to the courtesy of Lucia Simonato taken from her work on the medals of Urban VIII. Traiano Boccalini, Pietra del paragone politico (1615), cited by I. Fosi, La giustizia del papa, p. 214. On the episode and its context, see Andrea Gardi, Lo Stato in provincia (Bologna: Istituto per la storia di Bologna, 1994), pp. 250-252. The image belongs to the Cardinal Hostiensis (Enrico di Susa): see P. Bellini, Respublica sub Deo, pp. 108-109.

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Figure 67 Medal of the reign of Henry III, 1580-1587

Figure 68 Medal of Giacomo Antonio Moro for Pope Urban VIII, Justice, 1624, verso. Munich, Staatliche Münzsamm­ lung. Gracious permission of Dr. Lucia Simonato

Ezechiel 18:32, a passage always evoked in the rites of consolation and preparation for death) in Christian interpretation had come to signify another type of life, the one after death. Nevertheless, it is a fact that in the sphere of the ecclesiastical purview of judging and of remitting guilt iconographic research and the didactic function of images experienced their greatest expansion. And here the official program of the judges and the experience of the judged met in the supreme symbol of offended justice and mercy: the cross. That symbol could assume the aspect of a final resolution between the two sides when the condemned accepted the punishment, repentant and reconciled with those

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who condemned them. But it also could become the mark of hatred, as in the case of Portuguese Marranos, descendants of Jews who had been forcibly baptized, and condemned under the suspicion that they had relapsed to Judaism. In such cases the cross assumed a significance of pitiless condemnation, in fact, of vendetta. In the auto de fe celebrated in the Plaza Mayor in Madrid on 4 July 1632 two crosses dominated the rite: one, called “the green Cross,” was carried in procession as far as the square where it remained covered by a black veil the entire time of the ceremony; the other, “the white cross,” was placed by the Confraternity of St. Peter Martyr on the spot where the condemned were burned at the stake, the gate of Alcalà. The five executed Portuguese Marrani had been convicted of conspiring to flog a wooden crucifix. The emotions and hate of the bystanders had reached a climax when it was related that the afflicted Christ had asked them: “Why do you beat me”? The initial scene in the history of Christian animosity toward Jews was being repeated, that of the mocking of the blindfolded Christ; and the entire apparatus of that dramatic theater of the faith, dominated by the symbols of the monarchy and the political and religious organization of the Spanish Empire, but especially by the cross of the Inquisition, was constructed along rigorous lines and with precise didactic objectives. As we learn from contemporary evidence, the bystanders recognized in this the familiar image of that remedial Justice which at the end of the world would settle accounts with all those who had offended Christ: the Last Judgment.25 Scenes of this sort occurred frequently on the Iberian peninsula, they were much rarer in territories under the jurisdiction of the Roman Holy Office: however, the symbol of the cross adopted by the brotherhood of Crocesignati, whose purpose was to assist that tribunal, were generally encountered in Inquisitorial rites The Roman Congregation of the Holy Office did not spurn, when needed, the use of an older symbol which had nothing Christian about it: the Roman fasces and hatchet, to suggest the fullness of its power over life and death and the severity of its procedures.26 Meanwhile ecclesiastical judges urged persons confronting the weight of the law to contemplate the fate of their souls and to renounce the hope of salvation in their earthly existence with its suffering and its entanglements. The thought of unconfessed sins had to be the most

25 26

See Juan Ignacio Pulido Serrano, Injurias a Cristo. Religiòn, politica y antijudaísmo en el siglo XVII (Alcalá de Henares: Universidad de Alcalá, 2002), pp. 206-216. So one reads in the printed edition of the sentence in the trial “Sara Marini contro parenti,” Rome 1770 (the copy here cited is housed in the Biblioteca Corsiniana, Rome).

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Figure 69    Vexillum Inquisitionis Hispanae, emblem of the Inquisition with the symbols of mercy (olive branch) and justice

pressing preoccupation for anyone who saw himself reflected in the fate of souls summoned to the Final Judgment. If these were the images produced for purposes of educating and governing the populace, we can ask ourselves what was the point of view not of the judges but of the judged. What did that person see and how did he or she perceive him or her self while being tried and inexorably proceeding toward eventual condemnation? The voices of those sentenced to die generally have come down to us only indirectly, distorted and conveyed in the words of bystanders, participants or spectators of the penal machine. Some of the victims managed to pass on final messages to their families, others died in silence, seemingly accepting the official stance which the judicial authority conferred to the ritual. But there were also persons, such as the refined protonotary Pietro Carnesecchi, who, while wearing the penitential garment of the heretic, as he was

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Figure 70 Justice with the scale, fasces and Roman axe, typographical mark of the Roman Inquisition, detail from the title-page of the sentence in the trial of Sara Marini, Rome 1770. From the Sacra Congregatione Sancti Officii coram Sanctissimo Romana pro Sara Marini, ac Universitate Hebraeorum Urbis, et litis et c. contra DD. Philippum Orozonti, ac Sabatum Segni, et litis et c., Rome 1770

being led to the stake “began to banter with his escort, ‘With this beautiful embroidery we’ll have a masquerade ball.’”27 The limits to knowing the true sentiments of the condemned are insuperable. We can only look from afar on that scene of bedlam, where an elaborate ritual aimed to reenact unwaveringly the original scene, that of Jesus as the condemned Just One, assigning to the actual condemned person, if he accepted it, the role of the good thief. The dramatization of scenes from the Passion, as the supreme moment in a lesson of human faults and divine pardon, was a relatively late happening: it 27

Testimony of Vincenzo Parpaglia, in a letter dated 23 September 1567: see Massimo Firpo and Dario Marcatto, I processi inquisitoriali di Pietro Carnesecchi (1557-1567) (Rome: Archivio Segreto Vaticano, 2002), 2, pt. 2, p. cxliv

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began developing against a background of the liturgies of power and mercy elaborated in the cities beginning in the 14th century. Up to that time the prospect of pardon and salvation preserved a collective character: it was western Christianity representing the entire human species that reclaimed the saving inheritance of that blood. The theological reasons were expounded by St. Anselm (Cur Deus homo) and the legal arguments in its favor occupied Bartolo da Sassoferrato in his “Trial of Satan against human kind.”28 For the person condemned for actual sins or for having become estranged from the model of Jesus, there were two figures recalled in the Biblical narrative which might seem to mirror his or her condition. On the one hand we have Barabbas, the pardoned rebel, on the other the repentant thief. In reality there were no others like Barabbas: too much opprobrium was attached to the name of the man whom the Jews had preferred to Jesus. The message of submission to authority, firmly preached by Paul of Tarsus in the emerging Christian Church, had affixed itself to the model of the mildness of the Messiah whose kingdom was not of this world. But even in the heart of Christianity something not too removed from that human type had survived, namely the person persecuted by power who risked liberty and life for love of justice. His person was in some way evoked by one of the gospel verses: “Blessed are those who are persecuted for righteousness’ sake, for theirs is the kingdom of heaven” (MT. 5:10). The Christian tradition recognized a lofty example of this possibility in a figure from the classical world, Socrates, who had been made famous by the writings of Cicero even before Plato’s work became accessible. Already in the 12th century Julien de Vézelay dedicated one of his sermons to explain, using Socrates as an example, what a great act of mercy it was to visit in prison the victims of tyranny, those who endured persecution for the sake of justice (“pro iustitia”).29 It was a courageous and difficult course; the exaltation of the persecuted had to lead to an uncertain outcome for a religion which claimed to be obedient and peace loving: and not so much because of the theoretical development of doctrines but rather for the reappearance of the problem of justice and persecution in the political and social order. The panorama of European political strife became more complicated, theologians increasingly were obliged to take a position on the legitimacy of resisting the tyrant by rebellion and even assassination. A case in point is the episode of the killing in 1407 of Louis, Duke of Orléans, at the order of the Duke of Burgundy, Jean Sans Peur, 28 29

For the figurative developments, see W. Schild, “Gott als Richter,” pp. 55-57. Julien de Vézelay, Sermons, ed. Damien Vorreaux (Paris: Éditions du Cerf, 1972) (Sources chrétiennes, 192), sermon 16, De la perfection du juste, pp. 338-340. Cicero’s De senectute is cited here.

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“John the Fearless,” as the wars between Burgundians and Armagnacs got under way, with the parallel development of the debate over the question of the right to assassinate a tyrant. This became a prominent feature in sermons and theological writings. The issue turned up in the deliberations of the Council of Constance, where the autonomy of politics received early, important recognition.30 Meanwhile the rebirth of antiquity made current the heroic model of tyrannicide as civic virtue; although Erasmus of Rotterdam hailed in Socrates the merit of having accepted his condemnation and made him a Christian saint, “Saint Socrates, pray for us” (“Sancte Socrates, ora pro nobis”), very different and disturbing thoughts were aroused by the models of Bruto and Cassius. The evolution of the images of justice turned not to the civic virtues but to the moral ones of Christianity and to the salvation of the soul. The correct model was not Barabbas but the repentant thief. Prisons were populated primarily by robbers and assassins, people who had ended up there through their own doing. Should they also be visited? Julien de Vézelay responded that this was precisely the “christianissimum opus,” the most perfect duty of Christians. These were the persons it was necessary to visit and console so that depression and despair did not fill their souls. To them it was necessary to say that their earthly condemnation would cancel their sins because God does not condemn twice for the same offence (Job 33:14).31 This was the real revolution brought about by Christianity. And the chosen instrument of persuasion, the true symbol of justice was the cross. The model which spread widely was the one worked out in the monasteries to comfort the dying: recitation of litanies, the chanting of the Psalms and especially the exhibition of images of the Passion of Christ--principally the crucifix. The model of Christian death developed in the Cluniac abbeys in the 11th century which quickly spread beyond the confines of the monastic world found in the cross an indispensable accompaniment and obligatory image, suitable for speaking also to lay people, even to those hopelessly illiterate.32 All Christians—but especially those incarcerated 30

31 32

See Friedrich Schönstedt, Der Tyrannenmord im Spätmittelalter. Studien zur Geschichte des Tyrannenbegriffs und der Tyrannenmordtheorie (Berlin: Junker & Dünnhaupt, 1938). Peter von Moos has paid renewed attention to the question of the relationship between the rights of the secular state and of the ecclesiastical community, “Public et privé au cours de l’histoire et chez les historiens,” in Idem, Entre histoire et littérature. Communication et culture au Moyen Ăge, pp. 437-469. Julien de Vézelay, Sermons. On this question, see the efficacious and richly informed study by Klaus Schreiner, “Fetisch oder Heilszeichen? Kreuzsymbolik und Passionsfrömmigkeit im Angesichts des Todes,” Zeitschrift für historische Forschung 27 (1993): 417-461. I should like to thank Adelisa Malena for the reference.

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for theft and other crimes—could immediately place themselves in contact with the Christ of the cross not by taking him as a model, something unattainable, but as the interlocutor of a dialogue for which the gospel narrative offered the backdrop. The biblical personage in question was the good thief. His name was Dysmas, as we read in the Gospel of Nicodemus: and from the Gospel of Luke we learn that, when the other thief wronged Jesus, Dysmas reproached him, saying “‘And we indeed [are condemned] justly; for we are receiving the due reward of our deeds; but this man has done nothing wrong.’ And he said, ‘Jesus, remember me when you come in your kingly power.’ And He said to him, ‘Truly, I say to you, today you will be with me in paradise.’”33 An elaborate construction gradually came to be built on this brief passage, one that a reactionary Catholic thinker of the early 19th century nostalgically summed up as: “Every guilty person can be innocent and even saintly the day of his execution.34 The romantic fascination with an imaginary Middle Ages consisting of an organic alliance between throne and altar led to the idea of the death penalty as a religious sacrifice (in the same vein Joseph de Maistre wrote: “The scaffold is an altar which only authority can erect and take down”). Quite differently agitated and conflictual was the scene of the relations between the ecclesiastical world and political authority, theological thought and secular jurists, to say nothing of the longing for justice which from the depth of offended consciences was raised even then to the heavens. Among the recurring problems discussed by theologians were some indicative of the distance which separated conscience and the law, the viewpoints of Church and State. For example: could the prisoner who had been sentenced to death try to flee without committing a sin? St. Thomas Aquinas replied: human life is such a precious gift that even the guilty criminal can escape from prison (if he is able). And the indigent person who is starving can steal what he needs: his theft will not be reckoned a sin.35 Moral doctrine persisted in this opinion in the long tradition of case studies of conscience: a 17th-century Jesuit told of a man condemned to death, who during the night preceding the scheduled execution, while feigning to be asleep kept looking toward the door of his cell. 33

34 35

Luke 23:41-43. In the Apocrypha we find the names of the two thieves, Dysmas and Gesta, in the Gospel of Nicodemus, 9: 5; Titus and Dumacus in the Arab Syriac Gospel of the Infancy, 23: 1 (see I Vangeli apocrifi, ed. Marcello Craveri [Turin: Einaudi, 1969]. I cite from the 2005 ed., pp. 127, 313-314 and note). Joseph de Maistre, Soirées de Saint Petersbourg, tenth colloquy. I have used the Italian translation, Le serate di San Pietroburgo (Milan: Rusconi, 1971), p. 528. Thomas Aquinas, Secunda Secundae, quaestio 6, art. 4.

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Asked, “why are you doing this,” he replied sincerely: “I’m looking to see if I can escape.”36 Against those who held that this was “a diabolical temptation,” the Jesuit retorted that it was permissible to even give aid to the condemned so that they could avoid being killed. Thus, the resistance of religion to political authority became deeply rooted, opening spheres of liberty in Christian culture.37 The confrontation between religion and the courts only rarely took the form of rebellion and protest: what transpired instead was often the transformation of the abhorred, damned and guilty offender into a saint. This was the work to which such notable figures in medieval Christianity as St. Catherine of Siena dedicated themselves; and the collective human energies gathered in confraternities enjoyed the decisive support of political and religious authorities. Popular devotions, such as the cult of the “saintly souls of the executed,” developed around this phenomenon. The official sanction for these endeavors came from the papacy which rewarded the Roman Confraternity of St. John of the Florentines, granting it the privilege each year of setting a condemned person free and raising it to the rank of archconfraternity, thereby putting it ahead of all the other associations of this type scattered throughout the Catholic world. At the end of this process we encounter in the 18th century the establishment of a ”Pious union,” named after St. Dysmas, for the souls of the executed.38 It was a different way of looking at things: it did not alter essentially the harsh punishments laid down by a justice obliged by its very nature to terrorize the crowd of onlookers who might be potential thieves, assassins or rebels by the tortures it inflicted on the bodies of the condemned. But it changed the way of viewing the work of human justice and those who were responsible for its application. The sword or the gallows which took away life became the means for bestowing the salvation of the soul; the gallows became the “holy place of justice” (St. Catherine of Siena). And the figure of the executioner, a person at the apex of the medieval scale of infamous occupations, was at the center of a profound transformation. Germanic culture had clothed him in a religious aura and had turned him into a sacred but execrable being, separated from 36 37

38

Thus, according to P. Giacinto Manara, Notti malinconiche (Bologna: Gio. Battista Ferroni, 1668), pp. 208-213. Something similar, even if on a different plane, emerges also from the fundamental work by Paolo Prodi, Una storia della giustizia. Dal pluralismo dei fori al moderno dualismo tra coscienza e diritto (Bologna: Il Mulino, 2000). On the cult of St. Dysmas (a popular saint who was never officially canonized), the basic work remains M.B. Merback, The Thief, the Cross and the Wheel, chap. 7: Dysmas and Gestas: Model and Anti-Model, pp. 218-265. The author has focused on Franciscans and Jesuits as the religious orders which promoted its diffusion.

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others by the taboo of death and consigned even physically to a different space.39 The Christian foundations of Mediterranean urban culture which now expressed itself in the work of the confraternities of justice permitted the hangman to evade the taboo which isolated him and transform him into the protagonist of a scene of pardon and mercy. In his case the new direction imposed on the concept of penal law by the Protestant Reformation brought a new vision: while in the Catholic world the sacramentalization of the scene of the gallows persisted and the search was on for the model of the “saintly executioner,” it fell to Luther to restore to the administrator of justice the status of a man assigned to carry out a work essential to all; and this helps to explain why German painting of the time found an important subject in the executioner. In the manner by which the suffering of the gallows became thus transfigured we are confronted by a two-faced Justice: on one side we have a harsh penal system which extracted confessions through torture and killed the condemned by means of terrible suffering; on the other we have the benign aspect by which that system found justification as the instrument of a divine Providence which had preordained everything so as to be able to save the soul of the condemned and bestow on it eternal life in exchange for the suffering of the gallows. The ambiguity of these two aspects had a raison d’être in the substantial changes to the concept and practice of power which can be perceived clearly as we progress from the 13th to the 14th centuries. According to the theologian Aegidius Colonna, who wrote his treatise on ecclesiastical authority in 1302 at the height of the conflict between Boniface VIII and Philip the Fair, the king of France, justice is the force that bestows to each his due: and since all human beings are subjects of God and of Christ, the possibility of their being justified rests on obedience to the representative on earth of that legitimate sovereign. If they are remiss in this duty, they lose all rights and must be stripped of them. Justice for Aegidius is simply a relationship of subordination and obedience toward whoever holds authority on earth through 39

On the sacral character of death sentences and on how they reflected on the figure of the executioner, see K. Von Amira, Die germanische Todesstrafen, p. 198: the public execution as “Kultakt,” a cultic act as well as legal practice, “Rechtsakt.” Reacting to the Nazi actualizations of Von Amira’s theses, the great German democratic jurist Gustav Radbruch examined the figure of the executioner in his still indispensable study of the Christian practice of bringing comfort to the condemned: “Ars moriendi. Scharf­richter-SeelsorgerArmensünder-Volk,” Schweizerische Zeitschrift für Strafrecht. Revue pénale Suisse 59 (1945): 460-495. These precedents are ignored by H. Klemettilä, Epitomes of Evil, certainly the most important work available to us today on the portrayal of the executioner in medieval culture, who bases himself on the suggestive pages of the execution as spectacle in J. Huizinga’s The Waning of the Middle Ages, and the French historiographical tradition.

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divine mandate. The common body of believers, the Church, is thus identified with the pope: “Papa potest dici Ecclesia;” and the grace bestowed by Christ becomes a gift controlled by papal authority, so that the sacraments are transformed into simple instruments in the hands of the legitimate power.40 Doctrines of this type were immediately and substantially reflected in symbolic projections and in the concrete forms assumed by the exercise of the prerogative to judge. But the effectiveness of that type of argumentation was not limited to the realm of papal authority: in those very years, in consonance and by emulation, the royal privilege of administering justice was in the process of appropriating similar doctrines and gaining recourse to analogous methods. In the monstrous trial against the Templars, Philip the Fair, turned to the conceptual instrument of heresy and of apostasy borrowed from the arsenal of the ecclesiastical Inquisition; and among the extremely cruel punishments Aegidius also inserted the prohibition against allowing those sentenced to die to receive the sacraments. Providing comfort to the condemned as a simple collaboration with divine mercy, which Julien de Vézelay had defined as the perfect work of Christians, thus had to yield to the requirements of a power which even appropriated the sacraments and prolonged its sway beyond the duration of human life and thus compromised the eternal salvation of the soul. This innovation had come about from the papacy’s venturing into the sphere of the persecution of heresy as the rejection of obedience: the sacraments of forgiveness and communion with Christ were prohibited to the condemned or granted only under specific conditions. Here we are limiting ourselves to recording the effects in the realm of symbols and of the instruments of justice and grace. Dominating among the symbolic images developed for the use of the ecclesiastical Inquisition was the cross: to its left was a sword, to its right an olive branch, indicating the alliance of justice and mercy.41 Distinguishing between salvation of the soul and punishment of the body, the Inquisition accepted certain set conditions, of which the most fundamental was the admission of guilt and the request to be pardoned, so that those condemned could receive the sacraments before being executed. To obtain the same concession in the lay tribunals was more difficult. This is the basic point: for those about to die who prepared to present themselves before the divine tribunal, confession was the precondition for the 40

41

See Alois Dempf, Sacrum Imperium. Geschichts-und Staats philosophie des Mittelalters und der politischen Renaissance (Munich: R. Oldenbourg Verlag, 1962), pp. 448-456. All of Dempf’s important work is basic for this question. Thus according to the engravings of Cornelis Martinus Vermeulen based on paintings by Pierre-Paul Sevin in Philip van Limborch, Historia Inquisitionis (Amsterdam, apud Henricum Wetstenium, 1692).

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Figure 71  Vexillum Inquisitionis Goanae, emblem of the Goa Inquisition with the symbols of mercy and justice and with the figure of the Dominican who watches over the Christian world

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saving of the soul. And this was the last rite of passage for that special type of doomed person who was condemned to be executed. Thieves and assassins were asked to confess their crimes. They were obliged to do so before earthly justice as well as before the special magistracy of the soul exercised by men of the cloth. Between confession as a judicial act and the sacrament of penance a connection was created that was not easy to untangle—not for the historians of today but for the protagonists of the time, involved in vindicating its use in their respective roles. To synthesize: the condemned person had to list his offenses, recognize himself to be guilty, seek forgiveness, offer his respect to the authority condemning him and thank him for the opportunity being offered of exchanging a brief and fragile earthly existence with divine life. But was this really being offered? Debated at length in many different ecclesiastical and secular venues was the question whether the condemned person could be admitted to the sacraments of confession and of communion. It was a common opinion that one should not even pray for the thief condemned to death by earthly justice because eternal damnation awaited his soul in the great beyond. This was discussed in the medieval Church Councils and the issue was talked about in connection with capital punishment until the end of the sixteenth century.42 While the opinions grew and with them the petitions to those in power and the relevant official documents, it was a common spectacle to see the executed on the scaffold after having been subjected not only to judicial torture but also to atrocious punishments of which the prohibition to partake of the sacraments was a component. The opinion that no one should be denied confession, not even those condemned to death, was shared by many, as is stated in the preamble of the Ordinance of the Parisian Parliament of 12 February 1396 dedicated to this question: by many but not by all. To have reached that solemn session, packed with men of great authority, had required intense pressure initiated by Pope Clement V and brought to successful culmination by the chancellor of the Sorbonne Jean Gerson. That ordinance enjoined legal officials to allow the administration of the sacraments to those who were scheduled to be executed; in fact, it ordered that they should be convinced and pressured to confess in case they were so aggrieved and depressed (“si esmeux ou suprins de tristece”) that they did not request it.43 But this did not bring an end to the question. The secret deposit of acquaintances that the condemned 42

43

See A. Prosperi, “Morire volentieri: condannati a morte e sacramenti,” in Idem, ed., Misericordie. Conversioni sotto il patibolo tra Medioevo ed età moderna (Pisa: Edizioni della Normale, 2007), pp. 3- 54. See Gustave Ducoudray, Les origines du Parlement de Paris et la justice aux XIIIe et XIVe siècles (Paris: Hachette, 1902), p. 908.

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person might possess was too valuable and it was too important to sanction the value of earthly damnation with eternal damnation. The cross as symbol and the sacraments as vehicles of pardon and grace thus played an important role even in the justice administered by authority of the monarch, where the application of the model which had been worked out by the ecclesiastical Inquisition proved to be more laborious, even if it ended up being recognized as useful. The stone cross erected by Pierre de Craon next to the gallows in Paris immediately after the victorious outcome of Gerson’s campaign was one of the first monuments that from that time on marked the boundaries of the course traveled by the condemned in their final passion. It was a “confessional cross” as these micro-structures in the penal system were called.44 It was reached at the conclusion of a route that took its inspiration from the “via Crucis” and which was presented as such to the condemned and to spectators. The association between the Passion of Christ and the execution of the criminal was suggested in every possible way. The result was a religious consecration of the suffering and the torture inflicted by the law: it is no accident that the engraving depicting the arsenal of pincers, chains and instruments of death on the frontispiece of the Penal Constitution of Bamberg in 1507 clearly relates to the panoply of painted or sculpted Passions around the crucifixes. And it is precisely in this engraving that we see the upper level of the place of execution represented as a Golgotha dominated by the image of Jesus on the cross. To the person condemned to die with the tortures aggravated by physical suffering, a crucifix had to be presented, as consolation, reminder and model. Whoever inscribed these images on the penal code of Bamberg obviously possessed a religious sensibility which projected on the Germanic tradition of capital execution, as offering to blood-thirsty gods, the Christian symbols and thoughts of the original Passion.45 44

45

The term was coined by Achim Timmermann, “The Poor Sinner’s Cross and the Pillory: Late Medieval Microarchitecture and Liturgies of Criminal Punishment,” Umêní 55 (2007): 362-373. In the Germanic world they are indicated with such terms as “crosses of poor sinners” (Armsünderkreuz) and “confessions before executions” (Beichtenmarter). Timmermann’s essay contributes a precise reconstruction of these monuments, reproducing those that have been preserved and a description of the route of the punishments in the city. A census of the historical images connected to the administration of capital punishment in German culture was attempted by Karl von Amira in the extensive appendix of his fundamental work (Die germanische Todesstrafen, pp. 236-415). On the symbolic juxtaposition of the executioner’s instruments to the implements of the Passion in medieval illuminated manuscripts, to which attention had been called by E. Mâle, L’art religieux de la

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Figure 72 The instruments of execution as Calvary, title-page from the Constitutio penalis Bambergensis, Mainz 1507

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Figure 73 The comforting of the condemned, woodcut from the Constitutio penalis Bambergensis, Mainz 1507

The Flemish jurist Joost de Damhouder, a counsellor of Charles V and of Philip II, paused over what, in his opinion, should precede capital punishment in one of the final chapters of his Praxis rerum criminalium, a slim but exhaustive treatise on crime and punishment, a work which enjoyed immense success, not only because of its character as a practical manual for judges but also because of its lively style.46 The illustrated scenes appearing in every chapter

46

fin du Moyen Ăge en France (1908) (Paris: Collin, 1995), pp. 103-105, see most recently Mitchell B. Merback, The Thief, the Cross and the Wheel, pp. 76, 97-99. Iodoci Damhouderii Brugensis, Praxis rerum criminalium (Aalen: Scientia Verlag, 1978), anastatic reprint which reproduces the edition published “sumptibus viduae et haeredum

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of the book conveyed to readers the substance of what was being argued in the lucid Latin of the text; this was, as we have seen, normal usage. It served to render immediately comprehensible and replicable for the administrators of penal justice the objects and practices described as obligatory in the collections of penal statutes and ordinances. Scholars intent on studying the origins of the punitive system generally go back to these images for descriptions of the flow of things in the daily reality of the time. But in these representations of the execution of capital sentences something more profound can be discerned, namely the single essential thought behind these acts of extreme vengeful violence: that of the death of Christ and the Christian forgiveness of sins. That thought inspired the more strictly religious practices in a Christian sense of those responsible for the salvation of the soul of the criminal. The image engraved in Damhouder’s book shows a cell where chained men, awaited outside by the jailers who will conduct them to their death, fall to their knees before the clergy who hear their confessions.47 The religious confession was meant to follow one that the condemned person had already made to the magistrate: and the very identity of the word makes evident the complications resulting from the connections between the two realities. To confess one’s guilt to the judge brought condemnation, while instead confessing it to the priest guaranteed forgiveness. And other problems arose from the diverse and conflicting aspects of the confession. What would happen if the condemned person during the sacrament of confession retracted what he had told the judge? Torture which according to criminal law and judicial practice was intended to compel the guilty to state the whole truth

47

Ioan. Belleri, Antverpiae 1601,” but uses the illustrations from the Antwerp: J. Beller, 1562 edition. In truth, the Praxis constitutes a notorious case of plagiarism on Damhouder’s part, since it represents basically a Latin translation and partial revision of an unpublished “brief instruction” by the celebrated Ghent jurist Philip Wielant (1441-1520). On Joos de (or Jost) Damhouder (Bruges 1507-Antwerp 1581) and his borrowings, see Robert Feenstra, “Damhouder, Jos de,” in Michael Stolleis, ed., Juristen: biographisches Lexicon; von der Antike bis zum 20. Jahrhundert (Munich: Beck, 2001), p. 159; and, especially, the essay by J. Monballyu in Lexicon zur Geschichte der Hexenverfolgung, eds. Gudrun Gersman, Katrin Moeller and Jürgen-Michael Schmidt (2007), where considerable borrowings from Paolo Grillando’s Tractatus de sortilegiis is noted, as well as the appropriation of material from Johannes Trithemius, Giovanni Francesco Ponzinibio and Jakob Sprenger. Monballyu has prepared a modern critical edition of the work from which Damhouder principally drew, Wielant’s aforementioned “brief instruction”: Filips Wielant (1441-1520) verzameld Werk. I. Corte Instructie in materie criminele, ed. Jos. Monballyu (Brussels: Royal Academy, 1995). Praxis rerum criminalium, chap. 152, “De confessione maleficorum,” pp. 505-509.

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Figure 74 The confession of the condemned, engraving, from Joost de Damhouder, Praxis rerum criminalium, Antwerp, 1562

and to reveal his accomplices had induced him to name many names, accusing himself and others of possibly imaginary crimes, for the sole purpose of bringing an end to the pain. To grant him a sacramental confession before the execution risked creating a conflict between the two confessions: if the ecclesiastical confessor received with the final truth of the condemned even his hopes of absolution, and made himself their interpreter, there was a risk of weakening the probatory value of the judicial confession. This created a profound diffidence on the part of secular authorities toward that final religious intervention and led to accusations against religious confessors that they were persuading the condemned to reject the truth they had previously acknowledged. Thus Charles V’s penal code (“Carolina”), even while it recommended the granting of the sacraments, had introduced a warning for confessors: they should refrain from allowing the condemned to deny what they had already admitted during the legal proceedings: the safety of society would be put at risk since the

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effectiveness of measures against criminals was thereby threatened.48 Damhouder tried to illustrate the problem with a concrete example, describing an event he had witnessed in Bruges, his city: a man had revealed to his parish priest during confession that he had organized a conspiracy intended to burn down and destroy the principal buildings in the city. The clergyman referred this fact to the appropriate lay authority, the pensioner of Bruges, without naming the penitent; but he was followed and kept under observation so that the identity of the person in question came to light. Could he be arrested? The question was discussed among jurists and it was concluded that what had been learned through sacramental confession could not be treated as evidence in court because it did not belong to the confessor but only to God. Thus, the man was left at liberty: close surveillance of his movements, nevertheless, had prevented his plot from succeeding. The story has an obviously apologetic flavor in that it covers up the not so edifying aspects of a case in which torture was used to force confessors to reveal to judges their penitents’ secrets. More realistic, instead, is Damhouder’s description of the comforting of the condemned: a religious was to be sent to speak to him about divine mercy, saying that God cared greatly about the conversion and life of the guilty person (eternal life, according to the customary interpretation of the passage from Ezekiel). The cleric was to illustrate for the benefit of the condemned the advantages of repentance by naming penitent sinners, culminating with the figure of the good thief. And then there was the last supper: not that of tradition, abundant and rich with alcoholic beverages which dulled and stupefied the candidate for the scaffold; but the Last Supper of the Lord, the Eucharist, preceded by confession. This is what the penal code of Charles V, the “Carolina,” had recommended (art. 79). Damhouder enthusiastically highlighted the value of this provision. Progress to the scaffold was to be accompanied by the recitation of payers. In the hands of the condemned an image was to be placed, painted or sculpted, of Jesus crucified so that he would have before his eyes the Passion, “bitter, and ignominious,” suffered by the Redeemer. And this too was recommended by the “Carolina” (art. 102): the crucifix should accompany the condemned until the moment of dying (“zum todt”).49 In this way the symbolic image developed by the theologians of the Inquisition ended up in the hands of the condemned of every type and captured their last thoughts.

48 49

Gustav Radbruch, ed., Die peinliche Gerichtsordnung Kaiser Karls V, von 1532 (Carolina) (Stuttgart: Reclam, 1960), articles 31 and 103 (pp. 43-44, 73). Ibid., pp. 65, 72.

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Damhouder’s favorable comment demonstrates the manner in which the “Carolina” became the penal code for most of Europe. Given the material constitution of the Germanic Roman Empire and the fragile control of the Hapsburgs outside their hereditary dominions, the “Carolina” served only as an authoritative suggestion and an influential model entrusted to learned jurists to become operative. And time was needed to accomplish this, because in a large part of Germany—just as in Spain and France— to the condemned criminal the possibility of receiving the sacrament of confession either was explicitly denied or was conceded as a special act of grace only occasionally.50 But there was one part of Europe where justice in the form of the torture of the body and the physical elimination of the condemned person had for a considerable length of time formed an alliance with mercy as the salvation of the soul and the renunciation of the execration of the memory of the deceased. In north-central Italy the efforts of the confraternities comforting the condemned resulted in the development of rites and images which turned the journey to the scaffold into a sacred pageant in which the victim played the principal role. Among the devices developed for this purpose an important and specific function was entrusted to small tablets painted with images of martyrs and scenes from the Passion. These images of the sufferings of Christ and of his saints call to mind those of the mocking of Christ in the Blindfolded Justice of Sebastian Brant. But the Christs in these images of the comforters are not blindfolded. Their appearance emphasizes the similarities between the execution of the condemned and that of Christ, at the cost of obvious anachronisms (even in respect to the customary iconography of the Passion). In just one example, among the tablets of the Confraternity of San Giovanni Decollato in Rome an image shows Christ being dragged to Calvary by a rope around his neck.51 It is an anachronism which we already noted in the representations of Christ condemned to execu50

51

As special grace (“Akt der Gnade”) we encounter it in the practice of the criminal court of Frankfort (Ferdinand Rau, Beiträge zum Kriminalrecht der Freien Reichsstadt Frankfurt a. Main im Mittelalter bis 1532 [Potsdam: Kramer 1916], p. 25). For a more detailed analysis of the question of the sacraments, see A. Prosperi’s Delitto e perdono (forthcoming in English translation, Harvard University Press). On events connected with the application of the “Carolina,” in addition to John H. Langbein, Prosecuting Crime in the Renaissance, England, Germany, France (Cambridge MA: Harvard University Press, 1974), see the detailed research for Switzerland by Pio Caroni, Die Rezeption der Constitutio Criminalis Carolina (1532) in der Eidgenossenschaft (Bern: Bern Universität, 1983). The work is reproduced in S.Y. Edgerton, Jr., Pictures and Punishment, p. 166. Lacking more precise research and given the impossibility of a direct verification, here we cannot propose either dating or, even less, attribution.

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Figure 75 Domenico Ramponi, Comforting the condemned, illustration executed in 1818 for Giuseppe Guidicini, Vestiari, usi, costumi di Bologna cessati nell’anno 1796. Bologna, Biblioteca Comunale dell’Archiginnasio, MS 2329

tion and, similarly, with a rope around his neck painted in the 15th century by Antonello da Messina and by Andrea Mantegna. That human Christ painted in imitation of those condemned to die undoubtedly struck a sensitive chord: on the eve of his execution the Florentine Pietro Paolo Boscoli told his friend who was urging him to die as a Christian: “I wish that the humanity of Christ could be offered to me, and I would embrace him as if he was coming out of a forest, and we were meeting.”52 This pictorial actualization helped to persuade the condemned person to accept his imminent death as a meritorious act toward his future eternal salvation. Instead, the contemplation of the sufferings of the afflicted and scorned Christ of the German tradition, by portraying mankind’s extreme injustice, led to reflection on humanity’s irremediably guilty nature; from this it was possible to conclude that the unquenchable penchant toward

52

Luca Della Robbia, “Recitazione del caso di Pietro Paolo Boscoli e di Agostino Capponi (1513),” ed. by F. Polidori in Archivio Storico Italiano 1 (1842). We cite it from the most recent edition, published in A. Prosperi, ed., Misericordie. Conversioni sotto il patibolo, p. 335.

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Figure 76 Ibid.

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what was iniquitous on the part of human beings called for a severe and incorruptible justice. At this point two different and irreconcilable paths opened up. It was said with the greatest clarity by Andreas Bodenstein of Karlstadt, known as Carolostadius, one of Luther’s first and most radical followers: a painted or sculpted image of the crucifix was not to be brought to those about to be executed. It was an obstacle, not an aid, to a good Christian death, because it directed the thoughts of the person about to be killed toward the physical sufferings of Christ and not to the spiritual work of redemption. One was not to contemplate how Christ died—the incarnate Christ—but why he had died and the benefits of justification for believers which had resulted from it.53 To explain this, in 1547, in Wittenberg itself, Lucas Cranach painted on the dais of the principal altar, an image of Luther preaching: with the words of Scripture the live figure of Christ is recreated in the minds of the listeners, not with the images of which the church has been stripped.54 The suffering and torture endured during one’s lifetime or concentrated in the journey toward execution thus lost whatever significance as ransom they might have had before the divine judge: and earthly justice was stripped of any religious aura. The symbol of the scale changed in significance: it was no longer permitted, in the light of Reformation theology, to imagine one’s own soul weighed by a judge and found to be just, as had occurred in the 15th century for the Florentine merchant Tommaso Portinari with the assistance of Hans Memling.55 53

54 55

Andreas Bodenstein von Karlstadt, Von der Abtuhung der Bylder und das keyn Bedtler unther den Christen seyn sollen [1522], ed. Hans Lietzmann (Bonn: A. Marcus und E. Weber. 1911). Cf. K. Schreiner, “Fetisch oder Heilszeichen?,” p. 418. I have used the Italian translation: Hans Belting, La vera immagine di Cristo (2005) (Turin: Bollati Boringhieri, 2007), pp. 204-206. For the 1467 dating of the famous triptych in which Tommaso Portinari had himself portrayed on the right hand plate of the scale, see Federico Zeri, Abecedario pittorico, ed. Marco Carminati (Milan: Longanesi, 2007), pp. 147-152.

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Figure 77 Hans Memling, Last Judgment, oil on panel, 1471-1473. Danzig, Pomorskie Museum. Foto AKG Images/Photoservice Electa, Milan

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The Divine Eye of the Law The blindness of justice, as we have seen, was in itself a difficult attribute to appreciate. Only a covert alliance with a powerful formula of pathos, such as the Christ of the Passion, scourged and mocked, had managed to endow that feminine image—an archeological find recovered from a minor ancient tradition—with an unexpectedly strong voice: a context of profound transformations in the powers and forms of the law to punish took care of the rest. In fact, once it was put into circulation the image of blind Justice knew an extraordinary success, of which we have encountered the first manifestations. It was an intrinsically ambiguous symbol. On the one hand it could signify blindness, and on the other incorruptibility and impartiality. Thus, it lent itself to different uses: from satire to praise, from blame to propaganda, from the celebration of the good order of things to the lament against a crazed world. For this reason also it was not difficult for the concept to establish itself and enjoy an extended life in the history of representations: the very ambiguity kept open the possibility of a critique of worldly things which preserved something of the satirical and carnival-like upheaval dear to Sebastian Brant and to popular culture. Pieter Brueghel gave an example of this in an engraving datable to c. mid-16th century: here a blindfolded Justice moves confusedly among a crowd in a city where gallows and burnings at the stake, tortures and scaffolds fill every available space. The caption accompanying the image states that the purpose of law is to correct the guilty person or at least to make others better and, at any rate, to bring about greater security.1 The reassuring verbal message accompanying the engraving does not erase the horror of so much violence nor the depressing impression of that blind justice. However, as we can easily understand, the use of censure in such an important and delicate matter for the good of society and of its powers was subject to many limitations. In fact, satirical remarks were long confined to the semi-private space of drawings and engravings. One such, by the Flemish artist 1 “Scopus legis est aut eum quem punit emendet, aut poena eius caeteris meliores reddet (!) aut sublatis malis caeteri securiores vivant” (the engraving, measuring 22.6 X 19.2 cm. is reproduced by W. Schild, “Gerechtigkeitsbilder,” no. 223, and by O.R. Kissel, Die Justitia, p. 67, fig. 53 from the exemplar of the work in the Staatliche Graphische Sammlung in Munich). Ambiguity as a permanent characteristic of the image is emphasized by D.E. Curtis and J. Resnik, “Images of Justice.”

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_008

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Figure 78 Pieter Brueghel, Justice, engraving, 1558

Dirk Volkertsz Coornhert (1519-1590), is of a blindfolded Justice unseated by the world in the guise of a crazed horse.2 Instead the public and official use of the representation of blindfolded Justice was destined to proselytize the idea of incorruptibility as the supreme obligation of the judge, but also to point out the new professional characteristics that the person of the magistrate was assuming, especially in German culture.3 Artistic representations in public buildings and the statues in the squares of many Swiss and German cities in modern times made frequent use of the symbol of the blindfold. We find it still in the course of the 19th and 20th centuries, by then next to the traditional symbols— a scale and the sword. Recognition of the importance of the book began to expand, a point of convergence between the ancient sacral aura of Holy Scripture and the modern codex of written laws constituting the basis of the efficacy and impartiality of penal activity. This was not the reason why the original polemical vein in the symbol of the blindfold never became wholly extinguished. What lingered in the background 2 The engraving is preserved today in the Fine Arts Museums of San Francisco. 3 This is emphasized by O.R. Kissel, Die Justitia.

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was the critique of justice blinded by privilege or by corruption as moral denunciation, always on the point of being revived, perhaps with stipulations and additions that clarified what specific injustice was being discussed. And here lawyers did not have to be overly clever to reroute that covert vein toward the more tranquil current of generic moralism. Justice could thus be represented in the act of edging aside the blindfold so as to perceive out of the corner of the eye things she should ignore in order to be impartial;4 or, like a two-fronted Janus, with a blindfolded face turned toward a poor petitioner and another face with an expectant look turned toward a rich man. Joost de Damhouder gets the credit for having invented this new variant of the image of the blindfolded goddess and to have amply commented on it in his Praxis rerum criminalium.5 Here, after a long description of judicial practices and a precise analysis of the types of crimes and punishments which the reader followed up to the moment of the execution of the guilty, the author turns to consider what might be intended when we speak of justice. It is a question, Damhouder writes, of the justice of this world, not of divine justice. And then he immediately clarifies that only a cautious justice will be capable of operating usefully and methodically, while, if it is blind and deaf things will go badly. He recalls with a reference from Aristotle that the good judge must be two-fronted, that is he must show a friendly and attentive countenance not just to one set of litigants but to both and he must be able to formulate a sentence that is truly impartial and is not influenced by the wealth and power of the appellants. Damhouder was well aware that in reality the course of events did not follow this principle but in fact proceeded very differently. And to explain this, he proposed the image of a civil court where the judge is asleep, at the feet of the tribunal a dog is dozing (the symbol of sinful sloth, of the refusal to work for the common good)6 and on a throne there is a seated female figure holding the customary sword and scale but possessing two faces: one with her eyes wide open is turned toward the wealthy part of society which is advancing with 4 That is how the image of “Partialité” is represented in a print of 1791 reproduced in M. Stolleis, Das Auge des Gesetzes, p. 27. But see especially Hogarth’s engraving “Paul before Felix” (1752): the fat Justice has a blindfold over one eye and her scale is weighted down by two sacks of money (see fig.91), 5 The text “was not unknown to the iconologists of Justice,” as was suggested by M. Sbriccoli, “La benda della giustizia,” p. 84. It was cited by Von Möller who had referred to the image of justice as the two-fronted Janus which he had seen in a 1596 edition (Die Augenbinde der Justitia, col. 115). On Damhouder’s work, largely borrowed from other writers, see above at chapter 6, note 46. 6 The figure of a dog, signifying this, had already appeared in Dürer’s engraving Melencolia I (see R. Klibansky, E. Panofsky and F. Saxl, Saturno e la melanconia, p. 302).

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Figure 79 Two-fronted Justice, title-page from Joost de Damhouder, Praxis rerum civilium, Antwerp, 1567

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Figure 80 Utopian, irenic and protomasonic engraving, from Hendrik Niclaes, Eyn gebet in den geest, Antwerp, 1548

swollen money bags against an architecturally rich background; the other face, instead, is turned toward the defender of the poor, of widows and orphans but she is blindfolded. This justice is blind and harsh toward the poor but casts a welcoming look on those who exhibit signs of power and wealth. At this point Damhouder introduced an imaginary debate in which the participants turn to the judge with one side asserting its innocence and the other power and affluence. The widow and the orphan denounce the corrupt guardian who has robbed them of their property, while the wealthy profiteer, well coached by his lawyer, seeks the connivance of the court and promises rewards if the verdict goes in his favor. The scene closes with an appeal on the part of the entire community that the just protection of the law be accorded to all: if this should not happen the solidarity of the social bond and the entire body politic would be thrown into ruin. And if these arguments fail to move him, let the judge reflect on the eternal fate of his soul: God, the protector of the poor,

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will know how to avenge them. In the heavens, above the poor unjustly condemned, sits the tribunal of the Holy Trinity, while the flames of Hell open up under the feet of the rich corruptor and the slothful judge.7 The sanction of that special judgment from the highest court was suspended like the sword of Damocles over the head of the terrestrial judge. The Christian God continued to serve as the ultimate guarantor of the system. But how He might intervene and on the ultimate rules of administration, it was now possible to discern, even in the symbolic language, the echo of the religious conflicts within European Christianity. Or perhaps it might be more correct to say that the terrestrial shock which had severed the unity of the ecclesiastical establishment had originated in the depths of the need for justice. The scale of God’s tribunal worked badly; could that celestial judge have his sentences depend on what was produced by ecclesiastical corruption, such as papal briefs and letters of indulgence? In a polemical Italian 16th-century religious pamphlet it was imagined that Pasquino, the popular Roman satirical figure, scourge of the powerful, had had a vision of the papal heavens in which he thus described the functioning of the judgment on the soul: In the middle of the piazza there is a large saint with wings who holds a great scale in one hand and a sword in another. And then when before the judges the devil and the lawyer have called out loudly, they approach him as he adjusts his scale and in one of them the lawyer places all his client’s property, such as masses, religious items, indulgences … on the other scale they place his miserable soul, and to this scale, to weigh it down, a devil, large and fat, attaches himself.8 The spectacle described by Pasquino resembled the miniatures of the Arti del ben morire of the previous century offered for the meditation of readers; but by now the devout aura had evaporated leaving behind only a grotesque scene. In the space of one or two generations laughter had replaced fear: those items to be placed on the scale had lost their value. In the new geography of European Christianity the symbols of justice revealed something of that change. Angels and devils fighting over souls had vanished: even in the Catholic world where the idea of the efficacy of the intercession of the living for the dead and of saints for sinners remained in force, the representations of Purgatory, in the course of lively development, showed naked souls engulfed by flames in 7 Iodoci Damhouderii Brugensis, Praxis rerum criminalium, pp. 540-549. 8 [Celio Secondo Curione], Pasquino in estasi nuovo e molto piu‘ pieno ch’el primo (Rome [actually Venice], 1546), fol. K4v.

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the act of appealing to one sole “advocate,” the Madonna, “our only advocate.” There was a retreat instead in iconographic practice of representations of God the Father, the Biblical “Ancient of Days” once endowed with the characteristics of the pagan Jove but now looked upon with suspicion, and definitely censured were images of the Trinity consisting of three human faces. To represent divinity the manual by Cesare Ripa suggested turning to that inexhaustible repertory of virtues and positive attributes offered by the female body: “a woman clothed in white, a fiery flame over her head…”9 The solution was not the sort to satisfy the needs of a religion that had become diffident and rigorous in regard to images. The bishop of Bologna Gabriele Paleotti, although convinced that it was useful “to express the true images of virtues and vices,” found the matter difficult and complicated: on one side, those who had tried “to express them with lofty concepts and refined inventions, to depart from vulgar things,” had rendered them so incomprehensible that to understand them one had to turn to some “worthy philosopher or theologian”; and, on the other side there were those who wanting to have them become known to the people, portrayed them as is popularly done in the shape of a woman with the clothing and decorations that are given to them. And this serves so greatly to lower and cheapen their greatness that they lose all the dignity and splendor of virtue; so that where those images were intended to capture our heart out of wonder and inflame it with the ardor of goodness, instead make our thoughts more negligent, appearing to behold a common and trivial thing as are the women that we see every day.10 With his opinion on women this man of the Church was speaking an ancient language. But in his distinction between the two directions taken by symbolic forms he identified an actual fact in the taste of the times and in the always cleaner separation between the public and the private. In different ways, that break was occurring all over Europe, especially in the non-Catholic areas: religion as experience, convictions, living choices was not disappearing, in fact it was intensifying. But it was becoming more an interior thing; in Puritan England and then in Calvinist Holland the churches of the Catholic minority concealed themselves within private homes, in Protestant countries the differences between clerics and lay persons disappeared and even in Catholic lands 9 10

Iconologia di Cesare Ripa Perugino, p. 162. Gabriele Paleotti, Discorso intorno alle imagini sacre et profane (Bologna: per Alessandro Benacci, 1582), fol. 245r.

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meditations and spiritual exercises enjoyed greater favor than the external and collective forms of the cult. Similarly God did not disappear, in fact his presence in the world of images grew: but his representation in venues intended for the few tended to take on ever more abstract symbolical forms. They could take the shape of a brilliant flash, a sun, a ray of pure light radiating from the heavens. The scale of justice might even be appended directly to that ray: it was the sign of critical and utopian tendencies which erased the mediation of earthly authorities.11 In public communication, instead, there was no alternative to feminine figures, as even Paleotti had to recognize. In his city of Bologna the members of the city’s senate frequently portrayed justice as a woman in the volumes of the council’s acts and artists took symbolic attributes from the traditional repertory (however, omitting the blindfold, confirming in this case as well, its unpopularity in Italy). In the ledger of acts for the first two months of 1642, the painter Giacomo Lodi represented justice as being completely nude and with a single eye in the center of the forehead:12 a caption explained nudity as a symbol of the poverty to which the incorruptible judge was destined and the centrally placed eye as a symbol of an unambiguous countenance. The sharpness of the gaze was emphasized by the eagle drawn alongside the feminine figure. The brilliant sun behind the head indicated a source of superior and divine light which others often represented at the time with a luminous eye in the sky occasionally inscribed within the triangle, symbol of the omniscience of the Trinitarian God as supreme and total surveillance. It was the obvious token of the new characteristics in the representation of a divinity that the unanimous teaching of the Christian confessions (even while they were in bitter conflict among themselves) was presenting as always more spiritualized and internalized. The symbolism of the Masonic lodges was to make abundant use of that abstract divinity. Meanwhile in the public squares of the Protestant Swiss and German cities the blindfolded feminine figure holding a scale and a sword in her hands became a fixture, following the success of Sebastian Brant’s work and the Germanic penal law codes. Among the earliest—perhaps the very first—was 11

12

The image engraved in the booklet of Hendrik Niclaes, Eyn gebet in den geest (1548), revised in subsequent editions (Antwerp: Plantin, 1555), shows a scale descending from the heavens attached to a light, with the symbols of the bricklayer: compass, mason’s level, plumb line (reproduced in Alastair Hamilton, The Family of Love (Bibliotheca Dissidentium, vol. 22) (Baden-Baden: V. Koerner, 2003), pp. 90-91. See fig. 80. The images have been recorded by Giuseppe Plessi, ed., Le “insignia” degli Anziani del Comune dal 1530 al 1796 (Pubblicazioni degli Archivi di Stato, 16) (Rome 1954), p. 75, Venal Justice, p. 110, One-eyed Justice.

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Figure 81 Giacomo Lodi, One-eyed Justice surrounded by the coats of arms of the governing officials. (Anziani), miniature, from the Insignia of the Anziani, 1642. Bologna, Archivio di Stato, Anziani consoli, Insignia, vol. VII, fol. 39b, first two-months 1642

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Figure 82 Hans Gieng, fountain of Justice, Bern, 1543

the “fountain of justice” erected in Berne in 1543 by the sculptor Hans Gieng (Frei­burg 1525-1563). This was followed in the course of the century by those at Neuchâtel, Soleure, Lausanne, Bienne, Berthoud, Nuremberg and in 1643 at Aarau in the canton Argovia.13

13

A few are reproduced in C.N. Robert, Une allégorie parfait. La Justice: vertu, courtisane et bourreau, pp. 18, 73, 74.

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Figure 83 H. Henz, fountain of Justice, Aarau, 1643

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Figure 84 L. Perroud, fountain of Justice, Solere, 1561

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This was a celebratory image of the essential function played by the public authorities, committed to guaranteeing an impartial and transparent justice and in the service of all, like the water at public fountains. The Basel edition of the Latin version of Brant’s poem, while it paid honor to and enriched the image of blindfolded justice, linked it to that of the corrupt judge who fixes his gaze on the rich man’s purse.14 The republican government and the size of the small State offered the proper setting for the insistence on the impartiality of the judge as promised to the citizens and as a warning to power represented by patricians and family factions susceptible to corruption. The allegorical significance of the blindfold assumed all its positive value. At this point, it was not a question “of throwing fear into the people,”—in Vasari’s words—as it was customary to do in the days of Giotto, but of winning their trust. In the political reality of the free central European cities, from Switzerland to Germany and to an independent Holland born out of the long conflict against Counterreformation Spain, the message was proclaimed publicly and insistently. The ancient tradition of the struggle between virtues and vices could find a new solution in the image of a blindfolded Justice, triumphant over the diabolical figures of evil, and capable of chaining to its pedestal the enemies of the weak and the poor.15 14

15

S. Brant, Stultifera navis mortalium, in qua fatui affectus, mores, conatus atque studia, quibus vita haec nostra, in omni hominum genere, scatet, cunctis Sapientiae cultoribus depinguntur, et velut in speculo ponuntur … per Iacobum Locher svevum latinitati donatus: nunc vero revisus, et elegantissimis figuris recens illustratus, ex officina Sebastiani Henricpetri, Basileae, anno recuperatae salutis humanae M.D.LXXII, mense martio. See at p. 3 the engraving of the corrupt judge, as comment of the chapter on the duty of the judge (Iudicis officium); the engraving of blindfolded justice is at pp. 140-141, as comment to the chapter on litigants in judgment (De litigantibus in iudicio). There is a copy of this edition in the Biblioteca Angelica, Rome, XX.3.25. See as an example the allegory of Justice drawn by Johann Heinrich Schönfeld in the 17th century, housed today in Basel, Offentliche Kunstsammlungen, Kupferstichkabinett (W. Pleister and W. Schild, eds., Recht und Gerechtigkeit, p. 116, note 191). The diffusion of blindfolded justices, with the symbols of the scale and a bared knee offered to the supplicant, is attested as being especially intense between the seventeenth and eighteenth centuries in the brief study by Herman Bianchi, “The Scales of Justice,” in Georges Lamoine, ed., Images et représentations de la justice du XVIe au XIXe siècle (Toulouse: Université de Toulouse-Le Mirail, 1985), pp. 7-12 (although very few concrete cases are cited). But probably the oldest evidence of the victory of the new symbol in an area exposed to German and Italian influences is that image of blindfolded justice painted in the early sixteenth century on the façade of a rich dwelling at Stein am Rhein, canton of Schaffhausen: here blindfolded Justice is confronted by a Cupid, it too blindfolded and followed by allegories and scenes from the Decameron. The complex of paintings is cited and

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Figure 85 Joseph Werner, allegory of Justice, oil on canvas, 1662. Bern, Kunstmuseum

The ancient language of the goddess, protectress of the law, permeated the cultural realm where the Christian symbols of a divided religion regressed or disappeared altogether: since for Luther lawyers were by definition bad Christians, they had to portray their labors under a symbol capable of serving for all the battling religious fronts. No one could do this better than Hugo Grotius, true jurist of humankind, as he was defined by Giambattista Vico: in the De iure belli ac pacis, published in exile in Paris in 1625, Grotius, who had experienced prison over the politicoreligious conflicts between Arminians and followers of the Calvinist leader Francis Gomar (1563-1641), proposed finding in natural law a norm able to regulate conflicts without having recourse to God—a norm independent of God and not modifiable even by God, in fact one to which even God Himself wanted to be subjected, thus a law that was valid even starting with the hypothesis that God does not exist (“etsi Deus non daretur”). The beautiful image of

reproduced by Andreina Griseri, “Di fronte al Decameron. L’età moderna,” in Vittore Branca, ed., Boccaccio visualizzato. Narrare per parole e per immagini fra Medioevo e Rinascimento (Turin: Einaudi, 1999), 1: 156-157.

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Figure 86 Johann Heinrich Schönfeld, allegory of blindfolded Justice, pen and ink drawing, 17th century. Basel, Offentliche Kunstsammlungen, Kupferstichkabinett

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Title-page of Hugo Grotius, De jure belli ac pacis libri tres…, Amsterdam, 1712

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blindfolded justice which the publisher Wettstein placed on the frontispiece of the work was there in His place.16 Jurists separated themselves from theology; but sovereigns who found support in the network of jurists as though on a sacral body with which to oppose the clergy (the image is Napoleon’s), continued to place themselves in God’s shadow seeking the consensus of their subjects in His name. The French decision to place the crucifix in law courts was exemplary in this regard. The Grande Chambre in the Paris Parliament was dominated by a large crucifix installed there c. 1548, with the king seated to the right of Christ.17 The sovereign received the function of imposing justice on the people from God at the moment of the “sacre royal”: power symbolized by the “hand of justice” (main de justice), a special scepter in the form of a hand with three open fingers which appeared in the official iconography of French monarchs. Though summoning subjects to the guarantee of a superior celestial assistance, owed to kings by divine law, the sovereign did not want only to reassure. The laws and sentences which in the various European countries were aimed against political crimes (the crimen laesae maiestatis) were no longer limited to an act of conspiracy or to political opposition but penetrated even within the secrecy of conscience. The sovereign constructed the territorial unity of the State by extending and rationalizing the legal system as Charles V attempted to do with the Constitutio penalis of 1532 and as the new prince Cosimo I de’ Medici did shortly afterward in the Duchy of Tuscany; but regardless who held power the principal preoccupation was to eliminate any form of disobedience and dissent, even if only in the mind. The law promulgated by Cosimo I in 1549, known as the “Polverina,” from the name of the fiscal auditor Iacopo Polverini, not only punished the attempt on the person of the duke, his children and descendants but also all “conspiracies, machinations or cogitations” and not only the offenders directly responsible but their descendants and property as well. The disobedient and plotters “are understood ipso facto to have committed such a crime.”18 That “ipso facto” of the political crime corresponded in the language of the Church to the defini16

17 18

Hugonis Grotii, De jure belli ac pacis libri tres in quibus jus naturae et gentium, etc…. (Amsterdam: Wettstein, 1712); see fig. 8. It is reproduced with some inaccuracies also by R. Jacob, Images de la justice, p. 201, fig. 111. C.N. Robert, La justice dans ses décors, pp. 32-38. Lorenzo Cantini, Legislazione toscana raccolta e illustrata (Florence: Stamperia albizziniana, per Pietro Fantosini e figlio, 1800-1807), electronic edition prepared by Mario Montorzi (Pisa: ETS, 2007), 2: 54-62: 59. The law did not appear incongruous to the publisher who commented on it and defended it with an ample explanation in which he expressed “horror” regarding the “maxims of those politicians or moralists, who dared to give to their subjects the right to judge not only the actions of the ruler, but even to punish him”

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tion of excommunication “latae sententiae,” the type which struck the heretic the very moment he mentally transgressed the boundary of orthodoxy and which permitted functionaries to confiscate his goods and to expel and defame his heirs even before sentence was passed. If the Church had made itself into the State at the threat of disobedience, the State now did not hesitate to make itself the Church. In fact, in the administration of justice on the part of modern sovereigns (“absolute” since they were unfettered by laws) the crime of heresy was absorbed by that of lèse majesté: and in the face of the threat, feared or suspected by the constituted power, the rules of law were suspended and the fertile language of lawyers coined the formula “crimen exceptum” to justify the use of torture without limits or rules.19 Here the authority of the powerful found its justification in the argument of political reason, the “interests of the State” as being superior to all others. The covertness which surrounded the sovereign’s decisions resembled that of clouds surrounding the splendor of Zeus. That secrecy assumed in a Christian context a sacral value which especially affected the authority’s function of administering justice: the peace and silence which, according to some of the most suggestive verses in Isaiah, had to be the characteristics of justice in the regenerated world of prophecy became the argument for concealing from the gaze of their subjects the mysterious place of power and the impenetrable thinking of the sovereign behind the screen of a special sanctity.20 But in the symbolic legitimation the recourse to religious images grew in intensity the more centralized the authority and vast the territory to be controlled became.

19

20

(ibid., pp. 62-75: 63). Cf. Furio Diaz, Il Granducato di Toscana. I Medici (Turin: UTET, 1987), p. 107. The basic work on the subject is Mario Sbriccoli, “Crimen laesae maiestatis.” Il problema del reato politico alle soglie della scienza penalistica moderna (Milan: Giuffré, 1974). But see also Edward Peters’ “Crimen exceptum.” The History of an Idea,” in Kenneth Pennington et al., eds., Proceedings of the Tenth International Congress of Medieval Canon Law (Vatican City: Biblioteca Apostolica Vaticana, 2001), pp. 137-194. On the normality of the exception in the penal system as the periodic reappearance of ancient categories and actions, see the lucid observations by L. Ferrajoli, Diritto e ragione, pp. 844-888. The use of the Biblical prophecy (“Et erit opus iustitiae pax et cultus iustitiae silentium” (“And the effect of righteousness will be peace, and the result of righteousness, quietness…”) (Isa. 32:17) in establishing the concept of the “reason of state” was studied by Ernst Kanto­rowicz, “Mysteries of State. An Absolutist Concept and its Late Medieval Origins,” in Selected Studies, ed. Ralph Giesey (New York: J.J. Augustin Publisher, 1965) (French translation in Idem, Mourir pour la patrie et autres textes [Paris: PUF, 1984], pp. 75-103). The theme is discussed even in the recent, fundamental study on the concept of secrecy and on medie­val ecclesiastical doctrines in relation to occult sins: J. Chiffoleau, “Ecclesia de occultis non iudicat?,” pp. 360-361 and note.

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Figure 88

Abraham Bosse, Leviathan, title page from Thomas Hobbes, Corps politique, 1652

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In the inhabited spaces of a great state the crucifix was a more appropriate symbol than the blindfolded woman of “the fountains of justice.” Propaganda through the use of symbolic images became ever more important as the necessity of sealing the consent of the governed toward those governing became evident. One’s religious allegiance in the age of the wars of religion had been a source of division and conflict within the country and even the family itself. It was now a matter of consolidating the bonds of political affiliation, conferring upon them that sacral value that had been a prerogative of belonging to the Church. The Churches could not ask for anything better than to be recognized as guarantors of the people’s obedience; only they could bring to the submission of the will of princes “not only the bodies and faculties of subjects … but their minds and consciences,” as Giovanni Botero wrote.21 Thus, what a historian has defined as the transfer of the sacred from the Church to the State,22 ended by having justice be its basic domain. In any case, it was not a matter of a simple transmission but, rather, of a much more complicated process. Meanwhile, that passed on sacred quality preserved and reinforced the traditional religious foundation. The symbols of the scale and sword maintained an iconographic connection with those of the angel of the Universal Judgment: the prerogative of judging was more than ever guaranteed by the Christian concept of the world and by a philosophy of power which always made reference to the same transcendent God, apart from the confessional differences. To be sure, differences in doctrine and practices were not lacking. The fact that a segment of European Christianity had cancelled its faith in sacred images and relics and entrusted all authority to secular authorities was not without consequences for the sacral foundations of justice. Max Weber formulated a problem, not a solution, when he defined the modern era in Europe as one characterized by the cleansing of magic from the world (“Entzauberung der Welt”): this formula can still serve us as a guide to the extent that we no longer conceive of it simply as the departure from a religious vision of the world but rather as the elaboration of a different sacral character intended to win over the adherence of individual consciences to a specific form of authority. For this reason the sacred foundation of Justice, taken for granted in the previous tradition even when not explicitly mentioned, made itself ever more insistent and obvious: it was summoned at every step to legitimize that power to grant or take a life which was the supreme manifestation of the sovereignty of divine 21 22

Giovanni Botero, Della ragion di stato, Libro secondo, ed. Chiara Continisio (Rome: Donzelli, 1997), p. 76. C.-N. Robert, Une allégorie parfaite. La justice: vertu, courtisane et bourreau, p. 37.

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law. And that prerogative was then exalted, invoked, supported with all the attributes and justifications that religion could muster. Athough in the Germany of the Peasants War Luther’s appeal to the princes to use the sword guaranteeing a divine reward in the afterlife resounded broadly, not different were the recurring arguments in the summons to a crusade and in the various “Holy Leagues”—so defined because they were closely involved with the papacy and received from it a decisive contribution. In the competition for political supremacy ecclesiastical and secular rulers vied to put themselves under the protection of a special mandate emanating from the will of the Christian God. In this situation justice as an aggregate of practice, norms and myth had a special importance. It is practically impossible to follow analytically all the encounters that occurred on the path chosen in the age inaugurated by the break-up of religious unity in Europe. The use of images now became much more important than in the prior epoch due to the fact that the disciplining from above of entire communities and the conquest of consensus through propaganda became essential in the struggle that had the whole world as its stage and for its objective the domestication of the body politic—defined by Hobbes as “artificial man” and which he imagined in the form of the Biblical Leviathan. The famous image of Leviathan engraved on the frontispiece of the 1651 edition of Hobbes’ work shows the gigantic body of the collectivity of all subjects dominated by the crowned head of a sovereign who brings peace and clutches a sword in his right hand and a pastoral staff in his left—thus joining the scourge of war and the possession of true religion. It should be noted that this representation had been preceded in Hobbes’s writings by a similar image (in the abbreviated 1640 French edition of the second part of the Elements of Law): here in the place of the pastoral staff we have a scale, thus endowing the State with a monopoly in the administration of civil and criminal justice.23 In Hobbes’ writings the construction of the State was interpreted as a true and actual work of art (an original idea of the Italian Renaissance, according to the intuition of Jacob Burckhardt) which passed through the coalescences of 23

The observation was made by Reinhard Brandt, Philosophie in Bildern: Von Giorgione bis Magritte (Cologne: Du Mont Buchverlag, 2000), chap. 24: “Das Titelblatt des ‘Leviathan,’” pp. 312-330: 318 (the study had appeared with the same title but in a somewhat different form as the preface to Thomas Hobbes, Leviathan, oder Stoff, Form und Gewalt eines burgerlichen und kirchlichen Staates, ed. Wolfgang Kersting [Berlin: Akademie Verlag, 1996], pp. 29-53). Subsequently, but without taking Brandt’s study into consideration, Horst Bredekamp defined as “modification iconographique d’un poids particulier” (“iconographic modification of a certain weight”) the substitution of the pastoral staff with a scale (Stratégies visuelles de Thomas Hobbes [Paris: Fondation Maison des sciences de l’homme, 2003], pp. 12-14).

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individuals into that all powerful, autonomous body to generate momentum “according to the modalities desired by the creator.”24 Into that body new people had entered. After the discoveries of Columbus and Vespucci, the allegories of the continents had witnessed the appearance, alongside the feminine figure of a dominating Europe sumptuously garbed, the naked and disarmed beauty of America. And it was no accident that a printer of Frankfort commissioned a printer’s mark at mid-16th century in which a blindfolded Justice was seated in the precarious position of the ancient Fortuna astride a terrestrial globe, around which, circled by two rich and two poor men, appear the outlines of the New World.25 Coming to the fore, on the mental horizon of Europeans distant civilizations began to appear to whom the Christian religion was totally unknown, along with western customs and laws which revealed consequently their historical and geographical relativity. In other words, with the discovery of the Americas, in the eyes of the “old world” Christianity no longer appeared to have encompassed the entire globe, as had been thought up to that time, but was limited in extent and had been unknown for millennia to the people of the “Indies.” Native Americans constituted a disturbing presence. “If one of them should arrive here from the new world,”26 what would strike him most? And how would he judge our things? These were questions facing Europeans who with increasing frequency were compelled to see themselves reflected in the eyes of others: it was an exercise that occurred spontaneously but which risked disagreeable replies for those who had proved victorious in the test of strength. Therefore this outlook was borrowed by those in whom critical convictions had matured and was intended to convey to those silent and subservient children of nature that which in our world necessitated being referred back to natural law. The eyes cast by Brazilian natives over the court of France revealed to Montaigne the irrationality and injustice of the existing political and social relationships and led him to conceive the possibility of their violent overthrow. Nature, which these people exhibited by their simple nudity, thus reclaimed its true place (up to that point it had been only theoretical) in the elaboration of 24 25

26

T. Hobbes, Leviathan, introduction (I have used the Italian translation, ed. Raffaella Santi, [Milan: Bompiani, 2001], p. 1). The engraving by Jost Amann, Fortune as Justice, was created in Frankfort as a printer’s mark for Sigmund Feyerabend, between 1560 and 1570. It is reproduced in the appendix of Sebastiano Giordano, “Una nuova lettura dell’allegorismo cinquecentesco. ‘Igne natura renovatur integra’: dal chaos alla redenzione in Giulio Romano,” Atti della Accademia Nazionale dei Lincei 404 (2007), Classe di scienze morali, storiche e filologiche, Memorie, ser. 9, 21, fasc. 2, fig. 92. G. Paleotti, Discorso intorno alle imagini sacre et profane, fol. 134 v.

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Figure 89 Jost Amann, Justice as Fortune, printer’s mark for Sigmund Feyerabend, Frankfort 1560-1570

the doctrines of the rights of people and in those on the foundations of the punishment of crimes. But it was a European revolution that gave substance to a utopia of a world turned upside down. Though the Jesuit José de Acosta toward the end of the 16th century, observing the conflicts and conspiracies in Latin America, sustained the idea that natural rights could not be eliminated in the name of religion, it fell to Thomas Hobbes to assert that it could not be done even in the name of the king. Hobbes had witnessed a trial that would be among the most celebrated: one which had led to the decapitation of a sovereign. And the thought of the king handed over to his enemies had become associated in his mind to the Christian archetype of the trial, that of Christ.27 A different idea of justice had to be worked out where the divine foundation of the law was inherent in the law itself and no longer connected to the person of the king. 27

See Hobbes, Leviathan, Bk. 1, chap. 3.

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An analogous preoccupation to base the obedience of magistrates to the laws not on the person of the sovereign but on the laws as expressions of the Divine Law is encountered at that time in the reflections of a Calvinist magistrate in 17th-century France where absolute monarchy survived unscathed through social conflicts and popular revolts.28 While the figurative language used for artistic representations, both celebratory and propagandistic, was by now making broad use of symbolic figures from pagan mythology—as did Rubens when he painted in the guise of Astraea Queen Marie de Médicis, who was regent after the death of Henry IV,29---the justice of the State preserved a traditional religious character. But the seismic shocks emanating from society drove the search for a different foundation than the personal caprice of a sovereign even when ecclesiastical preaching guaranteed his illumination by God. We note in the act of constituting the Supreme Court which was to try King Charles I in 1649, the brusque passage from an idea of justice as proceeding always and in whatever manner from the sovereign to a different idea, that of a nation supported by its ancient laws and fundamental liberties, against which the king stood accused of having worked subversively.30 It was a clean break. How and why these original laws had been put in place and how the pact had been agreed upon renouncing individual liberties was the question which engaged political thinkers at the time. And the ancient idea of justice as the essential characteristic in the administration of the laws now was affirmed as the necessary condition to guarantee the security of the people: the law had to be the same for everyone. This called for natural law to which, Hobbes suggested, a sovereign is subject in the same way as the most pitiable of his people.31 The obstacles grew during the construction of Leviathan, but this was not the reason that the “automata” identified by Hobbes disappeared, quite the contrary. The process of constructing collective identities aimed at sealing the oneness of a people until the ultimate degree of consensus had been attained: that of the sacrifice of the individual life. Everyone—not just the sacrificial victims of ancient religions—were to be tested about their spontaneous willingness to die, first for the “true” faith, then for the king (in anticipation of 28 29 30

31

This theme and especially the thought of the jurist Domat are studied by M.-F. RenouxZagamé, Du droit de Dieu au droit de l’homme. Peter Paul Rubens, Maria de’ Medici as Astraea, Louvre. Cf. W. Schild, “Gott als Richter,” pp. 44-85: 46. See Alan Orr, “The Juristic Foundations of Regicide,” in Jason Peacey, ed., The Regicides and the Execution of Charles I (Houndmills: Palgrave, 2001), pp, 117-137 (at p. 127 the act creating the High Court, 6 January 1649 is cited). T. Hobbes, Leviathan, pt. 2, chap. 30.

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doing this for the homeland).32 In the course of this process the image of justice was summoned to accomplish essential tasks and its traditional symbolic attributes experienced complex processes of innovation and diffusion concerning which it would be difficult to offer even a summary outline. But such an intense use of religious protection ended up impairing religion itself. The creation of a sacral aura as something inherent to authority, its justification and its reflection, was pursued so insistently as to render inevitable the censure and final exposure of the mechanism. Once again it fell to the function of the stern eye placed at the center of propaganda in the service of the various powers. The divine gaze over the earth absorbed the notion of God into that of the wise legislator who inhabited the symbolic language of deism and of the Masonic lodges. The light emanating from that highest and omnipresent of glances became blurred with that of the law in a German engraving of 1773 which was intended to demonstrate how the impartiality of blindfolded justice could exist only in a world illuminated by the law.33 The triumph of the stern gaze was accompanied by its removal to the great beyond. It was in that direction that now, with Galileo’s telescope, a scientific culture, though prohibited by the Church, nonetheless did not hesitate to suggest dangerous thoughts to the most orthodox minds: even Cardinal Federico Borromeo set about constructing an “eyeglass.” He had been assailed by doubt and feared that Giordano Bruno had been correct when he said that there were an infinite number of worlds.34 Meanwhile the same anatomical structure of the human eye was revealing its mysteries in the laboratories of the natural scientists.35 But the eye of judges was notoriously fallible and suspected of favoritism: thus the iconographic solution of the special eye, next to the others or placed on the forehead, kept cropping up. We find it in the course of the 17th century in the allegory painted by Giovanni Andrea de Ferrari in the Palazzo Bianco in Genoa and in another by Giacomo Lodi for the Insignia dated 1642 of the Anziani, the ruling officials of Bologna.36 When it was a question of recommend32 33 34

35 36

On the subject, it is difficult to go beyond what has been written by Hermann Kantorowicz, Mourir pour la patrie et autres textes (Paris: PUF, 1984). The allegory of the Law by Johann Daniel Preysler (engraving of 1737, preserved in the civic museum of Regensburg) is reproduced by M. Stolleis, Das Auge des Gesetzes, p. 44. These are the notes for a work, the “Occhiale celeste” (“the celestial eyeglass”), which the cardinal did not complete: see Giliola Barbero, Massimo Bucciantini and Michele Camerota, “Uno scritto inedito di Federico Borromeo: l’ “Occhiale celeste,” in Galilaeana, Journal of Galilean Studies 4 (2007): 309-341: 322-323. See Renato Mazzolini, The Iris in Eighteenth-Century Physiology (Bern: Huber, 1980). See above chap. 3, note 1 and in this chapter note 12.

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Figure 90 Johann Daniel Preysler, blind Justice in the world illuminated by the law or the allegory of Jurisprudence, engraving, 1737

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ing impartiality to judges and assuring citizens that corruption was not endemic to the tribunals, the blindfold served as a powerful reassurance and as admonishment. But where it was a question of celebrating the supremely just power of the sovereign, the representative of God and enlightened by Him, recourse was made to the symbol of the perfect perceptive eye illuminating the earth like the sun. Its light was invoked for the most diverse purposes: it blazed with solar glory in the emblems of sovereignty37 (Louis XIV, the Sun King, is indicative), it illuminated with hope the melancholy nights of those condemned to death (“illuminare eos qui in umbra mortis sedent” we read in the emblem of the Italian confraternities which brought comfort to those awaiting execution). But the system of laws and the judicial apparatus were always beset by the cold light of human reason and solemn symbols either became discredited or were openly unmasked: under the cloak and wig of Louis XIV a pitiless satirical artist revealed the traits of a small bald man. A much harsher fate had befallen the English king, Charles I Stuart, whose head was severed on the gibbet after a trial that altered the course of English history and much more. The thinking about justice certainly changed: it was no accident that highly irreverent ideas penetrated English minds. In London the symbolic image of the ancient divinity appeared in Hogarth’s engravings in the guise of an old fat woman, with one eye blindfolded and the other wide open gaping at a scale, which was unbalanced by the weight of two sacks of money.38 The wind blowing over England was thus interpreted in Bernard Mandeville’ Fable of the Bees: Justice her self, famed for fair dealing, By blindness had not lost her feeling; Her left hand, which the Scales should hold, Had often dropt’em, bribed with gold.39 In a Europe divided into several, conflicting religious confessions, the notion of the divine foundation of royal power had weakened and the value of law as a limit to this power and as a guarantee of the rights of subjects had progressed decisively. Along with the affirmation of the principle that the law was superior 37 38 39

See Arthur Henkel and Albrecht Schöne, Emblemata. Handbuch zur Sinnbildkunst des XVIe und XVIIe Jahrhunderts (Stuttgart: J.B.Metzler, 1978), col. 14. See above, note 4 in this chapter. Bernard Mandeville, The Fable of the Bees. Edited with an Introduction by Phillip Harth (Harmondsworth: Penguin Books, 1970), p. 67.

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Figure 91 William Hogarth, Paul burlusqued before the Roman official Felix, engraving 1751

to the sovereign, advances also were made by the doctrine that everyone was obliged to abide by the law. These were principles that progressed at the cost of brusque and radical changes, religious reforms and political revolutions. We shall not attempt here to recall the various phases, even minimally. As for the symbolic representations, one should note the victory of the feminine mythological image which took its place permanently in the sphere of political motifs guaranteeing the legitimacy of the arrangement of powers. In England recognition of the sovereign’s authority increasingly rested on the ability to govern in accordance with the law. From the time of the religious schism with Catholic Rome the difficult legacy of a monarchy excommunicated by the papacy had been upheld and consolidated by the “virgin queen,” Elisabeth I, on whom courtly propaganda had projected the classical image of Astraea, the goddess of justice.40 It had been a successful grafting of the myths of imperial Rome to Christian ideals: but it was also the beginning of a model of sovereignty which accentuated the sacred bond with the nation’s sense of 40

Frances Yates, Astraea. The Imperial Theme in the Sixteenth Century (London and Boston: Routledge and Kegan Paul, 1975).

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justice. The English Parliament had been able to condemn Charles I to death because it could make a case against the arbitrary and tyrannical character of his government. And from that time, a new sort of divinity had emerged on the horizon of English culture, that of “the English goddess of Liberty” which appeared to Montesquieu as realized in its highest perfection.41 Alongside the concept of liberty, in the age of the Enlightenment advances were made with fresh impetus by the ancient image of the divine eye over the world, the light from which assumed the significance of Reason able to illuminate distorted, superstitious, cruel practices and convictions. But the transition from one meaning to another could not take place without a precise and sharp denunciation of the instrumental function to which power had bent the Christian God. Here is an exemplary document: “To combat the various types of crimes … the State possesses two great instruments: punishment and reward. Punishment, to be imposed upon all and in every ordinary occasion; reward, to be imposed upon the few, for specific purposes, and in extraordinary situations. But whether a man committed a certain act or not which makes him the object of punishment or reward, not always are the eyes of those entrusted with the carrying out of these instruments capable of making this distinction…. To make up for these deficiencies in the authorities, it is considered necessary, or at least useful … to inculcate in the minds of people belief in the existence of a power with the same purpose but not subject to the same deficiencies: the power of a supreme being.”42 The work of Jeremy Bentham in which we read these words did not speak of religion but of morality and legislation. Between the first outline of the work (1776) and the printed edition (1789) two revolutions had overturned the world’s political order as well as the very concept of justice. In the device selected by the Founding Fathers of the United States the new order was symbolized by a pyramid dominated at its peak by the divine eye inscribed in a triangle. God guaranteed the existence of the newest political reality watching over it from above. This God of Masonic aspect released from its gaze the light of a new divinity which had made progress in the course of the 18th century and which was to be invoked explicitly in the temple projected by the French 41

42

On the diffusion of the image of the “English Goddess of Liberty,” see Daniel J. Boorstin, The Mysterious Science of the Law. An Essay on Blackstone’s Commentaries (Cambridge MA: Harvard University Press, 1941), chap. 8, pp. 154 ff. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, chap. 15, translated from the Italian edition: Introduzione ai principi della morale e della legislazione, ed., Eugenio Lecaldano (Turin: UTET, 1998), pp. 323-324.

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Figure 92 The Great Seal of the United States of America printed on a dollar bill

Revolution: the Goddess Reason, divinity of the Enlightenment (for Germans “Aufklärung”), of Lights (for the Spanish “las Luces”), and for Italians the abstract philosophizing of the Enlightenment. The ancient Christian God, worn down by use, yielded His place to other protagonists. But the light emanating from the eye which illuminates the Declaration des Droits de l’Homme et du Citoyen (Declaration of the Rights of Man and of the Citizen) of 1789 had its not so remote origin in the gaze of the omniscient God over the world.43 And what E.H. Gombrich defined as perhaps the most famous symbol of the French Revolution, that red cap of liberty, had ancient precedents44 and we even encountered it in Edgar Lee Masters’ poem. The language of images expressed not only satire but also the will to change what existed. Recourse was increasingly made to Reason as supreme regulatory entity by sovereigns on the European continent, “enlightened” and counseled by the “philosophes” in establishing the mechanisms of justice, reforming laws, seeking their observance, and punishing transgressors. But how and what to change? And what could be substituted for that supreme divine eye which according to Bentham had been used by the State to inculcate in the minds of the people faith in a just acknowledgment of individual merit and retribution for guilt? Other eyes were needed: and they could 43

44

On the symbols of Reason, see Ernst Gombrich, “The Dream of Reason: Symbolism of the French Revolution,” The British Journal for Eighteenth-Century Studies 2 (1979), no. 3: 187205. On the precedents (ancient Roman coins, modern numismatics) and on the discussions in the Jacobin clubs on this subject, see ibid., pp. 195-197.

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Figure 93  Declaration des Droits de l’Homme. Declaration of the Rights of Man, engraving, 1789. Paris, Musée Carnavalet

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Figure 94 Pass issued by the Committee for Public Safety of the French Republic: Roman fasces, a cannon, the scale, 1793-1794

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only belong to humans. It was essential, however, to endow them with the concrete capability to remedy the by now intolerable deficiencies of the state’s power. And here Bentham’s proposals in fact opened a new enduring phase: not only in judicial practice but also, above all, in the concept itself of how the divine office of recognizing and judging good and evil should be exercised and by whom. As for the good, the subject which Bentham proposed, once the God had been dethroned who had been placed to watch over power, it could only be human society in its entirety or at least its better self, public opinion. Publicity was the true soul of justice: thus, even the judge could be tried before the court of public opinion.45 Naturally it was essential that public opinion should possess an adequate knowledge of the law: and this required an educational and informational effort that could be accomplished, for example, by distributing an abridged edition of the penal code with illustrations of the various punishments. But above all the trial itself had to be made public eliminating the secrecy surrounding the places where justice was administered and doing away with the incomprehensible Latin in which magistrates and lawyers expressed themselves.46 For evil doers Bentham concocted a detailed plan for a new type of penitentiary. The attention of reformers was focused on prisons, once the death penalty had become discredited. Delinquents had to be controlled and possibly redeemed for purposes of public utility when it was not possible to actually renew them morally. Bentham’s project was founded on the exercise of sight. He gave the name Panopticon to the architectural model of centralized surveillance over the movements of the convicts. The prison was to be an “inspection house.”47 Here the steady vigilance of justice had to be effective and constant. It was essential to create “a conscious state of visibility,” wrote Michel Foucault, so as to ensure “the automatic functioning of authority.”48 But had that not been the mechanism brought about by the eye of God in the preceding long tradition? The law of God punishes because it is “written in 45

46

47 48

“Publicity is the very soul of justice…. It keeps the judge himself, while trying, under trial,” (“Rationale of Judicial Evidence,” in John Bowring, ed., The Works of Jeremy Bentham [Edin­burgh: William Tait, 1843], 6: 355-370: 355). Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750. Cross-Currents in the Movement for the Reform of the Police, 5 vols. (London: Stevens and Sons, 1948-1985), 3: 27. Panopticon, or the Inspection House (1st ed. 1791). Michel Foucault, Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan (New York: Vintage Books, 1977) (1st French ed. 1975).

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Figure 95 Jeremy Bentham, plan of the Panopticon. The Works of Jeremy Bentham, tome 4

men’s hearts,” St. Augustine had written.49 And that divine eye had offered the subject for theological and philosophical speculations for many, including Nicholas of Cusa, to comprehend how it could reflect all ages and creatures. Now the function of divine spectator was passing into the jailer’s hands. Whoever entered the institution, as Bentham projected it, should feel upon himself the watchful gaze of his keeper, with the same intensity and constancy of the eye of God that the believer felt on himself. Bentham’s two proposals reflected and interpreted common situations which at the time found active supporters especially in England. Here study and debate over the reform of justice long occupied not only men of the law but also the Parliament and the entire political structure of the nation. The need especially was felt to facilitate the observation of justice at work by means of the simple but revolutionary passage from secret proceedings to the public trial. The English procedural model, founded on open debate with the accused 49

Confessions, 2: 4 (Penguin ed. p. 47).

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free to intervene, aroused the admiration of travelers who observed it.50 It was customary at the time for the decisions of courts to be cloaked in an arcane aura and for the magistrates sitting in judgment to swear to maintain secrecy. In Italy this was the procedure followed by the Savoyard and Milanese Senates and the Sacred Royal Council in Naples.51 The impetus given by reformers toward a greater and broader awareness on the part of public opinion rested on a curiosity that was as lively and widespread as the aura of secrecy was dense and impenetrable. The plethora of novels and plays which treated trial proceedings and the dealings of criminal justice are evidence of this. Curiosity about the obscure and fearsome world of corruption and crime gave birth to stories which enjoyed great success, such as the novels of Henry Fielding. And it was Fielding, in fact, together with his brother John, who gave a decisive stimulus toward the opening up of those secret judicial chambers: while Henry discussed trials in stories he published in the Covent Garden Journal, John allowed reporters into courtrooms and paid newspapers to publish judicial news.52 The publicity given to trials and the impartiality of magistrates conferred new authority on the ancient Plutarchan image of the blindfolded judge: Sir John Fielding (1721-1780), social reformer and himself a magistrate, who took it upon himself to ensure that public opinion should control the administration of justice, was blind: but this was not the reason why he chose to have his portrait painted with a blindfold over his eyes.53 Jeremy Bentham also urged that secret trials be replaced with proceedings open to the public, which he defined as the court of public opinion. According to him, the “Public Opinion Tribunal” was to be a “fictitious tribunal” and has been defined as “watchful eye capable of judging because it is essentially guided by self-interest, of which it is the best custodian.”54 It was important also that the words spoken by judges and lawyers should be comprehensible and that the use of legal Latin be dropped where “a large part of the body of the law, because of the over-zeal50

51

52 53 54

L. Radzinowicz, A History of English Criminal Law. I. The Movement for Reform, p. 717 and notes, cites the remarks and praise by Pierre-Jean Grosley made in 1765, and by PierreJean-Baptiste Nougaret, in 1816. A. Monti, Iudicare tamquam Deus, p. 159. Cf. Gino Gorla, “I tribunall supremi degli Stati italiani,” in La formazione storica del diritto moderno in Europa, atti del terzo Congresso internazionale della Società italiana di storia del diritto (Florence: Olschki, 1977), 1: 447532: 488-491. L. Radzinowicz, A History of English Criminal Law, 3:27. As Dr. Utzima Benzi generously informs me, the portrait of John Fielding in the National Portrait Gallery in London represents him blindfolded. The definition belongs to Annamaria Loche, Jeremy Bentham e la Ricerca del buon governo (Milan: Angeli, 1991), pp. 218-219.

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ousness or artifice of jurists, was sealed in unintelligible expressions and in a strange tongue.”55 The need was felt acutely in Enlightenment culture. The demand for the abolition of secrecy was stated in the cahiers de doléances drawn up in preparation for the French Estates General in 1789 and found solemn sanction in article 9 of the 1791 constitution, which opened the new era in judicial proceedings.56 As for the creation of another eye to watch over the world of evil-doers, the question had gained in urgency over the establishment of a police system within the territory of the State.57 From the moment when, in 1667, an edict of Louis XIV in France had set in motion the creation of the modern police force with the appointment of a “lieutenant de police” as the third element besides the “lieutenant civil” and the “lieutenant criminal,” the buildup of what in all languages was deemed the French definition of “police” (polizia, Polizei) proceeded rapidly. A medal struck for Louis XIV associated his profile with the image of a blindfolded justice armed with sword and scale.58 With the creation of a special body dedicated to the prevention of crime through capillary vigilance over society the symbolic function took physical form and the eyes of authority ceased being only a metaphor. Surveillance was entrusted to entities of the State whose function it was to be vigilant and to observe. Inspectors, sentries, guards, investigators, spies: the words were not casually chosen and Bentham was very careful to distinguish “inspection” from “espionage,” since the latter served to condemn secretly and arbitrarily, while the former instead guaranteed “public peace.”59 At any rate, unquestionably, the entire terminology associated with the new body centered on the functions of seeing. The gaze of policemen and investigators was capable of discerning in the disorder of social life members of the dangerous classes and of penetrating in the obscure places of the underworld and prostitution: before them opened up the most jealously guarded recesses of private life and the secrets of political conspiracies were revealed. As instruments of power, they presented themselves as protectors of the safety of the individual, unarmed citizen. It was the remedy that had been longed for, one which could guarantee peaceful sleep to the good burghers of the city. “The night lit up at public expense, guards distributed among 55 56 57 58 59

Jeremy Bentham, A Fragment on Governing (1776) (modified). See Vincenzo Vigoriti, “La pubblicità delle procedure giudiziare,” in La formazione storica del diritto moderno in Europa, 2: 672-679. See Marc Raeff, The Well-Ordered Police State. Social and Institutional Change through Law in the Germanies and Russia 1600-1800 (New Haven: Yale University Press, 1983). The bronze medal can be dated c. 1665. L. Radzinowicz, A History of English Criminal Law, 1: 369.

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the various quarters of the city, the simple and moral discourses of religion relegated to silence and to the sacred tranquility of the temples protected by public authorities,” but also “the speeches destined to support private and public interests in the assemblies of the nation.” This is what Cesare Beccaria had understood under the French term “police,” presenting it as the means “to forestall the dangerous growth of popular passions.”60 Echoing him, but with an unctuously more philistine tone, was Friedrich Schiller’s invitation: “Sleep tranquilly, good citizen, do not be frightened if the darkness of night envelops the earth; the eye of the Law watches over you.”61 This new image of the law in the poetic language of Schiller and Goethe peacefully co-existed with that of blindfolded justice.62 By the date of that Lied (1800) the police network had grown impressively and the darkness of night in the cities had receded in the face of the growth of public illumination—even if it was not the reason why civic passions had cooled. It is a fact, nonetheless, that the notion of the vigilant watchfulness of the authorities in the service of public order had by this time replaced the ancient gallows in the medieval landscapes as painted by Ambrogio Lorenzetti or Pisanello. Consequently the importance of prisons grew as places where control and re-education required a continuous vigilance. We won’t pause over the details, but what appears notable is the profound change experienced by the image of Justice. The reform movement, having repudiated the traditional justification of the sovereign’s authority as willed and directed by God, began to suggest new hypotheses and articulated needs which profoundly transformed the judicial function. Justice now assumed the attributes of morality, something which up to that time had been reserved to the sphere of religion and the Church. It was proclaimed by the very title of Bentham’s chief work: Principles of Morals and Legislation. These were the basic principles of morality which had to be introduced into the new scheme of public legislation, as if, it has been observed, “morality was being transfused into positive law.”63 With the retreat of religion as the mask of power, the road was 60 61

62

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Cesare Beccaria, Dei delitti e delle pene, ed. Franco Venturi (Turin: Einaudi, 1970), pp. 29-30. “Schwarz bedecket/Sich die Erde,/Doch den sichern Bürger schrecket/Nicht die Nacht,/ Die den Bösen/grässlich wecket,/Denn das Auge des Gesetzes wacht” (Friedrich von Schiller, Das Lied von der Glocke, cited from M. Stolleis, Das Auge des Gesetzes, pp. 7-8, who borrows from the Lied the title and theme of his work). E. Von Möller, “Die Augenbinde der Justitia,” coll. 109-110 has noted verses in Goethe’s Tasso where it is affirmed that “even Justice has a blindfold” (“Auch die Gerechtigkeit trägt eine Binde”) and Schiller’s lyrics published in Die Horen of 1795 where the image of a blindfolded Astraea appears. P. Prodi, Una storia della giustizia, p. 452.

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opened for the authority of the state and its police to moralize society. The eye of God, up to that time a feature of paternalistically absolute powers, became the instrument of a justice directed by the criterion of utility and entrusted solely to human intelligence. But the very fate of Bentham’s projects demonstrated which real forces were ready to replace God’s representatives of the ancient regime. Open to the currents of public opinion and exposed to the fickle game of politics, this justice in its concrete realizations was destined to disappoint its very own promoters. The model of the prison as an alternative to the death penalty was based on the idea of a perfect system of retributive justice working as a universal metric system of punishment, able to use the time a person was alive; but it is no accident that in the new secularized version of punishment the ancient monastic version of the prison as a place for repentance and regeneration was appropriated. It was not so surprising, then, that the prison complex of one of the model 18th-century penitentiary organizations, the “Pennsylvania system,” called for the absolute isolation of the prisoner who was to have the Bible as sole companion. The disappointments were profound. The situation appeared to Charles Dickens harsher than the physical tortures which had been employed by the systems which had fallen into disrepute and abolished: “I am persuaded that those who devised this system of prison discipline, and those benevolent gentlemen who carry it into execution, do not know what it is that they are doing. I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.”64 Equally invasive and destructive was the function of the eye of the prison guard over the incarcerated. And yet that eye in the theories of 18th-century English reformers had begun at the same time as the public consideration of judicial rites: it was the discipline itself of constant surveillance that was advanced as an educational instrument. By opening all the secret places where life and death were decided, a system of controls different from the ancient form was introduced: the eye on the judge was no longer that of God or the prince but the actual one of the representatives of public opinion. Here the “conscious state of visibility” was implanted in the judges and had functions of democratizing and of liberation, not of enslavement. In retrospect, the advance of the 64

Charles Dickens, American Notes. For General Circulation (The Works of Charles Dickens) (New York: D. Appleton & Co., 1868), pp. 43-44. See also the Italian translation by Elisabetta Grande, Il terzo strike. La prigione in America (Palermo: Sellerio, 2007), p. 73, with a note by Adriano Sofri. Grande’s book is a terrifying account of the transformations in the American prison system dominated by the pressure of a frightened and vindictive public opinion.

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power of public opinion was progressing, but also the power of those who would know to use it for their own interests. It is not our task here to trace the victorious spread of the symbolism of the power of the Law and of the value of Justice, the two figures that from that moment would be called upon (in different degrees and not without conflict) to legitimize States and political powers. Let us record only the fact that the metaphor of the eye was destined inevitably to assume a special place in the system of symbols associated with the figure of the woman with sword and scale. There remained, impossible to eliminate, a residual religious value which, however, had to come to terms with the values of religious liberty and the lights of Reason: as Michael Stolleis has observed the “great seal” of the United States created in 1782 and reproduced from 1935 onward on dollar bills, places over a pyramid, unfinished and open to the future of the “new order” founded on the Constitution, the triangulated eye of an approving God—an interconfessional and Masonic God.65 But at the moment in which credibility in the pretense of the sovereign’s power as the secular arm of God was being rescinded, the problem loomed of the ultimate foundation of that justice. Still to be resolved was the original division between individual conscience and positive law, which after its first formulation through the efforts of St. Paul, had traversed the entire tradition of European Christianity.66 A decisive advance in this connection had taken place with Luther. In his The Freedom of a Christian Man (1521) Luther dealt with the two terms as broadly as possible: for him the Christian enjoyed absolute liberty of the spirit in the very act in which he recognized himself externally subject to the law. Immanuel Kant’s theory—that the individual realizes his true self when he follows the moral law which speaks within him—heals the laceration between conscience and law: at least in the measure to which the law itself stemmed from the free determination of the individual, it found its foundation in an initial choice by whoever then freely submitted to it. The “I” thus took the place of God. But the solution posed new and crucial problems to the very image of Justice: the divine attributes were destined to disappear or, rather, to assume new forms. Instead what inevitably came to the fore were attributes that were more suitable to guarantee a quality that once had been implicit in the divine foundation but which now had become essential: justice. And with this the future course of the image of blindfolded Justice would find a new driving force within modern European cultures. 65 66

M. Stolleis, Das Auge des Gesetzes, p. 52. Paolo Prodi’s research (Una storia della giustizia) is constructed on this problem.

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Changes in Symbols The language of symbols accompanies history at its own pace and in its own fashion, adapting to new patterns, anticipating realities still in flux or in the embryonal state of utopia and providing older signs with new meanings. Justice in its many elements—the blindfold of impartiality, the sword of punishment, the palm or olive branch of mercy, the weighing of merits and guilt, the supreme countenance of God, the Book of judgment—registered the changes taking place, indicating what had been discarded as well as the innovations. One after the other, the symbolic attributes inherited by tradition were the object, between the 17th and 18th centuries, of biting, derisive, relentless attacks. First in line was the most common and most feared: the sword. We can read the verses of Bernard Mandeville’s, The Fable of the Bees: Yet, it was thought, the Sword she bore Check’d but the desp’rate and the poor; That, urged by mere necessity, Were tied up to the wretched tree For crimes, which not deserv’d that Fate, But to secure the rich and great.1 No other writing, among the numerous descriptions of hangings and executions circulating in print or recited on the stage, had voiced similar thoughts and with such great and bitter bluntness. The sword, the principal attribute of that solemn feminine figure which was the direct heir of the Angel of Eden and of the Last Judgment, revealed its true self: a hateful instrument of oppression which struck not the sinners of the City of God but the poor confined to the margins of the earthly city, dangerous because they were disinherited. Besides, it was an obvious reality for anyone who cared to look upon the scenes which repeated themselves daily at the sites of execution. And this was more obvious in London than elsewhere: here the condemned were killed with a cold-bloodedness and a lack of emotion and religiosity which never failed to astonish Italians. So much indifference was typical of dying “in the English fashion” remarked Alessandro Verri astonished by the absence of piety in the rituals 1 Bernard Mandeville, The Fable of the Bees, p. 67.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_009

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connected with death.2 The religious elements which in other countries still cloaked the harsh reality of class violence here had been totally abandoned: the bodies of the wretched who ended their violent lives suspended from the gallows of Tyburn could not find even after death the peace of burial with traditional rites. Furious struggles were common between those who wished to untangle the cadaver from the ropes and proceed to a proper burial and those who wished to claim that lifeless object which belonged to no one (according to the legal statute) for the use of anatomical exercises at the flourishing English universities.3 The corpses of thieves and prostitutes in England entered the scientific circuit with a violence not mitigated by the religious rites still in use elsewhere—for example, in the Milan of Alessandro Verri where his brother Pietro worked with Cesare Beccaria to reform the system of crime and punishment. But even in Milan, in spite of the different contexts, words and images were in those years no longer instruments of propaganda in the hands of political and religious authorities but of censure and an impetuous desire for reform. Whoever, defying censorship, opened the small but great book of Cesare Beccaria (and of Pietro Verri), Dei delitti e delle pene in the Livorno 1765 edition, was confronted by an image of the goddess Justice in all her beauty and nobility, seated on a throne turning away her horrified face from the executioner clutching the severed head of a victim.4 The special sensibility felt by Cesare Beccaria for the feminine condition to which he dedicated an eloquent page on the crime of infanticide suggested to him the idea of the goddess averting her gaze (as always the controversial symbol) at the sight of the punishment of death. The new ideas brought with them a spirit of mercy which seems to have found expression in what was, as far as we know, the first (and perhaps the only) instance of a blindfolded Justice in Italy. We encounter it on the title page of a treatise on criminal law by the Roman academic and lawyer Filippo Maria Renazzi (1745-1808). Here the blindfolded virgin stomps on the sword, holds a 2 The observation can be read in a “report on how to have one’s self hanged in the English fashion” contained in the letter written by Alessandro Verri to his brother Pietro on 25 January 1767 (Viaggio a Parigi e a Londra [1766-67]. Carteggio di Pietro e Alessandro Verri, ed. Gianmarco Gaspari [Milan: Adelphi, 1980], pp. 250-256). Similar observations can be found in a description of an execution in the United States written by the journalist Dario Papa (Corriere della Sera, 6-7 June 1882; now reprinted in Franco Contorbia, ed., Giornalismo italiano, 1: 1860-1901 [Milan: Mondadori, 2007], pp. 932-940). 3 See Peter Linebaugh, “The Tyburn Riot Against the Surgeons,” in Douglas Hay, et al., eds., Albion’s Fatal Tree. Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), pp. 65-117. 4 The engraving is by Giovanni Lapi, based on an idea of Beccaria’s, and reproduced in Franco Venturi, Settecento riformatore. Da Muratori a Beccaria (Turin: Einaudi, 1969), fig. 55.

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Figure 96 Giovanni Lapi, Justice spurns the severed heads offered by the executioner, engraving from Cesare Beccaria’s, Dei delitti e delle pene, 3rd ed. Livorno, 1765

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book on her knees and raises a scale on which a branch of an olive tree on one of the plates appears to be heavier than a rock on the other: the meaning was crystal clear and was even recorded so as to leave no doubt: “Ne maior poena quam culpa sit” (“let no punishment be greater than the crime”).5 But the image was basically false, concealing instead of revealing. The notion of “minimal penal law” based on the effectiveness of the punishment rather than on its severity was the only concession to the spirit of the age on the part of an author who remained adamantly faithful to the traditional values. Up to this time it had been through the gallows and decapitation that political authorities offered what they considered guarantees of safety to the people. This was the message contained in the symbol of the sword placed in the hand of Justice. A symbol guaranteed by religion: Savonarola recounted to the Florentines a vision in which he saw the sword of God striking at earth. In his eyes the threat was to come alive in the person of Charles VIII, King of France, summoned to do God’s work interwoven as was customary with mercy and justice.6 Even according to Luther the authority of the Christian prince was based on the use of the sword to keep under control the mass of the damned: but here mercy had totally evaporated from the sphere of earthly powers, and was concentrated instead in the gift of eternal salvation offered to sinful man by the death of Christ on the cross. The sovereign’s sword emerged in the language of the courts in the form of a legal metaphor, as indication of the ability of the prince to resolve with his authority cases that were controversial or not foreseen by legal norms: this “Caesarean sword” was the most suitable attribute 5 Filippo Maria Renazzi, Elementa iuris criminalis liber, editio quarta italica (Senis: ex typografia Aloysii et Benedicti Bindi, 1794) (a copy exists in the Law Library of the University of Modena and Reggio Emilia). Renazzi quarreled openly with Rousseau and disagreed substantially with Beccaria. On his attempt to preserve the penal system of absolutism by divine right, only marginally accepting aspects of Enlightenment culture (such as the idea that magical practices were illusions provoked by abnormal fantasies), see Beatrice Maschietto, “Il ‘problema penale’ nella dottrina italiana del secondo Settecento: Filippo Maria Renazzi,” in Marco Bellabarba, Gerd Schwerhoff and Andrea Zorzi, eds., Criminalità e giustizia in Germania e in Italia. Pratiche giudiziare e linguaggi giuridici tra tardo Medioevo ed età moderna (Bologna: Il Mulino, 1999), pp. 235-252. 6 Savonarola’s oration to Charles VIII was printed in Joseph Schnitzer, Savonarola (Milan: Treves, 1931), pp. 191-193 (the original German edition appeared in 1924). That it was a question of true prophecy was a widespread opinion, shared also by a modern biographer: Roberto Ridolfi, Vita di Girolamo Savonarola (Florence: Sansoni, 1979), p. 179 (1st ed. 1952); (The Life of Girolamo Savonarola, tr. Cecil Grayson [Westport: Greenwood, 1976] omits the documentation of the original Italian edition).

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for a king who, according to official language, ruled “by the grace of God,” thus placing him beyond the will of his subjects.7 But the pretense to religiosity had by now ceased to be applied to the sword of authority: for Machiavelli it had become merely a “bloody knife.”8 Along with the State, the Church also was affected by signs of the transition of the symbol from the sacred to the profane. Occasionally it was in quarters most closely linked to the official religion that a radical, worldly, even pagan, symbolism could be found. We have already mentioned the case of the ancient Roman symbol of the fasces and the axe which appears on the title pages of 18th-century editions of the sentences of the Roman Inquisition. We can compare it to Luther’s exaltation of sovereign power as residing in the sword. By making itself a State, the Church was appropriating the language of violence as an instrument of punishment and vehicle of terror. The severed heads rolling about on countless scaffolds were the necessary ingredient for a fearful propaganda campaign which found abundant confirmation in real life. It was only in the 18th century that the reaction to such frenzied and bloody activity by the criminal courts suggested to Cesare Beccaria an image of a disarmed Justice turning its horrified gaze away from the severed heads proffered by the executioner. This was accompanied by a revolution also in iconography, in which the popular Christian representations of the martyrdom of St. John the Baptist circulated by the confraternities were translated into a language of symbols echoing the ancients, and the divine ray blessing the martyr was replaced by that of an enlightened reason which rejected the death penalty. There was no lack of effort to reject this message: the sword was symbolically restored into the hands of the feminine figure and the divine eye returned to illuminate her in images attempting to oppose Beccaria’s thesis. Some felt it necessary to redirect the attention of the reader to that symbol: in Francescantonio Pescatore’s work against Beccaria, a caption under the image of armed Justice pressed the point home with the words “not without reason does she have a sword” (“Non sine causa gladium portat”).9 But from that time on a sword in the hand of justice became less common. The very fact that this could be discussed and that opposing parties formed on both sides of the question was an absolute novelty. Doubts about the need for gallows and scaffolds pro7 On the “Caesarean sword,” see Gino Gorla, “I tribunali supremi degli Stati italiani,” in La formazione storica del diritto moderno in Europa, 1: 488-491. 8 Such was the object ordered to be exhibited in the public square of Cesena by Cesare Borgia, duke Valentino, next to two pieces from the body of don Ramirro de Lorqua (see Niccolo‘ Machiavelli, The Prince, chap. 8). 9 Eighteenth-century images of Justice with a sword and with the sun of God’s eye are reproduced in F. Venturi, Settecento riformatore, vol. 1, figs. 57,58.

Changes In Symbols

Figure 97  Decollazione di San Giovanni Battista, engraving by Silvestro Neri, drawing by Domenico Fratta, Bologna 1733. Private collection

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gressed hand in hand so that the feminine figure symbolizing just rule over the people assumed the traits of another divinity: Reason. As represented by Francisco Goya, “divine reason” held the scale of justice, symbol of law and equality, in one hand but used the other to clutch a whip and drive off the black crows of an oppressive and superstitious religion.10 Nevertheless, it was only with difficulty that the seated goddess was made to abandon her weapon on the heap of the usual instruments of suffering described by Beccaria. His feelings of horror were not shared by many of his greatest contemporaries, from Montesquieu to Kant. There was instead general consensus on the formula summing up the central objective of the reform and the essence of the new idea of justice: “The greatest happiness shared by the greatest number,” Beccaria had written. That formula affected Bentham deeply when he read it: “the greatest happiness principle,” the lesson he learned from the person whom he called “my master, chief evangelist of reason.”11 That the pursuit of happiness was an unalienable right of every human being was enshrined in the Declaration of Independence of the English colonies in America (1776). The progress of the idea that society consisted of individuals endowed with equal rights was replacing the representations of the body of society as a compact organism superior to and including individuals, and this put into crisis its metaphysical justifications. The principle proposed by Bentham according to which each person had to count as one and no one for more than one, remained on the horizon as an ideal. But meanwhile how the liberty of the individual could be reconciled with subjection to the law was becoming an urgent problem. And the lesson of the images consequently became more pressing than in the past. Besides the sword, other symbols were modified, moving from the sacred to the civic sphere. The symbol of the book was ancient and solemn. In medieval culture, the Holy Book of the Bible and that of the written law—from city statutes to the fundamental collections of the Justinian Corpus and of canon law—exerted a constant presence and played an essential symbolic function in the administration of justice. It was upon the Holy Book—the Bible, the Breviary, the Missal—that one placed one’s hand when taking an oath in a solemn act of commitment. French judges swore on an open Missal, touching 10

11

Francisco Goya, “No deges ninguno.” The feminine figure with a scale in one hand and a whip in the other is identified as “Divina Razón” (“Divine Reason”); the engraving, housed in the Museo del Prado, is reproduced in W. Pleister and W. Schild, eds., Recht und Gerechtigkeit, p. 207, note 343. L. Radzinowicz, A History of English Criminal Law, 1: 378; C. Beccaria, Dei delitti e delle pene, pp. 562-563 (translations modified).

Changes In Symbols

Figure 98 Francisco Goya y Lucientes, Divina razón, Indian ink and sepia, 1820-1824. Madrid, Museo Nacional del Prado

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with one hand the figure of the crucifixion.12 And the apocalyptic image of the Book to be opened at the end of times was among those that cropped up most frequently in sermons and in iconography, whether it was the great book of all of humanity or the other, the book of individual conscience which everyone was obliged to possess at the moment of dying.13 But the appearance of a legal culture based on the Justinian Corpus and assigned to the wisdom of a learned profession had displaced the Bible from its symbolic centrality in matters of justice, just as it had banished the crucifix from deathbed conversions of the condemned and of the dying. Quite a different importance had been assumed by the code of written laws among the attributes of the judicial function. And few doubts could be entertained concerning the contents of the book that the newly formed representations of justice placed alongside ancient symbols during the modern era: after Luther had publicly burned the body of canon law together with the papal bull of excommunication and the summa of confessional case histories compiled by Fra Angelo da Chivasso, the justice of God and the justice of men had taken different courses and the only book available to justice was that of positive laws. It was here that the judge acquired his knowledge and it was on this that the people’s trust was meant to rest. But the transition from one book to the other was a complicated process full of contradictions. One macroscopic case will suffice: among the images which characterized Henry VIII‘s self-promotion campaign, one represents him high on his throne distributing Bibles to his bishops.14 A macroscopic case indeed! And this has been the situation in the modern history of the dispensing of justice in England, a country which had not experienced that diffusion of Roman law which brought such upheaval to the Germanic world bound to customary law and which suggested to Sebastian Brant the image of blindfolded justice. If we reflect on its consequences for the history of Anglo-Saxon culture—first of all in the United States—we can easily comprehend how important the English variant had been with its mix of empiricism (the examination of previous sentences) and of magical values of 12 13

14

See R. Jacob, “Le serment des juges ou l’invention de la conscience judiciaire (XIIe siècle européen),” in Raymond Verdier, ed., Le serment (Paris: Éditions du CNRS, 1991), p. 456. The publisher of Il libro della coscienza (Lucca: Mencacci, 1704), attributed to St. Bernard and compiled by a member of the Lucchese Congregation of the Mother of God, warned readers that it was the only book to possess at the time of death (I thank Elena Bottoni for the reference). See Gregg Walker, Persuasive Fiction. Faction, Faith and Political Culture in the Reign of Henry VIII (Aldershot: Scholar Press, 1996), illustration no. XIV taken from the Coverdale Bible, 1539. Ibid., on the dust-jacket the contemporary image of the king in his chamber devoutly reading the Psalter .

Changes In Symbols

Figure 99 Henry VIII, presents the Bible to his bishops, engraved title-page, 1539. Photo, The Bridgeman Art Library/Archivi Alinari, Florence

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Germanic origin (the unanimous jury).15 Here the symbol of the book kept that sacral value which elsewhere was transferred to legal texts, to the constitution, to codices. In any case the message conveyed in the ever more frequent appearance of the image of the book is clear: it stood as guarantee that one should proceed on the basis of a fundamental and immutable text, which at one time had been that of divine Law, and which now was ready to transfer its sacral quality to the book of human laws. In the course of that transmission the palm of mercy was lost. The law, deprived of its religious foundation and obliged to be equal for all, could not leave much leeway for that act of divine piety and of sovereign judgment which was grace. The images of Justice continued to clutch the sword but allowed the symbol of pardon to drop away. Cesare Beccaria was among the most radical critics of the royal prerogative of granting grace: for him clemency belonged to the legislator, not to the executive authority. The chorus of critical voices which joined themselves to his took the argument in a different direction: severity was essential for public safety. The king’s goodness had been too often abused, the guile of evil doers ended up circumventing legal punishment: this was the opinion voiced by Patrick Colquhoun, an English judge of vast experience, in his treatise on the reorganization of London’s police force.16 The chorus of voices agreeing on this point was extremely varied: on the one hand some looked downward toward the world of thieves and assassins who, going unpunished, placed safety at risk, on the other were those who gazed upward to the privileges of clergy and nobility. The point where these opposed forces met was in the notion of equality before the law which in order to live up to that ideal had to be uniformly rigid and pitiless: just as with the workhouse and the prison, just as with the guillotine. At this point, we can understand why a broad consensus was created around the symbol of the scale as the promise of impartiality. Justice had to be meted out equally, without distinguishing the rich and powerful from the poor and the humble. It was the essential condition to guarantee the safety of the people. However, even to establish the modern idea of equality it was imperative to have recourse to the Christian image of the Last Judgment: the divine tribunal before which there would be no difference of any kind between subjects and sovereign, as recalled by Hobbes for his readers to explain the meaning of 15

16

“The citizens of the United States, proud of their judicial system, generally are not aware of the origin of the rule concerning the unanimous jury verdict” (translated from K. Modze­lewski, L’Europa dei barbari, p. 452). On this entire discussion, see L. Radzinowicz, A History of English Criminal Law, I: 107-137; on Colquhoun, see pp. 134-136, 567 note. The first edition of his treatise is dated 1795.

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justice.17 Thus the traditional symbol of the scale expressed in iconography the promise of equality: but that ancient motif had to undergo a bit of restoration if it was to be preserved. In its original formulation it possessed a precise religious connotation: one of the plates of the scale had to weigh sins before the ultraterrestrial Judge. On the other plate the delicate ostrich feather of the Egyptian goddess Ma’at had been replaced by the merits of the good works quantified by medieval morality by means of elaborate book-keeping mechanisms. Consequently the two plates had to carry different weights and thus were generally represented as unbalanced or as occupied, held up or driven by symbolic figures. But this mechanism had been hampered in two different but convergent ways: on one side, there was the minting of the debt to be paid in the afterlife with the practice of indulgences and with the development of the world bank of credit and loans based on the “golden repository” of the merits of Christ and of the saints administered by the papacy; on the other, the brusque reminder by the Protestant Reformation of St. Paul’s teaching that there was an unbridgeable chasm between the meager human capacity for payment and the enormity of the debt. This had cancelled the medieval image of the struggle between the angel and the devil exalting almost exclusively the attribute of the sword—the divine sword of the Angel and especially the earthly sword of the Christian prince. The symbol of the scale survived this metamorphosis: and instead of remaining suspended on the wall where Albrecht Dürer had painted it in his Melencolia, it returned to be grasped firmly by the hand in the representations of Justice. But the two plates of the scale were no longer portrayed in the act of weighing something, nor even less in an obvious imbalance, as often happened in the images of the Last Judgment. Empty and perfectly aligned, they were destined to suggest a significance which soon enough was—for greater clarity—put into writing: equality. This too was an ancient word, as old as the symbol which expressed it: but nothing in history has been more unequal than the meanings which the word from time to time has covered or of the differences that the assertion of that principle have revealed. Whether revealed or actually created, the equality of God’s only people as proclaimed by St. Paul had abolished the differences between Jews and gentiles but had laid the premises of new and more terrible discrepancies, among which the most fundamental was that between the faithful and apostates and between the baptized and those who were not. Only the return of Roman law and of classical thought in European culture had opened the way to the principle of the existence of natural laws, founded on belonging to the same human nature. It was an ancient 17

T. Hobbes, Leviathan, pt. 2, chap. 30.

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Justice weighing souls, enamel (Meuse), 1160-1170, detail from a reliquary cross. New York, private collection

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principle destined for revolutionary development. While a celebrated Roman lawyer had spoken of equality (“aequalitas”) as the capacity to adapt (Cicero, Mur.), the new equality presented itself with strict rigidity. The formula of medieval equity had stated: “to each his own” (“unicuique suum”). It was intended to affirm the twofold duty, distributive and retributive, which was required so that the act which intervened in a social situation of juridically founded and insuperable differences could be just: whether between cleric, nobleman and laborer, between woman, man or child, between Christian, Jew or Muslim. Now the function of the scale was being reversed: it was no longer meant to weigh the merits and faults of a specific person, considered according to the obligations and rights of its sex and legal and social condition. Intended to guarantee the unruffled and serene application was a code internal to that which held the scale: the Law. Punishment was to be equal for all, regulated by the impersonal principle that there must be a proper balance between the crime and the punishment.18 A new obligation arose: whoever administered the law must apply it inflexibly in every instance, without special treatment for anyone. It was a radical change, but one which did not require abandoning the ancient religious symbol of the scale. What was needed was a written warning that began to spread from that time forward until it became habitually present in every official seat where justice was administered: “The Law is equal for all.” But of the many real differences, the one which emerged as fundamental was the diversity in wealth: the perfect equilibrium between the plates of the scale in official representations was more and more altered by money in the critical and satirical images, which flourished on the margins of the legal conflicts before the courts.19 But in whose name and under which symbol was that Justice administered? The problem presented itself with renewed force at the time of the French Revolution and the demise of the Ancient Regime. Queen Marie Antoinette, drawn by Jacques-Louis David, her hands bound behind her back, but seated proudly erect, as she was being taken to the guillotine, was the real image of the end of that regime and the forerunner of the symbolic figures which 18

19

The French Revolution provided the most solemn statement of the principle of proportionality, joined to the argument of social utility: “La loi ne doit décerner que des peines strictement nécessaires; les peines doivent être proportionnés au délit et utiles à la société” (“the law must only establish punishments that are strictly necessary; the punishments must be proportionate to the crime and of utility to society”) (Déclaration des Droits de l’homme et du Citoyen, 1793, art. 15). It is the case of the English contrast between physicians and charlatans to which an engraving by Jacob Smies (1764-1833) refers. It shows a blindfolded Justice with a scale which a lawyer is showering with money (London, Wellcome Library, no. 17675i).

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personified the new idea of justice placed under the sign of the Nation to be administered in the name of the Republic. The religion of the nation and of the homeland would fill with its own traces all the places from which the symbols of the monarchy by divine right were being progressively eliminated. Juridical nationalism arranged it so that the ancient motifs should be looked at with extraneous eyes: it was precisely on the ambiguous wave of an appeal to the national traditions of Germanic law that Ernst Von Möller reconstructed the exact origin of the symbol of the blindfold.20 The ancient notions were dropped gradually and the means differed profoundly from country to country. Frequently it was the most superficial and obvious aspects that were assailed while the more profound ones remained concealed and survived in traditions, language and modes of thought. The story of the eliminations, of the survivals in compromised conditions would be too long in the telling: we can mention only an occasional episode. And it would be complicated to try to analyze the entanglements arising from the encounters between the ancient Christian foundations and the new sacral characteristics accompanying the appearance of the nation-state, of mass societies, of the totalitarian dictatorships. It suffices to think of the meanings which over time came to be attached to such words as truth, guilt, sin, confession, pardon, martyrdom, salvation, and others as well. Around the theme of injustice suffered for political and social reasons there developed a rhetoric of images of memory which covered public places—from town squares to streets and cemeteries—with monuments and names. The forms drew from the tradition of Christian sainthood and religious martyrdom, superimposing themselves over the ancient cults and appropriating their expressive constructs in the very act with which they often presented themselves as alternatives to the traditional religion. To the justice of the courts tied to acts of violent repression a historical justice as renewal of truth opposed itself. A 19th-century Catholic jurist, reflecting upon the faults of tribunals from the time of Socrates to Jesus Christ, from the St. Bartholomew’s Day Massacre, to the bloodbaths of the French Revolution, from the “French communists” to “their executioners,” wrote an emotional page on the monumental memorials of the injustices perpetrated by judges in the name of “defending society”:

20

“Let every jurist exert himself to make our German law more German, so that the interpretation of the law daily become more just. And so in the future our blindfolded goddess Themis-Justitia will alone remove the blindfold from her eyes” (E. Von Möller, Die Augenbinde der Justitia, col. 152).

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Figure 101 Jacques-Louis David, the execution of Marie-Antoinette, pen and ink drawing. Paris, Musée de Louvre, E. de Rothschild Collection

Oh! How often the chisel of the sculptor covered with infamy the axe of the Magistrate, when on the site of the execution he raised monuments and statues to the victims of that which in its day was called justice… There is no city where a canvas, a bronze or a marble statue is not a reminder of a curse against a ferocious nemesis which intoxicated itself and anesthetized peoples with the prestige of ‘the defense of society.’21 As this passage demonstrates, conditions had matured so that the blindfold of Justice could revert to the original symbol of blindness and folly, rather than that of impartiality. Shortly thereafter the sentences against the Chicago anarchists would confirm that what Francesco Carrara had defined as the “infamous Siren” was continuing her advance. And the hopes of social justice contributed to a religious iconography of a new type: the crown of laurel which in Albrecht Dürer’s “Triumph of Maximilian I” was placed by “Iusticia” on the head of the emperor was balanced from above in the hand of a feminine figure wearing the red beret of the Revolution, while the iconography of the German Social Democrats offered a woman illuminated by the divine star as protection 21

Francesco Carrara, Lineamenti di pratica legislativa penale (1874) (Bologna: Il Mulino, 2007), p. 114.

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for a world of workers which accepted a Madonna and a St. Joseph, solidarists, and a new trinity—Marx, Engels and Lassalle.22 Here brief remarks are in order pertaining to the material symbols in courtrooms. From the official religious patrimony, the European States inherited a deposit of images, rites and traditions which has long continued to color the workings of justice and to offer a familiar scenario consisting of usages which were endured more experienced. It suffices to think of the images found in the places where justice is administered, such as crucifixes and representations of the Last Judgment: inevitably they were to be gazed upon by judges and defendants, lawyers and their clients, not to mention the spectators packed into the courtrooms for some famous trial. Holy furnishings of this sort have become so common as to pass for the most part unnoticed. Occasionally they have provided subjects for consideration and reflection to lawyers and judges, thereby entering into that close relation to sacred oratory, judicial rhetoric. Still talked about, for example, is that gesture made by the lawyer for Alfred Dreyfus who pointed out the crucifix to the presiding judge, exclaiming: “There is the first innocent man to have been condemned!” But it was in France, while public attention was concentrated on the Dreyfus case, that conditions matured sufficiently for the banishment of religious symbols from the courtroom. The presence of the crucifix in tribunals had been permitted by law from the very beginning of the modern era. But the secular State originating with the French Revolution, with its ordinances and legal codices which from the time of Napoleon had left the exercise of the freedom of religion only to individual consciences, could not long tolerate this situation. “It shall be forbidden in the future to erect or apply any sort of religious sign or emblem on public monuments or any other public place, with the exception of buildings intended for worship, places for burial in cemeteries, funereal shrines, and also museums and exhibition halls.” So states article 28 of the law promulgated on 9 December 1905 which abolished the previous concordat and established in France the separation of Church and State.23 Thus ended officially the long history of the religious symbols of justice: or at least those explicitly and openly religious. But this was only in France, or, more precisely in France c. 1905. Almost a century later it became apparent that a segment of the country continued to ignore the regulation. Alsace and the Moselle region in 22 23

See Renato Zangheri, ed., Storia del Primo Maggio (San Marino: Aiep Editore [n.d]), fasc. 2, pp. 25-26. “La séparation des églises et de l’état. Loi 9 décembre 1905,” Journal Officiel, 11 December 1905 (new ed., Milan: Fondazione Giangiacomo Feltrinelli, 2005).

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Figure 102

Female allegorical figure with the beret of the Revolution, celebratory postcard for the holiday of May 1, printed in Vienna, 1890

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Feminine allegorical figure representing “the defense of labor,” portraying Marx, Engels and Lassalle, commemorating May 1, published in Der Wahre Jacob, 1890, no. 98

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the alternations which for centuries had shifted them to one side or the other of the border with Germany, had returned to be part of France after 1918. In their case the 1905 law had not prevailed. Thus in the courtroom of the Metz tribunal an enormous crucifix, the work of the Alsatian painter Théodore Devilli, was still openly displayed. It was a suggestive presence: and perhaps because of it in April 2000 Attorney General Georges Garrigues felt inspired to urge a defendant to repent so that he might benefit from divine forgiveness.24 But secular France, daughter of Voltaire and the Revolution, reacted negatively. Soon a white sheet covered the crucifix and the neutrality of the public domain was respected. The episode fits in perfectly with the history of those complicated and contradictory relations between religious symbols and the values of associative life in the European world. The model of the clean separation between the secular State and the religious confessions which became established in France resulted from a particular history: from the 16th-century Wars of Religion and the experimentation with a model of religious toleration at the time of the Edict of Nantes an alliance had been forged between the State and a national Church (the Gallican Church), which finally attained the revolutionary arrangement of a civic constitution for the clergy. A totally different tradition evolved in the Italian peninsula where the hegemony of papal power was constructed over the centuries thanks to the instruments of religious consensus and the political weight of the papacy. In Italy the Lateran Pacts of 1929 reestablished a concordat between the Holy See and the secular government and even recognized a “sacred character” for an entire city—Rome—with the possibility of reintroducing sacrilege as a crime and laws pertaining to blasphemy. Consequently, the sacral aura of the public places serving for the instruction of the masses—schools, courts, local and national entities of government—once again became guaranteed by the ancient religious symbols. This was accompanied by controversy, especially after the referendum on divorce and abortion: paying the price was the presence of crucifixes in the schoolroom, and the repeated attempts to remove them. It fell to the writer Natalia Ginzburg to publicly defend their presence with arguments that were not confessionally inspired but which expressed how much the Christian inheritance could still speak to the sensibilities of our times. With her extraordinary capacity to adhere to the basic essence of life and sentiments beyond ideologies, Ginzburg

24

Monique Raux, “Un voile jeté sur la ‘Crucifixion’ de la Cour d’appel de Metz. Compromis pour la neutralité du service public,” in Le Monde, 23 September 2000, p. 14. The article is cited also by C.N. Robert, Une allégorie parfait. La Justice: vertu, courtisane et bourreau.

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Gustav Klimt, Jurisprudence, oil on canvas, 1903-1907

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invited us to see in the crucified man exhibited in public places “the sign of human suffering.”25 But aside from symbols, a question of the utmost importance had been raised with the judicial reforms of the 18th century: the idea of equality before the law, revealing indisputable Christian roots to the gaze of a universally human Reason, posed the question as to how Justice could operate with absolute impartiality in an infinitely diverse world. We have evoked some feminine images—Reason, Liberty, Equality. Their entrance in the sphere of symbolic communication was to confront Justice with this wholly new problem. The profound upheavals of the Reformation and of the English 17th-century revolutions shook to their foundations traditional concepts of the legitimacy of authority. The discussion which had engaged Machiavelli, Hume and Kant on the relationship between the useful and the just, force and law, left as a heredity for theoreticians and rulers the problem of how to establish justice in purely rational terms and in the absence of unanimously shared traditional religious values. In terms of symbolic language, it might be said that the scale and the sword progressively ceased to be guided by the hand of God and were entrusted to secularized forms of religion—the people, the nation, class and so forth— without resolution of the problem endowing those symbols with the ancient religious certainty of what is just. The Judgment scene which Gustav Klimt painted in the early 20th century in an allegory of Jurisprudence for the University of Vienna shows before a tribunal pervaded by severe law and abstract morality the nude body of an old man, prisoner of the coils of guilt which engulf and suffocate him like an octopus. These were the years in which Franz Kafka was trying to find his way graduating from law school (in Prague) but chiefly attending lectures capable of inflicting “large wounds” on the conscience.26 25

26

“Don’t remove that crucifix: it is the sign of human suffering” (“Non togliete quel crocefisso: e‘ il segno del dolore umano,” in L’Unità, 25 March 1988, reprinted in N. Ginzburg, Non possiamo saperlo. Saggi 1973-1990, ed. Domenico Scarpa [Turin: Einaudi, 2001], pp. 126-129). The question at hand concerned a teacher of Cuneo who had removed the crucifix from his classroom and had been ordered to restore it. “It is well that the conscience should receive large wounds,” he wrote in a 1904 letter (Klaus Wagenbach, Kafka [1964]). I cite from the Italian translation (Milan: Oscar Mondadori, 1981), p. 44.

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The Veil of Justice and the Risks of the Limelight This story of images and symbols can have neither a conclusion, nor a recommendation for a formula capable of unlocking new worlds. But it has to be able to register at least some aspect of the complicated and contradictory game that continues to be played out around these same attributes. One especially seems destined to new life: that of the blindfold. Here is that passage: “Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage. Now in order to do this I assume that the parties are situated behind a veil of ignorance.”1 John Rawls’ “Theory of Justice” has aroused great interest and is the focus of discussions concerning a basic problem: how can we achieve the objective of guaranteeing true equity of institutions in a human consortium marked by differences of every type, not only social and historical but also natural. In the absence of a theological and juridical foundation drawn from religious faith, the problem noted by Bentham remains open: finding moral justification for legislation. The idea set forth in this philosopher’s utilitarianistic theory— aiming for the happiness of the greatest possible number--is no longer satisfactory since, in the name of the present or future happiness of actual or presumed majorities, wars and genocide have been justified. Nor can we ignore the continuous emergence of injustices and the disparity of laws provoked by natural causes (differences in age, sex, health, and so forth) or institutional and historical causes (due to micro and macro powers). For this reason also abstract thought about justice, from Locke, Rousseau and Kant forward never ceased confronting the problem of the preliminary conditions of the social contract and responding to the fundamental question: how to proceed so that the norms in that agreement do not register inequalities and actual power imbalances of one contracting party in respect to others, thereby making those advantages permanent? The search for norms that will be valid for a shrinking planet, overcrowded and oppressed, has taken the form of solemn declarations of universal principles of human rights. There, critics have observed, is the new

1 J. Rawls, A Theory of Justice, p. 118.

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_010

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“secular religion,” in fact the new idolatry of a western culture which worships itself and punishes as crimes against humanity only the wars of the defeated.2 We do not need to pursue the discussion on this topic further. What interests us here is the image adopted by Rawls to synthesize his theory: “the veil of ignorance.” To recreate an initial and unprejudiced condition, he proposed the idea that the principles serving as the foundation of the procedures should be established in a state of ignorance in which “the parties do not know the particular circumstances of their own society.” To allow this to happen a starting point is required characterized by total ignorance of one’s own situation in the world: in such an initial state “no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like.” This is the condition which Rawls called “the veil of ignorance.” It concerns, as one can see, a condition to be created artificially but imagined as original: indeed Rawls argued that it “is so natural a condition that something like it must have occurred to many.”3 A state of nature? As we know, the idea of nature has always been evoked in moments when the injustices of society were being vigorously assailed. It was the notion which had presented itself to Montaigne and Rousseau. In fact, Rousseau (the Rousseau of the Social Contract) was, along with Kant, the person to whom Rawls referred to explain his idea of the original position and of “the veil of ignorance.”4 It remains to try to fathom what suggested to Rawls the blindfolded eyes as the “natural condition” of justice: it is not to be found In Kant’s ethics, where, according to Rawls, it is implicit. Ernst Tugendhat, a German philosopher, trying to explain Rawls, alluded vaguely to the figures of blindfolded justice which, according to him, could be seen in medieval cathedrals.5 But Rawls did not need to venture so far. 2 The attack on abstract humanitarianism was made by Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001). But on the question of the rights of international organizations (the United Nations) to declare “humanitarian wars” the discussion remains open and the uncertainty is reflected on the rereading of the past: see Danilo Zolo, La giustizia dei vincitori. Da Norimberga a Bagdad (Rome-Bari: Laterza, 2006), according to whom only the lost war is an international crime. 3 J. Rawls, A Theory of Justice, p. 118, note. 4 Ibid., p. 120. 5 “On voit souvent dans les cathédrales médiévales le personnage de la justice portant une balance dans une main et un bandeau sur les yeux…. Le bandeau … désigne l’impartialité nécessaire à la justice” (Ernst Tugendhat, “Conférence sur l’éthique,” quoted by Patricia Paperman, “Les faits et les personnes: impartialité et aveu dans la justice des mineurs,” in Renaud Dulong, ed., L’aveu. Histoire, sociologie, philosophie [Paris: PUF, 2001], pp. 223-240: 223). The passage does not occur in the Drei Vorlesungen über Probleme der Ethik (1981). Tugendhat’s most im-

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In the American context there is no symbol more solemn and more repeated—and for this reason also more easily turned into a polemical, ironic and satirical image --than “Blindfolded Justice.” It has been encountered for ages in the cathedrals of knowledge, the universities, and in the austere seats of judicial and governmental power. There, “standing on the steps of a marble temple” is how she was imagined by the lawyer Edgar Lee Masters. A shrine of this sort was built in Washington, the Supreme Court building: in 1935 before the solemn Corinthian columns of the portico the American sculptor James Earl Fraser gave monumental form to the theme of the national cult dedicated to the idea of Justice. His “Contemplation of Justice” portrays a woman draped in classical fashion pensively and reverently gazing at a small feminine figure which she is holding in her right hand. Two symbols identify the figurine as the representation of justice: the scale which she clutches to her breast with both hands and the veil covering her eyes. The significance of this composite scene is clear: Justice is the divinity sacred to the entire nation and the Supreme Court is its temple. The fundamental importance of the administration of justice, as expressed in the special place of the judge in the American legal establishment and in his autonomy in respect to any other authority, was considered by Tocqueville as the hallmark and essence of American democracy. As he wrote in 1848, “The judge, though he emanates from the people and depends thereon, is a power to which the people themselves submit. This exceptional status of judicial power derives from its origin, permanence, professional competence, and above all, public opinion and mores.”6 The somber monument to Justice in New York’s City Hall built at the beginning of the 19th century symbolized the promise which the new political reality pledged itself to maintain. The rapid proliferation of similar symbols in the law courts of the nation familiarized the people with the image. In his definition of the character of American civilization, of that “obscure democracy” which was proclaiming in the vast spaces of the New World an idea of liberty born in European religious conflicts, Tocqueville in his greatest work insisted on the importance of judicial authority, on the special relationship between a jury of the people and judges, established on the English model, and on the non-aristocratic context where that model had taken portant work is Selbstbewusstsein und Selbstbestimmung: sprachanalytische Interpretationen (Frankfurt: Suhrkamp, 1979). 6 Aléxis de Tocqueville, “Report Given Before the Academy of Moral and Political Sciences on January 15, 1848, on the Subject of M. Cherbuliez’ Book Entitled On Democracy in Switzerland,” in Idem, Democracy in America, Translated by George Lawrence, Edited by J.P. Mayer (New York: Harper & Row, 1988), p. 743.

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James Earl Fraser, Contemplation of Justice, statue before Supreme Court building, Washington, D.C

root when it was transferred to the American continent. In his formulation of a composite judgment he emphasized the way in which two elements had been united which elsewhere were often in conflict with each other: religion and liberty.7 Tocqueville’s intuition has been revived often under different guises. There are some who in the face of the formal structure and extraordinary growth of the legal literature, have noted analogies with theological writings and the case studies concerning conscience of the early modern era concluding that the system of laws and tribunals in American society is a modern religion which has replaced an older form.8 But there are other, deeper reasons today to reflect on that page from Tocqueville: the interval since it was written has been marked by two world wars fomented by European nationalism and resolved by American intervention in the name of democracy and liberty. The present day is dominated to a considerable extent by the consequences of an American war initiated as part of a project dubbed “Infinite Justice.” And as for 7 Ibid., p. 47. 8 According to Thurman Wesley Arnold, The Symbols of Government (1935) (New York: Harcourt, Brace and World, 1962), pp. 64-68, the modern distinction between supporters of the formal rite and defenders of the informal one in the courts recalls the one between Episcopalians and Presbyterians.

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recourse to images, first the cinema and then television have displaced statues and frescoes, manifestoes and solemn writings, with an unstoppable stream of living images drawn in large part from the world of laws and the courts. The last incarnation of blindfolded Justice, one which renews the singular original conglomerate imbued with an ancient form and Christian spirit, brings us to the thoughts and images circulating in the United States of America and exported from there to the entire world. This recapitulation of the fortune of a symbol opened by recording those characteristics which ancient tradition had developed and which European culture inventoried during a decisive phase in the transformation of law and religion. Let us recall what they are: to hear, to see; ears and eyes. The gaze of God who sees everything, the omniscience of God who can hear even secret words had accompanied and exalted the reiteration of the traits of ancient mythology. To both of these attributes the 20th century brought not only the reflections of a mortal clash among great nations and radically opposed ideologies but also a number of important innovations of a juridical and technical nature through which the power of the divine eye and ear seems actually to have come down to earth placing itself at the service of human authorities without any further need of religious support. An eminent art historian has written “Ours is a visual age.”9 This is true, but only in part. Today the “Panopticon” has been joined to forms of interception of both spoken and written words which do not permit efficacious defenses. Reacting to events in Soviet Russia George Orwell concocted an anguished fable—1984—an example of authority capable of seeing and hearing everything and projected it into a science fiction-like future. Today a part of that future is behind us, rejected and condemned; but another part of it has so greatly invaded our present condition that we can no longer discern its violence, also because the eye that in the so-called democratic societies sees every movement and the ear that hears and registers every word, even the most jealously personal, selectively return publically a part of what they have stolen. Let us recall the juxtaposition between painting and photography suggested by Walter Benjamin: painting draws the spectator to contemplation and permits him to follow his associations of thoughts; as for photographs, instead, liberally entertaining daydreaming does not pertain to their nature. In film the interpretation of every individual image appears to be 9 Ernst H. Gombrich, “The Visual Image: Its Place in Communication,” in Idem, The Image of the Eye: Further Studies in the Psychology of Pictorial Representation (Ithaca: Cornell University Press, 1982), pp. 137-161: 137.

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prescribed by the succession of all those which have preceded them.10 Earlier Kafka had observed that with the camera it is no longer sight which dominates the images but rather it is the images which gain mastery over the observer.11 At the distance of almost a century, we read this opinion based on the early days of film in a world brought together especially by the continuous flux of images in motion: images endowed with a powerful flavor of reality but filtered through the eye of the projector. A decisive eye: the public identifies with the interpreter only by accepting the apparatus.12 Benjamin was struck by the revolutionary nature of the photograph and even more of the cinema, in the sense that they radically subverted and overthrew an entire tradition. This can be established by the connection between popular views and images of justice. An audience which views a film or a news report on television is no longer that court of public opinion to which 18th-century reformers entrusted the task of exerting control over magistrates and judges; this latter-day public tends to be transformed into a mass of hypocritical and amused accomplices, seduced by the camera into believing that they are judges and executioners. At the same time the visualization tendentiously exhaustive of the reality of the trial risks becoming a mechanism of skillful entertainment of the masses while the truly important questions treated by the administration of justice take place elsewhere, shielded from public control (as we shall see below). Symbols and procedures of the most ancient tradition, by now unrecognizable, surface in the new relationship between images and reality. Just one emblematic case will suffice to demonstrate the metamorphosis of an ancient component in the search for truth: the confession. In the second half of the 20th century film and television have familiarized spectators everywhere with the formula of the so-called “Miranda Warning,” the words by which the police when making an arrest caution the individual of the right to remain silent since from that moment anything said could be used in the case against him or her. After 1966 when the U.S. Supreme Court approved the proposal by Chief 10

11

12

Freely adapted from Walter Benjamin, Selected Writings, vol. 4, 1938-1940. Translated by Edmund Jephcott and Others. Edited by Howard Eiland and Michael W. Jennings (Cambridge, MA: Harvard University Press, 2006), pp. 251-283 (“The Work of Art in the Age of its Technological Reproducibility: Third Version”). According to Shulamit Almog and Ely Ahoronson, “Law and Film: Representing Justice in the Age of Moving Images,” Canadian Journal of Law and Technology 3 (2004), no. 1: 1-18: 17, note 44, the thought of Benjamin and Kafka was equally critical in regard to the cinema; actually Benjamin underlined all its revolutionary force. Adapted from Walter Benjamin, Selected Writings, vol. 4, 1938-1940, pp. 251-283.

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Justice Earl Warren to oblige the police to apply this formula at the risk of jeopardizing the evidence that subsequently might be collected, those ritual words have been the subject of intense discussions: on the one hand, they appear as proof of the capacity of a judicial culture to place limits on itself in order to defend individual rights, even those of the most hardened criminal; on the other hand, they have been criticized as the hypocritical protective screen of an abusive and violent system. And for students of the law as for the viewers of cinematic fiction, they have become a target riddled by clever exceptions capable of saving the guilty person from just punishment.13 A history as yet brief, but an exceedingly troubled one. This will seem less strange if we consider that the Miranda Warning is the latest incarnation concerned with an ancient instrument of justice created by medieval Christianity, the confession. What had been extorted by inquisitors through torture and obtained through gentle means by confessors thus continues to play an important role in the judicial system, even if it has almost totally lost its ancient significance as a token of penance and the onset of spiritual regeneration. The contrast between the two ancient components continues to be perpetuated around it: on the one hand, confession as the “swansong” of the condemned person, extorted by those in power to demonstrate publicly that it is properly performing its role in the “defense of society”; on the other, confession as the need for self-accusation and of being pardoned, as a final accounting of one’s self to save one’s soul or something equivalent--one’s good name, the memory for posterity. The two threads continue to intertwine inextricably in the conscience of the condemned, and in the practices of power, arousing familiar echoes in those who recall the previous history of Christian justice. The examination of his own conscience about which Nikolaj Bucharin spoke in his letter to Stalin dated 10 December 1937, on the eve of his execution, was still that of ancient religious practice: and the images tormenting the dictator’s victim, even though he declared that he was not a Christian, were suggested by a religious vocabulary—the soul, original sin, Judah’s betrayal.14 Although these may have been Bucharin’s sentiments, what counted for Stalin was not the private revelation of the soul which opened itself up to him as the equivalent of the ancient God but the public confession. Once again the sacrament of the profound truth of personal conscience was repressed through the workings of power, and the subjection of 13 14

For the most recent discussions on the subject, see the rich, just cited survey by S. Almog and E. Aharonson, “Law and Film: Representing Justice,” p. 18, notes 74, 75. For the confession, see Nicholas Werth, “L’aveu dans les grands procès staliniens,” in Renaud Dulong, ed., L’aveu. Histoire, sociologie, philosophie, pp. 99-115: 110-115.

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the individual to the reason of state and party went far beyond the most violent and arbitrary forms of the religious persecution and inquisitorial trials of the European past. The Miranda Warning, invented to check authoritarian violence in regard to confession as an instrument of police investigation and the execution of justice, instead is the child of a later epoch and of a legal culture founded on individual rights. According to a suggestive interpretation,15 the birth of this new incarnation related to the rite of confession must be looked for in the Calvinist and Puritan roots of the American tradition and in an idea of truth and confession traceable to Rousseau and not to the Council of Trent: it was meant to protect incarcerated persons from the deeply felt urge to confess non-existent crimes when they were subjected to the authority of others. It is not the case to dwell here on the discrepancy between the intentions of legislators and concrete results, because there is a different and perhaps even more serious disparity which needs to be mentioned, that between prosecutorial reality and the cinematographic image of recourse to the Miranda Warning.16 We should now put behind us the sphere of the sense of hearing, to which belong the metamorphoses of confession and the uses of the recordings reserved for the special ear of Justice, and take up again the thread of that sense of sight with which we have been engaged up to now. The most obvious observation is that in comparison to hearing sight has experienced an even more noteworthy, or at least more significant, modification. In the face of the invasion of visual messages with which we are bombarded by electronic devices, some among us have proposed talking about a “pictorial turn,” a profound moment in the collective relationship with images.17 But that relationship risks going in the same direction as the so-called “linguistic turn,” eliminating the element of reality in the experience. By these means the image of John Wayne and his Colt revolver have epitomized for spectators around the world how the law is enforced American style.18 Instead there still is no adequate reconstruction of the aggressive individualism promoted by the government of the United States 15 16

17

18

See Peter Brooks, Troubling Confessions. Speaking Guilt in Law and Literature (ChicagoLondon: The University of Chicago Press, 2000). S. Almog and E. Aharonson, in the essay “Law and Film: Representing Justice,” have analyzed the cinematographic use of the “Miranda Warning” and of the ”Warrant Requirement” and the effects that their use have produced on the image of justice. This is the opinion of Klaus F. Röhl, “Gerechtigkeit vor Augen. Visuelle Kommunikation im Gerechtigkeitsdiskurs,” a text that first circulated on-line and subsequently was printed in Kriterien der Gerichtigkeit, Writings in Honor of Christofer Frey on his 65th birthday, ed. Peter Dabrock (Gütersloh: Gütersloher Verlagshaus, 2003), pp. 369-384: 363. “For some, John Wayne is iconic” (D.E. Curtis and J. Resnik, “Images of Justice,” p. 1768).

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which through its laws crushed native tribes, killed more than 250,000 of their people and robbed them of their lands through a series of judicial maneuvers which reduced them to a condition of “domestic dependent nations.”19 But it is especially with the arrival of television and the technical capacity to transmit visually news items of events, misdeeds and the administration of justice that things changed in regard to the relations of the public with both the reality and myths of the penal and court systems. On the connections between television and justice no country has lived through more serious, fundamental experiences than the United States. And none has exported more portrayals of justice: the forms projected by the cinema and television have now replaced in popular culture local traditions and the official formulations of the law with those mediated by mass culture. For this reason also the image of blindfolded justice has experienced an extraordinary variety of social applications, from the poster to the tattoo and has moved legal scholars to confront the issue of its basic ambiguity.20 Even before television appeared on the horizon of criminal trials, courts in the United States had been compelled to formulate rules to regulate their relations to the press and to radio, institutions basic to the service of public opinion and to the rights of citizens to the free flow of information. The 1935 trial against the kidnapper of the Lindbergh child took place in a climate of such morbid interest and such an excessive invasion of privacy on the part of journalists and photographers as to compel a special commission of the American Bar Association to recommend the prohibition of film cameras and radio reporters in the courtroom (Canon 35 of the ABA).21 In 1952, with the onset of television, Canon 35 was brought up to date by the addition of television alongside the radio and photographers. But it was intended as a recommendation, not a binding regulation. And in the American system, so respectful of the rights of the individual states, there were many exceptions, supported by the argument of the educational utility of televised reporting. A judge observed as early as 1933 that the public had entered “in an age of pictures” and people were learning more from what they were seeing than from what they were reading. The teachings of St. 19

20 21

I borrow these details on the question (approximately) from Michael K. Green, “Images of Justice,” International Journal for the Semiotics of Law 7 (1994), no. 21: 241-251. At pp. 247251 we have a first listing of cases of judicial expropriation against indigenous people, taken from “Fletcher v. Peck” (1810) to “Lone Wolf v. Hitchcock” (1903). An issue pressed by D.E. Curtis and J. Resnik, “Images of Justice.” Here we are following the precise account in Paul Thaler, The Watchful Eye. American Justice in the Age of the Television Trial (Westport, Conn.-London: Praeger Publishers, 1994).

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Gregory the Great, to which we alluded in chapters three and four, were once again in fashion. It was feared that the exclusion of television from the courtroom would prevent the people from becoming acquainted with the American judicial system. In 1956 permission was granted in Colorado for the televised broadcasting of a trial based on a sensational crime. It was argued that by seeing the judges at work the public would appreciate the advances that justice had made. In reality, it soon became clear, that aside from the questionable pedagogical advantages, the presence of television cameras substantially altered the behavior of the judges: the consciousness of being seen by a vast public heightened their awareness of the importance of their images. The matter had already been recognized in 1955 at the time of the first trial to be transmitted over television. On that occasion the presence of the TV camera was kept from everyone except the judge; but later members of the jury declared that they had noticed something special in his conduct of the trial which had appeared unusually solemn and “intense.” In spite of uncertainties and controversies, television’s progress has been irresistible. In 1981 twenty-nine American states permitted television cameras in their courtrooms; by 1993 the number had grown to forty-seven. In 1988 the project of a “Courtroom Television Network” was born, a channel devoted exclusively to the broadcasting of actual trials in their entirety. The transmissions which began in 1990 have been to this day the subject of many discussions and divided opinions. The debate has been lively with conflicting points of view being argued resulting in measures that have attempted to regulate and control television’s advance. In September 1994 a panel of federal judges expressed itself in favor of removing TV cameras from their courts, a move than ran contrary to what was happening in the individual States where more and more courtrooms were being opened to television transmissions.22 Two points should be emphasized among those that have emerged: the educational advantages bandied about by supporters of the benefits deriving from the transmissions have often revealed themselves to be illusory. For many spectators who had followed trials through television the judicial aspects continued to seem “mysterious rites.” Another point worthy of consideration is the exceedingly complicated way in which the formal authority to judge has had to reckon with the influence wielded by the prejudices of the great mass of spectators. Some feared a lynch-law climate while others pointed to the unpredictably mild sentences in cases dominated by the clamor of the news channels. The question remains: whether and in what measure the prejudices and enmities of the public, amplified by the media, influence judicial decisions. 22

This observation was made by David Ransom, in Trial (December 1994), p. 74.

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Television and justice, then, are the modern equivalents of the ancient problem of the all-seeing eye and of the blindfold. In comparison to the American experience, the practices of other countries and of Europe in particular have revealed significant differences in their approach to the question. The assessment made by two legal experts suggests that “in the vast majority of jurisdictions television is not admitted in courts of law.”23 In Canada, Germany, France, Austria, Ireland, Belgium and Luxembourg there is a clear-cut prohibition against it. Germany’s experience with audio-visual transmissions during the Nazi era (which began with the radio broadcasts of the trial mounted after the Reichstag fire in 1933) has been part of the discussion in the debate over the use of televised presentations during trials. A law of 19 December 1964 prohibited, without exceptions, the appearance of TV cameras during the proceedings: the sentences which preceded that regulation emphasized the fact that the presence of the cameras impinged on the self-control of witnesses diminishing their reliability and impairing the quest for truth which is the objective of justice. Subsequently, with the growth in the number of private television channels and of celebrated trials such as those in 1992 against Erich Honecker and in 1995-1997 against members of the Politburo (for the killing of civilians at the Berlin wall) the pressure to permit audio-visual information increased. But rigid laws have always regulated times and practices.24 Similarly, there have been discussions concerning the possible validity of the enlightenment principle that public opinion plays a role in the achievement of true justice.25 In France the prohibition imposed by the new Code of Penal Procedure in 1959, renewed in 1981, experienced two important revisions: the first, commencing in 1985, was taken at the initiative of the Minister of Justice Robert Badinter, and permitted (for a limited period and under public control) the taping of hearings in their entirety for the purpose of establishing “historical archives of justice,” as documents to be consulted only after the passage of time, pursuant to rules applicable to archives containing private papers. The second, dating 23 24

25

Fulvio Gianaria and Alberto Mittone, Giudici e telecamere. Il processo come spettacolo (Turin: Einaudi, 1994), p. 84. See Guido Britz, Fernsehaufnahmen im Gerichtsaal. Ein rechtsvergleichender Beitrag zum Offentlichkeitsgrundsatz im Strafverfahren (Baden-Baden: Nomos Verlagsgesellschaft, 1999), pp. 34, 39-44. From the discussions of German jurists concerning the intellectual tradition founded by Kant and analyzed by Jürgen Habermas (Strukturwandel der Offentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft [Frankfurt a. Main: Suhrkamp, 1990]), G. Britz, Fernsehaufnahmen im Gerichtsaal, pp. 189-225, retrieves an affirmation of the value of publicity as function of the transparency of the system of government and of the democratic control over procedure.

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from July 1990, was determined by the echo of the trial against Klaus Barbie and authorized that at least in one specific type of case the filming of a trial can be shown: when crimes against humanity are at issue and after the pronouncement of a definitive sentence against which there can be no appeal.26 So, “old Europe resists, the United States does not, and we are with them.”27 “We,” the Italians: the new trial Codex of 1989 under article 147 allows “mediated mechanical publicity,” photographic, radiophonic, televised “for the sake of the rights of the press” and so long as there be no “prejudice against the serene and regular proceeding of the hearing or of the judgment.” The sole person entitled to decide in the matter is the judge, who can also ignore the absence of consensus between the parties involved “when the interest of society is at stake.” And the chief “interest” still concerns the spectators—“an immature lot” to be educated by entertaining them in line with a typical Counterreformation formula. The sole restriction concerns photographing against their will the faces of persons caught up in the proceedings. So it is not Justice that will be blindfolded, but the persons being judged: the only veil remaining in a trial that has become a spectacle, an elementary and obvious limitation. There is no need to trace the process back to the historical precedents of slanderous images to comprehend what might ensue from the publication of a face connected to a crime, to any sort of dishonorable act. The defamed person would have difficulty reentering everyday life. Still, this veil is a residue of archaic values, suggested by a culture of shame by now forgotten in the modern world of the image. In fact, in actual society it is often the defamed person who tears away that veil from his face, seizing the occasion of momentary celebrity produced by the crime to become a portrayer of himself, transforming reality into fiction and, showered with requests, acting out on television screens the role that has been affixed to him. Much grimmer and more disquieting are the hoods placed over the heads of persons arrested in far flung places and transported to the Guantanamo Bay prison in Cuba, manikins chained and deprived of the most basic human rights in the name of that superior principle of the defense of society, the impending menace of which Francesco Carrara warned us long ago. Thus, through apparently similar ways but on the basis of very different cultural stratifications and political and social realities, the small Italian phenomenon and its preponderant American counterpart have attained analogous results. One in particular seems worthy of note because it concerns the 26

27

According to G. Britz, (ibid., pp. 156-182) the French model, even with all the restrictions imposed on television transmissions, represents a compromise between the American and German examples. F. Gianaria and A. Mittone, Giudici e telecamere, p. 90.

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function of the gaze: the divine eye that in ancient times was imagined to rest on judges has been transformed. It has become the collective one of the mighty Leviathan and thus has assumed a greater and more immediate power, at least in appearance. On this matter opinions and facts are somewhat ambiguous. What is certain is that, not operating primarily within the realm of conscience but rather on what one sees and feels, the collective gaze influences the selfcontrol of witnesses and the holding forth of judges. If we take in account not only the workings of the courts but also the more general perception of criminal violence and the protection of institutions, it seems likely that the collective emotions stimulated by images strongly influence the conduct of the trial and the final sentence, contributing to a general sense of fear and a clamorous demand for harsh punishment. Who pays for this are the unfortunates for whom the sole advance of modern jurisprudence in respect to the inquisitorial system was invalidated, namely the presumption of innocence overturned in favor of the presumption of guilt. Power is recovered by those who repeat to the honest and apprehensive citizen the reassuring message that Friedrich Schiller had put into verse two centuries earlier. The journalist who pursues fame through the use of disturbing images and sensational discoveries, “the scoop,” thus becomes a cog in a machine increasingly dominated by political and financial interests. One thing is certain: telecast images can transform reality into a performance and exploit the echoes of a famous trial following only the logic of the marketplace and not the improbable educational ends placed as fragile bulwarks by the laws. The distortions that ensue are—it is incumbent to say it—visible to everyone. The boundaries between reality and fiction are often lost so that with increasing frequency the condemned person, though guilty, turns into the hero of an imaginary world where the triumph of evil long ago replaced the edifying fable of the victory of good. The technological present restores to us the elements, reversed and distorted, of the public rituals which were the ancient executions. Thus, something endures; something of the ancient forms also is reborn. In the execution blocks of American penitentiaries a Catholic nun has created a modern version of the ancient religious comforting of the condemned.28 And it is worth noting that the eye of Justice, the sense of sight, exalted as eagleeyed, criticized or celebrated when it was covered by the symbol of the blindfold, has been transformed and generalized into an unlimited televised presence, so vast and widely disseminated as to be considered the fundamental means of or, on the contrary, the principal obstacle to the attainment of the 28

Sister Helen Préjean, Dead Man Walking (New York: Vintage Books, 1994).

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proper ends of judicial institutions, making whole again the fractured order and the restoration of peace to society, a just retribution for each act. Obstacle to or vehicle of justice? Perhaps there is no answer to the dilemma and we must search for the truth elsewhere. The doubt comes from considering the actual historical antecedents of today’s sensationalization of justice: in the public rite of execution the triumph of the sovereign’s authority as an instrument of the divine will was celebrated and the collective need for protection and security was satisfied. Even modern spectacles can serve similar purposes. Distracted by the great public theater of the prosecuted crime and of victorious justice, spectators may lose sight of the more obscure and disturbing aspects of the uses of power. In fact, the continual visualization of judicial rites has proceeded step by step with its actual disintegration into obscure and uncontrollable segments. Thus, we have witnessed the progressive disappearance of the trial as the search for truth. It would seem that through the defendant’s recourse to plea bargaining, the majority of trials do not reach the argument phase. According to one well-informed scholar, in 2002 in U.S. Federal Courts not even two cases in a hundred came to trial. To this can be added the even more disturbing fact that some of the most important cases involving significant financial and political interests are kept from public knowledge and even avoid a paper trail.29 The trial is annulled, it “vanishes.”30 The highminded battle waged by progressive thinkers in the 18th century to ensure that the light of public discernment should eradicate arbitrary judicial decisions and the inquisitor’s use of torture has certainly profoundly altered judicial procedures: but the heterogeneity of the end results seems to have reversed those achievements into their opposite, so that the maximum public display of the forms of justice by means of images projected in film and television has often ended up concealing or distorting the reality of the forms of judicial persecution which political and financial powers exercise “extra legem,” outside the law. In a time of “zero tolerance” and of the nameless men deprived of their rights incarcerated in Guantanamo and in the many similar places devised to repress the claims of the miserable of this earth, the resurgence of torture and of arbitrary police practices occur under the cover of great campaigns filled with reassuring images, without even speaking of the ancient problem of corrupt judges and their connections to power, a matter that has afflicted Italian society in these years. And it is not only Italians who know that if the accused 29 30

J. Resnik, “Images of Justice,” p. 534 and passim. Mark Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” Empirical Legal Studies 459 (2004), cited in D.E. Curtis and J. Resnik, “Representing Justice,” p. 169.

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is able to mobilize entire television channels, judicial truth becomes whatever message is produced exclusively on his or her behalf. Among the trials transmitted by American television, one of the most horrific was held in the Criminal Courts Building in Manhattan in 1988. The defendant, the lawyer Joel Steinberg, was accused of having killed his adopted six-year old daughter Lisa in a harrowing, drug-fueled paroxysm of violence. Among the many cases of the abuse of minors and murdered children annually recorded in judicial archives, the one against Steinberg achieved immediate notoriety. Various factors fed a morbid collective curiosity, among them the cultural level of the defendant and his social status (he lived in Greenwich Village with his live-in girlfriend, Hedda Nussbaum, in a house which had belonged to Mark Twain), and, last but not least, the fact that Steinberg (and Nussbaum) were Jews. The case provoked widespread emotion and the televised transmissions were projected well beyond U.S. borders. All this translated itself into the continuous presence of TV cameras in the courtroom, but in a discrete, closely regulated manner so that the jury and the court, at least apparently, did not seem to be aware of them and “judicial calm and serenity” were not visibly disturbed. And yet the relations that formed consciously or semi-consciously between the principals and the public were made obvious in many ways: Hedda Nussbaum, who was not a defendant, and herself had been severely beaten by Steinberg, noting the presence of the TV cameras, made changes to her wardrobe, attempts, perhaps, to conceal the extent of her physical injuries. And, equally, the trial participants were continually aware that they were actors being watched by a vast public. The effects of all this were widely discussed: according to some, the broadcasting of the testimony created a lynch mob climate. Steinberg argued that this would cause him to be ostracized from society. On the other hand, the prosecution feared that the jury, aware of the millions of spectators who were following the proceedings, would be led to show themselves excessively lenient. This fear was fully justified: as we well know, alongside the somber representations of official justice encountered in the seats of power, one that continued to reside in the popular mind was the image of blind and cruel justice projected by Edgar Lee Masters. One gets the idea perusing the infinite reminders of what is imagined by popular culture—the cinema, television, graffiti, and even tattoos such as those of a blindfolded “Lady Justice” who, along with a sword, brandishes a large, modernistic pistol. Collective emotions and the sensationalization of justice thus were reviving in society by the modernity of the means of communication the same problem Europe had confronted some centuries earlier with the public celebration of capital executions and other forms of punishment of great theatrical impact. Was this a way to incite the spectators against the accused? Or

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Figure 106  Lady Justice, tattooed figure

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could it not become instead an occasion to make everyone better persons, the condemned (now repentant), the executioner, and finally the bystanders, in turn ready to pray for the soul of the “good thief.” Both solutions had occurred for centuries in European public squares. And now in very different circumstances, the two possibilities were repeating themselves identically in the relationship between the accused and the crowds confronting each other in an arena without borders. Paul Thaler’s previously cited detailed legal study of the Steinberg case and of the employment of television in the courtroom, The Watchful Eye, has left the two hypotheses open and unresolved. In discussing this book reviewers noted that in the Steinberg case the feared public lynching did not take place: not only did the defendant receive a relatively mild sentence, 8½-25 years ­behind bars, the heaviest that New York State law would permit for the crime at the time, but this also occurred in many other more famous cases tried under the eye of the television camera, including the celebrated trial of the football star O.J. Simpson.31 The crowd was ready to feel compassion for the misfortunes of the protagonists: at the root of the collective curiosity over the stories of a miserable humanity were the same prying sentiments and emotions which popular literature with its central characters drawn from the sensationalist press had inspired in readers.32 However, one thing is certain: the televised form of the trial is what dominates contemporary American justice. And in the case of Joel Steinberg and Hedda Nussbaum it seemed that the TV cameras had profoundly transformed the judicial process. Visible throughout was a mute, powerless presence, an image painted on the wall behind the judge of a woman, who, at her side has a young girl clutching a dove and a youth holding a sword. That this stood for Justice we know from the two figures beside her and the object she holds in her hand, a globe over which a cross is superimposed. This Justice was alone in not being able perceive what was transpiring in the courtroom: and it was not only because it was a painting. Her eyes were veiled by a blindfold.33 31 32 33

This according to David Ransom, in Trial (December 1994): 74-75. The observation was made by James Boylan, “Is Justice Served?,” Columbia Journalism Review 33 (July-August 1994): 52-54, apropos the book by P. Thaler, The Watchful Eye. The presence of the image of a ”blind female Justice” is alluded to ibid., p. 105.

SelectOfIndex Select Index Namesof Names

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Select Index of Names Achter, Viktor 91 Acosta, José de 197 Acquaviva, Claudio 77 Adorni- Braccesi, Simonetta 104 Adorno, Theodor W. xiii Aharonson, Ely 242-243 Alberto di Gandino 139 Alciato, Andrea xx, 44-46, 48, 56 Aldi, Monica xv Alfonso X 96 Alighieri, Dante 20, 26, 29, 35, 83 Almog, Shulamit 241-243 Amann, Jost xxiv, 196-197 Amira, Karl von 9, 52, 160, 164 Andermann, Ulrich 122 Anders, Günther xiii Andrea del Sarto 106 Angelo da Chivasso 222 Angheben, Marcello 92 Anselmo d’Aosta, Saint Antiphon, sophist 74 Antonello da Messina 67, 171 Aragón, Juan de 96 Arasse, Daniel 67 Arcangeli, Francesco 21 Aristotle 177 Arnold, Thurman Wesley 239 Ascheri, Mario 104 Augustine, Aurelius, Saint 4, 5, 208 Augustus, Gaius Julius Caesar Octavian 89, Roman Emperor Aulus Gellius 27, 35 , 44 Ayrault, Pierre 49-50 Bacci, Michele 92 Badinter, Robert 246 Baer-Henney, Juliane 21 Baja Guarienti, Carlo 112 Barbero, Giliola 199 Barbie, Klaus 247 Bargellini, Cosimo 105, 116 Baronius, Caesar 86 Bartlett, Robert 14 Bartoli, Daniello 77 Bartolo da Sassoferrato 156

Bartolomeo da Brescia xxii, 139-140 Baschieri, Laura, xv Baumgart, Fritz 29 Beato Angelico (Guido di Pietro) xxi, 64, 66, 69 Bebbi, Giambattista 112 Beccaria, Cesare xxiv, 211, 215-218, 220, 224 Bejczy, Istvàn P. 95 Bellabarba, Marco 217 Bellanger, Christine 67 Bellini, Piero 98, 151 Bellosi, Luciano 100-101 Belting, Hans 173 Benjamin, Walter xiii-xiv, 240-241 Bentham, Jeremy xxiv, 203-204, 207-212, 220, 236 Benveniste, Émile 5 Benzi, Utzima xv, 209 Berengo, Marino 124 Berman, Harold J. 40, 43, 52, 55, 83 Bernard of Clairvaux, Saint 222 Bianchi, Herman 187 Bianconi, Sandro 124 Biet, Christian 113 Blackstone, William 98, 203 Boccalini, Traiano 151 Bonasone, Giulio 69 Bonazzi, Mauro 74 Boniface VIII (Benedetto Caetani), Pope 98-99, 160 Boorstin, Daniel J. 98, 203 Borgia, Cesare, duke Valentino 218 Borromeo, Federico 199 Bosch, Hieronymus xxii, 131-132 Boscoli, Pietro Paolo 9, 171 Bosse, Abraham xxiv, 193 Bossina, Luciano xv Botero, Giovanni 194 Botticelli, Sandro 87 Bottoni, Elena 222 Bouts, Dirk 135 Bovelles, Charles de 36 Bowring, John 297 Boylan, James 252

© Koninklijke Brill NV, Leiden, 2018 | doi 10.1163/9789004368675_011

254 Branca, Vittore 188 Brandt, Reinhard 195 Brant, Sebastian xvii-xviii, xx, 6-8, 29, 36-38, 40, 43-46, 48-49, 58, 60, 62, 69, 170, 175, 182, 187, 222 Bredekamp, Horst 195 Brienne, Walter of, Duke of Athens 112 Britz, Guido 246-247 Brooks, Peter 243 Brückner, Wolfgang 101, 125, 127 Brueghel, Pieter xxiii, 175-176 Bruno, Giordano 51, 199 Brutus, Marcus Junius 100, 157 Bucciantini, Massimo 199 Bucharin, Nikolaj 242 Buffalmacco, Buonamico 101 Buonarroti, Michelangelo 147 Burckhardt, Jacob 195 Butler, E. M. xiii Cadiet, Loïc 27 Calendario, Filippo xxii, 118 Camerota, Michele 199 Cammarosano, Paolo 104 Campi, Emidio 54 Cantini, Lorenzo 191 Caravale, Giorgio xix Carminati, Marco 173 Carnesecchi, Pietro 154-155 Caroni, Pio 170 Carrara, Francesco 229, 247 Cartegni, B. 112 Cassese, Sabino, xv Cassius Longinus, Gaius 150 Castellucci, Leonardo 105, 116 Castelnuovo, Enrico 128 Castilla, Juan de 97 Catherine of Siena, Saint 159 Cesario of Heisterbach 87 Cetto, Anna Maria 34 Chabod, Federico 131 Chambers, David 6 Charles I Stuart, King of England (1625-49) 201 Charles V of Habsburg, Emperor (1519- 56) 43, 52, 56, 98, 166, 168-169, 191 Charles VIII Valois, King of France (1483-98) 217

Select Index Of Names Charles IX, King of France (1560-74) 93 Chartier, Roger 144 Chaulet, Rudy 97 Chiavoni, Luca 6 Chiffoleau, Jacques 140, 192 Christe, Yves 93 Cicero, Marco Tullius 156, 227 Clement V (Bertrand de Got), Pope 163 Clovio, Giulio xviii, xx, 16, 18 Cohn, Chaim 78, 80-81 Cola di Rienzo 100-101 Colonna, Egidio 160 Colquhoun , Patrick 224 Columbus, Christopher 196 Connell, William J. 125 Constable, Giles 125 Constans I, Roman Emperor (337-50) 90 Constantine I, Roman Emperor (306-37) 76-77, 82, 90 Constantius II, Roman Emperor (337-61) 90 Contini, Gianfranco 20, 105 Continisio, Chiara 194 Contorbia, Franco 215 Coppo di Marcovaldo xxi, 64-65 Cosimo I de’ Medici, Grand Duke of Tuscany (1537-74) 191 Constantine, Emperor (306-37) 76-77, 82, 90 Cozzi, Gaetano 116, 119, 121 Cranach, Lucas, the Elder 9, 29, 173 Craon, Pierre de 164 Craveri, Marcello 158 Crisippus 27 Cristoforo di Iacopo xxii, 115 Curione, Celio Secondo 180 Curtis, Dennis E. 6-7, 10, 46, 175, 243-244, 249 Dabrock, Peter 243 Damhouder, Joost de xxiii, 166-170, 177-179. Daniele da Volterra xxii, 116-117 Dannole, Guillaume xxi, 51 David, Gérard xxii, xxiv 79, 128-129, 227, 229, 245, 252 David, Jacques-Louis xxii, xxiv, 6, 79, 128-129, 227, 229, 245, 252 Davis, Natalie Zemon 95, 131 De Caprariis, Vittorio 128 Decio, Filippo 15

255

Select Index Of Names De Ferrari, Giovanni Andrea 35 Del Col, Andrea 80 Della Robbia, Luca 9, 171 Dempf, Alois 161 Derbes, Anne 64 Devilli, Théodore 233 De Vita, Alessandro 148 Dezza, Ettore 141 Diaz, Furio 192 Dickens, Charles 212 Diodorus Siculus 10 Dionisotti, Carlo 6 Dodgson, Campbell 87 Domat, Jean 93, 198 Donato, Maria Monica 104 Doren, August 37 Dossi, Battista xxi, 106, 108 Dreyfus, Alfred 230 Duarte, Luís Miguel 96 Duccio di Buoninsegna xxi, 105-106 Ducloux, Anne 90 Ducoudray, Gustave 163 Dulong, Renaud 237, 242 Dumont, Jean Christian 16, 75 Duparc, Pierre 90 Durand, Bernard 139 Dürer, Albrecht xviii, xx, xxiii, 6-7, 20, 22, 24, 29, 32-34, 36, 55, 69, 148-149, 177, 225, 229 Edgerton, Samuel Y. Jr 145, 170 Edigati, Daniele 15 Egenolph, Christian 48, 56 Eiland, Howard 241 Elizabeth I Tudor, Queen of England (1558-1603) 202 Ellenius, Allan 127 Engels, Friedrich xxv, 54, 230, 232 Erasmus of Rotterdam 43, 56, 60, 74, 157 Errera, Andrea 141 Esmein, Adhémar 49 Eusebius of Caesarea 79 Evangelista, Anna Maria 9 Evans, Michael 44, 46 Fachard, Denis 48 Faivre, Bernard 113 Farnese, Alessandro, Cardinal xx, 16, 18, 148 Ferlisi, Gianfranco 6

Ferrajoli, Luigi 139, 192 Feyerabend, Sigmund xxiv, 196-197 Ficino, Marsilio 74 Field, Richard S. 22 Fielding, Henry 209 Fielding, John 209 Fiera, Battista 3, 5-7, 9, 58 Fioravanti Baraldi, Anna Maria 60 Fiorelli, Piero 139 Firpo, Massimo 155 Flavius Josephus 79 Fosi, Irene 148, 151 Foucault, Michel 21, 207 Franchi de’ Cavalieri, Pio 76 Fraser, James Earl xvii, xxv, 238-230 Fratta, Domenico xxiv, 219 Frederick II, emperor 97, 141 Frugoni, Chiara 101-102 Fulin, Rinaldo 116 Gaeta, Giancarlo 80, 89 Gaiffier, Baudouin de 143 Galanter, Mark 249 Galilei, Galileo 199 Gardi, Andrea 151 Garofalo, Il xxi, 60-61 (Benvenuto Tisi) Garrigues, Georges 233 Gaspare di Puglia, see Heuvick, Gaspard Gaspari, Gianmarco 215 Gattinara, Mercurino Arborio da 98 Gaudemet, Jean 90 Gauvard, Claude 27, 67, 96 Gelfand, Laura D. 131 Gerson, Jean 163-164 Ghelardi, Maurizio 37 Giambologna (Jean de Boulogne) xxii, 106, 111-112 Gianaria, Fulvio 246-247 Gieng, Hans xxiv, 184 Giesey, Ralph 192 Giglio, Cesare xviii, xx, 46-47 Gilly, Carlos 53 Ginzburg, Carlo 69 Ginzburg, Natalia 233, 235 Giordano, Sebastiano 149, 196, 199 Giotto di Bondone 100, 102-103, 187 Gislebertus xx, 22 Goethe, Johann Wolfgang von 52, 54-55, 211

256 Gombrich, Ernst H. xi, 6, 10, 55, 122, 204, 240 Gorla, Gino 209, 218 Goya y Lucientes, Francisco xxiv, 221 Gozzoli, Maria Cristina 105 Grande, Elisabetta 148, 191, 212 Grassi, Maria Vittoria 6 Gratian, Emperor of the West (375-383) 13, 90, 139 Green, Michael K. 244 Gregory I, Pope (Saint Gregory the Great) 75, 86, 245 Grimm, Jacob 9 Griseri, Andreina 188 Grosley, Pierre-Jean 209 Grossi, Paolo 97 Grotius, Hugo (Hugo de Groot) xxiv, 188, 190 Grünewald, Matthias (Mathis ‘der Mahler’) xxi, 69-70 Guicciardini, Francesco 112, 128 Guidicini, Giuseppe xxiii, 171 Guyon, Gérard 97 Habermas, Jürgen 246 Hamblin, Carl ix-x Hamilton, Alastair 182 Hay, Douglas 215 Heckel, Johannes 54 Henkel, Arthur 201 Henry II of Saxony, King of Germany (1002-24) xxi, 93-94 Henry III, King of France (1574-89) xxiii, 14, 152 Henry IV of Bourbon, King of Navarre (1572-1610) and France (1589-1610) 149, 198 Henry VIII Tudor, King of England (1509-1547) xxiv, 222-223 Henz, H. xxiv, 185 Herodotus 128 Hesiod xvi, 5 Hespanha, Antonio Manuel 99 Heuvick, Gaspard (Gaspare di Puglia), xviii, xx, 40, 42 Hoareau-Dodinau, Jacqueline 91, 97 Hobbes, Thomas xxiv, 193, 195-198, 224-225 Hogarth, William xxiv, 177, 201-202 Hohlstein, Michael 95

Select Index Of Names Holbein, Hans, the Younger xxi-xxii, 55, 57, 62-63, 87, 135-136 Holzborn, Timo 43 Honecker, Erich 246 Hoyer, Wolfram 141 Huberinus (Huber), Caspar xxii, 135-136 Huizinga, Johan 160 Hume, David 235 Ignatieff, Michael 237 Ignatius of Loyola, Saint 147 Innocent III (Lotario di Segni), Pope 98-99, 139, 141 Irnerius 26 Isidore of Seville 93 Jacob, Robert xxii, xxv, 6, 9-10, 27, 38, 50, 58, 60, 67, 87, 135, 137, 139, 191, 195, 222, 227, 232 Jacopino di Francesco 21 Jacopo da Varazze 86, 143 Jean Sans Peur, Duke of Burgundy, (“John the Fearless”) 156 Jenkins, Michael W. 241 Jephcott, Edmund 241 Joachim of Fiore 56 John XXII, (Avignonese pope) 101, 125 John the Baptist xxiv, 219 Jordaens, Jacob xxii, 135, 137 Justin I, Emperor of the East (518-527) 97 Justinian, Emperor of the East (527-565) 26, 83, 220, 222 Kafka, Franz xiii-xiv, 1, 113, 235, 241 Kaisersberg, Geiler von 7 Kant, Immanuel 213, 220, , 235-237, 246 Kantorowicz, Ernst H. 26, 138-139, 141-142, 192, 199 Kantorowicz, Hermann 199 Karlstadt, Andreas Bodenstein von 173 Katzenellenbogen, Adolf 16 Kersting, Wolfgang 195 Kissel, Otto Rudolf 10, 12, 52, 55, 175-176 Klemettilä, Hannele 160 Klibansky, Raymond 29, 177 Klimt, Gustav xxv, 234-235 Kocher, Gernot 132 Kohler, Josef 38

257

Select Index Of Names Lactantius (Caecilius Firmianus) 16, 19 Lamoine, Georges 187 Langbein, John 139, 170 Lapi, Giovanni xxiv, 215-216 Lassalle, Ferdinand xxv, 230, 232 Lavenia, Vincenzo xv, 38, 77, 80 Lawrence, George 238 Lecaldano, Eugenio 203 Lecuppre-Desjardins, Elodie 122 Lederle, Ursula 121 Legendre, Pierre 21 Lemmer, Manfred 6 Limborch, Philip van 161 Lindbergh, Charles A. 244 Linebaugh, Peter 215 Loche, Annamaria 209 Locher, Jacob 6, 187 Locke, John 236 Lodi, Giacomo xxiv, 182-183, 199 Lorenzetti, Ambrogio xx, 29-30, 102, 104-105, 211 Lorqua, Ramirro de 218 Louis of Valois, Duke of Orléans 156 Lucas Van Leyden xxi, 72 Ludwig of Bavaria, Emperor (1322-1347) 101 Louis XIV, King of France (1643-1715) 93, 131, 201, 210 Luther, Martin xxi, 52-56, 99, 122, 160, 173, 188, 195, 213, 217-218, 222 Machiavelli, Niccolò 48, 62, 127, 218, 235 Maistre, Joseph de 158 Mâle, Émile 164 Malena, Adelisa 157 Manara, Giacinto 159 Mandeville, Bernard 201, 214 Mantegna, Andrea xxi, 3, 5-6, 67-68, 148, 171 Manzoni, Alessandro 125 Marcatto, Dario 155 Marcellan, Francesca 93 Marchand, Jean-Jacques 48 Marie-Antoinette, Queen of France (1774-93) xxiv, 229 Marini, Sara xxiii, 153, 155 Martineau, Jane 6 Martini, Simone xxi, 105, 107 Marx, Karl xxv, 230, 232 Maschietto, Beatrice 217

Masciarelli, Pasqualino xv Masi, Giorgio 48 Master of Benediktbeuren 58 Masters, Edgar Lee ix-xii, xviii, 204, 238, 250 Matsys, Cornelis xviii, xx, 41 Maximilian of Habsburg, Emperor (1486-1519) 135 Mayer, J. P. 238 Mazzarino, Santo 79 Mazzolini, Renato 199 Mazzoni, Guido 105 Medici, Cosimo I de’ 191 Medicis, Marie de’ 198 Meier, Franziska xv, 40 Melito of Sardis, bishop 81 Memling, Hans xxiii, 173-174 Mengo di Ugolino 138 Menzinger, Sara 29 Merback, Mitchell B. 159, 166 Milani, Giuliano 104 Millet, Hélène 98 Mills, Robert 87 Minois, Claude 44-45 Mittone, Alberto xv, 113, 246-247 Modzelewski, Karol 54, 224 Möller, Ernst von 10, 36, 39-40, 43-45, 48-49, 53, 55, 177, 211, 228 Momigliano, Arnaldo 79 Mommsen, Theodor 75-76, 89 Montagnac, Jean de 143 Montaigne, Michel Eyquem de 196, 237 Montesquieu, Charles-Louis de Secondat 203, 220 Montferrand, Pierre de 67 Monti, Annamaria 15, 209 Montorsi, William 78 Montorzi, Mario 191 Monzani, Cirillo 119 Moos, Peter von 21, 104, 157 Moro, Giacomo Antonio xxiii, 151-152 Morpurgo, Salomone 100 Müller, Wolfgang P. 98 Müntzer, Thomas 54 Musset, Alfred de 76 Napoleon I, Emperor (1804-14) 91, 230 Nederman, Cary J. 95 Neri, Silvestro xxiv, 219

258 Newhauser, Richard 131 Niccoli, Ottavia 14, 22, 97, 99 Niccolo’ di Toldo 112 Nicholas of Cusa 131, 208 Niclaes, Hendrik xxiii, 179, 182 Nicola da Tolentino, Saint 183 Nieto Soria, José Manuel 127 Nougaret, Pierre-Jean-Baptiste 209 Nussbaum, Hedda 250, 252 Olivier-Martin, François 93 Orapollo, Niloo 44 Orcagna, Andrea xxi, 106, 110, 112 Origen 79 Orlando, Francesco 76 Orr, Alan 198 Ortalli, Gherardo xv, 101, 125, 127-128 Orwell, George 240 Otto III, Emperor and King of Germany (994-1002) 135 Pace, Alessio xi Pace, Valentino 92 Paglia, Vincenzo 113 Paleotti, Gabriele 181-182, 196 Panofsky, Erwin 7, 10, 29, 35-36, 44-46, 67, 177 Paolo Veronese (Paolo Caliari) xii, 118 Papa, Dario 161, 215 Paperman, Patricia 237 Pàramo, Luis de 28 Parente, Fausto 80-81 Parpaglia, Vincenzo 155 Partridge, Loren 104, 148 Paruta, Paolo 119 Pastore Stocchi, Manlio 86 Pastoureau, Michel 125 Paul of Tarsus, Saint 156 Paul the Deacon (Paulus Diaconus) 86 Paul III (Alessandro Farnese), Pope 147 Pavone, Sabina 77 Peacey, Jason 198 Pech, Thierry 50 Pennington, Kenneth 192 Pepoli, Giovanni 151 Perler, Othmar 81 Perroud, L. xxiv, 186 Pescatore, Francescantonio 218

Select Index Of Names Peters, Edward 192 Petersen, Hanne xiii Petrarch (Francesco Petrarca) 20 Petrioli, Annamaria 69 Philip II, King of Spain (1543-98) 166 Philip IV, the Fair, King of France (1285-1314) 160 Piacentino, jurist 26 Pietro di Miniato xviii, 2, 101, 105 Pilate, Pontius 79-81, 89, 139 Pine-Coffin, R.S. 5 Pinelli, Giuseppe x Pirenne, Henri 127 Pisanello (Antonio di Puccio Pisano called) 211 Pisano, Giovanni xxi, 106, 109 Pius V (Antonio Ghislieri), Pope 149 Plato 74, 156 Plautus 75 Pleister, Wolfgang 16, 87, 92, 112, 137, 187, 220 Plessi, Giuseppe 182 Pliny the Younger 84 Plutarch 44, 46, 48 Poirier, Jean 139 Polidori, Luigi Filippo 9, 171 Polverini, Iacopo 191 Portinari, Tommaso 173 Povolo, Claudio 121 Préjean, Helen 248 Preysler, Johann Daniel xxiv, 199-200 Primeau, Ronald x Priori, Lorenzo xxii, 116-119, 141 Prodi, Paolo 159, 211, 213 Prosperi, Adriano 77, 87, 142, 163, 170-171 Provost, Jan xx, xxii, 22, 25, 133 Pulido Serrano, Juan Ignacio 153 Quaglioni, Diego 139 Quarton, Enguerrand xxii, 143-144 Radbruch, Gustav 160, 169 Radzinowicz, Leon 207, 209-210, 220, 224 Raeff, Marc 210 Ramponi, Domenico xxiii, 171 Ransom, David 245, 252 Raphael (Raffaello Sanzio) xxii, 122-123 Rau, Ferdinand 170 Raux, Monique 233

259

Select Index Of Names Rawls, John xii, 236-237 Réfice, P. 20 Renazzi, Filippo Maria 215, 217 Renoux-Zagamé, Marie-France 27-28, 91, 198 Resnik, Judith 6-7, 10, 46, 50, 175, 243-244, 249 Rhegius, Urbanus xxii, 135-136 Ricciarelli, Daniele 116 Ridolfi, Roberto 217 Rinaldeschi, Antonio di Giuseppe xxii, 126 Ripa, Cesare 35, 181 Robert, Christian-Nils 10, 14, 27, 69, 86-87, 100, 116, 121, 151, 167, 184, 191, 194, 233, 246 Roberto Bellarmino, Saint 86, 151 Rodriguez Flores, Maria Inmaculada 97 Röhl, Klaus F. 243 Rogier de la Pasture, see Van Der Weyden, Rogier Rossi, Aldo 100 Rotondò, Antonio 53 Rousseau, Jean-Jacques 217, 236-237, 243 Rousseaux, Xavier 91, 97 Royer, Jean Pierre 139 Rubens, Peter Paul 36, 198 Rubinstein, Nicolai 104 Ruscelli, Girolamo 93 Russell, Herbert K. ix Salomon, B. xx, 46 Sanchez-Albornoz, Claudio 95 Santi, Raffaella 196 Sanuto, Marin 116 Sapori, Giuliana 40 Sarpi, Paolo 151 Sassetta, Il (Stefano di Giovanni) xxii, 113-114 Savelli, Marcantonio 15 Savonarola, Girolamo 217 Saxl, Fritz 29, 37, 177 Sbriccoli, Mario xv, 10, 13, 29, 38, 49, 56, 69, 102, 177, 192 Scanaroli, Giovan Battista 113 Scarpa, Domenico 235 Schapiro, Meyer 276 Scheel, Willy 38 Schifano, Laurence 113 Schild, Wolfgang 16, 87, 92, 112, 137, 156, 175, 187, 198, 220

Schiller, Friedrich von 211, 248 Schmid, Heinrich A. 69 Schmugge, Ludwig 98 Schnitzer, Joseph 217 Scholem, Gerhard (Gershom) xiii Schöne, Albrecht 201 Schönfeld, Johann Heinrich xxiv, 187, 189 Schönstedt, Friedrich 157 Schramm, Percy E. 16 Schreiner, Klaus 122, 157, 173 Schütte, Franz Joseph 77 Schutte, Anne J. 80 Schwarzenberg, Johann von 52 Schwarzenberg, Johanna von 38 Schwerhoff, Gerd 217 Seidel Menchi, Silvana 63-64 Sergi, Giuseppe 128 Settis, Salvatore 86 Sevin, Pierre-Paul 161 Shakespeare, William 100 Signorini, Rodolfo 5-6 Simeone, Simeoni 113 Simonato, Lucia 151-152 Simpson, Orenthal James 252 Sixtus V (Felice Peretti), Pope 149, 151 Skinner, Quentin 102, 104 Smies, Jacob 227 Socrates 74, 156-157, 228 Sofri, Adriano 212 Sophocles 16 Spagnoli, Battista 5 Spartacus 76 Stalin, Joseph 242 Starn, Randolph 104, 148 Steinberg, Joel 250, 252 Steinberg, Lisa 250 Stolleis, Michael 10, 44, 167, 177, 199, 211, 213 Tacitus, Publius Cornelius 78-79 Tamburini, Filippo 98 Tanner, Marie 93 Tedeschi, Anne C. xix Tedeschi, John xv, xix, 80 Tedoldi, Leonida 121 Tervarent, Guy de 6, 10, 34 Testaverde, Anna Maria 9 Texier, Pascal 91, 97 Thaler, Paul 244, 252

260 Theodosius II, Emperor of the East (408-450 ad) 88 Thomas Aquinas, Saint 10 Tiberius, Claudius Nero, Roman Emperor 79, 81 Timmermann, Achim 164 Tipton, Susan 116 Tisi, Benvenuto , see il Garofalo Tocqueville, Aléxis de 238-239 Tomás y Valiente, Francisco 97 Trajan (Marcus Ulpius Traianus, Roman emperor ( 98-117 ad) xxi, 85-86, 151 Tröscher, Georg 121 Troiano, Alfredo 242 Trusen, Winfried 140 Tugendhat, Ernst 237 Turner, John x Twain, Mark (pseudonym for Samuel Langhorne Clemens) 250 Ulianich, Boris 75 Urban VIII (Maffeo Barberini), Pope xxiii, 151-152 Valastro Canale, Angelo 93 Valente, Emperor (364-78 ad) 90 Valentinian I, Emperor (364-75) 90 Valentinian II, Emperor (375-92) 90 Valeriano, Giuseppe 148 Valeriano, Pierio (Giovan Pietro Bolzani dalle Fosse) 35 Valignano, Alessandro 77 Van Bruaene, Anne-Laure 122 Van der Weyden, Rogier (Rogier de la Pasture) xx-xxi, 31, 87-88, 135 Van Leeuwen, Jacqueline 122 Van Thulden, Theodor xviii, xx, 13-15 Vasari, Giorgio xxiii, 100, 148-150, 187 Venturi, Franco 211, 215, 218 Verdier, Raymond 222 Vermeulen, Cornelis Martinus 161

Select Index Of Names Veronese (Paolo Caliari called) xii, xxii, 118, 120 Verri, Alessandro 215 Verri, Pietro 215 Vespucci, Amerigo 196 Vézelay, Julien de 156-157, 161 Vico, Giambattista 11, 188 Vigneron, Roger 139 Vigoriti, Vincenzo 210 Villani, Giovanni 112, 126 Vincenti, Umberto xv, 93 Vischer, Peter xxi, 52-54 Vitale Brovarone, Alessandro 143 Vitale Brovarone, Lucetta 143 Vittoria, Alessandro 6, 119 Volkertsz Coornhert, Dirk 176 Voltaire, François-Marie Arouet de 76, 233 Wagenbach, Klaus 235 Waldstein, Wolfgang 89-90, 97 Walker, Gregg 222 Warburg, Aby 10, 16, 37, 69, 87, 104 Wardrop, James 5-6 Warren, Earl 242 Wayne, John 243 Weber, Max 173, 194 Wellhausen, Julius 80 Werner, Joseph xxiv, 188 Werth, Nicholas 242 Winkler, Friedrich 7 Winter, Paul 89 Woodfield, Richard 122 Yates, Frances 202 Zangheri, Renato 230 Zdekauer, Ludovico 11 Zeri, Federico 173 Zolo, Danilo 237 Zorzi, Andrea 217