Rules and ethics: Perspectives from anthropology and history 9781526148919

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Rules and ethics

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Rules and ethics Perspectives from anthropology and history Edited by

Morgan Clarke and Emily Corran

manchester university press

Copyright © Manchester University Press 2021

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While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without the express permission in writing of both author and publisher. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN 978 1 5261 4890 2 hardback First published 2021 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Cover credit: Unknown artist, Moses and the Ten Commandments, c. 1600 (Museum Catharijneconvent, Utrecht) Cover design: Abbey Akanbi, Manchester University Press

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Contents

List of figures  page vii List of contributors viii Prefaceix Introduction: Rules and ethics – Morgan Clarke and Emily Corran

1

Part I: Rules enabling moral life 1 Conscience is tradition: Classical Hindu law and the ethics of conservatism – Donald R. Davis, Jr. 2 Manners and morals: Codes of civility in early modern England – Martin Ingram 3 Control of the self and the casuistry of vows: Christian personal conscience and clerical intervention in the twelfth and thirteenth centuries – Emily Corran

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Part II: Rules and virtue 4 Rules and the unruly: Roman exemplary ethics – Rebecca Langlands103 5 ‘For the love of God’? The First Commandment and sacramental confession in early modern Catholic Europe – Nicole Reinhardt 124 6 Counting good and bad deeds under military rule: Islam and divine bookkeeping in Nablus (Palestine) – Emanuel Schaeublin 145 Part III: Rules about rules 7 Tactics of transformation: Self-formation and the multiplicity of authority in Polish conversions to Judaism – Jan Lorenz 8 Conscience and action in the Islamic madhhab-law tradition – Talal Al-Azem

169 190

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9 Comparing casuistries: Rules, rigour and relaxation in Islam and Christianity – Morgan Clarke

211

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Afterword – James Laidlaw 234 Index243

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Figures

2.1 Francis Hawkins, translator of Youth’s Behaviour, or Decencie in Conversation amongst Men, 7th impression. London: W. Lee, 1661. By permission of the Bodleian Library, University of Oxford. Shelfmark Douce YY 5 (1), frontispiece page 67 6.1 Fieldwork in the Palestinian city of Nablus, 2013–14 (photo: Jonas Opperskalski) 146 6.2 Poster listing deeds for gaining divine reward (photo: Emanuel Schaeublin) 148 6.3 Virtuous actions visualised as treasure chests (photo: Emanuel Schaeublin) 149 6.4 Judgement Day sticker (photo: Emanuel Schaeublin) 156

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Contributors

Talal Al-Azem, Mohammed Noah Fellow, Oxford Centre for Islamic Studies; Member of the Faculty of Theology and Religion, University of Oxford Morgan Clarke, Professor of Social Anthropology and Fellow of Keble College, University of Oxford Emily Corran, Lecturer in Medieval History, University College London Donald R. Davis, Jr., Professor and Chair of Asian Studies, University of Texas at Austin Martin Ingram, Emeritus Fellow in History, Brasenose College, University of Oxford James Laidlaw, William Wyse Professor of Social Anthropology and Fellow of Kings College, University of Cambridge Rebecca Langlands, Professor of Classics, University of Exeter Jan Lorenz, Assistant Professor in Social Anthropology, Adam Mickiewicz University Nicole Reinhardt, Professor of Early Modern European History, Durham University Emanuel Schaeublin, Senior Researcher, Center for Security Studies at the Swiss Federal Institute of Technology (ETH Zürich)

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Preface

The genesis of this book lies in two seasons of the ‘Legalism’ seminar series, which took place in 2016–17 at Keble College, Oxford. These seminars were shaped by the legacy of the series’ previous, distinguished incarnations, as originally conceived by Paul Dresch and others. Our meetings had a number of loyal and engaged attendees, not least Paul Hyams, Martin Ingram and Fernanda Pirie, who contributed to our early ideas relating to rules and ethics. These two years of seminars culminated in the conference ‘Legalism: Ethics and Conscience’, held at Keble College, January 2018, with the support of grants from Keble College and the John Fell Fund, for which we are very grateful. We thank all the contributors, who also included David d’Avray, Philippa Byrne and Vlad Naumescu, as well as Terence Irwin, Fernanda Pirie and John Sabapathy, who acted as discussants, and William Twining, who provided most helpful comments and advice. As we then turned those papers into this book, Morgan Clarke benefited from the support of a Leverhulme Trust Fellowship (‘A New Anthropology of Rules’, 2018–19); Emily Corran would like to thank St John’s College, Oxford, for a Junior Research Fellowship, which allowed her the research time and resources to pursue these interdisciplinary conversations. We are very grateful to James Laidlaw for then taking the interest and time to contribute the afterword, amid his many other commitments. We thank also Meredith Carroll and Manchester University Press, and three anonymous reviewers – especially the last, who provided detailed comments on the entire manuscript as well as Agata Zielinska for her help preparing the index. Finally, we must thank all our contributors for their patience and commitment despite the very difficult circumstances caused by the COVID19 pandemic during the final editing stages. We could hardly have suspected when we began that rules would become such a prominent feature of all our lives.

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Introduction: Rules and ethics

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Morgan Clarke and Emily Corran

A ‘turn to ethics’ has been seen across the contemporary academic ­landscape (Garber et al. 2000). Within social and cultural anthropology, a wave of recent writing has sought to explore ethics and morality as a distinct but essential part of the human experience. In so doing, it has been inspired by a range of conceptual approaches, most prominently (but not exclusively) the later writings of Michel Foucault on ‘the care of the self’ and the neo-Aristotelian virtue ethics of Alasdair MacIntyre (e.g. Robbins 2004: 206; Faubion 2011; Laidlaw 2014; Lambek 2015).1 Recent historical research, on the other hand, has engaged with moral discourse and regulation within the framework of interests in gender, sexuality, emotions and crime (e.g. Roper 1989; Wetzell 2014; Boddice 2018). Foucault has been an important influence here too. These studies, and the ideas that underpin them, have been influential, but we find that in the midst of this renewed enthusiasm, some crucial elements have been left behind. In history, there has been a preference for study of public moral discourses over the impact of moral regulation on the individual. In anthropology, the current emphasis on virtue and the formation of the self has neglected the interest many ethical traditions have in rules that govern personal and interpersonal conduct. In this book, by contrast, we are specifically interested in approaches to moral conduct – personal as well as public – that are characterised by detailed rules: ‘general norm[s] mandating or guiding conduct or action in a given type of situation’ (Twining and Miers 2010: 80). We come to this in part because our own research interests centre on two prominent examples of such traditions, the Islamic sharia and Christian casuistry (introduced further below), which treat almost all aspects of public and private life as subject to a meticulous series of prescriptions. We find that an interest in moral/ethical2 rules is shared more widely and that recognition of this enthusiasm for rules is often necessary for understanding the ethical dimensions of personal conduct. Such rules have frequently been dismissed as empty formalism or as the instrument of an authority bent on controlling its subordinates. The present

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Introduction

volume demonstrates, on the contrary, that a concern for rules need not be an obstruction to an ethical self, but an integral part of it. It further explores the consequences, complexities and contradictions that the use of moral rules can entail. The chapters, written by anthropologists and historians, each present a different historical context where rules have been important to personal moral life, ranging from classical Hindu India to contemporary Polish Judaism, via ancient Rome, medieval and early modern Christian Europe and the early modern and post-colonial Islamic Middle East. Each also examines a different issue that the use of rules in the context of ethics provokes. The approach is thus comparative as well as interdisciplinary, drawing on a range of cases in order to allow new perspectives on issues of broad and shared concern. Historians are brought into anthropological conversations; anthropologists’ horizons are widened through an ­appreciation of historical depth. There are some conceptual obstacles to clear for such dialogue to be productive, which we deal with in turn in this introductory chapter. The first and foremost is the ease with which writers fall into stereotyped representations of morals as a strict or rigid code that is either followed blindly or entirely ignored. A central proposition of this book, borne out by the case studies collected in it, is that this attitude is too negative and too limited. Rules have been neglected in favour of more fashionable tropes, like the cultivation of the virtuous self – but we argue that rules and virtue need to be seen as complementary rather than contrary. The interrelationship between the two is a prominent theme in the chapters that follow. A further, related problem is a set of assumptions about the distinction between ‘morality’ and ‘law’, where law, associated with coercion, is seen as the more natural domain of rules. This distinction, however, is a modern Western one, not pertinent to many normative traditions, including the Islamic sharia and Christian canon law. Finding ways to transcend it thus seems crucial if we are to do justice to ethical projects that centre on rules. We suggest some analytical strategies here, unpacking in the process the different ways in which such ‘legalism’ or ‘ruliness’ might be manifested – whether that be through sheer quantity and detail of rules, or through certain sorts of ­attitudes to their interpretation and application. Finally, the modern Western distinction between law and morality gives rise to a notion of conscience understood primarily as individualistic ethical sovereignty distinct from – indeed quintessentially opposed to – the external rule of law. ‘Conscience’ is thus now widely regarded as a specifically modern and Christian notion, unsuitable for comparative purposes (e.g. Asad 2003). ‘The self’ has instead been the analytical category of choice in the history and anthropology of ethics – a terminology that fits well with

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Introduction 3

the emphasis on shaping the self in accordance with models of virtue, but not necessarily other aspects of ethical life. In this vein, the relationship of rule to self has most often been portrayed as one of internalisation.3 Yet this obscures some of the most important aspects of rule-oriented morality, namely, the tension between general rules and the particular circumstances that life imposes. The idea of conscience, on the other hand, invokes precisely the sense of dilemma and reflection often experienced by those who adhere to a moral code. We thus argue for its retention for cross-cultural comparison, suitably qualified, alongside the notion of ‘casuistry’, in the neutral sense of this consideration of how rules apply to specific cases.

Ethics in current anthropology and history We start with a fuller statement of our motivation and a look at the field as things stand. To take history first, thematic studies of the European premodern period have focused on ascetic regimes and the body, the sacrament of confession and modes of regulating conduct. The two main approaches to these topics in recent decades broadly map onto two pathways of Foucault’s influence. First, Foucault ([1975] 1977) pointed out that regulation of conduct should not be understood purely in terms of explicit institutions, not least those of the state, but as a wider range of more implicit controls, including scientific investigation, public discourse and encouragement of self-censure. Second, and in contrast, he later pointed to the active way in which individuals have themselves engaged in shaping what it means to be a virtuous person (Foucault [1984] 1990, [1984] 1992). He drew attention, for example, to the distinctive projects of stoic and early Christian communities, who lived according to an ascetic regime of poverty and continence. Both ideas have been influential, but, unsurprisingly, the relative salience of the two strands has depended on the sources under consideration. There is, for example, a wealth of research on the external regulation of morality (particularly sexual misconduct) in early modern Europe based on extensive ecclesiastical and secular court records and public writings.4 Such studies investigate the mechanics of power and the modalities of public moral discourse, yet say relatively little about individual and voluntary applications of moral strictures. Such studies are therefore relatively averse to considering rules as a personal ethical project. In the field of early Christianity, on the other hand, the writings of the church fathers constitute remarkable sources for the inner life. Consequently, historians of this period – Peter Brown is an important example – have written compellingly about a culture in which many people voluntarily chose to embrace sexual abstinence, poverty and physical hardship (e.g. Brown 1988, [1967] 2000, 2016).

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Here,  however, ethics are discussed more in terms of virtuous self-­ development, rather than in terms of rules. Only rarely have historians engaged at one and the same time with the dynamics of such large-scale ‘disciplinary’ institutions and personal technologies of the self, such that the use of moral rules for ­individuals comes to the fore. Alexander Murray’s (2015) discussion of the changing role of confessors in the thirteenth century and the growing input of lay penitents is one example. A few others could be named at a stretch.5 The failure to give due consideration to the place of rules in ethical conduct has led to important omissions in scholarly discussions. We might take as an example the study of women’s piety in the later Middle Ages, where interest has focused on radical projects of personal devotion. Caroline Bynum’s (1987) Holy Feast and Holy Fast, for instance, discusses women who disobeyed ecclesiastical prohibitions by undertaking extreme religious fasts, self-cloistering and vows of chastity. The book offers an acute analysis of the means by which holy women reacted against social constraints and clerical authority in order to carve out personal religious regimes. Yet, the result of the book’s influence has been to draw attention away from the experience of the majority of pious women in the later Middle Ages, who did obey the church’s rules enjoining moderate fast, marriage and obedience to authorities. When considering the experience of this kind of piety, it would be reductive to dismiss regulation as nothing but the means of clerical control: rules could give order and conceptual clarity to an individual’s daily religious observation. Whereas in studies which foreground those who simply disobeyed the clergy, rules tend to appear inflexible and restrictive, study of those who did engage with moral codes reveals the extent to which rules are both discursive and adaptable. In this case, therefore, reluctance to think with rules has limited historians’ interest in the more moderate ethical projects of a whole section of medieval society. Foucault’s later ideas have also been influential in what has come to be called a ‘new anthropology of ethics’ (see e.g. Laidlaw 2014). Anthropologists had of course long discussed matters of morality as part of culture and sociality more generally. What is new is a focus on morality and ethics as themes in their own right. To take a comparable anthropological classic to Bynum’s study, Saba Mahmood’s (2005) Politics of Piety examines Muslim women’s projects of religious betterment in contemporary Cairo in terms of their desire to cultivate a certain sort of pious subjectivity through practices such as veiling – an exercise of freedom in Foucault’s terms, even if a counter-intuitive one according to the assumptions of Western liberalism. Other studies have mobilised Foucault’s ideas for understanding people’s attempts to be good in a range of other contexts, from Jains in India (Laidlaw 1995), to converts to Christianity in Papua

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Introduction 5

New Guinea (Robbins 2004), to Branch Dravidian Christian millenarians in Texas (Faubion 2001). Foucault stated that his project sought, among other things, to examine how ‘moral codes’ interact in different ways with ‘forms of subjectivation’, even if his analyses rarely focused on the detail of such codes (Foucault [1984] 1992: 25–32; on the latter point, see Clarke 2015: 247n). Like Foucault, the new anthropologists of ethics have also been relatively uninterested in those aspects of morality that take the form of such codes, concentrating instead on what they see as fresher themes. Since the demise of structuralism, anthropology has in any case been suspicious of rule-talk in general, as an unrealistically thin way of describing social action (see Clarke forthcoming).6 Much greater interest has correspondingly been shown in the Foucauldian trope of self-cultivation and the parallel theme of the pursuit of virtue, here drawing on a different theoretical tradition, that of MacIntyre’s neo-Aristotelian virtue ethics. The latter has been pursued both in combination with Foucault’s ideas (as in Mahmood 2005) and in opposition to them (Mattingly 2012), and has itself led to a series of ethnographic studies (e.g. Pandian 2009; Mattingly 2014). This focus on virtue is often viewed by its anthropological proponents as not just more interesting than but even opposed to talk of ethical rules (e.g. Widlok 2004: 59–60; Mattingly 2012: 164). This warrants discussion.

Rules and virtue Anthropologists of virtue are following a strand of recent philosophy stemming from Elizabeth Anscombe’s (1958) essay on ‘Modern moral philosophy’, which criticised a tendency to speak of morality purely in terms of obligations, permissions and duties. This tendency would encompass not just the ‘deontological’ approaches of Kant and his followers, but also utilitarian ‘consequentialism’, which are both focused on judging what one should do in any given situation. Anscombe’s criticism was taken up by MacIntyre, who attributed the alleged incoherence of modern moral philosophy to its severance from the Aristotelian Christian tradition (e.g. MacIntyre [1981] 2006). MacIntyre himself has argued that, under modernity, ‘the notion that morality is anything other than obedience to rules has almost … disappeared from sight’ (2006: 291). In response, he has become one of the most influential proponents of virtue ethics, which focuses on character rather than obligation. Other important theorists who have argued against moral philosophy’s emphasis on obligation and duty include Charles Taylor (1989) and Bernard Williams ([1985] 2006, cited in e.g. Laidlaw 2002).

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All three present their criticism within a broadly historical argument, which tends to see a period of transition from a more virtue-based morality to a more legalistic one around the seventeenth century and the Enlightenment (although Williams situates the key transition considerably earlier than this). Kant thus appears as a prominent target, as an archetypally rule-oriented moral thinker.7 While their arguments are in large part about philosophy, there is a more or less explicit extension by all three of their points from the history of ideas to characterisations of moral life in the West more generally. For Williams, for instance, the morality of ­obligation  – which, he argues, looks ‘peculiar’ in world historical perspective – ‘is not the invention of philosophers. It is the outlook, or, incoherently, part of the outlook, of almost all of us [in the West]’ ([1985] 2006: 174, see also 6; and e.g. Shklar 1986). One has to be sceptical about the idea of such sweeping transformations, not least because all three authors tend to confine their view to the most academic philosophers, without much comment on the wider diffusion of their ideas. Some historians have been doubtful as to the penetration of basic Christian teachings into the preoccupations of the bulk of pre-modern European society (e.g. Delumeau 1988; Tanner and Watson 2006). One must surely wonder still more about the popular appeal of Kantianism. The actual history of such changes is much more piecemeal. Nevertheless, whatever their adequacy as characterisations of ordinary Western moral practice, where these arguments have inspired a widening of theoretical themes, they have been salutary. Bringing back into focus the pursuit of virtue, for example, has been a fruitful ethnographic move more generally. The concern is whether, in the anthropology of ethics at least, this has come at the expense of other moral preoccupations – not least an interest in rules of right behaviour, which can hardly be seen as peculiar to the modern West. Rules and the pursuit of virtue need not be opposed. Indeed, rules are a crucial ‘technology of the self’ in their own right (Clarke 2015). Historians of European culture, on the other hand, have engaged with a historical narrative of a shift from virtue ethics to rules. John Bossy (1988), for example, influentially identified a transition from a virtue-based ethics in the Middle Ages to a morality centred on the Ten Commandments in the early modern period, in an argument discussed by Nicole Reinhardt later in this book (Chapter 5). For him, the change was indicative of wider cultural transformations from a Middle Ages more interested in social ties and communal virtues, to an early modern Catholicism dominated by the vertical relationship between individual and God. The rise of increasingly rule-based ethics across a number of forums is integral to narratives of the rise of modern state institutions.8 Whilst the link between ethical systems and social institutions is an important direction for historical research, the cases presented in this book challenge the idea of a simple transition from

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Introduction 7

virtue to rule-based ethics at any given moment in the past. Emily Corran (Chapter 3), for instance, shows the importance of complex rules in twelfth/ thirteenth-century penitential ethics, while Reinhardt (Chapter 5) examines the intermeshing of virtue and rule-based ethics in sixteenth-century ­discussions of the First Commandment. There are further reasons why the relationship between rules and virtue is not always a straightforward one, as explored in Part II (Chapters 4, 5 and 6). Understanding that relationship requires considering them together, rather than apart. Yet, while there is lively discussion within anthropology and history of Foucauldian ethical discipline and self-formation, there is currently no such widely employed terminology or structured thought about moral rules. This is unfortunate, since rules are central to the way many societies understand and conceptualise ethical life. The language of rules is not sufficient to comprehend all that is moral or ethical – nor does it make up the entirety of normative thought in these domains. Parables, moral exemplars and the exposition of virtues (and vices) are vital to legalistic traditions too.9 Nevertheless, we insist on giving due attention to rules when they occur in questions of personal morals, conscience and self-formation.

Morality and law Despite the arguments of those who see modern Western moral thought as peculiarly legalistic, one reason for this relative lack of interest in ethical rules and moral codes may lie in the way that morality has been treated as something distinct from and other than law.10 In the modern West, a ­distinction is generally drawn between law – regulation decided and policed by the state – and morality – a wider set of more diffuse norms subject to sanctions of a different kind. Law, which appears in this vision as a singular and coherent object, draws from and mirrors morality but is also distinct from it.11 Morality thus becomes, at best, a normative residue or background, vaguer than law and more inchoate. But the exact nature of the relationship between the two is hard to pin down, as is demonstrated by intractable debates within Western jurisprudence. The problem is further compounded if one abandons (as we should abandon) an approach that privileges the modern West. H. L. A. Hart’s (1958) famous paper on ‘Positivism and the separation of law and morals’ defended the positivist position – stemming from Bentham and Austin – that law and morality are analytically distinct, as against those who thought them ‘fused’ or ‘inseparable’. Thus, he would assert that, ‘it could not follow from the mere fact that a rule violated standards of

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Introduction

­ orality that it was not a rule of law; and, conversely, it could not follow m from the mere fact that a rule was morally desirable that it was a rule of law’ (Hart 1958: 599). Hart’s positivism is acknowledged as more coherent and powerful than that of his predecessors even by his critics (e.g. Fuller 1958: 630; Dworkin 1967: 17) and forms the starting point for much subsequent argument in the opposite direction. Lon Fuller’s (1958) reply focused on the question of fidelity to law – what leads to the sense that one has a moral duty to obey the law? Fuller sees it as untenable to assume that such laws could be utterly divorced from moral considerations, since law has an internal morality of its own, which values order and system (Fuller 1958: 636). By contrast to Fuller, a positivist such as Joseph Raz (2009), whilst denying any inherent moral obligation to obey the law, does outline a series of sophisticated ways in which a citizen may subject the law to ethical scrutiny and acknowledge, as a result of that process, moral obligations towards the law. Ronald Dworkin (1967), on the other hand, focused on the insufficiency of an account of law based on rules alone. Principles need to be added. While such principles need not on a priori grounds be ‘moral’, ‘legal interpretivism’ in its more developed form (Dworkin 1986) sees morality as indispensable to law. We hardly seek here to settle such debates which will be well known to students of jurisprudence.12 What is important for our concerns is that, despite their differences, all of these theorists take it as self-evident that there is a clear distinction to be made between law (they are thinking of a systematic field of rules backed by formal authority) and morality (norms that exist without the support of such a legal system). What is less evident is what exactly it is that makes law distinct from other kinds of normativity, about which there are a number of competing theories. Hart himself suggests that it is the advent of ‘rules of recognition’, rules about what makes certain rules legal (Hart [1961] 1994). A more common position, one of Hart’s principal targets, is that law is essentially norm plus coercion (discussed in Lamond 2001). Perhaps the dominant position is that law should be understood simply as ‘state law’ (see e.g. Roberts 2005). That has been challenged by those interested in ‘legal pluralism’ (but see Tamanaha 1993) but seems parochial from other perspectives as well (see e.g. Pirie 2010; Dresch 2012a). Notwithstanding these difficulties, Western legal scholars have often taken a condescending attitude to cultural complexes in which law and morality appear not to be distinguished clearly. Take early understandings of ‘primitive law’ in simple societies. For the folklorist and lawyer E.  S. Hartland, ‘The savage mind … see[s] nothing grotesque or incongruous in … combining ritual, moral, agricultural, and medical with what we understand as strictly juridical prescriptions’ (1924: 213–14).13 Complex societies

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Introduction 9

have also suffered from such unfavourable comparisons. In the Islamic tradition, for example, it is often said that sharia (‘Islamic law’) encompasses all aspects of life, from proper devotion (how to stand when praying, how to perform one’s ritual ablutions), to the right treatment of one’s relatives, to corporal punishment of criminals.14 As the Dutch Orientalist and colonial advisor Snouck Hurgronje (d. 1936) put it: ‘Fiqh [Islamic legal discourse] can be distinguished from Roman and modern law in that it is a deontology in the broadest sense of the term, and allows no distinction between religion, morality and law’ (cited in Johansen 1999: 44). A similar concern over sharia’s ‘total’ purview, conjoined with a new fear that ‘sharia law’ might somehow be imposed on an unwilling society, has rendered it an object of suspicion in contemporary secular and plural settings, where religious discourse is thought properly to be confined to private devotional and personal ethical practice (see e.g. Agrama 2012: 75–82). For our purposes here, the sharia’s comprehensive scope and legalistic framing, as a set of rules defining right behaviour across the whole sweep of life, serves instead to challenge a parochial separation of ‘morality’ from ‘law’ – and it is invoked as an example repeatedly in this book (see Chapters 6, 8 and 9). This is not to fall back into Orientalist stereotypes as to the relative lack of sophistication of non-Western normative traditions. Many moral traditions, including the sharia, distinguish between different sorts of norms, between private judgement and public adjudication, but not in the same way that ‘modern’ legality does (see e.g. Johansen 1999).15 We cannot simply assume that the use of rules belongs more appropriately to morality or law, nor that ‘morality/ethics’ forms a bounded domain in the same way in all contexts. To take an example, one of the distinctions sharia draws is between the sorts of moral/legal judgements that can be made by humans and those that are possible for God alone. This turns on the distinction between evidence that is apparent (al-z.āhir), accessible to human knowledge, and that which is interior, or hidden from view (al-bāt.in), such as people’s ultimately inaccessible thoughts and intentions, available only to God. Johansen likens the latter, ‘the instance of the religious conscience’ (1999: 36), to the Christian notion of ‘the internal forum’, as opposed to the external forum of legal judgement. If we turn to the Christian parallels that Johansen invokes (as we do too, in Chapters 3, 5 and 9), medieval Christian canon law (from the twelfth century on) did indeed articulate a distinction between external and internal forums, but not one identical to the Islamic distinction Johansen describes. There were two arenas where canon law was operative: the external forum of ecclesiastical courts and the internal (in an earlier usage, the ‘penitential’) forum of conscience and penance. The external forum was concerned with public transgressions of the church’s law or divine law;

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Introduction

the internal forum was the court of conscience where sins against God, neighbour and self were acknowledged (Goering 2011). The same substantive rules applied in both forums, although the manner of their application differed – one allowing a priest to make discretionary judgements based on what the penitent told him, the other relying on a procedure where evidence was formally submitted and tested. This is thus not so much a distinction between the artificiality of law and the moral truth of conscience, as it is between different jurisdictions and the sort of wrongs that they concern.16 One way of characterising the relevant distinction here would be as one between wrongs that are of public concern and transgressions that are somehow private. Here, too, one can see parallels, but also differences elsewhere. Imperial Chinese law, for example, also made a distinction between areas pertinent to state enforcement and private matters, but the division fell along quite different lines from those of Western Europe. There was an  administrative law devoted to regulating officials of the state, a penal law designed to uphold the values of Confucianism, and a more informal law dealing with contracts and disputes between individuals. Penal law handed down sanctions, including execution, exile and forced labour, for offences that in the modern and medieval West would be understood as pertaining to private morality, such as disrespect for parents or transgressions against ritual mourning periods. On the other hand, disputes over contracts were dealt with by an unofficial customary law and were officially conceived of as private disputes outside the jurisdiction of the state (MacCormack 1996: 18–31). In contemporary liberal Western society, though obviously not so in other times and places, religious practice is nominally a matter of personal choice. Legislating sexuality also looks wrong to the liberal modern (Hart 1963) but has not been considered so in other contexts. At certain times in European history, secular courts were used more insistently than now as a means of influencing the moral tenor of public life, hence the intermittent waves of legal action against sexual impropriety in early modern England (see e.g. Ingram 1987, 2017 and Chapter 2). Suicide was treated in medieval and early modern Western Europe, wherever detected, as a crime subject to external courts (Murray 2000: 10–85). This only changed in Europe in the twentieth century; and in many places suicide remains either a crime or, if not subject to the law, at least publicly ­reprehensible (on the topic generally, see Barbagli 2015). The distinctions between private and public transgression and between law and morality are thus neither timeless nor ethnographically neutral. Although modern Western philosophy tends to assume a separation between the purview of law and that of private conscience, the difference in this respect between ‘law’ and ‘morality’ has often been no more than a pragmatic division between those matters considered appropriate to



Introduction 11

a j­udicial procedure, and those which are dealt with outside the courts. However theorised, the assignment of different sorts of subject matter – from sexuality to respect for person or property – to the purview of ‘law’ versus that of ‘morality’ allows no obvious generalisation.

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Varieties of interest in rules We should be wary, then, of being too quick to bracket off normative forms as variously ‘moral/ethical’ as opposed to ‘legal’, as well as exclusively assigning to the latter a preoccupation with rules and social control.17 In looking for a theoretical response, we could turn to the work of colleagues who have reframed the anthropology and history of law by thinking in terms of ‘legalism’,18 ‘an appeal to rules that are distinct from practice, the explicit use of generalizing concepts, and a disposition to address in such terms the conduct of human life’ (Dresch 2012b: 1; Pirie and Scheele 2014: 2; Dresch and Scheele 2015a: 1; Kantor et al. 2017). Their concern is that current analysis is handicapped by an overly functionalist idea of law as a tool of domination or conflict resolution. ‘Legalism’, on the other hand, ‘directs us towards classification more than towards power’ (Dresch 2012b: 1; see also Dresch and Scheele 2015b: 3). Rules are part of the scaffolding of shared meaning upon which thought and action depend. This point is helpful to those interested in ethics and morality. Whatever else, rules provide the framework of a moral life. Legalistic morality appears not simply as a list of obligations, but as a series of discursive categories and concepts through which self and social relations can be enacted. Dresch and colleagues’ widening of the comparative frame beyond narrow conceptions of law also resonates with our own hopes for the study of ethics: many (if not all) of the themes and cases that they study within the framework of legalism would be pertinent to those whose starting point is morality rather than law. Nevertheless, legalism could also be a problematic concept within our conversations about ethics. It enjoys the advantages, but also suffers the disadvantages, of being a well-worn term. For one thing, it has obviously legal overtones, and indeed could imply a direction of influence – from the law to the rest of life – that we would hardly wish to assume. In English, the word also has negative connotations (e.g. ‘pettifogging’) that Dresch is keen to avert (2012b: 1), but which might be difficult to eliminate. Clarke (2015, forthcoming) has therefore suggested as an alternative the more neutral – and more obviously rule-focused – term ‘ruliness’ (and the derived adjective ‘ruly’), implying simply a marked interest in rules and their significance in a given context. Such neologisms are not to everyone’s taste. In this book, while the terms legalistic and ruly are both used, we thus also often resort to

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Introduction

expressions like ‘rule-oriented’, ‘centred on rules’ or ‘rule-rich’ (while trying to avoid such obviously prejudicial formulations as ‘rule-bound’). This search for an appropriate conceptual vocabulary highlights the importance of unpacking the different possible dimensions of reliance on rules. As Twining and Miers (2010: 143) note, behaviour, attitudes, individuals, styles of judgement, legal systems, even whole cultures could all reasonably be described as legalistic to varying degrees, and in at least three different ways: ‘liking to have lots of rules or complex formal procedures; insisting on adhering closely to existing rules …; and interpreting rules in a literal, strict or rigid way’. Each of the latter corresponds to a different standpoint or role: the first relating to rule-making, the second to enforcement or observance and the third to interpretation. The same actor might, without being inconsistent, take a different stance with regard to each role, favouring lots of rules, but also being liberal in their interpretation, or even disliking the making of rules because of a conviction that, once made, they should be strictly enforced or interpreted. Rules are thus bound up with a wide range of sometimes interlocking, sometimes independent practices. At the most basic level, when talking of ruliness or legalism one might be thinking simply in terms of the presence of (lots of) explicit rules. Such ‘rule density’, to borrow the jurists’ term, has varied across history. In this quantitative aspect, it is not just the sheer number of rules, one might note, but also how they are constructed, the level of their detail. Modern bureaucratic state law, for instance, seems now to proliferate almost of its own accord (Twining and Miers 2010: 76–9). Ethical traditions obviously vary with regard to the number and detail of their rules: late medieval Catholicism, Islamic sharia, Jewish halakhah (Chapter 7) and Hindu Dharmaśāstra (Chapter 1) stand at one particularly rule-dense end of a spectrum. The moral traditions of, say, southern Africa or lowland South America, on the other hand, are rich but less obviously framed in terms of rules (Dresch 2012b: 26; Dresch and Scheele 2015b: 12; Ewart 2015). Further, law proper is generally seen as something more evolved and structured than simply a mass of rules – a matter of relationships between rules, a systematicity associated with specialisation and professionalisation.19 Here, too, one could imagine a spectrum of possibilities as to the nature and complexity of such systems, as well as its relevance to traditions that are as much moral as they are legal. Another aspect of rules that needs to be accounted for, beyond their quantity, detail or systematicity, is the attitude one takes to them. Rule orientation in this domain implies a species of formalism, a mode of interpretation focusing on the rule as a rule, often bearing negative connotations as being overly literal or ‘playing’ with the rules (Twining and Miers 2010: 143–7). Of course, there are also positive connotations of

Introduction 13

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a concern for sticking to the rules. Within the law, there are reasons for thinking that formalism is essential to a workable legal system (Summers 1997). For Frederick Schauer, for instance, it is by arguing in terms of the rules themselves, rather than their underlying justifications, that one starts ‘thinking like a lawyer’ (2009: 7–8).20 Again, one encounters this sort of concern for rules as rules – and its negative perception – beyond the law as well.21 Obeying the sharia is, for many Muslims, part of what makes one a Muslim. But whether one should stick to entrenched interpretations of those rules even when they seem out of step with the times, wider society or even personal well-being is a matter of much dispute (see e.g. Bowen 2010). Such ‘rigorism’, in the terms of theology, can have its dangers as well as seductions (see Chapter 9). Attention to rules thus has several aspects, and this tendency can be more or less pronounced across the various dimensions. Using Table 0.1, one could define the extent and kind of rule orientation in a given moral tradition. Some moral traditions represent an extreme and are rule-oriented in the full range of senses outlined in the table: the early modern Catholic institution of confession, for example, conforms to all of the criteria of maximal interest in rules, with specialist spiritual advisors, rules about how to apply the rules and (in theory) total purview over all aspects of life. Some traditions might be highly interested in rules in some of these respects, but not in others. For example, Indo-Tibetan Buddhism clearly invokes numerous explicit rules of conduct – especially in monastic contexts (which points also to its ethical specialisation and professionalisation). But it seems to Table 0.1  Varieties of interest in rules Maximal interest in rules

Minimal interest in rules

The presence of (lots of) explicit rules

Scarcity of explicitly formulated rules

The systematic arrangement of such rules; rules about how to apply the rules

Reluctance to explain how to apply rules; little effort to make the application of rules consistent from one case to another; happenstance formulation of rules, with no sense of overarching system

The development and employment of such discourse as an autonomous, specialised and/or professional field

No sense of an autonomous or professional field

A certain attitude, or attitudes, towards the interpretation of rules: literalism; formalism; serious attention to due process

Tolerance for unexplained exceptions; an indifference or inconstant attitude to due process

Use of rules in all aspects of life

Only some parts of life governed by rules

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Introduction

avoid engaging in the systematisation of moral procedure described in the second and fourth parts of the table to the extent that, say, Islamic sharia or early modern Catholicism have done. In a manner reminiscent of Williams’s and MacIntyre’s arguments referred to above, McRae (2018: 354) thus contrasts Western ethics’ focus on questions relating to what one should do, and Buddhist ethics, where the emphasis is more on the kind of person one should become. How one might determine the outcome of a dilemma is of secondary importance to identifying the state of mind with which one should address it. On the other hand, Rebecca Langlands (Chapter 4) characterises ancient Roman ethics as a religious tradition that had many explicit rules, but recognised that their unqualified application might lead to extreme consequences, as depicted in celebrated, but tragic exemplary stories (exempla). Such dilemmas were not, however, dissolved through rules about exceptions or guidance about how conflicting rules could be reconciled, but left standing as cautionary – or heroic – examples. Ancient Roman exempla were therefore rule oriented in a different way from, say, the classical Hindu legal writings described by Donald Davis in Chapter 1, which were clear about the reasoning behind rules and about the manner of their application, and from the rule-based morality of the Abrahamic religions discussed in a number of chapters in this volume. It is not just that some ethical traditions are more interested in rules than others. Traditions themselves are often divided in their own attitudes to rules. All three Abrahamic religions, for example, have given rise to more or less antinomian forms of mysticism as well as highly elaborate systems of religious rules. Attitudes can vary even within those parts of the tradition that take rules seriously. A famous attack on religious legalism was Pascal’s seventeenth-century satire of Jesuit casuistry, the Lettres Provinciales. Pascal satirised the plurality and pedantry of competing theories for how one might choose between expert opinions on questions of conscience – but he did not deny the importance of moral rules, which included biblical injunctions as well as church legislation. Pascal’s rejection of Jesuit moral legalism was rather primarily an attack on its alleged ‘laxism’ (its rules providing excuses from other rules), as against the more ‘rigorist’ Jansenism that he espoused (Jonsen and Toulmin 1988: 231–49; Chapter 9). Strictness of interpretation of existing rules can thus oppose, rather than encourage, the tendency to their further elaboration. A system of ethics, therefore, need not appear ‘ruly’ simply or exclusively by virtue of having many explicit rules, nor need a rule-oriented ethical system show the sort of systematisation and professionalisation that one sees in the Islamic or Christian traditions. Just as important is the question of how those rules are applied to life, from the varied perspectives of different actors – often as part of a process of formation of a virtuous self as



Introduction 15

much as of a virtuous society. It is mere prejudice to assume that adherence to a code of rules means that one must have a simplistic or inflexible attitude to morality (Jonsen and Toulmin 1988: 5–11). Formalism and rigorism are indeed common tendencies but they are not inevitable to the moral and ethical regimes that are framed in terms of rules.

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Rules, conscience and casuistry A further consequence of the modern Western separation between law and morality has been the opposition of moral conscience to rules. The paradigmatic instance of conscience is now the deliberate but morally accepted contravention of the rules of law, as in the ‘conscientious objector’. That has led to a suspicion that conscience itself is a modern notion, with a uniquely Christian genealogy (see e.g. Andrew 2001; Kelly 2015). Commenting on the parallel Johansen draws between Islamic and Christian ideas of accountability discussed above, Talal Asad (2003: 245) writes that, ‘when it is conceived as the hidden seat of self-government, “conscience” refers to something at once modern and Christian.’ That is, it is the idea of conscience as not just interior and hidden, but also sovereign, that is distinctively modern. Asad quotes Kant as the paradigmatic theorist of such a notion, in his famous pronouncement that, ‘the question here is not how conscience should be guided (for it needs no guide; having a conscience is enough), but how conscience itself can serve as guiding thread in the most perplexing moral decisions’ (Kant [1793] 2009: 206). This idea of conscience is too narrow for comparative purposes. If one had in mind a broad enough definition – say, consciousness of the moral dimensions of one’s actions – hardly any tradition need be precluded from comparison.22 The narrow view, meanwhile, ignores the variety of approaches to conscience that have been taken within Christianity itself. What such commentators as Asad have in mind is actually a quite specific form of Christian conscience, associated with certain strains of Protestantism, and its refractions among the philosophers of the Enlightenment. For Andrew (2001: 178), for instance, conscience is ‘the subjective conviction of right, and the mark of our innermost or ownmost individuality’. Yet, conscience has taken more varied forms than that in the West, and indeed within Christian tradition: many Christians would deny that one’s own convictions are a sufficient or infallible guide to what is right.23 One need only think of the importance in Catholicism of the office of confessor, as ­‘spiritual counsellor’ and ‘judge in the penitential forum’. Many commentators are troubled by the perceived interiority of conscience, which they believe excludes the concept from traditions not

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Introduction

­influenced by the European Enlightenment. However, this is overly cautious, since interest in the mental processes involved in choosing to do the right thing is hardly specific to modern Christianity. Sorabji (2014) argues that the notion of conscience existed before there was any articulated theory of divine law, its most important elements being more or less fixed between fifth-century bce Athens and the emergence of Christianity. Etymologically, conscientia is a Latin calque on the Greek suneidenai, meaning ‘to share knowledge’. Most often, the term referred to sharing knowledge with oneself of a moral defect, although it was occasionally also used to mean sharing knowledge of a defect with others or sharing knowledge with oneself of a good conscience. Thus, characters in Athenian tragedies use the word to refer to their own awareness of their transgressions, and it was later used by Pythagoreans and Stoics to refer to the practice of self-examination and judgement of one’s good and bad deeds during the day.24 It would be hasty to assume, then, that reflection on one’s own moral actions is specific to a single intellectual tradition. It is wrong also to assume that conscience necessarily implies a privileging of personal judgement over external imperative. Rather like the anthropological idea of ‘agency’ that only manifests itself in acts of resistance (Laidlaw 2002), the liberal conscience seems only to appear when in conflict with hegemonic norms. But even under liberal modernity, the reality of everyday life is surely otherwise. If one hesitates over exceeding the speed limit in order to keep an appointment, is it in a spasm of radical subjectivity? If one keeps to it, is it because of a personal conviction of the importance of road safety divorced from the external imperatives of what the law, and other road users, have to say on the matter? Conscience of action seems most likely to emerge from dilemma, that is, the conscious balancing of conflicting imperatives and desires in order to make a decision within a moral framework.25 In terms of everyday experience, communal and individual senses of obligation are more often than not intermeshed. Such dilemmas often arise from obligations framed specifically as rules. One of the most seemingly problematic aspects of rules is that particular cases do not always readily fit general rules; rules that are intended to bring about a good result in most cases can on occasion prove counterproductive. According to the cliché, following the letter of the law sometimes runs counter to its spirit. This tension can also be expressed in Weberian terms of formal and substantive rationality: a description of alternative ways of thinking through decisions that extends well beyond the boundaries of law (d’Avray 2010). Formal rationality is in play where a judgement aims to follow the letter of a stated rule, whilst substantive reasoning characterises judgements designed to uphold a desired end directly. Formal rationality tends to be prescriptive about the means by which one arrives at a final

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Introduction 17

judgement (it must be procedurally sound), where substantive rationality is more interested in the outcome. Importantly for our argument here, neither rationality corresponds with law or morality exclusively. In the ideology of modern legality, law aims to deliver substantively just decisions, but employs formal rationality to do so; moral judgements, on the other hand, tend not to use the same formal procedure and focus more exclusively on the substantive good of a decision. But here, too, everyday life says otherwise. People constantly ‘play with the rules’ to justify their conduct. Twining and Miers (2010: 14) cite an imaginary (but recognisable) ‘legalistic child’, who on being told not to enter the larder, uses a broom-handle from the threshold of the larder to retrieve a pot of jam. Conscience may, among other things, be seen to govern the kinds of decisions that require a balancing of formal and substantive demands.26 A decision based on conscience thus often appears not as a judgement independent of rules but as a decision about how best to apply them in a given situation. We will use the word ‘casuistry’ to describe this kind of judgement in this book (as in Chapter 3, for example). The term has pejorative, historical and useful technical meanings, which need to be disentangled (see Chapter 9 for further discussion). The pejorative sense (casuistry as bad ethics, or dishonest excuse-making) is the remnant of the anti-Jesuit polemic of the seventeenth century referred to above and is no longer relevant or helpful. It need not be of concern here. The historical meaning grew out of, but is distinct from, these polemics. It has been used as a name for a dominant branch of early modern Catholic moral theology that was characterised by academic inquiry into detailed rules. (Chapter 5 is a case study of one discussion within this academic tradition.) However, the general technical meaning of casuistry extends beyond the historical origins of the term, and can be useful in understanding a wider variety of traditions. ‘Casuistry’, in this sense, applies to any ethical discipline devoted to applying rules to testing cases, especially in situations where multiple imperatives apparently collide (Corran 2018). Such cases are sometimes known as ‘cases of conscience’, in the sense that they are a matter of personal moral reflection. As such, it is appropriate to talk of Islamic casuistry, for instance, as Talal Al-Azem does in Chapter 8. Identifying casuistry as a sub-discipline of ethics, and as the underpinning to many decisions of conscience, allows us to conceptualise the fact that, at times, the moral questions that life poses allow no simple right answers. Take, for example, the dilemma as to whether to tell a sick man the truth about his son’s death. One moral imperative says that one should avoid harming the old man, who could die as a result of hearing the news, while another imperative prohibits lying. Conscience requires a decision about the best way to balance these duties; the teachings of the church offered a

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Introduction

guide to shaping that decision. Casuistical cases such as these do not deny the authority of religious law but call on conscience in order to decide how the precepts of this law should be applied in cases of ambiguity. In these situations, questions of conscience do not bypass the rules, but amount to an attempt to follow them effectively. In the words of the Anglican theologian Jeremy Taylor (d. 1667), ‘Conscience is the mind of a man [sic] governed by a rule’ (cited in Kirk 1927: 380). Seen through the prejudices of liberal modernity, the good conscience that lies in following a rule has proved hard to keep in focus. Something of this insight lies behind Mahmood’s (2005) attempt to recuperate observant Muslim practice (wearing the veil; behaving modestly) as a project of virtuous self-formation rather than false consciousness. But the relationship of rule to self is thereby reduced to one of internalisation, shaping a habitus. Other anthropologists of ethics have wanted to capture the ways in which reflection, dilemma and judgement are essential to a proper appreciation of the human experience of ethics and morality, but without our interest in rules and through other theoretical tropes, such as Aristotle’s notion of phronesis (e.g. Lambek 2000). In history, on the other hand, studies of conscience have more often focused on groups who explicitly rejected a set of ethical rules – heretics, non-conformists, the rebellious – rather than studying the conscientious and casuistical decisions of those who chose to follow and apply a moral or religious code (see Chapter 3). Rules are a ubiquitous ethical form, but one that in itself provokes dilemma, and thus moral reflection. ‘The self’ (or e.g. ‘ethical subject’) is not always the best concept for discussing such processes. Conscience and casuistry, on the other hand, suitably understood, can serve very well.

The structure of the book The chapters of the book present examples of rule-oriented ethics and their dynamics in a number of different traditions. Collectively, they show a wide range of ways in which rules can structure moral life. A book like this cannot hope to be comprehensive and, undoubtedly, the phenomenon that we describe is not limited to the places and times that we include. There is an emphasis (although not an exclusive one) on literate religious traditions, which provide some notable examples of the themes we are interested in. In exploring these case studies, we set out three broad arguments, as represented in the three parts of the book. Part I consists of cases in which rules can be seen more or less straightforwardly to enable ethical life. Often, narratives of liberal individualism tend to dismiss detailed rules as a limitation of an individual’s moral freedom.

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Introduction 19

Our first three case studies demonstrate, on the contrary, ways in which such codes offer useful – or even indispensable – frameworks for developing a personally, as well as socially, desirable ethical self. First, Donald Davis explains the importance of formal rules in a key strand of pre-modern Hindu ethics. Ethics in classical Hindu jurisprudence begins from the premise that what we do naturally is always inferior to what we do and can do by following traditional rules. Such rules are thus viewed positively, as a means to the refinement of human imperfection, and so enabling rather than frustrating. Indeed, in this instance of ethical legalism, ‘for an act to be moral, there must be a rule prescribing it.’ Importantly, these rules are seen as the tried and tested distillations of experience and traditional wisdom, rather than of human reason. They shape individuals who practise them into bearers of that established tradition. Picking up on our discussion above, Davis explains that conscience in this case is correspondingly framed in uncomplicated terms as the emotional affirmation of what tradition tells you is good and aversion to what it tells you is bad. The liberal framework of much academic commentary would seem poorly suited to doing justice to the role of rules here. So too, however, for Davis, does the Foucauldian approach that many anthropologists have taken up as an alternative, as described above. Provocatively, Davis notes instead the striking similarities between the assumptions and concepts of Hindu law and those of ‘classical conservatism’, drawing on the vocabulary and outlook of conservative thinkers such as David Hume and Edmund Burke better to translate classical Hindu ethics. ‘Conservatism helps Hindu law speak English,’ as he puts it. Second, we discuss another prominent example of ethical codes, the early modern manuals of civil behaviour made famous by Norbert Elias’s ([1939] 2000) notion of a ‘civilizing process’ on the road to modernity. Focusing on early modern England, Martin Ingram describes how the new ideal of civility was taught primarily as a series of printed instructions on how those aspiring to gentility should conduct themselves. These rules were set out as precepts to be rigorously followed, but were not enforced by any authority. Rather they were upheld partly by social pressure and the emotions it triggered (embarrassment, shame, a sense of exclusion), partly by the voluntary actions of individuals who chose these modes of conduct for themselves and for their children. Ideals of civility, originally promoted among social elites, filtered down the social scale to become a must-have commodity even among ordinary people. In this pedagogical and aspirational aspect, codes of civility fit well the Foucauldian concept of the care of the self. In contrast with the way that Davis characterises the classical Hindu ethical tradition, however, these rules were something new, a development within an existing normative pluralism. As Ingram argues, the growing prominence of civility

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Introduction

facilitated a major shift in eighteenth-century English society: the decreasing use of legal means to regulate personal behaviour and an increasing emphasis on internal restraints inculcated through education and self-discipline. Ideas of civility meshed with the disciplinary activities of ecclesiastical and secular courts as they sought to raise standards of personal (especially sexual) morality and restrain behaviour among neighbours, at a time when political and religious divisions were undermining the ecclesiastical courts as agents of everyday social discipline. Civility provided a bridge between the religious divides of the age, as well as the divisions of class. This case thus speaks to a key theme of this introduction, the need to think of law and morality, as well as self and society, in combination rather than apart. Finally in this section, Emily Corran shifts our focus to the Christian tradition of practical ethics in the Europe of the High Middle Ages, here in its relation to ordinary, lay practice. Her case study is vows, voluntary commitments to God to undertake a good action that were a popular feature of lay piety in this period. This was an ethical domain rich in complex rules. Typically, pious laypeople took vows of pilgrimage, prayer, fasting and chastity, either for a fixed period or in perpetuity, as a penitential act or as a spontaneous act of piety. Especially from the thirteenth century, the church established detailed rules intended to moderate such vows, given the ways in which they could conflict with other, ordinary obligations. The chapter takes as an example the pastoral rules relating to vows in four texts from thirteenth-century France and England. Scholars have often assumed that, through these codes, the church wished to limit the autonomy of secular women by emphasising obedience to a husband or a religious order at the expense of personal vows. However, this reading focuses only on the most extreme cases of medieval women’s piety. Detailed rules about vows were rather devised by the clergy with more moderate cases in mind. In this light, casuistry – which, as said earlier, would later become notorious as the archetype of ethical legalism – is revealed not so much as an invasion of private conscience, but an attempt to facilitate personal devotional projects. Detailed rules about vows were intended to allow those who had made a voluntary commitment to steer a course between these and other obligations, as well as to negotiate changes to their promises where necessary, and to prevent those who were tempted to abandon a vow from giving up entirely. Rather than an instance of clerical obscurantism or paternalism, the casuistry of vows – a set of rules about the personal ethical use of rules – was a constructive force for facilitating ordinary medieval men and women’s projects of pious self-improvement. Having explored some of the ways in which detailed ethical rules can be seen as enabling, in Part II we explore some of the tensions and challenges that they provoke – in themselves and in combination with other ethical

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Introduction 21

approaches. In particular, we examine the dynamic relationship between rules and virtue ethics that we highlighted above. First, Rebecca Langlands discusses the relationship between moral rules and virtue ethics as it appears in ancient Roman exempla (from the first century bce to first century ce). Exempla – heroic tales about their ­ancestors – were for Romans an important resource for moral learning and development. These stories most often illustrated, in heightened form, the tension between different values and obligations that moral life in practice entails. So, for example, the courageous and patriotic Horatius killed his own sister in a fit of rage at seeing her grief at the death of her fiancé, with whom Rome was then at war; the general Manlius Torquatus executed his son for disobeying his orders in bravely accepting, and winning, a challenge to single combat from a hostile warrior. Such exemplary cases were taken up by lawyers such as Cicero as the testing ground for their rhetorical skills and debating technique, or treated in more nuanced fashion by a writer like Livy, for whom they become part of a literary Roman history. The chapter demonstrates the way in which rules, virtues and cases are complementary rather than contrary genres of moral thought. On the one hand, exempla seem to turn on the implicit moral imperatives generated by the virtues and vices of virtue ethics – what Hursthouse (1999: 36) calls ‘v-rules’ (e.g. ‘be brave’; ‘don’t be rash’). On the other, they engage with the multiple rules of ancient Rome’s plurality of ethical systems: the mos maiorum, ‘the custom of the ancestors’, the unwritten moral code that regulated all aspects of republican Roman life and that the exempla helped explicate; religious prescriptions; and Roman law, whether in the form of the venerable Twelve Tables or later formal legal codes. Exempla often depict extreme scenarios based on agonising conflicts of conscience between different such obligations, and Langlands argues that they were used as case studies for thinking through the complexities of the real-world application of rules. In the case of ancient Rome, then, exempla are not defined against a rule-based culture, but provide a space for engaging with it. In the next chapter, we consider further the relationship between virtue ethics and rules in a different context, that of early modern Christian discussions of the Ten Commandments. As in Ingram’s discussion of civility, what is at stake is historical shifts in patterns of normativity. Nicole Reinhardt here takes up Bossy’s (1988) famous argument bearing on the emergence of modernity, which makes for an interesting parallel with the arguments of Elias discussed by Ingram, as well as those of Williams, MacIntyre and Taylor cited above. Again, Bossy argued that European approaches to sin changed between the medieval and early modern period from a set of social virtues and vices to a legalistic list of prohibitions. At the heart of this shift lay the introduction of the Decalogue as the norm for the evaluation

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Introduction

of moral action and conscience in confession. Where medieval confessors conceptualised human action according to the seven deadly vices (like envy or avarice), early modern confessors examined the Ten Commandments. According to Bossy, this moved the concern away from social relations and the upholding of the common good to legalistic questions of individual obedience to God. While this change of focus from a virtue/vice-based ethics to law is well identified, its theoretical and practical implications are less clear. Not least in the case of the First Commandment (‘Thou shalt have no other Gods before me’) that is the focus of the chapter, these rules presented problems both of interpretation and application. If a Christian understanding of the First Commandment was supposed to instil the love of God, a measure of virtue ethics would be needed. Reinhardt shows how Catholic moral theologians struggled with the new rule-based logic in the confessional and, despite its emphasis on individual religious obedience, retained the community and social virtues as horizons for its understanding. In trying to theorise the Decalogue’s application, they produced an ever-multiplying literature of explanations. Later commentary would judge this as sterile argumentation within an ivory tower, but this is to forget its initial impetus, which was to train theologians to examine and correct sin. The confrontation of the Ten Commandments with confessional practice thus helped foster the early modern casuistry that has become a quintessential case of ethical rule density, but also reminds us of the inextricable nature of rules and virtue. The chapter offers an important caveat to Bossy’s argument, showing that the early modern period did not lose sight of virtue ethics, but redefined and reworked them within the newly rule-oriented format of the Ten Commandments. Lastly in this part, we turn to a closely related, but different form of tension between the formalism of rules and less easily formalised ethical concepts like virtue. Emanuel Schaeublin describes the challenges of a distinct aspect of ethical formalism, that of quantification, and the tension in many ethical traditions between calculation and the incalculable. Certain facets of ethical conduct can be weighed or counted, while others – such as matters of faith, mercy and trust – disrupt or evade calculation. The chapter explores this tension in the context of Sunni Islam, where adhering to religious rules in one’s personal conduct is often assumed to gain one points in a divine system of bookkeeping. Through ethnographic research in the Palestinian city of Nablus, it is argued that such divine bookkeeping can be understood (in Foucauldian terms) as a technology of the self – that is, as an instance of rule-following in order to become a better Muslim. Other aspects of being a good Muslim, however, break calculation apart. Ethical qualities that bear on one’s relation to God or other human beings are particularly difficult to think of in such formalistic terms. As Schaeublin

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Introduction 23

argues, this tension between calculation and the incalculable needs to be put in historical perspective. Regarding contemporary Islam in Arab countries, some scholars have argued that an interest in calculation stems from the rise of neo-liberal forms of capitalism in the region. Yet attention to comparable ideas in the Christian tradition shows otherwise. St Anselm, for instance, phrased similar notions in the terms of the feudalism of his time. Schaeublin points instead to the repressive politics of the occupied Palestinian territories, which combine capitalist political economies with extensive security surveillance. There is an elective affinity between the microscopic scrutiny of such state surveillance and the calculated tallying of good and bad deeds, which has come to be foregrounded in people’s ethical imaginations at the expense of other visions of Muslim piety, based more on the quality of one’s social relations and material exchanges. Where the second part of the book highlights the potential tensions between rules and other aspects of morality, Part III focuses on the ways in which ruly ethical traditions develop systems of meta-rules – rules about rules – for coping with those challenges. The Islamic sharia, Catholic casuistry and Jewish halakhah are all instances of moral theologies centred on rules, or codes of conduct, and all are richly plural, with a multiplicity of competing opinions and authorities. All have articulated ways of addressing the tensions that the practice of such rules seemingly inevitably entails, detailed instructions and procedures (not always consistent) as to how one should decide between conflicting moral imperatives or differences of opinion among moral authorities. First, Jan Lorenz presents a case study rooted in the Jewish tradition of  legalistic ethics, halakhah, discussing in particular its role in processes of conversion to Judaism. Jews-by-choice have become a prominent feature  of the synagogues and Jewish organisations of contemporary Poland, the focus of the chapter. Their various projects of conversion speak to the considerable, while ambivalent, ‘weight’ of Jewishness in twentyfirst-century Poland, and the diversity of prospective converts’ family histories, life experiences, needs and longings. In the understanding of halakhah, conversion – termed giyur – means becoming an observant Jew. In what is ostensibly the most purely voluntarist form of religious commitment, converts thus willingly submit themselves to rules and constraints in order to effect a desired self-transformation. Rule-following is again explicitly enabling here. Over and above that, the institution of giyur creates the legal matrix that enables these individual, rule-oriented projects of the self and their recognition by the communities that the converts wish to join. However, like the Islamic and Christian legal-ethical traditions (in different ways, no doubt), the halakhah is characterised by pluralism. This form of self-making must thus be mediated through a multiplicity of rabbinical legal

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expectations – ­‘progressive’, ‘orthodox’, ‘ultra-orthodox’ – and the varying degree of their recognition by a handful of especially important institutions, including, crucially for some, the Israeli state. A ‘progressive’ conversion might not be recognised by an ‘orthodox’ tribunal, for example. In hierarchical terms, the strictest version of religious practice often becomes the most readily acknowledged. In practice, then, these transformative projects are realised not just through the rules of religious observance, but by navigating the meta-rules of conversion – which themselves vary – and the relationships, formal and informal, between these different legal matrices. Successful conversion thus often requires elaborate tactics of shifting between authorities, institutions and spheres of influence. An appreciation of its legalism – the m ­ eta-rules as much as the code of conduct itself – thus becomes an indispensable ­technology of the self. Next, Talal Al-Azem takes up such pluralism in the case of pre-modern Islamic legal thought, in particular the ‘madhhab-law tradition’ of the Abbasid (eighth to thirteenth centuries ce) and Mamluk periods (thirteenth to sixteenth centuries ce) in the Near East. The madhhabs were (and still are) a plurality of legitimate ‘ways’ or schools of legal thought, reflecting what Al-Azem calls the ‘probabilistic’ – here meaning uncertain – nature of the science of extrapolating moral and legal rules from their divinely inspired sources. Such pluralism leads to a classic problem of legalism more generally: if there are different legitimate opinions as to the right course of action, then to what extent does one’s own conviction of rectitude morally trump that of other sources of binding authority bearing upon one? Drawing on a previously unpublished eleventh-century (ce) Arabic text, Al-Azem describes the development of a casuistry of such dilemmas of conscience for legal practitioners, focusing on the example of divorce. What if, for example, a jurist divorced his wife using a formula whose legal effect is disputed, and she then took him to law? What if the judge then ruled the divorce null and void according to one recognised position, but the divorcing jurist thought himself divorced according to a contrary but legitimate legal opinion? Should the jurist accept the judge’s verdict and return to married life, or refuse to do so as sinful? As we see through the text’s exploration of a variety of such scenarios, the Islamic legal tradition acknowledged, even celebrated this multiplicity of legitimate rules and the dispute that it inevitably entailed. As Al-Azem puts it, pluralism was to be celebrated, ‘in the spirit of scholarly freedom and honesty’, but also conquered, ‘for the sake of solid rules that people could apply’. This ambiguity provided the space for jurists to maintain their own discretion and personal conscience in the context of what was becoming an increasingly rule-dense tradition. Last, in the comparative spirit we propose in this volume, Morgan Clarke brings together the Islamic and Christian traditions of practical ethics that

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Introduction 25

Al-Azem and Schaeublin, on the one hand, and Corran and Reinhardt, on the other, have discussed. Clarke’s interests focus on contemporary practice of sharia, which he finds commonly stereotyped in Western (and other) media as ‘strict’ and ‘uncompromising’. As we have argued above, academic representations of commitment to following such religious rules are not much more nuanced, within anthropology at least. This chapter argues that the history of Christian casuistry provides a rich source for an alternative conceptual vocabulary for describing the practice of sharia and other ruledense ethics. Crucially, as opposed to current stereotypes of sharia as strict, Christian casuistry fell into disrepute as being too ‘lax’. This was especially in the form of the doctrine of ‘probabilism’ (here used in a more specific historical sense than that used by Al-Azem), which allowed those on the horns of a moral dilemma to follow any learned opinion, even if not necessarily the most widely attested. This was as part of attempts to ameliorate the practical effects for laypeople of a prior insistence on ‘tutiorism’ – always taking the safest path to salvation. These Christian theological concepts for discussing the uses of rules are put to work to help better understand how Shi‘i Muslims in the contemporary UK cope with the dilemmas of living out the demands of learned moral law. In questions such as when one is allowed to break one’s fast during Ramadan, when a British summer day might technically last more than twenty hours, or whether one is allowed to shake hands with someone of the opposite sex, the rules developed by scholars in the Middle East may not sit well with the realities of life in Britain. Drawing on ethnographic fieldwork in the Midlands, Clarke shows how people take up a variety of tactics in response, whether it be playing it ‘safe’, following a more liberal opinion or using one’s ‘common sense’. Most importantly, rules are neither necessarily rigid nor strict. Rather, legalistic forms of ethics offer a variety of ways to facilitate a sense of good conscience, even when faced with the seemingly irreconcilable demands of religious ideals and life in a non-Muslim society. In an afterword, James Laidlaw comments on the arguments of the book from his perspective as an ethnographer of Jainism – another ruly ethical tradition – and as one of the leading figures in the recent anthropology of ethics. He reiterates the arguments of Williams and Foucault that modern Western moral thought has become unhealthily concentrated on law-like obligation. Humanity’s range of moral experience is far wider, as the anthropology of ethics has sought to demonstrate. And yet, that should not lead us to neglect the rich variety of ways in which rules, of various kinds, form an often crucial part of many ethics and many projects of an ethical self, as he details. This book meets that need to present a more nuanced, cross-cultural appreciation of the role of rules in moral life than those currently p ­ revalent.

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As many of our case studies show, rules are not best seen as mere constraints: as standards to honour and aspire to, they enable moral life and self-formation. They do not, however, do so in a simple or ­unproblematic way, no more than any other moral system. Rules can conflict with one another, but also with more virtue-oriented forms of ethics. The formalism of rules does not always sit well with the more blurred nature of virtues, for example. In the recent enthusiasm in many disciplines for virtue ethics, that has often left rules an ill-favoured sibling. Yet, despite their tensions, rules and virtue should be seen as complementary rather than contrary. Sometimes, the tension between formal and informal moral forms is an important moral notion in itself, as in that between the c­ alculated and the incalculable. Others have pointed to these challenges before. Yet rather than be content merely to indicate them, we describe the ways in which ethical traditions have acknowledged and come to terms with them, through rules about rules, and procedures and institutions for managing them. Such ‘legalistic’ meta-rules and concepts in themselves often enable moral life as much as frustrate it. Further, given the thin treatment of rules in much anthropological and historical writing, these ethical traditions – often viewed disparagingly – can in fact provide sophisticated resources for a fuller appreciation of the place of rules in moral thought and practice. The contributions from anthropology and history that this book provides allow us to identify at least three fundamental ways in which rules work within ethical systems. First, we can see that rules are sometimes the organising principle in an ethical system, and thus enable rather than constrain moral reflection and ethical self-formation. Second, following on from that, rules can exist in a constructive dialogue with virtue ethics, such that both rule-based and virtue ethics take on new meanings and significance. Third, when, in the face of the complexities of practice, ethical rules become governed by further rules (meta-rules), rule-based ethics take on new procedural concerns and dynamics which determine the manner in which moral choices are made. But this is a bald summary. Beyond these broad points there extend many further subtleties, as the following ­chapters show.

Acknowledgements We are grateful for the comments on previous versions of this introduction of David d’Avray, Paul Dresch, Fernanda Pirie, John Sabapathy, Emanuel Schaeublin and an anonymous reviewer.



Introduction 27

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Notes  1 Other approaches have drawn more on phenomenology (Zigon 2009) or psychology (Keane 2015), for example (see Mattingly and Throop 2018 for a recent review). Yet none have focused attention on moral rules in the way that we propose here.   2 Some have drawn conceptual distinctions between the categories of ethics and morality (e.g. Laidlaw 2002: 321; Zigon 2007), but we use them interchangeably here.   3 Contrast Greenblatt’s (1980) account of self-fashioning in the English Renaissance as an artful process of self-presentation.   4 E.g. Ingram (1987, 2017); Monter (1987); Farr (1995); Harrington (1995); Strasser (2004).   5 See e.g. the discussion of penitential measures in Protestant Scotland by Todd (2002: 168–81).   6 On rules from an anthropological perspective, see also Dresch and Scheele (2015b).   7 Against MacIntyre’s attack on Kant, see e.g. O’Neill (1983); on Kant’s own virtue ethics, see Louden (1986).   8 Prodi (2000). Sabapathy (2014) insightfully shows the tension between virtue and rule-based ethical concepts in the rise of accountability in medieval English government.   9 On exemplars, see Humphrey (1996); Højer and Bandak (2015); Langlands (2018); Robbins (2018). 10 The emergence of ‘morality’ as a term for a distinct conceptual domain is in fact integral to the arguments of MacIntyre ([1981] 2006: 39), Williams ([1985] 2006: 7) and Taylor (1989: 63). 11 The influence that law has on ideas of morality is more rarely discussed. But see e.g. Honoré (1993) and, less optimistically, Shklar (1986). 12 For a recent account, see e.g. Shapiro (2007). 13 Contra, see e.g. Malinowski’s ([1926] 1978: 53) pioneering work on the Trobriands or that of Africanists like Schapera ([1938] 1955: 35–6) and Gluckman (1955: 164–6). 14 On this notion that the sharia is ‘total’, in the sense that it in theory could address any and every domain of life, see Messick (1993: 3), Hallaq (2009: 1–6) and Clarke (2019). Modern state law has its own totalising tendencies, of course, but organised rather differently: see e.g. Lamond (2001) and Dresch (2012a: 154, 165). 15 Aside from a distinction between devotional matters and social transactions basic to Islamic legal handbooks to this day, sharia discourse also employs distinct sets of evaluative terminology that speak to different normative logics, such as ‘permitted’ (h.alāl) versus ‘forbidden’ (h.arām), as opposed to ‘recommended’ (mustah.abb) versus ‘reprehensible’ (makrūh), for instance (Johansen 1999: 69–70). It is worth remembering too that sharia has always been found

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alongside other normative forms, such as local custom or the sultan’s edicts. See e.g. Bowen (2003) and Baldwin (2017). 16 Nevertheless, as in the sharia tradition, human limitation and procedural constraints could lead to judgements in the external forum that were legally correct yet unsatisfying, perhaps ultimately unjust – what Johansen (1999: 37) calls ‘tragical conflicts’. See e.g. Corran (2018: 123–7). 17 On the latter score, the new anthropology of ethics has been criticised for losing sight of the political (e.g. Kapferer and Gold 2018). 18 The term is borrowed from Fallers (1969). 19 On the latter point, see e.g. Coss (2000). On the former, one thinks again most obviously of Hart’s ([1961] 1994: 79–99) distinction between primary and secondary rules, the latter being rules about what gives primary rules their authority and how they can be added to and altered. Dresch (2012b: 15) refers, ‘in lawyers’ terms’, to simple versus complex systems. 20 Twining and Miers (2010: 144) point to a (lawyer’s) distinction between judicious ‘lawyerlike’ argument and a less cultured ‘legalism’. 21 See Clarke (2015) for an attempt to use Schauer’s ideas to understand examples of personal ethics. 22 See e.g. Leites’s (1974) thoughtful comparison between Christian and Confucian concepts. 23 See e.g. Mahoney (1987: 184–93) for some summary comments from within the Catholic tradition. 24 Sorabji (2014: 15–16) cites two instances from Euripides – speeches referring to Orestes’ knowledge of committing murder and Jason’s knowledge of breaking his marriage oath to Medea. He also mentions a fragment from Sophocles which states that it is terrible for the virtuous to share knowledge with himself of fault. The Pythagorean practice of self-interrogation is reported by Seneca (Sorabji 2014: 27–8). 25 Compare a strand of recent anthropological writing that wants to distinguish between unreflective moral action and the ethical self-consciousness that comes with reflection on challenging circumstances: see e.g. Zigon (2007) and Laidlaw’s (2014: 116–19) comments thereon. 26 It could thus be seen as an informal version of equity, Aristotle’s epieikeia, ‘the sort of justice which goes beyond the written law’, ‘a correction of law where it is defective owing to its universality’ (Rhetoric 1.13 and Nicomachean Ethics 5.10, cited in d’Avray 2010: 139). See e.g. the role of conscience in the ‘tragic’ judgements discussed by Clarke (2012), where Muslim shaykhs (religious professionals) acting as judges in marriage courts in Lebanon struggle to reconcile humane, pastoral concerns with the bureaucratic necessities of legal procedure.

References Agrama, Hussein Ali, 2012. Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt. Chicago IL: Chicago University Press.

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Andrew, Edward G., 2001. Conscience and Its Critics: Protestant Conscience, Enlightenment Reason and Modern Subjectivity. Toronto: University of Toronto Press. Anscombe, G. E. M., 1958. ‘Modern moral philosophy’. Philosophy 33/124: 1–19. Asad, Talal, 2003. Formations of the Secular: Christianity, Islam, Modernity. Stanford CA: Stanford University Press. Baldwin, James E., 2017. Islamic Law and Empire in Ottoman Cairo. Edinburgh: Edinburgh University Press. Barbagli, Marzio, 2015. Farewell to the World: A History of Suicide, trans. Lucinda Byatt. Cambridge: Polity Press. Boddice, Rob, 2018. The History of Emotions. Manchester: Manchester University Press. Bossy, John, 1988. ‘Moral arithmetic: Seven Sins into Ten Commandments’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 214–34. Bowen, John R., 2003. Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning. Cambridge: Cambridge University Press. Bowen, John R., 2010. Can Islam Be French? Pluralism and Pragmatism in a Secular State. Princeton NJ: Princeton University Press. Brown, Peter, 1988. The Body and Society: Men, Women, and Sexual Renunciation in Early Christian Society. New York: Columbia University Press. Brown, Peter, [1967] 2000. Augustine of Hippo. Revised edition. London: Faber and Faber. Brown, Peter, 2016. Treasure in Heaven: The Holy Poor in Early Christianity. Charlottesville VA and London: University of Virginia Press. Bynum, Caroline, 1987. Holy Feast and Holy Fast: The Religious Significance of Food to Medieval Women. Berkeley CA: University of California Press. Clarke, Morgan, 2012. ‘The judge as tragic hero: Judicial ethics in Lebanon’s shari’a courts’. American Ethnologist 39/1: 106–21. Clarke, Morgan, 2015. ‘Legalism and the care of the self: Shari’ah discourse in contemporary Lebanon’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 231–57. Clarke, Morgan, 2019. ‘Totality and infinity: Sharia ethnography in Lebanon’, in Judith Scheele and Andrew Shryock (eds), The Scandal of Continuity in Middle East Anthropology: Form, Duration, Difference. Bloomington IN: Indiana University Press, 52–74. Clarke, Morgan, Forthcoming. ‘Rules’, in James Laidlaw (ed.), The Cambridge Handbook of the Anthropology of Ethics and Morality. Cambridge: Cambridge University Press. Corran, Emily, 2018. Lying and Perjury in Medieval Practical Thought: A Study in the History of Casuistry. Oxford: Oxford University Press. Coss, Peter (ed.), 2000. The Moral World of the Law. Cambridge: Cambridge University Press. D’Avray, D. L., 2010. Rationalities in History: A Weberian Essay in Comparison. Cambridge: Cambridge University Press. Delumeau, Jean, 1988. ‘Prescription and reality’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 134–58.

Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

30

Introduction

Dresch, Paul, 2012a. ‘Aspects of non-state law: Early Yemen and perpetual peace’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History. Oxford: Oxford University Press, 145–72. Dresch, Paul, 2012b. ‘Legalism, anthropology, and history: A view from part of anthropology’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History. Oxford: Oxford University Press, 1–37. Dresch, Paul and Judith Scheele (eds), 2015a. Legalism: Rules and Categories. Oxford: Oxford University Press. Dresch, Paul and Judith Scheele, 2015b. ‘Rules and categories: An overview’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 1–27. Dresch, Paul and Hannah Skoda (eds), 2012. Legalism: Anthropology and History. Oxford: Oxford University Press. Dworkin, Ronald, 1967. ‘The model of rules’. The University of Chicago Law Review 35/1: 14–46. Dworkin, Ronald, 1986. Law’s Empire. Cambridge MA: Harvard University Press. Elias, Norbert, [1939] 2000. The Civilizing Process: Sociogenetic and Psychogenetic Investigations. Revised edition. Oxford: Blackwell. Ewart, Elizabeth, 2015. ‘Categories and consequences in Amazonia’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 205–29. Fallers, Lloyd A., 1969. Law without Precedent: Legal Ideas in Action in the Courts of Colonial Basoga. Chicago IL: University of Chicago Press. Farr, James R., 1995. Authority and Sexuality in Early Modern Burgundy ­(1550–1730). Oxford: Oxford University Press. Faubion, James D., 2001. The Shadows and Lights of Waco: Millennialism Today. Princeton NJ: Princeton University Press. Faubion, James D., 2011. An Anthropology of Ethics. Cambridge: Cambridge University Press. Foucault, Michel, [1975] 1977. Discipline and Punish: The Birth of the Prison. London: Allen Lane. Foucault, Michel, [1984] 1990. The Care of the Self. The History of Sexuality, vol. 3. London: Penguin. Foucault, Michel, [1984] 1992. The Use of Pleasure. The History of Sexuality, vol. 2. London: Penguin. Fuller, Lon L., 1958. ‘Positivism and fidelity to law – A reply to Professor Hart’. Harvard Law Review 71/4: 630–72. Garber, Marjorie, Beatrice Hanssen and Rebecca L. Walkowitz (eds), 2000. The Turn to Ethics. New York and London: Routledge. Gluckman, Max, 1955. The Judicial Process among the Barotse of Northern Rhodesia. Manchester: Manchester University Press, on behalf of the RhodesLivingstone Institute, Northern Rhodesia. Goering, Joseph, 2011. ‘The internal forum and the literature of penance and confession’, in Wilfried Hartmann and Kenneth Pennington (eds), The History of Medieval Canon Law in the Classical Period, 1140–1234. Washington DC: Catholic University of America Press, 379–428. Greenblatt, Stephen, 1980. Renaissance Self-fashioning: From More to Shakespeare. Chicago IL: Chicago University Press.

Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document



Introduction 31

Hallaq, Wael B., 2009. Shari‘a: Theory, Practice, Transformations. Cambridge: Cambridge University Press. Harrington, Joel F., 1995. Reordering Marriage and Society in Reformation Germany. Cambridge: Cambridge University Press. Hart, H. L. A., 1958. ‘Positivism and the separation of law and morals’. Harvard Law Review 71/4: 593–629. Hart, H. L. A., 1963. Law, Liberty, and Morality. Oxford: Oxford University Press. Hart, H. L. A., [1961] 1994. The Concept of Law. Second edition. Oxford: Clarendon Press. Hartland, Edwin Sidney, 1924. Primitive Law. London: Methuen & Co. Højer, Lars and Andreas Bandak (eds), 2015. The Power of Example: Anthropological Explorations in Persuasion, Evocation, and Imitation. Special Issue, Journal of the Royal Anthropological Institute 21: S1. Honoré, Tony, 1993. ‘The dependence of morality on law’. Oxford Journal of Legal Studies 13/1: 1–17. Humphrey, Caroline, 1996. ‘Exemplars and rules: Aspects of the discourse of moralities in Mongolia’, in Signe Howell (ed.), The Ethnography of Moralities. London: Routledge, 25–47. Hursthouse, Rosalind, 1999. On Virtue Ethics. Oxford: Oxford University Press. Ingram, Martin, 1987. Church Courts, Sex and Marriage in England, 1570–1640. Cambridge: Cambridge University Press. Ingram, Martin, 2017. Carnal Knowledge, Regulating Sex in England, 1470–1600. Cambridge: Cambridge University Press. Johansen, Baber, 1999. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Leiden: Brill. Jonsen, Albert R. and Stephen Toulmin, 1988. The Abuse of Casuistry: A History of Moral Reasoning. Berkeley CA: University of California Press. Kant, Immanuel, [1793] 2009. Religion within the Bounds of Bare Reason. Indianapolis IN: Hackett. Kantor, Georgy, Tom Lambert and Hannah Skoda (eds), 2017. Legalism: Property and Ownership. Oxford: Oxford University Press. Kapferer, Bruce and Marina Gold (eds), 2018. Moral Anthropology: A Critique. New York: Berghahn. Keane, Webb, 2015. Ethical Life: Its Natural and Social Histories. Princeton NJ: Princeton University Press. Kelly, Tobias, 2015. ‘Citizenship, cowardice, and freedom of conscience: British pacifists in the Second World War’. Comparative Studies in Society and History 57/3: 694–722. Kirk, Kenneth E., 1927. Conscience and Its Problems: An Introduction to Casuistry. London: Longmans, Green and Co. Laidlaw, James, 1995. Riches and Renunciation: Religion, Economy, and Society among the Jains. Oxford: Clarendon Press. Laidlaw, James, 2002. ‘For an anthropology of ethics and freedom’. Journal of the Royal Anthropological Institute 8/2: 311–32. Laidlaw, James, 2014. The Subject of Virtue: An Anthropology of Ethics and Freedom. Cambridge: Cambridge University Press. Lambek, Michael, 2000. ‘The anthropology of religion and the quarrel between poetry and philosophy’. Current Anthropology 41/3: 309–20.

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32

Introduction

Lambek, Michael, 2015. The Ethical Condition: Essays on Action, Person, and Value. Chicago IL: University of Chicago Press. Lamond, Grant, 2001. ‘Coercion and the nature of law’. Legal Theory 7/1: 35–57. Langlands, Rebecca, 2018. Exemplarity Ethics in Ancient Rome. Cambridge: Cambridge University Press. Leites, Edmund, 1974. ‘Conscience and moral ignorance: Comments on ChungYing Cheng’s “conscience, mind and individual in Chinese philosophy”’. Journal of Chinese Philosophy 2/1: 67–78. Louden, Robert B., 1986. ‘Kant’s virtue ethics’. Philosophy 61/238: 473–89. MacCormack, Geoffrey, 1996. The Spirit of Traditional Chinese Law. Athens GA and London: University of Georgia Press. MacIntyre, Alasdair, [1981] 2006. After Virtue: A Study in Moral Theory. London: Duckworth. Mahmood, Saba, 2005. Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton NJ: Princeton University Press. Mahoney, John, 1987. The Making of Moral Theology: A Study of the Roman Catholic Tradition. Oxford: Clarendon Press. Malinowski, Bronislaw, [1926] 1978. Crime and Custom in Savage Society. London: Routledge and Kegan Paul. Mattingly, Cheryl, 2012. ‘Two virtue ethics and the anthropology of morality’. Anthropological Theory 12/2: 161–84. Mattingly, Cheryl, 2014. Moral Laboratories: Family Peril and the Struggle for a Good Life. Berkeley CA: University of California Press. Mattingly, Cheryl and Jason Throop, 2018. ‘The anthropology of ethics and morality’. Annual Review of Anthropology 47: 475–92. McRae, Emily, 2018. ‘The psychology of moral judgment and perception in IndoTibetan Buddhist ethics’, in Daniel Cozort and James Mark Shields (eds), The Oxford Handbook of Buddhist Ethics. Oxford: Oxford University Press, 334–58. Messick, Brinkley, 1993. The Calligraphic State: Textual Domination and History in a Muslim Society. Berkeley CA: University of California Press. Monter, E. William, 1987. Enforcing Morality in Early Modern Europe. London: Variorum Reprints. Murray, Alexander, 2000. Suicide in the Middle Ages, Volume II: The Curse on Self-murder. Oxford: Oxford University Press. Murray, Alexander, 2015. Conscience and Authority in the Medieval Church. Oxford: Oxford University Press. O’Neill, Onora, 1983. ‘Kant after virtue’. Inquiry 26/4: 387–405. Pandian, Anand, 2009. Crooked Stalks: Cultivating Virtue in South India. Durham NC: Duke University Press. Pirie, Fernanda, 2010. ‘Law before government: Ideology and aspiration’. Oxford Journal of Legal Studies 30/2: 207–28. Pirie, Fernanda and Judith Scheele (eds), 2014. Legalism: Community and Justice. Oxford: Oxford University Press. Prodi, Paolo, 2000. Una storia della giustizia. Dal pluralismo dei fori al moderno dualismo tra coscienza e diritto. Bologna: il Mulino. Raz, Joseph, 2009. The Authority of the Law. Second edition. Oxford: Oxford University Press. Robbins, Joel, 2004. Becoming Sinners: Christianity and Moral Torment in a Papua New Guinea Society. Berkeley CA: University of California Press.

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Robbins, Joel, 2018.’Where in the world are values: Exemplarity, morality, and social process’, in James Laidlaw, Barbara Bodenhorn and Martin Holbraad (eds), Recovering the Human Subject: Freedom, Creativity and Decision. Cambridge: Cambridge University Press, 174–91. Roberts, Simon, 2005. ‘After government? On representing law without the state’. The Modern Law Review 68/1: 1–24. Roper, Lyndal, 1989. The Holy Household: Women and Morals in Reformation Augsburg. Oxford: Clarendon Press. Sabapathy, John, 2014. Officers and Accountability in Medieval England ­1170–1300. Oxford: Oxford University Press. Schapera, Isaac, [1938] 1955. A Handbook of Tswana Law and Custom. London: Oxford University Press, for the International African Institute. Schauer, Frederick, 2009. Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Cambridge MA: Harvard University Press. Shapiro, Scott J., 2007. ‘The “Hart-Dworkin” debate: A short guide for the perplexed’, in Arthur Ripstein (ed.), Ronald Dworkin. Cambridge: Cambridge University Press, 22–55. Shklar, Judith, 1986. Legalism: Laws, Morals, and Political Trials. Cambridge MA: Harvard University Press. Sorabji, Richard, 2014. Moral Conscience through the Ages. Oxford: Oxford University Press. Strasser, Ulrike, 2004. State of Virginity: Gender, Religion and Politics in an Early Modern Catholic State. Ann Arbor MI: University of Michigan Press. Summers, Robert, 1997. ‘How law is formal and why it matters’. Cornell Law Review 82/5: 1165–229. Tamanaha, Brian Z., 1993. ‘The folly of the “social-scientific” concept of legal pluralism’. Journal of Law and Society 20/2: 192–217. Tanner, Norman and Sethina Watson, 2006. ‘Least of the laity: The minimum requirements for a medieval Christian’. Journal of Medieval History 32/4: 395–423. Taylor, Charles, 1989. Sources of the Self: The Making of the Modern Identity. Cambridge MA: Harvard University Press. Todd, Margo, 2002. The Culture of Protestantism in Early Modern Scotland. New Haven CT: Yale University Press. Twining, William and David Miers, 2010. How to Do Things with Rules: A Primer of Interpretation. Fifth edition. Cambridge: Cambridge University Press. Wetzell, Richard F. (ed.), 2014. Crime and Criminal Justice in Modern Germany. New York and Oxford: Berghahn Books. Widlok, Thomas, 2004. ‘Sharing by default? Outline of an anthropology of virtue’. Anthropological Theory 4/1: 53–70. Williams, Bernard, [1985] 2006. Ethics and the Limits of Philosophy. London: Routledge. Zigon, Jarrett, 2007. ‘Moral breakdown and the ethical demand: A theoretical framework for an anthropology of moralities’. Anthropological Theory 7/2: 131–50. Zigon, Jarrett, 2009. ‘Phenomenological anthropology and morality: A reply to Robbins’. Ethnos 74/2: 286–8.

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Part I

Rules enabling moral life

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Conscience is tradition: Classical Hindu law and the ethics of conservatism Donald R. Davis, Jr. The classical Hindu law tradition is conservative, and an instance of ­conservatism. In this chapter, I draw comparisons between classical Hindu law and traditional Anglo-American conservatism about the topics of rules, ethics, and conscience. In searching for a language through which to express the Sanskrit categories and ideas found in Hindu jurisprudence, I have been repeatedly drawn to the assumptions, arguments, and aspirations of traditional conservatism.1 The affinities between the two lineages of thought reveal shared ideological commitments. I thus justify the otherwise arbitrary choice to use the language of Anglo-American conservatism in describing Hindu legal views of ethics and conscience on the grounds that the conservative tradition provides a congenial and illuminating set of concepts and assumptions. Conservatism helps Hindu law speak English.2 Though the comparison breaks down in some areas, of course, the juxtaposition highlights the value to both of rules, order, and obedience in the process of individual and group ethical formation. It should thus serve as a fruitful entry into the comparative exploration of ethical ‘ruliness’ that this book proposes. Ethics in classical Hindu jurisprudence begins from the premise that what we do naturally is always inferior – both morally and socially – to what we do and can do by following traditional rules.3 The natural passions that motivate human beings must be disciplined by rules in order to avoid negative social and soteriological consequences (Glucklich 2011). Hindu law starts, then, from an assumption of human imperfection that may be systematically, though rarely totally, refined through habituation and socialisation. The importance of habit, custom, and well-formed prejudice is repeated in Sanskrit literature, not only in Hindu law texts but also in Hindu epics and mythology (Derrett 1978: 35–43). Hindu law authors view unfettered reason with suspicion and, with few exceptions, disallow change in established precepts. Instead, people should rely on the wisdom of existing social structures and institutions as a tried-and-true guide to ethical decisions. Moral judgement arises from experience and character,

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both products of the social opportunities of privileged birth and long training in the legal texts. Similarly, individual conscience is experienced as an emotional affirmation of what tradition through a rule tells you is good and an aversion to what it tells you is bad – ‘conscience is the mind of a man [sic] governed by a rule’ (as cited in the Introduction). I summarise the ethics of Hindu law in such terms precisely in order to bring out striking similarities between its assumptions and conceptual frameworks and those of traditional conservatism. Ethics does not form a distinct topic in any Hindu law text, but I put together a composite description by drawing on discussions of other topics. In order to capture the legalism underlying ethics and conscience in Hindu jurisprudence, I rely on the vocabulary and outlook of classical conservatives, because both appeal to a moral sensibility forged in a crucible of rules from the past.

Why we need rules and how to spot a good one Hindu jurisprudence is found in the Sanskrit texts called Dharmaśāstra, the ‘prescriptive treatises’ (śāstra) on ‘religious and legal duty’ (dharma). One may liken the scholastic elaboration of this religious law with that of the Jewish or Islamic law traditions discussed elsewhere in this book. Technically, the primordial commands of the revealed Veda come to us as injunctions and prohibitions and the Dharmaśāstra tradition presents itself as remembrance or recollection (smr.ti) of the totality of Vedic rules even as it acknowledges the central place of customary law and elite standards in the formulation of dharma (Wezler 2004). Knowledge of the Veda, however, is less learning the rules and more shaping the character. Vedic knowledge transforms a person’s dispositions, interests, and sentiments. This tradition is very old with the earliest texts dating from the second century bce and the latest commentaries from the eighteenth century ce. Though Dharmaśāstra’s scope, style, and substance changed over this long period, it is also remarkably stable in its basic worldview.4 For the broad comparison of this chapter, I will (unfairly) treat Hindu law in synchronic terms and ignore the very different contemporary Hindu law that has been subsumed within the legal system of modern India. The vocabulary of classical Hindu law is replete with categories of refinement and discipline. ‘Natural’ (prākr.ta) language is inferior to ‘refined’ (sam . skr.ta) language; the sixteen consecratory rites that mark the ritual passage of an observant Hindu male through life are called ‘refinements’ (sam . skāra). Along with refinement, discipline (from the Sanskrit root śās) is the application of rules and rituals to ordinary actions: ‘legal texts (śāstra) are said to discipline people and to impel proper action; decrees (śāsana)

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Conscience is tradition 39

rectify and punish deviations from this order; students (śis.ya) are trainees in a process which culminates in the achievement of the status of a fully disciplined and educated person (śis.t.a)’ (Davis 2006: 289). What makes an act or a person refined or disciplined is adherence to a rule of śāstra, which is itself a distillation of tradition presented as a norm. To this extent, the very framework of action and selfhood is bound to a rule-oriented conception of ethics and self-formation. The socialisation of conscience occurs through learning and internalising the rules of tradition in order, ultimately, to embody righteousness and law (dharma). There was a golden age when such rules reigned completely. In the fifthcentury ce Laws of Nārada (1.1), we read: When men had righteousness (dharma) as their sole purpose, spoke the truth, and kept their promises, there was no litigation (vyavahāra), no enmity, and no selfishness. Litigation came into being when righteousness was lost among men. The king is the overseer of litigation; he is responsible for punishments. (Lariviere 1989: 3, translation slightly adapted)

A perfect society is not rule-free, but rule-saturated. A moral society is one based on embodiment of the rules established in this golden age. In short, law and ethics are grounded in both unassailable revelation and elite consensus. That is important because both ultimately work against an unfettered idea of conscience as personal conviction or moral compass. Thus, we need rules first so that, at a time when adherence to the rules is no longer natural, we may respond to the transcendental commands of the Veda and to the Vedic tradition transmitted by Hindu law and society. However, the substantive place of Vedic command in Hindu law is minimal and mostly rhetorical. Sankararama Sastri (1926: 46, 95) called the Vedic character of Hindu law its ‘leading fundamental fiction’ and suggested that Hindu law authors knew full well that it was ‘a mere fetish’.5 Even the more realistic authors of Hindu law such as Medhātithi (ninth century ce) openly acknowledge that ‘not all dharmas are based on the Veda’ (Olivelle 2017: 138). Revelation, therefore, is a symbolic foundation for the moral world that is practically established through human experience and convention. More pointedly, reference to the Veda is a natural law patina on a core of customary law. Accounts of the foundations of morality among many Anglo-American conservatives similarly pay lip service to religious truths while placing emphasis rather on time-tested institutions and customs as paramount. Acknowledging that many conservative self-representations insist on a ‘transcendent moral order’, Muller distinguishes conservatism and orthodoxy: ‘While the orthodox defense of institutions depends on belief in their correspondence to some ultimate truth, the conservative tends more

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skeptically to avoid justifying institutions on the basis of their ultimate foundations. … Conservatism is also distinguished from orthodoxy by the conservative emphasis upon history’ (1997: 4, 7). According to this distinction, Hindu law acknowledges an orthodox foundation in the Veda, but privileges past custom as the substantive guide to moral action. Pious Christian conservatives similarly place explicit value on the Bible, but they interpret it in the light of received tradition. The appeal to ultimate religious truths in Hindu law is a mere prelude to the detailed analysis of daily ­observances, rites, social norms, political institutions, and so on. The more important second reason why we need rules, therefore, is to make this world better through coordinated and proven institutions and practices. We direct our passions and interests through time-tested practices and the guidance of our predecessors. The prescriptive treatise in Sanskrit is found everywhere and not just in law (Pollock 1985). The rules for any human endeavour may be captured in a text that sets forth norms for action. A śāstra is both a treatise and a disciplinary instrument that trains a person in a particular area. The prescriptive rhetoric of a śāstra, however, masks its substantive origins in the socially accepted practices of an intellectual elite, the Brahmin pandits (Lariviere 2004). The rules of Hindu law, therefore, come from accepted past practice. Neither revelation nor reason supplies substance to Hindu law. The famous Kāmasūtra of Vātsyāyana, a prescriptive treatise on sex, gives us a nice, earthy justification for why we need śāstras, even for natural acts. The Teachers say, ‘You don’t need a rulebook (śāstra) to know how to have sex since it happens naturally and regularly, even among animals.’ However, Vātsyāyana says, ‘Since a woman and a man depend on each other to have good sex, a prescribed method is required, and one should learn that method from the Kāmasūtra.’6

The contrast in this case is between a claim that sex is ‘natural’ or ‘spontaneous’ (svayam . pravr.tta) and a claim that it calls for ‘a dependence on the other’ (parādhīnatva). The first conceives of sex as a simple, natural act. The second imagines sex as a cultivated pleasure capable of refinement to the mutual fulfilment of both partners. The implication of the text, however, is that any action that requires the coordination of two or more people also requires a method or technique (upāya) that is prescribed in and learned from an authoritative source. If you want sex to be more than mere animalistic intercourse, then you need discipline, specifically a technique for mutuality and cooperation during sex. The Kāmasūtra’s demand for a prescriptively framed method in all things parallels the Hindu law texts’ insistence on rules that establish

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Conscience is tradition 41

the aspirational moral horizon for humanity. Both ethics and conscience in this Hindu legalism possess authority only insofar as they conform to traditional rules captured in the texts. A prescribed method enhances all social actions. In Hindu jurisprudence, we learn those methods from the prescriptions of authoritative texts and from time-tested customary norms.7 However, we live by these prescriptions through an experiential sense that it is in our interest to do so. Though brief, the Kāmasūtra’s argument for the coordination of natural passions through rules resembles Hume’s provocative account of justice as grounded in stable possession. He states, ‘After men have found by ­experience … that society is necessary to the satisfaction of those very passions, they are naturally induc’d to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious’ (Treatise of Human Nature 3.2.2, Hume 2006: 97). For Hume, our dependence on others to respect property boundaries lies at the root of our willingness to live by rules that restrain our freedom and set the initial parameters of justice. In his view, sentiment, or passion, is the origin of morality, but only when it comes from the ‘general point of view’ (Sayre-McCord 1994). Hindu law authors do not argue from the same premises, but they arrive at a similar conclusion. For them, unbroken tradition serves the function of Hume’s ‘general point of view’, namely, to coordinate our actions through received rules. Most other Anglo-American conservatives also prefer to avoid the coordination argument made by Hume (and the Kāmasūtra) in favour of a simpler case that runs from inherited tradition to general rules to moral standards. A final reason that we need rules is to ameliorate our inadequacies as human beings through the accumulated wisdom of the ages. Working within established institutions and using proven methods, people overcome their faults and shortcomings as individuals. As Burke argued, ‘We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that the stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and ages’ (1999: 451). The theme of human imperfection runs deeply in conservative thought and derives from an assumption that social interdependence is innate owing to the need for humanity to overcome selfish individual impulses (Quinton 1978; Muller 1997: 10). In the course of his explication of the sources of dharma, Medhātithi dismisses claims of human perfection: ‘All outsiders without exception … claim that the authors of their canonical texts are extraordinary men or special deities (purus.ātiśayān devatāviśes.ām . ś ca) who perceive directly the subjects presented in those texts’ (Olivelle 2017: 125). The fatal flaw of Buddhists, Jains, unorthodox Hindus, and others is to put their trust in

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individuals who claim special powers or perfections. Medhātithi argues that wise people can understand the primacy of the unauthored Vedic revelation through reason, but ordinary people cannot and need not. Moreover, unless they are manipulated by a false teacher, good people do not agree on an error. The Vedic tradition is primordial and uninterrupted within the same community that still reveres and transmits it through collective memory. Its mere existence, therefore, proves its truth and value. Continuity with the past itself provides the justification for presuming the Hindu law tradition to be valid and good – a cardinal principle of conservatism (Muller 1997: 7–8). Once the rational basis for knowing dharma through the Veda has been settled, therefore, one need not redo the proof, so to speak, because the knowledge acquired in searching for dharma is always a rediscovery of the same ancient truth, never the discovery of something new. Individual claims to new insight, therefore, are suspicious. In this view, reason always confirms tradition. Human imperfection in Hindu law is not merely an inability on the part of most to understand scripture and authoritative texts on their own, but also the incapacity to control the emotions and avoid selfish actions. In a typical refrain, the Laws of Manu (2.93, circa first century ce) states, ‘By attachment to the organs, a man undoubtedly becomes corrupted; but by bringing them under control, he achieves success’ (Olivelle 2004: 30). The challenge to control the organs of sense as the tools of one’s passions occurs ubiquitously in Hindu literature, common to both rule-centred traditions such as Dharmaśāstra and ascetic traditions that seek a salvific freedom above all category and distinction. We find an example of the human propensity to seek self-serving ways around the established rules in Medhātithi’s discussion of social class and hierarchy, that is, caste. The determination of class pedigree and birth status was of central importance to a tradition in which the main pillar of social organisation was a division of society into four primordial classes and myriad castes. In his commentary on Laws of Manu 10.5, Medhātithi argues that both empirical and functional factors are inadequate to determine one’s social class. Appearances can deceive, when outcasted individuals bear children. Half-truths can be manipulated, when biological metaphors (two cows always make another cow, so two Brahmins always make another Brahmin) are invoked without due consideration of a simple question about whether the Brahmins are married. Therefore, one has to rely on the rules of the texts regarding the pure class status of the parents, their approved marriage, and their ritual status at the time of conception. At one point in this discussion, Medhātithi states, ‘The ways of the world fall under the control of human beings, and since humans have a strong tendency towards deception in matters of social class, this matter cannot be

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Conscience is tradition 43

settled from their perspective’ (Jha [1920–32] 1999, 2:330, my translation). There is no notion of original sin here, but rather a sense that temptation and self-interest would lead people to lie about their social class. As a result, an external standard is required, namely, the traditional rules of class and caste, especially of their mixture or miscegenation. ‘Śāstra’, Derrett declares, ‘is “teaching”, impersonal’ (1978: 33). Insofar as Hindu law operates on a fiction of Vedic authority, it appeals to the unauthored, impersonal (apaurus.eya) character that the Veda imparts to all things derived from it. The conceptual slippage (they would say congruity) between revelation, tradition, and custom in Hindu law allows received social rules to stand in for sacred text. Individuals ideally lose their personality, becoming ‘impersonal persons’, in the discipline of the śāstra’s commands and prohibitions (Davis 2010: 55–6). Borrowing a metaphor from Kumārila, the great seventh-century exegete of the Veda, Medhātithi attests to the depersonalisation achieved through study of the Veda: ‘Just as whatever substance entering the salt-mine of Rumā turns completely into salt, so all things are purified by the mental satisfaction that naturally arises in knowers of the Veda’ (Jha [1920–32] 1999, 1:68, my translation). The metaphor is not unlike T. S. Eliot’s notion of the poet as a chemical catalyst in his classic essay of conservative literary criticism. The ideal author is a disappearing bridge between the poems and weight of the past and the talent of the present moment. The moral progress of a Hindu, like an artist’s progress, ‘is a continual self-sacrifice, a continual extinction of personality’ and morality, like poetry, ‘is not the expression of personality, but an escape from personality’ (Eliot 1921: 47, 52–3). Richard Weaver would call it the cultivation of the ‘unsentimental sentiment’ (1948: 17–31).8 In the domain of morals, rules (conservatives prefer the word ‘prescriptions’) elevate individuals above their imperfections. Building and growing over time, moral wisdom in the form of received norms from the past shapes individuals into bearers of tradition, the disciplined transmitters of an impersonal law (śāstra). In Hindu jurisprudence, texts are the guide to unseen, transcendent truths and rules, while experience, observation, and convention are the guides to worldly truths and rules. We need rules of both kinds in order to flourish as humans. Revelation commands us to discipline through the application, but also the veneration, of the rules it propounds. It provides the fundamental moral orientation and axiomatic commitment required to motivate a person to accept and internalise tradition. In theory, tradition complements transcendental command; in practice, tradition replaces or is the substitute for revelation. The primary defence against human tendencies towards selfishness and folly is inherited custom and the institutions that transmit it. Tradition thus depersonalises morality by standardising it as the

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inheritance of the past. A good rule, therefore, is a distillation of traditional wisdom communicated through an established social institution.

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What makes an act moral? Reason, emotion, and tradition In and of themselves, actions are neither right nor wrong, neither moral nor immoral. In Hindu law, scriptural and traditional commands and prohibitions make a fundamental claim on our behaviour, and those same rules determine their moral quality. For an act to be moral, there must be a rule prescribing it. That rule may legitimately come from textual or conventional sources, or under certain circumstances personal approbation. The most famous instance of this claim was the justification of killing in specific textually defined circumstances, especially ritual sacrifice. A general prohibition against killing (both humans and animals) circulated widely in classical India. ‘Outsider’ groups such as the Buddhists, Jains, and some ascetic sects within the broad Hindu tradition used this prohibition to question the value of animal sacrifices enjoined in the Veda. Dharmaśāstra authors saw the question in simple legal terms: specific rules abrogate general ones. Medhātithi argued: Violence sanctioned by the texts and defined by a rule is not subject to the general prohibition against killing, because that prohibition applies to ordinary violence. Further, it is not possible to establish the sinfulness of violence sanctioned by Vedic tradition – as one can for ordinary violence – from the act of violence itself as inferred from the general rule, because it is not the fact of violence itself that makes something sinful, but rather the fact that there is a prohibition against it. (Jha [1920–32] 1999, 1:62, my translation)

Though sinfulness (pāpatva) is admittedly not precisely immorality, the point remains the same. Unsanctioned violence or killing produces a moral fault, while permitted or prescribed violence does not. Whether general or specific, however, it is the prohibition against violence that makes it sinful or immoral. The inherent nature of violence has nothing to do with it, according to Medhātithi. This view is extraordinary for how much it reveals about the legalism at work in the Dharmaśāstra conceptualisation of morality, here in the sense of the formalism inherent in stressing the value of rules as rules rather than the tradition’s undoubted rule density (see the discussion in the Introduction). The primacy of rules in the determination of moral quality meant that reason was always a secondary consideration. Reason as such, the unfettered search for truth starting from self-chosen principles and original inquiry, is scorned as the dangerous doctrine of infidels of various kinds.

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Conscience is tradition 45

The Laws of Manu (2.11) set reason and logic against revelation and tradition: ‘If a twice-born disparages the Veda or tradition by relying on the science of logic (hetuśāstra), he ought to be ostracized by good people as an infidel and a denigrator of the Veda’ (Olivelle 2004: 23). Reason of this sort was axiomatically accepted as settled by the Mīmām . sā tradition, the school of Vedic exegesis, and not worthy of further inquiry.9 Medhātithi states this directly, ‘If you ask why aren’t the original reasons for the acceptance of the Veda stated here, the answer is that this is a text of tradition and it speaks to matters that are already well established. Those who want to know the reasons should learn them from the Mīmām . sā. What we declare here is addressed to those people who are learning solely from traditional texts’ (Jha [1920–32] 1999, 1:62, my translation). Burke evinced the same deferral of first philosophy: ‘Even in matters which are, as it were, just within our reach, what would become of the world, if the practice of all moral duties, and the foundations of society, rested upon having their reasons made clear and demonstrative to every individual?’ (1999: 32).10 In Hindu law, the need for a rational, first-principles argument is foisted upon another intellectual tradition and Reason is subordinated to revelation and tradition. The rationalism rejected by Hindu law authors is one that fails to accept the established presuppositions of Vedic tradition and begins instead ab initio, from a theory developed through the rational insight of an individual. The pejorative label for this kind of reason is hetuśāstra and a hetuka is a ‘seeker of reasons’ (Wezler 1999: 149). These are the theorists and rationalists scorned by most conservatives for their promulgation of ideologies abstracted from the thought of one person and presented as the common, universal truth for all. Other forms of tradition-centred reasoning, however, find affirmation in Hindu jurisprudence. Lingat rightly points out, for example, that legitimate reasoning (tarka) for the Hindu law authors is exegesis (mīmām . sā) of the canonical texts in the light of received custom (1973: 159). In other words, reasoning, not Reason, plays an important role in legal and moral judgement. In adjudication, Rocher classes yukti under the heading of ‘circumstantial evidence’ (2012: 385–6). In other places, yukti comes close to ‘common sense’, the ability to put things together in context. The Laws of Br.haspati (1.114, circa fifth century ce) provides a famous statement of Hindu legal realism, ‘One should not render a verdict by relying solely on the texts, for when deliberation lacks common sense (yukti), the ruin of justice arises’ (Rangaswami Aiyangar 1941: 19, my translation). Here, reasoning means taking context and circumstance into consideration. Finally, we encounter one final type of reasoning, called nyāya. In Hindu law, nyāya can mean both logic in the sense of syllogistic argument and argumentation from established procedures and maxims (Davis 2007a). This type of reasoning functions on the basis

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of ­historical precedents. Each of these three forms of reasoning work from already established textual or traditional sources. As a result, they are closer to hermeneutics than first philosophy. The Anglo-American conservative tradition takes an even more sceptical view of reason. For Hume, the rationalism of Descartes ignored obvious experiences of human life. Reason deals with what is true and false and with the relationship of ideas and facts, but it does not by itself compel us to act. Cartesian reason of this sort does not take into account the passion, custom, experience, and human sociality that all drive ‘naturalistic reason’ (Winters 1979). Therefore, ‘the rules of morality are not conclusions of our reason’ (Hume 2006: 68). Similarly, Burke excoriated the leaders of the French Revolution for their commitment to understanding ‘human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction’ (1999: 417). Idealistic and ideological abstractions are the work of mere ‘men of theory’ who lack the experience necessary to make informed decisions about matters of politics and morals (Burke 1999: 433). Reason, in the conservative view, is associated with a priori determinations of how the world should be instead of inquiries into how the world is. Any attempt to decide in advance what ought to be is decried as dangerous without a knowledge of what is (Hume 2006: 77). And what is, for both Anglo-American and Hindu conservatives, is heritage, the basis upon which we put together past wisdom and present circumstance: these are the considerations that should inform the conscience when making real-world decisions. The idea of a conscience trained in dharma by the Dharmaśāstra underlies a concept that we encounter in the Laws of Manu, called ātmatus.t.i, literally ‘what pleases oneself’ (Davis 2007b). This idea forms the fourth source of dharma in the classic verse, ‘The root of the Law is the entire Veda, the tradition and practice of those who know it, the standards of good people, and what pleases oneself’ (Laws of Manu 2.6, Olivelle 2004: 23). Ātmatus.t.i illustrates well both the limits of an untutored conscience and the power of a disciplined conscience. In line with the conservative emphasis upon emotion and sentiment as the motivation of moral action, ātmatus.t.i appeals to inner sentiment as a guide to the moral quality of an act. It is not the manifestation of natural or innate feelings, but rather of trained sentiment. Legal commentators were very worried about the antinomian possibilities of such an open-ended idea as ‘what pleases oneself’.11 If morality boils down to whatever feels right, then all rigour and value in dharma is lost. The standard of moral approbation must not come from the individual. Instead, of course, revelation and tradition supply the ­conscience with the requisite external standard.

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Conscience is tradition 47

At first glance, this position sounds incompatible with Hume’s famous inversion of sentiment and reason in morality: ‘The hypothesis we embrace is plain. It maintains, that morality is determined by sentiment. It defines virtue to be whatever mental action or quality gives to a spectator the pleasing sentiment of approbation; and vice the contrary’ (2006: 270, italics in the original). Hume wants to derive morality from approving and disapproving feelings about particular actions seen from a ‘general point of view’, using a logical argument to explain morality. However, the ambiguity of what counts as general and the possibility that a ‘repugnant relativism’ might emerge from personal sentiment (Sayre-McCord 1994: 223) bothered most later conservative thinkers and other philosophers. As a result, other conservatives – Hume’s friend Adam Smith, for instance – accepted the priority of sentiment as moral motive but found moral substance in more stable external standards such as ‘the commands and laws of the Deity’ or custom.12 The Hindu law argument does indeed approach the question from the other side: how does the Vedic tradition manifest in the emotional life of a person as a guide to dharma? However, Hindu law also sought a way to avoid an arbitrary moral standard of personal sentiment by appeal to an external standard. Classical Hindu law’s solution to the subjectivism of individual sentiment came in two forms. Either moral approbation (ātmatus.t.i) governs only trivial matters such as which way you tie your sari or how you cut your hair, for which any preference is acceptable within the boundaries of the other three sources of dharma; or, ātmatus.t.i refers to a seamless and absolute congruence between the Veda, the standards of good people, and personal sentiment. The first option neutralises any strong effect for moral approbation other than it being a private sense that one is doing the right thing by following other dharmic rules. In already ruled areas, you can feel pleased by what you do; for anything else, in things that don’t matter, you can do what you want. The second stronger sense of ātmatus.t.i, however, points to the potential to be an extraordinary person, a true śis.t.a, through discipline and fulfilment of difficult dharmas. The way the commentators describe it, a person is emptied of their natural persona and filled with the Veda, the salt-mine of morality. The extraordinary person embodies the Veda and can thus speak for it: ‘[B]ecause he retains the Veda, the Brahmin is by Law the lord of this whole creation. … A Brahmin’s birth alone represents the everlasting physical frame of the Law; for, born on account of the Law, he is fit for becoming a Brahmin’ (Laws of Manu 1.93, 98, Olivelle 2004: 19). A truly disciplined Brahmin and the dharma become coterminous, because tradition has transformed into moral sensibility. What they know duplicates how they feel and vice versa.

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Hindu law finds a total congruence between tradition and sentiment in very few people, who are always figures from the past. The ability to make dharma as a hero of Vedic tradition is, therefore, hardly ever encountered today – dharma is ever the morality of yesterday. In general, the classical Hindu law tradition does not recognise a general dharma-making power for the living, but it does recognise the existence of ‘good people’ and their standards (and even the king in certain circumstances). Not as individuals now, but collectively, those who are ‘good’ can also make dharma that serves as a standard for all. There is a lovely, but also frustrating, ambiguity about who is ‘good’, of course. The texts list general traits of good people, but they are vague: a learned person who knows the Vedas, observes social and ritual proprieties, and is generous, benevolent, and slow to anger. Still questions remain. How much Veda should be known? Which social rules must they follow? And so on. The vagueness, however, seems to have allowed various communities to define what counted as good for themselves. This source of dharma offered a mechanism for change and growth with dharma viewed as a socially constructed norm passed down through established institutions. The check was ‘goodness’ as conventionally defined and practised, and, rhetorically, moral goodness only comes from the past. It should be clear, then, that conscience in the form of ātmatus.t.i cannot be considered a form of conscience that serves a basis for or guide to morality. Its standard is external, not internal. The theory of a strong, dharma-­ making conscience slipped into the practice of a conscience moulded by tradition. Only when conscience is tradition does it count as dharma, ­precisely because it is not personal or individual. Strictly speaking, in classical Hindu law, the practical ideal of tradition is śis.t.ācāra or sadācāra, the standards accepted by the educated elite and the ‘good’. The idea comes very close to ‘civility’ as described by Ingram (in Chapter 2) in its emphasis on showing publicly that one had internalised rules through manners, sexual restraint, and respectable comportment. However, the texts frequently acknowledge – in fact it is so common as to almost subvert or supplant the textual ideal – that the standards of a region, family, caste, or other group provide a person’s most immediate and intimate norms for living. It seems to work like this. We have a need to become socialised within our families, castes, religious communities, and regions in order to live most effectively with others in that group.13 On top of that, the Dharmaśāstras (and other śāstras) provide the avenue for higher refinement.14 This is a supra-group ideal, limited to a few in its justifications and intricacies, but incumbent upon them as well. Our sense of conscience develops in all these levels, but it becomes most reliable and secure after the conventional dharmas of the learned and good have become second nature. The ideal of normative practice (ācāra) comes close to the recurrent conservative theme of

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Conscience is tradition 49

‘second nature’: ‘internalized cultural rules … that are taken for granted, and are acted upon without continuous reflection’ (Muller 1997: 20). What makes an act moral is theoretically its conformity to the Vedic ideal, but in practice what matters is the sanction of the situationally defined local standards of good people. Extraordinary people are those who maximally embody tradition rather than reform it. In the view of classical Hindu law, therefore, conscience is tradition embodied by an individual. What makes conscience moral is not an independent capacity to intuit or discern morality apart from social convention, but rather the ability to accept tradition and act upon it. The traditional conservatives’ emphasis on passion or sentiment as the motive force for moral action resonates with Manu’s appeal to a feeling of approbation at work in all dharmic action. However, as Medhātithi states, ‘both joy and suffering depend on dharma’ (Jha [1920–32] 1999, 2:80, my translation). Emotions are indeed indicators of morality, but the tradition of dharma remains its unquestionable standard.

Social institutions and custom as the foundations of ethics and conscience One recurrent theme of conservatism requires further exploration in describing the ethics of classical Hindu law: the presumptive value of custom and traditional institutions. Derrett summarises the tradition’s valorisation of elite custom: ‘The ultimate roots of “duty” in practice were the scriptures which embody age-old wisdom tested in the fire of the practice of the “good” of long ago, and modern usages and customs which can be traced back to a consensus of authorized bodies of rule-makers’ (1978: 38). Invocations of tried-and-true practices and the communal organisations that promote them arise in myriad contexts in Hindu jurisprudence. Recourse to established practices functions as a substantive source of lawmaking in cases where the texts do not fix a clear rule. Gaps in substantive law are filled by recognised communal norms. The Laws of Vasis.t.ha (1.17, circa first century bce) provides one early instance of this theme: ‘When there is no scriptural text, Manu has prescribed the dharma of the region, the dharma of the caste, and the dharma of the family’ (Olivelle 2017: 67). It is very common in Hindu law texts for a long discussion of a topic of substantive law to end with an injunction to follow customary norms for any unspecified elements of the topic.15 In the area of adjudication, a thirteenthcentury Hindu law text states, for example: A dharma that has at all times prevailed in a place and that does not conflict with the revealed or traditional texts is called ‘locally recognised’. A law

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(vyavasthā) defined in accordance with local convention should always be written down and marked with the king’s seal. The king should diligently protect such a law as though it were a legal text and should render legal ­decisions on the basis of it. (Srinivasacharya 1914: 58, my translation)

When local customs and conventions are invoked in such contexts, the moral quality imparted is not specially mentioned, but it is implied. The theological commitments of the Hindu law authors led them to locate the validity of ‘the customs of good people’ first in the conduct of virtuous Brahmins. The notion that Brahmins’ conduct matters above all others’ is very old in Hindu thought, as the sixth-century century bce Taittirīya Upanis.ad (1.11.3) attests: ‘If you ever have a doubt regarding a rite or a practice – should there be experienced, qualified, and gentle Brahmins devoted to the Law who are able to make a judgement in that matter, you should observe how they act in that regard and behave likewise’ (Olivelle 1996: 184). Scores of similar passages emphasise the virtues that Brahmins should possess in order to serve as moral exemplars. Technically and ideally, therefore, the customs and institutions of Brahmin communities form the core of Hindu law and the tradition unapologetically favours and lauds the Brahminical world and worldview.16 Brahmins are thus the primary models of the good in Hindu law, but the category of ‘good people’ was in the end extended well beyond the Brahmin community. The qualifier ‘good’ differs from ‘local’, ‘caste’, and ‘family’ as a descriptor of what legitimates custom, but the moral and factual shade into one another in the way the texts sanction normative practice. If pressed, Hindu law authors will say things like ‘Local conventions apply only to internal matters between people who belong to a certain village, guild, military unit, family, etc. A dispute between these groups, however, should be decided by textual law’ (Srinivasacharya 1914: 58, italics in the original). In other words, they will put restrictions on how and when local customs may hold good. But, the truth is that the ‘standards of good people’ (sadācāra) – civility – was a source of dharma flexible and ambiguous enough to incorporate almost any wellestablished conventional rule of any corporate group, so long as the rule did not obviously contradict a socially accepted provision of the texts. I would venture to say that the majority of Hindu law topics include provisions for custom to be recognised as binding in matters not expressly covered by the texts. The specification or enumeration of customs, however, is rare. Classical Hindu law assumes a complex moral and legal world outside of the text that cannot be fully reduced to abstract principles in texts. A comprehensive listing of customs, therefore, was out of the question for Hindu law authors, even though the foundational texts of the tradition are likely ‘records of custom’ written into the prescriptive idiom of a legal text (Lariviere 2004).

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Instead, generic statements about the old ways lend themselves to openended interpretations: ‘The path trodden by his fathers, the path trodden by his grandfathers—let him tread along that path of good people; no harm will befall him when he travels by that path’ (Laws of Manu 4.178, Olivelle 2004: 78). The slippage between the Brahmin as moral example and the conservative ideal of time-tested customs as moral standards helped the Hindu law tradition both to preserve and to escape a narrow, theological definition of morality. The question of who is good expands to include righteous kings, virtuous merchants, and loyal servants. What counts as goodness also points to general virtues rather than class-specific traits. The Laws of Harīta gives a typical list: ‘Loyalty to Brahmans, devotion to gods  and ancestors, gentleness, not causing pain to others, not being envious, kindness, not being harsh, friendliness, speaking amiably, gratefulness, providing shelter, compassion, and tranquility – these are the thirteen kinds of good conduct’ (Olivelle 2017: 144). Rather than investigate the nature of the virtues – these markers of ‘good conduct’ – the Hindu law tradition is content to allow virtue or goodness to be contextually determined in the communities. The importance given to customs and habits among conservatives is well known. The basic idea is that society grows organically and social rules develop without being deliberately invented such that people are ‘never guided exclusively by their understanding of the causal connections between particular known means and certain desired ends’ (Hayek [1970] 1997: 321, italics in the original). Social rules precede our entry into the world and we learn first to work within existing institutions whether we like it or not. A conservative views this as a positive inheritance: ‘But as custom and practice have brought to light all these principles, and have settled the just value of every thing; this must certainly contribute to the easy production of the passions, and guide us, by means of general establish’d maxims, in the proportions we ought to observe in preferring one object to another’ (Hume 2006: 26). Morality means custom shaping passion by means of rules. The inherited social world guides how we learn to feel about specific actions, most explicitly through the rules transmitted by multiple social institutions. On different grounds, Burke upholds custom by objecting to the need for ceaseless rational justification for actions without an appeal to custom. He writes, ‘Instead of casting away all our old prejudices, we cherish them … because they are prejudices; and the longer they have lasted, and the more generally they have prevailed, the more we cherish them. … Prejudice renders a man’s virtue his habit, and not a series of unconnected acts. Through prejudice, his duty becomes a part of his nature’ (Burke 1999: 451–2). By prejudice here, Burke means what we have always done, the

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tendency to think people, cultures, motives, and social processes are the same as they were before. That disposition for him links habitual actions together instead of requiring a separate justification for each on rational grounds. Habit and custom at least link discrete moral contexts, while reason tries and fails to transcend them.17 The controlling power of tradition and custom is a near absolute good in both classical Hindu law and traditional conservatism. Neither tradition nor custom functions in a vacuum, however. Society requires institutions in order to fix and transmit the goods of the past to succeeding generations. Institutions are the concrete manifestations of ancient wisdom. The institutions praised by both Hindu and Anglo-American conservatives are familiar: marriage and family, the state, property, neighbourhoods, voluntary associations, and rigid distinctions of class, status, sex, and age (Nisbet 1953). Where Anglo-American conservatives would defend the church, Hindu law authors would defend the Veda and Vedic ritual as essential religious institutions. Typically of the conservative view, Hume views institutions as the social location for the generation of moral sentiments: ‘There are certain deferences and mutual submissions, which custom requires of the different ranks of men towards each other. … ’Tis necessary, therefore, to know our rank and station in the world, whether it be fix’d by our birth, fortune, employments, talents or reputation. ’Tis necessary to feel the sentiment and passion of pride in conformity to it, and to regulate our actions accordingly’ (2006: 168). Burke finds the possibility of incremental change in the existence of institutions: ‘adhering in this particular, as in all things else, to our old settled maxim, never entirely nor at once to depart from antiquity. We found these old institutions, on the whole, favorable to morality and discipline; and we thought they were susceptible of amendment, without altering the ground’ (1999: 460).18 In general, institutions serve as the categorical boxes to hold tradition, custom, and practice. Institutions impose rules as the substance or contents of these categories. As a result, the presumptive goodness of existing institutions carries with it a ‘law and order’ legalism in which the status quo is moral by default. Social rules tested in and through institutions come to set the standard of morality against which actions are judged. The central institutions of Hindu law are class (varn.a) and the lifestyle of the married householder (gr.hasthāśrama).19 Other important institutions build upon these two as the pillars of dharma. The primary function of the state, for example, is to protect the classes and orders of life, especially the householder’s: ‘The king was created as the protector of people belonging to all social classes and orders of life who, according to their rank, are devoted to the Law specific to them’ (Laws of Manu 7.35, Olivelle 2004: 108).20 The same king must defend the customs of ‘castes, regions, guilds

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and families’ because ‘even men living far away endear themselves to the world when they stick to the activity specific to each and carry out their specific activities’ (Laws of Manu 8.41–2, Olivelle 2004: 126). Chaos ensues when a low-class Śūdra interprets the law or when Vaiśyas and Śūdras deviate from their proper duties (Laws of Manu 8.21, 418, Olivelle 2004: 124, 153). The dreaded ‘mixture of class’ (varn.asam . kara) arises from ‘adultery among the classes, marrying forbidden women, and abandoning the activities proper to their class’ (Laws of Manu 10.24, Olivelle 2004: 181). Further examples along these lines abound. What all of them show is the same commitment to protect established institutions that we find among Anglo-American conservatives. Moreover, they show that distinction, inequality, and hierarchy are not only accepted, but positively embraced by classical Hindu law. The conservative defence of inherent and inherited human differences as the basis of fixed social hierarchies thus reproduces Hindu law’s advocacy of class distinction by birth and the naturalisation of inequality as part of social order.21 Though the precise institutions held in esteem vary somewhat,22 both Hindu and Anglo-American conservatives place great weight on the need for long-established institutions and their rules for the preservation of moral order.

Conclusion Legalism is the basis of ethics in classical Hindu law in that the rules of tradition set the standard of what counts as moral. This kind of legalism was thoroughly described by Judith Shklar: ‘the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules’ (1964: 1). I have throughout used the terminology and thought of conservatives in the Anglo-American tradition to describe ethics in Hindu law, because the resemblances between these two traditions facilitate mutually illuminating metaphors, categories, and commitments in the legalistic ethics of both. The two do not match perfectly, but they come to similar conclusions often enough to merit viewing them together. I suspect, more importantly, that Hindu law authors would ‘see themselves’ in the assumptions and arguments of Anglo-American conservatives in a way that they would not in the ethical language of Kant or Foucault. As expressed in texts and customs, rules are the primary tools of institutions to coordinate social behaviour. This regulation of collective social action compensates for the imperfections of human beings, both in their motives and in their mistakes. The most reliable practical guide to morality thus becomes established custom, habit, and the model of respected people.

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Weaver states the conservative position, ‘The word “conscience” signifies in its root meaning something very much like recollection. To have conscience is to remember what we are and what we have been … History should arm conscience’ (2000: 631). By assimilating to past authority, ‘we’ escape the limits of our individual predilections, suppressing purely personal interests in deference to a shared past.23 The appeals to reason in many ethical systems do not make sense in the Hindu law or conservative traditions. Though Hindu law includes a commitment to orthodoxy in the form of the Veda, its substantive core is best viewed as a constant intellectual engagement with custom and tradition. Dharmaśāstra codifies customary rules even as it leaves open the need for a continuous living tradition to supply practical guidance in any given moment. The notion that one could make a ‘state of nature’ style argument and either justify or reform Hindu law would have seemed absurd in a tradition that reveres revelation and tradition as the constant lodestars of law and morality. When rational argument is dismissed, then emotion takes its place as the motivation for moral action. Both Hume’s and Manu’s move to include an appeal to moral approbation as a source of morality or dharma survived only with the qualification that moral sentiment find grounding in revelation or tradition. The inner, psychological experience of morality must not succumb to an arbitrary, relativist standard. Both authors want to know what moves people to act morally in practice, and warm feeling seems more likely than cold text. In Hindu law, the sentiment of ‘what pleases oneself’ or ‘what gratifies the mind’ never became a strong source of dharma. It reduced conscience to either the simple experiential pleasure of knowing that one is acting in accordance with tradition or the ordinary pleasure of personal preference in matters of food, dress, and so on. The idea of conscience in traditional conservatism is not so different. Conscience is a moral sensibility governed by socialisation in established tradition. It is a practice of ‘dharmamindedness’, a constant striving to be within the rule of dharma, much like the ‘sharia-mindedness’ that Clarke discusses below (Chapter 9). Most conservatives were content to ground morality upon established conventions. In the end, therefore, tradition replaces conscience as the standard of morality. Tradition here means both customary rules and the institutions that promulgate them. In line with conservative views, Hindu law rules and institutions organise the world based on inherent and inherited difference. The formation of ‘communities’ as social groups of imaginable scale is critical to this conservative vision. To deny people their class, neighbourhood, or family identity is to treat human beings as so many interchangeable widgets. Ethics here consists primarily in the maintenance of distinctions through the inculcation of inherited rules.



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Acknowledgements

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I wish to acknowledge the insightful criticisms and suggestions I received on an earlier version of this chapter from the volume’s editors, Morgan Clarke and Emily Corran. Each encouraged the large-scale comparison, while pointing out problematic areas that had to be addressed. I am grateful for this help, even if I have not managed to resolve every point of difficulty.

Notes   1 Readers will have to forgive the imprecision of the label ‘traditional conservatism’. Broadly, I have in mind the works of authors such as Burke and Hume, but also Hayek, Weaver, and Oakeshott, among others. It has been necessary to flatten the history and complexity of both traditional conservatism and Hindu law to make the comparison.   2 Methodologically, my approach parallels the way Saba Mahmood (2005: 27–9) finds liberal, especially Kantian, theory unhelpful for describing committed Muslim practice and turns instead to Foucault’s ethics of self-formation. My analysis in terms of conservatism seeks a framework to describe Hindu law that comes from a similar social position and disposition, namely, that of an elite male intelligentsia. Hindu law can and should be studied from other theoretical, especially critical or transgressive, perspectives.   3 Too often, the English words ‘rule’ and ‘law’ assume the state, legislation, and explicit enforcement. A rule (vidhi) in Sanskrit comes from an authoritative source – either revelation, traditional text, or custom – not from legislation or direct command, except by analogy.   4 A recent history of Dharmaśāstra and its major topics may be found in Olivelle and Davis (2018).   5 See also Lariviere (2004: 612) and Wezler (2004: 643).   6 Kāmasūtra 1.2.17–19, my translation. See also Fosse (2012).   7 For a recent in-depth study of the sources of Hindu law, see Olivelle (2017: 16–38) and the copious translated extracts found in part I of his reader.   8 Weaver may as well have been describing the disciplined ideal man of Hindu law: ‘The good man, the man with proved allegiance to correct sentiment, has been the natural trustee of authority’ (1948: 33).   9 For a study of how Mīmām . sā justifies Vedic revelation on philosophical grounds, see Halbfass (1991). 10 I set aside exceptions among traditional conservatives such as Hume. 11 See e.g. Medhātithi in Olivelle (2017: 136) and Davis (2007b: 282). 12 Smith ([1759] 2009: 191): ‘Since these, therefore, were plainly intended to be the governing principles of human nature, the rules which they [the sentiments] prescribe are to be regarded as the commands and laws of the Deity, promulgated by those viceregents which he has thus set up within us.’

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13 Compare Burke: ‘To be attached to the subdivision, to love this little platoon we belong to in society, is the first principle (the germ, as it were) of public affections’ (1999: 437). 14 Compare Weaver: ‘In the same way that our cognition passes from a report of particular details to a knowledge of universals, so our sentiments pass from a welter of feeling to an illumined concept of what one ought to feel. This is what is known as refinement. Man is in the world to suffer his passion; but wisdom comes to his relief with an offer of conventions, which shape and elevate that passion’ (1948: 21). 15 I describe several examples from a medieval Hindu law text in Davis (2017). 16 For two recent accounts of the establishment of Brahminism and the Brahminical worldview, see Squarcini (2011) and Lubin (2012). 17 Compare Oakeshott ([1947] 1997: 296): ‘There is no place in the rationalist’s scheme for a “best in the circumstances”, only a place for “the best”; because the function of reason is precisely to surmount circumstances.’ 18 Compare Oakeshott ([1947] 1997: 307): ‘And he conceives a contempt for what he does not understand; habit and custom appear bad in themselves, a kind of nescience of behaviour. And by some strange self-deception, he attributes to tradition (which, of course, is pre-eminently fluid) the rigidity and fixity of ­character which in fact belongs to ideological politics.’ 19 On the household as an institution of Hindu law, see Davis (2010: 33–9). The studies in Olivelle (2019) establish that the householder ideology was in fact an innovation in the early phases of Hindu law, but one that became the source for conservative reactions against ascetic ideologies over time. 20 Laws of Manu 6.87–90 (Olivelle 2004: 105) clearly states the superiority of the householder lifestyle, or ‘order of life’ to the other three – student, forest hermit, and ascetic. 21 The classic account of hierarchy in Indic thought by Dumont (1970) is still relevant. 22 Classical Hindu law would place certain ritual systems such as ancestral rites and  expiations in the category of essential institutions. I suspect Christian cultural habits might similarly be deemed important by Anglo-American ­conservatives. 23 Both Hindu and Anglo-American conservatives pass over or actively dismiss the place of women and minorities of all kinds in this shared past.

References Burke, Edmund, 1999. The Portable Edmund Burke, ed. Isaac Kramnick. New York: Penguin. Davis, Jr., Donald R., 2006. ‘A realist view of Hindu law’. Ratio Juris 19/3: 287–313. Davis, Jr., Donald R., 2007a. ‘Maxims and precedent in classical Hindu law’. Indologica Taurinesia 33: 33–55.

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Davis, Jr., Donald R., 2007b. ‘On Ātmatus..ti as a source of dharma’. Journal of the American Oriental Society 127/3: 279–96. Davis, Jr., Donald R., 2010. The Spirit of Hindu Law. Cambridge: Cambridge University Press. Davis, Jr., Donald R., 2017. ‘An Indian philosophy of law: Vijñāneśvara’s Epitome of the Law’, in Jonardon Ganeri (ed.), The Oxford Handbook of Indian Philosophy. Oxford: Oxford University Press, 507–21. Derrett, J. Duncan M., 1978. ‘The concept of duty in ancient Indian jurisprudence: The problem of ascertainment’, in Wendy Doniger O’Flaherty and J. Duncan M. Derrett (eds), The Concept of Duty in South Asia. London: Vikas Publishing/ SOAS, 18–65. Dumont, Louis, 1970. Homo Hierarchicus: The Caste System and Its Implications, trans. Mark Sainsbury, Louis Dumont and Basia Gulati. Chicago IL: University of Chicago Press. Eliot, T. S., 1921. ‘Tradition and the individual talent’, in The Sacred Wood: Essays on Poetry and Criticism. New York: Knopf, 42–53. Fosse, Lars Martin (trans.), 2012. The Kamasutra. Woodstock NY: Yogavidya.com. Glucklich, Ariel, 2011. ‘Virtue and happiness in the Law Book of Manu’. International Journal of Hindu Studies 15/2: 165–90. Halbfass, Wilhelm, 1991. Tradition and Reflection: Explorations in Indian Thought. Albany NY: SUNY Press. Hayek, Friedrich, [1970] 1997. ‘The errors of constructivism’, in J. Z. Muller (ed.), Conservatism: An Anthology of Social and Political Thought from David Hume to the Present. Princeton NJ: Princeton University Press, 313–34. Hume, David, 2006. Moral Philosophy, ed. Geoffrey Sayre-McCord. Indianapolis IN: Hackett. Jha, Ganganatha (ed. and trans.), [1920–32] 1999. Manusmr.ti with the “Manubhās.ya” of Medhātithi, 10 vols. Delhi: Motilal Banarsidass. Lariviere, Richard W., 1989. The Nāradasmr.ti, 2 vols. Philadelphia PA: Dept. of South Asia Regional Studies. Lariviere, Richard W., 2004. ‘Dharmaśāstra, custom, “real law,” and “apocryphal” smr.tis’. Journal of Indian Philosophy 32/5–6: 611–24. Lingat, Robert, 1973. The Classical Law of India, trans. J. D. M. Derrett. Berkeley CA: University of California Press. Lubin, Timothy, 2012. ‘The polity of the philosopher-bureaucrat: Brahmanical virtue as a qualification for public office’, in Piotr Balcerowicz (ed.), World View and Theory in Indian Philosophy, Warsaw Indological Studies. Delhi: Manohar, 299–325. Mahmood, Saba. 2005. Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton NJ: Princeton University Press. Muller, Jerry Z. (ed.), 1997. Conservatism: An Anthology of Social and Political Thought from David Hume to the Present. Princeton NJ: Princeton University Press. Nisbet, Robert, 1953. The Quest for Community: A Study in the Ethics of Order and Freedom. New York: Oxford University Press. Oakeshott, Michael, [1947] 1997. ‘Rationalism in politics’, in J. Z. Muller (ed.), Conservatism: An Anthology of Social and Political Thought from David Hume to the Present. Princeton NJ: Princeton University Press, 292–312. Olivelle, Patrick (trans.), 1996. Upanis.ads. New York: Oxford University Press.

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Olivelle, Patrick (trans.), 2004. The Law Code of Manu. New York: Oxford University Press. Olivelle, Patrick, 2017. A Dharma Reader: Classical Indian Law. New York: Columbia University Press. Olivelle, Patrick (ed.), 2019. Gr.hastha: The Householder in Ancient Indian Religious Culture. New York: Oxford University Press. Olivelle, Patrick and Donald R. Davis, Jr. (eds), 2018. Hindu Law: A New History of Dharmaśāstra. Oxford: Oxford University Press. Pollock, Sheldon, 1985. ‘The theory of practice and the practice of theory in Indian intellectual history’. Journal of the American Oriental Society 105/3: 499–519. Quinton, Anthony, 1978. The Politics of Imperfection: The Religious and Secular Traditions of Conservative Thought in England from Hooker to Oakeshott. London: Faber. Rangaswami Aiyangar, K. V. (ed.), 1941. Br.haspatismr.ti (Reconstructed). Baroda: Oriental Institute. Rocher, Ludo, 2012. ‘The theory of proof in ancient Hindu law’, in Studies in Hindu Law and Dharmaśāstra, ed. Donald R. Davis, Jr. London: Anthem, 361–93. Sankararama Sastri, C., 1926. Fictions in the Development of the Hindu Law Texts. Madras: Vasanta Press. Sayre-McCord, Geoffrey, 1994. ‘On why Hume’s “general point of view” isn’t ideal – and shouldn’t be’. Social Philosophy & Policy 11/1, 202–28. Shklar, Judith, 1964. Legalism: Law, Morals, and Political Trials. Cambridge MA: Harvard University Press. Smith, Adam, [1759] 2009. The Theory of Moral Sentiments, ed. R. P. Hanley. New York: Penguin. Squarcini, Federico, 2011. Tradition, Veda and Law: Studies on South Asian Classical Intellectual Traditions. London: Anthem. Srinivasacharya, L. (ed.), 1914. Smr.ticandrikā: Vyavahārakān.d.a. Mysore: Gov’t Press. Weaver, Richard M., 1948. Ideas Have Consequences. Chicago IL: University of Chicago Press. Weaver, Richard M., 2000. In Defense of Tradition, ed. Ted J. Smith III. Carmel IN: Liberty Fund. Wezler, Albrecht, 1999. ‘Medhātithi on sāmānyato dr.s..tam [anumānam]’. Journal of Indian Philosophy 27: 139–57. Wezler, Albrecht, 2004. ‘Dharma in the Veda and the Dharmaśāstras’. Journal of Indian Philosophy 32/5–6: 629–54. Winters, Barbara, 1979. ‘Hume on reason’. Hume Studies 5/1: 20–35.

2 Manners and morals: Codes of civility in early modern England Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

Martin Ingram

‘Civility’ – decorous behaviour as it was thought about, publicised and practised in Europe in the sixteenth, seventeenth and eighteenth c­ enturies – relates closely to the idea of the ‘care of the self’ explored by Michel Foucault (1988), to the concept of ‘legalism’ developed by Paul Dresch and others (Dresch and Skoda 2012; as discussed in the Introduction), and to a variety of other big ideas, notably the ‘civilizing process’ as conceived by Norbert Elias ([1939] 1994). Codes of ‘civility’ were legalistic in the sense that they were developed more or less systematically in a series of treatises that presented themselves as authoritative. Many elements of the code were set out categorically as precepts to be rigorously adhered to. But for the  most part no legal authority actually dictated or enforced them, and  they are more readily seen as enabling ethical life than as constraining it. They were upheld partly by the example of prominent members of society who more or less self-consciously promoted them; partly by the social and psychological pressures (embarrassment, shame, exclusion) experienced by those who failed to follow suit; and, more importantly, by the voluntary actions of individuals who chose these modes of conduct for themselves and – here an indirect form of compulsion comes into play, via education – for their children. They were a form of self-fashioning. Among the reasons for making this choice was aspiration, to maintain or enhance one’s standing and position. There is no doubt that ideas of civility proved very powerful over many generations and undoubtedly shaped – perhaps transformed – behaviour, especially among the elites, but in the wider society too. It needs to be said that the subject has no clear boundaries and can include subjects as diverse as levels of violence (including duelling), the use of space in houses and funeral rites (Heal and Holmes 1994; Houlbrooke 2000; Peltonen 2003; Sharpe 2016). Elias ([1939] 1994) associated the idea with longterm developments in state formation in Western Europe, especially France but with side-glances at England and Germany, and with what he argued were the psychological counterparts of these developments in the minds of

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­individuals – increasing self-control and (an idea that has proved more difficult to substantiate) ‘an advance in the threshold of embarrassment and shame’ (Bryson 1998: 96–106). Here the emphasis is on the core meaning of refined and, more basically, restrained personal behaviour. Similar themes could be explored in a variety of cultural contexts – China, Japan, India, the Islamic world and so on – which Elias largely ignored. But for the sake of brevity this chapter likewise eschews such wide-ranging cross-cultural comparisons. Even within Europe civility was an international phenomenon, and part of the story must be told in those terms. But there were national variants, and the spotlight here is on England. My particular approach is to relate civility to the main focus of my research, the social and legal regulation of personal behaviour. As we shall see, civility as it developed in England was in certain respects closely linked with sexual restraint, as well as with other forms of ‘decent’ conduct; which in a sense takes us back to Foucault, since it was within the framework of his history of sexuality that he developed the notion of the care of the self. The growing social prominence of civility facilitated what was a major shift in eighteenthcentury English society – the decreasing use of legal means to regulate personal behaviour and, correspondingly, an increasing emphasis on internal restraints inculcated through education and self-discipline.

Manners and morals Before exploring ‘civility’ further, let us first consider ‘manners’. In Tudor and Stuart times, and indeed long before, this word could denote the polite and decorous behaviour of individuals. But it also carried another range of meanings. In Leviathan Thomas Hobbes ([1651] 1946: 63) wrote: ‘By manners, I mean not here, decency of behaviour, as how one should salute another, or how a man should wash his mouth, or pick his teeth before company.’ The alternative meaning approximated to what we would call ‘morals’ or, more generally, ‘moral climate’, albeit with the emphasis not on the inward state of mind but the externals of behaviour or ‘conduct’. These usages shaded off into others more closely related to what we mean by ‘habits’ or ‘customs’. From another perspective, the word ‘manners’ was the equivalent of, and regularly used to translate, the Latin word mores (Ingram 1996). At first sight we might think that ‘manners’ are beyond the range of legal action. Bad manners may be reprehensible, but they are not illegal, far less criminal. Or are they? A moment’s thought reveals that this is by no means true even in the modern world. Putting one’s feet on the seats of railway carriages, spitting on the pavement, or allowing dogs to foul the streets are

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not merely discourteous but may incur formal sanctions, while a variety of behaviours that were formerly seen merely as rude or unseemly may nowadays be categorised as sexual or other forms of harassment, or even as ‘hate-crimes’, to be dealt with by legal or quasi-legal procedures. In later medieval and early modern England the regulation – or, as contemporaries more usually put it, the ‘reformation’ – of manners (reformatio morum) by legal means was central to social life. From the late fourteenth century, and more insistently from the late fifteenth into the sixteenth and seventeenth centuries, royal and other secular courts became involved in ‘reformation of manners’ (Ingram 2017: 12–16). This was especially true of courts and legal processes characterised by fluid and malleable procedures, and those that very closely meshed with the abrasive interactions of local social life. These included the three-monthly county quarter sessions, presided over by local justices of the peace; city and borough courts, run by the mayor and aldermen or other prominent members of local corporations; and local manor courts. Even more important agents of ‘reformation of manners’ were the ecclesiastical courts, which formed an elaborate, omnipresent system throughout the dioceses of England. After the Reformation they became increasingly concerned with enforcing religious observances. But for a long time before this, at least from the fourteenth century, they had been active in upholding standards of conduct among the clergy, the reverent and seemly behaviour of laypeople in church and, more broadly, the encouragement of peaceful and charitable behaviour among the members of the Christian community. Prosecutions for defamation, and more generally for contentious and abusive speech, were always a feature of their activities. Likewise of long duration was the church courts’ jurisdiction over marriage and sexual behaviour. A staple of their business in the fifteenth, sixteenth and seventeenth centuries was the punishment of adultery and fornication, seen as integral and indeed fundamental to ‘reformation of manners’ (Outhwaite 2006).

The origins and development of civility What then of ‘civility’, together with the adjective ‘civil’ and the inverse forms ‘uncivil’ and ‘incivility’? This terminology was burgeoning rapidly in the late sixteenth century. A useful point of reference is the dialogue Of Cyvile and Uncyvile Life (1579), which provides us with a showcase of usages. References to ‘civil wars’, ‘civil dissension’, ‘martial and civil’ and ‘laws civil and common’ are one indication among many that concepts of civility originated in ideas about political and legal relations. Indeed the

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oldest and most basic meaning was in relation to the lives of citizens. More interesting is the contrast that the author drew between ‘the savage nations’ and ‘a most civil country’ such as England. What was evoked here was ordered government, firm standards in religion, rules governing the conduct of warfare and international relations, developing agriculture, manufacture and commerce underpinned by sound credit arrangements and, more generally, a settled society conducive to harmonious social relations and advancement in arts and knowledge. This association of ‘civil’ with what would later be termed ‘civilised’ was a keynote of the propaganda associated with the Elizabethan conquest of Ireland; it could also be used in relation to the more remote areas of England; and it was to be increasingly in demand in the seventeenth and eighteenth centuries as authors engaged with the experiences of transoceanic trade and colonisation – a major theme recently explored at length by Keith Thomas (2018). On a different scale of social interaction, the author of Cyvile and Uncyvile Life also equated civility with the ‘ceremonies’ of visiting, dining and so forth. Yet there is a conceptual link with the broader notion, since the absence of such civilities is seen as ‘barbarous’. At the heart of this tract is a vision which associates towns and cities with a more ordered, sophisticated and refined mode of behaviour. Characterised as ‘civil’ and ‘civility’, it is contrasted with ‘country conditions’, ‘bluntness and rusticity’, ‘manners’ that are ‘rude’, ‘clownish’, ‘uncomely’ (Hazlitt 1868: 1–93; Ingram 2000: 91). At first sight the link between civility and cities seems obvious and, as we shall see, there is considerable mileage in this idea. But in fact, the origins and antecedents of civility in the sense of restrained and refined behaviour have been fiercely debated. Elias associated civility with aristocratic court society in France and other emergent absolutist states in the sixteenth and seventeenth centuries. His argument was that, as members of this new social group differentiated themselves from the medieval warrior aristocracy, adapted themselves to the monarch’s claim to a monopoly of violence and at the same time experienced the challenge of bourgeois financiers, merchants and administrators, they cultivated in their speech and behaviour marks of distinction that expressed their power and preserved their superiority (Elias [1939] 1994: 64–6, 82, 129–31, 177–8, 448, 451, 462–3, 500–3). More generally, there has been a persistent tendency to see civility as a development of medieval ‘courtesy’ – a term that was still current in the sixteenth and seventeenth centuries, only slowly giving way to ‘civility’ (Bryson 1998: 24; Thomas 2018: 15–16, 353n5). This approach identifies the antecedents of Renaissance and later treatises of civility in such works as The Boke of Nurture (written around 1450 by John Russell, steward to Humphrey, duke of Gloucester) and the late fifteenth-century Boke of

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Curtesye. Many of these were primarily associated with table manners in the sense of the rituals and decorum associated with aristocratic feasting and hospitality, though some did range more widely (Bryson 1998: 27–8). Gillingham (2002) takes issue with both Elias and Bryson, locating the origins of civility, broadly conceived, at least as far back as the twelfth century in works in Latin and Anglo-Norman French. Yet another approach, developed by Dilwyn Knox (1991, 1995, 2000), is to associate the origins of civility with medieval religious and especially monastic organisations. On this view, later manifestations of civility represented the appropriation and adaptation of clerical ideals by laypeople. Elias ([1939] 1994: 48, 83, 164) himself gestured towards this line of argument. But his conviction that religion reflected civilised standards rather than shaping them inhibited him from developing this insight. What is clear is that the word ‘civility’ (and its variants in other European languages) became widely current in humanist writings in the early sixteenth century and the concepts associated with it were elaborated over the next 300 years. To explore fully the literature that bears on this theme would take one far and wide. It would certainly include Baldassare Castiglione’s famous book, Il libro del cortegiano (1528, translated into English as The Courtyer by Sir Thomas Hoby in 1561), as well as numerous lesser-known works on education and related themes. To take a more focused view, the key text was Erasmus’s De civilitate morum puerilium (1530), which had enormous distribution both in the original Latin and in many vernacular languages, not to mention plagiarised versions and paraphrases. The first English translation was in 1532. This was in fact a brief work adapted to the understanding of a well-schooled child of ten: it was originally written for the young Prince Henry of Burgundy. Accordingly it dealt with relatively basic matters, especially bodily comportment. More elaborate was Il galateo, written by Giovanni Della Casa, archbishop of Benevento, an international best-seller first published in 1556 and in English translation twenty years later. Yet more complex and wide ranging was Stefano Guazzo’s work in four books, La civil conversatione, published in 1574 and translated into English in the 1580s. In the seventeenth century the epicentre of civility moved to France, the successor to Italy’s cultural dominance. The key text was Antoine de Courtin’s Nouveau traité de la civilité, published during the reign of Louis XIV in 1670 and translated as The Rules of Civility the following year when Charles II was on the throne of England. Meanwhile the genre was augmented by English writers. Simon Robson’s Courte of Civill Courtesie (1577) was presented as a translation from the Italian, but the claim was probably false. This brief work is notable for its emphasis on verbal dexterity to enable a man to demonstrate ‘a comely

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audacity without a saucy presumption’. Many of its numerous examples sound, to modern ears, like ponderous put-downs. Francis Hawkins’s Youth’s Behaviour, or Decencie in Conversation amongst Men is sometimes described as the first fully-fledged native English work on civility and manners. A reference in another work (Puget de la Serre 1638: preface) indicates that it was already in existence in 1638, but it was apparently first published in 1641 and then reissued numerous times with various additions. Its Englishness is more apparent than real, since it was a translation of a French work of around 1595, itself compiled by pensionnaires at the Jesuit college of Pont-à-Mousson from elements drawn from Erasmus, Della Casa and others.

The precepts of civility Youth’s Behaviour is worth pausing over to illustrate the nature and content of works of civility around the middle of the seventeenth century. It has to be said that not all civility texts exemplified the orientation towards rules that is a major focus of this volume. Some took the characteristically humanist form of a ‘dialogue’, which eschewed simple prescription and allowed for the exploration of regional, local and situational variations, as well as differences of opinion as to the best forms of behaviour. Such  an approach, exemplified in Castiglione’s Courtier and Guazzo’s Civile Conversation, was designed to stimulate reflection and the comprehension of underlying principles, rather than mere rote learning. That said, rules and prescriptions featured prominently in most manuals of civility; indeed, the English translator of Castiglione ([1561] 1994: 367–74) thought fit to append a summary of the main lessons of this complex text in the form of a list of precepts. The text of Youth’s Behaviour is strikingly legalistic, set out as a series of numbered rules, which the reader is enjoined to learn and then practise: ‘Content not thyself with the bare knowledge of these precepts: but when thou hast imprinted them in thy mind, express them in thy conversation [i.e. behaviour], for virtue consists in action, not in contemplation’ (Hawkins 1661: 38). Many of the precepts of Youth’s Behaviour are detailed to an extent that seems very droll to the modern reader. ‘Kill not a flea or other unclean vermin in the presence of others; and if thou seest any filth on the ground, as some thick spittle or the like, put thy foot thereon dexterously if thou canst: if that were upon the clothes of thy companion, show it not to others: but if thou canst put it off neatly, yet without his taking notice thereof, if it may so be; and if another do for thee the like office, show thyself unto him with tender of thanks’ (Hawkins 1661: 5). The precepts are also very

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wide-ranging, as a glance at the index reveals. Under the letter R we find ‘rubbing the teeth’, ‘reading unseasonably’, ‘reading in company’, ‘rejoicing preposterous’ (inappropriate mirth), ‘reprehensions of others when seasonable’, ‘rumour not suddenly to be believed’, ‘reviling words how to be received with discretion’, ‘rinsing and cleansing of the mouth’ and ‘reverence towards God and his actions’. Under the letter T are found ‘turning the back’, ‘teaching an equal’ (to be avoided), ‘titles and attributes, how to be bestowed’, ‘thou and thee when to be used’, ‘tediousness in all things to be avoided’ and ‘table-cloth not to be soiled’. But to summarise, the content covered three broad areas characteristic of civility literature. The first was cleanliness, personal hygiene and control of the body and of the emotions, which involved (for example) restraint on laughter and to be quietly spoken in ordinary circumstances. This was the bedrock of civility. The second area comprised manners and ceremonies in conversation and in company with others, including at table. It was recognised that many such ceremonies were arbitrary, varied from country to country and changed over time. The wider knowledge of the world and greater sense of history that were commonplace by about 1700 made this increasingly evident. The English version of De Courtin (1671: 7) stated that ‘nothing is more obvious than variety of customs, and that what is decent in one nation, is undecent in another,’ while in 1703 a new translator of Il galateo, while in no doubt that the work still had relevance, lamented that at times ‘our author seems to run too much upon the Sir-Courtly stroke, and may be thought to recommend a character which [nowadays] considerate persons are wont to despise’ (Della Casa 1703: A[1v]–A2r). Even a couple of generations earlier, Youth’s Behaviour warned against ‘superfluous compliments’ and stressed that ‘all affectation in ceremonies’ was to be avoided (Hawkins 1661: 8). The third area comprised the due decorum to be shown to equals and to those above and below the individual in the social hierarchy. In principle this was the essence of civility and hence not so subject to times and seasons. In practice it was capable of much inflection. The advice of Simon Robson (1577), mentioned earlier, breathed a spirit of touchy assertiveness. More characteristic was Youth’s Behaviour: ‘Show thyself humble, tractable to thy superiors, especially to magistrates, and men in authority; let thy demeanour towards thy equals be such as may argue thee free from arrogance; and be thou assured that gentle affability towards thy inferiors, will fix to thy name the epithet of courteous’ (Hawkins 1661: 14). More generally – a principle implicit rather than explicit in Youth’s Behaviour but stated plainly by other authors – civility lay in ‘preferring the satisfaction and commodity of other people before our own’ (De Courtin 1671: 9–10).

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Audiences For whom was this literature intended? First it should be said that the majority of civility texts were directed at males. The assumption was that they were dominant in the gender hierarchy and that the main work of sociability, the exercise of authority and cutting a figure in the world more generally lay with them. It is true that prescriptive works on the behaviour appropriate to women had existed for a long time. The most famous Renaissance example was Juan Luis Vives’ Instruction of a Christen Woman, translated by Richard Hyrde in 1529. But works adapting the principles of civility to women were slow to appear in English. In 1664 Robert Codrington produced The Second Part of Youth’s Behaviour, or Decency in Conversation amongst Women. In 1673 much of its substance was reworked into a compendium volume attributed to Hannah Woolley, The Gentlewoman’s Companion; or, a Guide to the Female Sex – though she herself in one of her later publications disowned this work. Predictably the stress was on discretion, silence, obedience to parents (and after marriage, to one’s husband), modesty and virtue – largely, though not entirely, equated with chastity. It was only in the eighteenth century, as women played an increasing role in sociability, that works of civility directed towards females began to proliferate. With regard to civility texts for men, the most important thing to emphasise is that they were primarily intended for children or young people. This is self-evidently so in the case of Erasmus’s De civilitate. Francis Hawkins, the translator of Youth’s Behaviour, was advertised as being less than eight when he carried out the task and ten years old when the work was published. The perky portrait that prefaced the work was deliberately exemplary, designed to stir in youthful readers a desire to emulate not only his command of civility but also his linguistic prowess (see Figure 2.1). Della Casa and, more especially, Guazzo seem to have had an older audience in mind, but still the emphasis was on young men as they emerged into ­adulthood. Some of the texts were certainly used in schools. It is sometimes suggested that works such as Youth’s Behaviour embody a paradox. They purport to teach the good manners and decorum appropriate to people in the higher levels of society. But such people might be expected to absorb these principles from infancy and have no need of printed prescriptions. The inference is that guides to civility were chiefly attractive to social climbers and it is doubtful how effective such ‘how to do it’ guides might be. The pedagogic context helps to solve this conundrum. Some adults no doubt spelled their way through these texts to improve their social chances; in a moment we will consider what the sorts of people they

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Figure 2.1  Portrait of Francis Hawkins in Youth’s Behaviour

might have been. But, however basic or self-evident they may seem at first sight, civility texts were of utility even to the aristocracy and gentry when incorporated into a broader programme of education. The ones in Latin served a dual function, of course. In any case, all the writers of conduct books showed themselves aware that good manners, and certainly the very best manners, were not simply a matter of absorbing precepts. The subtleties of bearing and behaviour were important too; to be truly graceful and refined required, not just learning the rules, but a certain je ne sais quoi. Hence individual embodiments of the arts of civility were held up as exemplars. According to the earl of Clarendon, Sir Kenelm Digby (1603–65) exhibited ‘a wonderful graceful behaviour, a flowing courtesy and civility, and such a volubility of language, as surprised and delighted’ (Thomas 2018: 62). Such qualities could not be learnt out of a book.

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What were the attractions of civility? The idea that these codes were generated by a new kind of court aristocracy to define themselves in relation to other social groups (Elias [1939] 1994: 64, 82, 462–3) needs to be refined to explain their increasing purchase in the particular context of seventeenthcentury England. ‘Civility’ was evidently distinct from, yet closely related to, gentility. Traditionally this had been associated with land and lineage, the exercise of local authority and a military ethos that gradually mutated to embrace civil pursuits. Civility was more oriented towards polite and decorous conduct – in the words of Anna Bryson (1998: 113–14; but cf. Gillingham 2002: 284–6), a shift from ‘lordship’ to ‘urbanity’. It was hence associated in England with an increasingly important urban context, especially the capital – but the genteel ‘town’ of the West End rather than the commercial ‘city’ of London and what we now know as the East End. The royal court, more important than in the Middle Ages as a site of aristocratic prestige and display, was now usually resident close to London. More generally, the gentry and nobility increasingly resorted to the metropolis for the ‘season’, and places of resort and promenade, such as the Mulberry Garden (by the mid-seventeenth century) and St James’s Park (in the reign of Charles II), became of increasing social importance. To an extent other towns developed in the same way, while certain places, notably Bath, developed a particular character as playgrounds of the leisured classes. These considerations suggest a different perspective on civility from that proposed by Elias. In the urban context the trappings of gentle life, except for the very rich, had to be scaled down. Residence in town usually meant fewer servants, smaller houses (often merely lodgings), perhaps less in the way of horses and equipage. Hence honour and status depended far more on personal attributes and behaviour. The relative anonymity and complexity of urban life demanded that the gentleman should maintain a social persona that could constantly, and in many varied situations, represent his gentlemanly quality. At the same time urban social life involved frequent contact with individuals whose precise social status was not immediately apparent. Civility provided a code of conduct that enabled the individual to play safe – to treat strangers (if they were not obviously of inferior rank) in the first instance as of equal or superior status (Bryson 1998: 118–50). It also provided a ready means by which people of unequal rank, wealth and power could interact in mutually beneficial ways. The diarist Samuel Pepys, for example, a naval administrator, needed in the course of his work to do business with such diverse figures as his patron, the earl of Sandwich, the duke of York (Charles II’s brother, later King James II), courtiers, government officials, city merchants, naval contractors, commanders of ships of war and a host of lesser folk. Codes of civility enabled him to do so with a minimum of fuss (Archer 2000).

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In terms of social differentiation, civility embodied a degree of ambiguity. Guazzo ([1581–86] 1925: i. 56) refused to limit its precepts to any specific class or social environment, insisting that ‘we would have understood, that to live civilly, is not said in respect of the city, but of the qualities of the mind: … so I will that civil conversation appertain … to all sorts of persons of what place, or of what calling so ever they are.’ Yet it was a mark of ‘persons of quality’ or ‘well-bred persons’. This meant that it could be used to exclude others, and it is certainly plausible that the chief attraction of codes of civility was that they enabled social groups who in terms of mere wealth or power were rivalled by others to maintain their exclusivity, as also to put down the ‘rude multitude’. On the other hand, such codes could provide access or serve as a means of advancement to wealthy merchants, financiers, lawyers, professional men of all sorts (and their wives) who could thereby assume some of the trappings of gentility. At a more basic level, it is likely that civility texts were of material use to individuals, whether men or women, who wished to find places as servants in the houses of the rich. People of this sort appear to be the target audience of (for example) some sections of The Gentlewoman’s Companion. Partly in response to this development, people in the highest and most sophisticated social circles developed even greater refinement of behaviour, encompassing matters of intellectual and artistic taste and knowledge as well as rules of deportment and social interaction. By the late seventeenth century the ideal to which they now aspired was coming to be referred to as ‘politeness’, a usage that became commonplace after 1700 (Thomas 2018: 27–31, 353n5; cf. Elias [1939] 1994: 84). Meanwhile the idea of civility ‘trickled down’ to influence a large section of the social order – all those whom historians nowadays usually refer to as the ‘middling sorts’. These embraced yeoman farmers and well-to-do husbandmen, craftsmen, traders, shop­keepers and the like in the countryside as well as in the towns. This is apparent from a wide range of sources, but perhaps most salient in the records of both the ecclesiastical and the secular courts. Until the end of the sixteenth century, the language of ‘civil’ and ‘uncivil’ was quite rarely used in such sources. In the early seventeenth century it began to proliferate and by the late s­eventeenth and eighteenth centuries it was commonplace. However, this application of the concept of civility to the lower classes, leading to its appropriation by them, was inflected in a peculiar way. It had less to do with the niceties of deportment and polite behaviour – though these were not entirely excluded – and far less with the rarefied heights of ‘politeness’. Rather it equated to what we might think of as ‘respectability’ in terms of moral conduct and relations with neighbours as well as personal cleanliness, presentable clothing, a wellordered household and the like. This brings us back to another important theme – the relationship between civility and morality.

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Civility and morality It has long been recognised that – unlike the nineteenth-century term ‘etiquette’, which merely relates to forms and ceremonies – ‘civility’ had a powerful ethical dimension. Most obviously congruent with the prescriptions of Christian morality are texts that dealt with the basics of the subject, not least Erasmus’s De civilitate. Dealing with many matters of polite behaviour that were outside the sphere of morality ordinarily defined, Erasmus (1532: sig. D3r), as translated into English, was at pains to emphasise that ‘these things be not here spoken for that intent, as though no man may be honest without them’. But underlying the book’s prescriptions was the conviction, well established in Christian thought long before Erasmus wrote, that the body was the outward reflection of the soul. Though ‘grace of honest behaviour’ might be nurtured by education, fundamentally ‘this outward honesty of the body cometh of the soul well composed or ordered’ (Erasmus 1532: sig. A2v). On similar grounds Della Casa (1576: 2) could assert that civility as he understood it was ‘either a virtue, or the thing that comes very near to virtue’. The matter goes deeper, because the ethical core of civility came very close to the ‘golden rule’ that you should do unto others as you would that others should do unto you. However, on closer examination the relationship between civility and morality was a complex one. The link between ideas of civility and the developing social practice of duelling was clearly problematic (Peltonen 2003). Moreover, inherent in the idea of civility were notions of artifice and ceremony that could easily veer into dissimulation, in the eyes of some the enemy of true morality. More basically, as we have seen, a powerful underlying principle was the idea of accommodating oneself to others. In the words of Della Casa (1576: 5) refracted through his Elizabethan translator, ‘every act that offendeth any the common senses, or overthwarteth a man’s will and desire, or else presenteth to the imagination and conceit, matters unpleasant, and that likewise, which the mind doth abhor, such things, I say, be naught, and must not be used.’ This duty of complaisance was likely, in the long run, to blunt the edge of moral condemnation, and indeed might create an alternative morality that radically parted company with traditional Christian teaching (Ingram 2000: 94). One indication of unease emerged in the use of language. Traditionally moralists had condemned sinfulness in no uncertain terms. Echoing the Bible, adultery and fornication were resoundingly described as such, and characteristically presented as ‘filthy’, polluting acts, or as bestial and animal-like behaviour. Yet Della Casa (1576: 82) prescribed the use of euphemisms to avoid direct mention of unsavoury or scandalous subjects:

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for example, ‘it better becomes a man’s and woman’s mouth to call harlots, women of the world.’ His purpose was moral, deriving from the biblical precept that ‘evil communications corrupt good manners’. But it became a commonplace of moralist criticism that the soft words of ­ civility  – ­‘mistress’, ‘miss’, ‘gallant’, ‘intrigue’, ‘gallantry’, ‘affair’ – were a cloak for sin. The broader social context of civility – the places of resort of polite society; occasions of sociability, such as play going and assemblies; fashion and its excesses in dress and demeanour – also stimulated moral condemnation, which grew louder, shriller and more insistent as the Stuart century progressed (Ingram 2000: 94; Turner 2002: 25–6, 36). But this was only one current of moralists’ thinking; and, increasingly in the seventeenth century, moralists did appeal to the idea of civility, or notions dependent on it, to buttress their arguments in certain situations (Ingram 2000: 95–7). Richard Allestree, probable author of the immensely influential Whole Duty of Man (1658 and later editions), repeatedly prodded his readers’ conscience by inquiring why duties towards God were not observed with the same rigour as the everyday code of civility. By a parallel logic, the laxness of the contemporary treatment of adultery and incest was castigated by reference to the uncompromising punishments meted out by non-Christian societies past and present. Incestuous marriages, according to Thomas Beard (1597: 327), were ‘inhibited not only by the law of God, but also by civil and politic constitutions, whereunto all nations have ever by the sole instinct of nature agreed and accorded’. Moralists also used the language of civility and incivility to set limits on actions that were not of themselves self-evidently sinful, such as young men’s taste for growing their hair long, or to persuade readers of the sinfulness of behaviour which some regarded as lawful or neutral. Thus Beard (1597: 321) condemned sexual intercourse between couples who had been secretly contracted in marriage but not publicly married in church, ‘warning how unlawful all such conversation is, and how contrary to good manners, and to the laudable customs of all civil and well governed people’. John Downame (1608: 201) distinguished between kissing and embracing ‘used after a civil and honest manner to express our love one to another’ or ‘civil courtesy’ – kissing was in fact a common means of salutation in this period – and similar gestures used ‘in wanton dalliance between those who are light and lascivious’.

Civil and uncivil in common life It was a morally more rigorous version of civility that diffused into the wider society. How did this happen? Complementary studies by Ingram (2000) and Mendelson (2000), summarised in the following pages, offered some

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clues; the argument has since been elaborated by Thomas (2018: 83–114). It is thought that a very significant proportion of people in seventeenth-century English society could read – writing was a less common accomplishment – so the language of printed texts, including manuals of civility, could easily be absorbed, whether in school or otherwise. Sermons were another obvious channel. More specifically, the church, through the rubrics of the prayer book and visitation articles and injunctions, demanded that the fabric and furnishings of churches, the state of graveyards, the dress and conduct of the clergy and the behaviour of laypeople in church should be ‘orderly’, ‘decent’ and ‘comely’, and sought information on ‘rude and immodest behaviour’ and other circumstances that contravened these orders. No doubt these prescriptions were often flouted. However, they did mean that the church in England was setting standards of religious behaviour based on concepts very close to those of civility. Such concepts were apparently absorbed by local officers, or at least reflected back in the terminology of their ‘presentments’ (parochial reports); and, as the language of civility became established in common usage, specific references to ‘civil’, ‘uncivil’ and so on were grafted on. To take a relatively early example, in 1599 a Salisbury man was prosecuted ‘for unreverently, uncivilly, rudely and barbarously behaving himself, especially for violently pulling off his wife’s hat from her head in the church in time of divine service’ (Ingram 2000: 99). There were also contexts where the secular no less than the church authorities insisted on personal restraint, and where ideas of civility likewise had an important purchase. This could be with reference to ordinary social relations, perhaps especially when there were complicating factors such as disparities of age (Mendelson 2000: 116–17). But it was mostly with regard to encounters, particularly in public, between individuals of unequal status or authority – above all in formal settings such as a court of law, or where office was actually being exercised. While behaviour was to an extent duly shaped by hierarchical expectations in these situations, there were weak points in the web of deference that could lead to abrasive exchanges. Local manor courts were presided over not by the actual lord of the manor but by his steward, while many of the key decisions were taken and orders made by jury panels made up of the leading tenants. These individuals were sometimes vexed by the behaviour of their poorer neighbours, who were apt to murmur dissent or otherwise express their disagreement. Outside the confines of the courts, lesser officers such as constables might well fail to command the respect of their neighbours. The same was true of clergymen, especially if they were perceived to be proud, grasping, incompetent or immoral, as also of upstart or self-styled gentlemen (or gentlewomen). Even individuals of apparently secure status could find themselves affronted.

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Frequently on such occasions the abusive speech or disrespectful behaviour was characterised in terms invoking standards of civility. In 1671, in a case which illustrates both status challenge and religious profanation, John Hawkins, esquire, was affronted by a man of lower status in the church of Ashton Keynes (Wilts) with ‘incivility’ in ‘many scurrilous and opprobrious speeches … in a brawling and brutish manner’, in ‘breach of good manners and in dishonour of the church’ (Ingram 2000: 100). In St Sepulchre’s (London) nearly half a century earlier, a man was reported ‘for quarrelling, brawling, and striking in the church in time of divine service, and for abusing in base and uncivil terms divers honest parishioners, men of very good rank and fashion’ (London Metropolitan Archives, DL/C/317, Office Act Book, 1627–29: 84). What of women who uttered invective? Traditionally females were regarded as particularly prone to sins of the tongue, while conversely it was a commonplace that among women’s main duties, along with chastity and obedience, was silence – not literal soundlessness, as Codrington (1664: 31–2, 75, 140) hastened to add, but ‘she ought not to speak many words’ and avoid ‘vain prattling’. Women whose quarrelling and ill-language were so extreme as to be deemed a public nuisance could be prosecuted as common scolds – the ultimate penalty, generally put in practice only in extreme cases but always present as a threat, was to duck the culprit in a pond or river by means of an apparatus known as a cucking-stool. Scolds had been subject to punishment for centuries, but it is striking that increasingly after about 1600 the language of incivility was deployed to characterise their behaviour. A Wiltshire woman, ultimately ducked as a scold, was in a Star Chamber case of 1614 said to have been accused of brawling, reviling and chiding ‘in most barbarous and uncivil manner … far unfit for any sober woman’ (Ingram 1994: 67). In the language of abuse, sexual matters were often prominent, especially (though not exclusively) so when women were the targets. Abuse of this nature was described as ‘undecent’, ‘unmannerly’ or ‘uncivil’, with the emphasis on the lack of decorum that the use of such sexually charged language in itself entailed. Increasingly also the language of civility was deployed to refer not merely to talk about sex but to actual sexual behaviour. The commonest usage is found in witnesses’ statements on behalf of female plaintiffs in sexual slander suits. The purpose was to shift the focus from sexual offences as such to broader notions of the restrained and decorous behaviour required of respectable females. In the sixteenth century, it was commonly insisted that such women were ‘virtuous’, ‘chaste’, ‘honest’, ‘modest’, ‘of good credit and reputation’. In the seventeenth century, such formulae were augmented by the language of civility. In a typical case in London in 1635 (though provincial cases were similar), Margaret Bloise

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was said to have ‘been accounted a woman of honest life and conversation and of good name and fame till this report [of immorality] was raised … and a woman of civil behaviour and carriage’. But the term ‘civil’, used in this fashion, was not exclusive to women. It could also be applied to men; it might also refer to a household; it could even be applied to a whole category of inhabitants, though in these cases it was more likely to include other aspects of decent and sober behaviour as well as sexual probity. A petition to the Westminster justices in 1629, subscribed by the minister, churchwardens and about thirty of the inhabitants of St Martin in the Fields, stated that a local widow was ‘of honest life and conversation, approved with us, and doth keep a civil and well governed house free from all scandalous imputations’, while her son was ‘a man of honest and civil life and well demeaned’ (Ingram 2000: 102–3).

Wider considerations Approaching the topic of civility through court records, as well as via the more conventional route of conduct books, is thus of considerable interest. It shows that, far from being the preserve of elites of gentle or aristocratic status, versions of the concept did have resonance, indeed utility, for people from a much wider social spectrum. The particular face of civility that is exposed in the court records, as opposed to the conduct literature, has less to do with the niceties of polite behaviour than with qualities that a later age would term respectability, propriety and decency. Sexual chastity, conceived not simply as the avoidance of fornication and adultery but more broadly as restrained and seemly conduct, was a major component. But usages extended to the discountenancing of all indecent, quarrelsome and disrespectful language and demeanour. Terms such as ‘civil’ and ‘incivility’ could apply to either sex, but they were gendered in the sense that usage reflected some much broader cultural assumptions, notably the idea that women should be modest and restrained in speech, and the fact that sexual reputation was of much more central importance to women than to men. Not only were codes of civility ‘legalistic’ in the sense of being rule-based and prescriptive; in the lives of ordinary people they meshed closely with the work of the secular and ecclesiastical courts in ‘reformation of manners’ (Ingram 2000: 108). But what is being observed is by no means simply the imposition of ideas of civility on social inferiors either directly by people of higher social rank or by their official representatives such as parish constables and churchwardens. The impression given by the court records is that the language of civility was taken up with alacrity by middling social groups. The ideas

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associated with this face of civility made sense to such people because they were closely related to the long-established notions of reputation and moral status that were so deeply engrained in contemporary society. It was not so much that behaviour changed, as that ways of thinking about it shifted in focus in ways that made respectability more attractive. ‘Civility’, with its fashionable, aspirational connotations, had by the middle of the ­seventeenth century become a must-have commodity. This leads us to some wider considerations. Elias did not much investigate tensions and divisions within social groups, and (as noted earlier) he gave scant attention to religion. But these are issues of great relevance to seventeenth-century English society and in that context suggest some further reasons for the attractions of civility in the wider sense discussed here. By the close of Elizabeth’s reign, traditional Christian ethics had been rendered problematic by two developments: a not completely successful Protestant Reformation, which left a substantial minority of Catholics; and the so-called Puritan movement, spearheaded by self-styled ‘godly’ ministers supported by an increasingly numerous body of ‘godly’ laypeople. The first divided the religious basis for morality, while the second made moral and religious demands that even the respectable often found excessive, and hence threatened if it did not actually disrupt social harmony (Ingram 2000: 108–9). At first sight it might seem that ideas of civility were more likely than otherwise to inflame these tensions, originating as they did in Catholic countries or Catholic circles. (Hawkins, it should be noted, had Catholic connections and himself became a Jesuit.) In practice, the precepts of civility, devoid of specifically doctrinal content and based in an eirenic ethic of accommodation, served to re-establish some common ground. (Some ­variants on this theme are discussed by Bejan (2017).) The need for such a socially integrative ethic was underscored by the disruptions and destruction of the civil wars and their contentious aftermath. Even a cursory glance at the sources and secondary literature shows that there was extraordinarily frequent recourse to the concept of civility in the 1640s and 1650s, as diverse individuals and groups (including, paradoxically it might seem, soldiers) claimed ‘civil’ status and either condemned the ‘incivility’ of their opponents or exhorted them to ‘be civil’ (Ingram 2000: 110). To be sure, this approach was rejected by some radical groups, notably the early Quakers. For them the emollient forms of civility were at odds with their emphasis on the true feelings of the heart and their insistence on the equality of all men and women before God. To the profound scandal of contemporaries, they rejected ‘hat honour’ (the conventional doffing of headgear before social superiors) and used the familiar forms of ‘thou’ and ‘thee’, instead of the more formal ‘you’, in addressing them (Thomas 2018: 311–18). Yet even the Quakers softened their stance as

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time went on. Their use of ‘thee’ and ‘thou’ continued to distinguish them, but in other respects by the early eighteenth century their deportment was increasingly civil. The same is unquestionably true of the great majority of religious dissenters, while civility and urbanity became the hallmark of the eighteenth-century Anglican church (Thomas 2018: 310, 314–15). For many contemporaries, it was profoundly troubling that religious differences proved persistent in the post-Restoration world, undermining the integrity of the national church and leading before 1700 to the permanent and recognised existence of dissenting groups both Catholic and Protestant. The Toleration Act of 1689 marked the point of no return. This divided situation was among the most important forces that led eventually to the collapse of moral regulation exercised by the church courts, whose procedures assumed the existence of an all-encompassing national church. Faced with recalcitrants, the courts could usually do no more than excommunicate them – but this was of little effect against people who already refused to conform to the church. (While it was possible to secure a royal writ to have the culprit imprisoned until he or she submitted, this expensive and cumbersome procedure was rarely used.) Ideas of civility and incivility, it may be suggested, were to prove of increasing utility in a moral regime less dependent on ecclesiastical discipline, precisely because they offered an alternative basis for restraint that combined external social pressures with internalised, aspirational values. But even while the church courts remained in ­operation  – and they did so, albeit with declining levels of activity, throughout the eighteenth century – their pursuit of adulterers, bastardbearers and the like was itself partly sustained by their appeal to the broadly non-divisive standards of common decency that the term ‘civil’ implied. In reforming manners they could claim to punish both sins and incivility (Ingram 2000: 109; Gibson and Begiato 2017: 85–107).

Conclusion So how should civility be seen in relation to the other rule-based systems of thought discussed in this book? Whereas most of them were or are primarily religious in nature, part and parcel of Islam, Christianity or Hinduism, codes of civility were rather more secular. Indeed critics claimed that some of the basic precepts of civility were at odds with true religion and that the language of civility could be conducive to immorality. That said, codes of civility in early modern Europe plainly developed within a Christian context and were powerfully informed by religious ideas; some variants (especially the ‘respectability’ that appealed to a very wide social range) were highly moralistic, and by the eighteenth century civility had become

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a recognised characteristic of the Anglican church. As a system of thought, civility was moderately ‘ruly’ in the terms set out by Clarke and Corran in the Introduction. Its most basic and categorical precepts were for beginners in the art, characteristically children and young people. As they matured, men and women were supposed to internalise the principles of civility and to reflect them in their unconscious or at least habitual behaviour. Civility in its highest forms was understood in terms of apparently effortless grace in personal behaviour and relations with others. The topics discussed in books of civility, especially those in dialogue form, offered some scope for learning by example (often utilising material enshrined in classical literature) and the deepening of knowledge and understanding by consideration of complex cases. It was also understood that highly refined and accomplished individuals in the contemporary world or of the recent past had a role to play as models of civility. Yet exempla were not as prominent as those discussed by Langlands (Chapter 4). Civility could be exclusive, its usage designed to enhance the benefits of wealth and social position and to reinforce the divide between those who considered themselves superior and their ‘inferiors’. But it could also lead to social advancement. With its sense of autres temps, autres moeurs, it was decidedly less conservative than the tradition-centred Hindu jurisprudence discussed by Davis (Chapter 1). Indeed the diffusion of ideas of civility facilitated a major modernising shift in English society, whereby the public regulation of personal morality by courts of law gradually gave place to self-regulation governed by public opinion and the private conscience. Yet perhaps the most striking feature of civility as it developed into the seventeenth and eighteenth centuries was its aspirational, enabling qualities. It truly exemplified the main theme of this book – the potential of rule-based ethical systems, not to restrict and repress individuals, but to liberate and empower them.

Acknowledgements This chapter includes some material originally published in Martin Ingram, ‘Sexual manners: The other face of civility in early modern England’, pp.  87–109, in Civil Histories: Essays Presented to Sir Keith Thomas, edited by Peter Burke, Brian Harrison and Paul Slack (Oxford: Oxford University Press, 2000). Reproduced by permission of Oxford University Press.

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References Archer, Ian W., 2000. ‘Social networks in Restoration London: The evidence from Samuel Pepys’s diary’, in Alexandra Shepard and Phil Withington (eds), Communities in Early Modern England: Networks, Place, Rhetoric. Manchester and New York: Manchester University Press, 76–94. Beard, Thomas, 1597. The Theatre of God’s Judgements. London: Adam Islip. Bejan, Teresa M., 2017. Mere Civility: Disagreement and the Limits of Toleration. Cambridge MA: Harvard University Press. Bryson, Anna, 1998. From Courtesy to Civility: Changing Codes of Conduct in Early Modern England. Oxford: Clarendon Press. Castiglione, Baldassare, [1561] 1994. The Book of the Courtier, trans. Sir Thomas Hoby, ed. Virginia Cox. London: J. M. Dent. Codrington, Robert, 1664. The Second Part of Youth’s Behaviour, or Decency in Conversation amongst Women. London: W. Lee. De Courtin, Antoine, 1671. The Rules of Civility, trans. anon. London: J. Martyn and John Starkey. Della Casa, Giovanni, 1576. Galateo … or Rather, a Treatise of the Manners and Behaviours, It Behoveth a Man to Use and Eschewe, in His Familiar Conversation, trans. Robert Peterson. London: Raufe Newbery. Della Casa, Giovanni, 1703. Galateo of Manners: or, Instructions to a Young Gentleman How to Behave Himself in Conversation. London: Bernard Lintott. Downame, John, 1608. Foure Treatises. London: Felix Kyngston for William Welby. Dresch, Paul and Hannah Skoda (eds), 2012. Legalism: Anthropology and History. Oxford: Oxford University Press. Elias, Norbert, [1939] 1994. The Civilizing Process: The History of Manners and State Formation and Civilization, trans. Edmund Jephcott. Oxford: Basil Blackwell. Erasmus, Desiderius, 1532. De Civilitate Morum Puerilium: A Lyttell Booke of Good Maners for Chyldren, trans. Robert Whittington. London: Wynkyn de Worde. Foucault, Michel, 1988. The Care of the Self: The History of Sexuality Volume 3, trans. Robert Hurley. London: Allen Lane. Gibson, William and Joanne Begiato, 2017. Sex and the Church in the Long Eighteenth Century: Religion, Enlightenment and the Sexual Revolution. London and New York: I.B. Tauris. Gillingham, John, 2002. ‘From civilitas to civility: Codes of manners in medieval and early modern England’. Transactions of the Royal Historical Society, 6th series, 12: 267–89. Guazzo, Stefano, [1581–86] 1925. The Civile Conversation, 4 books in 2 vols., trans. George Pettie and Bartholomew Young, ed. Edward Sullivan. London: Constable. Hawkins, Francis (trans.), 1661. Youth’s Behaviour, or Decencie in Conversation amongst Men, 7th impression. London: W. Lee. Hazlitt, W. C. (ed.), 1868. Inedited Tracts: Illustrating the Manners, Opinions, and Occupations of Englishmen during the Sixteenth and Seventeenth Centuries. [London:] Roxburghe Library. Heal, Felicity and Clive Holmes, 1994. The Gentry in England and Wales, ­1500–1700. Basingstoke: Macmillan.

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Hobbes, Thomas, [1651] 1946. Leviathan: or, the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil, ed. Michael Oakeshott. Oxford: Basil Blackwell. Houlbrooke, Ralph, 2000. ‘Civility and civil observances in the early modern English funeral’, in Peter Burke, Brian Harrison and Paul Slack (eds), Civil Histories: Essays Presented to Sir Keith Thomas. Oxford: Oxford University Press, 67–85. Ingram, Martin, 1994. ‘“Scolding women cucked or washed”: A crisis in gender relations in early modern England?’, in Jenny Kermode and Garthine Walker (eds), Women, Crime and the Courts in Early Modern England. London: UCL Press, 48–80. Ingram, Martin, 1996. ‘Reformation of manners in early modern England’, in Paul Griffiths, Adam Fox and Steve Hindle (eds), The Experience of Authority in Early Modern England. Basingstoke: Macmillan, 47–88. Ingram, Martin, 2000. ‘Sexual manners: The other face of civility in early modern England’, in Peter Burke, Brian Harrison and Paul Slack (eds), Civil Histories: Essays Presented to Sir Keith Thomas. Oxford: Oxford University Press, 87–109. Ingram, Martin, 2017. Carnal Knowledge: Regulating Sex in England, 1470–1600. Cambridge: Cambridge University Press. Knox, Dilwyn, 1991. ‘Disciplina: The monastic and clerical origins of European civility’, in J. Monfasani and R. G. Musto (eds), Renaissance Society and Culture: Essays in Honour of Eugene F. Rice, Jr. New York: Italica Press, 107–35. Knox, Dilwyn, 1995. ‘Erasmus’ De Civilitate and the religious origins of civility in protestant Europe’. Archiv für Reformationsgeschichte 86: 7–55. Knox, Dilwyn, 2000. ‘Civility, courtesy and women in the Italian Renaissance’, in Letizia Panizza (ed.), Women in Italian Renaissance Culture and Society. Oxford: Legenda, 2–17. London Metropolitan Archives, DL/C/317, Diocese of London Office Act Book, 1627–29 (manuscript). Mendelson, Sara, 2000. ‘The civility of women in seventeenth-century England’, in Peter Burke, Brian Harrison and Paul Slack (eds), Civil Histories: Essays Presented to Sir Keith Thomas. Oxford: Oxford University Press, 111–25. Outhwaite, R. B., 2006. The Rise and Fall of the English Ecclesiastical Courts, 1500–1860. Cambridge: Cambridge University Press. Peltonen, Markku, 2003. The Duel in Early Modern England: Civility, Politeness and Honour. Cambridge: Cambridge University Press. Puget de la Serre, Jean, 1638. An Alarum for Ladyes, trans. Francis Hawkins. Paris: Nicolas and Jean de la Coste. Robson, Simon, 1577. The Courte of Civill Courtesie. London: Richard Jhones. Sharpe, James, 2016. A Fiery and Furious People: A History of Violence in England. London: Random House Books. Thomas, Keith, 2018. In Pursuit of Civility: Manners and Civilization in Early Modern England. New Haven CT and London: Yale University Press. Turner, David M., 2002. Fashioning Adultery: Gender, Sex and Civility in England, 1660–1740. Cambridge: Cambridge University Press. Woolley, Hannah, 1673. The Gentlewoman’s Companion; or, a Guide to the Female Sex. London: A. Maxwell for Dorman Newman.

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3 Control of the self and the casuistry of vows: Christian personal conscience and clerical intervention in the twelfth and thirteenth centuries Emily Corran This chapter concerns the intersection of two aspects of Western medieval Christian religion that have previously been considered in isolation. The first is ascetic control of the self, and in particular, the voluntary vows made by secular people, for example, to fast, to abstain from marital relations or to go on pilgrimage.1 Vows of personal conduct (as I shall call these non-institutional vows), and voluntary physical abstinence more generally, have been of considerable interest to scholars of medieval sanctity and the body. They have focused on a number of holy women and mystics who practised exceptional ascetic control of the body; Mary of Oignies (1177–1213), Angela of Foligno (1248–1309) and Margery Kempe (1373–1438) at various points in their life persuaded their husbands to allow them to take a vow of chastity, and lived in fasting and prayer.2 In addition, the thirteenth century was a period in which laypeople came together to live quasi-­monastic lives: this was best exemplified by Francis of Assisi (1181/82–1226) and Valdès of Lyons (c.1140–1205), who were both merchants who founded religious movements devoted to a life of poverty and imitation of Christ (Grundmann 1995). These ascetic regimes indicate an attempt at ethical consistency in all aspects of behaviour, disposition and motivations, and as such map easily onto Foucault’s idea of a ‘cultivation of the self’ (Foucault 1985: 25–32, 1986: 37ff.). The second aspect of medieval culture under consideration is casuistry (see the Introduction). Here this is a term for the legalistic ethics that was taught to Catholic priests in the late medieval and early modern period. It first emerged in practical theology and canon law taught in the universities of Paris and Bologna around the turn of the twelfth and thirteenth centuries and was subsequently popularised in manuals for priests from the mid-thirteenth century.3 This kind of thought was chiefly concerned with resolving moral cases and practical dilemmas. For example, Raymond of Penafort (c.1175–1275), the author of one of the first and most influential

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Summae de Casibus (Books of Moral Cases), provided advice on whether one should lie in order to save a fugitive’s life, whether a judge should knowingly convict an innocent man and whether one should persist in a life of abstinence if this encourages one’s neighbours to sin (Raymond of Penafort, Summa: 90–2, 99–101, 355). Subsequent manuals were compendia of specific moral rules and approved solutions to dilemmas. Thirteenthcentury manuals of casuistry addressed ascetic regimes primarily in their discussions on the morality of personal vows. This included lists of rules that defined the different kinds of vows – including vows of chastity, fasting or pilgrimage – and listed who was permitted to take vows, whether vows could be changed or modified retrospectively and the circumstances in which a vow could be broken. This tradition of casuistry thus showed many of the features associated with rule-oriented ethical traditions, as proposed in the Introduction. I wish to address the relationship between clerical writings on vows and ascetic behaviour. Superficially, this relationship appears to have been an uneasy one, since the behaviour of ascetic laypeople often did not correspond closely to the rules that clerics produced for them. Casuistry advocated that pious actions should be treated with moderation, flexibility and reliance on extensive clerical intervention – the opposite qualities to those exhibited by charismatic holy men and women. Scholars have assumed, on these grounds, that the church establishment’s primary interest in the pious actions of laypeople was paternalistic; that the church wished to bring piety under clerical supervision and curb spontaneous and non-conforming behaviour. I will argue that this is to ignore the important differences between the vows of personal conduct likely to be made by laypeople with no pretensions to sanctity and the regimes of exceptional ascetics.4 Whereas clerical instruction could be an unwelcome intrusion into the extreme individualism of a saintly figure, in the case of the more usual vows of people who lived more conventionally, casuistry was not always an invasion of the private conscience, but an attempt to facilitate personal devotional projects.5 The legalistic treatment of vows and ascetic behaviour may have been restrictive for the exceptionally pious, but the same detailed rules were a constructive force for the more moderate, and therefore more common, ethical regimes of medieval men and women.

Clerical power and the ascetic self Ascetic ‘projects of the self’ should be understood in the context of large changes that took place in the Western church during the twelfth and thirteenth centuries. During this period, the papacy pursued a wide-ranging

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programme of reforms, including pastoral rulings intended to regulate the religion of laypeople. Structures of clerical power expanded considerably in this period, such that the church was able to intervene with increasing detail in many aspects of everyday life. In 1215, Pope Innocent III held the Fourth Lateran Council, at which a number of constitutions were published that were intended to reform the entirety of Christendom doctrinally, administratively and pastorally. Constitution 21 established the obligation to confess, and the requirement to take communion annually was imposed on all Christians.6 Everyone was required to reveal their sins to a priest at least once a year, and priests were instructed to enquire after the sins of their parishioners and prescribe penitential activities. There are two implications to these reforming efforts for the history of lay religion. The first is an increase of pastoral care in the course of the thirteenth century. To help priests with their obligation to hear confession from parishioners, a number of manuals were written which advised on how to interrogate penitents during confession, how to identify their sins and how to absolve them (Boyle 1982: 230–2). The second is an increase of social control by the church. Tentler and Rusconi have argued that compulsory confession in particular was a means by which the church claimed authority over private conscience (Tentler 1977; Rusconi 2002). Where laypeople had previously been left to themselves, the church increasingly exercised the authority to judge all actions in the forum of confession, and to impose punishments on those who transgressed. Historians of asceticism in the later Middle Ages have often understood their subjects in terms of this tension between individual and institution. Greater clerical control and regularisation, according to this narrative, came at the expense of personal autonomy, especially for women. Whereas in previous centuries there had been room for women to adopt religious practices without too much clerical oversight, the more specific rules and ubiquitous clergy in the later Middle Ages pushed them into more moderate avenues. Asceticism, when outside the institutional framework of a monastery, flew in the face of ecclesiastical control, and so was increasingly restricted. Dyan Elliott’s study of spiritual marriage follows the history of married couples who took a vow of sexual abstinence (Elliott 1993). Because it was usually women who initiated abstinence within marriage, Elliott argues that these vows challenged a husband’s authority and therefore were always subject to criticism. The theology of the later Middle Ages sanctified marriage and the hierarchical relationship between husband and wife, whilst the requirement of confession and penitence made it increasingly possible for the clergy to counsel pious wives to obey their husbands, rather than aspire to sexual abstinence (Elliott 1993: 299–300). Caroline Bynum’s study of holy women who embarked on challenging fasts during

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the later Middle Ages also associates female asceticism with a struggle for autonomy (Bynum 1987). Among a number of reasons why extreme fasts were popular among women, including a desire to participate in the  sufferings of Christ and a rejection of the values of their well-to-do social circles, Bynum suggests that these fasts were a rejection of the moderation of ­clerical teaching in the later Middle Ages (1987: 237–44). On the other hand, collective religious regimes initiated by laypeople generally won the approval of the clerical church only if they moderated their practices and consented to oversight. The Humiliati, for example, were a group of laypeople living in Northern Italy who, from the late twelfth century, lived a communal life of abstinence and prayer. The papacy initially encouraged them, until their unauthorised preaching led to their condemnation as heretics in 1184 (Andrews 2000: 38ff). Subsequently, Pope Innocent III reorganised the order and brought it under closer supervision (Andrews 2000: 64–98). Groups of holy lay women, the Beguines, who lived together according to a religious rule, although initially accepted by the church hierarchy, in the thirteenth century were increasingly compelled to accept the authority of a pastor (McDonnell 1969: 154–64). R. I. Moore ([1977] 1985, [1987] 2007, 2012) has influentially suggested that these penitential movements were increasingly either persecuted or controlled by the clergy from the twelfth century – members of groups which did not conform to established models were both the victims of and dissenters against the increased social control exercised by the clergy. Parenthetically, we should note that the gender division in these ascetic practices was important but not absolute. Although vows of fasting and continence were most commonly initiated by women, men who took ascetic vows were not unknown. Penitential movements included men and women in equal measure. Ascetic vows appear to have been popular among women, but they were by no means exclusive to them, nor were they invariably understood as a challenge to male authority. Literature of religious instruction in the thirteenth century took a nuanced attitude to the forms of abstinence mentioned above. They recognised vows of fasting, pilgrimage and chastity as important aspects of penitence (e.g. Raymond of Penafort, Summa: 467–8). Yet, the chapters on vows of personal conduct in manuals for confessors included a number of rules that limited ascetic regimes, especially when undertaken by married women. Thomas Chobham, who wrote a book of advice for parish priests around 1215, stated that married women were ‘under their husband’s power’ and so should not undertake vows of abstinence or fasting, but maintain themselves ‘in a pleasing and fit state to render their husband his conjugal rights’ (Thomas Chobham, Summa: 157). John of Freiburg, the author of an influential manual for confessors, mentioned a case of a wife

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who has vowed not to go with her husband to feasts or events outside her house, and stated that her husband was entitled to revoke such a vow (John of Freiburg, Summa Confessorum: 21r). Discouragement of vows was not limited to married women: similar instructions to cancel vows applied to all categories of people who were tied by obligations (see William of Rennes, Apparatus: 79, from ‘Quaeritur quis possit vovere’). A servant should not take a vow without the permission of his or her master; a cleric should not make a vow without the approval of his bishop. One can see why the historians of holy women in the later Middle Ages have concluded by and large that the church’s primary interest was to limit personal conscience to the forms approved by a rigidly hierarchical society. This chapter will suggest an alternative explanation for the medieval casuistry of vows, by drawing a distinction between ambitious projects of sanctity and the more modest undertakings of pious laypeople. Whereas exceptional individuals, such as Catherine of Siena or Bridget of Sweden, came to devote their life to holy practices, many men and women took vows of fasting, pilgrimage or chastity and at the same time had a profession, a family and a social life. Rules play a different role in these two categories of ascetic practice. In the case of a saint, intervention by the ecclesiastical hierarchy was a limitation: holy women often had to contend with considerable pressure from their priests and family either to marry or to enter a convent. It was only after resisting the moderating influence of conventional clerical authority, and with the help of a supportive spiritual advisor, that these women’s sanctity was recognised. On the other hand, those who undertook modest ascetic practices faced a different range of challenges. A father of a poor family who had vowed to go on crusade or a woman who had vowed to maintain a regular fast after recovery from illness might experience a diminishing will to fulfil their pious intentions. They also were likely to face difficult choices when their obligation to fulfil their vows came into conflict with family commitments which also carried their own moral obligations. Within this context, casuistry came into its own. It was a complex system of rules that was designed to help pious laypeople to steer a moderate course between obligations.

Four sources The sources for medieval casuistry are almost exclusively the manuals that were produced for priests who heard confession. The nature of confession, a secret conversation between priest and penitent, means that we can know almost nothing about what actually was said, nor can we know by direct means what laypeople made of the advice that they received (Murray

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2015:  53–4). Nevertheless, confessors’ manuals are revealing: as we will see, they provide detailed insight into the decisions that confronted penitents in this time, and the moral concerns of their priests. My examples are taken from four casuistical texts from the twelfth and thirteenth centuries. This includes two texts from the earliest casuistry taught in the University of Paris at the turn of the twelfth and thirteenth centuries, and two confessors’ manuals from later in the thirteenth century. This selection will allow us to see the range of ways in which the casuistry of vows was discussed, and also how the discussions changed over time. The sources examined here are: 1. Peter the Chanter’s Summa de Sacramentis et Animae Consiliis (Treatise on Sacraments and Spiritual Counsels). The Chanter was a theology master in the University of Paris between circa 1173 and 1197 (Baldwin 1970: i, 3–5). The Summa was his final and unfinished work, which consists of notes from his university teaching initially on the sacraments, and in the later stages on all aspects of practical ethics. The work is remarkable for being the first theological treatise to focus almost exclusively on practical moral dilemmas. Peter the Chanter was therefore a pioneer in the nascent discipline of casuistry. 2. Robert of Courson’s Summa. Robert of Courson was a student of Peter the Chanter. He wrote his Summa, which was a reworking and extension of the Chanter’s moral teaching, in 1208–13, before going on to a career as a cardinal and preacher of the Fifth Crusade.7 Where Peter the Chanter’s Summa is fragmentary and chaotic – much of it only survives in collections of notes copied by his students during class – Robert of Courson’s Summa is complete, considered and coherent. It was written as a theological treatise, with school students in mind. 3. Raymond of Penafort’s Summa de Casibus. Raymond was one of the most illustrious canon lawyers of his day. He is most famous for compiling the Liber Extra – the official collection of papal decretals and the basis of canon law. He also wrote a highly influential Summa de Casibus, compiling the first draft while at Saint Catharina’s convent in Barcelona between 1222 and 1225, but revised the work in 1235–36 to include material from the recently published collection of papal decretals, Liber Extra.8 In addition to this text, William of Rennes (d. 1241–56) wrote a commentary on the Summa de Casibus, which was routinely copied in the margins of the main text (Kaeppeli ­1970–93: 2:156). This quickly came to be just as authoritative as the Summa de Casibus itself (Michaud-Quantin 1962: 40–1). This was the most influential manual for confessors for the rest of the century, and was remembered as a founding text of casuistry through the later Middle Ages and counter-Reformation.

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4. John of Freiburg’s Summa Confessorum. John of Freiburg wrote his confessors’ manual, published in 1297–98, in order to update Raymond of Penafort’s Summa. This also became an influential moral guide for confessors throughout the later Middle Ages (Boyle 1981a).

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In what follows, I will discuss the various ways in which these texts offered useful structures for those who were engaged in modest ascetic ‘projects of the self’.

Casuistry as definition and identification First, casuistical writings provided a recognisable framework in which to understand voluntary religious commitments; this allowed those who took solemn vows to receive public acknowledgement for their status. Raymond of Penafort defined all vows as ‘a considered promise to do something good’.9 Within this, he distinguished between ‘simple’ vows, which were taken by an individual privately, and ‘solemn’ vows, which were made in front of a bishop or abbot and restricted the legal freedoms of the person swearing (Raymond of Penafort, Summa: 55–6). The primary intention behind these distinctions was an academic one: the institution of vowing was inherited from the early Middle Ages, and included a variety of forms of religious commitment. A monastic vow not only was an expression of pious commitment, but was the transaction by which a person tied themselves to a religious community for life; a voluntary vow to go on pilgrimage or a vow to donate money to build a church did not fulfil the same function as a monastic vow, but the institution still went by the same name. It posed a scholarly problem to define vows and to explain their variations in a sufficiently coherent way. The distinction between ‘solemn’ and ‘simple’ vows created an intellectual framework in which the differences between these different kinds of vows could be articulated. Casuistical writers stated that both simple and solemn vows were meaningful commitments. Raymond of Penafort and John of Freiburg both said that it was a mortal sin to break a vow, whether solemn or simple (Raymond of Penafort, Summa: 56; John of Freiburg, Summa Confessorum: 18v). However, they acknowledged that the solemn vow, taken publicly in front of a figure of religious authority, caused extra obligations for the person swearing the vow. The distinction could have some legal implications: if, for example, someone made a formal vow of chastity before a bishop, it was, through much of the thirteenth century, a moot point as to whether a subsequent marriage was legally valid.10 By the same token, if a man took a public vow to enter a monastery, he would

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Control of the self and the casuistry of vows 87

not be permitted to take a second vow of pilgrimage, unless he had permission from the abbot (Raymond of Penafort, Summa: 59; John of Freiburg, Summa Confessorum: 20r). The differentiation between solemn and simple vows was even more significant when viewed from a social and psychological perspective, as can be seen in the case of vows of chastity. Medieval canon law imposed a series of conditions on married people who wished to separate and begin a life in a monastery. If only one party of a marriage wished to enter monastic life, he or she could only do so with the consent of their spouse, and only if the other spouse agreed either to enter a religious order or to take a solemn vow of chastity. Confessors’ manuals included detailed rules about when such a vow would be appropriate and how it should be approved. Raymond of Penafort states that if one spouse wishes to enter a monastery, the other should only be allowed to stay in the secular world if she is old, and therefore past suspicion of sexual temptation, and if she takes a solemn vow of perpetual continence before the bishop (Raymond of Penafort, Summa: 65). Raymond seems to anticipate that the woman would more usually be the one to stay in the secular world, although he says that the same rules would apply to a man whose wife wished to become a nun. The requirement on the priest only to allow this privilege to older women of good reputation clearly arises from a wish both to prevent younger women, whom they thought more likely to remarry, from taking vows they were likely to break and to avoid a situation where the clergy publicly endorsed an apparent holy woman, who might later cause scandal. If the woman in question met the clergy’s requirements, the option of taking a solemn vow made it possible for her to stay in the secular world. The public and official nature of the vow of continence would provide authoritative sanction for a status which she had chosen for herself (in preference to entering a convent) and which might not be generally accepted if the matter was left to her own conscience. The solemn vow of chastity could therefore work as a means of claiming social recognition and approval for a personal religious commitment. The obligation to take a public vow may have also created a social barrier to weakening will, since it would make it more difficult for the spouse in question to remarry or take up with another partner. The public knowledge of her commitment to perpetual chastity would mean that she would have to brave possible public censure if she broke her resolution. Mechanisms of social control of this kind are not necessarily an invasion of personal freedom, if the person in question has voluntarily entered into the commitment. In these cases, they work as Ulysses contracts – the subject of the next section.

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Vows as Ulysses contracts A vow of personal conduct was an attempt on the part of the person vowing to prevent themselves from making bad choices in the future. As such, vows correspond with the phenomenon that the philosopher Jon Elster (1984, 2015) calls ‘Ulysses contracts’.11 Elster notes that people who recognise their own imperfect rationality sometimes voluntarily restrict their ability to make choices in the future, in a process which he also called ­‘pre-commitment’ or ‘self-binding’ (1984: 39). One example of this is an addiction clinic in Denver in which people who start the treatment agree to sign a document saying that if they decide to leave, they will be forced to wait two weeks before actually departing (the hope being that during the delay they will decide to stay in treatment) (Elster 2015: 278). A Guardian columnist suggested that the most effective way to keep your resolutions is to write a generous cheque to a political organisation you dislike and have a friend promise to send it to be cashed if you ever break your resolve (Burkeman 2017). The point of these pre-commitments is that people realise that they are likely to diverge from their resolutions in the future, and so decide to take steps that will enforce the currently preferred decision at a later time, despite any weakening of will. If we understand medieval vows in this light, many of the details of the institution become explicable. For one thing, the element of external intervention in personal vows can be understood within the framework of precommitment. Piously motivated people used vows as a means to discourage themselves from giving in to temptation to marry, eat too much or lead a too worldly life in some other way. The self-binding would work whether the vow was taken privately or publicly to a certain extent, since a belief in vows presupposes a belief that there would be extra sin if a vow was broken. However, if the person taking the vow involved a priest or confessor in the decision, it would be even more difficult to break, since a relapse would mean censure from a figure of authority.12 For example, Peter the Chanter cited the case of a cleric who finds that he is led into sin because he has to give his attention to the incomes associated with his position. He vows before a priest to give up his incomes and so avoid the temptation of distraction. It is significant that the vow is taken in public before a priest, since this involvement of an additional person formalises the decision and makes it more difficult to pull out. The passage goes on to describe how, having renounced all of his wealth, the cleric finds that he has no horses with which to visit the sick and no money to help the poor, and so is less able to care for his parish than before. Moreover, he finds that those who are now responsible for his former property are mismanaging the

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Control of the self and the casuistry of vows 89

estate. He wishes to revoke his oath and asks whether he can be released from it.13 Peter the Chanter is clear that the priest should not be allowed to go back on his commitment, since this was a promise made to God that it is technically possible to fulfil without sinning. The idea that those who take vows should be held to their original intention, even when this intention was flawed or impulsive, persisted throughout the thirteenth-century confessors’ manuals. William of Rennes cited the query whether women who, during childbirth or illness, vow that they will observe a course of prayer or fasting if delivered safely, should be obliged to keep their word after the crisis has passed.14 Church teaching said that vows made hastily and without proper deliberation were not valid (Raymond of Penafort, Summa: 54). William’s answer therefore turns on the intention of the women involved: despite the anguish and disorder in the situation, he claims that if the woman intended to make a vow to God in the moment, or at any rate was conscious of her present danger, and her desire, when vowing, for God to deliver her from the situation, then the vow was made with proper deliberation and so should be considered binding. In both cases, the fact that the person who made the vow had in hindsight good reasons not to go through with the vow was not allowed to affect the commitment at the later time. Theology and canonical teaching of the period stated that it was inherently good to keep one’s vows – because this was an act of worship and because the act of keeping it would make the penitent a better person – and so they prioritised the commitment itself over concern for outcomes (cf. Thomas Aquinas, Summa Theologia, II–IIa, Q88, article 6). Another case from Peter the Chanter concerns a vow to fast: a parishioner vows at the behest of his or her priest to fast on bread and water on Thursdays, but later asks whether, instead of the fast, they might provide food for five paupers (Peter the Chanter, Summa, xvi: 201–2). This kind of commutation was common in practice, and the Chanter concedes that there would be practical benefits in such a change of commitment (Goering 2008: 404; Peter the Chanter, Summa, xvi: 203). However, the nub of the problem, as far as the Chanter was concerned, was whether such a transition would undermine the original intention of the vow. If the man has undertaken this vow as a penance for gluttony, then he should be made to persevere with the fast. If, however, the fast is a penance for a spiritual vice, such as envy, then another penance, such as giving alms, may be appropriate. The Chanter comes to no absolute conclusion: the priest has the discretion to commute the fast in cases where the person has insufficient willpower to finish the penance, or in exceptional cases, such as when the penitent is required to eat in public where refraining from meat might cause scandal to his companions (Peter the Chanter, Summa, xvi: 203). Again, whereas it might be tempting for historians to regard this transaction as the

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control of the penitent by the priest, it could just as validly be understood as a kind of pre-contract. If we take it that the penitent wished to make a confession and to fulfil the penitence, then the vow, and the confessor’s role in either commuting or enforcing it, is a case of holding the penitent to his or her own resolutions. There is a degree of judgement required to decide whether it would be helpful to change a penitential vow from a fast to a donation – the penitent might prefer to have the decision imposed by the confessor, who would be less subject to wishful thinking and failing will.

Negotiated amendments to vows In addition to holding their parishioners to their vows, priests could play a role in approving changes to vows at the request of a parishioner. The rules in casuistry said that it was only permitted to commute a vow if one changed from a less to a more demanding commitment.15 This was understood liberally, however, and many of the dilemmas included in confessors’ manuals were concerned with cancelling or lightening vows in cases where it would clearly be counterproductive to continue with the original promise. In fact, the commuting of penitential vows was so common that it tended not to be analysed in depth: Raymond of Penafort and John of Freiburg take it to be self-evident that penitential vows of fasting will frequently be commuted into vows of almsgiving – their only stipulation is that the confessor should adjust the sum of almsgiving according to the wealth of the penitent (Raymond of Penafort, Summa: 58–9; John of Freiburg, Summa Confessorum: 24v). On the other hand, because of changes in policy, there was extensive thought about the commutation of crusade vows in the thirteenth century. The crusade vow was, through much of the Middle Ages, indistinguishable from a vow to go on pilgrimage to the Holy Sepulchre. In the Western Christian worldview, the acts of fighting for the Holy Land and making pilgrimage there were absolutely intertwined – soldiers fighting on crusade were called pilgrims, and both armed and unarmed pilgrims were considered to have taken the cross (Riley-Smith 1997: 29–34). The early crusades (especially the First Crusade in 1098 and the Second Crusade in 1146–48) had been hindered by pilgrims who followed the campaign but who were unable to fight – this category included women, the ill or old and those who were too poor to equip themselves with arms (Mayer 1988: 40–1). During the twelfth century, the church had tried to prevent those who were unfit for fighting from joining the crusade, by questioning aspiring crusaders as to their means and situation before they took the vow. In cases where it had become impossible for someone who had vowed to go on crusade to

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Control of the self and the casuistry of vows 91

do so without hindering the expedition, they were allowed to change their vows to almsgiving or some other good work instead of travelling to the Holy Land (X.3.34.2; cf. Brundage 1969: 68). In the late twelfth and early thirteenth centuries, however, Pope Innocent III encouraged all Christians to take crusading vows, regardless of whether they were suitable for travel to the Holy Land. All those who were unable to complete the pilgrimage were then told to commute their crusading vow into a donation of money towards the crusading campaigns, or a commensurate pious action, such as attending masses for crusaders or contributing to a local pious cause (Powell 1987: 93–4; Bird 2003: 508–11). The result was not only a broadening of the crusade movement to all parts of society, but a considerable extension to the rules around vows. Such was the ubiquity of commutations for crusade vows that much of the casuistical discussion was concerned with naming exceptional cases when a vow to go to the Holy Land should not be exchanged for an easier duty. Peter the Chanter wrote about commutation of vows of crusade in the period shortly after a peace had been established between Richard the Lionheart and Saladin in 1191. He commented that during the previous crusade, many people, including monks and clerics, arrived in Rome, having sworn a solemn vow to go on crusade. The pope absolved them from their vow when he saw that these people were not suitable for the crusade, neither for fighting or preaching, nor as counsellors and funders. However, the Chanter says that since peace has been established, people should not be let off from their vows to go to the Holy Land so easily: if they have taken the crusading vow with the simple desire to visit the Holy Sepulchre, they should be advised to continue with their journey, irrespective of their military capacity (Peter the Chanter, Summa, xvi: 293–4). Peter the Chanter’s view proved influential, and was later echoed by Innocent III, even when he was planning a new military campaign in the Holy Land.16 Robert of Courson cited a case in which a previous pope, Alexander III (1159–81), had allowed the commutation of a crusading vow. The cleric in the case promised that instead of travelling to Jerusalem he would provide for one Christian pauper’s food and clothing for the rest of his life. Robert comments that this dispensation would not be allowed at the time he was writing (the beginning of the thirteenth century) because the cleric in question could afford to make the pilgrimage and would benefit from it far more, in terms of overcoming bodily vices and desires, than from spending the same amount on the poor. The only acceptable amendments to crusading vows, according to Robert, are granted because it is impossible for the crusader to make the journey or because it is more beneficial for the church that the aspiring crusader remain home and undertake other pious actions (for text, see Appendix). Later casuists discussed further possibilities for n ­ egotiated

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commutations of vows: they agreed that in general it is a­ cceptable to change a crusading vow into a vow to enter into a religious order, but debated whether this should be universally permitted. Should a king or a great lord be allowed to enter a monastery instead of crusading, since this would lead to an entire expedition being cancelled? Should a crusader be allowed to commute his vow if he had a young wife, susceptible to having an affair while he was gone? If such a knight was forced to go on crusade, should he be allowed to prevent his wife from accompanying him?17 In these cases, casuistry provided an external framework whereby those who had taken pious vows could enter into a reasoned discussion about the correct means of fulfilment. There is no question that the ecclesiastical authorities had one eye on the greater good of the crusades when they made these rules: they wanted to ensure the maximum possible contribution to  the crusade, with the minimum of burdensome non-military pilgrims. Still, these rulings also were intended to provide spiritual guidance to those who had made the crusading vow in doubtful circumstances (cf. Bird 2003: 514–15). In practice, many men who had taken crusading vows found, when the time for departure came, that they were weighed down with ­additional responsibilities: a young family and poor finances; pastoral duties that could not be filled in a clergyman’s absence; some crusaders found that they had underestimated the cost of travel, and were forced to turn back before they reached the Holy Land.18 Commutations were intended to be a ­practical but not a lenient solution to these dilemmas of obligation.

Resolving conflicts of duty Finally, discussion was devoted to the problem of reconciling a personal vow with other obligations. As we have already seen, the terms of a vow could prevent the person observing it from fully participating in other aspects of their life. Casuists offered advice on how to negotiate these ­contradictory imperatives. For example, there were a number of rules concerning those who made a simple vow of chastity but subsequently got married. John of Freiburg considered this scenario and the contradictory obligations it created. The vow of chastity did not invalidate the marriage, but it did affect the morality of sex within the marriage. John said that if someone who has made a vow of chastity has consummated their marriage, they are required, within the terms of the marriage contract, to consent to sex with their spouse. However, the one who has taken the vow should not initiate sex, even if he or she should not refuse it either. There is some latitude within this rule: he says that it is permitted to respond to an implicit request for sex, and even,

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Control of the self and the casuistry of vows 93

according to some authorities, to initiate sex, if it would be too much of a burden always to leave it to the other spouse to make the first move (John of Freiburg, Summa Confessorum: 20r). John of Freiburg thus tries to find a middle way between observing the vow of chastity and fulfilling the requirements of marriage. A number of rules are concerned with adjudicating vows that are made by those who are not free, and where obligations to a higher authority come into conflict with personal conscience. Casuists drew a distinction between those vows that a wife might take that would redound to the discredit of her husband, and those which would not affect him. Some vows could lead the husband into sin, such as a wife’s vow to go to matins every day (a service which took place at night), to fast or to wear a hair shirt at night: the casuists seem to think that these factors might tempt the husband to look for sex outside of the marriage. A husband was permitted to veto this kind of vow, for the sake of his own soul and because the wife’s duty was understood to include the prevention of illicit sexual behaviour. On the other hand, a husband did not have the right to cancel vows which did not affect him; for example, if his wife gave alms out of her own property or vowed to say prayers only on occasional nights.19 Similarly, a servant must not make a vow which would interfere with their work, or that deprives the master of rights over their servant. However, if the servant makes a vow of chastity or renounces his or her property, this is permitted.20 These rules may sound coercive, and for those who were committed to a life of self-directed ascetic observance, they were. However, for those who wished to undertake vows at the same time as continuing with a normal life, these parameters provided reasoned solutions to dilemmas. The moral rules around medieval vows therefore enable individual conscience, not in the modern liberal understanding of obeying internal imperatives independently from external rules, but as it is defined in the Introduction, namely, an individual’s choice between a number of conflicting rules and imperatives. This case study parallels in important ways the treatment of dilemmas in the Islamic tradition as described by Al-Azem (Chapter 8).

Conclusion In terms of physical trials and calls for resilience, abstinence and poverty are undoubtedly far more demanding than moderation. However, the medieval cases of conscience discussed here show that moderation itself can pose problems. Ascetic saints had relatively little cause to worry about mixed imperatives: their lives were so focused on a singular purpose that mundane conflicts of duty rarely arose. For those who embraced moderate ascetic

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regimes, on the other hand, the physical demands were comparatively tiny, but the intellectual problems were more difficult. Casuistry addressed the endless challenges that arose from maintaining a moderate religion: failure of will, conflict of duty, necessity of frequent adjustment. Michel Foucault, in his description of the ‘cultivation of the self’, drew a broad distinction between code-based morality, consisting of a series of prohibitions, and ethics, which involves forming oneself into a virtuous subject. He acknowledged that all moralities included both of these dynamics to some extent, but he tended to assume that usually one or the other is more prominent (Foucault 1985: 29–30). The example of vows might superficially appear to fall in with this distinction, with the rule-based morality of casuistry exemplifying moral codes, and the expansive ascetic regimes  of pious laypeople representing a virtue ethics oriented towards ‘practice of  the self’. Further examination of confessors’ manuals in this  chapter has shown that casuistical rules were central to the ethical practices and self-cultivation of many laypeople, as a source of advice, encouragement and public recognition. The more pertinent distinction in the case of vows is thus not between moral rules and moral virtues, but between degrees of ascetic commitment, and between the single-mindedness of sanctity and the complex and burdened selfhood that arises in normal life. Both versions of the moral life involve a combination of rules and virtues, but the rules play a different role in the two styles of piety. This conclusion complements Nicole Reinhardt’s slightly different arguments about the interrelation of virtue and rule-based ethics in early modern discussions of the First Commandment (see Chapter 5). Whereas the increasing prominence of the Decalogue in early modern Catholicism indicates a new stage in a dynamic interplay of virtue ethics and rules (rather than a replacement of the former by the latter), religious vows in the medieval period were addressed in terms of rules that facilitated a moderate vision of virtuous life and cultivation of the self. In the Introduction, we referred to a common contemporary perception of religious rules – not least those of Islam – as restrictive, strict and authoritarian, and argued that an adherence to rules need not indicate a loss of agency, but a constructive way of understanding one’s personal religion. Similarly, as stated at the start of this chapter, casuistry, along with the whole institution of confession, has been described as a means of diminishing personal freedom and of increasing the power of institutions, as in the historiography surrounding charismatic holy women and popular religious groups in the twelfth cenutry. As we have seen, this is too crude a generalisation. Doubtless, some confessors used the privileges of their office as a means of exerting power, and, throughout the Middle Ages and the Reformation, a number of Christians rejected casuistry because they objected to being

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Control of the self and the casuistry of vows 95

hemmed in by so many rules. Nevertheless, for another personality and another set of circumstances (perhaps that of the majority of Christians in this period), the fine-grained ethical rules embodied by casuistry could be used as a means to achieving modest projects of religious devotion. The intervention of a priest, who followed a rationalised set of moral instructions, facilitated the realisation of a meaningful religious and social self. As with the modern Islamic communities described below by Clarke (Chapter 9), the manner of following the rules – the correct application, categorisation and exception-making – was a crucial part of the discussion.

Appendix Robert of Courson, Summa, fo. 83rb-va: Alexander dispensans cum quodam clerico qui voverat peregrinationem itineris Iherosolomitani ut toto tempore vite sue uni Christi pauperi in victu et vestitu provideret sufficienter. Sed esto quod talis hodie fiat dispensatio cum clerico tali, vel quocumque alio qui ire potest. Videtur quod non teneat talis dispensatio quia ita magis affligitur in eundo et plus demolit carnem suam cum viciis et concupiscentiis. Ergo non ex equo fit talis commutatio, cum dominus sibi semper exigat quod ei vovetur reddi sed hic non redditur totum quod prius Deo promissum est. … Videtur nobis indistincte dicendum quod non habet locum dispensatio circa votum, vel voti commutatio, nisi cognita sufficienti causa, aut de impossibilitate persone que votum implere non possit, aut de utilitate ecclesie que maiorem recipit utilitatem ex voti commutatione, quam si non commutetur. Ita videlicet ne ex c­ ommutatione voti aliqua pernicies exempli aut scandali oriatur.

Notes  1 On medieval vows in general, see Brundage (1969: 30–114) and Boureau (1996, 1998, 2014).   2 On the phenomenon of holy women, see Minnis and Voaden (2010), especially Goodman (2010), Mazzoni (2010) and Simons (2010).   3 Michaud-Quantin (1962); Tentler (1977); Boyle (1981b, 1982); Rusconi (2002); Roest (2004); Corran (2018). As mentioned in the Introduction, casuistry later became famous (and infamous) in the seventeenth century, when it was associated with the academic discipline of moral theology popularly associated with the Jesuits. Reinhardt (Chapter 5) deals with this later version of casuistry, which combined practical advice with academic theological research not found in the casuistical manuals of the thirteenth century.

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 4 My argument here does not in any way contradict Bynum’s argument about the non-liminality of female ascetics in the medieval period. In a nutshell, Bynum argued that holy men tended to start their life as members of a powerful class, undergo a liminal period, in which they were humiliated, before embracing a new identity as a holy man, but that female ascetics started from a position of social marginality, and so did not undergo as radical a transformation. Bynum is talking about identity vis-à-vis social hierarchy, whereas I am interested in the degree to which pious laypeople privileged their ascetic practices over other aspects of their lives. See Bynum (1992: 27–52).  5 This argument in favour of the agency of those who chose to follow clerical advice has parallels with Benjamin J. Kaplan’s (2019) points about the agency of non-converts.  6 Const. 21, in COD: 245.  7 On Robert’s pastoral activities in connection with the crusade, see Dickson and Dickson (1934: 94, 99–103); Maleczek (1984: 175–9); Baldwin (1970: 1:21–2).  8 Kuttner (1990: 433–4); Ochoa and Diez (1976: lxxvii); cf. Longo (2002).  9 Raymond of Penafort, Summa: 54: ‘Votum est alicuius boni cum deliberatione facta promissio.’ 10 See William of Rennes, Apparatus, at v. ‘Privatum, seu simplex’: 55; John of Freiburg, Summa Confessorum: 18v. Both William of Rennes and John of Freiburg thought that a public vow of perpetual chastity, even when the woman did not then join a religious order, made any subsequent marriage invalid. Eventually, Boniface VIII promulgated a decretal which contradicted this view, and ruled that a solemn vow of chastity in the secular world did not invalidate a subsequent marriage. VI.3.15.1. 11 The name refers to the Greek mythological hero’s pact with his crew to keep him bound to the mast so that he could hear, but resist, the Sirens’ song. 12 Thomas Aquinas acknowledged the pragmatism of public vows: in answer to the question why religious vows are necessarily said in public, since God would know of them equally well if they were expressed internally, he replied that religious vows are expressed outwardly ‘to call others to witness, so that one may refrain from breaking the vow, not only through fear of God but also through respect of men’. Summa Theologiae, II–IIae, Q88, article 1. 13 Peter the Chanter, Summa, xxi: 462–3, from ‘Esto quod clericus’ to ‘possit eum absoluere’. Although the action being described is essentially a vow, i.e. a promise to God, the Chanter uses the language of oaths for the commitment. 14 William of Rennes, Apparatus, at v. ‘Deliberatione’: 54, from ‘Sed numquid vota mulierum’. 15 E.g. Peter the Chanter, Summa, xvi: 204–5; Robert of Courson, Summa: 83r; William of Rennes, Apparatus, at v. ‘non excusat’: 79, from ‘Queritur utrum vota commutare possint’. 16 Innocent III wrote to Hubert Walter, the archbishop of Canterbury, in 1200 in answer to a question about the commutation of crusade vows, saying that those who vowed to go on crusade simply as a penitential act of visiting the Holy Lands should not be allowed to commute their vows into a pious action at

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home. The letter is printed in Cheney (1967: 127–9). 17 William of Rennes, Apparatus, at v. ‘Commutare’, 58; Raymond of Penafort, Summa: 67, and glosses to this passage. John of Freiburg, Summa Confessorum: 23v, 25r. 18 As shown in the remarkable document edited in Bombi (2014). It is a list, resulting from an inquisition of Hubert Walter in 1196, of men who had taken the crusading vow at the time of the Third Crusade, but who were found to have legitimate reasons for postponing or commuting their vow. 19 John of Freiburg, Summa Confessorum: 21r, from ‘Maritus illa sola vota uxoris abstinentie’ to ‘non exiget debitum vel quod non consentiret adultero’. 20 Ibid., fo. 23v, from ‘servus in omnibus operibus personalibus et realibus ­subiectus’ to ‘continentiam vovere et propriis renunciare’.

References Abbreviations of medieval sources COD

1972. Conciliorum Oecumenicorum Decreta, ed. Josepho Alberigo, Josepho A. Dossetti Perikle, P. Joannou, Claudio Leonardi and Paolo Prodi. Third edition. Bologna: Istituto per le scienze religiose. John of Freiburg, John of Freiburg, 1518. Summa Confessorum. Lyon: Summa Confessorum Henricus Vortoma. Peter the Chanter, Peter the Chanter, 1954–67. Summa de Sacramentis et Summa Animae Consiliis, ed. Jean-Albert Dugauquier, Analecta Mediaevalia Namurcensia 4, 7, 11, 16, 21, 5 vols. Paris: Éditions Nauwelaerts. Raymond of Penafort, Raymond of Penafort, [1603] 1967. Summa de Summa Poenitentia et Matrimonio cum Glossis Ioannis de Friburgo. Rome, repr. Farnborough: Greg Press; Glosses actually by William of Rennes. Robert of Courson, Robert of Courson, Summa. Bibliothèque nationale de Summa France, MS lat. 14524. Thomas Aquinas, Thomas Aquinas, 1886–1906. Summa Theologiae, Summa Theologiae in Opera Omnia iussu Leonis XIII, 4–12. Rome. Translations taken from the New Advent online edition, www.newadvent.org/summa/index.html (accessed 3 January 2018). Thomas Chobham, Broomfield, Revd. F. (ed.), 1968. Thomae de Chobham Summa Summa Confessorum, Analecta Mediaevalia Namurcensia 25. Louvain and Paris: Éditions Nauwelaerts. VI.1.2.3. Liber Sextus (with reference to book, title and chapter), in Emil Friedberg (ed.), [1881] 1959. Corpus Iuris Canonici, 2 vols. Leipzig, vol. 2.

98 William of Rennes, Apparatus X.1.2.3

Rules enabling moral life William of Rennes, Apparatus, printed in the margins of Raymond of Penafort, Summa. Liber Extra (with reference to book, title and chapter), in Emil Friedberg (ed.), [1879–81] 1959. Corpus Iuris Canonici, 2 vols. Leipzig: Tauchnitz. vol. 2.

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Modern sources Andrews, Frances, 1999. The Early Humiliati. Cambridge: Cambridge University Press. Baldwin, John W., 1970. Masters, Princes and Merchants: The Social Views of Peter the Chanter and his Circle, 2 vols. Princeton NJ: Princeton University Press. Bird, Jessalynn, 2003. ‘Innocent III, Peter the Chanter’s circle and the crusade indulgence: Theory, implementation and aftermath’, in Andrea Sommerlechner (ed.), Innocenzo III: Urbs et Orbis, 2 vols. Rome: Società romana di storia patria, 1:503–24. Bombi, Barbara, 2014. ‘Papal legates and their preaching of the crusades in England between the twelfth and thirteenth centuries’, in Maria Pia Alberzoni, Lucia Veronica Dell’Asta and Pascal Montaubin (eds), Legati, Delegati e l’impresa Oltremare (secoli XII-XIII)/Papal Legates, Delegates and the Crusades ­(12th–13th Century): Atti del Convegno internazionale di studi Milano, Università Cattolica del Sacro Cuore, 9–11 marzo 2011. Turnhout: Brepols, 211–61. Boureau, Alain, 2014. Le Désir Dicté: Histoire du vœu religieux dans l’Occident médiéval. Paris: Les Belles Lettres. Boureau, Alain (ed.), 1996. ‘Pour une histoire comparée du vœu’. Les Cahiers du CRH 16. https://journals.openedition.org/ccrh/2636 (accessed 11 July 2018). Boureau, Alain (ed.), 1998. ‘Pour une histoire comparée du vœu’. Les Cahiers du CRH 21. https://journals.openedition.org/ccrh/2503 (accessed 11 July 2018). Boyle, Leonard E., 1981a. ‘The summa confessorum of John of Freiburg and the popularization of the moral teaching of St. Thomas and some of his contemporaries’, in Pastoral Care, Clerical Education and Canon Law, 1200–1400. London: Ashgate, III: 245–68. Boyle, Leonard E., 1981b. Pastoral Care: Clerical Education and Canon Law, 1200–1400. London: Ashgate. Boyle, Leonard E., 1982. ‘Summae confessorum’, in Les Genres littéraires dans les sources théologiques et philosophiques médiévales. Définition, critique et exploitation. Actes du Colloque international de Louvain-la-Neuve 25–27 mai 1981. Louvain-la-Neuve: Institut d’études médiévales, 227–37. Brundage, James A., 1969. Medieval Canon Law and the Crusader. Madison NY, Milwaukee WI and London: University of Wisconsin Press. Burkeman, Oliver, 2017. ‘How to keep your resolutions (clue: it’s not all about willpower)’. The Guardian, 7 January. www.theguardian.com/lifeandstyle/2017/ jan/07/how-to-keep-your-resolutions-not-all-about-willpower (accessed 11 June 2018). Bynum, Caroline Walker, 1987. Holy Feast and Holy Fast: The Religious Significance of Food to Medieval Women. Berkeley CA: University of California Press. Bynum, Caroline Walker, 1992. Fragmentation and Redemption: Essays on Gender and the Human Body in Medieval Religion. New York: Zone Books.

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Cheney, C. R., 1967. Hubert Walter. London: Thomas Nelson and Sons. Corran, Emily, 2018. Lying and Perjury in Medieval Practical Thought: A Study in the History of Casuistry. Oxford: Oxford University Press. Dickson, Marcel and Christiane Dickson, 1934. ‘Le Cardinal Robert de Courson, sa vie’. Archives d’Histoire Doctrinale et Littéraire du Moyen Âge 9: 53–142. Elliott, Dyan, 1993. Spiritual Marriage: Sexual Abstinence in Medieval Wedlock. Princeton NJ: Princeton University Press. Elster, Jon, 1984. Ulysses and the Sirens: Studies in Rationality and Irrationality. Revised edition. Cambridge: Cambridge University Press. Elster, Jon, 2015. Explaining Social Behaviour: More Nuts and Bolts for the Social Sciences. Revised edition. Cambridge: Cambridge University Press. Foucault, Michel, 1985. The Use of Pleasure: The History of Sexuality Volume 2, trans. Robert Hurley. London: Penguin. Foucault, Michel, 1986. The Care of the Self: The History of Sexuality Volume Three, trans. Robert Hurley. London: Allen Lane, The Penguin Press. Goering, Joseph, 2008. ‘The internal forum and the literature of penance and confession’, in Wilfried Hartmann and Kenneth Pennington (eds), The History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX. Washington DC: Catholic University of America Press, 379–428. Goodman, Anthony, 2010. ‘Margery Kempe’, in Alastair Minnis and Rosalynn Voaden (eds), Medieval Holy Women in the Christian tradition c. 1100–c. 1500. Turnhout: Brepols, 217–41. Grundmann, Herbert, 1995. Religious Movements in the Middle Ages, trans. Steven Rowan. Notre Dame IN: University of Notre Dame Press. Kaeppeli, Thomas, 1970–93. Scriptores Ordinis Praedicatorum Medii Aevi, 4 vols. Rome: Ad S. Sabinae. Kaplan, Benjamin J., 2019. ‘The context of conversions in Early Modern Europe’, in Hacham, Noah, Geoffrey Herman, Dikla Rivlin Katz and Lilach Sagiv (eds), A Question of Identity. Berlin and Boston MA: De Gruyter Oldenbourg. Kuttner, Stephan, 1990. ‘Zur Entstehungsgeschichte der Summa de casibus poenitentiae des hl. Raymund von Penyafort’, in Studies in the History of Medieval Canon Law. Aldershot: Variorum. XI, 419–34. Longo, Carlo (ed.), 2002. Magister Raimundus. Atti del convegno per il IV centenario della canonizzazione di San Raimondo de Penyafort (1601–2001). Rome: Dissertationes Historicae XXVIII. Maleczek, Werner, 1984. Papst und Kardinalskolleg von 1191 bis 1216. Die Kardinäle unter Coelestin III. und Innocenz III. Vienna: Verlag der Österreichischen Akademie der Wissenschaften. Mayer, Hans Eberhard, 1988. The Crusades. Second edition. Oxford: Oxford University Press. Mazzoni, Cristina, 2010. ‘Angela of Foligno’, in Alastair Minnis and Rosalynn Voaden (eds), Medieval Holy Women in the Christian tradition c. 1100–c. 1500. Turnhout: Brepols, 581–600. McDonnell, Ernest W., 1969. The Beguines and Beghards in Medieval Culture, with Special Emphasis on the Belgian Scene. New Brunswick NJ: Rutgers University Press. Michaud-Quantin, Pierre, 1962. Sommes de casuistique et manuels de confession au

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Moyen Âge (XII–XVI siècles), Analecta Mediaevalia Namurcensia 13. Louvain, Lille and Montreal: Éditions Nauwelaerts. Minnis, Alastair and Rosalynn Voaden (eds), 2010. Medieval Holy Women in the Christian tradition c. 1100–c. 1500. Turnhout: Brepols. Moore, R. I., [1977] 1985. The Origins of European Dissent. Revised edition. Oxford: Blackwell. Moore, R. I., [1987] 2007. The Formation of a Persecuting Society. Second edition. Oxford: Blackwell. Moore, R. I., 2012. The War on Heresy. Cambridge MA: Harvard University Press. Murray, Alexander, 2015. ‘Confession as a historical source in the thirteenth century’, in Conscience and Authority in the Medieval Church. Oxford: Oxford University Press, 49–86. Ochoa, Xaverio and Aloisio Diez (eds), 1976. S. Raimundus de Pennaforte: Summa de Poenitentia. Rome: Commentarium pro religiosis. Powell, James, 1987. Anatomy of a Crusade, 1213–1221. Philadelphia PA: University of Pennsylvania Press. Riley-Smith, Jonathan, 1997. The First Crusaders, 1095–1131. Cambridge: Cambridge University Press. Roest, Bert, 2004. Franciscan Literature of Religious Instruction before the Council of Trent. Leiden and Boston MA: Brill. Rusconi, Roberto, 2002. L’ordine dei peccati: La confessione tra Medioevo ed età moderna. Bologna: il Mulino. Simons, Walter, 2010. ‘Holy women of the Low Countries: a survey’, in Alastair Minnis and Rosalynn Voaden (eds), Medieval Holy Women in the Christian tradition c. 1100–c. 1500. Turnhout: Brepols, 625–62. Tentler, Thomas N., 1977. Sin and Confession on the Eve of the Reformation. Princeton NJ: Princeton University Press.

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Part II

Rules and virtue

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4 Rules and the unruly: Roman exemplary ethics1 Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

Rebecca Langlands

Roman exemplary ethics was an exemplar-based morality, associated with virtue ethics, and generating implicit injunctions for individuals to cultivate particular moral values and avoid others.2 Yet it was not distinct from a rule-based morality.3 First, the exempla tend to imply moral imperatives similar to the ‘v-rules’ identified by Rosalind Hursthouse as generated by the virtues and vices in virtue ethics (such as ‘be brave’, ‘don’t be rash’), which are embodied by the exemplary figures and their deeds, and endorsed by the praise and censure meted out to these by the community.4 Indeed, it has long been a central conundrum in Western philosophy that examples are always closely related to general principles of which they are particular cases, which we might think of as ‘rules’ in their general applicability. As a particular form of ‘example’, the Roman exemplum participates in the paradox outlined by Wittgenstein ‘that we are supposedly guided by a rule, but can only know the rule by looking at the behaviour that enacts it’ and in the ‘scandal of example’, that an example obliges the reader to judge, and yet ‘this ethical summons … is predicated not on a rule or law … but on the instance in its particularity’ (the paradox is summarised by Gelley 1995: 14). Beyond the moral rules with which exempla are implicated, however, Roman exemplary ethics also engages directly with other rule systems in operation in ancient Rome, such as the moral code of the mos maiorum (ancestral custom), legal codes and religious prescriptions. The case of Roman exempla thus illustrates the assertion made in the Introduction that virtue ethics and a morality characterised by rules need not be mutually exclusive (see also Chapter 5). Indeed, this chapter will argue that exempla often depict extreme scenarios that are based on the conflict between different Roman rules, and that the narratives offer particular cases that explore the challenges involved in an individual’s engagement with these rules. Analysing the way exempla are handled in the literary tradition of the late Roman Republic and early empire (first century bce to first century ce), this chapter will argue that the Romans used them as case studies for thinking

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about the complicated business of real-world application of rules, which involves careful moral discrimination on the part of the moral agent. Such exempla thus bear a family resemblance to casuistry in the technical sense outlined in the Introduction, of an application of a rule to a particular case (see also Chapter 3). Yet, as will become apparent, they also differ from casuistry in that they use dilemmas and difficult cases to emphasise virtues and qualities, rather than to define and interpret the rules being challenged. Exempla offer a commentary on Roman rules – a commentary that is at times disruptive, and at other times resolves their conflicts. However, we will also see situations in which rules appear to be secondary to the exempla, and where the situations use rules as props to virtue ethics. At times, the real-world application of rules appears to be of less interest in the context of exemplary ethics than the moral values they help to convey.5

Roman exemplary ethics Roman exemplary ethics is usually passed over in histories of both virtue ethics and of exemplarity.6 This is a pity, because, whereas the discussions of Plato, Aristotle and the Stoic philosophers offer abstract theorisation about virtue ethics and the role of example in ethics, Roman exemplary ethics offers something rather different and complementary: a lived and practical ethics which touched all sectors of Roman society. Roman exemplary ethics was transmitted through exempla, popular exemplary stories about the heroes and villains of Roman history shared widely and valued across the community in oral tradition, material and ritual commemoration, and written texts.7 Roman exempla could be both narratives and individuals, and as such incorporate features of both parables and of exemplars.8 Exempla were an important medium for the mos maiorum (‘the custom of the ancestors’), the unwritten moral code that regulated all aspects of Roman life during the republican period, based on the idea that ancestors embodied values and virtues to which Romans should aspire. These exemplary stories and the  figures that they featured modelled and illustrated these aspirational virtues in question (Bettini 2000; Arena 2015). They provided resources for moral development. Roman writers describe exempla as the medium through which Roman children first learned about moral values.9 Exemplary tales were understood to model particular virtues and values for the moral learner, which could be first grasped and then imitated.10 The stories disseminated examples of behaviour in order to generate normative expectations. The most famous exempla were widely celebrated in and endorsed by the community, as part of Roman cultural memory, and

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recorded by their historians and monuments. However, new exempla could also be generated closer to home, among teachers and family members. A young Roman was urged to choose the exemplary models best suited to their own character and situation. Those from illustrious families might be inspired by their own ancestors, others by national heroes. As one might expect from an exemplar-based virtue ethics, these exempla did not generate explicit rules about specific types of behaviour, but rather injunctions to cultivate certain moral qualities and avoid others. This basis on virtues and vices rather than rules is reflected in the composition of our most substantial exemplary text that survives from antiquity, Valerius Maximus’s Memorable Deeds and Sayings (published c.30 ce), which organises its exempla under chapter headings including the virtues of bravery, justice, loyalty and pietas, and, in his final book, the vices of lust, luxury, anger and cruelty.11 Such headings align stories with injunctions to the reader to inculcate specific virtues in themselves. Deeds are praised as great or condemned as terrible, and the moral principles are to be extrapolated from the tales rather than stated explicitly.12 For example, in the chapter on bravery Valerius tells us the story of Julius Caesar as general in the Gallic wars: When he saw his battle line giving before the countless numbers and fierce onrush of the Nervii, he seized a shield from a soldier who was fighting rather timidly and covering himself with it started to battle most vigorously. His action spread bravery throughout the army and by the divine ardour of his soul he restored the failing fortune of war.13

Julius Caesar embodies the qualities of bravery and effective leadership on the battlefield, and the story also tells us that a brave deed has the exemplary power to inspire similarly brave behaviour in others in its immediate context, as well as for those who read the story later. In Valerius’s work, specific rules about behaviour are often embedded in the narrative, but not so much to promote the rule itself (which is usually presented as obsolete) but to use it as representative of a more general moral principle. So, for instance, Valerius Maximus tells us admiringly of an ancient custom that ‘a man would never bathe naked with his son after his son had reached maturity, nor would a father-in-law with his son-in-law’ (2.1.7). Implicit in this is a customary norm that had still been in operation seventy years earlier in the time of Cicero, who tells us that, just as actors must wear underwear onstage to prevent accidently exposing their genitals to the audience, so ‘grown up sons do not bathe with their fathers, nor ­sons-in-law with their fathers-in-law’ (Cicero, De officiis 1.129). Though not a law, this is articulated as a customary norm with prohibitive overtones. However, by Valerius’s day this custom was no longer practised; in

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his early imperial context it was cited as an exemplum of a more general virtue, that of cultivating respect and decorum in family relationships (verecundia). Thus, although it refers to a rather specific prohibition, in the context of exemplary ethics an obsolete law is repurposed as an extreme instance of a still relevant virtue. Similarly, at 6.3.9, under the heading of ‘strictness’ (severitas), Valerius praises the exemplum of Egnatius Mecennius, who ‘bludgeoned his wife to death for drinking wine’: ‘His action found no one to prosecute or even to censure it, for everyone agrees that the penalty she had paid for violating sobriety was an excellent precedent [exemplum].’ This exemplum not only appears to endorse an ancient prohibition on women drinking wine, but perhaps even to offer an aetiological account of the establishment of capital punishment for the crime, which the Roman tradition of Valerius’s day held had been a law in the austere days of early Rome (cf. 2.1.5).14 Again, such a prohibition was no longer in operation in Valerius’s day, so it is not the law itself that is promoted by the exemplum, but the principles of austerity, severity and control of women that it embodies. Like the preceding exemplum, this offers a good example of a case where a law was being used to make a moral point, rather than operating as a real rule to be followed. Even in cases where the embedded rule was probably still in operation, such as the punishment for self-mutilation to avoid military service cited at 6.3.3c,15 the exemplum does not so much promote the law itself as praise the strictness of those who enforced it (here the senate who punished with slavery a man who had cut off two fingers), with the further implication that such punishment is exceptional. Thus, even where rules appear within exempla they are subordinated to a wider norm that the exemplum is promoting. In practical terms it is not always clear how an exemplum and its v-rules should be applied to an individual’s behaviour in the present, especially given the prevalence of the idea that the time of the ancestors was a time of moral superiority which the present (whenever it may be) can never hope to match. Valerius’s story of Egnatius is not necessarily encouraging Roman husbands to beat their wives to death; in his more liberal times less harsh forms of punishment may be more appropriate, and judgements of behaviour recalibrated. Thus the moral principle that one should not value material possessions and one should be content with little is transmitted in the exempla of Cato the Elder, who took only three slaves with him when he travelled to Spain as governor in 195 bce, and Cato the Younger, who brought twelve slaves with him on military campaign in 49 bce. Valerius makes it clear that although the younger Cato had more slaves than his ancestor, this represented greater abstinence than the elder Cato’s because of the different times in which the two men lived (4.3.11–12). Although the underlying value of abstinence is still relevant, the goalposts have shifted.

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Significantly, despite portraying itself as a fundamentally conservative moral tradition, which involved preservation and replication of ancient values, this was in practice a supple ethics, that allowed for recasting and reinterpretation of custom.16 With this sensitivity to situation, the ethics generated by this tradition of heroic tales corresponds with Aristotelian virtue ethics not merely in terms of its basis on key virtues that need to be cultivated by the individual, but also in the sense of the ‘space’ within each virtue that allows for a variety of different ways to implement each virtue, and is especially sensitive to change over time.17 The citation of out-of-date rules within Valerius’s exempla, therefore, may be partly a strategy for indicating that one needs to take account of changing moral climates when drawing on one’s ethical models.18 Roman exemplary ethics shares many similarities with other exemplarbased moral traditions, such as those of Mongolia described by Humphrey (1996) and of the Urapmin of Papua New Guinea described by Robbins (2018).19 There is no need for internal consistency within the body of exemplary stories. Valerius Maximus, for instance, follows a chapter celebrating ‘parents’ love and indulgence towards their children’ (5.7) with one celebrating ‘parents’ strictness towards their children’ (5.8), without providing any clear guidelines about when one quality should be preferred to the other. Such an approach is also appropriate to an Aristotelian framework, where the virtue of indulgence towards one’s child borders on the vice of over-indulgence, and the virtue of strictness on the vice of brutality. A moral agent needs to cultivate the skill of moral judgement that will enable them to decide where to draw the line according to what is appropriate in a given situation. For Aristotle this skill is phronesis; Roman exempla provide a resource for cultivating a similar quality of moral discrimination. As with the conflicting exemplars of Semis and Kinimnok – members of the Urapmin community who embody extreme poles of ‘lawfulness’ and ‘wilfulness’, respectively – described by Robbins (2018), different values are promoted by different exempla and it is up to an individual to choose which to prioritise for themselves. In addition, the interpretation of the individual is crucial to realising the moral meaning of an exemplum.20 Engagement with an exemplum requires ‘a thoughtful subject’ who takes the story as a starting point for reflection on moral ideas.21

Rules and the Roman moral terrain Roman exemplary ethics might, then, initially seem to fall into the category of minimal legalism when mapped against the criteria set out in Table 0.1 in the Introduction: exempla embody values rather than rules explicitly

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formulated as such. When it comes to the application of values to moral behaviour, the key principle is that different situations require different instantiations of virtues.22 Moral complexity, conflict between rules, heroic rule breaking, reinterpretation of moral deeds from different perspectives – all are key features of exemplary ethics that tend towards the ‘unruly’.23 Moreover, exempla are a popular medium, despite their extensive deployment in elite practices of history, rhetoric, epic poetry and philosophy, which allow unmediated engagement from all sections of society (such as storytelling in a domestic or social setting, for example). Thus they do not rely on an authoritative interpretation, in the way that moral systems with a pronounced interest in rules often do (see e.g. Chapters 3 and 7). Indeed a key feature of Roman exempla (as with moral examples in other ethical contexts) is that there is never a single, simple moral message. Using an example to communicate a general rule or point is a risk because your audience may not draw from it the message that you intend. Yet ancient Rome was hardly a non-legalistic culture. With exemplary ethics coexisted multiple overlapping moral, legal and religious codes. Even before the intense period of ‘juridification’ that began to build up the formal Roman legal system from the second century bce,24 there was the Twelve Tables (dated to 450 bce), which, as far as it can be reconstructed from traces in later literature, was not a systematic legal code (and had no associated system for enforcement such as a police force or permanent courts) but was rather a set of rules governing various aspects of civic life (Riccobono 1941: 21–75). Many were articulated in terms of the penalties laid down for various acts, such as: ‘If a person breaks a bone of a free man with hand or by club, he shall undergo a penalty of 300 asses; or of 150 asses, if of a slave’ (8.3). Others were articulated as prohibitions relating to acts that contravene implicit religious codes: ‘A myrrh-spiced drink … shall not be poured on a dead person’ (10.6b). Meanwhile, as we have seen, the mos maiorum provided an underpinning code of agreed (though flexible) moral norms and precedents upon which to draw. The act of killing, enmeshed as it was in a web of moral, religious and legal codes, can serve to illustrate the various regulatory codes that governed Roman behaviour: ancestral custom, the Twelve Tables, patria potestas (paternal authority), religious law and then increasingly after the second century bce, formal legal codes established by magistrates in the law courts.25 Killing in ancient Rome was regulated by a number of norms – some official laws and some customs – which together made up a regulatory complex (Rüpke 1992; Gaughan 2010). For most of the republican period, killing was not itself subject to a formal law. It was, however, subject to a strong customary prohibition on killing another human being, legitimised through appeal to the mos maiorum. This was not explicitly articulated anywhere,

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but was implicit in the fact that it was then nuanced by a series of regulations in the Twelve Tables which related the various exceptional circumstances in which killing was allowed (Gaughan 2010: 5). For instance, the killing of a thief was justified if the thief had a weapon or broke in at night (8.12.f). On the other hand, the Twelve Tables also prescribed a penalty for accidental killing with a weapon: ‘If the weapon escaped from the hand rather than being thrown, a ram must be handed over’ (8.24a). In other cases beyond the Twelve Tables, killing was not merely allowed, but prescribed. According to religious law, if a baby was born as a hermaphrodite, or deformed in some way, the father was required to expiate this prodigy according to religious ritual (Brisson 2002: 23–31). Likewise, in a military context, killing was not only allowed, but was required for a soldier who was ordered to kill by his commander. Moreover, a separate quasi-legal sphere of operation in the Republic was the family, where the family head (the paterfamilias) was authorised to kill the family members under his responsibility in a range of circumstances. It was only in 80 bce that Sulla’s lex Cornelia de sicaris et veneficis established killing as a crime, and this became the basis for the ‘homicide’ law of the imperial period (Robinson 1995: 41–7). As we see, some laws or rules were dependent on unwritten moral norms that were only implicit in and extrapolated from moralising stories. The written code of the Twelve Tables was dependent on a general unwritten prohibition against killing, which was transmitted as part of the mos maiorum. A father’s right to kill his children was underpinned by an understanding that a father was subject to the customary moral imperative of pietas – a virtue cultivated as a sense of duty towards family members as well as gods and country – and also to the ‘natural’ desire to cherish and protect his own offspring.26 It was due to this implicit norm of parental love, for instance, that under the new adultery law passed by the emperor Augustus in 18 bce it was only the woman’s father who was entitled to kill her and her lover if he caught them in flagrante. The natural affection of a father was implicitly considered a safety check, to ensure that he only slew her when the circumstances truly warranted it.27 Roman society’s approach to the regulation of killing, as to the regulation of behaviour more generally, was reliant, then, on the interlocking of a number of regulatory structures, including custom and more formal law. Thus the unruliness of exempla and the associated virtue ethics operated within a more formal culture of rules. The remainder of this chapter will show how some exempla provided a commentary on bodies of norms and rules in operation in Roman culture, and to some extent provided a resource for ‘pondering’ those aspects of Roman culture that emphasised formal rules. In relation to Roman laws and norms, Jorg Rüpke has observed that exempla provide an effective means of representing conflict between rules:

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‘the transfer of norms into dramatic structures makes the presentation of conflicting norms possible … The conflicting norms are stressed by the construction of extreme plots’ (Rüpke 1992: 72). Indeed, Roman exempla are often structured as the challenge that a hero encounters in a situation where he is faced by competing moral imperatives, whether these are in the form of customary norms or formal laws. The following discussion builds upon Rüpke’s brief observation, drawing on recent research on the moral aspects of Roman exempla to examine how two famous Roman exempla dramatise the conflict between imperatives and to consider how they utilise this conflict to explore moral ideas.28

The exemplum of Manlius Torquatus and his son The first exemplum is that of the Roman general T. Manlius Torquatus and his son, which is set in the early Republic, in the year 340 bce. During a revolt by the Latins against Roman rule, the son, who was among his father’s troops, was sent on patrol with a handful of others, with strict instructions not to engage in fighting with the enemy. When they were accosted by a fierce warrior from the enemy who challenged the young Torquatus to single combat, the young man took up the challenge (partly because his own father had won glory in his youth by winning in single combat against a Gaul). He won the fight and returned in triumph to his father in the Roman camp, bearing the spoils of his victory. However, he had disobeyed his father’s command not to engage in combat, and had not obtained permission for the fight beforehand. His father decided to execute his son, and beheaded him publicly as a lesson to all. The sources that retell this story all date from the late first century bce onwards, over 300 years after the episode is supposed to have taken place.29 The law prescribing capital punishment for military insubordination that is being implemented in this story is recorded in Justinian’s Digest, a compendium of Roman law compiled in 533 ce, but incorporating centuries of Roman law, so it is not clear when this particular law came into operation. At any rate, the law preserved there reads: ‘In warfare, capital punishment is required for a soldier who does something that was prohibited by his general or fails to carry out his general’s orders – even if his action was carried out well’ (in bello qui rem a duce prohibitam fecit aut mandata nonservavit capite punitur, etiamsi rem bene gesserit, Digest 49.18.3.15). This final clause, ‘even if his action was carried out well’, sounds like a direct reference to this famous exemplum, in which the son’s successful duel was on its own terms a brave endeavour and beneficial to the Roman army in terms of asserting its power over the Gauls.

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However, the story is not merely a straightforward endorsement or application of the law, but a troubling and controversial instance that serves to provide a commentary on it, and on the extent to which adhering to it strictly in this case risks or entails infringing on other important moral imperatives, namely, a father’s natural love for and pietas towards his son, and the requirement of recognition and reward for bravery and skill in the service of the country. The conflict between imperatives is largely implicit in the story, and is not spelled out in Roman sources. However, it is evident in the way that the story is treated in the written sources and (as far as we can tell) would have been treated in the oral tradition with which this literature engages. For within the wider Roman tradition this is represented as a paradox: an ­ evidently shocking tale of brutality, which is also incontrovertibly ­celebrated as an act of heroism.30 The degree to which the story was considered morally complicated is reflected in the widely used phrase ‘Manlian commands’ (Manliana imperia) with which it is associated in Roman culture. The phrase can be used either as praise or censure: it denotes a wielding of power which is excessive, or borders on the excessive, which teeters on the knife edge between admirable strictness and cruelty, and which evokes a mixture of admiration and horror. In the tradition Torquatus is celebrated as a great hero, often cited as an exemplum of mos maiorum, illustrating the virtue of severitas. However, in some accounts his own soldiers are not afraid to express their anger towards him at their comrade’s execution.31 Whether the story resolves its central dilemma about what action Torquatus should take is an open question. On the one hand, the moral status of his act is not in doubt. On the other hand, that act could not be carried out without the transgression of other moral imperatives that entails horror, sacrifice and moral compromise. By fulfilling his role as general, Torquatus has had to commit an atrocity that confounds his role as father. This shocking narrative, then, is able to convey far more moral complexity than an assertion of the law against military insubordination, not least by placing it in a ‘real-world’ context where its application is not a straightforward matter, and where it clashes with other fundamental values and principles.

The exemplum of Horatius and Horatia The story of the young hero Horatius who killed his own sister is another that places different moral imperatives in conflict with one another, although it is more complex in its play of codes. Not only is there no clear law that

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is followed here, but the story dramatises uncertainty about who has the authority to decide whether behaviour is right or wrong, and to enact punishment, and thus is a commentary on legal process as well as on law. The episode is said to have taken place in the very earliest days of Rome, when the city was still ruled by kings, before the establishment of the Republic. Like the Torquatus story, this purports to be a historical episode, and is even used as a legal precedent, but it is almost certainly entirely legendary, and does not reflect real legal practices of the seventh century.32 The legal and moral issues it dramatises reflect the concerns of the late Republic and early empire, when our sources were composed, and when this story was widely known and debated in Roman society.33 In summary, Horatius was one of three Roman brothers who had been chosen to fight against the three Curiatii brothers from Alba Longa, in a legendary battle (allegedly) fought in the middle of the seventh century bce, whose outcome was to decide a boundary dispute between the two cities. After a bloody encounter in which all three Curiatii and Horatius’s two brothers were killed, he was the sole survivor. Fresh from the fight and victorious, he returned home to find his sister grieving because one of the Curiatii he had just killed had been her fiancé. He struck her down dead on the spot, on the grounds of immodesty, with the sword he was carrying. Brought to trial for her murder, he was first convicted, but then eventually acquitted. On the one hand, this event is viewed positively as the embodiment of admirable ancestral custom. For instance, Horatius’s story is cited by Valerius Maximus as an example of old-fashioned strictness (severitas). The virtue is explicitly associated with the enforcement of rules and the maintenance of virtue when there are competing imperatives in operation; a positive view of the shocking severity of the son is ratified by the father’s subsequent defence of his son’s actions: Horatius … when he was returning home from that famous fight, struck down dead his virgin sister, because she was weeping more profusely than she should have done at her age over the death of her fiancé Curiatius, using the very sword that he had wielded so well on behalf of his country. For Horatius considered that her tears were hardly modest when they were shed for the sake of a precocious love affair. His father defended his action when he was brought to trial before the people. And so the girl’s inclination towards the memory of her future husband found a fierce avenger both in her brother and in her father, who was in agreement with such an inflexible punishment. (Valerius Maximus 6.3.6)

Horatius’s case was also cited favourably by Cicero as a legal precedent for justifiable homicide, when he used it in circa 52 bce at the trial of his friend Milo, whom he was defending on the charge of murdering Cicero’s



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enemy Clodius. Since it was clear that Milo had indeed killed Clodius, Cicero’s defence rested on the claim that the killing was not necessarily a crime. He counters the prosecution’s claim that a person who confesses to having killed another person should face the death penalty by saying: But where are these stupid people making this argument? In the very city which oversaw the first judgement on a capital charge of Marcus Horatius, the bravest of men, who (even though the city had not yet gained its freedom) was acquitted by the assembly of the Roman people, even though he confessed that he had killed his sister with his own hand. (Cicero, Speech in Defence of Milo 7)

Cicero’s argument depends on the audience’s instant recognition of Horatius as a national Roman hero, brave and admirable. On the other hand, like the case of Torquatus, this is also remembered by the Romans as an appalling and brutal act. Horatius’s sudden murder of an innocent, unarmed and weeping girl, who is also his sister, is undoubtedly excessive and savage, and flies in the face of the Roman expectation of fraternal pietas. As in the case of Torquatus, the ancient sources represent a horrified reaction to the story as entirely legitimate. A key word that is used to describe the act is atrocitas (‘atrocity’). In his vivid retelling of the legend, Livy tells us that the deed immediately seemed atrox to all present – to senators and people alike. Valerius Maximus, in his brief account of the trials, tells us that it was the atrocitas that led to the initial conviction (8.1.absol.1). Yet, in the story passed down through the generations, Horatius is in the end acquitted. The tangled question of how and why Horatius was ­acquitted of murder is an important element of Roman cultural memory. The plot itself dramatises the difficulty of coming to a judgement on Horatius’s act. In its barest form, Horatius is first convicted of murder, and then acquitted, but neither judgement is represented as fully satisfactory. In Livy’s version the king Tullius, confronted by the murder, first appoints two magistrates whom he directs to convict Horatius of treason. The implication is that he passes the buck to them because he is wary of imposing the death penalty himself when he realises such a harsh punishment will be deeply unpopular with the people. However, once Horatius has been convicted, the Roman people are indeed outraged that their hero should be treated in this way, and they lobby for his release. When Valerius Maximus cites the story in his chapter on famous acquittals (8.1), he explicitly brings out the multiple perspectives involved in the plot by pitting the judgement of the Roman people directly against that of the king: M. Horatius, having been convicted of his sister’s murder by king Tullus, was acquitted after he appealed to the people for trial. It was the atrocity of the

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killing that motivated the king, while the people were swayed by the reason for it, because they considered that the punishment of the maiden’s immature love had been strict rather than impious. So the brother’s right hand, freed from punishment for its brave deed, could draw as much glory from the blood of a relative as from that of an enemy. The Roman excelled on that occasion as a fierce guardian of chastity. (Valerius Maximus 8.1.absol.1)

In Valerius’s representation, the multiplicity of perspective that we see in Livy’s account is boiled down to a duality: the king is moved by the act of atrocity, while the people are moved by the causa (the reason for the atrocity), that is to say, Horatius’s motivation for killing his sister, which is judged in this version to be sound.34 In deciding whether impiety or strictness win out in the evaluation of Horatius’s deed, the people acknowledge that both are relevant, but the suggestion is that they have established a hierarchy in which the imperative of strictness is ranked more highly than that of pietas, in this case at least. The same unwritten moral imperatives that governed Torquatus’s example – to conduct oneself with pietas and affection towards one’s family members and not to kill outside the battlefield – apply here. However, in Horatius’s case they seem to come into conflict with the imperatives to preserve female modesty and thereby family honour, which motivate his killing of his sister. For other participants in the story, who are asked to decide whether and how Horatius should be punished for the murder of his sister, other imperatives are in conflict: the patriotic imperative to honour a military hero who has not only served but saved his country; the requirement that a murderer be punished. Valerius eventually describes Horatius’s deed not merely as deserving acquittal, but actually as a source of glory that rivals his victory over the Curiatii. Just like Torquatus’s ‘Manlian commands’, Horatius’s deed is both good and bad; it is a ‘glorious atrocity’. Its ambiguity is what makes it so appealing as a case study for budding orators to test their skills on. For instance, Horatius’s story is used by Quintilian in his rhetorical handbook Institutio Oratoria as an example to show one how to articulate ‘question’ and ‘basis’ in argument, comparing the formulation ‘Horatius committed a crime, because he killed his sister’ with ‘he did not commit a crime, because it was his duty to kill a woman who was mourning for the death of an enemy’ (3.6.7). This is a case where it is possible to come to different judgements about the same actions. Because it is hard to come to a final decision such a case is useful for rhetorical training in constructing an argument.35 In a sense the moral ambiguity of the case is embodied by the figure of Horatius himself – at once a hero and murderer of his own sister – and it is the question of how to judge and punish him that exercises the moral muscles.

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The earliest written references to Horatius’s exemplum come in the writings of the politician, orator and philosopher Cicero. His rhetorical handbook De inventione, written around 84 bce when he was a young man, uses the story of Horatius to illustrate the rhetorical practice of relatio criminis (‘retort of the charge’) in judicial argument. Cicero takes us through the trial of such a case, exploiting its moral ramifications in order to show a trainee orator how he might structure his argument on either side of the case. His treatment here provides a good illustration of how such exempla would have been used as the basis for moral and rhetorical argumentation in the context of formal education – by exploring the possible different interpretations of the exemplum and of Horatius’s actions. Advising how one might defend Horatius, Cicero suggests that the speaker employ the line that ‘some offences are so terrible that they must be punished immediately without trial.’ In other words, Horatia’s crime was horrific and she deserved to die; it would have been wrong to allow her to go on living. He suggests that the defence for Horatius should use emotive language to describe her behaviour (crimen culpam et audaciam – ‘offence, guilt and audacity’) in order to convey the magnitude of her offence and rouse the indignation of the (hypothetical) jury. In this way, Horatius’s act can be portrayed as morally justified and he might even be understood to have acted (almost) within the law. As is usual in such a textbook, Cicero’s ‘bare bones’ sketch of the case uses no emotive language. It is the speaker using the case who is required to embellish these basic facts in order to arouse the emotions of the audience and make their case persuasive. In De inventione we are not reminded of the shocking brutality of Horatius’s deed, nor are we invited to admire it: ‘Retort of the charge’ is when the defendant is accused of something that he admits he has done, but demonstrates that he was justified in doing it [iure fecisse], because he was influenced by an offence committed by the other party. The following case is of this kind: Horatius, having killed the three Curiatii and lost his two brothers, returned home in triumph. He noticed his sister, not distressed by the death of her brothers, but repeatedly calling out the name of her fiancé Curiatius with groans and lamentations. Unable to bear this he killed the girl. He stands accused. (Cicero, De inventione 2.78)

Cicero’s suggested lines of defence confirm that this case was seen by the Romans as inherently controversial and morally troubling, and could be used as a basis for discussing the idea of moral justice. Moreover, the handling of this story shows that there was a range of interpretative possibilities available to a Roman who took it as a springboard for argument. While Cicero draws out the moral ambiguity of this story in a schematic fashion, then, Livy’s subtle literary treatment of the story in the first book

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of his Histories is an elaborate historical narrative within his account of early Roman history. His version teases out the moral complexities of the tale in a provocative and interesting fashion, as scholars have noted.36 In Livy’s version there is further elaboration of the different viewpoints of participants in the plot, which offer his reader multiple interpretative perspectives, facilitating the exploration of the internal contradictions of the Roman value system. Livy’s version divides the story into two episodes – the killing of the Curiatii on the battlefield and the killing of Horatius’s sister back in Rome – which mirror one another through use of imagery and language in such a way as to contrast their moral significance. One function of the contrast between the two episodes is to highlight just how much more complex the web of competing moral imperatives facing the protagonists are in the domestic setting than in the scene on the battlefield. When it comes to fighting against the Albans, the loyalties of the warriors and of the armies who stand by and watch them are clear and unsullied. The Alban soldiers cheer for the Curiatii and are stricken when they are killed; the Romans cheer on the Horatii and rejoice in their triumph. Horatius is fighting beside his brothers; familial and patriotic interests are aligned. In this part of the story there are simply two sets of spectators with different interpretations of the fight dependent on their civic identity as Roman or Alban.37 In the second episode the situation is far more complicated. Livy’s version highlights the conflicts between commitment to family members and to the wider community, to modesty and propriety, to non-violent settling of issues in the civic sphere and to the rule of law, to the authority of the father and that of the king. Yet the second part of the story is not a case of a straightforward conflict between patria and family, as Feldherr (1998) argues. Horatius’s killing of his sister goes against Roman moral norms; and she also fails to be moved by the plight of her own brothers when she concentrates on the death of her fiancé. ‘But just as both Horatia and her brother are impelled by their differing family allegiances, so too at the national level the schism between them reflects not an opposition between “family” and “state” but an internal contradiction within the logic of patriotism itself’ (Feldherr 1998: 134). At the head of the Roman army on its return to the city marches Horatius, carrying his triple spoils, and it so happened that outside the Capena gate he met his sister, a young girl who had been betrothed to one of the Curiatii. Slung across her brother’s shoulders was a cloak, and she recognised it as the cloak she had made with her own hands for her lover. The sight overcame her: she loosened her hair and, in a voice choked with tears, called her dead lover’s name. That his sister should dare to grieve at the very moment of his own triumph and in the midst of national rejoicing filled Horatius with such



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uncontrollable rage that he drew his sword and stabbed her to the heart. ‘Take your untimely love,’ he shouted, ‘and give it to your lover in hell. What is Rome to such as you, or your brothers, living or dead? May all Roman women who mourn for an enemy die like this.’ There were none who did not feel the horror of this deed.38

Another point of comparison between the two episodes in Livy’s account is the role of ferocitas (fierceness) in each. Horatius’s characteristic of ferocitas is what drives his behaviour in both parts of the story, but in Livy’s version it is a positive quality in the first part where Horatius’s role is as a mighty warrior, but when he is in the role of censorious brother this same quality is much more problematic. Where Cicero’s trainee orator might have presented Horatius’s deed as the result of a judicious decision, Livy emphasises his ‘uncontrollable rage’. The same quality of ferocitas that makes him an excellent warrior is also the quality that leads him to strike down his sister on the spur of the moment without trial or consideration.39 Such a comparison might lead one to think about moderation of virtue, and the question of how to steer a middle way, tempering fierceness with other qualities. Each of the ancient texts examined above engages in its own way with the inherent ambiguity of the story within the wider tradition, highlighting the moral conflict within the story, dramatising different perspectives and possible interpretations, and using it to think through the challenges of acting morally in accordance with norms and prescriptions. As we have seen, an individual text can ‘resolve’ the ambiguities of the case – for instance, by labelling the story a triumph of severity or an example of justifiable homicide. Yet the story continued to persist throughout the late Republic and the early empire, maintaining its evergreen ambiguity even in the face of these temporary ‘resolutions’. The murder of Horatia is a moral ­contradiction that can never be fully resolved, and where every attempt at definitive judgement immediately invites a counterposition. Livy’s comments on the outcome make it clear that in his version there is ambivalence about the final verdict. While Cicero states that Horatius’s killing of Horatia was iure (‘morally just’ or ‘by law’ according to how one reads the Latin), Livy suggests that Horatius’s acquittal emphatically does not represent justice or rule of law, but that it was the young man’s reputation and status as a triumphant warrior that swayed the people in their judgment: ‘The people could resist neither the tears of the father nor the courage of the man himself, equal to any danger, and were won over more by admiration of his prowess than by the justice [iure] of the case.’40 Moreover, there is a sense of overcompensation when Livy provides further justification for the acquittal in the impassioned speech of the father

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in his son’s defence. The father has announced that he condones his son’s killing of his daughter, and in doing so he also implicitly condemns his daughter’s behaviour. However, he also deploys alongside this another line of argument: he pleads that he should not be forced to lose his remaining son, now that his other two sons have been killed in the recent battle. The inclusion of this plea for mercy and sympathy on personal and practical grounds implies that the moral defence of the son’s actions is not necessarily sufficient to make the case for his acquittal on its own. It also betrays the personal motivations of the father, and shows that he is not a detached arbiter of justice in this case. Finally, in Livy’s version, after the acquittal ‘it was decreed that such an obvious murder should be expiated by sacrifice, and so the father was ordered to expiate the son at public expense.’ After the legal process is finished, moral residue remains which need to be dealt with through religious ritual. And what is more, Livy tells us that this residue remains to his own day, never wholly washed away: the expiation ritual is still an annual ritual for the Horatii family; the ‘Sister’s Beam’ (a piece of timber that stands as monument to the event) is still maintained at the state’s expense on behalf of the community to keep the memory of the troubling event alive (Livy 1.26). The episode’s moral contradictions can never be fully resolved.

Conclusion: Roman exempla and rules In the case of ancient Rome, then, exempla are not defined against a rulebased culture, but provide a discursive space for thinking about engagement with rules and relating them to the moral life of the individual. The corpus of Roman exemplary narratives together generates an ethical framework that is a version of virtue ethics, but these stories also dramatise and reflect on the codes and rules that govern Roman moral life. For while they can be seen as dependent on general categories and rules, at the same time, as individual instances, exempla are the unruly thorn in the side of rules, which put them to the test. Like Schaeublin’s discussion (Chapter 6), this chapter hopes to problematise the idea that rule-centred ethics need to be rigid in the handling of rules, and it also outlines, in ways that parallel his study, some of the more complex ways in which rules can interact with other aspects of a particular ethics. Rüpke describes exempla literature as ‘an important instrument of reflecting and teaching the solution of conflicts by narrative hierarchisation’, and claims that in the specific case of Horatius ‘the conflict is solved by a practiced hierarchisation of norms’ (Rüpke 1992: 58, 72). We have seen that some ancient sources may indeed resolve the conflicts by ­prioritising

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one imperative over another, as when Valerius praises the prioritisation of severitas over pietas in the acquittal of Horatius. Yet such a resolution is never permanent and definitive, as Livy’s version of the Horatius story (among others) emphasises. The particular value of exemplary narratives, this chapter contends, is that they do not insist on a definitive hierarchy of norms. Rather their ‘unruliness’ allows them to preserve the ambiguities which keep the moral contradictions in play, allowing moral agents to explore and reflect on conflicts without needing finally to resolve them. The open-endedness of exempla such as Torquatus and Horatius is testified to by their treatment as complex in the ancient literature. An exemplary narrative is able to retain a sense of the painful conflict between values in a manner that is morally pertinent, and more helpful for a moral agent who is using the exemplum to think through his or her own conflicting values and commitments. I would like to end with a final suggestion about the role of rules within this context of Roman exemplary ethics. We have seen that rules are deployed in the Roman exemplary discourse as instruments to an exemplary end, rather than as the basis of their own ethics. In Valerius Maximus’s compilation of exempla, laws are cited not as rules to be followed, but as past instances of more general moral values to be reinterpreted in a new context. Within exempla such as those of Torquatus and Horatius conflicting moral rules are juxtaposed in order to stimulate moral reflection. In these cases, perhaps, the rule might be seen as the servant of the exemplum rather than (or as well as) part of a competing moral system.

Notes   1 The ancient Greek and Latin texts cited in this chapter are from the standard Oxford Classical Text editions, with translations into English by the author unless otherwise indicated.   2 For the specific similarities of Roman exemplary ethics with the virtue ethics adumbrated by Aristotle, see further below and also Langlands (2015, 2018: 93, 124–7, 337–8). Linda Zagzebski’s (2017) theory of exemplarist virtue ethics also has resonance with Roman exemplary ethics (Langlands 2018: 130–3).   3 Roman ethics, then, complicates the distinction drawn in Humphrey (1996) between exemplar-based and rule-based moralities.  4 Hursthouse (1999), especially p. 36: ‘we can now see that [virtue ethics] comes up with a large number of rules. Not only does each virtue generate a ­prescription – do what is honest, charitable, generous – but each vice generates a ­prohibition – do not do what is dishonest, uncharitable, mean.’   5 In this respect, there may be a parallel with the Roman practice of declamation, where fictional laws generate tangled legal situations from which trainee lawyers

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must build arguments. On the parallels between Roman exemplary ethics and declamation, see Langlands (2018: 160–5).  6 For instance, the 2015 Routledge Companion to Virtue Ethics (edited by Lorraine L. Besser and Michael Slote) begins with chapters on Plato, Aristotle and Stoic philosophy, but then moves to Hindu and Confucian virtue ethics with no mention of Roman exempla. Even most studies of exempla pay little attention to Rome; a brief mention of Plutarch, Silius Italicus and Livy by Højer and Bandak (2015: 3) is a rare exception.  7 On moral aspects of Roman exempla, see Morgan (2007: 122–59) and Langlands (2018).  8 In this respect, and others, they bear a similarity to the Mongolian üliger discussed by Humphrey (1996: 36).  9 Quintilian, Institutio Oratoria 12.2.30; Seneca, Letters to Lucilius 120; with Langlands (2018: 100–5). 10 Langlands (2018: 86–111) on the process of learning from moral exempla. 11 See Morgan (2007: 129–59) on Valerius’s moral categories and Litchfield (1914) for a useful chart of exemplary figures and the virtues they exemplify. 12 Cf. Robbins (2018: 175) describing exemplars as ‘single values expressed in relatively fully realized form’. 13 Valerius Maximus (3.2.19), text and translation from Shackleton Bailey (2000). 14 Late republican and early imperial references to such an ancient law include Cicero Republic 4.6, Dionysius of Halicarnassus 2.25.6 and Pliny the Elder, Natural Histories 14.89–90. 15 For the wider context of this law, see Lommel (2013: 172). 16 On the suppleness of the apparently conservative mos maiorum, see Bettini (2000), Barchiesi (2009), Arena (2015). Cf. Langlands (2018: 140–65) on the similar suppleness of exempla. 17 For situational sensitivity and the parallels between Roman exemplary ethics and Aristotelian virtue ethics, see Langlands (2018: 112–27, 337–8). 18 Cf. the discussion by Davis (Chapter 1) of the ‘mostly rhetorical’ substantive place of Vedic commands in later Hindu law, albeit with a strong commitment to upholding the ethical standards of an idealised past. 19 In addition, for some similarities between Chinese Confucian exemplars and Roman exempla, see Langlands (2018: 75–81). 20 Cf. Humphrey (1996: 37): ‘it is the disciple, by actively paying attention, who provides the agency that transforms the words/act from something merely having happened to something that is an exemplar.’ 21 Humphrey (1996: 39). An exemplum requires ‘pondering’ (Humphrey 1996: 42; Robbins 2018: 188). 22 On this, see Morgan (2007: 179–82) and Langlands (2018: 112–27). 23 ‘Unruly examples’ is the title of Gelley (1995), a well-known edited volume on the rhetoric of exemplarity. On rule-breaking in Roman exempla, see Langlands (2018: 74–5, 79–81, 120). 24 The period of the late Republic and early empire (roughly mid-second century bce

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to first century ce) was one of ‘creativity in the production of Roman ­criminal law’ (Bryen 2014: 359). 25 Sources of law in the late Republic were equity, custom, decided cases, legislation, resolutions of the senate, edicts of magistrates, decisions of the jurists, according to Cicero, Topica 5.28; cf. Robinson (1997: 25–6). 26 On Roman belief in the natural love of parents towards their children, see Eyben (1991: 116–17), citing among other sources Cicero, De oratore. 2.168, Letters to Atticus 7.2.4, De finibus 3.62, 65, De officiis 1.11, Letters to Friends 12.16.1; Plutarch, De amore prolis; Virgil, Aeneid 1.643–4. 27 Ironic, given the actual prevalence of paternal violence against women in the world today. 28 Recent major works on Roman exempla are Roller (2018) and Langlands (2018). 29 Ancient sources include Cicero, Sulla 32, De finibus 1.23; Sallust, Cataline 52.30–1; Virgil, Aeneid 6.824–5; Livy 8.8; Dionysus of Halicarnassus 8.79.2. 30 On ‘sites of exemplarity’ as inherently controversial, see Langlands (2018: 109, 201–5). 31 Langlands (2008, 2018: 116–17, 261, 291–8). See Valerius Maximus 9.3.5, describing Torquatus’s triumph as diminished by the anger of his son’s peers. 32 For discussions of what the legal reality might have been, see Gaughan (2010: chapter 1) and Watson (1979). Horatius was accused not of the crime of homicide, but of perduellio (treason), which became timely in 63 bce. 33 Sources include Cicero, De inventione 2.78–9; Livy 1.26.2–14; Valerius Maximus 8.1.abs.1; 6.3.6. According to Ari Z. Bryen, one of the things that characterised the burst of creativity in law-making in the late Republic was the need to recognise new categories of punishable offences that caused harm to the wider community (such as forgery, electoral corruption, political violence) and so could not be accommodated by private law (Bryen 2014: 359–60). The interest in this story might be reflective of this trend. 34 See Langlands (2008: 167–8) for a brief discussion of how Valerius Maximus explores the ethical controversies at the heart of this exemplum here. 35 Elsewhere in his handbook Quintilian uses the case as an example where a whole case can be summarised in one sentence, ‘Horatius killed his sister’ (4.2.7), and as an instance of making a counter-accusation as a means of defence (7.4.8). 36 This elaborate and literary version of the story has attracted two particularly detailed analyses from scholars, those of Solodow (1979) and Feldherr (1998: 132–44), each of which explores different aspects of the moral complexity found in Livy’s text. Konstan (1986: 211–12) also analyses this story in terms of the wider tensions ‘between lineal and conjugal loyalties’ in Livy book 1. 37 ‘When at last Horatius kills the Curiatii, he is both benefiting his patria and avenging his brothers; there is no distinction between what he owes the state and what he owes his family’ (Feldherr 1998: 132). 38 Translation adapted from Livy (2002). 39 Cf. Solodow’s (1979) analysis of how carefully Livy structures his text in order

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to bring out the ethical complexity of Horatius’s case and how he further communicates this complexity through the repetition of key vocabulary, ferox (‘fierce’) being just one instance. 40 The definition of the Latin iure is hard to pin down – it might mean ‘according to the letter of the law’ or it might mean ‘justly, according to moral criteria’. The story itself raises and dramatises this very tension between law and morality. Cf.  Kantor (2012: 76n59) on the fluid definition of ius in ancient Rome, with reference to Gaius, Institutes 1.2; Cicero, Topica 28, and the Rhetoric Addressed to Herennius 2.16.

References Arena, Valentina, 2015. ‘Informal norms, values, and social control in the Roman participatory context’, in Dean Hammer (ed.), A Companion to Greek Democracy and the Roman Republic. Oxford: Wiley-Blackwell, 217–38. Barchiesi, Alessandro, 2009. ‘Exemplarity: Between practice and text’, in Yanick Maes, Jan Papy and Wim Verbaal (eds), Latinitas Perennis, Volume II: Appropriation and Latin Literature. Leiden: Brill, 41–62. Bettini, Maurizio, 2000. ‘Mos, mores, e mos maiorum. L’invenzione dei “buoni costumi” nelle cultura romana’, in Le Orecchi di Hermes: Studi di antropologia e letterature classiche. Torino: Einaudi, 241–92. Brisson, Luc, 2002. Sexual Ambivalence: Androgyny and Hermaphroditism in Graeco-Roman Antiquity, trans. Janet Lloyd. Berkeley and Los Angeles CA: University of California Press. Bryen, Ari Z., 2014. ‘Law in many pieces’. Classical Philology 109: 346–65. Eyben, Emiel, 1991. ‘Fathers and sons’, in B. Rawson (ed.), Marriage, Divorce and Children in Ancient Rome. Oxford: Oxford University Press, 114–43. Feldherr, Andrew, 1998. Spectacle and Society in Livy’s History. Berkeley CA: University of California Press. Gaughan, Judy E., 2010. Murder Was Not a Crime: Homicide and Power in the Late Republic. Austin TX: University of Texas Press. Gelley, Alexander, 1995. Unruly Examples: On the Rhetoric of Exemplarity. Stanford CA: Stanford University Press. Højer, Lars and Andreas Bandak (eds), 2015. The Power of Example: Anthropological Explorations in Persuasion, Evocation, and Imitation. Special Issue, Journal of the Royal Anthropological Institute 21: S1. Humphrey, Caroline, 1996. ‘Exemplars and rules: Aspects of the discourse of moralities in Mongolia’, in Signe Howell (ed.), The Ethnography of Moralities. London: Routledge, 25–47. Hursthouse, Rosalind, 1999. On Virtue Ethics. Oxford: Oxford University Press. Kantor, Georgy, 2012. ‘Ideas of law in Hellenistic and Roman legal practice’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History. Oxford: Oxford University Press, 55–83. Konstan, David, 1986. ‘Narrative and ideology in Livy: Book I’. Classical Antiquity 5: 198–216. Langlands, Rebecca, 2008. ‘“Reading for the moral” in Valerius Maximus: The

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case of Severitas’. Proceedings of the Cambridge Philological Society/Cambridge Classical Journal 54: 160–87. Langlands, Rebecca, 2015. ‘Roman exemplarity: Mediating between general and particular’, in Michele Lowrie and Susanne Lüdemann (eds), Exemplarity and Singularity: Thinking through Particulars in Literature, Philosophy, and Law. London: Routledge, 68–80. Langlands, Rebecca, 2018. Exemplary Ethics in Ancient Rome. Cambridge: Cambridge University Press. Litchfield, H. W., 1914. ‘National exempla virtutis in Roman literature’. Harvard Studies in Classical Philology 25: 1–71. Livy, 2002. The Early History of Rome I–V, trans. Aubrey de Selincourt. Revised edition. London: Penguin Classics. Lommel, Korneel van, 2013. ‘The recognition of Roman soldiers’ mental impairment’. Acta Classica 56: 155–84. Morgan, Teresa, 2007. Popular Morality in Ancient Rome. Cambridge: Cambridge University Press. Riccobono, Salvatore (ed.), 1941. Fontes Iuris Romani Antejustiniani 1: Leges. Second edition. Firenze: Barbèra. Robbins, Joel, 2018. ‘Where in the world are values: Exemplarity, morality, and social process’, in James Laidlaw, Barbara Bodenhorn and Martin Holbraad (eds), Recovering the Human Subject: Freedom, Creativity and Decision. Cambridge: Cambridge University Press, 174–91. Robinson, Olivia F., 1995. The Criminal Law of Ancient Rome. Baltimore MD: Johns Hopkins University Press. Robinson, Olivia F., 1997. The Sources of Roman Law. London: Routledge. Roller, Matthew B., 2018. Models from the Past in Roman Culture: A World of Exempla. Cambridge: Cambridge University Press. Rüpke, Jörg, 1992. ‘You shall not kill: Hierarchies of norms in ancient Rome’. Numen 39: 58–79. Shackleton Bailey, D. R., 2000 (ed. and trans.). Valerius Maximus: Memorable Doings and Sayings, vols 1 and 2. Loeb Classical Library 492. Cambridge MA: Harvard University Press. Solodow, Joseph, 1979. ‘Livy and the story of Horatius 1.24–26’. Transactions of the American Philological Association 109: 251–68. Watson, Alan, 1979. ‘The death of Horatia’. The Classical Quarterly 21: 436–47. Zagzebski, Linda, 2017. Exemplarist Moral Theory. Oxford: Oxford University Press.

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‘For the love of God’? The First Commandment and sacramental confession in early modern Catholic Europe Nicole Reinhardt Before Judge Roy Moore lost the Senate special election in Alabama following allegations of sexual misconduct in 2017, he had been a leading spokesman of the evangelical ‘Hang Ten’ movement. Based on the claim that the Ten Commandments are the universally valid essence of law and therefore conducive to upholding public order, its members campaign for their posting in all US public buildings (Davis 2002). The evangelicals’ request not only violates the duty of religious neutrality of the state according to the US constitution; it also runs counter to the ancient – undeniably often blurry – Christian differentiation of sin and crime (see Schilling 1987). It is both oblivious of a history of Christianity characterised by a plurality of legal fora that distinguishes between the external forum and the forum of conscience (see the Introduction; further, Prodi 2000), and ignorant about the historically contingent place of the Ten Commandments – or Decalogue – within Christianity. Indeed, since the time of the church fathers the seven deadly sins, not the Decalogue, had been the most important organising principle in Christian ethics (Casagrande and Vecchio 2000). Only around 1300 did the Decalogue become the more dominant point of reference, as John Bossy (1988) has demonstrated in a seminal essay. The Decalogue’s hegemonic position was eventually consolidated in the sixteenth century with the European Reformation (see now Willis 2017), when the question of proper obedience to God’s Law developed into a contested point between competing Christian denominations. As Protestant soteriology denied that humans could save themselves through good works or sacraments, reformed churches promoted the correspondence between the Decalogue and external law. Conversely, the Catholic Church, emphasising the distinction between the spheres of law (body) and grace (soul), through the ‘power of the keys’ claimed exclusive jurisdiction over the moral sphere, externally in ecclesiastical tribunals and internally through the sacrament of penance in confession (see Monter 2017 and the Introduction). Since confession was the central institution for the examination of conscience, the shift from the seven deadly sins to the Decalogue was

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consequential, as it changed the crucial criteria for evaluation of moral action from a web of interconnected virtues and vices to a crisp legally framed code. The seven deadly sins – pride, avarice, lust, envy, gluttony, wrath and sloth – focused on dispositions and behaviour detrimental to the social tissue of the community or to the self (Newhauser 2012), which, by showing how not to be, pushed to rid oneself of such dispositions and develop virtuous habits that helped to lead a good, socially adjusted life. The logic of the Decalogue was fundamentally different: threatening divine sanction, it enumerated and prohibited not comprehensive dispositions or ways of being, but specific acts. Crucially, the first three commandments1 centred on the individual’s relationship to God, a concern conspicuously absent from the seven deadly sins. The consequence was a transformation in the understandings of sin, with offences against God and religious obedience taking precedence over sin defined in social terms as a rupture of the Christian community. The shift was accelerated by the Reformation, which historians consider to be an important element in the modernisation process, classically based on the triad of individualisation (Bossy 1970), social disciplining, either in Weberian or Foucauldian perspective (see Breuer 1986), and rationalisation through the rise of ‘legalism’ in church and state more widely (see Tierney 1982; Hartmann and Pennington 2008). The change in ‘moral arithmetic’ (Bossy 1988) affected all individuals in Western Christianity since, as discussed in Chapter 3, the Fourth Lateran Council in 1215 had declared penance a sacrament and imposed individual confession to the parish priest at least once a year, thus putting into legislation a long-term move away from understanding penance primarily as a community ritual (Bossy 1975; Firey 2008). This chapter will investigate some of Bossy’s central questions further by focusing on sacramental confession, which during the Counter-Reformation developed into the most important instrument of pastoral care for ensuring religious orthodoxy. As confession was intensified and as priests tried to apply the new moral code, they not only needed to engage discursively with their penitents’ narration of their moral dilemmas, but also to navigate the tension between prescriptive norms and real-life experience (Myers 1996; Rusconi 2002; De Boer 2011). Some of the challenges that ensued can still be captured through the volumes of moral theology for theologians and the practical confessional manuals for penitents and priests (Tentler 1977), which represent a continuation and development of the works of medieval casuistry described by Emily Corran in Chapter 3. Both genres are used here to investigate how the shift from vices to Decalogue affected sacramental confession in order to probe Bossy’s thesis that the new ­rule-based ­framework directed attention away from a concern with ‘objective social relations’ and community-oriented ethics. To make this ­ manageable,

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I narrow the focus to the First Commandment (‘Thou shalt have no other gods before me’), the Decalogue’s logical anchor that emblematically embodied the awe-inspiring image of God as a lawmaker, which also cast an unprecedented spell on early modern political theology (Courtine 1999; Willis 2017: 129–31). What is at stake here is not an appreciation of the theological meaning of the First Commandment but an examination of the problematic effects of the transition towards the new legal framework in terms of practical application and communication. As the analysis shows, the priests’ growing practical experience in the examination of penitents in confession triggered a complex feedback effect. As a consequence, the imposition of legalism in the moral sphere appears more ambiguous and incomplete than the neat trajectory Bossy intimated.

The problematic Ten Commandments Law codes, in as far as they lay down explicit rules sanctioned and backed by a rule-enforcing power, are generally believed to be ‘rational’ and ‘efficient’. Yet, making sense of the Ten Commandments was often a confusing matter for theologians. Until the thirteenth century, the Ten Commandments were generally discussed not in stand-alone treatises for moral education but within biblical commentaries (Lluch Baixuli 2013; L. Smith 2014). These raised a number of questions such as the relevance of the Mosaic Law for Christians and the Decalogue’s form. The Commandments appeared in two distinct instances within the Old Testament (Exodus 20: 1–27 and Deuteronomy 5: 6–22) that were not entirely identical. Also, they were not dictated as ten short bullet points, but contained up to fourteen imperatives embedded in a more extended address by God to His people. Whichever version was adopted, a certain incoherence could not be denied. Crucially, too, their numbering was, and still is, a source of disagreement: the prohibition of the making of ‘graven images’ was considered a second commandment in Jewish tradition (which Calvinism followed on the example of Origen and Jerome), whereas Catholic (and later Lutheran) tradition, in line with Augustine, included this in the First Commandment. In order to arrive at ten distinct commandments, Roman Catholic usage held ‘thou shalt not covet they neighbour’s house’ as the Ninth Commandment and ‘thou shalt not covet they neighbour’s wife’ as the tenth. In Jewish (and Calvinist) numbering, these last two commandments were merged into one (the tenth) to keep within the perfection of the ten-point framework. In either case, the last precept(s) seemed incongruent. Unlike all the other precepts, they targeted intentions not actions. They were also somewhat redundant in as far as two other precepts already addressed the cognate sins of theft and

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adultery (Hartmann 1945; a table in Willis 2017: 30). The scriptural presentation of the Commandments was less efficient than one might expect of a law code, especially one that was divinely pronounced. This drew attention to the fact that, ultimately, convention and interpretation conferred their recognised and binding character. To grasp how ‘alien’ to ethical discussions the Decalogue still was in the thirteenth century, it is worthwhile considering how Thomas Aquinas (1225–74), arguably the most influential medieval theologian since Augustine, engaged with them. The Ten Commandments were not the structuring grid for his Summa theologiae2 (but neither were the seven deadly sins), which remained indebted to an Aristotelian understanding of virtue ethics (Sweeney 2012). Aquinas discussed the Decalogue and its difficulties twice in the Summa theologiae (prima secundae): first under the  different types of law in qq. 90–7, and again more prominently in q. 100, dedicated to its understanding as an expression of the Law of Moses (R. B. Smith 2013). Shortly before his death in 1273, Aquinas devoted a series of vernacular Lenten homilies (Aquinas 2000) specifically to the Ten Commandments. They are indicative of the growing pastoral concerns surrounding the Decalogue towards the end of the thirteenth century, when the effects of the Fourth Lateran Council in 1215 also gave rise to the new genre of summae for confessors (Goering 2008). Aquinas tackled the perplexing aspects of the precepts head-on. In Ia IIae q. 100 of the Summa he considered such questions as whether the individual precepts were suitably distinguished (a. 4), conveniently numbered (a. 5), expressed in convenient order (a. 6) and suitably formulated (a. 7). Article 4 started out with the theses that the precepts seemed unsuitable in instilling virtue (targeting actions), incoherent in character (mixing negative and positive commandments) and illogically divided (the distinction between commandments nine and ten). In his answers to the objections, Aquinas acknowledged the problematic variation in the enumeration and distinction of the Commandments, but argued that it was best and ‘most adequate’ to follow Augustine, according to whom the first three commandments referred to God, and the remaining seven to one’s neighbours. Both in the Summa and in his Lenten sermons of 1273, Aquinas explained that the Commandments expressed principles of natural law, instilled in humankind through the light of reason. As such, they needed no explicit promulgation to be obeyed. Yet, as human reason had been partly impaired by the ‘law of concupiscence’ after the Fall, God had repeated them for the ‘convenience’ of humankind in the form of divine positive law (Aquinas 2000: 65). This Decalogue should help humans on to a path of virtue and avoidance of evil: it was a starting point on the way towards justification without making truly just, as it imposed obedience through fear

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of punishment. The Mosaic Law, which ‘coerced the hand but not the heart’ (Ia IIae, q. 91, a. 5 ad 2), therefore failed in moving the will freely. Only the Gospel, Aquinas argued, through the law of love brought true freedom, disposing volition and intention in such ways as to inspire and enable truly virtuous action conducted by a free will following recta ratio. Importantly, although the Old Law did not contain a duty to love one’s neighbour, this duty had been stipulated by Christ (Matt. 22: 37–40). A correct reading and understanding of the entire Decalogue hence presupposed the virtue of charity (Ia IIae, q. 100, a. 4 ad 1). Given the perplexity surrounding the Decalogue, why did it become more prominent for Christian ethics in the late medieval period? To cut a long story short, two decisive factors can be suggested: one can be identified in the general expansion of written law, and especially canon law, following the rediscovery of Roman law (Hartmann and Pennington 2008), which fuelled a general drift towards codified rules. The second is the conceptualisation of confession as a tribunal of conscience following from its codification as a sacrament in 1215 (see also Prosperi 1996). A legally framed code corresponded better to the logic of this new understanding that came to undergird confession as a social institution. At the same time, pastorally minded theologians also believed that a clearly defined legal code would limit the ‘proliferation of sin’ caused by the sprawling, interconnected web of vices. Antonino da Firenze (1389–1459) and Jean Gerson (1363–1429) were amongst the most influential theologians to integrate the Decalogue into penitential manuals (Firenze 1483: 38v–49r; Gerson 1998). The Reformation accelerated the dominance of the Decalogue especially for Protestants (Christin 2003; Willis 2017: 1–14), but the emphasis on the Ten Commandments also increased in the Catholic world after the Tridentine Catechism (1566) made their knowledge mandatory for the moral instruction of the faithful. Yet, the new Tridentine emphasis notwithstanding, the vices lingered on in Catholic manuals of confession, together with the works of mercy, the senses or the commandments of the church, as a grid to interrogate penitents (Casagrande and Vecchio 2000: 217–20). Their advantage was twofold: they were easily memorised through acronyms such as the famous SALIGIA (superbia, acidia, luxuria, invidia, gula, ira, avaritia), which helped to organise ‘families’ of related flawed dispositions that induced sin by obstructing the correct operation of intellect and will, necessary for good judgement and prudence (Taylor 2006: 13–16, 110–13). Secondly, conceptualising moral conduct through the vices taught one how to be and not to be in order to avoid sin. Arguably, this was (and is) more conducive to shaping a comprehensive habitus applicable to the complexity of life than a legalistic code. It is debatable whether even the most rigorous adherence

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to the Decalogue automatically leads to acquiring a cogent understanding of Christian morality. That early modern theologians might have suspected the same point can be deduced from the fact that once priests swarmed out across the globe to apply the new Decalogue system ‘in the confessional’, they produced an ever-widening avalanche of explanations. These were set out in the practical manuals for penitents and priests published in the wake of the Council of Trent (1545–63), and, from 1600 onwards, in the volumes that catered for the teaching of the newly developing discipline of moral theology in universities and seminaries.

Understanding and explaining the First Commandment The confession manual that most clearly marked the paradigmatic rise of the Decalogue may well have been that by the Spanish Augustinian eremite and canon lawyer Martín de Azpilcueta (1492–1586). The significance of his manual, first published in 1552, for the development of the postTridentine genre of the confession manuals was overwhelming, as has been widely recognised (Lavenia 2003). It remained strongly indebted to Aquinas and the pre-Reformation penitential summae, and Azpilcueta systematised and updated their lessons in order to provide assistance for the confessors’ practical pastoral concerns. Compared to his medieval predecessors, Azpilcueta’s explanations of the Decalogue are of unprecedented depth and scope (Azpilcueta 1569).3 The qualitative shift was expressed in quantitative terms: the exploration of the Commandments took up 230 pages, against (in order of appearance) 40 pages for the precepts of the church, 60 pages each dedicated to the seven sacraments and the seven deadly sins, and 10 to the five works of mercy. His views on the First Commandment are of particular interest. The First Commandment encapsulates what Bossy defined as characteristic of the Decalogue’s new moral horizon: the focus on questions of obedience, the side-lining of social ethical questions and most importantly, the insistence on ‘true belief’ as the overriding concern of the confessional age (Bossy 1988: 216). At first sight, the First Commandment’s particularly neat enunciation (‘thou shalt have no other gods before me’) seemed unproblematic; its most obvious understanding was the prohibition of idolatry. Luther, for instance, considered that breaking the precept essentially consisted of idolatrous practices, invocations of God for material gain, as well as intellectual and spiritual pride (Luther 1883: 250, 252). For Azpilcueta, however, matters were a little more complicated. He insisted that the understanding of the commandment could not remain limited to the obvious prohibition of idolatry. He argued that honouring God meant knowing

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the Credo (the Creed), the Pater Noster (The Lord’s Prayer), as well as understanding and taking the Eucharist, none of which were mentioned in the Decalogue. To ensure that future confessors had a more holistic grasp of the precept’s meaning, he exposed the key parameters in an introductory chapter. His main priority was to hammer home that the duty to love God necessarily implied the duties of charity and love towards one’s neighbour (Azpilcueta 1569: cap. IX, 64). Azpilcueta noted that one had to ‘love with all the heart, soul, mind and force’, but all within human means. God did not demand the impossible. As people had to eat, sleep and do ‘other necessary things’ of all kinds, the constant love of God did not impose ‘thinking of God at every hour’, but rendering this love present through the intention of the will and exterior actions. It implied a conscious will, consent and intention to follow what God commanded, which was supported and aided by divine grace. To this end, it was helpful to increase the frequency of confession beyond the feast days, so that penitents approached the sacrament with adequate contrition, the prerequisite for a correct performance of confession and for absolution (Azpilcueta 1569: cap. XI, 65–66). Indeed, true contrition could not be achieved without this entire love of God. Throughout, Azpilcueta’s preferred authority was Aquinas, read mainly through the perspective of Cardinal Cajetan’s landmark commentary on the Summa (1517), which probably accounts for the pervading Aristotelian flavour. This is true also for the following three sub-chapters in which he examined how the distinct but interconnected mental dispositions of loving, believing and honouring God could be understood in terms of practice. The order of the sub-chapters articulated Azpilcueta’s sense of priority. The principle of love of God and the shaping of habitus were pre-eminent, whereas the notion of obedience emerged as more muted. Interestingly, too, Azpilcueta did not propose an abstract definition of faith. He approached the legalistic notion of offences against faith mainly through an outline of what was opposed to creating virtuous habits. In the first sub-chapter discussing ‘how to love God well’ (Azpilcueta 1569: cap. XI, 71–2), Azpilcueta started out with the most obvious sin, that of hating and despising God. This was the most important and fundamental sin because it separated man from God ‘in a way no other sin does’. Such a disposition was not necessarily a deliberate act, but the consequence of a wider, unregulated, or badly regulated, direction of love towards beings or things other than God. In the first place, Azpilcueta mentioned exaggerated self-love, or loving one’s spouse, family and political superiors, or any created thing more than God or in a fashion that diminished the love of God, so as to induce sin by desiring what was opposed to the precepts. The final and most extensive sub-chapter addressed different forms of incorrect worship (Azpilcueta 1569: cap. XI, 75–84). Here Azpilcueta

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covered a wide spectrum. On the one hand, there was ‘wrong worship’, like Jewish or Muslim rituals; on the other, there was deficient worship. And finally, there were acts of ‘superstition’, that is, superfluous worship of the divine as well as wrong belief in, or acts of, black and white magic. Here, he mentioned a sample of magical practices like charms, treasure hunting, divination or the interpretation of dreams, consulting with ‘gypsies’, necromancy and the worship of creatures other than God. This could include the interior or exterior adoration of idols, the sun, moon or the Devil, but Azpilcueta did not delve into a demonological definition of witchcraft, which in general had no traction amongst Iberian theologians (Levack 2006: 204–52). What mattered was the act of superstition, that is, incorrect worship as an offence against the First Commandment, but not the fear or belief on the part of the theologian that such worship might be in any way effective. Conversely, Azpilcueta’s stance implied that such beliefs could be and needed to be treated in confession, not on the scaffold (Lavenia 2013: 178–80). At the other end of the spectrum, the category of deficient worship is equally intriguing: it targeted statements that considered interior worship alone as sufficient, denying that faith in God required any exterior ritual expression. Clearly, the downplaying of exterior worship could be evidence of heresy, as discussed under wrong belief, and mirror a variety of doctrinal challenges from Nicodemism to Lutheranism. But it seems likely that Spanish quietist devotional groups, like the so-called Alumbrados (Pastore 2004), were Azpilcueta’s main concern. In general, the multicultural reality of Mediterranean Europe, not least of the Iberian Peninsula, seems to have challenged the theologian’s quest to arrive at a clear understanding and religious categorisation of people’s often ambiguous conduct. A particularly puzzling question was the extent to which exterior cultural attributes like clothing reflected interior dispositions that allowed the conclusion to be drawn that the person practised wrong worship. Azpilcueta condemned wilful disguising with the intention of deceit. As dress according ‘to one’s law’ (on this notion, see Nongbri 2013: 76) was generally considered an expression of faith, he argued that adopting the costume or any other sign of the infidels corresponded to an exterior declaration of (wrong) faith and therefore had to be considered an act of denial of faith in Christ. It was sinful, he stated, even when done out of fear (Azpilcueta 1569: cap. XI, 79). Azpilcueta, the most famous contender of amphibology and mental reservation (casuistical permissions for deception) (Zagorin 1990: 165–70), curiously did not accord costume the same communicative and semiotic ambiguity as language. Azpilcueta’s exploration of the First Commandment retained a practical flair that reflected the Iberian and Italian socio-religious realities in which

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he lived and worked. His definition of the essential interconnected and progressive steps of loving, believing and honouring God furthermore relied on an idea of creation of habitus and the Aristotelian ideal of the virtuous human being whose actions and dispositions are governed by mediocritas (the golden mean). His manual thus approached the Commandments with a strong virtue-ethical anchor and not in strictly legalistic terms.

Teaching the First Commandment Azpilcueta remained an important source for the theoretical volumes of moral theology that developed in the late sixteenth and seventeenth centuries. This new genre and discipline was marked by a massive Jesuit production, which corresponded to the order’s needs as well as its strong position in this field through its teaching institutions. Jesuit volumes of moral theology replaced the commentary of Aquinas’s Summa either by proposing the Decalogue as the structuring system (Sánchez [1614] 1637; Fagundez 1640; Tamburini [1655] 1659), or by according the Decalogue the central position within a broader framework defining moral action, law and conscience (Azor 1600; Toledo 1600). Although the move to the Decalogue is generally regarded as a modernising step, twenty-first-century scholars often judge the theoretical efforts that accompanied this move negatively. Ulrich Leinsle writes of a ‘degeneration’ into sterile ‘Decalogue morality’ and into casuistry (2010: 289),4 while Michael Keenan considers the manuals’ fixation on the confessional as the reason for a minimalistic and ultimately disappointing interpretation of the Decalogue (2013: 225). But this seems to misunderstand the raison d’être that brought the manuals about in the first place, which was to train theologians to examine sin in practice on the basis of a solid and cogent normative system. A comprehensive analysis of the bulky volumes produced for the teaching of moral theology being beyond the scope of this chapter, the focus here will be on the logic that underpins their approach to the First Commandment and on the relationship between duties towards God and social duties. Unsurprisingly, perhaps, early modern moral theologians uniformly considered it insufficient to discuss the First Commandment simply as a prohibition of idolatry. They therefore introduced the theological virtues of Faith, Hope and Charity as the structuring grid under the heading of the commandment, or as a prelude or epilogue to its discussion. The instruction for priests by Cardinal Francisco de Toledo (1534–96), the foremost papal theologian and the first Jesuit cardinal, illustrates this well. The volume was published posthumously in 1600, and the discussion of the First Commandment falls into a middle chapter of book four of a total of seven

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‘books’. As is typical for Toledo, who was also an excellent commentator on Aristotle and Aquinas, he introduced each chapter with a crystal-clear definition of what was at stake, starting out with a definition of sins in relation to the Decalogue. Like a lawyer, he explained that acts in transgression of the Commandments were mortal sins, if they were severe and committed with deliberation and volition by a person in full command of their reason. Circumstances were decisive in evaluating the degree of sinfulness, and Toledo warned that confessional examination needed to take this into account. On the other hand, Toledo also stated that it was sufficient for believers to hold the Commandments simply, without necessarily doing so in view of the ultimate and higher end of charity. For example, it was sufficient not to kill, even if charitable action was not the prime intent (Toledo 1600: Lib. IV, cap. 1, 203). This was a position of indulgence by which merit was not linked to moral perfection or supererogatory acts,5 whilst guilt could always be reduced depending on circumstances and intentions. Toledo’s explanation of what it meant to ‘worship one God’ divided the act into three steps. At the beginning was the understanding of the superiority and excellence of what was worshipped; from here followed the will to worship, leading to the final exterior act of worship. To accomplish the full meaning of the precept all three steps were needed and they had to be joined. The first exterior expression of the fulfilment of the commandment was the sacrifice of Holy Mass. It was simultaneously the first act of faith, which, as he explained, was not ‘contained in the precept, but presupposed in it’ (Toledo 1600: Lib. IV, cap. 12, 231). The remaining chapters in the book then examined sins against the precept, such as blasphemy, superstition, divination and magic. Other offences were discussed in the preceding chapters dedicated to the theological virtues of Faith (heresy, apostasy, infidelity), Hope (despair, temerity), and Charity (hatred of God and of one’s neighbour), which together laid the foundation for the examination of the first precept and the Decalogue more widely (Toledo 1600: Lib. IV, cap. 1, 202). Juan Azor (1536–1603), the highly influential teacher at the Roman College of the Society of Jesus, adopted a slightly different approach. In the first volume of his Institutiones morales, also published in 1600, the discussion of faith was the starting point for the understanding of the First Commandment (book VIII). The argument began in logical order with the sources that provided the content of faith such as the sacred texts, the writings of the church fathers, the apostolic traditions and the decrees of church councils. As Azor explained, faith had to be ‘known, believed and professed’ (1600: Lib. VIII, cap. vii, 942). In consequence, his discussion of the sins against the First Commandment concentrated on heresy, schism and apostasy, as well as their punishment. The latter was the occasion for

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lengthy expositions on the judicial apparatus of the inquisition and the power of inquisitors and bishops in prosecuting heresy, which give his pages the flavour of a manual of church law. The chapter has to be read alongside not a prologue, as in Toledo, but an epilogue in the form of book IX, which explored the theological virtues underpinning the Decalogue: Hope, Charity and ‘pietas & religio in Deum’, which contained the knowledge of correct worship following from faith. Azor’s division of faith into content (in book VIII) and knowledge of cultic action (book IX) defined as ‘religion’ echoed older Augustinian and more recent humanist definitions of the term (Bossy 1982: 6; Nongbri 2013: 26–34). It aspired to reclaim the notion of ‘true religion’ for Catholicism against its appropriation by Protestant controversialists (Azor 1600: Lib. IX, cap. v, 1067). Azor’s exploration of the sins against the theological virtue of ‘religion’ covered superstition, divination, sacrilege and blasphemy, but his main target was Calvinism. In a series of chapters on the correct use of images and saints, Azor denounced Calvin’s positions on liturgy and Calvinist iconoclasm (Azor 1600: Lib. IX, 1071–93). Similarly, the discussion of charity was the occasion for an attack against the excessive Augustinianism of Luther and Calvin, which, according to Azor, undermined the trust in God’s charity by denying that humans were truly able to fulfil the Commandments without sinning (Azor 1600: Lib. IX cap. iii, 1066). In both cases, it is evident that the problem of Lutheranism and Calvinism was not limited to their perceived doctrinal ‘heresy’. The problem was more profound: the different variants of Protestantism undermined the theological virtues as pillars of the Decalogue, which is why they had to be regarded as the antithesis of God’s commandments on all levels. A third approach to the problem can be discerned in the work of fellow Jesuit Thomas Sánchez (1550–1610), who used the theological virtues of Faith, Hope and Charity as the unified structural axes to examine the sins against the First Commandment in one place. This led to a different mapping of sins on to the theological virtues: again, the discussion of heresy and its punishment took up most space under the first heading of Faith. Hope was a minor point, under which he tackled the sins of despair, temerity and the tempting of God (Sánchez [1614] 1637: cap. 33–4). Interestingly, however, he examined schism, superstition, divination and magic as sins against Charity. This followed from the understanding that the love of God obliged believers not only to maintain the community of the church, expressing charitable communication with God and one’s neighbour, but also to translate the love of God into adequate acts of reasonable religious practice and worship (Sánchez [1614] 1637: cap. 35–42). Sánchez’s mapping of schism under Charity is a reminder that the Decalogue as a moral system did not entirely obliterate the importance of social ethical norms, even if understood

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through the duty towards God via the theological virtues. In fact Toledo, too, had counted schism as a sin opposed to Charity (Toledo 1600: Lib. IV, cap. x, 225), the reason being that Charity as a presupposition of the First Commandment demanded the holding of peace in the community and the practice of neighbourly love understood in broad terms. It included m ­ aterial help, the duty to pardon one’s enemies, as well as spiritual assistance by stimulating, supporting and correcting others in their religious practice to help them achieve beatitude. The keeping of peace in the community was of highest value in this respect, and Toledo’s reasoning suggested that the sacrament of penance, by establishing the conditions of penance, satisfaction and pardon, held an eminent role here (see Bossy 2004). The different structuring formulae across the manuals hence implicitly acknowledged the shortcoming of the ‘raw’ First Commandment – expressed with strikingly elliptic brevity in Latin (‘unum cole Deum’) – as well as the necessity to map the understanding of the relevant sins with the help of the theological virtues.

Assessing faith and examining people’s beliefs Whatever the logical structure the theologians applied, there can be no doubt that the assessment of ‘faith’ was the prime concern when dealing with the First Commandment. If faith required knowledge of what was to be believed as well as of its fitting expression in worship, and if it had to  be confessed in the twofold meaning of the term, that is, through the sacrament of penance and by upholding the faith, what were the respective normative standards? How did moral theologians define what it meant to ‘believe’ and how were confessors meant to investigate and evaluate this? How much were people expected to know, and what practices (apart from abstaining from obvious superstition) were positively expected? These were complex questions (see also Shagan 2017). One could only judge acts, not thoughts buried in the minds of people. Faith was mostly implicit and only partly explicit. On the other hand, not every error, nor every sinful action, necessarily implied a deliberate rejection of faith, neither implicitly nor explicitly, as Bartolomé de Medina remarked in his handbook for confessors (1591: 67r–75v). Faith, as Toledo had stated, was the ‘assent to all things revealed by the Holy Spirit to the Church as being by the Holy Spirit’ (Toledo 1600: Lib. IV, cap. I, 202). Therefore, the matter and content of faith was uncovered in the canonical sacred scriptures, the traditions of the church and the decrees of councils and popes. This was of course a potentially enormous quantity of material to be known, whose understanding was beyond the grasp

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of most mortals. What mattered was implicit consent to the principles of faith as defined by the church. Although it would be good, Toledo added, if all were able explicitly to state the content of the sacred scriptures, or of the decrees of the councils, this was far more than even erudite people could handle. The aim, therefore, was a ‘medium faith’ (media fide), partly implicit, partly explicit. One should believe implicitly in all the things professed by the church and should be able to believe and profess explicitly the articles of faith, even if one was unable to penetrate their mystery in all detail. Toledo accordingly urged confessors to ‘take the greatest care’ to ensure that their flock knew that God was one in essence in a trinity of personae of Father, Son and Holy Spirit; that there was one creator, saviour and ‘glorificator’; that Jesus Christ had been incarnated, been born, that he had died, been resurrected, gone to heaven and that he would return on the Day of Judgement. This amounted to a minimum version of the Creed, and Toledo insisted that nobody – ‘not even peasants’ – could plead ignorance to excuse lack of knowledge thereof (Toledo 1600: Lib. IV, cap. ii, 206). Toledo did not further specify the degrees of knowledge in his succinct and rigorous statement. Azor, however, went into considerably more detail, suggesting some perplexity in the face of the relatively limited knowledge and even more limited understanding encountered on the ground (Azor 1600: Lib. VIII, cap. vi–viii). Was it sufficient, he asked, for an unskilled and rough (‘rudis’) private person just to believe implicitly what the ‘Holy Mother Church’ professed, without being able explicitly to state this? Not really, he concluded (Azor 1600: Lib. VIII, cap. vi, 940); and in three extensive chapters he offered a host of questions on what could remain implicit, what had to be rendered explicitly and how this was to be examined in confession. He, too, retained the articles of faith as elemental, to which he added the immortality of the soul and knowledge of original sin, because both were so important to understanding the sacraments of baptism, penance and Eucharist. However, he did not think that laypeople should be asked to explain these in detail; simple assent was sufficient. Moreover, people who were able explicitly to state the articles of faith should be understood to hold the rest implicitly. Only the ‘doctores’ should be expected to explain them explicitly. The same applied to the Decalogue: although most people could not recite the precepts, he argued, by law of nature they knew them in their hearts; explicit knowledge would therefore increase over time thanks to education and to confessors engaging with their penitents. One cannot but wonder whether the reluctance to probe penitents more deeply was motivated by the fear of inducing unintentional heretical or unorthodox statements with potentially fatal consequences. It seemed better to contain the problem and soldier on. Ignorance, nonetheless, should not be simply accepted but had to be countered, and deliberate ignorance was

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certainly considered a sin. As Azor explained, to improve the situation it was important that confessors examined their penitents’ knowledge of the articles of faith at the beginning of confession. If they were found to be lacking in knowledge, they should be sent away to learn and then come back. In cases where they stubbornly failed to do so, they should be refused the sacrament until they complied (Azor 1600: Lib. VIII, cap. viii, 947). But this was very much an extreme option. Education and persuasion were preferable but slow to show effects and so (Jesuit) theologians continued to worry long into the seventeenth century about excessive rigour being counterproductive, especially when it came to children (Fagundez 1640: Lib. I, cap. ii, 8–9; Tamburini [1655] 1659: Lib. II, cap. I, 142–3; see also Chapter 9). The casuistic ‘Decalogue morality’ deplored by Leinsle and the manuals’ ‘disappointing’ obsession with sin bemoaned by Keenan quite obviously were not due to an intellectual incapacity of the theologians, but rather the consequence of the challenges they encountered when faced with their penitents and how to react to these, in as far as judging orthodoxy was not only difficult but also perilous. The theologians hesitated to make explicit knowledge of the Decalogue the objective marker of true belief and faith. If early modern Catholicism appeared to be more obsessed with orthopraxy than with orthodoxy, as Simon Ditchfield has rightly noted (2017: 262), this was not for want of theologians trying to instil the latter but, as the volumes of moral theology show, because of the problems faced in doing so. Understanding what people believed exactly was complicated, and although theologians repeated over and again that even doubting the faith was sinful, proving so and dealing with it in confession remained a challenge. Deciding that a penitent doubted sinfully – that is, deliberately and with the aim of rejecting faith with full knowledge, intention and purpose – was exceedingly difficult, unless they did so explicitly in terms that could be objectively proven. But at that point, it was more likely to be a matter for the inquisition. Interestingly, as the seventeenth century proceeded and society changed, theologians rediscovered excessive ‘self-love’ as a new and worrying peril to faith in the context of their discussions on the First Commandment. A case in point is the manual (1659) for penitents by the otherwise unknown Carmelite Christoph Leutbrewer, which relied on a sophisticated ­questionnaire that in many ways resembles contemporary survey techniques (Reinhardt 2015: 422–4). The manual was supposed to be used by penitents to prepare for a general confession. To this end, it presented them with lists  of questions for each precept of the Decalogue. Under the heading ‘Thou shalt worship and love one God perfectly’, readers found over a hundred short questions to examine themselves, offering the individual a

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variety of ways to identify, narrate and (ac)count (for) their sins. They were invited to consider whether they had loved God with all my heart and soul, and all my force; not directed my actions towards him; not considered that God rescued me from the abyss and the void so that I serve and praise him; tried to please some prince or overlord without concerning myself whether God was offended by this; spent more effort in pleasing the world than God; neglected the good works out of worldly considerations; … exceeded my condition or means in clothes, banquets, life-style and other similar vanities; been voluntarily distracted; been presumptuous and arrogant; been irreverent in Church, laughed, chatted etc [sic] during Mass, sermon and Eucharist; … attributed to myself the gifts of God; … been hypocritical, wanting to appear what I am not; … given alms more out of vanity than out of charity; … been vainglorious regarding my spirit, kin and family, my wealth, beauty, eloquence and habits; invented or taught new fashions; … despised my neighbour; insulted him; refused to talk to him; … doubted the articles of the Faith; … sustained heretical proposals … (Leutbrewer 1659: ch. On First Commandment, s.p.)

And so it went on. The questions in their random disorder in part undoubtedly covered what one expected to find under the heading of the First Commandment, namely, superstition, heresy and correct worship; but a considerable amount of space was given to social conduct more broadly, as well as to self-love in its different manifestations. Tellingly, Leutbrewer mixed queries on orthodoxy and orthopraxy with investigations that regarded the vices, in particular avarice, pride, luxury, greed, sloth and envy. In addition, more recent social ills like modishness and ambition, libertinage, religious indifference and even suicidal depression came into focus to complement the traditional set of the seven vices.

Conclusion As has been shown, Catholic confessional culture, shaped in and through the practice of sacramental confession throughout the Counter-Reformation, never obliterated the virtues when trying to make sense of the First Commandment. Contrary to Protestant theologians who understood the first precept mainly as a prohibition of idolatry, Catholic theologians unanimously rejected this view as insufficient and misleading. They argued that the First Commandment made no sense without charity. Loving God could not be dissociated from loving one’s neighbour, which in turn imposed a duty to uphold the church as a community of believers. From this essentially social interpretation, it followed that ‘true belief’ could not be reduced to individualised correct interior knowledge; it required ­practical

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and ­necessarily interactive expression in worship and neighbourly love. Therefore heresy and schism were not understood merely as individual intellectual sins against God, but as social sins that harmed one’s neighbour by disrupting the Christian community. Yet the move to the Decalogue, which relied on the idea of a sanctioning and law-giving God, forced Catholic theologians to address questions of correct belief in confession, and their attention was undoubtedly heightened by the acute crisis of the Reformation. By the same token, however, their investigations raised intricate questions that are still at the heart of contemporary debates on the definition of religion. These allow us to follow how theologians, through the encounter with their penitents, became increasingly aware of the tensions between implicit and explicit belief, and between interior and exterior manifestations of faith. In this sense, the handbooks reveal how the notion of religion itself was created and refined over time. They give an insight into the uncertainties and problems that arise from redefining, applying and implementing an ethical framework, revealing the debates that are part of the process of normalisation. Therefore, I would argue, it is more productive to read the handbooks as intermediate stages in a process of normative change than as evidence of a uniform normative consensus or ready-made, reified understanding of ‘religion’. The observed emphasis on practice, or the skating over of unresolved questions of how much the penitents really knew, also stemmed from the continued Aristotelian understanding that practice ultimately was helpful in creating good habitus and virtue. Orthopraxy could create a charitable habitus, which eventually achieved the realisation of charity as a virtue necessary to fulfil the First Commandment. For this reason, too, even within the new Decalogue framework, questions of virtue ethics did not disappear from the horizon. In a comment that reveals the different possible implications of such legalism, Kathleen Crowther has argued that for Protestants sin consisted mainly of ‘disobeying God’s commands’ or ‘doing what God had told one not to do’, whereas Catholics understood sin mainly as a ‘failure to be virtuous’, that is, as ‘not doing what God had commanded one to do’ (2016: 488). Ultimately, these different emphases are tied to the divergent anthropologies and assumptions about the free will that inform Catholic and Protestant soteriology (Willis 2017: 35, 49). Therefore, and because Catholic theologians assumed that Christians could obey God’s law, the increased focus on the Decalogue could not abandon the question of how one became virtuous so as to ‘love God’ as the Decalogue commanded. With excessive ‘self-love’ emerging as a new preoccupation in the seventeenth century, the understanding of vices came to deepen further and to capture how people perceived themselves and their place in the world as well as vis-à-vis God. Leutbrewer’s manual was original and an outlier in a

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landscape dominated by more banal works that mechanically quizzed penitents on superstition or blasphemy. Yet it seems to react to the problems of privileging the law-based ethics and the focus on church law that had led to allegedly sterile ‘Decalogue morality’. The examination of conscience along the precepts of the Decalogue, whilst advantageous with a view to policing religious obedience, created a new set of problems in terms of applicability and of reframing ethical horizons more widely. If a Christian understanding of the First Commandment was supposed to instil the love of God, a dose of virtue ethics was needed that allowed a more holistic tackling of patterns of thought and the sense of self in relation to others and to a changing social world. Such questions returned with a vengeance after 1945 when the dialectics of modernity became blatantly apparent and the legalistic approach to ethics was criticised as excessive and inadequate (Häring 1957; Morrow 2016: chapter 3). The strong return of the pendulum after the Second Vatican Council (1962–65) in favour of virtue ethics amongst Catholic philosophers like Alasdair MacIntyre (discussed in the Introduction) sits in this context (Kühnlein and Lutz-Bachmann 2015). Indeed, the perceived ‘vanishing’ of the Decalogue from the examination of conscience in the wake of Vatican II (O’Callaghan 1975) as part of the ‘aggiornamento’ of the church might have been precisely what alerted Bossy to its contingent place in the history of moral reasoning. Despite their totemic status as an archetype of a moral code, then, the theological history of the Ten Commandments shows rather how a few rules can lead to many others. As it turns out, discussions of the First Commandment gained meaning and nuance from a dialogue between the rule-based morality of the Decalogue and the virtue ethics inherent in the medieval Christian tradition.

Acknowledgements Research for this chapter has benefited from visiting fellowships at the Kolleg für Humanwissenschaften Bad Homburg (2017) and the Center for Advanced Studies LMU Munich (2018).

Notes 1 The numbering of the Decalogue varies (see below); I follow the Roman Catholic tradition. 2 References to the Summa theologiae indicate the standardised numbering of the quaestiones, common to all editions.



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3 I use the first post-Tridentine Italian edition here. 4 Here casuistry assumes its negative sense: see the discussion in the Introduction. 5 This is in sharp contrast to the logic of supererogatory accountability sketched out by Schaeublin in Chapter 6.

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References Aquinas, Thomas, 2000. ‘Collationes in decem praeceptis’, in Jean-Pierre Torrell (ed.), Recherches Thomasiennes. Études revues et augmentées. Paris: Vrin, 65–117. Azor, Juan S. J., 1600. Institutionum moralium […], vol. 1. Rome: Luigi Zanetti. Azpilcueta, Martín de, 1569. Manuale de’ confessori, et penitenti […] tradotto da R.P. fra Cola di Guglinisi dell’ordine di San Francesco di Paula. Venice: Giolitti di Ferrari. Bossy, John, 1970. ‘The Counter-Reformation and the people of Catholic Europe’. Past & Present 47: 51–70. Bossy, John, 1975. ‘The social history of confession in the age of the Reformation’. Transactions of the Royal Historical Society (5th series) 25: 21–38. Bossy, John, 1982. ‘Some elementary forms of Durkheim’. Past & Present 95: 3–18. Bossy, John, 1988. ‘Moral arithmetic: Seven sins into Ten Commandments’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 214–34. Bossy, John, 2004. ‘Practices of satisfaction, 1215–1700’, in Kate Cooper and Jeremy Gregory (eds), Retribution, Repentance, and Reconciliation: Papers Read at the 2002 Summer Meeting and the 2003 Winter Meeting of the Ecclesiastical History Society. Rochester NY: Boydell Press, 106–18. Breuer, Stefan, 1986. ‘Sozialdiszplinierung. Probleme und Problemverlagerungen eines Konzepts bei Max Weber, Gerhard Oestreich und Michel Foucault’, in Hans Sachße and Florian Tennstedt (eds), Soziale Sicherheit und soziale Disziplinierung. Beiträge zu einer historischen Theorie der Sozialpolitik. Frankfurt am Main: Suhrkamp Verlag, 45–69. Casagrande, Carla and Silvana Vecchio, 2000. I sette vizi capitali: storia dei peccati nel Medioevo. Turin: Einaudi. Christin, Olivier, 2003. Les yeux pour le croire. Les Dix Commandements en images (XVe-XVIIe siècle). Paris: Seuil. Courtine, Jean-François, 1999. Nature et empire de la loi. Études suaréziennes. Paris: Vrin. Crowther, Kathleen, 2016. ‘From seven sins to Lutheran devils: Sin and social order in an age of confessionalization’, in Patrick Gilli (ed.), La pathologie du pouvoir: vices, crimes et délits des gouvernants. Antiquité, Moyen Âge, époque moderne. Leiden: Brill, 485–524. Davis, Derek H., 2002. ‘The Ten Commandments as public ritual’. Journal of Church and State 44/2: 221–8. De Boer, Wietse. 2011. The Conquest of the Soul: Confession, Discipline, and Public Order in Counter-Reformation Milan. Leiden and Boston MA: Brill. Ditchfield, Simon, 2017. ‘What’s in a title? Writing a history of the­

Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

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Counter-Reformation for the postcolonial age’. Archiv für Reformationsgeschichte 108: 255–63. Fagundez, Estevão S. J., 1640. In quinque priora Praecepta Decalogi, tomus primus. Lyon: Laurent Anisson, haeredes Gabriel Boissat. Firenze, Antonino da. 1483. Summula confessionis. Firey, Abigail (ed.), 2008. A New History of Penance. Leiden: Brill. Gerson, Jean, 1998. ‘L’Examen de conscience’, in Gilbert Ouy (ed.), Gerson bilingue. Les deux rédactions, latine et française, de quelques œuvres du chancelier parisien. Paris: Honoré Champion, 65–83. Goering, Joseph, 2008. ‘The internal forum and the literature of penance and confession’, in Wilfried Hartmann and Kenneth Pennington (eds), History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretales of Pope Gregory IX. Washington DC: Catholic University of America Press, 379–428. Häring, Bernhard, 1957. Das Gesetz Christi. Moraltheologie, dargestellt für Priester und Laien, 3 vols. Freiburg im Breisgau: Erich Wewel. Hartmann, Louis, 1945. ‘Queries: The enumeration of the Ten Commandments’. The Catholic Biblical Quarterly 7/1: 105–8. Hartmann, Wilfried and Kenneth Pennington (eds), 2008. History of Medieval Canon Law in the Classical Period, 1140–1234: From Gratian to the Decretals of Pope Gregory IX. Washington DC: Catholic University of America Press. Keenan, James F., 2013. ‘The Decalogue and the moral manual tradition: From Trent to Vatican II’, in Dominik Markl (ed.), The Decalogue and Its Cultural Influence. Sheffield: Phoenix Press, 216–31. Kühnlein, Michael and Matthias Lutz-Bachmann (eds), 2015. Vermisste Tugend? Zur Philosophie Alasdair MacIntyres. Berlin: Berlin University Press. Lavenia, Vincenzo, 2003. ‘Martín de Azpilcueta (1492–1586). Un profilo’. Archivio Italiano per la Storia della Pietà 16: 15–148. Lavenia, Vincenzo, 2013. ‘La lotta alle superstizioni: obiettivi e discussioni del Libellus al Concilio di Trento’. Franciscan Studies 71: 163–81. Leinsle, Ulrich G., 2010. Introduction to Scholastic Theology, trans. Michael J. Miller. Washington DC: Catholic University of America Press. Leutbrewer, Christoph. 1659. Excellente et facile methode pour se preparer à une Confession generale de toute sa vie. Brussels: Jean Mommart. Levack, Brian P., 2006. The Witch-Hunt in Early Modern Europe. Third edition. Abingdon: Routledge. Lluch Baixauli, Miguel, 2013. ‘The Decalogue in Western tradition from the Church Fathers to the thirteenth century’, in Dominik Markl (ed.), The Decalogue and Its Cultural Influence. Sheffield: Phoenix Press, 75–84. Luther, Martin, 1883. ‘Eine kurze Erklärung der zehn Gebote (1518)’, in J. K. F. Knaake et al. (eds), Werke. Kritische Gesamtausgabe, vol. 1. Weimar: Böhlau Verlag, 250–6. Medina, Bartolomé de O. P., 1591. Instruction de como se ha de administrar el Sacramento de la penitencia. Alcalá: Juan Gracian. Monter, William E., 2017. ‘Reformations of penance and scholarly renascences of disciplinary institutions’, in Charles H. Parker and Gretchen Starr-Lebeau (eds), Judging Faith, Punishing Sin: Inquisitions and Consistories in the Early Modern World. Cambridge: Cambridge University Press, 331–40.

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Morrow, Maria C., 2016. Sin in the Sixties: Catholics and Confession, 1955–1975. Washington DC: Catholic University of America Press. Myers, William David, 1996. Poor Sinning Folk: Confession and Conscience in Counter-Reformation Germany. Ithaca NY: Cornell University Press. Newhauser, Richard, 2012. ‘“These Seaven Devils”: The capital vices on the way to modernity’, in Richard Newhauser and Susan J. Ridyard (eds), Sin in Medieval and Early Modern Culture. Woodbridge: Boydell & Brewer/York Medieval Press, 157–88. Nongbri, Brent, 2013. Before Religion: A History of a Modern Concept. New Haven CT: Yale University Press. O’Callaghan, Denis, 1975. ‘Whatever happened to the Ten Commandments?’ The Furrow 26/1: 36–42. Pastore, Stefania, 2004. Un’eresia spagnola. Spiritualità conversa, alumbradismo e inquisizione (1449–1559). Florence: Olschki. Prodi, Paolo, 2000. Una storia della giustizia. Dal pluralismo dei fori al moderno dualismo tra coscienza e diritto. Bologna: il Mulino. Prosperi, Adriano, 1996. Tribunali della coscienza. Inquisitori, confessori, missionari. Torino: Einaudi. Reinhardt, Nicole, 2015. ‘How individual was conscience in the early modern period? Observations on the development of Catholic moral theology’. Religion 45/3: 409–28. Rusconi, Roberto, 2002. L’ordine dei peccati. La confessione tra medioevo ed età moderna. Bologna: il Mulino. Sánchez, Thomas S. J., [1614] 1637. In Praecepta Decalogi. Lyon: Gabriel Boissat. Schilling, Heinz, 1987. ‘“History of crime” or “history of sin” – some reflections on the social history of early modern church discipline’, in E. I. Kouri and Tom Scott (eds), Politics and Society in Reformation Europe. New York: St. Martin’s Press, 289–310. Shagan, Ethan, 2017. ‘Towards a modern regime of believing’. Archiv für Reformationsgeschichte 108: 34–41. Smith, Lesley, 2014. The Ten Commandments: Interpreting the Bible in the Middle Ages. Leiden: Brill. Smith, Randall B., 2013. ‘Thomas Aquinas on the Ten Commandments and the natural law’, in Dominik Markl (ed.), The Decalogue and Its Cultural Influence. Sheffield: Phoenix Press, 148–68. Sweeney, Eileen, 2012. ‘Aquinas on the seven deadly sins: Tradition and innovation’, in Richard G. Newhauser and Susan J. Ridyard (eds), Sin in Medieval and Early Modern Culture. Woodbridge: Boydell & Brewer/York Medieval Press, 85–106. Tamburini, Tommaso S. J., [1655] 1659. Explicatio Decalogi […]. Munich: Johannes Wagner. Taylor, Gabrielle, 2006. Deadly Vices. Oxford: Oxford University Press. Tentler, Thomas N., 1977. Sin and Confession on the Eve of Reformation. Princeton NJ: Princeton University Press. Tierney, Brian, 1982. Religion, Law, and the Growth of Constitutional Thought, 1150–1650. Cambridge: Cambridge University Press. Toledo, Francisco de S. J., 1600. De Instructione Sacerdotum Libri septem. Antwerp: Johann Beller.

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Willis, Jonathan, 2017. The Reformation and the Decalogue: Religious Identity and the Ten Commandments in England, c. 1485–1625. Cambridge: Cambridge University Press. Zagorin, Perez, 1990. Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern Europe. Cambridge MA and London: Harvard University Press.

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6 Counting good and bad deeds under military rule: Islam and divine bookkeeping in Nablus (Palestine) Emanuel Schaeublin On that Day will all men come forward, cut off from one another, to be shown their [past] deeds. And so, he who shall have done an atom’s weight of good, shall behold it; and he who shall have done an atom’s weight of evil, shall behold it. (Quran 99: 6–8) God grants sustenance unto whom He wills, beyond all reckoning. (Quran 24: 38)1

Picture a scene from my fieldwork in the Palestinian city of Nablus (Figure 6.1) in 2013–14.2 The sunlight falling through the crowns of cypress trees drew bright spots on the ground of the ‘family section’ of a park. A young man was gently beating a drum and singing songs about love and longing. He was making music for elderly and poor people who had been brought together by social workers from different institutions. Even people struck with dementia were clapping and singing along as volunteers distributed lemonade and pastry with cheese and herbs. An old woman sitting at a plastic table seemed somewhat disconnected. She silently moved her lips while shifting the beads of a prayer chain with her thumb. She introduced herself as Khadija. When I asked her what she was doing, she explained: I pronounce about 4,000 expressions of praise [tasābīh.] of God every day. I say 99 times ‘extolment to God’, 99 times ‘all praise be to God’, 99 times ‘God is great’, and 99 times ‘there is no deity except for God’ – and then I start again from the beginning: 99 times each for all the names of God mentioned in the Quran.

The month of Ramadan was approaching, but Khadija had already started fasting two months in advance. She claimed to spend entire days fasting whenever there was a religious occasion during the rest of the year. Together with her husband she would also get up in the middle of the night to carry out a night prayer to add a supererogatory one to her five daily prayers. Khadija had come to the park together with her husband and her

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Figure 6.1  Fieldwork in the Palestinian city of Nablus, 2013–14

­ aughter, all of whom were living in one of the refugee camps adjacent d to the city and receiving regular support from social institutions: Nablus was (and is) a troubled place, politically and economically. The daughter deplored how the dire economic situation had led to the gradual erosion of mutual aid in the community: In our neighbourhood, we used to help each other much more in the past. There was more brotherhood. Now everybody struggles for their own survival and only helps out closest relatives. Many people fear descending into severe poverty and constant dependency … I do not like asking rich people for aid. We are from the kind that is too shy to take aid. I get shy [when I have to do that].

When I asked her what she felt shy about, she answered: The shyness of religion [h.ayāʾ al-dīn]! We rely upon God. God covers.

In the Islamic tradition, God is assumed to be at the source of all wealth, and reliance on Him is cast as one of the highest Muslim virtues. Where Khadija imposed a set of practices upon herself in order to transcend their dire situation by becoming a better Muslim and hopefully winning a place in paradise, her daughter thus stressed simple reliance on God’s ­generosity in the face of economic precarity. It is this interplay in the religious ­imagination between, on the one hand, attempting to gain spiritual credit through the use of rules and disciplined practices, and, on the other,



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cultivating virtuous states of mind such as reliance on God and pious shyness that is the focus of this chapter.

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Cosmic ethical rationalism In contemporary Nablus, Islamic practices of all sorts – including Khadija’s fasting and praise of God – tend to be thought of as increasing people’s personal account with God (ajr ʿind Allāh). In a central mosque next to a water dispenser, a large poster (Figure 6.2) provides a visual image of good deeds as coins next to a bag of money. Behind it, clouds open onto a blue sky in allusion to people’s transition to the Hereafter. The following text frames the image: ‘The inheritance of the Prophet (peace and blessings be upon him): From the reward [thawāb] of virtuous work [al-ʿaml al-s.ālih.]. The lucrative trade with God does not perish.’ Golden coins in the image carry the words ‘ablution’, ‘fasting’, and ‘prayer’. At the bottom, there is a call for dissemination: ‘Please distribute this [poster] in pursuit of reward and recompense. For help, call: Saudi Arabia [two telephone numbers – not visible in the photographed fragment].’ The word inheritance refers to the many hadith – sayings or deeds ascribed to the Prophet Muhammad – ­indicating how people can gain divine reward. To the right and to the left of the image shown in Figure 6.2, the poster spreads out long lists of deeds that are said to increase one’s account with God. Here we find some of the practices that Khadija mentioned earlier: fasting on special occasions (e.g. ‘the reward for fasting during [the month before Ramadan]’) or pronouncing the words ‘extolment to God [subh.ān Allāh] and to Him is all praise [la-hu al-h.amd]’ (‘“two expressions that are light on the tongue, heavy on the scale [on Judgement Day], [and] dear to the Merciful” [transmitted in the hadith collections of] Muslim [1976] and Bukhārī [1979]’). The quantification of ethical conduct – the idea that even minor acts and utterances are accounted by God and rewarded in the Hereafter – is a compelling way of framing the pursuit of Muslim piety. By establishing direct connections between prophetic sayings and personal conduct, publicly displayed lists of virtuous actions (see Figure 6.3) endow the attempt at being a good Muslim with a legalistic character. If you follow the recommendations of the Prophet, you will be recompensed either in this life or the afterlife. Such accountancy-mindedness is a specific kind of a ‘technology of the self’. In Michel Foucault’s (1997: 225) definition, ‘technologies of the self … permit individuals to effect by their own means, or with the help of others, a certain number of operations on their own bodies and souls, thoughts, conduct, and way of being, so as to transform themselves in order to attain a certain state of happiness, purity, wisdom, perfection, or immortality.’

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Figure 6.2  Poster listing deeds for gaining divine reward

Foucault (1997) roughly distinguishes between such technologies as used among the ancient Greeks (taking care of the self as a constant ‘practice’ of virtues), the Stoics (keeping an account of oneself, writing down what one did, and analysing the effects), and the early Christians (speaking the truth about one’s sinful thoughts – or deeds – to someone else and thereby freeing/ cleansing oneself from them). The idea of trading with God by gaining points for virtuous actions constitutes a further type of such technologies of the self. It enables specific ways of making one’s actions transparent to oneself and shapes daily practices of Muslims such as Khadija mentioned above. This is, then, a certain form of ‘consciousness of the moral dimensions of one’s actions’ (see the Introduction). It is analogous to, but also distinct

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Figure 6.3  Virtuous actions visualised as treasure chests

from, those of Christianity, for instance, which developed mechanisms of confession to inspect people’s conscience and grant redemption, in increasingly individualised fashion (see Chapters 3 and 5). Rather than calling on Muslims to confess the truth about themselves, the image of bookkeeping emerging from the Islamic tradition commands constant awareness and weighing of the worth of one’s actions and dealings with others in light of a system of accounting that is only accessible to God. While the conscience of my Muslim interlocutors in Nablus certainly seemed individualistic – God keeping an account on every single person – the ethical focus of bookkeeping, as they imagine it, is on relations between people. Consciousness of its dilemmas appears in face-to-face interactions (Schaeublin 2019), rather than in secluded settings of introspection or confession. Divine bookkeeping includes any minor act in a person’s relation with God and with others. It is part of a ‘scaffolding of shared meaning’ (see the Introduction) that gives rise to a vision of Muslim ethical life as ‘an ongoing exchange of blessing, prosperity, and fortune, for good deeds, merits and prayers between the living, the dead and the Almighty … [i.e.] a perpetual flow … of divine grace and abundance’ (Henig 2019: 225). The image of a universe that registers and calculates one’s acts – r­ ewarding good deeds and punishing bad ones – is a pervasive way of thinking about

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human life and ethical action. Building on Max Weber, the moral philosopher Shalini Satkunanandan (2015: 2) defines the belief ‘in a universe that recognizes and rewards moral action’ as an instance of ‘cosmic ethical rationalism’ (on which, see Weber 2004: 79). In Satkunanandan’s (2015: 154) reading of Weber, ‘faith in an ultimate moral bookkeeping’ is easier to recognise in people with a religious conviction, but it can equally be found among people with a secular mindset. It appears in political arguments that use a language of ‘moral calculus’. For utilitarians, for instance, measuring the outcome with a view to the greater good of society – ­suggesting that there is an ultimate system of accounting – is crucial. Consider also the calculative reasoning of people paying compensation every time they take an aeroplane in order to neutralise their ‘carbon footprint’. Of course, such calculative framings of ethical practice have limits. The Islamic tradition, for instance, also advances categories that exceed the logic of calculation. Based on fieldwork among volunteers working for Islamic charities in Egypt, Mittermaier (2013) describes this tension within the tradition as one between calculation and uncalculated abundance. She distinguishes between an economy of reward or thawāb and an economy of blessing or baraka. The economy of reward gives rise to the image of ‘trading with God’ and gaining ‘points’. The economy of blessing, however, is organised according to a logic of (ultimately abundant) uncalculated divine generosity. Her interlocutors note that divine blessing and the good (al-khayr) – mostly used in the sense of doing good to others – lie outside the ‘logic of the calculator’. Moreover, ‘single decisive acts’, such as transmitted in a famous hadith where a prostitute uses her shoe to give water to a dog that is about to die from thirst, can suspend calculation. According to the hadith, God saved the prostitute from hell solely based on this one ‘decisive’ deed (Mittermaier 2013: 276, 284, 286). Divine bookkeeping also emerged in the Christian tradition (see Brown 2015 for an account of early Christians in this regard). Consider St Anselm’s (d. 1109) discussion of the relation between Christians and God in his book Cur deus homo (Why God Became Man). Anselm (2008: 282–3) defines Christians as ‘debtors’ of God – in analogy to the debt owed by medieval peasants to their kings or feudal lords. Anselm casts sinning as not giving God what is owed to Him. If a sin is committed, it needs to be repaid. Anselm (2008: 284) further insists that God does not forgive out of mercy alone – without any restitution to Him – as this would be against the ‘law’: ‘Everyone knows that the righteousness of mankind is subject to a law whereby it is rewarded by God with a recompense proportional to its magnitude.’ This suggests that Anselm is a ‘cosmic ethical rationalist’, in Satkunanandan’s terms. His system of accounting is only disrupted by redemption through Christ. In fact, Anselm (2008: 338) describes God as

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a king whose populace has sinned against him, while Christ is likened to the only ‘innocent party’ who desires to bring about reconciliation between the king and the guilty – out of love for them. Christ’s sacrifice is the only moment where God pardons all sins previously committed without restitution. Were the guilty to sin anew, God would pardon them again – but only under the condition that they are willing to ‘give satisfaction’ and ‘receive correction’. The calculative logic – whereby every sin needs to be repaid – is thus restored. This is highly important to Anselm’s rationalism, which is rooted in the principle that there can be ‘nothing arbitrary in God’ (Southern 1963: 113). Such explicit systems of divine bookkeeping are part of the more general phenomenon of cosmic ethical rationalism. They endow ‘technologies of the self’ with a ‘ruly’ character, giving a strong sense that rules are in operation (Clarke 2015: 232; see also the Introduction). According to Clarke (2015: 239), ‘“accountancy-mindedness” or “bookkeeping” can be ­reckoned a kindred phenomenon to legalism; without the “categories and  rules” [that legalism institutes], indeed, calculation is not possible.’ While ‘ruliness’ (Clarke 2015: 232) and calculation are similar in their formality, they need not necessarily be connected to one another. One can be calculating in one’s rule-following, while still being flexible as to the rule in a given circumstance. I would like to go somewhat further than this by arguing that the tension between calculation and the ‘incalculable’ is a more general feature of ethical traditions, such as Islam, Christianity, or Judaism.3 The ‘incalculable’ at play in God’s mercy or in decisive acts can point to the limits of rules as a way of capturing the good. Ruliness can be opposed not just to ‘unruliness’, but also to ‘non-ruliness’: that is, virtuous acts or states of mind that go beyond rules and may require ignoring them in order to reach an aspect of the good that lies beyond them. In Nablus, states of virtue often disrupt the arithmetic of calculating good deeds. There are aspects of being a good Muslim that are very difficult to think of in calculative or ‘ruly’ terms. These aspects can involve relationships, such as focusing one’s attention on God or making a decisive act of support to another, or states of mind, such as trust, that elude measurement. This does not mean that the pursuit of virtue must lie beyond rules. Rule-following can of course also be seen as a technique for fostering certain kinds of virtue, as in Mahmood’s (2005) account of pious Muslim women in Cairo or Reinhardt’s discussion above of virtue ethics informing Christian confession manuals (Chapter 5; see also Daube 2000: 22 on Orthodox Judaism, cited in Satkunanandan 2015: 189). Rules can enable voluntary religious commitments in the form of the vows taken by medieval Christian women described by Corran (Chapter 3), or in the form of Khadija’s relentless work to gain points in divine accounting.

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In order to explore these themes further, I draw on my ethnography from Nablus – a Palestinian (Arabic-speaking) city under Israeli military occupation, where excerpts of the Islamic scriptures are woven into everyday conversations and reproduced on countless stickers and posters like those discussed above. First, I describe how the Islamic imagination of divine bookkeeping constitutes a ‘technology of the self’ tied to a specific form of conscience. Second, I analyse the limits of divine bookkeeping in contemporary Muslim practice and discuss instances where calculation is suspended or evaded. This is particularly the case with a view to the quality of relations between people or between Muslims and God that are difficult to capture with rules and measurement. Third, I situate the Islamic imagination of divine bookkeeping in the historical context of contemporary Muslim societies and the Palestinian territories in particular. As against those who insist that it is the advent of capitalist political economies that has led to an increasingly calculating approach to ethical life, I suggest that thinking in terms of divine bookkeeping is attractive to Muslims who otherwise feel exposed to arbitrary and repressive rule. The idea of a hidden, ultimately unknowable but just Islamic system of accounting enables people to hold on to an idea of living a good life in politically and economically adverse contexts. Legalism, in this sense, could appear as a source of resilience. Further, the presence of different value systems in the same social space can also make a legalistic outlook to managing such ethical tensions more pronounced (see also Chapter 9). Against this background, the expansion of Western colonial and post-colonial powers in Arab countries and Israeli rule over Palestinians seem to reinforce the legalism enabled by the idea of divine bookkeeping.

Divine bookkeeping as a technology of the self Many of my Muslim interlocutors in Nablus assume that every person has two angels on his or her shoulders. The angel on the right registers the good deeds (h.asanāt), the angel on the left the bad deeds (sayyiʾāt). The information is kept in a personal account that is only accessible to God. The Quran (64: 17) casts good deeds such as gifts to people in need as a ‘loan’ (qard.) to God, from which a person will be recompensed either in this life, in the period between death and Judgement Day, or in paradise. The recompense after death is generally referred to as divine reward (thawāb). My interlocutors repeatedly emphasised that it is impossible for humans to know any details about this accounting carried out by angels as the accounting of loan and reward belong to the ‘otherworldly things’ (al-umūr al-ghaybiyya). This bookkeeping spans every sphere of human activity and includes both personal acts of worship (ʿibādāt) and social interactions (muʿāmalāt).4

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Even if divine accounting takes place in an invisible field that largely eludes human perception and understanding, the image of God’s bookkeeping enables people to see sticking to rules as a means to gain points in this divine accounting while cultivating their piety. Such accountancy-mindedness spans individualised forms of the care of the self and worries about bookkeeping on behalf of others (mostly dead relatives), as well as interpersonal relationships and transactions. ‘It is important to constantly feel the surveillance of God [murāqabat Allāh],’ as a pious vegetable seller in one of the markets of Nablus used to remind me. This leads certain people to perceive every minor act in terms of divine accounting. Each Arabic character in the Quran recited can be assumed to ‘count’. So do prayers. They count more if carried out in the mosque together with others. Extra points are in store for people going to pray in mosques that are farther away from the place where they live. The vegetable seller told me one day that the Israeli authorities had given him a permit – for which a security clearance is required – to go to Jerusalem to join the Friday prayer in the Aqsa Mosque on the Temple Mount. He was very happy about this, as every prostration in the Aqsa Mosque is considered to provide a thousand times more points than a prostration in a regular mosque in Nablus. He told me that if you cannot reach the Aqsa Mosque, it is possible to send money for its running costs and thereby also gain a multiplied number of points. He cited a hadith encouraging Muslims to pray in the Aqsa Mosque, or, if they are unable to reach it, to send oil to illuminate the inside of the mosque with lamps. This is said to bring light into the mosque at night, so that people can see each other, which allows the donor at distance to benefit from the advantageous accounting of good deeds in the Aqsa Mosque. Divine accounting furthermore gives rise to worries about deceased relatives who are no longer able to increase their own account of good deeds. This leads to practices of merit transfer.5 These are generally classified under the Islamic discursive category of ‘flowing s.adaqa’ (s.adaqa jāriya). The gift of s.adaqa is a kind of supererogatory charitable payment benefitting the community. Flowing s.adaqa describes an instituted and ‘ceaseless’ stream of food, water, knowledge, or other things. On this subject, my male interlocutors often quoted a hadith, according to which the Prophet said: When a human being dies, their deeds are interrupted except from [these] three: flowing .sadaqa, [a body of] knowledge which [people] benefit from, or a son that invokes divine care for him/her. (Nawawī 1975: book 7, hadith 55)

The most visible form of flowing s.adaqa in Nablus is the ‘water of the path’ (māʾ al-sabīl), fountains established on behalf of deceased family members.6 Such fountains can be found next to shops whose keepers provide them with

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water. Occasionally, people simply put up water dispensers with a built-in cooler in mosques and mention the names of their deceased ­relatives on a small sign attached to it. Refreshing travellers, this ‘water of the path’ is said to increase the number of good deeds registered on behalf of the dead person. Here is an example of a sign attached to a water tap next to a small shop:

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‘And we made from water every living thing’ [Quran 21: 30]. Water of the path. Only for drinking.

The ‘flowing’ quality of s.adaqa is not confined to gifts of water. Other common forms consist of sustaining poor families with food or new clothes. This can involve an agreement between donors and a bakery regularly to provide bread to poor families on behalf of a dead person. Moreover, flowing s.adaqa can take the form of printed text. According to the librarian at the municipal library of Nablus, people frequently offer the books of a deceased person to the library in the same terms. A similar practice consists in putting a printed version of the Quran at public disposal in a mosque. On the inside of the book cover, the donors write that this is flowing s.adaqa from the soul of the deceased person (ʿan rūh. al-marh.ūm), mentioning his or her name. Each time a person reads in such publicly available books, the dead person is said to accumulate more good deeds. Interactions and transactions with others are also directly connected to divine bookkeeping. The accountancy-minded tend to relate the way a person does business to his or her ajr. If a trader is, say, stingy, cheating, or ripping people off with exaggerated prices, he or she has to fear that good deeds will be deducted from his or her ajr on Judgement Day. These deeds would then be ascribed to the accounts of the people whom the trader deprived from getting their rightful share (h.aqq). A person increasing his or her ajr in such a way is called the owner of the rightful share (s.āh.ib al-h.aqq). Gifts to others can increase the ajr in one’s own account as well. Consider this example: if, at the end of a Ramadan day, one woman feeds another woman who has been fasting, the good deeds that the woman receiving food has gained for fasting are assumed to be also written down in the account of the giver. In other words, the points of one person’s fasting for the period of one day are registered twice as a result of this gift of food. The concern for divine accounting, and its relation to transactions in this world, becomes particularly visible in the social interactions surrounding funerals, as they mark the transition into the Hereafter. I was told that families tend to make sure that their deceased member is not left on the path to the Hereafter with outstanding debt in this world as this would deduct good deeds from the person’s divine account. Especially in the old city of Nablus, it seems to be customary for families to ask around whether any money is owed by the dead person. Creditors, if there are any, may either ask for

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their rightful share, insisting that the debt be repaid, or free the deceased person and his family from the obligation of paying it back by saying ‘God forgive him or her’. During prayers in mosques preceding the burial, the imam usually asks the people attending whether the dead person owed money to anybody. Sometimes people step forward, either asking God to forgive the debtor or asking the relatives to cover the debt. If the family were to fail to cover the debt and if the creditor were unwilling to forgive it, some of my interlocutors suspected that good deeds would be deducted from the divine account of the deceased person and transferred to the account of the creditor. When a person dies to whom others owed money, this can bring about certain dangers for the debtors. The main question becomes whether or not a debtor had the intention (niyya) to pay back his debt while the creditor was still alive; and this can only be known to God. When a creditor dies whose debtor had no intention to pay back what he owed, the debt is said to turn into fraud and theft, both of which are classified as severely bad deeds that entail deductions of ajr from the debtor’s account. After burials, families receive people from the vicinity over several days serving lunch and dinner, as well as black coffee (without sugar) and dates during the rest of the day. The funeral reception, which is strictly gender segregated, is called a ‘house of recompense’ (bayt ajr). People are said to gain good deeds by attending. During male receptions, some of the family members wait in a row at the entry of the room shaking the hands of the people stepping inside. On such occasions, one expresses condolences by saying: ‘May God magnify your [plural] recompense [ʿaz.z.am Allāh ajra-kum].’ This way, a guest addresses the entire extended family with respect to their ajr. These examples show how divine bookkeeping gives rise to technologies of the self. By following rules and carrying out prescribed acts, the faithful increase the recompense they will be given in the Hereafter. Divine accounts concern every individual in view of the rules laid down by God and His Prophet – making it possible to conceive Muslim ethical conduct in quantifiable terms. One cannot, however, know how many points are registered for specific deeds, as divine accountancy is relegated to an invisible sphere. God takes every aspect of a person’s behaviour into account, but in ways that evade human perception. Moreover, I was often told that nobody enters paradise merely because of his or her deeds (or points) and that this is solely contingent on God’s mercy.7 Consequently, the cosmic ethical rationalism in the Islamic system of divine bookkeeping as it emerges from the views and actions of my interlocutors in Nablus is never total in its reach. There are elements of Muslim ethical practice where calculative reasoning is denied or replaced by an image of uncalculated divine generosity. It is to these that I shall now turn.

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Breaking calculation apart From Islamic practices emerges a horizon where the scope of calculation ends and the abundance – excess even – of divine generosity begins. As mentioned above, ‘decisive acts’ can open the gate of paradise regardless of a person’s account of good and bad deeds. Posters and stickers in central Nablus recall the importance of seemingly small acts and virtues that undo the ‘logic of the calculator’. A sticker in a mosque in central Nablus suggests that pronouncing the phrase ‘extolment and praise to God’ – e.g. to dispel one’s own anxiety in difficult moments – is a practice that ‘fills the scale’ on Judgement Day (Figure 6.4). The picture shows a scale that carries planet earth in one bowl, which is outweighed by the content of the other bowl: the phrase ‘extolment and praise to God’. This minor expression is cast as weighing heavier than all worldly affairs combined. Pronouncing it and being thankful to God is thus framed as a ‘decisive act’ disrupting calculated measurement. An example of a ‘decisive’ virtue operating in a similar way is the disposition of relying upon God (tawakkul) in one’s daily business. At several entries to the souks of central Nablus, posters with the following text were hanging over market alleys with people passing underneath:

Figure 6.4  Judgement Day sticker



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Invocation before entering the souk: He who entered the souk and said: ‘There is no deity except for God alone and nothing equals Him [lā sharīka la-hu]. His is the power [la-hu al-mulk] [of owning] and His is the praise. He gives life and death. He is alive and does not die. In His hand lies well-being and He is potent over everything.’ – God will register on his behalf thousands and thousands of good deeds and eradicate on his behalf thousands and thousands of bad deeds and raise him thousands and thousands of levels and build him a house in paradise.

While ‘reliance upon God’ can hardly be measured in calculative terms, practising it is said to entail incalculable (‘thousands and thousands’) entries of good deeds in God’s books. The term tawakkul literally means to entrust God with one’s own affairs. It defines a state of faithful attention – a readiness to accept God’s will with a view to future events.8 In other words, it is the absence of worries and second thoughts about the uncertainties of the future, and thus implies the absence of calculation. As a virtue, tawakkul unfolds both in people’s relation to God and in their relations with one another. It seems to be precisely this relational dimension of tawakkul that breaks calculation apart. Good relations require openness to the unpredictable and attention to the Other, capacities that are difficult to conceive of in calculative terms. Overly insisting on calculation and rule-following in social interactions can be inappropriate, a sign of avarice even. Certain traders in the markets of Nablus who are known for their piety and adherence to religious rules also have a reputation for being skinflints. Moreover, between neighbours, friends, or kinsfolk, hints at calculative reasoning in everyday social interactions can be qualified as ‘shameful’ (ʿayb). When a person to whom one is close pays for one’s tea in a cafe, trying to give that person some money afterwards is likely to be decried as shameful. Similarly, grocery store owners sometimes refuse to accept payment from relatives or friends – leading to a nervous shifting back and forth of coins and bills. How, then, is worldly wealth inserted into the wider Islamic imagination of the cosmos? In Islamic discourse, the flow of money and material goods through society is said to emanate from God. This flow is described as ‘divine provision’ (rizq). The Quran (24: 38, see also 2: 212) explicitly denies that God’s provision involves calculation: ‘God grants sustenance unto whom He wills, beyond all reckoning [h.isāb].’ This suggests that ultimately the flow of wealth does not result from divine bookkeeping and reciprocity, but from God’s will alone (Dresch 1998: 114–15). Respectful acts of giving between people, such as the offering of food for example, often rest on the ability to depersonalise the gift and enact it as if what one is offering appeared out of nowhere and originated from God rather than from the giver (on which, see also Schaeublin 2019). Behind human acts of

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generosity quietly lies God’s non-calculating provision. In other words, to be a virtuous Muslim in social interaction, one must be able to evade calculation at the right moment. Such denials of calculation notwithstanding, the image of ‘divine provision’ does not remain unaffected by cosmic ethical rationalism. The term rizq can refer to profit from legitimate trade, material sustenance, and livelihood. If one’s rizq is not ‘flowing’, it could be ‘delayed’. While this may be a test of faith, there is always the risk that an absence of rizq is interpreted by others as a sign that God has withdrawn His sustenance from a person as a result of immoral actions. Visible financial success, on the other hand, can be read as resulting from good deeds, such as being generous with the neighbourhood’s poor families. In the old city of Nablus, a shop selling sweets, crisps, and cold drinks was thriving and offering steadily more goods for sale. As they no longer fitted into the small space, the goods were held for sale in the narrow market alley, into which they were bulging out on all sides. When I talked to the owner of a small fruit shop situated about ten metres next to this place, he pointed to his wealthy neighbour with ­admiration and explained: His business over there is going extremely well because he has been spending a lot for the sake of the poor and the needy. When you give discreetly and then forget about it, God gives to you.

The relation between the portion that a person receives in this world and his or her ethical conduct inevitably remains a matter of guesswork, and the tension between calculation and non-calculated generosity runs both through divine accounting with a view to the Hereafter and through divine provision of wealth in this world. On the level of certain kinds of relations – with God or with other humans – calculative reasoning is inappropriate. ‘Decisive acts’ with the ability to break calculation apart often have a relational character: thanking God or saving a person or an animal in need. Moreover, certain states of mind at play in relations, such as confidence, trust, reliance upon God, fear of God, or the pious shyness mentioned by Khadija’s daughter at the beginning of this chapter, are difficult to think of in calculative or ‘ruly’ terms.9 Reliance upon God (tawakkul), in particular, constitutes a state of mind where one does not seek to pre-empt what will happen and remains in a state of openness to the world. As such, reliance upon God requires omitting calculation all together. Having discussed how divine accounting can be understood as a technology of the self and how aspects of Islamic virtuousness that undo calculation are accommodated within the wider field of self-cultivation, I shall now turn to situating the imagination of divine bookkeeping in historical context. Does it become more dominant in certain historical circumstances?



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What is its role in Muslim communities in contemporary Palestine and the Middle East more particularly?

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Historicising divine bookkeeping Conceiving of ethical conduct in terms of cosmic ethical rationalism, where every act is calculated and inscribed in a hidden system of value, emerges in different historical circumstances (Satkunanandan 2015). This way of thinking is not necessarily dependent on particular political or economic orders. Political and historical circumstances, however, affect the ways in which people imagine such cosmic systems of value. As discussed above, the eleventh-century Christian scholar St Anselm thought of God’s accounting of sins in the terms of medieval feudalism, the political power of his time (for a discussion, see Southern 1963: 107–14). Anselm aligned the image of the divine accounting of sins with the debt peasants owe to their feudal lords. Anthropologists working on contemporary Islam tend to interpret the importance many Muslims currently give to the idea of divine bookkeeping as a consequence of the spread of capitalism and the ‘Islamic revival’ that began in the 1970s.10 Mittermaier (2013: 275, 286) – whose work on the tension between calculated godly reward and non-calculative blessing I mentioned above – holds that the image of divine bookkeeping and the calculation of ‘points’ for good deeds gained a wider currency among Muslims in Egypt since the 1970s, when economic reforms started to open the Egyptian market to international investments. Schielke (2015: 22) draws on Bataille ([1949] 1991) to argue that the ‘ethos of scarcity’ characterising capitalism has become reflected in the sense of a moral anxiety promoted by revivalist Islamic religiosity: ‘religious practices, interactions, and cultivated affects reveal a constant worry about whether one has enough points of reward, whether God will accept one’s prayers, whether this or that act is forbidden or permitted.’ One of Mittermaier’s interlocutors, however, disagrees. Hasan doubts that the ‘logic of thawāb, of counting points, is particularly modern or capitalist’ (Mittermaier 2013: 286). After all, the Quran was revealed in a social context marked by the existence of monetised markets, merchants, and a language of trade. Bamyeh (1999: 243–44, cited in Mittermaier 2013: 281) observes that Islamic almsgiving, for instance, has always been framed as a ‘loan’ to God, whereby the imaginary investment in spirit stands in stark contrast to calculated investments in the market by means of usurious moneylending. Some of my interlocutors thought that ‘one drop of usury among your wealth [māl] pollutes the ritual purity [t.ahāra] of your

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body ­instantaneously’ and, thereby, invalidates your prayers (i.e. prevents you from registering any good deeds in God’s account). Usury is thus an example of a ‘decisive act’ in the negative sense. All this suggests that the tension between calculated self-interest and non-calculated divine generosity runs through the Islamic tradition itself since the time of the revelation in the seventh century ce. In this light, the non-calculated aspects of Muslim ethical practice continue to be important. Drawing on research in contemporary rural Bosnia, Henig (2019: 223) shows acts of care can be read as ‘mediating’ divine abundance and constituting a ‘parallel logic of relating to the divine and to each other … [that is] concerned with generosity and sharing rather than with the calculative logic of profit and accumulation’. Small acts of generous giving to others are  inserted in a logic of both calculation (as they generate points in one’s divine account) and non-calculated divine generosity. Such practices of giving, occurring among Muslims in Bosnia, Palestine, or Egypt (Mittermaier 2019), illustrate the social dimension of ethical life (Williams 1985: 191, cited in Keane 2015: 18) that allows people to resist political economy rather than merely being moulded by it (Schaeublin 2019: 129). The way Islamic systems of value are socially imagined is thus influenced, but not necessarily determined, by the social and political order in which they unfold. In the occupied Palestinian territories, it is the Israeli government that most obviously controls the flow of wealth. Since 1967, the Palestinian economy has been deeply integrated into the Israeli one (Samara 2000; Taghdisi-Rad 2014; Turner and Shweiki 2014). Under Israeli occupation, most Palestinian trade is dependent on Israeli business partners or security clearances and controlled by Israeli policies. Israeli and Palestinian intelligence services gather highly personal information on people using elaborate systems of surveillance. The movement of the Palestinian population inside the occupied territories and across various borders is tied to a complex system of permits (Kelly 2006) whereby privileges accorded to individuals depend on the security files kept under their names by Israeli intelligence services. At the time of my fieldwork, it was common for Israeli security personnel to detain and interrogate Palestinians at border crossings and following political arrest operations. On such occasions, the Israeli interrogator would often let the Palestinians know that they know minor details about their personal life in an attempt to intimidate them and demonstrate to them how widespread their net of local collaborators was.11 This system of security files and the privileges granted on their basis remained highly opaque to most Palestinians living in the occupied territories. Such security files also started to affect aid flows and created winners and losers among the Palestinian population depending on the degree of their acquiescence with Israeli security interests (Turner 2014: 46–7).12

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To many of my interlocutors, this system of control and surveillance seemed totalising in its reach. They felt that it curtailed their potential to set up businesses and benefit from economic growth. But my interlocutors also held the conviction that there was an Islamic and ultimate system of justice beyond it that at least partly evades our perception. Because it accommodates both calculated aspects and uncalculated divine generosity, this system becomes a plausible way of viewing the world in spite of the oftentimes arbitrary power that is exercised by Israeli military occupation. Under conditions of repression, divine bookkeeping provides a way of dealing with the ‘problem of theodicy’. Given the obvious evils of a world created by a supposedly just God, several options arise: ‘Either this power is not omnipotent or not kind, or, entirely different principles of compensation and reward govern our life’ (Weber 2004: 66). The idea of divine bookkeeping suggests that such hidden principles of reward exist. My interlocutors thought that they would gain points in this divine accounting merely by remaining in Palestine and facing the adversity of the occupation. Divine bookkeeping thus has the effect of ascribing great importance to minor details of one’s daily conduct by inserting them into a wider cosmic system. Sometimes, the political economy of military occupation can also rub off on ways of imagining the Islamic system of value in unexpected fashion. On a dark winter’s night, I was riding a long-distance bus heading to Nablus and got to know a man, who appeared to suffer from paranoid schizophrenia. He sat down next to me in the back of the bus and, while most of the other passengers had fallen asleep, explained to me that Judgement Day was imminent and that the Israelis were working with spirits (arwāh.) in order to infiltrate and sabotage the system of divine bookkeeping: They observe people and then pass on false information to God regarding the good and the bad deeds of everybody. They misinform God on who is good and who is evil. As Judgement Day is approaching, the Israelis use these spirits to obscure and manipulate the accounting of the good and bad deeds of the people. In fact, God does not observe us Himself. Instead, He has people and ghosts working for Him and keeping all the information about people’s deeds. It works like a government apparatus.

Similar to the case of St Anselm and feudalism, this confused man tries to imagine God’s rule through the lens of the political order of his day. Information gathering based on security surveillance has an elective affinity with the idea that God observes the action of every single individual and takes it into account. Like the accounting of God, the information kept in security files remains opaque to the people subject to it. The man fails to recognise the system of divine bookkeeping as a radically distinct and

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‘­parallel’ system of justice. Instead, he takes divine accounting to be part of a reality that includes the security surveillance to which he is exposed. Digital technologies do indeed now give almost God-like powers to government apparatuses.13 But in these times of the widening scope of government surveillance, divine accounting remains an attractive technology of the self that opens up a horizon for ethical becoming in a political context of adversity. My ethnography from Palestine illustrates how this technology of the self combines calculation and sticking to rules with the cultivation of virtues that evade quantification and that have a non-ruly dimension. This ensures the necessary flexibility and openness for an Islamic ethical system of value to assert its plausibility in the face of a political rule resting on non-Islamic discourse and repressive forms of governance. The openness of divine bookkeeping makes it a source of everyday resilience for devout Palestinian Muslims in troubled times.

Conclusion A comparative perspective on how rules relate to the self in different social and historical contexts, as proposed in this book, entails asking how more general dilemmas give rise to specific forms of conscience connected to social practices, technologies of the self, and imagined systems of value. For devout Muslims in Nablus, the following dilemmas are important in this way: the tension between the idea that everyone is equal before God and the existence of significant differences of wealth (Schaeublin 2019); and the tension between, on the one hand, thinking economically and being calculating about the future, and, on the other, embodying one’s reliance on God as faith requires, by giving generously and trusting others in business in a politically fragile environment. Above, I illustrated how divine bookkeeping provides a framework for addressing this dilemma. I argued that bookkeeping gives rise to a practical conscience concerned with the relational work to ascertain the rightful share (h.aqq) between oneself and others, in order to maintain a certain balance within the community. In the course of the Islamic revival since the 1970s, however, there appear to have been certain shifts of focus in the Islamic tradition towards a more individualistic conscience. Referring to Islamic discourse as propagated throughout the Middle East with funding from the countries of the Arab Gulf, Dresch (2005: 12) observes how ‘a stress on ʿibādāt – that is, on such forms of obedience as prayer and dress … – displaces muʿāmalāt’, the field of Islamic scholarship reflecting on the ethics of social interaction. Schielke (2015: 14), in a similar vein, characterises the Islamic revival starting in the 1970s as a general shift of focus within Islamic discourse from the

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‘relational’ to the ‘scriptural’ or ‘doctrinal’ level. Both Dresch and Schielke hence observe an increased concern with the self at the expense of interactions and social relations. In spite of this push towards more individualistic forms of piety, relational aspects of being a good Muslim have not disappeared from the everyday practices of people facing fragile conditions and political ­repression. Rather than opposing calculative thought to the incalculable or rules to virtues, we should focus on how the tension between the two enables people to address dilemmas on the level of ethical practice. Having faith in God and trust in others are states of mind that I call non-ruly, because they cannot be captured by rules – nor can they be measured in calculative terms. And yet, their pursuit seems often bound up with repeated practices, such as praising God and being generous with one’s relatives and neighbours in spite of the hardships people are facing. The legalism of divine accounting enables such seemingly incidental utterings and gestures, which in turn prepare the ground for non-ruly virtuousness. This suggests a more complex relation between rules and non-ruliness and between what can be calculated and what eludes calculated measurement. The idea of an invisible system of accounting underlying human transactions – and sometimes directly connected to them, as in the case of the ultimate reckoning for a shopkeeper ripping off his customers – allows people to oscillate between being tactfully calculating and trusting in others by deferring ultimate calculation to God. In this sense, rules and calculation are part of people’s ethical life with others – even if only to be broken apart and eluded at the right moment.

Acknowledgements My thanks are due to all those who helped me during my fieldwork in Palestine as well as Morgan Clarke, Emily Corran, Webb Keane, Dominik Müller, Johannes Quack, and John Sabapathy.

Notes  1 Here and throughout the chapter, I use Asad’s (1980) translation of the Quran.   2 Given the tense political context of my fieldwork, the names of all my interlocutors have been anonymised.   3 On this issue in Judaism, see Daube (2000).   4 For more on the distinction between ʿibādāt and muʿāmalāt, see Hallaq (2014: 115–16, 203n69, 203–4n73).

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  5 For other examples, see Cort (2003) on South Asia or Brown (2015) on early Christianity.   6 For a discussion of the history and architecture of these fountains in Nablus, see Qaddūmī (2012).   7 For a collection of prophetic traditions on this topic, see Muslim (1976: book 52, chapter 17, hadiths 66–76); see also Bukhārī (1979: hadith 6463). In the first centuries of the Islamic tradition, this issue was debated by different schools of scriptural interpretation. While the Kharijites held that certain sinful acts could render a person non-Muslim, the Murjites argued that faith in and submission to God superseded acts of piety and good deeds (on which, see e.g. Fakhry 2004: 40–1).   8 Compare the virtue of ‘attention’ described by the Christian philosopher Simone Weil ([1951] 2009: 62, cited in Satkunanandan 2015: 187) as ‘suspending our thought, leaving it detached, empty … not seeking anything, but ready to receive in its naked truth the object that is to penetrate it’.   9 Consider also Dresch’s (2015: 73) observation that ‘there are relations, such as friendship, from which we feel that explicit rules should be excluded’ – in other words: ‘to announce explicit rules that should govern a friendship surely contradicts what “friendship” means.’ 10 On the notion of an ‘Islamic revival’ or ‘Islamic awakening’, see e.g. Mahmood (2005: 3) and Schielke (2015: 14–15). 11 For an ethnographic analysis of Israeli interrogations of Palestinians, see e.g. Meari (2014). For an extensive account of the political imprisonment of Palestinians in Israel, see Nashif (2008). 12 New digital technologies offer innovative possibilities for combining the flow of money with individualised surveillance. The European Commission (an important donor in the Palestinian context), for instance, started running the names of all beneficiaries of its welfare payments through a global list of terror suspects maintained by the private digital security company WorldCheck (Schaeublin 2012: 64–5). 13 In China, for instance, digital tools relying on e.g. facial recognition and iris screenings are increasingly widening the scope of surveillance and are primarily targeting Muslim communities (Roberts 2018; New York Times 2019).

References Anselm, Saint, 2008. Anselm of Canterbury: The Major Works. Oxford: Oxford University Press. Asad, Muhammad, 1980. The Message of the Qur’ān. Gibraltar: Dar al-Andalus. Bamyeh, Mohammed, 1999. The Social Origins of Islam: Mind, Economy, Discourse. Minneapolis MI: University of Minnesota Press. Bataille, Georges, [1949] 1991. The Accursed Share (Volume 1): Consumption, trans. Robert Hurley. New York: Zone Books. Brown, Peter, 2015. The Ransom of the Soul: Afterlife and Wealth in Early Western Christianity. Cambridge MA: Harvard University Press.

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Bukhārī, Muh.ammad ibn Ismāʿīl al-, 1979. S.ah.īh. al-Bukhārī: The Translation of the Meanings of S.ah.īh. al-Bukhārī (Arabic and English), trans. M. M. Khan. Chicago IL. Clarke, Morgan, 2015. ‘Legalism and the care of the self: Shari’ah discourse in contemporary Lebanon’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 231–57. Cort, John, 2003. ‘Doing for others: Merit transfer and karma mobility in Jainism’, in Olle Qvarnström (ed.), Jainism and Early Buddhism: Essays in Honor of Padmanabh S. Jaini. Fremont CA: Asian Humanities Press, 129–50. Daube, David, 2000. ‘“The nails” and the Jews’, in Calum Carmichael (ed.), New Testament Judaism: Collected Works of David Daube (Volume 2). Berkeley CA: Robbins Collections Publications. Dresch, Paul, 1998. ‘Mutual deception: Totality, exchange, and Islam in the Middle East’, in Wendy James and N. J. Allen (eds), Marcel Mauss: A Centenary Tribute. Oxford: Berghahn, 111–33. Dresch, Paul, 2005. ‘Societies, identities and global issues’, in Paul Dresch and James Piscatori (eds), Monarchies and Nations: Globalization and Identity in the Arab States of the Gulf. London: I.B. Tauris, 1–33. Dresch, Paul, 2015. ‘Written law as words to live by’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 53–78. Fakhry, Majid, 2004. A History of Islamic Philosophy. New York: Columbia University Press. Foucault, Michel, 1997. Ethics, Subjectivity, Truth: Essential Works of Foucault 1954–1980 (Volume 2). New York: New Press. Hallaq, Wael, 2014. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament. New York: Columbia University Press. Henig, David, 2019. ‘Economic theologies of abundance: Halal exchange and the limits of neoliberal effects in post-war Bosnia-Herzegovina’. Ethnos 84/2: 223–40. Keane, Webb, 2015. Ethical Life: Its Natural and Social Histories. Princeton NJ: Princeton University Press. Kelly, Tobias, 2006. ‘Documented lives: Fear and the uncertainties of law during the second Palestinian Intifada’. Journal of the Royal Anthropological Institute 12/1: 89–107. Mahmood, Saba, 2005. Politics of Piety: The Islamist Revival and the Feminist Subject. Princeton NJ: Princeton University Press. Meari, Lena, 2014. ‘Sumud: A Palestinian philosophy of confrontation in colonial prisons’. South Atlantic Quarterly 113/3: 547–78. Mittermaier, Amira, 2013. ‘Trading with God: Islam, calculation, excess’, in Janice Boddy and Michael Lambek (eds), A Companion to the Anthropology of Religion. Oxford: John Wiley & Sons, 274–93. Mittermaier, Amira, 2019. Giving to God: Islamic Charity in Revolutionary Times. Berkeley CA: University of California Press. Muslim, ibn al-H . ajjāj al-Qushayrī, 1976. S.ah.īh. Muslim: Being Traditions of the Sayings and Doings of the Prophet Muh.ammad as Narrated by His Companions and Compiled under the Title al-Jāmiʿ al-S.ah.īh., trans. ʿAbdul Hamid Siddiqi. Lahore. Nashif, Esmail, 2008. Palestinian Political Prisoners: Identity and Community. London: Routledge.

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Nawawī, Abū Zakariyyā Yah.yā ibn Sharaf al-, 1975. Gardens of the Righteous (Riyād. al-s.ālih.īn). London: Curzon Press. New York Times, 2019. ‘One month, 500,000 face scans: How China is using A.I. to profile a minority’. 14 April. www.nytimes.com/2019/04/14/technology/ china-surveillance-artificial-intelligence-racial-profiling.html (accessed 19 April 2019). Qaddūmī, Marwān ʿAlī, 2012. ‘The drinking provision and waqf fountains in the city of Nablus’ (al-saqāya wa-l-asbila al-waqfiyya fī madīnat nāblus). Conference on Manifestations of the Movement of History in the City of Nablus (muʾtamar tajalliyyāt h.arakat al-tarīkh fī madīnat nāblus). Nablus: Najah University. Roberts, Sean, 2018. ‘The biopolitics of China’s “war on terror” and the exclusion of the Uyghurs’. Critical Asian Studies 50/2: 232–58. Samara, Adel, 2000. ‘Globalization, the Palestinian economy, and the “peace process”’. Social Justice 27/4: 117–31. Satkunanandan, Shalini, 2015. Extraordinary Responsibility: Politics beyond the Moral Calculus. Cambridge: Cambridge University Press. Schaeublin, Emanuel, 2012. ‘Role and governance of Islamic charitable institutions: Gaza zakat organizations (1973–2011) in the local context’. CCDP Working Paper. Geneva: Graduate Institute of International and Development Studies. Schaeublin, Emanuel, 2019. ‘Islam in face-to-face interaction: Direct zakat giving in Nablus (Palestine)’. Contemporary Levant 4/2: 122–40. Schielke, Samuli, 2015. Egypt in the Future Tense: Hope, Frustration, and Ambivalence before and after 2011. Indianapolis IN: Indiana University Press. Southern, Richard William, 1963. Saint Anselm and His Biographer: A Study of Monastic Life and Thought. Cambridge: Cambridge University Press. Taghdisi-Rad, Sahar, 2014. ‘The economic strategies of occupation: Confining development and buying-off peace’, in Mandy Turner and Omar Shweiki (eds), Decolonizing Palestinian Political Economy: De-development and Beyond. Basingstoke: Palgrave Macmillan, 13–31. Turner, Mandy, 2014. ‘The political economy of Western aid in the occupied Palestinian territory since 1993’, in Mandy Turner and Omar Shweiki (eds), Decolonizing Palestinian Political Economy: De-development and Beyond. Basingstoke: Palgrave Macmillan, 32–52. Turner, Mandy and Omar Shweiki (eds), 2014. Decolonizing Palestinian Political Economy: De-development and Beyond. Basingstoke: Palgrave Macmillan. Weber, Max, 2004. ‘Politics as a vocation’, in David Owen and T. B. Strong (eds), Max Weber: The Vocation Lectures. Indianapolis IN: Hackett, 32–94. Weil, Simone, [1951] 2009. Waiting for God. New York: HarperCollins. Williams, Bernard, 1985. Ethics and the Limits of Philosophy. Cambridge MA: Harvard University Press.

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Part III

Rules about rules

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Tactics of transformation: Self-formation and the multiplicity of authority in Polish conversions to Judaism Jan Lorenz The crumbling of the authoritarian regimes in Central Eastern Europe in the early 1990s had important implications for Judaism. The People’s Republic of Poland had been anything but a country embodying the tenets of supposed communist internationalism. Anti-Semitism and vitriolic nationalism were rife and had gradually forced the vast majority of the post-Holocaust remnants of Polish Jews either to flee the country or stay and hide their Jewish ancestry (see e.g. Zaremba 2001; Stola 2005; Gasztold-Seń 2012; Auerbach 2013). The transition to a liberal democracy in the 1990s, on the other hand, tried to implement the ideals of multiculturalism and minority rights. Instrumental in that shift was political pressure from abroad, especially from the North Atlantic Treaty Organization and the European Union (see e.g. Kymlicka 2005; Mach 2007). In respect to Polish Jews and their descendants, the political shift resulted in legislation that allowed for the struggling Jewish institutions to reclaim property seized by the communist state and opened the way for international Jewish charities to send their emissaries and teachers to support Polish Jewish congregations. This phenomenon was largely separate from a popular interest in Jewish music and craft among mostly non-Jewish Poles (see e.g. Lehrer 2013; Waligórska 2013). The notion of ‘revival’ has been extensively used in Polish Jewish discourse to capture ideas and practical efforts to reform Jewish institutions, education and religious life during this period. One of the most tangible and crucial changes brought by these efforts was the enabling of conversion to Judaism or giyur (Grabski and Stankowski 2012). The revival was necessary to it since the rabbinical legal infrastructure on which such conversion depends had been dissolved more than three decades earlier. The Jewish legal tradition is known as halakhah and is grounded in the Hebrew Bible (the Tanakh)1 and the body of rabbinical interpretations of biblical passages assembled in the Talmud, also called the Oral Torah, and, by Orthodox Jews, considered as binding as the biblical scriptures it complements.2 The body of halakhah also includes rabbinical legal opinions (responsa), which have accrued over centuries, and continues to

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be a ‘living’ practice of legal interpretation and ethical guidance (Cooper 1987: 57). Denominational variances notwithstanding, observance of rules derived from the Tanakh is at the core of pious life according to the tenets of Judaism, and in more strict interpretations frames almost every aspect of life, from worship, through social interactions, hygiene, sexuality to dietary restrictions. It is thus an obviously ‘ruly’ ethical tradition (Clarke 2015), in the terms proposed in this book (see the Introduction). At the same time, such legal interpretation, ethical teaching and everyday guidance is adapted both in respect to the historically changing context (see e.g. Kahn 2000), and also in respect to the infinite contingencies and dilemmas of human life. Even the strictest interpretations of halakhah advocate exceptions in observance of otherwise binding rules when a more fundamental moral obligation necessitates doing so. For example, a pious Jew is permitted to break the laws of Shabbat in order to save human life. In this sense, the real-life application of halakhah resembles modalities of legal interpretation found in the Islamic sharia and, historically, Christian casuistry (see Chapters 3 and 9). According to halakhah, giyur is the ritual that turns a non-Jew into a Jew. Conversion is the only way of becoming Jewish for someone who was not born so. The latter, in Orthodox and Conservative Judaism, means being born of a Jewish mother or, in the majority of Progressive Jewish congregations, having at least one Jewish parent.3 In Poland, conversion candidates include both Poles without Jewish family ties and those who do have some such tie, but not one that meets these minimal halakhic criteria of recognised ancestry. Extensive legalism, understood as ‘discussion of moral order’ (Dresch 2012: 12; see also the Introduction), is central to the process of giyur in several dimensions, the most evident of which are the halakhic prescriptions concerning the conversion and rules of moral and pious life one is to lead during the process of becoming Jewish and after its conclusion. Giyur is preceded by a period of preparations, including studying the biblical texts, becoming competent in religious practice and learning how to live in accordance with the precepts of the divine law. Men are expected to undertake circumcision by a mohel, a trained circumciser. This process of preparations, which can last from a year to several years, ends with the passing of a judgement by a rabbinical court, or bet din, based on an examination testing the candidate’s dedication and knowledge.4 A positive judgement is followed by tevillah, an act of immersion in a mikveh, a bath or pool of water used for ritual purification. Once the rabbinical court has given a positive verdict, the person becomes a Jew, and the process is – or should be – irreversible. The convert’s offspring in every generation until the end of time is to be Jewish, regardless of whether they believe in the propositional tenets of Judaism, live according to biblical commandments or engage in any sort of religious practice. Thus, although an essentially legal

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process, once realised, giyur becomes an embodied fact: not only literally inscribed on the body – in the case of male circumcision – but with genealogical consequences, creating a status that will be transmitted through procreation and the upbringing of one’s children and grandchildren (see e.g. Rosenbloom 1978; Porton 1994). Giyur is a Judaic ritual and transformation that applies, ipso facto, only to non-Jews, and not a transformative practice among those who are already Jewish.5 However, this ideal of giyur does not fully express the complex situation in modern Poland, where Jewish communities exist within the legalistic frameworks of competing local and transnational institutions. The laws that affect conversion to Judaism are neither exclusively attached to the bureaucratic apparatus of a state nor to a single set of religious precepts sanctified by tradition, but to a multiplicity of domains consisting of written and unwritten rules and individual actors who act as interpreters, enablers and judges of the conversion process. This can include the Chief Rabbinate of Israel (which has become global in its reach), but also the secular Israeli institutions of the Ministry of Absorption, or, to give a smaller scale example, the authority of an American rabbi in a Progressive Warsaw Jewish congregation, who himself may indirectly represent the World Union of Progressive Judaism. The Polish Jewish case thus illustrates the emergence of a global arena of conversion processes. The prospects of successfully conducting a personal project of transformation within the legal, which is to say halakhic, matrix of giyur in this revived part of the Diaspora is conditioned by the existence of multiple institutional and human actors. Giyur is enabled, supervised and authorised simultaneously by numerous interpreters of the law. The question becomes how these different sets of rules, authorities and interpretations relate to one another. Building on the discussions of rules and self-formation above (Chapters 1, 2, 3 and 6), this chapter argues that giyur in Poland is transformative in two senses. First, it is a transformation in its abstracted and individualistic form, prescribed in halakhah and supervised by rabbis. In this sense it is a transformation into the (idealised) state of an observant Jewish individual. A second understanding of conversion emerges in modern Poland and arises in the context of the multiplicity of Jewish authorities. This concerns the public recognition of one’s changed status. Central to this second transformation is the question of the legitimisation and authentication of one’s conversion. The legal and theological arena of contemporary Judaism is highly diverse, in terms of religious denominations, rabbinical organisations, rabbinical courts and, in Israel, secular authorities. In practice, then, the process of conversion and its ideal outcome are tied to various legal (halakhic) frameworks or, better yet, matrices of giyur that are ­appropriated to realise these transformative projects.

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These different domains of authority over giyur play important roles. On the one hand, proselytes strive in an individualistic effort to achieve aims of their own choosing.6 On the other hand, religious authorities are necessary to authorise their efforts. This authoritative intervention allows a ritual transformation that may or may not be followed by further legitimisation by the officials of the Israeli state or authorities of a Jewish organisation which accepts them as members. In this second sense, the transformation is into an identity that exists in a dynamic relationship with the multiplicity of normative authorities. As I will show, drawing on intermittent ethnographic fieldwork in Poland in 2007–17,7 the various systems of rules associated with these multiple authorities may complicate projects of self-formation, but also allow for the transformation to accommodate converts’ expectations and needs. In the absence of clear meta-rules governing these competing systems of rules, converts are obliged either to develop strategies or to request expert advice on how to negotiate this complex landscape. In some instances, the possibility of shifting between these domains becomes intrinsic to the completed transformation into the envisioned self. First, I discuss the range of aspects in which giyur is a legalistic process and the diversity of the domains of authority to which it is subject. I then go on to discuss several individual cases of conversion to Judaism, or at least the preparations for it, in the context of these competing domains governing the validity of conversion. My aims are twofold. I first argue that the coexistence of competing domains of authority over giyur in a globalised world, where these domains often overlap, disturbs the finality of many conversion projects and introduces unprecedented ambivalence into the process of becoming Jewish through a religious ritual. Second, building on that, I then argue that, in some instances, it is the very process of navigating and coming under the jurisdiction of those competing domains that becomes the defining element of giyur as a practice of becoming. It is not just the rules of Jewish identity and practice that are debatable here: there is also considerable uncertainty as to what constitutes a legitimate domain for the formation of such an identity.

Self-transformation as a legal process In a halakhic – that is, in a legalistic and theological – sense, giyur means becoming an observant Jew. Converts voluntarily submit themselves to rules and constraints in order to effect the desired transformation. The rules, beginning with 613 mitzvot, divine commandments, have been fundamental to Judaism and remain so for religiously observant Jews. These,

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like all rules in Rabbinical Judaism and with varying degree across the range of its contemporary branches, derive from the historical interpretation of the Tanakh, as is the case with the 39 melachot, that is, prohibitions, concerned with Shabbat, or with the non-biblical yet customary obligations like the need for Jewish men to cover their heads outside homesteads. Across the  centuries, there were multiple codifications of halakhah, the most famous being perhaps the twelfth-century ce Mishneh Torah by Maimonides, Jacob ben Asher’s fourteenth-century Arba’ah Turim and the sixteenth-century Shulkhan Arukh by Joseph Karo, followed by a gloss to Karo’s codification, the HaMapah, authored by Moses Isserles.8 The extent to which these rules are recognised across the spectrum of Judaism in ­individual lives is highly variable. In the course of my ethnographic work and encounters with conversion programmes and individuals involved in giyur as enablers, arbiters and, most of all, proselytes, I began to understand Polish conversions to Judaism as a distinct discipline of self-formation. Giyur could thus be seen as a ‘technology of self’ (see Foucault 1988), emergent not solely in theological precepts or rabbinical responsa, but in the actual practice of conversion. The halakhic framework of giyur was adopted by Poles wanting to become Jews in order to fulfil individual projects of transformation, which are not necessarily contrary to the halakhic model of the process, but often extend its boundaries. My notion of ‘technologies of the self’ derives from what Michel Foucault (1988: 18) defined as ‘matrices of practical reason’, ‘which permit individuals to effect by their own means or with the help of others a certain number of operations on their own bodies and souls, thoughts, conduct, and way of being, so as to transform themselves in order to attain a certain state of happiness, purity, wisdom, perfection, or immortality’. As a technology of self, framed by halakhah, giyur actually or potentially involves bodily transformations and discipline, acquisition of knowledge and habituation of ritual practice, remaking of one’s home to suit the rules of kashrut (kosherity), reconfiguring of one’s relations with family and friends and, occasionally, migration. The piety and ethical conduct that converts aspire to attain associate giyur with self-cultivation, in ways akin to the Islamic and Christian practices others have described (e.g. Chapters 3 and 6; see also Mahmood 2005; Hirschkind 2006). For observant Jews, piety can be a technology of the self in which one imposes on oneself a disciplined practice within the framework established by religious texts and legalistic ethics, as a means of facilitating self-realisation. Submission to commandments and prohibitions here tends to be a continuous practice (as described for Islam by Mahmood 2005 and Hirschkind 2006). Giyur exemplifies an alternative model of self-formation in the sense that it is not a lifelong transformative practice, but a temporally delimited process of rupture

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and reassembly. It is also a one-off process, even if there are e­ xceptions to that rule, as I will demonstrate below. Above all, and beyond Foucault’s definition, giyur involves the mobilisation of legalistic procedures that enable and validate the conversion. Conversion rests on the presence of a codified set of religious and ethical obligations. This means that the existence of multiple and competing dominions of legality determines the way in which the conversion process plays out. Roughly speaking, there are three main strains of Judaism that convert non-Jews, each of which is internally diversified: Orthodox Judaism (including the Ultra-Orthodox or Haredim), Conservative Judaism and Progressive Judaism (which, in the UK, for example, is divided into two main branches: Reform and Liberal). Although, halakhically speaking, conversion can be authorised by a minimum of three righteous Jews, in practice the preparation and commitment of conversion candidates is judged by a rabbinical court – that is, an assembly of rabbis. Formally, rabbinical courts are independent from each other. Nevertheless, the judgements of only some courts are particularly respected nationally or even internationally. In the Diaspora, this authority is derived both from the status of the rabbis assembled in a given court and their affiliation, if any, to one of the leading rabbinical organisations such as the World Union of Progressive Judaism, the Rabbinical Council of America (Orthodox Judaism) or Masorti Olami (Conservative Judaism). In Israel, state-recognised conversions are under sole jurisdiction of the Chief Rabbinate of Israel (henceforth, ‘the Rabbinate’), made up of Orthodox rabbis, which selectively recognises the authority of some Orthodox rabbinical courts in the Diaspora, while indiscriminately rejecting the legitimacy of all conversions supervised by rabbis representing Conservative or Progressive Judaism. In recent years, the Rabbinate has been known to retroactively revoke the legitimacy of conversions performed outside its jurisdiction. This has particular gravity in Israel, where, unless a person is born Jewish, conversion performed by the Rabbinate is necessary for being fully recognised as Jewish by the state. The actual experiences of my non-Orthodox interlocutors illustrate that the Israeli Ministry of Absorption did recognise non-Orthodox conversions conducted outside Israel in regard to eligibility for citizenship, but also that the convert would not be recognised as fully Jewish, necessary to marry a Jewish spouse, be buried in a Jewish cemetery or have one’s children be recognised as Jewish by both the Rabbinate and the State of Israel. I return to this complex matter below. These different branches within Judaism, the Israeli state and Poland’s Jewish Communities with their own laws of membership, constitute the most important of the aforementioned domains of legal and moral authority.9 ‘Domain’ is here an analytical term that denotes institutions,

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­nation-state territories, communities and groups that have or claim jurisdiction over making someone Jewish through conversion – at the very least, organising a religious court (usually rabbinical, but as I will illustrate, not necessarily) that finalises preparations for giyur in the legal and ritual sense. These legal domains claim religious and moral authority over the conversion judgement and, in some cases, take a hand in the procedures governing its preparations. Here, I consider these domains in relation to giyur as well as the recognition and inclusion of converts. But I should stress that in most instances the claim to the right to make someone Jewish is an extension of a claim to authority over the criteria of Jewish belonging, either on the local scale of a congregation (see e.g. Buckser 2003) or on a larger scale, as is the case with the Chief Rabbinate of Israel. Conversion is impossible without these legalistic domains, which aim to enforce institutional control over its process and outcome. Each convert must inevitably engage with at least one domain and its rabbinical ­authorities, which shapes the course of conversion. In Israel, immigrants trying to become a part of the Israeli body politic engage with just one domain, that of the Rabbinate. Polish converts in the Diaspora prepare for and experience giyur differently, even in instances when a given conversion is supervised and finalised by Israeli rabbis. Local rabbis (and occasionally non-rabbinical educators), most of whom are expatriates, play a fundamental role as spiritual and ritual advisors, similar to their equivalents in the Islamic and Christian traditions described elsewhere in this book (e.g. Chapters 3 and 9). Halakhic frameworks and rules are indispensable to enable converts’ complete transformation into Jews. For most converts, the system of halakhically ordained procedure creates a space of learning and socialisation necessary to eventually partake in acts of communal worship and interactions. In the Polish context, this process nevertheless primarily authenticates a strong prior sense of belonging derived from kinship ties or religious conviction. While the final ritual act of giyur legitimises and socially authenticates the new identity, conversion is thus a process, supervised by a number of religious-legal authorities: a local rabbi who teaches and guides converts; a mohel, or circumciser (for men); and a rabbinical court that eventually tests the candidate, passes judgement and supervises the immersion in mikveh. They are all authoritative witnesses to the successful metamorphosis. My interest here is in the ways in which converts can contest the authority of specific legal domains and rabbis supervising conversion, without questioning the underlying authority of halakhah and the ritual agency of giyur as a transformative procedure. As I will show, transforming oneself into a Polish Jew may require accepting the uncertainty of such becoming in the global arena of contentious legalistic authorities, in contrast to the

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halakhic ideal of definite conversion. In some cases, completing giyur entails adopting elaborate tactics of shifting between authorities, institutions and spheres of influence. Informal strategies as to how to succeed in the formalised process of conversion themselves become a kind of common knowledge among more seasoned conversion candidates, which can be understood as belonging to giyur as a particular technology of self.

Cases of conversion Dawid and Bartosz10 Back in 2010, I did fieldwork at a religious-educational summer seminar for adults organised in Jerusalem by Shavei Israel, an NGO active in the Polish Jewish congregation that was the main site of my research. At the seminar, which lasted two weeks, I met several men preparing for conversion, under the guidance of two rabbis based in Poland: one rabbi was an Israeli, residing in Kraków, and the other an American, based in Warsaw. The potential converts wore kippot (skullcaps) or other head coverings at all times while in public, attended all prayers and – on first impression – it was impossible to tell apart those preparing for conversion from Jewish seminar participants. When I interviewed one of the prospective converts, Dawid, in Poland five years later, however, I learned that his conversion became quite a predicament. Shortly after returning from that seminar, Dawid, along with two friends from his conversion course, decided to visit Dynów, a small Polish town, about 100 kilometres from Kraków. Dynów would hardly be a tourist destination but for the fact that it is the site of the grave of Rabbi Tzevi Elimelekh Shapira, who lived at the turn of the nineteenth century and was one of the seminal figures of Hasidism, a mystical strain of Judaism, and the founder of the Dinov dynasty of Hasidic spiritual leaders. Each year in January, Hasidic Jews from around the world come to Dynów to commemorate the anniversary of the Rebbe’s death and to pray at his grave. An equally large gathering of Hasids takes place in September, to pay homage to Dynów Jews, burned alive in their synagogue during the Holocaust. Dawid and his friends went to Dynów along with his supervising rabbi to commemorate the dead and to celebrate Rosh Hashana, the Jewish New Year. In Dynów, Dawid, along with others, was ‘kidnapped’, as he expressed it jokingly, by the Hasids, who avidly invited the young men to join the celebrations. Afterwards, the Hasids asked them about their status as prospective converts. Upon learning that they were already circumcised, educated about Judaism and strongly resolved to convert, the Hasids enquired as to

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why Dawid and others should wait for the rabbinical court and offered to finalise their conversion on the spot. As far as legal opinion in the Talmud (Yevamot 46b) and codification in Shulkhan Arukh (Yoreh De’ah 268:3) dictates, the Hasidic pilgrims were right, since a bet din does not have to be composed of rabbis, but merely of righteous Jews with sufficient expertise in halakhah. The question of what constitutes sufficient legal expertise, on the other hand, is debatable, between halakhic scholars and the different denominations of Judaism. On the second day of Rosh Hashana, during Zum Gedalia, the fast of Gedalia, the Hasids suggested that Dawid and his friend, Bartosz, should ‘submerge in mikveh and become Jews’, as Dawid described it. The Hasids quickly assembled among themselves the rabbinical court of three that then certified the conversions. After Dawid and Bartosz immersed in the ritual bath, their conversion was seemingly complete. However, the conversions performed by the Hasidim in Dynów were not agreed upon by the Modern Orthodox rabbis who supervised Dawid and Bartosz, at that time living and preparing for giyur in two different Polish cities. The conversions, in other words, were done outside the intended domain of legal authority, which in both cases was to be an Orthodox court recognised by the Chief Rabbinate of Israel. Bartosz continued to stay in the course, together with his then girlfriend, and eventually was converted by a rabbinical court composed of two dayanim (judges) from the London bet din and three expat rabbis living and working in Poland. Dawid, on the other hand, considered his Hasidic giyur to be legitimate, and did not seek to be converted again in Poland. Sometime after, he went through a period that he described as a ‘temporary lapse’ in observance of halakhah. His deliverance, as he saw it, came in the form of an invitation from an Israeli Ultra-Orthodox yeshiva.11 Dawid went to study there as a non-Jew (for the Israeli state) and as a Jew (for the Haredi Jews that invited him). While in Israel, he enquired about his status and asked the Chief Rabbinate of Israel about the possibility of authenticating himself in a manner that would grant him their recognition. It turned out that – unlike in Bartosz’s case – this authority deemed it impossible, as he was already converted: Jewish enough not to be able to undergo giyur, but at the same time, not Jewish enough to claim Israeli citizenship or marry an Israeli Jew and have children that would be considered legally Jewish. The question of whether one can undergo giyur twice is problematic. Theologically and legally speaking, one cannot. A person is either a Jew or a non-Jew – a Gentile – and there is no status in between. Practically speaking, double conversions sometimes happen in Poland, but when they do, it is usually a case where an individual is first converted by a Progressive bet din (for example, in the Beit Warszawa congregation),

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and then decides to undergo Orthodox conversion (for example, in the Warsaw Nożyk Synagogue). I heard of two reasons for doing so: one was the sense that undergoing Orthodox conversion would make one ‘more’ or ‘properly’ Jewish – in line with a more observant lifestyle that a particular convert may see as more authentic. Another reason, and one that seems to inform the very notion of what counts as authentic, is the question of ­recognition – everyone, at least theoretically, recognises Orthodox conversion, while it is not so with Progressive giyur. It is, then, the inchoate hierarchy of giyurim (pl. of giyur) that technically enables converting twice. By allowing a second giyur an Orthodox bet din implicitly invalidates the first, non-Orthodox giyur and reverts the convert to the status of a non-Jew in order to make him or her Jewish (again). The situation in Dawid’s case was even more problematic, though, since the first giyur counted as Orthodox. Since Hasids are Haredim (Ultra-Orthodox), the conversions at Dynów were conducted by a group that adheres to even more demanding standards of halakhic observance.12 Both giyurim took place within the same denomination of Orthodox Judaism, yet they operated in discrete domains of legality, one solely halakhic and the other additionally endowed with the political authority of the state.13 The result is that a halakhically valid Orthodox conversion might not always be acknowledged by all members of that denomination writ large. So too, during my research in Warsaw I came across a number of cases where a double conversion was conducted, technically speaking, within the same Progressive domain. The second conversion was deemed necessary because the ritual and legal legitimacy of the first was put into question when the convert joined a new Progressive congregation, which did not recognise the authority of the former. When I last met them in 2015, Dawid and Bartosz were both frequenting the synagogue and social centre run by local emissaries of Chabad Lubavitch, an Ultra-Orthodox organisation with headquarters in New York. While Dawid was religiously observant and even dressed as one would expect from an Ultra-Orthodox Jew, Bartosz had a girlfriend from a Reform Jewish community, did not keep kosher and only intermittently visited the synagogue on Shabbat. Both men considered themselves and each other Jewish, but their legal and religious statuses were largely determined by the conundrums surrounding their conversions: a string of coincidences, rabbinical interpretations and choices they had made without necessarily being aware of their full consequences. Such double conversions represent a fraction of cases I studied, but illustrate well a more profound problem of interdenominational recognition of giyur and its real-life implications.



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Wanda The example of Wanda, a woman in her twenties, would serve to illustrate a situation in stark contrast to that of Dawid, yet equally defined by the interplay between personal projects of transformation and the shifting balance between rival institutions. Here, becoming Jewish through giyur was partially realised by engaging the authority of a secular dominion extending beyond the rabbinical jurisdiction. Wanda converted in late 2012 (under Progressive authority) and, soon after in early 2013, travelled to Israel and went to the Jewish Agency, or Sohnut, an American-Israeli nonprofit organisation instrumental in organising Jewish immigration to Israel. Sohnut helped Wanda with paperwork and she told me she received much advice and support from the manager responsible for supervising Eastern European affairs. Later on, her application for aliyah or ‘ascension’ – ­immigration to Israel – was streamlined by a Polish Jewish employee of the Jewish Agency and by the consul of Israel in Poland. Wanda’s motivations for conversion were not entirely defined for herself, or at least that was my impression. She was originally drawn to consider the possibility after falling in love with a religious Jew, himself an immigrant to Israel. The relationship did not last, but she still wanted to become Jewish and got involved in the conversion programme of a Progressive Jewish congregation. Ultimately, her giyur was ratified by a bet din in London under the auspices of the World Union of Progressive Judaism. She formally ‘did aliyah’, that is, migrated to Israel on the basis of being Jewish, with the intention and expectation to claim Israeli citizenship after the customary period of residence. To an Orthodox rabbi, and most likely many if not all Conservative rabbis, Wanda’s giyur would be illegitimate. Within those denominational frameworks, she would not be able to marry a Jewish man and her children would not be considered Jewish. For the Israeli Rabbinate she was simply not Jewish. Consequently, while in Israel, she and her children, if born, would not be able to legally marry another Jew or act as Jewish in any area of life under the jurisdiction of the Rabbinate. Yet, the secular administration of the Israeli state recognises Progressive conversions as legitimate. Here we have another legal paradox that can be fully appreciated only in relation to the case of Dawid. Wanda’s giyur was conducted completely outside the jurisdiction of the Rabbinate, beyond the perimeter where the validity of such conversion would even be considered. The state circumvented the Rabbinate by allowing a non-Orthodox convert to become Jewish enough to make aliyah. But while in Israel she came under the jurisdiction of the Chief Rabbinate and was not considered Jewish for ­marriage before a rabbi or interment in a Jewish cemetery. In this regard, the secular officials of the Jewish Agency enabling and fast-tracking Wanda’s a­ bsorption

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acted as agents of another dominion of legality within Israel, but, like the influence of the Rabbinate, extending far beyond its borders. The case of Wanda illustrates how giyur can become a process of twofold legitimisation and authentication, not due to the ambivalent status of the Rabbinate as a politically sanctioned and effective assembly, but due to the process of finalisation by secular institutions of the Israeli state. Such legitimisation retroactively inverts the usual hierarchy of authority I mentioned earlier: in the eyes of the state Dawid’s Ultra-Orthodox giyur was even less effective than Wanda’s Progressive one, and neither made them u ­ nambiguously Jewish in the political-religious reality of contemporary Israel.

Edward and Joanna As I mentioned earlier, the encounter with these various domains of legality is to a considerable degree inflected by the converts’ personal projects, but Dawid, Bartosz and Wanda had not been fully aware of the perimeters and complex interrelations of those domains prior to the conversion. I will now present a case where the tactics of engagement with the legal domains of giyur were more consciously informed by a project of ethical and spiritual becoming. Edward, a Polish man in his fifties, converted with his wife, Joanna, before a court assembled in Israel. His conversion process had started years before, in what he himself saw as a gradual progress towards Judaism, involving acquiring both orthodoxy and orthopraxy – that is, an understanding of God’s vision for himself and the religiously observant life. In that sense, it was a spiritual journey that began with the Catholicism he had been raised in. He then became involved with evangelical Christian denominations, Pentecostalism and eventually with Messianic Judaism, which in Poland has mostly non-Jewish followers. Finally, five years ago, Edward came to a Polish Jewish congregation and sought conversion. He was already, at that point, convinced that he should become Jewish: that is, this was the ultimate stage of his search for what he considered the true religion and the right way to worship God.14 Edward and his wife formally entered the conversion process with an already considerable knowledge of the Bible, having studied it as Christians. This knowledge may, from the perspective of his educators, have been counterproductive, as I was told by one of the teachers, himself an Orthodox Jew. Such religiously saturated proselytes, he said, tend to transpose Christian interpretations of the Bible onto Judaism and halakhah, sometimes subconsciously and inadvertently, by being confident that their understanding is indeed transferable. Edward, on the other hand, as an Orthodox Jew, later spoke of these long-time preparations prior to the conversion process as beneficial and conducive to being a good Jew. He and his

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wife also had a prior training and discipline of studying. They soon became knowledgeable about halakhah and confident that what they  sought was Orthodoxy, seen by them as the form of Judaism most closely and stringently following the biblical precepts. They were happy with the education they received, but as they became more knowledgeable – in their own understanding – they began to see the Orthodox rabbi of their congregation as too liberal and lenient. The crisis happened after brit milah – the circumcision of Edward – when on one occasion, the rebbetzin (the rabbi’s wife) extended her hand to shake Edward’s. He politely declined and explained that as an Orthodox Jew he cannot touch a woman that is not his wife, let alone shake her hand. This specific prohibition, negiah, derived from the Book of Leviticus (18:6 and 18:19) and its subsequent Talmudic interpretation, is followed by the Haredim, the Ultra-Orthodox Jews, but not all self-identified Modern Orthodox Jews prohibit shaking hands when it is merely a sign of courtesy. Here the local rabbi, a Shavei Israel emissary serving the congregation, and his wife followed a more lenient interpretation. Edward felt he was being fashioned into a particular mould of Judaism and knew that opposing the interpretation of religious legal tradition of the rabbi – his direct supervisor and teacher – would jeopardise his chances of conversion. In fact, this conflict and others concerning the moral precepts of Judaism soon overshadowed their relationship. Eventually that rabbi left the congregation. Edward, upon the recommendation of another rabbi sent by Shavei Israel, contacted yet another Poland-based rabbi who, seeing that Edward and Joanna were fully prepared to stand before the rabbinical court, arranged the final stage of their conversion and subsequent Jewish wedding in Israel with an Orthodox yeshiva located in one of the Religious Zionist settlements in the West Bank. Edward and Joanna faced a rabbinical court composed of six Israeli rabbis and two rabbis from Poland acting as translators. The proceedings of the bet din that they faced to convert were a further occasion when Edward stood by his own vision of transformed life – his life as a Jew. Two of the court rabbis insisted that he and Joanna should move to Israel or a large Orthodox Jewish community in the West or, at the very least, to one of two Jewish congregations in Poland with strong Orthodox religious infrastructure. That recommendation was not, in fact, uncommon – Orthodox converts in particular are usually advised to join communities that are perceived as potentially supportive and conducive to the convert’s observance of halakhah. Edward told me that the suggestion was given in an abrasive manner, almost becoming a formal request. He declined, arguing that they could uphold halakhic obligations where they were, that their commitment and the small congregation where they practised was sufficient. During Joanna’s examination before the rabbinical

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court, she too got into an argument with one of the assembled rabbis over the provenance of a passage from the Book of Prophets, which she and her husband retrospectively thought of as proof of her theological competence and readiness for conversion. Nevertheless, both Edward and Joanna were converted on the same day. When I spoke to Edward a few months after, he was convinced that their conversion would be recognised everywhere and was particularly fond of the fact that it happened in Israel – he identified himself as both ‘Orthodox’ and ‘Zionist’ – the former being one of the reasons why Edward turned down a proposal to convert before a Progressive bet din, an offer he received from one of the Polish Progressive rabbis. As Edward told it, the head of the Orthodox bet din that converted them, Rabbi Rosen, was a dayan, a religious judge, and a former member of the Israeli Rabbinical Court. Edward seemed unaware, however, of the fact that Rabbi Yisrael Rosen was, at the time of our conversation, involved in organising private conversions outside the jurisdiction of the Rabbinate. Further, he was part of a movement among Religious Zionist rabbis, which contests the Rabbinate’s dominion of legality by organising conversions on their own. There are two main inferences that can be drawn from Edward and Joanna’s case that relate to the legal dimension of giyur. First, shifting between domains – here, between supervising rabbis in different Polish cities – allowed for realising the project of transformation on one’s own terms, as did the very conscious choice of the branch of Judaism and its conversion programme that meets the convert’s notions of divinely ordained obligations and their fulfilment. Edward and Joanna’s case clearly illustrates that contesting a given rabbi or domain does not undermine the authority of the Torah and halakhah. Second, even if this particular transformation via giyur was – for the converts at least – a planned and controlled process leading to unambiguous recognition as Jewish, its legal outcome could still be open to question, since the conversion was conducted outside the jurisdiction of the Israeli Rabbinate. Edward and Joanna submitted only selectively to rabbinical authority in their pursuit of transformation, as well as consciously choosing a particular dominion of legality for conversion. This particular model of transforming one’s life is dependent on submission to authority, but at the same time, it mobilises authoritative frameworks in order to pursue ­idiosyncratic and individualistic visions of self.

Daniel A final case will illustrate the way in which these legalistic procedures can be used in projects where the people involved in the conversion process have additional ethical motivations for becoming Jewish that are not formally

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recognised as relevant by Rabbinic conversion courts. Candidates for conversion are expected to embrace prohibitions and obligations commanded by God in their daily lives. In this aspect, rules are effectively pre-existing religious and ethical precepts, spelled out in the written legal tradition of holy texts and historically accrued rabbinical interpretations and responsa. For some converts, particularly Orthodox ones, such submission to rules is an indispensable condition of conversion, but for all converts the external proclamation and performance of such submission is a condition of being given a positive verdict by the conversion court. This case, that of a man called Daniel, shows that giyur can be further driven by moral obligations and aims extending beyond halakhic justification, while not denying its precepts and the transformative power of the conclusive ritual. For converts like Daniel the rules of Jewish practice and the legal frameworks of giyur may serve such personal aims, without necessarily excluding other motivations. More than half of the Polish converts I encountered were of partial Jewish ancestry, or at least believed they were, but they did not, prior to conversion, meet the qualifications for being recognised as Jewish by most denominations of Judaism. The complexity of their reasons to convert exceeds the framework of this chapter, but one of the prominent ones I encountered was the sense of moral obligation to claim an identity that had had to be hidden or muted by their parents and grandparents. Such was, for example, the motivation of Daniel, then a young middle-class man in his early twenties, whose plans to convert were first and foremost driven by such a link to the past: to those who perished in the Holocaust, and to his late grandfather who had survived, and who used to go to the local synagogue even if in daily life he largely kept his Jewish identity a secret. Daniel’s sense of obligation was both towards the living and the dead, as he underscored that he was happy that, as he expressed it, his late grandfather lived long enough to witness Daniel’s transformation into a Jew. This perceived moral duty falls outside the halakhic framework of the conversion process. It is neither required in the conversion process, nor does it in any legal (or non-legal) sense legitimise a claim before the rabbinical court. At the same time, in this project of fulfilment of an ethical obligation, conversion becomes a technology enabling the completion of such a project. Daniel’s case is important in respect to my general point as to how giyur is transformed in the course of being set in the arena of coexisting domains of moral and religious authority and legal jurisdiction. It introduces a sense of direct ethical obligation, stemming from Polish Jewish ancestry and history, as a motive and aim of giyur that extends beyond the codification in any of those domains. Consequently, realising such a project of transformation necessitates making use of the rules for an end beyond them that is ­nonetheless clearly relevant to many projects of becoming Jewish in Poland.

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Rules are both fundamental to the transformative process, but at the same time, followed in order to realise personal projects driven by other needs and ethical obligations from outside the frame of reference of the word of law. As James Laidlaw (2002) argues with respect to Jains in India, rules are fundamental to the fulfilment of ethical obligations, but the  latter are not themselves limited to or constrained by the former. In many instances of conversion to Judaism in Poland the transformation was a personal endeavour driven by choices and judgements informed by a set of criteria outside the scope of halakhah. These include the notion of return, in the sense of embracing Judaism and Jewish identity, informed by a sense of obligation towards one’s living family or ancestors, an act of inchoate ordinary ethics specific (although hardly exclusive) to the conceptual and affective universe of Poland’s Jewish revival. There is a biblical Hebrew term, lifnim mi-shurat ha-din (beyond the line of the law), for virtuous acts that go beyond the letter of the halakhah, but do not transgress the obligations and prohibitions it establishes. Although I never heard ‘beyond the line of the law’ being mentioned during my fieldwork, many of the motivations that I encountered could be interpreted as belonging to such a sphere of the ethical that respects the expectations of a particular dominion of legality, but extends beyond its formal scope (Spero 1983).

Conclusion Becoming Jewish by conversion in Poland is an attempt to transform oneself. It may be an act motivated by the pursuit of love or to reach the end of a spiritual journey, to change one’s relationship with God or to join a group perceived as supportive and resilient, or in some instances be sparked and motivated by experiences or feelings regarded by the converts themselves as utterly inexplicable and perplexing. These legal, romantic, spiritual, ethical and social motivations and expectations often coalesce. To realise one’s own project of self-transformation requires submitting oneself to halakhic rules necessary to the transformation. Thus, individuals enter the institutional field of giyur: a local Jewish congregation and the supralocal space of Jewish summer camps, educational programmes, conferences and gatherings, in Poland and abroad. They also cross into the corresponding dominions of supervision and jurisdiction. In the cases I encountered, some conversion candidates were involved in the religious and social life of a single congregation, taught by their local rabbi or rabbis, who arranged their examination before a rabbinical court abroad. Preparing for and undergoing giyur involved actors from across the globe, but stayed within the domain of a single branch of Judaism. Others

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navigated the domains of authority over conversion in several dimensions. They shifted to different congregations and rabbis, travelled across Poland and visited rabbis and rabbinical courts residing abroad. Some candidates were keen on converting within the strain of Judaism that matched their own ideas of observance and religious practice; others seemed to be driven in their choice of a denomination by their desire to acquire a status that would make them accepted by all movements within Judaism. Some desired also recognition by the Israeli state; others were content with being accepted by their local congregations. Just how much significance the coexistence of contentious domains of authority over giyur had was considerably influenced by these individual sentiments and aims. Although giyur is, in halakhah and the teachings of rabbis and educators, a definitive final transformation, it may not always be so in the context of everyday life, precisely due to the existence of these competing domains of legality and authority. All the Progressive congregations and rabbis that I have come across recognise Orthodox and Conservative conversions. Among Orthodox rabbis and communities, however, the reverse is not so, or rarely so. The logic is simple. If, from the perspective of an Orthodox bet din, the Progressive conversion is invalid ritually and legally, then the convert is not really a convert and can be ‘properly’ converted anew. Some conversions thus guarantee a wider scope and probability of acceptance than others, and it is not uncommon for people to convert before an Orthodox bet din but later identify as followers or sympathisers of the Progressive movement. Occasionally, converts may decide to reconvert in a congregation they consider more ‘authentic’. Not everyone is willing to admit such a transition, retroactively perceived or rather reconceptualised as beginning with ‘not quite Judaism’. Although framed as a permanent binary process of transition, the predicaments I have described make some conversions a two-step process where the subsequent transitions seem dependent on strategic forgetting and retrospectively delegitimising prior transformations. Shifting between congregations becomes itself an ethical or moral act, in the sense that it mobilises the domains of legality in the process of self-fashioning oneself as a Jew, rather than conforming to any legal precept, since such shifts are beyond the scope of any formal regulations concerning giyur. The decision a candidate makes as to the authoritative domain overseeing and legitimising the conversion implies accepting or rejecting the oft tacit hierarchy of strictness and authenticity between them. Nearly all converts I came across during my fieldwork embraced the rules in the process of self-transformation rather than treated them as an obstacle or nuisance. In a sense, the possibility of choosing and, at times, shifting between domains of legal interpretation and authority allowed them to

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resolve conflicts between different visions of what it means to be Jewish. This very choice, however, is predicated on the assumption that the rules of transformation are significant and real, rather than an otherwise empty formality.15 Converts willingly choose to become constrained by rules that enable and direct their transformation. Yet, as the cases discussed above demonstrate, they often simultaneously subvert the authority of a particular domain, if not the authority of the halakhah itself, in order to realise their visions.

Notes   1 Tanakh comprises the Torah (a scroll with the Five Books of Moses, literally ‘Instruction’ or ‘Teachings’) and the texts of Nevi’im (‘Prophets’) and Ketuvim (‘Writings’).   2 For the sake of economy and clarity of argument, I am not able here to do justice to the diversity of opinions on the legal and moral authority of the Torah and Talmud across the denominational spectrum of modern Judaism.   3 Conservative Judaism (Masorti) is not institutionally present in Poland and has not been since 2003, when the last and only Conservative conversions took place in Poland, under the supervision of Rabbi Ivan Caine.   4 From the Orthodox Jewish legal perspective, acceptance of all divine commandments is indispensable to a successful giyur (Finkelstein 2006).   5 Such as those espoused by the movements of Baal Teshuva or, historically, Musar (see e.g. Fishman 1989).   6 As Joel Robbins argues in the context of conversions to Christianity from what he calls ‘local’ or ‘ethnic’ religions, religious conversion has been predominantly interpreted by anthropologists as either a utilitarian enterprise or a form of mental adaptation (Robbins 2004: 85). In the former, changing religious affiliation is thought of as driven by the pursuit of power, resources and higher social status. In the latter, it is a form of collective attunement to socioeconomic changes, induced by rapid modernisation or marginalisation, often in the context of colonialism. Becoming Jewish via giyur – a conversion to, rather than away from, an ‘ethnic’ religion – has often been seen by anthropologists as a utilitarian means to a non-religious end, usually social or political: for the sake of having a Jewish marriage, for instance (Buckser 2003), or becoming an Israeli citizen (Seeman 2010; Kravel-Tovi 2014, 2017). In Yulia Egorova and Shahid Perwez’s (2013) ethnography of Bene Ephraim (Indian Dalits, or untouchables), on the other hand, legitimisation by the Israeli state, along with the emancipation of a marginalised community, is a key theme, but the authors also bring to light instances where conversion becomes a ritual act that strengthens the ‘spiritual connection’ with the Land of Israel. Although my aim here is not to engage critically with Robbins’ thesis and the scholarship produced in response, in my view the aims and motivations of Polish would-be gerim invite us to reconsider

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the very categories of ‘intellectualism’ and ‘utilitarianism’ in conversion studies, as will become clearer in the course of my argument.   7 This chapter is based on interviews and intermittent participant observation carried out in the course of my longitudinal research on the Jewish revival in Poland, including thirteen months of continuous fieldwork in 2009–10. I did most of my fieldwork in Wroclaw, south-west Poland, but also at Jewish religious, cultural and social events in other Polish cities. In 2010, I conducted research in Israel, which included participating in the Shavei Israel summer seminar mentioned in the chapter, and also interviewed Polish Jewish converts in the UK. In January–February 2015, I conducted intense ethnographic fieldwork in Warsaw, focused specifically on conversions to Judaism.   8 Shulkhan Arukh followed Sephardic customs and interpretations, while HaMapah spells out the legal differences between Ashkenazi and Sephardic traditions.  9 Due to lack of space, I am not able to discuss here the role of Polish Jewish congregations in the conversion process. But these form domains in their own right, with their own formal and informal criteria of inclusion of converts (see Lorenz 2015). 10 All the names of converts are pseudonyms. 11 An academy of Talmudic learning. 12 It seems that the very possibility of reconversion in such a case rests on either eliding the theological and legal problem it posed or implicitly assuming that the Hasidim did not meet the standards of knowledge and observance to perform the halakhically binding giyur. 13 I have not had the chance to discuss this with the London bet din, partly because doing so could jeopardise my informants. 14 See Gooren (2010) for a detailed discussion of ‘conversion career’ as a religious phenomenon. 15 This stands in stark contrast to the cases described by Michal Kravel-Tovi (2014, 2017), where giyur becomes a rather harrowing performative ordeal allowing otherwise secular immigrants to become Jewish citizens of Israel.

References Auerbach, Karen, 2013. The House at Ujazdowskie 16: Jewish Families in Warsaw after the Holocaust. Bloomington IN: Indiana University Press. Buckser, Andrew, 2003. ‘Social conversion and group definition in Jewish Copenhagen’, in Andrew Buckser and Stephen D. Glazier (eds), The Anthropology of Religious Conversion. Lanham MD and Oxford: Rowman & Littlefield Publishers, 69–84. Clarke, Morgan, 2015. ‘Legalism and the care of the self: Shari’ah discourse in contemporary Lebanon’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 231–57. Cooper, Samuel, 1987. ‘The laws of mixture: The anthropological study in halakhah’, in Harvey E. Goldberg (ed.), Judaism Viewed from Within and from

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Without: Anthropological Studies. Albany NY: State University of New York Press, 55–74. Dresch, Paul, 2012. ‘Legalism, anthropology, and history: A view from part of anthropology’, in Paul Dresch and Hannah Skoda (eds), Legalism: Anthropology and History. Oxford: Oxford University Press, 1–39. Egorova, Yulia and Shahid Perwez, 2013. The Jews of Andhra Pradesh: Contesting Caste and Religion in South India. Oxford: Oxford University Press. Finkelstein, Menachem, 2006. Conversion: Halakhah and Practice. Ramat-Gan: Bar-Ilan University Press. Fishman, David E., 1989. ‘The Musar movement in interwar Poland’, in Yisrael Gutman, Ezra Mendelsohn, Jehuda Reinharz and Chone Shmeruk (eds), The Jews of Poland between Two World Wars. Hanover NH: Brandeis University Press, 247–71. Foucault, Michel, 1988. ‘Technologies of the self’, in Luther H. Martin, Huck Gutman and Patrick H. Hutton (eds), Technologies of the Self: A Seminar with Michel Foucault. London: Tavistock, 16–49. Gasztold-Seń, Przemysław, 2012. Koncesjonowany nacjonalizm: Zjednoczenie Patriotyczne Grunwald 1980–1990. Warsaw: Instytut Pamięci Narodowej. Gooren, Henri, 2010. Religious Conversion and Disaffiliation: Tracing Patterns of Change in Faith Practices. New York: Palgrave Macmillan. Grabski, August and Albert Stankowski, 2012. ‘Życie religijne społeczności żydowskiej’, in Feliks Tych and Monika Adamczyk-Grabowska (eds), Następstwa Zagłady Żydów. Polska 1944–2010. Lublin: Wydawnictwo Uniwersytetu Marii Curie-Skłodowskiej. Hirschkind, Charles, 2006. The Ethical Soundscape: Cassette Sermons and Islamic Counterpublics. New York: Columbia University Press. Kahn, Susan M., 2000. Reproducing Jews: A Cultural Account of Assisted Conception in Israel. Durham NC: Duke University Press. Kravel-Tovi, Michal, 2014. ‘Bureaucratic gifts: Religious conversion, change, and exchange in Israel’. American Ethnologist 41/4: 714–27. Kravel-Tovi, Michal, 2017. When the State Winks: The Performance of Jewish Conversion in Israel. New York: Columbia University Press. Kymlicka, Will, 2005. ‘National minorities in post-communist Europe: The role of international norms and European integration’, in Zoltan D. Barany and Robert G. Moser (eds), Ethnic Politics after Communism. Ithaca NY: Cornell University Press, 192–217. Laidlaw, James, 2002. ‘For an anthropology of ethics and freedom’. The Journal of the Royal Anthropological Institute 8/2: 311–32. Lehrer, Erica T., 2013. Jewish Poland Revisited: Heritage Tourism in Unquiet Places. Bloomington IN: Indiana University Press. Lorenz, Jan, 2015. ‘Counting as one: Moral encounters and criteria of affinity in a Polish Jewish congregation’. HAU: Journal of Ethnographic Theory 5/2: 51–81. Mach, Zbigniew, 2007. ‘Identities in a post-communist society’, in Deborah Fahy Bryceson, Judith Okely and Jonathan Webber (eds), Identity and Networks: Fashioning Gender and Ethnicity across Cultures. New York: Berghahn, 54–72. Mahmood, Saba, 2005. Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton NJ: Princeton University Press. Porton, Gary G., 1994. The Stranger within Your Gates: Converts and Conversion in Rabbinic Literature. Chicago IL: University of Chicago Press.

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Robbins, Joel, 2004. Becoming Sinners: Christianity and Moral Torment in a Papua New Guinea Society. Berkeley CA: University of California Press. Rosenbloom, Joseph R., 1978. Conversion to Judaism: From the Biblical Period to the Present. New York: KTAV. Seeman, Don, 2010. One People, One Blood: Ethiopian-Israelis and the Return to Judaism. New Brunswick NJ: Rutgers University Press. Spero, Shubert, 1983. Morality, Halakha, and the Jewish Tradition. New York: KTAV. Stola, Dariusz, 2005. ‘Fighting against the shadows: The anti-Zionist campaign of 1968’, in Robert Blobaum (ed.), Antisemitism and Its Opponents in Modern Poland. Ithaca NY: Cornell University Press, 284–300. Waligórska, Magdalena, 2013. Klezmer’s Afterlife: An Ethnography of the Jewish Music Revival in Poland and Germany. Oxford: Oxford University Press. Zaremba, Marcin, 2001. Komunizm, legitymizacja, nacjonalizm: nacjonalistyczna legitymizacja władzy komunistycznej w Polsce. Warsaw: Trio.

8 Conscience and action in the Islamic madhhab-law tradition Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

Talal Al-Azem

What is the place of conscience in a rule-oriented system of ethics and law? Like their peers in other rule-based moral traditions (as discussed in the Introduction), jurisprudents of the pre-modern Muslim world grappled with how to square their conscience with existing ethical rules and the law. Until recently, however, we knew relatively little about how they thought about this issue and the various solutions they developed. The academic study of Islamic law has long been preoccupied with the question of origins  – with the relationship of doctrines and practices espoused by early Muslim legal lawyers to the theological or political landscapes of the first centuries of Islam (see e.g. Schacht 1959; Makdisi 1984; Dutton 2002; Zysow 2002; Lowry 2008). Only a small range of more strictly speaking jurisprudential issues, such as the question of ijtihād (the right of a master jurist to independently pronounce on the law), have received sustained attention (e.g. Hallaq 1984; Fadel 2002). Recent years have witnessed an increasing recognition that we can no longer speak of one timeless Islamic legal system and its origins. Rather, Islamicate societies developed various legal traditions and systems – some monist, others pluralistic, for example – throughout numerous civilisations associated with Islam.1 Moreover, the field is now maturing and beginning to acknowledge that Muslim jurists qua jurists developed jurisprudential solutions that addressed the unique types of legal and moral questions naturally arising from their own specific historical legal systems (Fadel 1996; Opwis 2005; Peters 2005; Al-Azem 2015). By treating these individual questions not only as products of religio-political history, but also of law, jurisprudence and moral philosophy, we will increasingly begin to appreciate the original and largely unexplored contributions of both the thinkers and the societies in which they practised their craft. The present chapter is a tentative exploration of one such jurisprudential question: the scope of personal conscience and discretion of a jurist practising law within a plural normative system – in this case, the ‘madhhab-law tradition’. As I shall describe, this distinctive tradition of legal thought

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maintained the probabilistic, or contingent, nature of fiqh (the Muslim moral theology, or art of producing moral and legal rules), which necessarily entailed the acceptance of legal pluralism (Hallaq 2001: esp. 125–7 and 166–74; Weiss 2006: chapter 5; Zysow 2013: 259–62). This legal pluralism, in turn, threw up a number of procedural as well as moral dilemmas. In particular, could a legal scholar be bound – by a judge, for example – to follow a legal position that he was convinced was incorrect? What if the jurist changed his view on a question, but had himself already acted upon his now abandoned position? I present an analysis of a discussion of these issues by one representative architect of this legal tradition, the Abbasid2 era H . anafī jurist Abū H . āmid Ah.mad al-Qudūrī (d. 428/1037). Through a close reading of a previously unpublished excerpt from a medieval manuscript that casuistically treats a number of such scenarios, this chapter will explore how the madhhab-law tradition sought to balance the consequences of legal pluralism with respect for the individual jurist’s conscience. We will see that it developed a number of meta-rules and procedures for handling such dilemmas.

The madhhab-law tradition A brief review of the institutional history of the madhhab will be of aid in understanding how it became the basis of a legal tradition.3 Lexically, the Arabic word madhhab means ‘the way one goes’. As Islamicate culture developed, it came to be associated with ‘the way’ of a scholar or a group of scholars from a particular region regarding a field of knowledge, such as grammar or law. However, by the early Abbasid era (eighth century ce), the term was increasingly associated with doctrinal schools of law, in which the ‘madhhab’ of a famous, eponymous jurist constituted the repository of that school’s legal tradition. That is to say, in this stage, the madhhab played an epistemic role as a ‘school of thought’, participating in the production of legal knowledge. In the later Abbasid era (tenth century ce), the madhhabs evolved into legal guilds; each madhhab had its own head (raʾīs), and was self-regulated by those associated with the guild, independent of political authorities. It was only in the Mamluk period (1250–1517 ce), however, that the madhhabs came to serve as the basis of an organised pluralistic legal system and, by necessity quickly thereafter, that of a highly theorised jurisprudential tradition.4 In previous centuries, the judiciary of any given political jurisdiction turned to that region’s historically favoured madhhab to supply judges. The Mamluks were the first to institute a fully pluralistic judiciary in which each of the four surviving Sunni madhhabs had their own courts

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and territorially overlapping judicial (as opposed to political) jurisdictions. A subject of the state could bring a property dispute to a H . anafī court, for example, but in later years might resolve inheritance disagreements regarding that same property at the court of a H . anbalī judge (Al-Azem 2015). This situation, if not managed, could easily descend into judicial chaos, since the conflict of multiple madhhabs’ laws could lead to courts negating one another’s judgements and ultimately to a loss of trust by the populace in the judicial system. Jurisprudents developed a number of solutions meant to achieve consistency of application, predictability of rules and accountability of the judges to society. Among these solutions was a number of ‘meta-rules’ to resolve potential conflicts of laws.5 The solutions were multiple, but there are three that, together, form the bases of the madhhab-law tradition that emerged. These are the establishing of tarjīh. (the determination of legal rules from within the corpus of opinions of a single madhhab tradition), the instituting of taqlīd (the observance of binding juristic precedent by associates of a given madhhab) and the barring of talfīq (the amalgamation of the opinions of two or more jurists, arrived at through their own legal reasoning, in order to create a new legal rule that none of them would accept independently). The first two concepts particularly are germane to our main question, so let us further define them. Tarjīh. is the granting of preponderance to one legal opinion over others, such that it becomes the legal rule of a given madhhab. It is meant to solve the problem of rule-indeterminacy faced by judges and muftis, resulting from hundreds of years of preceding legal scholarship. It answers the question of how to move from a plethora of legal opinions to observable and practicable rules. Judges, muftis and legal educators were meant to observe a heuristic procedure (entitled rasm al-muftī, ‘the procedure to be followed by mufti’, in the H . anafī school of law, for example). This procedure involved an assessment of how the legal opinion had been transmitted from the jurist who had issued it (tarjīh. al-riwāyāt), and an assessment of the legal opinions themselves as to their suitability in light of the contingent circumstances of new matters (tarjīh. al-aqwāl). Taqlīd is the ‘bindingness’ of a legal opinion formulated by a master jurist upon jurists of a lower ranking within a madhhab. The need for any given jurist to observe this ‘binding juristic precedent’ is established in accordance with three dimensions of that jurist: his epistemic standing in the madhhab (what does the jurist know qua scholar); his institutional standing (what is his rank in the madhhab-guild qua guild member); and his socio-legal standing (what is his role as a public functionary, be it mufti, judge or professor of law). A mujtahid is a master jurist, someone epistemically capable and institutionally qualified to employ primary legal reasoning without recourse to precedent. A muqallid is someone epistemically ­ incapable,

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and thus institutionally unqualified, to employ primary legal reasoning. However, the historians and later theorisers of the madhhab-law tradition made a distinction between a muqallid capable of assessing which of the master jurists’ opinions should serve as the madhhab’s binding rule (tarjīh., defined above), and a muqallid incapable of any of this, and thus bound to observe the precedents established by those higher-ranking jurists.6 Before turning our attention to the manuscript and its casuistical treatment of moral conscience, let us address the role of fiqh literature in the formulation of legal rules – of which our manuscript serves only as an example. Whereas, in common-law jurisdictions, laws are (in theory) determined in the court rooms, or, in civil-law jurisdictions, in the legislative assembly, it is the jurists’ books that serve as the forum in which binding precedents were established in the madhhab-law tradition. It is within such fiqh ­literature – and especially in the genre of commentary – that institutional needs were explored and debated, and that rules were promulgated, reviewed and confirmed or rejected. That is to say, the process of ruleformulation (tarjīh.) is executed by the jurist within his remit as scholar, not as functionary (such as judge); it occurs as an extended conversation and contextualisation over time, sometimes over centuries, by means of engagement with a wide library of legal writings.7 And, importantly for the topic of the present volume, these rules were often hashed out, in the commentaries, through a process of casuistical reasoning – that is, through the analysis of cases (see the Introduction). It was by juxtaposing similar but slightly differing cases that jurists would work out (or justify) a rule or maxim of their school. We are now in a position to quickly summarise, for the purpose of our main question regarding conscience and action, the nature of the madhhablaw tradition of fiqh. It is a jurist’s law, in that rules are produced by jurists qua jurists, and not as judges or state legislators. A judge or mufti might indeed formulate an unprecedented legal opinion on the job, but only in his epistemic capacity as master jurist (mujtahid) – and it would be quickly forgotten if he (or a student) did not incorporate this opinion and its reasoning into a piece of fiqh writing. The madhhab-law tradition is also exploratory, as the discipline of fiqh is one of exploration of sources and legal reasoning, as the casuistical examples to follow will demonstrate.8 It is probabilistic, by which I mean that the probable (as opposed to certain) nature of the interpretive methods and legal sources result in an acceptance that more than one legal opinion may follow from any given evidence and reasoning.9 As a corollary to this, the madhhab-law tradition is pluralistic, admitting a number of procedurally and substantially valid laws on any given question, and allowing for conflicting institutional manifestations thereof. Finally, it is intellectually (as opposed to socially) conservative:10 the tradition is

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respectful of earlier efforts, and thus preserves both the established rules which serve as binding precedents, as well as the broad range of passed-over opinions and the reasoning behind them. With this historical overview behind us, let us study an example of one such madhhab – the H . anafī madhhab named after the early Iraqi master jurist Abū H . anīfa (d. 150/767) – and how some of its earliest scholars thought about the scope of juristic conscience within the developing ­madhhab-law tradition.

Conscience and action A hitherto unpublished and unstudied commentary by the celebrated Abbasid-era jurist Ah.mad al-Qudūrī, Sharh. Mukhtas. ar al-Karkhī (A commentary on the compendium of al-Karkhī), includes a passage that is important for the early history of the madhhab-law tradition (Qudūrī 535/1140–41). It is found in a chapter entitled ‘al-Ibāh. a wa-l-h. az. r’ (The licit and illicit), conventionally a section of fiqh works that discusses the permissibility or prohibition of numerous matters related to personal conduct: of looking at or touching members of the same or opposite sex; the use of silk, brocade, gold and silver; and other matters which are meant to reflect a level of moral scrupulousness to be practised by all Muslims.11 In one section of this chapter, al-Qudūrī casuistically delineates a number of cases which all revolve around one central procedural problem inherent in the probabilistic nature of fiqh: in the face of a multitude of valid juristic ­opinions – ­including, if one is a master jurist himself, one’s own – upon what legal opinion should one actually act?12 Our author does not address this question head-on, in a theoretical, universalising manner. This approach was taken up by later jurisprudent-authors in the H . anafī madhhab (and others), starting with the Transoxanian Qād.īkhān (d. 592/1196) to the Mamluk Ibn Qut.lūbughā (d. 879/1474) to the late Ottoman Ibn ʿĀbidīn (d. 1252/1836), who developed a systematic and rationalised jurisprudence of the madhhablaw tradition which accounted for this pluralism and probabilism (Calder 2000; Hallaq 2001: 219–33; Al-Azem 2017: 222–3). Rather he treats the question casuistically, as befits a book of detailed, positive fiqh law (furūʿ): how should one act if a legal functionary such as a judge has adjudicated upon some matter, for which the person holds a differing view and conviction? What if a jurist himself is afflicted by some legal matter, and, on the basis of his own knowledge of fiqh, he provides himself with a solution, but later changes his opinion: how is he now to act? Is he to continue to act in accordance with his initial conviction, or is he to discard it and act



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upon the new conviction? And does the answer to this question change if he had already acted, or begun acting, upon the earlier conviction? Does the answer change if he had not yet resolved to put his opinion into effect? As the section treating the issue is relatively brief, we shall study his answers and approach to reasoning by providing a summarised treatment of each of the ‘cases’ he addresses.13

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Case 1: The divorcing jurist goes to court The first case is a scenario in which a master jurist declares a statement of ‘definitive divorce’ (‘anti .tāliq al-batta’ – ‘you are definitively divorced’) to his wife.14 There is a dispute amongst the jurists of the madhhabs as to whether or not such a pronouncement is a figurative way of issuing three pronouncements of divorce at once.15 In this first case, the divorcing jurist is of the opinion that a declaration of ‘definitive divorce’ is equivalent to a triple divorce, and is thus irrevocable with immediate effect. The wife then takes her jurist-husband to court, on the assumption that his pronouncement does not render the divorce permanent and irrevocable, and that they may reconcile. The judge, holding the opinion held by the wife and contrary to that of the husband, confirms that the marriage still stands, since according to the judge’s legal doctrine, a statement of ‘definitive divorce’ remains revocable (rajʿī). What is the divorcing jurist to do? There are two opinions, within the H . anafī madhhab, regarding this question. According to Muh.ammad al-Shaybānī (one of the ‘founding figures’ of the H . anafī madhhab, d. 189/805), it is morally permissible for the husband-jurist to reside again with his wife in marriage, even if he holds a view contrary to that of the judge. Every ruling issued by a judge must be observed, argues al-Shaybānī, so long as it is regarding a legal question over which the jurists differ. This is the case even if the judge passes judgement against a jurist who holds an opinion contrary to that upon which the judge based his own verdict regarding the matter’s licitness, illicitness, acceptability and so on. Indeed, it is incumbent upon that jurist to accept the verdict of the judge, to put aside his own opinion and to adhere to the judgement issued to him, accepting what he has rendered licit and valid. Within the same H . anafī madhhab, an opposing opinion on this question is transmitted from Abū Yūsuf (d. 182/798), one of al-Shaybānī’s own teachers and another fellow of the eponymous founder of the school, Abū H . anīfa. Abū Yūsuf held that it was not within the divorcing jurist’s moral scope to reside with his (now former) wife. Rather, he is obliged to act upon his own conviction on this question, and to pay no heed to the pronouncement of any judge who deems it licit for him to do that which he believes to

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be illicit. At the same time, and importantly, if the divorcing husband holds the view that such a pronouncement only incurs a single, revocable divorce, while the judge had decreed that they were now permanently separated and that a triple, irrevocable, divorce had been effected, it is also not within the divorcing jurist’s moral right to resume his marriage with his (now former) wife, and he has no power to protest the judge’s decision in any fashion. Abū Yūsuf’s reasoning, al-Qudūrī informs us, is that it is both an act of religious devotion and of intellectual honesty for a jurist capable of independent legal reasoning (ijtihād) to be true to his own conviction. It is invalid for him to treat as licit that which he is convinced is illicit. However, in the inverse case where the judge has ruled that a matter is illegal for this jurist, he must respectfully observe the judge’s ruling, because the judgement of the judge is, socially, meant to be executed and enforced, so long as the judgement regards a matter open to juristic reason (ijtihād). In such cases, even a master jurist is not allowed to treat as licit that which the judge has rendered illegal and illicit for him. Al-Qudūrī contrasts this with al-Shaybānī’s reasoning: namely, that the party who has been adjudicated against is obliged to observe the ruling of the judge, so long as he perceives a valid legal basis for the judge’s reasoning. Both opinions have solid procedural bases in legal opinion-making. But in this particular court case, the master jurist’s own opinion, even if juristically valid, is outweighed by the judge’s in view of the fact that the validly arrived-at opinion held by the judge has been coupled with, and thus buttressed by, his verdict as judge. This coupling, then, grants preponderance (tarjīh.) to the judge’s opinion over the equally valid opinion held by the divorcing jurist.

Case 2: A non-jurist consults a mufti then a judge The second scenario presented is that of a non-jurist who seeks a legal solution to a problem.16 His problem regards a matter over which there is dispute amongst the jurists, and thus a number of procedurally valid answers obtain. The man first asks a jurisconsult (mufti),17 who provides him with an answer regarding the action’s licitness or illicitness. He then goes to a judge, who issues him a contrary ruling. He is obliged, according to the view of al-Shaybānī, to act upon the opinion issued to him by the judge, and to abandon the opinion provided by the mufti. Al-Shaybānī’s reasoning, al-Qudūrī explains, is that if a master jurist is obliged to abandon his own opinion, and act against his own moral conscience, in the face of a decision handed by a judge, so a fortiori must someone who is not a master jurist (muqallid). Al-Shaybānī continues with a similar but slightly different scenario. The man with the problem goes directly to a judge, who provides him with a

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judgement that his matter is either licit or illicit, as the case may be. The man then raises the matter in the court of another judge holding a different valid doctrine, and this judge issues him with an opposing opinion on the exact same question. In this situation, the man – who, again, is not a master jurist and is incapable of independent legal reasoning – is obliged to accept and act upon the judgement of the first judge, and to abandon the judgement provided by the second, which is actually deemed null and void. Here, again, the underlying reasoning is procedurally similar: if the question is one in which there is valid scope for juristic dispute, once a verdict based upon valid ­doctrine has been issued on that question by an appointed judge, it is not within the remit and scope of another judge (in the same political jurisdiction) to overturn it. As such, the verdict of the second judge is given no support. The only exception is if the first judge is not capable of arriving at an original legal opinion through independent legal reasoning (ijtihād), while the second judge is: in this case, the first judge’s opinion would be deemed of lesser value than that issued by a judge who is also a master jurist. Here, the two capacities of the jurist – epistemic and institutional – are analytically identified as separate capacities of the jurist: both opinions are issued by jurists of the same socio-institutional standing (judges) but are of different epistemic standing (one is a master jurist, the other is not). It is the epistemic superiority of the latter judge that renders his opinion dominant over that of the first. In any case, from the perspective of personal conscience, what should also be noted here is that the moral conviction of the non-jurist as to which of the two opinions is superior is of no relevance at all in the face of a court judgement. He is obliged to observe and act upon the verdict handed to him, even if he personally thinks the opinion provided to him by the second judge preferable or more correct. Here, epistemic standing and the integrity of the legal system trump conscience and personal choice.

Case 3: The divorcing jurist changes his opinion The third case presented follows from the first.18 A master jurist, who is of the opinion that a ‘definitive divorce’ is equivalent to a triple, irrevocable pronouncement, has declared such a divorce to his wife. Being both jurist and the moral agent in this action, he resolved at that moment to put this opinion into force, and thus separated from his wife, deeming their marriage no longer licit. Sometime later, this jurist changes his opinion on this fiqh question, and comes instead to accept the opinion (transmitted from the second caliph ʿUmar ibn al-Khat. t.āb) that such a pronouncement should only be counted as a single, revocable divorce. According to al-Shaybānī, al-Qudūrī relates, he is not to renege on his earlier action, as the legal consequences of his having acted upon his earlier

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opinion could not now be ignored or overturned. He is not allowed to simply take his wife back due to his newly arrived-at probabilistic opinion. Furthermore, al-Qudūrī goes on to explain, one should not see this as equivalent to the scenario of a judge who issues a verdict on one case according to one juristic opinion, then later issues a judgement in a separate case (regarding the same issue) according to a different juristic opinion. This is because the court decision of a judge may negate a mere juristic opinion that is not backed by a court decision, while one juristic opinion cannot negate the validity of another. Al-Qudūrī confirms this, explaining that if the divorcing jurist had actually acted upon the legal opinion he held (namely, by resolving that the divorce was effected as he understood it), the woman thereby became illicit to him from that moment onwards. Thus, it is as if a mere legal opinion had been supported and legally confirmed by a court decision. If this jurist’s juristic opinion later changed, he may then use that opinion for any scenarios that subsequently arose, but could not nullify that which had already been executed. A final variation is provided to explain the logic. If the divorcing jurist originally held that such a pronouncement of a ‘definitive divorce’ only effected a single revocable divorce, and subsequently decided to take his wife back, a different result would obtain were he to later change his mind and adopt the opposing view. In this case, the marriage would stand, since he took his wife back whilst holding the opinion that this was licit and legal. The reasoning here is the same: once a master jurist executes his scholarly opinion within his own personal affairs, the act cannot be overturned by his adoption of an alternative scholarly opinion.

Case 4: The divorcing jurist hesitates The fourth case, also related from al-Shaybānī by al-Qudūrī, adds further twists in its casuistical treatment of the relationship between conscience and action in the madhhab-law tradition.19 The aforementioned divorcing jurist has declared a ‘definitive divorce’. As a jurist, he is of the opinion that this is equivalent to a threefold and irrevocable divorce. However, in this scenario, he decides, in his capacity as an individual moral agent, not to resolve to act upon this opinion such that its legal consequences are effected in regards to his wife. In this case, the opinion is not put into effect and she remains his wife. If, however, it is the first time that this jurist has come to hold the opinion that a ‘definitive divorce’ is only counted as a single, revocable pronouncement, but – in his capacity as an individual moral agent – he does not resolve to act upon this opinion in this instance, or to effect its legal consequences, and whilst in this indecisive state he – in his capacity as master

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jurist – changes his speculative view and adopts the position that such a pronouncement is counted as a threefold irrevocable divorce: in such a case, he is not permitted to cohabit with his (now ex-) wife. Al-Qudūrī explains that so long as he did not resolve to act upon his scholarly opinion, and he later adopted a contrary position, this jurist most resembles a judge who once held one doctrine without ever adjudicating according to it in any real court case, and later adopts an alternative doctrine: in any adjudications that are subsequently brought before him, the second opinion would ­necessarily serve as the basis of his verdicts.

Case 5: A non-jurist hesitates The fifth case, narrated again from al-Shaybānī, treats the case of a nonjurist, who, facing a similar problem regarding the status of his divorce, consults with a mufti who provides him with a response as to the matter’s licitness or otherwise.20 The man hesitates, and does not resolve to act upon the jurisconsult’s opinion as regards his marriage. Rather, he seeks the opinion of a different mufti, who provides him with an opinion contrary to the first. In this case, al-Shaybānī held that the man may not adopt the alternate opinion.21 For just as the master jurist establishes his servitude to God through his law-making (ijtihād), the non-jurist establishes his servitude to God via his observing the legal rules provided to him by the jurists (taqlīd). (As someone unable to procedurally arrive at a valid legal opinion himself, it becomes morally necessary for him to adopt the position of a capable master jurist.) And just as the master jurist is obliged to honour the consequences of his own opinion once he has resolved to act upon it, and may not later renege on his resolve and nullify the consequences thereof, so too is the non-jurist bound to legally respect the consequences of the opinion which he resolved to observe and to act upon, and he is not permitted to nullify it by another fatwa.

Conclusion By treating a number of similar but sufficiently distinct cases in quick succesion, al-Qudūrī casuistically sketches a portrait of when personal conscience may inform one’s actions. Reading such cases, one might ask: did such procedural scrupulousness matter? Was it even practical, indeed ­plausible? Or were these flights of sophistical reasoning, confirming the prejudices of the critics of this form of moral reasoning? (Jonsen and Toulmin 1988: 11–16, 231–49; see also the Introduction and Chapters 5 and 9.) In pursuing such questions, we must recall that such jurists were writing about moral choices

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Rules about rules

that would impact innumerable people, through the adoption of such opinions as law in the judiciary. Even if we were to suppose they had no interest in applying this kind of moral scrutiny when it came to themselves, these jurists were nonetheless trained in a legal and moral system that aimed to cultivate this type of fastidious moral reasoning. The law they were exploring and expounding was itself an essential part of the ‘technologies of the self’ that were meant to shape the moral subject (Hallaq 2011: chapter 5; see also here Chapters 6 and 9). Furthermore, these jurists were not reasoning about such scenarios behind closed doors of scholarly societies, but in open texts that were taught and sometimes publicly read. In talking about themselves in such terms, the jurists were at least exposing themselves to public scrutinty (to say nothing of an eschatological one to which they adhered). That the casuistical approach helped reveal and highlight inconsistencies within the madhhab tradition’s ‘meta-rules’ does not make a charge of mere intellectualism seem historically any more likely. In their exploration of the law, conscience mattered. Madhhab-law jurisprudents also explored this distinction between conscience and the law (see the Introduction) by developing complementary concepts. For example, jurists distinguished between an action that might be valid in the eyes of God (diyānatan) but invalid in the eyes of the law (qad.āʾan), or vice versa. Similar to al-Qudūrī’s use of divorce as the basis of his casuistical treatment of juristic conscience, other authors explore whether a married couple may have been deemed by a judge to have  become divorced due to the outward appearance of a statement of divorce, while morally, in the eyes of God, their relationship may be continued in a different jurisdiction if they both believed no such meaningful pronouncement to have taken place.22 Notwithstanding such differences, what is particularly intriguing is where these jurisprudential and moral questions are first addressed: not in abstract works of jurisprudential theory (us. ūl al-fiqh) or works of philosophical ethics (akhlāq), but rather in works of fiqh, the ‘branches’ of positive law. That is to say, these meta-rules were cultivated through casuistical study of the small distinctions between similar cases meant to tease out the underlying logic. The results were not absolute principles established by philosophical speculation, but rules arrived at through exploration and dispute. The existence and even celebration of such dispute embodied in fiqh was a result of its exploratory nature and of the pluralism that existed within and between the schools. The madhhab-law system was predicated upon the scholarly activity of jurists, independent of the state’s political and judicial apparatuses; the locus of the jurists’ activity was the book of fiqh. The book of fiqh, then, was not a catacomb of rules, but a space for moral reasoning and exploration out of which meta-rules casuistically emerged. In the art and discipline of fiqh,



Conscience and action in madhhab-law 201

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probabilism and pluralism were at once celebrated (in the spirit of scholarly freedom and honesty) and vanquished (for the sake of solid rules that people could apply) (Al-Azem 2017: 121–9). And it is within this tension and ambiguity that the jurist could practise his casuistical art to demarcate a space – if only for himself – for discretion and personal conscience in the shadow of an increasingly large and verbose legal tradition.

Acknowledgements I am grateful to Morgan Clarke, Emily Corran and Ahmad Khan for their valuable comments and suggestions on earlier drafts of this chapter.

Appendix: The Arabic text The following edition of Ah.mad al-Qudūrī, ‘Kitāb al-ibāh.a wa-l-haz.r: bāb ākhar fī al-h.az.r wa-l-ibāh.a’, from his Sharh. Mukhtas.ar al-Karkhī, is based upon Istanbul: Süleymaniye Kütüphanesi, Dāmād Ibrāhīm MS 563, folios 485v–486r, ah 535/1140–41 ce (‘D’). My editing of the text has been kept limited to the inclusion of hamzas and other modern conventions of orthography (s.alā rather than .salwa, thalātha rather than thalatha, thalāthīn rather than thalathīn, asʾila rather than asʾula), as well as supplying shaddas and minimal vocalisation for proper nouns and other ambiguous words when deemed necessary. The punctuation and paragraph breaks are mine. The following symbols are used in the editing of the Arabic text: | | The folio number, and whether recto (r) or verso (v). [ ] Damage or lacuna for which restoration has been attempted. < > Text is legible, but the reading is uncertain. |485v|

‫باب آخر يف الحظر واإلباحة‬ ‫ لو أن رجالً من الفقهاء قال المرأته أنت طالق البتة وهو ممن يراها ثالثاً فدافعته إىل القايض‬:‫ قال محمد يف امالئه‬3 ‫ وسع الفقيه أن يقم عىل امرأته وإن‬،‫وظ ّنت أن ذلك ال يبينها فجعلها القايض امرأته وجعل ذلك التطليقة رجعية‬ ‫ قال محمد وكل قضاء كان من قايض مام يختلف فيه الفقهاء قىض به القايض عىل‬.‫كان يرى خالف ما قىض القايض‬ ‫ فإنه ينبغي لذلك الفقيه أن يأخذ بقضاء‬،‫ قضية عامل يرى خالف قضائه من تحليل أو تحريم أو أخذ ما أو غريه‬6 .‫القايض ويدع رأيه ويلزم نفسه ما الزمه القايض ويأخذ ما أعطاه مام جعله له‬ ‫ ال يسعه أن يقم معها ويجب عليه أن يأخذ برأي نفسه وال يتلفت إىل إباحة‬:‫وقال خلف بن أيوب عن أيب يوسف‬ ‫ ولو رأيه أنها واحدة رجعية ففرق القايض بينهام بثالث فليس يسعه أن يطأها وال‬.ً‫ القايض فيام يعتقده حراما‬9

‫‪Rules about rules‬‬

‫‪12‬‬ ‫‪15‬‬

‫‪21‬‬ ‫‪24‬‬ ‫‪27‬‬ ‫‪30‬‬ ‫‪33‬‬ ‫‪36‬‬ ‫‪39‬‬ ‫‪42‬‬ ‫‪45‬‬

‫يعرض يف حكم الحاكم بيشء‪ .‬وجه قول أيب يوسف [أن] املجتهد معتقد ملا أدى إليه اجتهاده دون اجتهاد‬ ‫غريه فلم يجز له أن يستبيح ما هو حرام عنده‪[ .‬وإن قلد يف ذلك آخرا ً] اعتقد إباحتها |‪ |486r‬فحكم الحاكم‬ ‫بالتحريم ألن حكم الحاكم تنفذ فيام يسوغ فيه االجتهاد فال يجوز أن يستبيحه مع تحريم القايض له‪ .‬وجه قول‬ ‫محمد أن املحكوم عليه يجب أن يتابع رأي القايض إذا رأى ما يسوغ فيه االجتهاد فليسقط اجتهاده مع اجتهاده‪.‬‬ ‫وألن االجتهادين إذا تعارضا وانضم إىل احدهام الحكم فصار كام لو انضم الرتجيح إىل أحدهام‪.‬‬ ‫قال محمد‪ :‬وكذلك رجل ابتيل ببلية وهو ال يعلم العلم فسأل عنها الفقهاء فأفتوه فيها بحالل أو بحرام وقىض عليه‬ ‫القايض من املسلمني بغري ذلك وهو مام يختلف فيه الفقهاء فينبغي له أن يأخذ بقضاء القايض ويدع ما أفتاه فيه‬ ‫الفقهاء‪ .‬وذلك ألن املجتهد عنده يتبع رأي القايض وإن خالف اجتهاده فاملقلد أوىل‪ .‬قال وإن قىض له قاض بقضاء‬ ‫من حالل أو حرام عنده ثم رفع إىل قاض آخر فقىض له يف ذلك اليشء بعينه بخالف قضاء األول وهو مام يختلف‬ ‫فيه الفقهاء‪ ،‬أخذ بقضاء األول وأبطل قضاء الثاين ألن الحكم إذا أوقع يف موضع اجتهاد مل يجز لقاض من القضاة‬ ‫فسخه فال حكم الحاكم الثاين‪ ،‬إال أن يكون األول ال يسوغ فيه االجتهاد فال يعتد به‪.‬‬ ‫قال محمد‪ :‬ولو أن فقيهاً عاملاً قال المرأته أنت طالق البته وهو يرى أنها ثالث تطليقات فأمىض رأيه فيام بينه‬ ‫وبينها وعزم عىل أنها قد حرمت عليه ثم رأى بعد ذلك أن رأي عمر بن الخطاب يف ذلك هو الصواب وأنها تطليقة‬ ‫ميلك الرجعة أمىض رأيه الذي كان عزم عليه يف امرأته وال يردها إىل أن تكون زوجته برأي حدث منه‪ .‬وال يشبه‬ ‫هذا قضاء القايض بخالف رأيه األول ألن قضاء القايض يهدم الرأي والرأي ال يهدم الرأي وهذا صحيح ألنه إذا أمىض‬ ‫اجتهاده ثبت التحريم يف حقه فصار كاالجتهاد إذا انضم إليه حكم‪ .‬فإذا تغري اجتهاده بعد ذلك استعمله فيام‬ ‫يحدث من بعد ومل ينقضه به ما كان أمضاه‪.‬‬ ‫فإن قال المرأته أنت طالق البتة وهو يرى أنها واحدة ميلك الرجعة فعزم عىل أنها امرأته ثم رأي بعد ذلك أن‬ ‫الرجل إذا قال المرأته أنت طالق البتة أنها ثالث تطليقات وأنها ال تحل له حتى ينكح زوجاً غريه مل يحرم عليه‬ ‫وكانت امرأته عىل حالها‪ .‬وهذا عىل ما قدمنا أنه إذا عزم عىل إمضاء االجتهاد مل ينفسخ باجتهاد آخر‪.‬‬ ‫قال‪ :‬ولو أن رجالً فقيهاً عاملاً قال المرأته أنت طالق البتة وهو ممن يرى أنها ثالث فلم يعزم عىل ذلك يف امرأته‬ ‫مل ميض ذلك فيها وكانت امرأته ولو كان أول مرة يراها واحدة ميلك الرجعة فلم يعزم عىل ذلك فيها ومل ميضه حتى‬ ‫يراها ثالثا مل يسعه املقام معها ألنه ملا مل يعزم عىل إمضاء االجتهاد حتى ظهر بخالفه صار ذلك كالحاكم إذا رأى‬ ‫مذهباً فلم يحكم به حتى ظهر خالفه أن الحكم باالجتهاد الثاين أوىل‪.‬‬ ‫قال‪ :‬وكذلك رجل ليس بفقيه ابتيل مبسئلة فسأل عنها بعض الفقهاء فأفتاه بحالل أو حرام فلم يعزم عىل ذلك يف‬ ‫زوجته حتى استفتى فقيهاً آخرا ً‪ 1‬وأفتاه بخالف ذلك مل يسعه أن يرجع إىل قوله ألنه متعبد بالتقليد كام يتعبد‬ ‫املجتهد باجتهاده‪ .‬فإذا أوجب عىل مجتهد أن يعمل عىل اجتهاده إذا أمضاه وأن يغري بعد ذلك كذلك املقلد إذا‬ ‫عزم عىل العمل فأفتي به مل يسعه أن ينقض ذلك بفتوى أخرى‪.‬‬ ‫قال خلف بن أيوب سمعت أبا يوسف قال يف رجل مات وترك جده وأخاً فاختصام إىل القايض يف مرياثه فقىض‬ ‫باملال للجد وأفتاه ٍ‬ ‫قاض من القضاة مبذهب زيد وذلك أعدل عنده مل يسع لألخ أن يأخذ ذلك املال‪ ،‬وذلك ألن‬ ‫الحكم انضم إىل االجتهاد فلم يجز أن ينفسخ باجتهاد ال حكم معه‪ .‬وألن الفقيه املفتي مبذهب زيد إذا ويل القضاء‬ ‫مل يجز أن يحكم بفسخ الحكم األول فكيف يجوز أن يفسخ ذلك باالجتهاد‪.‬‬ ‫قال‪ :‬ولو كان القايض قسم املال بينهام عىل قول زيد وكان األخ من رأيه أن الجد أب وهو ممن يجوز أن يفتي‬ ‫ويقيض فإنه ينبغي أن يدفع املال إىل الجد وال يسعه أن يأكل ما أطعمه القايض‪ .‬فهذا عىل ما يقول أبو يوسف أن‬ ‫قضاء القايض ال يحل له ما هو محرم عليه يف اجتهاده‪ .‬فأما عىل أصل محمد فيحل له ذلك ويجوز له اتباع رأي‬ ‫القايض وترك اجتهاده‪.‬‬

‫‪ 1‬آخرا ً‪ :‬آخر ‪D‬‬

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‫ ‪202‬‬



Conscience and action in madhhab-law 203

‫ أن يأخذ مبا قىض به القايض ألن فرضه التقليد فال يجوز‬،ً‫ وإن كان األخ جاهالً فهو يف سعة من الوجهني جميعا‬:‫قال‬ ‫ قال فإن علم ذلك وصار إىل الحال التي يستقيم أن يفتي ويقيض فالجواب فيه‬.‫أن يخالف ما حكم الحاكم به عليه‬ .‫ يعني أنه يجب عليه العمل مبا يف اجتهاده وترك ما حكم الحاكم به‬،‫ كالجواب يف األول‬48

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Another section treating the illicit and the licit Muh.ammad [al-Shaybānī] said in his Dictation, ‘If a male jurist says to his wife, “You are definitively divorced,” and he is of those who hold that such a pronouncement entails a threefold divorce, and his wife then takes him to court, believing that such a pronouncement does not render her irrevocably divorced, and the judge deems that she remains his wife and that his statement is revocable: [in such a case,] the jurist is permitted to live in marriage with his wife, even if he holds an opinion contrary to that held by the judge.’ Muh.ammad said, ‘Every verdict passed by a judge upon a court case involving a scholar who holds a view contrary to that behind the verdict passed regarding something being licit, illicit or permitted to take or otherwise, in which there is disagreement between the jurists [regarding that question]: it is incumbent upon the jurist in question to act upon the verdict issued by the judge and to abandon his own scholarly opinion, abiding by what the judge has made binding upon him and taking what the judge has issued in his favour.’ Khalaf ibn Ayyūb relates from Abū Yūsuf, ‘It is not within his moral right to live in marriage with her, but rather he must act upon his own scholarly opinion without paying attention to the judge’s rendering licit that which he himself believes to be illicit. But if he is of the opinion that such a pronouncement entails a single, revocable divorce, while the judge pronounced the man and woman legally separated [on the basis that it entails] a threefold divorce: he is not permitted to have sexual relations with her nor to go against any aspect of the court’s verdict.’ The view of Abū Yūsuf is that the master jurist’s (mujtahid) effort to discover the divine law is an act of worship and he is thus conscientiously bound to abide by his own conviction, to the exclusion of the scholarly opinion of any other jurist. Thus, it is not permissible for him to deem ‘licit’ that which in his own conviction is illicit. However, if the man [is not a master jurist but instead] binds himself to the juristic opinion of some other jurist who believes that deed to be licit, and the judge pronounces it to be illicit – on the basis that the pronouncement of a judge is to be executed, when it treats a question in which juristic disagreement is warranted: it is not permissible for him to render his living in marriage with his wife licit, as the judge had pronounced it illicit for him. The view of Muh.ammad is that the plaintiff is obliged to respect the opinion of the judge, so long as it is regarding a question in which juristic disagreement is warranted. In such a case, the jurist’s own independently formulated opinion (ijtihād) is abandoned in

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Rules about rules

the face of the judge’s opinion. Furthermore, when two master jurists’ opinions are in conflict, but one is buttressed through its adoption by a judge, it is as if the authority of rule-determination is afforded to the opinion held by the judge over the other opinion. Muh.ammad said, ‘Likewise, if a man who is not a scholar has been faced with some problem, and he questions the jurists regarding his affair, and they then issue him a response as to its licitness or illicitness, while a Muslim judge rules contrary to the opinion given to him by the jurisconsults, and this question is a matter over which jurists disagree: it is incumbent upon this man to act upon the judgement issued by the judge and to abandon the opinion issued by the jurists.’ This is because the master jurist (mujtahid), in the view of Muh.ammad, must follow the opinion held by the judge, even if it is contrary to his own independently formulated opinion (ijtihād); a fortiori, a person bound to follow juristic precedent (muqallid) is obliged to do the same. He said, ‘If a judge delivers a judgement regarding the licitness or illicitness of some matter in his view, and the man then takes the matter to another court, where the judge rules on that very question contrary to the first verdict, and the question is a matter over which jurists disagree: the man is to act upon the first judgement and deem the second judgement void.’ This is because it is not valid for a judge to invalidate a judgement already rendered, if that judgement addressed a matter which admits of independent reasoning (ijtihād); the judgement of the second court is not to be given support. The only exception is if the original judgement addressed a matter which does not admit of independent reasoning, and as such is of no consideration. Muh.ammad said, ‘If a learned jurist says to his wife, “You are definitively divorced,” and he is of the view that such a pronouncement entails a threefold divorce, and he puts this opinion into effect as regards his relationship with his wife, resolving that she has now become forbidden to him, but later he comes to hold that the view of ʿUmar ibn al-Khat. t.āb on this question is the correct position, namely, that it is a single pronouncement of divorce which he possesses the right to revoke: he is to [continue to] put into effect the opinion that he had resolved upon regarding his wife, and he is not to take her back as his wife in accordance with his newly held opinion. This should not be seen to resemble the verdict of a judge who issues a judgement on a newly held opinion which differs from a previously held opinion. This is because the verdict of a judge renders all other scholarly opinions null, while one scholarly opinion does not nullify other scholarly opinions.’ This is true, because when a jurist puts his scholarly opinion into effect, the prohibition thereby becomes established with respect to him. It is thus like a scholarly opinion (ijtihād) which then was buttressed by the verdict of a judge. If his independently arrived-at opinion

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Conscience and action in madhhab-law 205

changes thereafter, he may put it into effect with respect to future events, without revoking any previously effected decisions due to the newly held opinion. If he says to his wife, ‘You are definitively divorced,’ and he is of those who hold that such a pronouncement entails a single divorce which he has the right to revoke, and he resolves that she is to remain his wife, but he later comes to hold the view that if a man says to his wife, ‘You are definitively divorced,’ that such a statement is actually three pronouncements of divorce [at once], and that she is no longer licit to him until she has married another man: she is not deemed illicit to him, and she remains his wife as she was. This is premised upon what we have already stated, that if he had resolved to put his scholarly opinion into effect, it cannot be revoked by an act of formulating another scholarly opinion. He [al-Shaybānī] said, ‘If a learned jurist says to his wife, “You are ­definitively divorced,” and he is of those who hold that such a pronouncement entails three divorces, but he had not resolved to abide by that position as regards his own wife: then this opinion is not considered to be in effect in regards to her, and she remains his wife. If, however, it was the first time he came to hold the view that it should be deemed a single pronouncement and that he thus possesses the right to revoke the pronouncement, but he did not resolve to abide by this position nor did he act upon it [by making a statement of revocation], until he came to hold the view that such a pronouncement counts for three: it is not within his moral right to live in marriage with her.’ This is because – when he did not resolve to act upon his [original] scholarly opinion (ijtihād), until he came to hold a contrary one – his situation is like that of a judge (h.ākim) who holds a legal opinion (madhhab) but never acted upon it, yet later adopts a contrary opinion: priority would be given to the latter opinion in any subsequent judgement. He [al-Shaybānī] said, ‘Likewise is the case of a man who is not a jurist but has been afflicted by some problem, and thus seeks the counsel of a jurist, who issues an opinion (aftāhu) as to the action being licit or illicit. The man does not resolve to adopt this position as regards his wife, and proceeds to consult another jurist who issues an opinion contrary to the first. In this case, it is not within his moral right to rely upon the latter jurist’s opinion, because [as a non-jurist] his adopting as binding the opinion of a qualified jurist is religiously binding upon him, just as it is religiously binding upon a jurist to adopt his own scholarly opinion. So if a jurist is obliged to act upon his scholarly opinion having put it into effect, and to change [his actions in accordance with a changed opinion] in the future, then so too must a nonjurist (muqallid): if he resolves to act upon the first opinion that is issued to him, it is not within his moral right to revoke that jurisconsult’s opinion with that of another.’

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Khalaf ibn Ayyūb said, ‘I heard Abū Yūsuf say, regarding a man who died and was survived by a grandfather and a brother who went to court over the man’s inheritance: if the judge rules that the wealth is to be granted to the grandfather, whilst another judge issues him an opinion [in his capacity as jurisconsult] according to the legal doctrine of Zayd – a legal doctrine which he believes to be more just – it is not within the moral right of the brother to take that property.’ This is because the judgement was associated with that act of issuing a juristic opinion; it is thus not permissible to annul it by another act of juristic opinion-making not buttressed by a verdict. Furthermore, if a jurist who issues opinions according to the doctrine of Zayd is appointed as judge, it is not permissible for him to judicially revoke a previously issued judgement, so a fortiori how should it be permissible for him to revoke it [merely] because of [the existence of] another legal opinion? He said, ‘If a judge divided the wealth between the two of them in accordance with the doctrine of Zayd, while the brother was of the opinion that the grandfather should be treated like a father [in matters of inheritance], this brother being of those qualified to issue legal opinions and verdicts: it is incumbent upon this man to give the wealth to the grandfather, and it is not within his moral right to avail himself of the wealth that the judge decreed for him.’ This is according to the opinion held by Abū Yūsuf that it is not permissible for such a person to act upon the verdict issued by a judge if he holds it to be morally impermissible in his own scholarly opinion. According to the principle of Muh.ammad, however, it is morally permissible for him to avail himself of that wealth, and it is permissible for him to adopt the opinion of the judge and to abandon his own scholarly opinion. He said, ‘If the brother was unlearned [in the law], then it is within his moral right to avail himself of the wealth whether he agrees or disagrees with the opinion of the judge: he takes the wealth that the judge apportioned to him, because what is obligatory upon this man is to adopt as binding the opinion of a qualified jurist. As such, it is not permissible for him to go against what the judge had decreed regarding his case.’ He said, ‘If later he becomes knowledgeable in these legal matters, and eventually becomes capable of issuing legal opinions and verdicts: then the answer is identical to the answer in the first case; namely, he is obliged to act in accordance with his own scholarly opinion and to reject what the judge had decreed for him.’

Notes  1 See, for example, the rise of studies focusing especially on Mamluk or Ottoman jurisprudence and legal systems, such as those of Jackson (1996), Rapoport (2003), Burak (2015), Atçil (2016) and Al-Azem (2017).

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  2 All dates are given first with the Hijri year followed by that of the Common Era.   3 On the formation and genesis of the madhhabs, see Hallaq (2009: 60–71); on madhhabs as guilds, see Makdisi (1990: 16–39).   4 For an argument as to the causes, and effects, of this new arrangement, see Rapoport (2003).   5 The following summary of these ‘meta-rules’ of the madhhab-law tradition is based upon Al-Azem (2017: 102–50).   6 On the historical development of a typology of jurists, see Al-Azem (2017: 93–101).   7 For an illuminating anthropological approach to the relationship between ‘libaries’ of texts, the ‘archives’ of legal documents and local experience of law lived, see now Messick (2018: 20–30).   8 Cf. Ahmed (2016: 453–62), for whom the ‘confined’ approaches of the jurists permitted no ‘ambiguity or ambivalence’, compared to the philosophical or mystical approaches to knowledge and to God (453–4). That there were other discursive and practical forms of being Muslim beyond the legal is a truism that does not help us understand any better how Muslims sought God’s will, the exploratory and self-consciously probabilistic nature of fiqh and the multiple dimensions of the jurists’ own intellectual, spiritual and social commitments and experiences.   9 Morgan Clarke, in Chapter 9, also uses the term ‘probabilistic’ with regard to fiqh, but in a different, more specific sense derived from Christian moral ­theology. 10 Donald Davis, in Chapter 1, also makes much of the conservatism of the c­ lassical Hindu law tradition. 11 For a preliminary sketching of the history of ‘al-ibāh.a wa-l-h.az.r’ as a category within fiqh writing, see Al-Azem (2017: 34n37). 12 The cases in this text are hypothetical but had important practical consequences. In this, al- Qudūrī’s casuistry is similar to that described by Corran (Chapter 3). 13 For an edition of the Arabic passage, accompanied by a full translation, see the Appendix. In each of the five cases presented, I provide as reference the  corresponding line numbers for the Arabic passages at the start of each case. The edited text from al-Qudūrī’s work provides a total of eight cases. I have ­presented five, namely, those revolving around divorce. I have not summarised the final three revolving around inheritance here, as the reasoning they reflect are sufficiently treated in the five cases of divorce presented, and add nothing further to our discussion. Those interested may refer to lines 50–63 of my edition of the Arabic text in the Appendix. 14 See lines 3–15. 15 According to Muslim law, the number of times a man may divorce his wife is three, after which they may not remarry unless she subsequently marries someone else and is then divorced. A single pronouncement of divorce may be ‘revocable’ (meaning, the couple may remain married if they reconcile within a short ‘waiting period’ following the pronouncement) or ‘irrevocable’ (meaning, the divorce had immediate legal effect and they must contract a new marriage if

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they wish to remarry), depending on the language used. The jurists disagree as to what to do with three statements of divorce issued all at once, or indeed if some formulations may figuratively be understood as such a triple divorce. It should be noted that a single statement of divorce is sufficicent for the divorce to have legal effect. So long as the couple had not been divorced three times previous, they could remarry. In fact, the H . anafī school of law – the basis of this study – regarded such triple divorces as sinful (if legally valid), as they closed the door to reconciliation between the spouses. As such, the discussions here are not merely academic, and had real effect in how divorces were understood and conducted. 16 Lines 16–22. 17 The difference between a jurisconsult (mufti) and a judge (qadi) within the matured madhhab-law tradition is often one of legal consequence: the opinion of the former is not legally binding, while that of the latter is. Besides this, both must strive to arrive at the honest legal solution to a problem posed (i.e. to perform ijtihād) if they are master jurists, and both must observe binding precedent if they are not so qualified. On the distinction between mufti and judge, and its history, see Masud et al. (1996: esp. 18–19), Hoexter (2007), Calder (2010: chapter 3) and Al-Azem (2017: 143–4, on the history of the terms within the madhhab-law tradition). 18 Lines 23–32. 19 Lines 33–6. 20 Lines 37–40. 21 Cf. Clarke’s treatment of seeking alternative opinions in contemporary Shi‘i practice, in Chapter 9. 22 On the diyānatan/qad.āʾan binary, see Johansen (1988: 264–82, with the example of divorce at 276–9) and Marghīnānī (2006: 589).

References Ahmed, Shahab, 2016. What Is Islam? The Importance of Being Islamic. Princeton NJ and Oxford: Princeton University Press. Al-Azem, Talal, 2015. ‘A Mamluk handbook for judges and the doctrine of legal consequences (al-mūgˇab)’. Bulletin d’Études Orientales 63: 205–26. Al-Azem, Talal, 2017. Rule-Formulation and Binding Precedent in the MadhhabLaw Tradition. Leiden: Brill. Atçıl, Abdurrahman, 2016. Scholars and Sultans in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press. Burak, Guy, 2015. The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press. Calder, Norman, 2000. ‘The ʿUqūd rasm al-muftī of Ibn ʿĀbidīn’. Bulletin of the School of Oriental and African Studies 63/2: 215–28. Calder, Norman, 2010. Islamic Jurisprudence in the Classical Era, ed. Colin Imber. Cambridge: Cambridge University Press. Dutton, Yasin, 2002. The Origins of Islamic Law: The Qurʾan, the Muwat..taʾ and Madinan ʿAmal. Second edition. London: RoutledgeCurzon.

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Fadel, Mohammad, 1996. ‘The social logic of taqlīd and the rise of the mukhtas.ar’. Islamic Law and Society 3/2: 193–233. Fadel, Mohammad, 2002. ‘“Istih.sān is nine-tenths of the law”: The puzzling relationship of us.ūl to furūʿ in the Maliki madhhab’, in Bernard G. Weiss (ed.), Studies in Islamic Law and Society. Leiden: Brill, 161–76. Hallaq, Wael, 1984. ‘Was the gate of ijtihad closed?’ International Journal of Middle East Studies 16/1: 3–41. Hallaq, Wael, 2001. Authority, Continuity and Change in Islamic Law. Cambridge: Cambridge University Press. Hallaq, Wael, 2009. Sharīʿa: Theory, Practice, Transformations. Cambridge: Cambridge University Press. Hallaq, Wael, 2011. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament. New York: Columbia University Press. Hoexter, Miriam, 2007. ‘Qād.ī, muftī and ruler: Their roles in the development of Islamic law’, in Ron Shaham (ed.), Law, Custom, and Statute in the Muslim World. Leiden: Brill, 67–85. Jackson, Sherman, 1996. Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī. Leiden: Brill. Johansen, Baber, 1988. ‘Die Sündige, Gesunde Amme: Moral und gesetzliche Bestimmung (h.ukm) im islamischen Recht’. Die Welt des Islams Bd. 28 1/4: 264–82. Jonsen, Albert R. and Stephen Toulmin, 1988. The Abuse of Casuistry: A History of Moral Reasoning. Berkeley CA: University of California Press. Lowry, Joseph E. 2008. ‘The first Islamic legal theory: Ibn al-Muqaffaʿ on interpretation, authority, and the structure of the law’. Journal of the American Oriental Society 128/1: 25–40. Makdisi, George, 1984. ‘The juridical theology of Shâfi’î: Origins and significance of us.ûl al-fiqh’. Studia Islamica 59: 5–47. Makdisi, George, 1990. The Rise of Humanism in Classical Islam and the Christian West: With Special Reference to Scholasticism. Edinburgh: Edinburgh University Press. Marghīnānī, ʿAlī ibn Abī Bakr al-, 2006. Al-Hidāyah: The Guidance: A Translation of al-Hidāyah fī sharh. Bidāyat al-mubtadī, a Classical Manual of H . anafī Law, trans. Imran Ahsan Khan Nyazee. Bristol: Amal Press. Masud, Muhammad Khalid, Brinkley Messick and David S. Powers, 1996. Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge MA: Harvard University Press. Messick, Brinkley Morris, 2018. Sharīʿa Scripts: A Historical Anthropology. New York: Columbia University Press. Opwis, Felicitas, 2005. ‘Mas.lah.a in contemporary Islamic legal theory’. Islamic Law and Society 12/2: 182–223. Peters, Rudolph, 2005. Crime and Punishment in Islamic Law. Cambridge: Cambridge University Press. Qudūrī, Ah.mad al-, 535/1140–41. ‘Kitāb al-ibāh.a wa-l-haz.r: bāb ākhar fī al-h.az.r wa-l-ibāh.a’, in Sharh. Mukhtas.ar al-Karkhī. Istanbul: Süleymaniye Kütüphanesi, Dāmād Ibrāhīm MS 563, folios 485v–486r. Rapoport, Yossef, 2003. ‘Legal diversity in the age of taqlīd: The four chief qād.īs under the Mamluks’. Islamic Law and Society 10/2: 210–28. Schacht, Joseph, 1959. The Origins of Muhammadan Jurisprudence. Oxford: Clarendon Press.

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Weiss, Bernard G. 2006. The Spirit of Islamic Law. Athens GA: University of Georgia Press. Zysow, Aron, 2002. ‘Muʿtazilism and Māturīdism in H . anafī legal theory’, in Bernard G. Weiss (ed.), Studies in Islamic Legal Theory. Leiden: Brill, 235–65. Zysow, Aron, 2013. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Atlanta GA: Lockwood Press.

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Comparing casuistries: Rules, rigour and relaxation in Islam and Christianity Morgan Clarke Kant detested the old Catholic discipline of moral casuistry … and would also surely have detested the practice of seeking fatwas. (Asad 2003: 246) Many who might be damned are saved by a probable opinion. (Juan Caramuel (d. 1682), cited in Jonsen and Toulmin 1988: 168)

The Islamic sharia is a central example of what we are thinking of in this book as a ‘ruly’ or legalistic approach to living well. As said in the Introduction, although sharia is often thought of as ‘Islamic law’, it encompasses much more than what the modern liberal tradition imagines as the proper domain of law, including also rules of religious devotion, dietary prohibitions, personal and interpersonal ethics – in theory, or so the cliché goes, the whole of life. We would certainly not want to reduce what it means to be a good Muslim to observance of the rules of sharia alone. The Islamic ethical tradition is far richer than that (Ahmed 2016). But ‘shariamindedness’ is clearly important to many Muslims. It has also become central to the way in which non-Muslims regard Islam. Clarity as to what taking sharia seriously might actually involve is thus required. One needs adequate conceptual tools for such a task, but the vocabulary of liberal public discourse seems impoverished in this regard. The rules of Islam are, we are told again and again, ‘strict’. An example from that leading late-liberal voice The Economist, in trying to explain the attraction of Islam to British converts: Western culture of the 21st century lauds variety, choice, experimentation. A Westerner who converts to Islam is making a self-conscious move in a diametrically opposite direction: accepting non-negotiable rules in respect of diet, dress, sexual and social behaviour. Perhaps the prolixity of mainstream culture makes the uncompromising strictness of Islamic rules more attractive to a minority. (Erasmus 2016)

Strictness may indeed be attractive to many, but Islamic rules are not necessarily so. Nor – like rules in general – are they necessarily ‘non-negotiable’

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or ‘uncompromising’ (see the Introduction). For example, in earlier work (Clarke 2009) I described how Muslims in the Middle East have petitioned Islamic scholars as to the permissibility of undertaking assisted conception. In what is a strongly pro-natalist environment, being able to have children is of central importance to ideas of personal flourishing. And yet the region is also one with high rates of infertility, to which medical innovation now offers solutions. Is such medical intervention religiously permissible? Many Islamic scholars have argued that it can be, even in the case of the most ethically complex procedures involving third-party egg, embryo and (more rarely) sperm donation. Such opinions have given many the moral confidence to make use of these possibilities. If challenged as to the propriety of one’s actions, one can cite the rule that licenses them. Rules can thus be enabling as much as constraining, as many of the chapters in this book have shown. In looking for better conceptual resources, in an earlier paper (Clarke 2015) I turned to legal philosophy for inspiration. Here, in keeping with the spirit of this book, I try a different tactic: comparison with another tradition of religious ethical rules, Western Christian moral theology. In particular, I have been drawn to the historical genre now known as ‘casuistry’ (see Chapters 3 and 5), not least because it has become the archetype of an (overly) legalistic approach to ethics in Western thought. I must also acknowledge the inspiration of Talal Asad’s passing remark cited as an epigraph to this chapter. Asad’s juxtaposition of Islamic practical ethics, Catholic casuistry and the prejudices of modernity, as represented by Kant, comes in the course of a genealogical investigation of secularism and its conception of the proper relation between law and ethics (see the Introduction). For Asad (2003: 16), genealogy is ‘a way of working back from our present to the contingencies that have come together to give us our certainties’. Well known to anthropologists of Islam, Asad has also pursued influential explorations of Christian history, ‘motivated by the conviction that its conceptual geology has profound implications for the ways in which non-Western traditions are now able to grow and change’ (1993: 1). Here I too intend a sort of genealogical triangulation, between Islamic sharia discourse, contemporary Western prejudices about religious rules and their antecedents in early modern Christian debate. Digging into the roots of liberal attitudes to rules can help us resolve contemporary blockages in understanding other traditions. Catholic casuistry flourished around the seventeenth century, but became controversial and has long had a negative reputation (although it has more recently enjoyed a re-evaluation). Its juxtaposition with the Islamic legal tradition, which has its own long history (see Chapter 8), thus needs careful handling. The intention is not to liken the sharia discourse of today to the

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Christian casuistry of the early modern period – obviously problematic given the way that sharia is often stigmatised as in some sense non-modern. Rather, the polemical historical debates around casuistry helped shape a legacy of ideas that underpins many of today’s prejudices about ethical legalism. Revisiting those debates will help unlock those constraints and reveal new (or rather old) possibilities. What was at issue with Catholic casuistry was not just its profusion of rules: it was a matter of the different attitudes one might take towards those rules. Strikingly, rather than religious rules being seen as strict, here the critics saw them as overly permissive. And between those two poles of polemic a more nuanced set of distinctions were also advanced. An exploration of this parallel tradition will thus prove helpful in the search for better tools for describing the varied landscape of sharia-mindedness. It also brings together a number of the themes of this book at its close. I start with a brief, non-specialist’s account of Christian casuistry, and discuss some of the parallels with the Islamic tradition.1 I then concentrate on the most notorious aspect of early modern Catholic casuistry, the doctrine of ‘probabilism’, accused of ‘laxism’ by its detractors, and the wider range of attitudes to rules within which it fell. Here probabilism has a specific meaning that needs explaining (and is different from that employed by Talal Al-Azem in Chapter 8). I then turn back to Islam and consider the relevance of these conceptual nuances to sharia discourse, first in historical perspective, but then also with a focus on contemporary Shi‘i Islam. Here I consider both the learned debates of major religious authorities and the ways in which they are taken up in practice by non-legal specialist ‘ordinary’ Muslims, drawing on recent ethnographic work in the UK. The argument ranges widely – any aspect could be developed at much greater length – but by the end I hope to have shown not only just how thin the common characterisation of religious rules as ‘strict’ is, but also some ­possibilities for thicker description.

Christian casuistry As discussed in the Introduction, in a neutral sense, casuistry refers to reasoning by means of cases and, as such, might be employed in any number of contexts, including ethical ones (see e.g. Passeron and Revel 2005). This is sometimes opposed to other sorts of reasoning – not least reasoning by means of rules – and could even be taken as anti-legalistic in that sense. But consideration of general rules and of particular cases should be seen as complementary rather than mutually exclusive (see Chapter 4). More specifically, the term is usually used to refer to such reasoning in Christian moral

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theology, and especially its efflorescence in early modern Catholic Europe. This was part of what Emily Corran (2018: 6, Chapter 3) characterises as a tradition of Christian ‘applied ethics’: practical thought geared towards real-life dilemmas, or ‘cases of conscience’, as they were known. In their wide-ranging presentation of the topic, Jonsen and Toulmin (1988) trace casuistry’s roots back to the ancient world, but more immediately to developments in medieval European Christianity, which have already been touched on elsewhere (Chapters 3 and 5). Again, these were the advent of penitential books listing sins and their penances, with their focus on the individual sinner and weighing of the relative seriousness of different acts, and the related requirement for every adult Christian to confess annually that was introduced by the Fourth Lateran Council in 1215. Parallel to these developments came the rise of new religious specialists such as confessors and penitentiaries. Confessors needed guidance as to how to manage the proliferation of cases of conscience, which the new discipline of casuistry provided, not least through a new textual genre: confessional manuals. The issues became ever more complex. Subsequent centuries saw the commercial and evangelical challenges of the New World, but also the conflicts of the Reformation and Wars of Religion. Burgeoning in response, casuistry had its fullest flowering within Catholic thought in about 1550–1650. Famously, this body of ethical thought later fell into disrepute as being over-subtle and evasive – ‘sophistry in the service of sin’ (Sampson 1988: 72). For Jonsen and Toulmin (1988: 90), the discipline was shattered by two main blows: the doctrine of probabilism, which I will come to, and Pascal’s immortal assault upon its ‘laxist’ implications in the Provincial Letters (1656–57) (see also the Introduction). The latter must be situated in the context of the bitter political struggles within the Catholic Church between the Jansenists and the Jesuits, the object of Pascal’s attack (Gay 2011). In fact, some of the greatest works of Catholic casuistry, as well as some important Protestant ones, were still to come.2 But, according to the prevailing scholarly narrative at least, casuistry fell from fashion until some attempts to rehabilitate it in the late twentieth century, most notably to address the new dilemmas of bioethics – Jonsen and Toulmin’s work being the outstanding example. Casuistry’s supposed fall can also be seen in the light of larger (often tendentious) narratives of the historical development of the West and the advent of modernity. The theological worldview on which casuistry depended was undercut by the Enlightenment – or so the latter’s philosophers claimed. Protestant casuistry transmuted into the new political philosophy of the seventeenth century (Sampson 1988); the disciplining of the soul shifted from church to state (Tully 1988). A new discipline of moral philosophy



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emerged, more interested in general principles than practical advice (Jonsen and Toulmin 1988; Kittsteiner 1988). And, as many have argued in different ways, a page was also turned in the history of the self. Leites (1988: 120) holds that casuistry was rejected as contrary to a new conviction that a truly moral will must be rational and that no one could claim such rationality if governed by external authority. Unreflective, ‘blind’ obedience of religious rules would be mere ‘superstition’.

Islamic parallels and contrasts If we turn now to Islam, there are obvious resonances, as well as contrasts. Certainly, Islam has bountiful resources for what Leites (1988: 119) terms ‘the resolution by expert minds of difficult moral cases’. Religious scholars, the ulama, have for centuries debated the nature and content of the sharia. Fiqh, the human science that studies the divine law, is subtle and voluminous, as Al-Azem’s presentation (in Chapter 8) has so clearly shown. In sheer volume as well as sophistication and baroque elaboration, it certainly bears comparison with the canon law tradition. As Al-Azem has also demonstrated, one can readily discern casuistry in the fiqh tradition if we mean it in the neutral sense of arguing through cases. ‘That casuistry is an important method in Islamic Law is widely accepted in Western scholarship,’ Johansen (1995: 135) notes.3 As against the ‘Orientalist’ assumption that this casuistry was a consequence of the allegedly impractical nature of Islamic legal thought, Johansen stresses its essentially practical nature, as reacting to and accommodating the concerns of new landowning elites and the emergence of a distinct commercial sphere during the medieval period. He thus draws an explicit parallel with Jonsen and Toulmin’s account of Christian casuistry as a function of a new degree of social and intellectual differentiation in medieval and early modern European society (Johansen 1995: 140). While there is not perhaps a distinct genre within sharia discourse that exactly corresponds to that usually denoted by Christian casuistry – manuals treating cases for the guidance of confessors – the fiqh tradition constitutes an equivalent body of practical ethics, which religious specialists continue to draw on to provide advice. Expert opinion could be solicited through a number of avenues, most formally through the encounter with the mufti, the provider of a legal opinion (fatwā). The written responsa that have come down to us, often gathered into authoritative collections, constitute an important source for Islamic social as well as legal history. There are even some striking echoes in the themes and controversies of this literature with those of its Christian equivalent. Two common tropes of Christian

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casuistical debate were commercial instruments, designed to circumvent the prohibition on usury, and equivocal speech, vital in the context of the religious conflict of the early modern period. Could Catholics in Protestant lands, such as Elizabethan England, dissimulate as to their religious identity, for example? Legal devices (h.iyal) for commercial purposes were also a prominent, and notorious, feature of the Islamic tradition, as was equivocal speech or dissimulation, kitmān or taqiyya, especially among the Shi‘a, given their frequent persecution.4 That the genres nevertheless do not exactly correspond is no doubt related to the different conceptions and institutions of religious authority involved. The Muslim ulama provide authoritative guidance, but not a means to mediate one’s relationship with God, at least not in the context of seeking advice as to the sharia. The mufti–petitioner encounter can hardly be taken as the Islamic equivalent of the confessional. Jonsen and Toulmin (1988: 58) argue with regard to the comparable Jewish legal tradition, the halakhah (see Chapter 7), that consultation of a Jewish (or Islamic) legal authority is more prospective, oriented towards future action, than retrospective, oriented towards past action, as in confession. The retrospective nature of confession is bound up with the notion of penance and the redemption of past mistakes. Accusations – like Pascal’s – that casuistry was ‘laxist’ and incited a decline in public morality were therefore unfair, apologists argued, insofar as they involved a distortion of its proper purpose, which was for the pastoral use of the clergy rather than the unfiltered consumption of the laity. Works of casuistry were not ones of moral exhortation, recommendations as to how to conduct oneself, but more akin to legal literature, manuals for judging actions after the event (Leites 1988: 120; Sampson 1988: 77–8). Nevertheless, casuistical arguments must have helped shape prospective action, not least in the field of commercial instruments. Further, we can hardly ignore the broader pedagogical role of confession, as a means to encourage people’s purification of their souls. If we turn to the institution of seeking a fatwa from a mufti, this is indeed most often a prospective process. The whole mechanism of formal absolution by a religious professional is foreign to Islam, even if repentance (tawba) is a prominent feature of Muslim devotional discourse and the notion of weighing the relative seriousness of different offences a shared concern (Padwick 1961: 173–208; Chapter 6). Like the casuistical literature, fatwas fall more under the heading of legal discourse (fiqh) than that of moral exhortation. Yet, while the importance of the fatwa literature for the formulation of Islamic law has long been acknowledged, it has recently been noticed that the encounter with the mufti could have pedagogical dimensions as well. In the context of the present-day Fatwa Council of the celebrated al-Azhar Mosque in Cairo, for example, Hussein Agrama (2010)

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has described (in Foucauldian terms) how muftis and petitioners are engaged in a process of ‘ethical cultivation’. The fatwa’s ‘promise of guidance’ to people in the throes of moral dilemma (a man who has been sleeping with a married woman; another who has learned of his father’s rape of his sister) is intrinsic to this. Such advice certainly can examine past errors as well as future actions, as Agrama’s examples show.5 We need not exaggerate the differences, then. Nor, in thinking about rules and ethics, and the non-expert’s recourse to expert advice, need we limit ourselves to confession or fatwa-seeking, or take the prescribed form of either institution as an infallible guide to its actual practice. Consultation of religious experts takes place in a wider variety of forms, more or less formal. In my own experience, people petition religious specialists wherever they can: in the mosque, on the street, at their homes and over the phone. Mutatis mutandis, the same must have been true in earlier eras, for both Islam and Christianity. Conversely, whereas one of the most prominent – if no doubt c­ aricatured – features of the stock narrative of Christian casuistry is its historicity, its dramatic rise and then fall, sharia discourse remains enduringly vital, booming even in the current era of electronic publishing and digital communications. Rather than sharia’s vitality being evidence of some sort of archaism, however, it seems more a function of modernity than its negation, a consequence perhaps of the centrality of legal discourse to the modern state and its correspondingly pervasive presence in our lives (Ahmed 2016: 117–29, esp. 125). If Jonsen and Toulmin (1988: 158) are right that ‘The most vigorous casuistry is typically generated by a confrontation between values that are thought of as long settled and emerging conditions that apparently challenge those values,’ it is unsurprising that the Muslim world’s encounter with Western colonialism and globalisation should have generated an explosion of legalism. At the same time, the changing notions of authority and autonomy that have been seen as crucial to the development of Western modernity have also been identified in Muslim societies. Mass education and new media have brought momentous changes in Muslims’ relationship to scripture and religious authority (Eickelman 1992). Contemporary Islam is not only often self-consciously modern, but also critical of uncomprehending observance, attributed to an (imagined?) past where religious rules were a matter of mere ‘tradition’ (Deeb 2006).

Doubt and probabilism The charge against Christian casuistry that seemed to stick most firmly was that it encouraged ‘laxism’, or permissiveness. It was this charge that

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led the Catholic Church to proscribe certain casuistical positions. The particular doctrine under suspicion was that of ‘probabilism’, which has a specific meaning that needs to be made clear (and which differs from the use normally made of this in term in Islamic studies, as in Al-Azem’s Chapter 8 above).6 This meant that you could follow a course of action so long as someone had put forward a justified argument in its favour. As put by its originator Medina (d. 1580), ‘if an opinion is probable, it is licit to follow it, even though the opposite opinion is more probable’ (cited in Jonsen and Toulmin 1988: 164). Here ‘probable’ has a technical meaning. In the words of the Jesuit scholar Daniel (d. 1728, cited in Sampson 1988: 78), it refers to ‘an opinion backed and supported by considerable authority or by some important reason’. It thus means more ‘arguable’ or ‘approved’ than ‘likely’, although some opinions were seen as more probable than others (Hacking 1975: 18–25). A distinction came to be made between intrinsic and extrinsic probability, the former referring to the intrinsic merits of an argument, the latter the authority of an expert who has made that argument (Hacking 1975: 33; Jonsen and Toulmin 1988: 167–9). Probabilism chiefly concerned the latter, whereby ‘The authority of one grave doctor may make an opinion probable’ (Daniel, cited in Sampson 1988: 78). The accusation of probabilism’s critics was thus that, so long as one could find some authority to back a desired course of action, one could pursue it. And given the very large number of authorities, one could generally find someone who had come up with a justification of almost any course of action – thence the outrageous examples that Pascal caricatured, such as permitting a judge to accept a bribe in an inconclusive case, or allowing a monk to visit a brothel if he took off his religious dress (Jonsen and Toulmin 1988: 237). Again, the accusation could be said to be unfair insofar as it involved a misperception, or distortion, of the casuistical literature’s intended purpose and audience, which was for the pastoral use of the clergy rather than the spiritual improvement of the laity. ‘[T]he question here is, not what is most perfect; but only what is lawful; nor that which is counsell’d but that which is forbidden’ (Daniel, cited in Sampson 1988: 76). Casuistry was, as Jonsen and Toulmin are keen to stress, part of a practical project, coming to terms with the moral dilemmas that life in the world inevitably puts in our way. In real life, there is rarely one right path; obligations conflict. Casuistry, and probabilism, was a way of coping with the inevitable lack of moral certainty. In such circumstances, the concern was to relieve what might ­otherwise seem an impossible burden (as the epigraph to this chapter intimates, in the words of one of probabilism’s most famous champions). Here we have to understand what the existing alternatives were, to which probabilism was a response. The dominant existing approach, which came through from the medieval period, was that of following the ‘safer’ (Latin,

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tutior) path (Maryks 2008: 56–75). Where a number of options or interpretations presented themselves, and it was uncertain which was the right one, one should play safe by taking the more demanding or literal path, rather than risk sinning. In reality, such ‘rigorism’ had its own dangers. Sampson (1988: 79) cites Daniel again: while ‘It looks well to say that one is oblig’d  always to follow the more safe opinion,’ as confessional practice this would be ‘to condemn or damn all the world’, here thinking of the much discussed topic of usury and the realities of commerce. The rigorism preached by the Jansenists, foremost opponents of Jesuit probabilism, was ‘an ideal perfection … impossible for nine-tenths of mankind [sic]’ (Brodrick 1934: 66, cited in Jonsen and Toulmin 1988: 247). As a consequence, it might lead to ‘corrosive self-mistrust’ (Mahoney 1987: 243), even ‘compulsive neurotic scrupulosity’ (Häring 1963: 161–3).7 An array of possible stances emerged in the course of the ensuing debates. In diminishing degree of rigorism, one had: tutiorism (one should adopt the safer position); probabiliorism (one should adopt the position that is better attested); aequiprobabilism (one may choose the less ‘safe’ of two opinions, but only where one is choosing between two equally likely arguments);8 and probabilism (one may follow any position so long as it is backed by a reputable authority and argument) (see e.g. Mahoney 1987: 136–7). Although polar opposites in terms of ‘rigour’, tutiorism and probabilism share a legalistic emphasis on formal authority over weighing up the underlying reasons for rules and their relationship to particular situations. But they imply very different moral visions: in Mahoney’s (no doubt partial) terms, ‘opposing a religion of fear, obligation, and law with a religion of God’s love and a conviction that … salvation is easy and severity not necessarily a component of the moral life’ (1987: 245). The Islamic legal tradition has also wrestled with the question of the certainty of our moral knowledge. Overall, its position is one of what Johansen (1999: 37) calls ‘epistemological scepticism’, upholding ‘the difference between the absolute truth and validity of the revelation on the one hand, the fallibility of human interpretation of these texts on the other’. This ensures the cohesion of the discipline of fiqh – the human science of interpreting God’s sharia – by acknowledging that no one school of thought can claim privileged access to truth. Difference (ikhtilāf) is intrinsic to the tradition. When there is consensus (ijmāʿ), knowledge can be considered certain. Otherwise, doubt is inevitable. Of course, as Al-Azem has already described, attempts were made to limit doubt and difference. To repeat, the development from around the ninth century of schools of law (madhhabs) with a shared canon of methods and positions was significant in this respect. This concerned, among other things, the scope for individual jurists to derive for themselves the rules of

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the sharia from its sources, the process of ijtihād. Given the acknowledged legitimacy of such ijtihād, diverse legitimate opinions consequently proliferated. As jurists then came to commit themselves to a common tradition of legal argument, the madhhab, the scope for ijtihād gradually became circumscribed. Most scholars would instead practice the following (taqlīd) of the accepted positions of the school. There nevertheless remained great diversity of opinion within, as well as between, the four great schools of law (H . anafī, H . anbalī, Shāfiʿī and Mālikī), and thus the need to weigh up (tarjīh.) the arguments to decide which positions were the soundest (Hallaq 2001: 126–52; Chapter 8).9 This left the question as to how firmly scholars and non-specialists should be bound to follow the predominant positions of a given school. In practice, the multiplicity of schools in itself made possible forum shopping between them. In earlier periods, this was viewed negatively, even as sinful. But, according to Ibrahim (2015), from about the thirteenth century, ‘pursuing dispensations’ (tatabbuʿ al-rukhas.) became recognised as not just a reality but as potentially legitimate, albeit controversial. Some scholars, like the great Abū H . āmid al-Ghazālī (d. 1111), held that one should follow the opinion of the more knowledgeable jurist, rather than the more convenient opinion. For al-Shahrazūrī (d. 1245), one could depart from one’s chosen school not to follow a more lenient position, but only to follow the more cautious (ah.wat.) one. Others, like Ibn Taymiyya (d. 1328), rejected even the reliance on authority that such opinion shopping required: the l­ ayperson should wrestle with the arguments themselves. But the famous mystic Ibn ʿArabī (d. 1240) considered dispensation a gift from God and outlawing it the height of ignorance. Al-Zarkashī (d. 1392) thought that such ‘pragmatic eclecticism’, as Ibrahim calls it, prevented people despairing of the sharia and was thus permissible, if supervised by the mufti. A specific genre of legal literature emerged over the Ottoman period, ikhtilāf manuals detailing the different rulings of the schools on various points for precisely this purpose.10 Such eclecticism has since become a key tool of modernist legal reform, as well as the reality of much contemporary Muslim practice (Yilmaz 2005; Ibrahim 2015: 67–74, 90, 99–102, 171–201). Whether or not we choose to call such pragmatic uses of positions with some authoritative backing ‘probabilism’, in the Christian sense elaborated above, is no doubt a moot point.11 But a consideration of the Christian debates over probabilism reveals clear points of comparison. In both traditions, irresolvable doubt as to God’s intentions leads to a plurality of possibilities in the face of a given moral issue, and thence, given a class of religious-legal experts, a plurality of authoritative positions. In deciding how to act, or how to evaluate past actions, one must either rely on



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a­ uthority to establish the relevant rules and procedures, or wrestle with the issues oneself. In either case, one can take a more cautious line, or a more lenient or pragmatic one. Different such approaches reflect different theological, moral, pedagogical and practical commitments. Taken together, this variety of approaches shows that religious rules, in these two traditions at least, are not necessarily strict and uncompromising – nor indeed necessarily lax and completely flexible. Following authority is neither a given, nor is it best characterised as ‘blind obedience’.

Tutiorism and probabilism in Shi‘i Islam Having laid out these distinctions, I want to end by briefly exploring their relevance for describing contemporary sharia-mindedness. Again, the intention is not to imply some sort of archaism to the ethical ideas of the contemporary Muslims I describe. Rather, I wish to find terms in which I can satisfactorily communicate their nuances, as opposed to the crude stereotypes about ‘strict’ rules that generally circulate. Most accounts of the history of Islamic law, like those I cited above, focus on the Sunni Muslim majority. My examples, however, will be (Twelver) Shi‘i Muslim. That is in part for contingent reasons: this is the richest material I have for the purpose. But it is worth saying too that the Twelver Shi‘a have come to adopt a notably legalistic model of authority. The legitimacy of scholarly interpretation of God’s law (ijtihād), with its implication of a lack of certainty as to what the law is, was at times controversial within the tradition, but is by now dominant (see e.g. Gleave 2000). Around the nineteenth century, a model of non-expert practice emerged that privileged following (taqlīd) a scholarly authority, who here acts as a marjaʿ, a ‘point of recourse’ or ‘source’ of authoritative opinion (Moussavi 1996). In order to determine the right course of action so as to be sure of being excused by God, a Shi‘i Muslim has three possibilities. One can either rely on one’s own judgement if one is a mujtahid, a scholar qualified to exercise ijtihād; or practice taqlīd of someone who is a mujtahid, the latter here serving as a marjaʿ; or, finally, practice ‘caution’ (ih.tiyāt.) (e.g. Sistani 2002: 1:9). The last possibility, caution, is an intriguing one in the light of the Christian debates discussed above. As one academic commentator explains, ‘Exactly what caution demands depends on the case in question, but in general terms it means selecting the course of action which places the greatest hardship on the individual, fulfilling both the certain and uncertain requirements of the law. By doing this, the believer will be certain of his compliance with God’s commands’ (Gleave 2000: 107). This would seem the purest expression of an Islamic ‘tutiorism’. But it would have onerous

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consequences, as one contemporary marjaʿ, Ayatollah Muhammad Sa‘id alHakim of Iraq (b. 1934), explains: If some mujtahids give an opinion forbidding smoking, for example, and some of them permit it, then one is obliged not to smoke due to the possibility of its being forbidden. And if some of them give an opinion obliging one tasbīh.a [formula praising God] in the prayer and some oblige three tasbīh.as, then one is obliged to perform three, on account of the possibility of its being obligatory. And if some say qas.r [shortening of prayers in certain circumstances] and some say tamām [performing prayers in full], then one has to do both. And likewise, whenever there is a possibility of an obligation then one exercises caution by matching it. And this path is hard for most people. (Hakim 2004: 1:12)

More than hard, it would surely become next to impossible: ‘One would be unable to attain certainty over ritual purity unless one personally cleaned the mosque and washed one’s clothes, using water which one had personally obtained in a manner which secured its ritual status’ (Gleave 2000: 231–2). As another marjaʿ, Ayatollah Fadlallah of Lebanon (d. 2010) warned, it might lead to a sort of pathological insecurity: ‘There is no fault in the believer exercising caution in every uncertain ruling … so long as that does not turn into a sort of waswās [the “whispering” of Satan] and the domination of a mentality of caution [dhihniyya ih.tiyāt.iyya] and an irrationally disapproving practice [al-aml ghayr al-ʿuqalāʾī al-mustahjin]’ (Fadlallah 2002: 1:24, 26).12 Set against this radical ‘tutiorism’, the institution of taqlīd, obtaining excusability before God by relying on an authoritative opinion, is already a step towards a sort of probabilism in the senses discussed above. Taqlīd in this context means, according to the scholarly vision at least, following an opinion ‘without proof’ (bi-dūn al-h.ujja), without having to go into the arguments for and against it oneself. For the layperson, it is the authority that counts more than the arguments they rely on. This following is thus ‘blind’, but for good reason: as a non-expert, you do not have the same time, skills and resources for the task as those who have dedicated their lives to it. And so the manuals of sharia rules that marjaʿs publish for the benefit of their followers simply list the rulings rather than giving their scriptural and other justifications. The latter fall under another genre, fiqh istidlālī (‘demonstrative jurisprudence’), intended for a scholarly audience. There is still a plurality of experts to choose from. Some – the minority – think that you can choose who you want (e.g. Fadlallah 2009: 28). Others, the majority, hold that the non-expert should follow the opinions of the most learned (al-aʿlam) living scholar available, as the best guarantee that one is doing right. By implication, however, they each consider themselves

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to be the most learned – and there are many contenders. If two or more scholars are equally plausible in this regard, then, some say, you should pick ‘the more pious’ or ‘cautious’ (al-awraʿ). If that is not clear either, then some hold that you must simply choose between them, others that, in any given matter, you must follow the safer of the opinions of the two (Sistani 2002: 1:10; Hakim 2004: 1:13–14). One is reminded of the careful distinctions of Christian casuistry cited above (probabilism, probabiliorism, aequiprobabilism and tutiorism), except that here one is thinking in terms not of individual opinions, but of individual authorities. One should, on the most widespread view, choose a marjaʿ and then adhere to their positions in all matters. Much rarer are those who hold that you can follow the positions of more than one marjaʿ – the practice of tabʿīd., ‘dividing’ oneself between different scholars’ opinions, including in ‘situations of constraint and difficulty in honouring a legal opinion’ (Fadlallah 2009: 27–9, quotation at 27). For the majority this form of probabilism smacks of laxism. Asked by a petitioner about their observation that ‘some of the faithful follow a mujtahid other than the one they generally follow in some matters, according to the easiness of the fatwa of this mujtahid in these matters,’ Ayatollah Hakim disapproves. ‘The sure course here is to choose between the totality of the opinions of both, and then one can choose one of the two with respect to all their fatwas, both the restrictive and the light to bear.’ There is no such certainty if one simply picks what pleases one from amongst their rulings, following one’s personal desires. ‘Indeed, were one to open this door, and the believer wished to choose the lightest of opinions, then this, combined with the plurality of authorities, might lead to the cutting, through neglect, of many duties’ (Hakim 2003: 31–2). Nevertheless, the caution that so many scholars seem inclined towards can sometimes undermine this stress on following just one scholar consistently. A jurist may lean towards a position on a given issue without feeling that the arguments in its favour are conclusive. In this case, they can be reluctant to give a decisive opinion. They will advise their followers instead that, on this particular point, caution should be exercised, either as a recommended practice or an obligatory one. Where such caution is merely recommended, the follower is thereby free to follow the more lenient path, on the authority of another scholar who feels more confident on the matter (see e.g. Fadlallah 2002: 25–6 for a more detailed exposition). Where it is obliged, however, the follower has no choice but to follow the safer path. The propensity to caution of many scholars was thus criticised for its unworldliness by the likes of Ayatollah Fadlallah, praised by his enthusiasts for his ‘contemporary’ stance, but marginalised by the establishment (see Clarke 2018: 237–62). A closer acquaintance with the reality of life outside the seminaries, he argued, would allow them to see the damage

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that an insistence on the heaviest of veiling (covering the face as well as the hair) does to the wider reception of Islam, or that ruling out as a precaution playing cards (without gambling) or the shaving of the beard, on the basis that ‘no religious person’ does such things, is to be ignorant of the millions driven to sin by this ‘mentality of prohibition and caution’ (dhihniyyat al-tah.rim wa-l-ih.tiyāt.) (Shakhuri 1998: 31).

From theory to practice The dynamic between more rigorist, ‘tutiorist’ but potentially unrealistic stances and a more pragmatic, ‘liberal’ ‘probabilism’ that we saw in the Christian debates above seems recognisable in the context of these contemporary Shi‘i learned debates. What one wants to know now is how, if at all, this dynamic plays out in lay practice. Here I can draw on a series of interviews that my colleague Ali-Reza Bhojani and I have conducted among an originally South Asian Twelver Shi‘i community in the UK.13 The interviews, in Greater London and the Midlands, have centred on what sharia means to people in their everyday religious and moral practice, and our interviewees have included men and women of different generations and migratory experiences. Taken as a whole, the community is prosperous and highly educated. Especially important to note is that the community has a tightly organised religious life and institutions, and has decided to follow as a community a single marjaʿ, currently Ayatollah Sistani of Iraq. The latter choice is an unexceptional one, insofar as Sistani is widely viewed as the pre-eminent figure in the scholarly hierarchy.14 He could thus be seen as a conservative choice, which is in keeping with the community’s self-image as relatively observant. This approach is not uncontested within the community, and there are other voices on what observance might best entail, but we can say that this is the predominant model. Almost everyone we spoke with in these interviews felt that the rules of sharia were important, although they varied in their attitudes towards them. Much of their observance was automatic, a matter of following rules that they had absorbed since birth – from parents, religious schooling and the pulpit. But many acknowledged sometimes finding themselves at a loss, either as to what the rule was for a given situation, or how to apply it in practice. At this point, as non-experts, most would seek advice. That could be from a book, Sistani’s handbook say, or his website or smartphone app. Or, very often, people would ask a trusted local expert. One man we spoke with worked as an accountant and was often presented with challenging ethical questions as a result. One such case of conscience concerned a property investment. The firm of which he is a

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partner, made up of Muslims and non-Muslims, were interested in buying a building. The ground floor was a bar-cum-nightclub, while the first floor was student accommodation. The other partners were unconcerned. ‘So it was me that was left in limbo thinking, “Well, am I allowed or am I not?” because alcohol is involved, the nightclub scene is involved.’ So he sought advice from the local community’s resident scholar, who replied that he thought the investment was religiously permissible because the firm’s involvement was restricted to buying a property and collecting rent from it, rather than being directly engaged in the sale of alcohol or running the nightclub. This response made sense to the accountant at the time, so he went ahead. A number of years later, something he heard in a sermon set him thinking about the issue again. Perhaps the earnings were illicit after all; perhaps he needed to purify any money gained (most likely through paying a tithe on it). This would be no easy matter, as the profits had been reinvested in further property transactions. ‘So for me it was a major, major issue.’ He asked again. There was now a new resident scholar, whose initial thoughts were along the same lines. He also thought that the accountant would need somehow to reverse what he had done, but he was not sure how and so rang Sistani’s office in the UK for clarification. Their response was that, although the initial transaction should in fact have been considered impermissible, the accountant need do nothing now, because he had acted upon the advice that he was given at the time. ‘Obviously it was a big relief for me!’ the accountant laughed. ‘Because it saved me a hell of a lot of aggro. … But that was a bit confusing for me, because I really did believe I would have to rectify that decision. … I’ve already done something which is the same scenario, it was just done back in the past. But why does that make that right today?’ So he asked again. The local shaykh admitted that to him, too, it did not quite make sense. He undertook to ask the Ayatollah’s offices again. And he did. And it was rubber-stamped the second time. And when he came back the second time and said no, it’s all good – for me, it didn’t make sense. But you know what, you’ve been told, you’ve been told twice, just shut up and accept and move on. Don’t dwell on it too much. But yes, it’s just that, for me, I wanted to be satisfied myself.

Faced with a dilemma, this man turned to a religious specialist for help. He was provided with the means to ease his conscience through authoritative guidance. The notion of ‘strictness’ would hardly serve here. But neither was this man’s obtaining of licence for the path he took opportunistic. Indeed we should note his niggling sense that the more difficult path might be the right one, or at least more satisfying to his conscience. And finally, although he was in the end happy to rely on authoritative opinion, his

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reliance would not be well characterised as ‘blind’. He did feel the need to understand something of the rationale for the scholarly verdicts; his intuition that they did not quite make sense troubled him; he even insisted on asking again. Another case also shows well the way in which, at the individual level, the stricter path can seem the more intuitively right one. One woman told us how she had wanted to wean her infant daughter off breastfeeding, but did not know what to do. So she and her husband had sent an email asking, twice, to Ayatollah Sistani’s offices. She could not remember exactly why they had written twice; but it was clearly related to their lack of satisfaction with the first response. ‘The first one was really, it was like really flexible and it said, oh just, you know, “slowly, take your time.” And the next one was “it’s h.arām” [to continue breastfeeding after the child is two years old] and that’s it, you know, you’ve got to stop.’ That, in this case too, one might receive two different opinions from representatives of a single authority was disconcerting. Nonplussed, they nevertheless had to decide. They went with ‘the more strict version’. ‘We latched off straight away.’ One earnest young man explicitly framed his own approach in the technical terms introduced above. ‘I’d rather take precaution. Like, I have this mindset where it’s so bad to commit sin. So I’d rather take precaution.’ Take the controversial practice of tat.bīr, acts of self-harm in commemoration of the injuries suffered by the Prophet’s grandson and third Imam, H . usayn ibn ʿAlī, at the Battle of Karbala (680 ce): Personally … I wouldn’t do it, because there’s different, there’s one marjaʿ saying it’s h.arām and most of the other marājiʿ [pl. of marjaʿ] say it’s either mustah.abb [commendable] or it’s not allowed. … Or wājib kifāʾī [an obligation upon the Muslim community as a whole, but not every individual]. And at least one person’s going to do it, so it fulfils that condition. So I wouldn’t do it, because there’s one marjaʿ saying it’s h.arām – I’d rather take that precaution.

This is ‘tutiorism’, in a notably legalistic form. Yet, as we have seen, the formal system of religious authority allows flexibility too. One older man, pious and traditionalist in manner, told us how he followed Ayatollah Sistani. But where Sistani notes his own caution in pronouncing definitively, then he follows someone else. So, for example, a question had been provoked in his mind by a talk by the local resident scholar. He prays at home with his wife, in a small room they dedicate to the purpose. Apparently, he heard, Sistani says that ‘any lady praying with you should be a bit back. Their head should be on the leg-side.’ But this would be impossible for him and his wife in their little prayer room: ‘the space is so small.’ So he asked another respected local scholar whether their p ­ ractice

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was acceptable. The scholar checked Sistani’s handbook of rulings and confirmed the position that the man had heard. Still, because Sistani makes this only a matter of caution, it opens the way to following another scholar’s opinion. The scholar told the man that the position of another ayatollah was that the way he and his wife were praying was permissible – and so he could continue by relying on that ruling, which had the backing of a reputable authority (hence ‘probable’ in the terms described above), to validate his practice.15 This last example seems largely a matter of pragmatism. And yet, even if there are those who favour the safer path, there are others whose concerns over such rigorism echo the more theological and ethical considerations cited above. Another older man told us about the difficulties he had had satisfying the rulings of the marjaʿ that the community had briefly followed in the 1990s, before they had adopted Sistani (see Corboz 2015: 64). [Ayatollah] Gulpaygani [of Iran, d. 1993] was so strict in the West. For example, on a rainy day, you have to get a bus. You go in, you sit down. The seat is wet. Then your clothes are nājis [polluted, because of the indirect contact with a non-Muslim, considered by Gulpaygani polluting, and thus invalidating one’s prayers]. So many other examples. I was scared. I didn’t have an option … It’s very scary what comes from the pulpit, you can’t sleep at night. … Even in Sistani’s risāla [legal handbook], in the West, some masāʾil [issues] can’t be done.

He gave a very commonly cited example, the prohibition on shaking hands with a non-relative of the opposite sex, prohibited by almost every leading authority, but seen by many we spoke with as unrealistic or inappropriate in contemporary Western settings: ‘Supposing you have studied, got your bachelor’s, you’re going up, there is a woman, she is smiling, congratulating you. There’s nothing wrong. It would be bad not to shake hands. You show your akhlāq [good character].’ Here many others thought likewise – often justified in terms not of authority (a rival marjaʿ’s opinion) but of their own moral ‘common sense’. This man felt that people, especially young people, were leaving the faith because there were too many such strict rulings. ‘God is Almighty – how does it benefit him to send people to hell?’ (Or, as a young man put it on another occasion, ‘Is God really that petty?’) Consequently, he had himself become more critical. ‘Now I am an independent thinker,’ he told us. ‘I will ask the speaker, “Show me the hadith!”’ the saying of the Prophet or Imams that justifies a legal position. Another man we spoke with felt there had been a generational shift here, linking it to different visions of religious life in ways reminiscent of the Catholic debates discussed above. ‘When I was growing up, you know, hell was a bad place. God was an angry man.’ But

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now he thought things had changed. ‘We’ve realised … God is, you know, the most beneficial and the most merciful, right?’

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Conclusion I started this chapter with a snatch of liberal public discourse, which spoke of the ‘non-negotiable’ nature and ‘uncompromising strictness’ of Islamic rules. I took this to be typical of contemporary assumptions about not only Islam, but religious rules more generally. Sharia-mindedness deserves better analytical tools. My gambit has been to search for them through exploration of a parallel rule-rich tradition, Western Christian practical ethics. Consideration of the history of Christian casuistry shows that sharia is not alone in being ill-served by the stereotypes of Western modernism. Indeed Catholic casuistical reasoning came under such criticism that ‘casuistry’ now stands as a by-word for overly legalistic approaches to moral questions. Yet, the criticism was not so much of its strictness as of its flexibility. Digging deeper revealed what led to these twin, contrary stereotypes of religious rules. The advocates of probabilism, which was caricatured as laxist, sought a means to counter the excesses of rigorist tutiorism – the epitome of strictness. We saw something similar in Islam. Religious rules are thus neither necessarily strict nor lax. Rather, strictness in interpretation and application (not the same thing, note) and a contrary need for flexibility are inevitable possibilities that the use of rules entails. Both have their attractions. Cross-cutting this axis of variation is another, one that plots reliance on authority. One can gain flexibility by leaning on reputable opinion, as in probabilism, or simply ignoring it – going with one’s ‘common sense’. Equally, playing it safe can be a matter of scholarly advice and technical elaboration, or just a gut feeling, as it was for the woman worrying as to when to wean her infant. Other dimensions could no doubt be identified beyond these. The use of rules is, then, a more complex phenomenon than contemporary stereotypes suggest. The comparison with Christian casuistry has also generated a vocabulary for discussing such differences: the polemical distinctions between rigorism and laxism, but also the more technical ones of tutiorism and probabilism. The Latinate terms might need replacing, but the concepts they label seem useful more generally. These need not denote schools of specialist thought, or models of individual practice, although they could be both. In reality – or at least in interviews with British Shi‘i Muslims – it is clear that this range of possibilities can be embraced even within the practice of a single individual. Sometimes people



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follow authority. Sometimes they make up their own minds. Sometimes they play it safe. Other times they use the rules to absolve themselves. To see the rules of the sharia as ‘strict’, ‘non-negotiable’ and ‘uncompromising’ is to take one idealised expression of the religious imagination as the whole of a multifaceted reality. In reality, rules conflict; dilemmas arise. Negotiation and compromise are inevitable, whatever one’s stance. Even strictness has to be negotiated after all – a compromise in itself, between one sort of ­religious desire and the other demands of life.

Acknowledgements I am very grateful to Emily Corran for her comments on several drafts of this chapter and for suggesting many helpful references, as well as to Emanuel Schaeublin and an anonymous reviewer. I must also thank AliReza Bhojani, not only for commenting on the draft chapter, but also for allowing me to draw on research that we have conducted together, which was made possible by the generous assistance of the Council of European Jamaat and the UK Twelver Shi‘i Khoja community.

Notes   1 For Christian casuistry, I have drawn especially, but not exclusively, on Jonsen and Toulmin’s (1988) compelling account. For more up-to-date interventions, see Gay (2011), Corran (2018) and Ginzburg and Biasiori (2019).   2 On early modern Protestant casuistry and its legacy, especially in England, see Sampson (1988). On modern Catholic casuistry, see e.g. Jonsen and Toulmin (1988: 269–78).   3 See also Bori (2019) and Dayeh (2019).   4 For the Christian cases, see Jonsen and Toulmin (1988: 181–215). Corran (2018) covers the extensive literature on falsehood (see also Chapter 5). On h.iyal, see e.g. Horii (2002); on taqiyya, see Kohlberg (1975) and, for Sunni instances, see Stewart (2013).   5 Much contemporary fatwa-seeking is, however, done remotely, via email or SMS  – an echo of the classical tradition’s assumption of a formal written response rather than a personal interaction (Caeiro 2006). As the sharia’s use as state law has declined, its ethical and devotional role has arguably increased – questions about fasting or prayer might now outnumber those about land ownership (Messick 1996; but cf. Reid 2013 on legalism and personal piety in the medieval period).   6 See the entries on ‘Laxisme’ and ‘Probabilisme’ in the Dictionnaire de théologie catholique, as well as e.g. Mahoney (1987: 135–43), Jonsen and Toulmin (1988: 164–75), Fleming (2006) and Maryks (2008).

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  7 On the dangers of rigorism, see further Kirk (1927: 121–9) and Mahoney (1987: 242–5).   8 This was the position that the hugely influential eighteenth-century Catholic theologian Alphonsus Liguori arrived at, taking much of the heat out of the controversy (Mahoney 1987: 142–3).  9 Just as in the Christian casuistical tradition (Jonsen and Toulmin 1988: 168), the brute number and stature of authorities backing a position could be a means to quantify its relative weight (Hallaq 2001: 143). 10 Marriage and divorce law was a classic such area. The Shāfiʿī and H . anbalī schools gave greater possibilities for a wife to sue for divorce than the H . anafī school that the Ottoman Empire favoured, for example (Tucker 1998: 81–7). 11 As in Al-Azem’s discussion (Chapter 8), the academic Islamic studies literature does sometimes talk in terms of ‘probable’ reasons and ‘probability’, but in the senses of either that which is preponderant (i.e. more probable) or more commonly that which is uncertain and thus necessarily a matter of opinion (e.g. Johansen 1999: 37, 40; Hallaq 2001: 127–8, 132; Zysow 2013: 1, 3, 260–2, 279; Ibrahim 2015: 53–4). 12 For examples of similar concerns in earlier periods, see Reid (2013). Compare the ‘corrosive self-mistrust’ identified by Christian theologians cited above. 13 The community, the Khoja Twelver Shi‘a, has a complex and particular history of their own, which includes ties to East Africa and deserves more discussion than possible here. 14 Sistani is the most prominent of four leading figures in the prestigious seminaries of Najaf, who also include Ayatollah Hakim, cited above. 15 As Ali-Reza Bhojani has pointed out to me, the whole conversation seems to have been premised on a misunderstanding: these rules cover congregational rather than individual prayers. But the analytical point about means of ­dispensation stands.

References Agrama, Hussein, 2010. ‘Ethics, tradition, authority: Toward an anthropology of the fatwa’. American Ethnologist 37/1: 2–18. Ahmed, Shahab, 2016. What Is Islam? The Importance of Being Islamic. Princeton NJ: Princeton University Press. Asad, Talal, 1993. Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam. Baltimore MD: Johns Hopkins University Press. Asad, Talal, 2003. Formations of the Secular: Christianity, Islam, Modernity. Stanford CA: Stanford University Press. Bori, Caterina, 2019. ‘The many roads to justice: A case of adultery in sixteenth-­ century Cairo’, in Carlo Ginzburg and Lucio Biasiori (eds), A Historical Approach to Casuistry: Norms and Exceptions in Comparative Perspective. London: Bloomsbury, 113–31. Brodrick, James, 1934. The Economic Morals of the Jesuits. London: Oxford University Press.

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Caeiro, Alexandre, 2006. ‘The shifting moral universes of the Islamic tradition of ifta’: A diachronic study of four adab al-fatwa manuals’. The Muslim World 96: 661–85. Clarke, Morgan, 2009. Islam and New Kinship: Reproductive Technology and the Shariah in Lebanon. New York: Berghahn Books. Clarke, Morgan, 2015. ‘Legalism and the care of the self: Shari‘ah discourse in contemporary Lebanon’, in Paul Dresch and Judith Scheele (eds), Legalism: Rules and Categories. Oxford: Oxford University Press, 231–57. Clarke, Morgan, 2018. Islam and Law in Lebanon: Sharia within and without the State. Cambridge: Cambridge University Press. Corboz, Elvire, 2015. Guardians of Shi’ism: Sacred Authority and Transnational Family Networks. Edinburgh: Edinburgh University Press. Corran, Emily, 2018. Lying and Perjury in Medieval Practical Thought: A Study in the History of Casuistry. Oxford: Oxford University Press. Dayeh, Islam, 2019. ‘Islamic casuistry and Galenic medicine: Hashish, coffee, and the emergence of the jurist-physician’, in Carlo Ginzburg and Lucio Biasiori (eds), A Historical Approach to Casuistry: Norms and Exceptions in Comparative Perspective. London: Bloomsbury, 132–51. Deeb, Lara. 2006. An Enchanted Modern: Gender and Public Piety in Shi‘i Lebanon. Princeton NJ: Princeton University Press. Eickelman, Dale, 1992. ‘Mass higher education and the religious imagination in contemporary Arab societies’. American Ethnologist 19/4: 643–55. Erasmus, 2016. ‘Why some Brits choose Islamic prayer over partying’. The Economist. 12 February. www.economist.com/erasmus/2016/02/12/why-somebrits-choose-islamic-prayer-over-partying (accessed 15 January 2021). Fadlallah, Muhammad Husayn, 2002. Fiqh al-sharīʿa, 3 vols. Beirut: Dār al-Malāk. Fadlallah, Muhammad Husayn, 2009. Al-Masāʾil al-fiqhiyya: al-ʿibādāt. New edition. Beirut: Dār al-Malāk. Fleming, Julia, 2006. Defending Probabilism: The Moral Theology of Juan Caramuel. Washington DC: Georgetown University Press. Gay, Jean-Pascal, 2011. Morales en conflit: théologie et polemique au Grand Siècle (1640–1700). Paris: Éditions du CERF. Ginzburg, Carlo and Lucio Biasiori (eds), 2019. A Historical Approach to Casuistry: Norms and Exceptions in Comparative Perspective. London: Bloomsbury. Gleave, Robert, 2000. Inevitable Doubt: Two Theories of Shi‘i Jurisprudence. Leiden: Brill. Hacking, Ian, 1975. The Emergence of Probability: A Philosophical Study of Early Ideas about Probability, Induction and Statistical Inference. Cambridge: Cambridge University Press. Hakim, ‘Abd al-Hadi al-Sayyid Muhammad Taqi al- (ed.), 2003. Al-Marjaʿiyya al-dīniyya: al-h.alqa al-thāniyya. Fī h.iwār .sarīh. maʿ samāh.at al-marjaʿ al-dīnī al-kabīr al-Sayyid Muh.ammad Saʿīd al-T.abāt.abāʾī al-H . akīm. Beirut: Muʾassasat al-Murshid li-l-T.abāʿa wa-l-Nashr wa-l-Tawzīʿ. Hakim, Muhammad Sa‘id al-Tabataba’i al-, 2004. Minhāj al-s.ālih.īn, 3 vols (fourth printing). Najaf: Dār al-Hilāl. Hallaq, Wael, 2001. Authority, Continuity and Change in Islamic Law. Cambridge: Cambridge University Press. Häring, Bernard, 1963. The Law of Christ, 3 vols, trans. E. Kaiser. Cork: Mercier Press.

Downloaded from manchesterhive © Copyright protected It is illegal to copy or distribute this document

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Horii, Satoe, 2002. ‘Reconsideration of legal devices (h.iyal) in Islamic jurisprudence’. Islamic Law and Society 9/3: 312–57. Ibrahim, Ahmed, 2015. Pragmatism in Islamic Law: A Social and Intellectual History. Syracuse NY: Syracuse University Press. Johansen, Baber, 1995. ‘Casuistry: Between legal concept and social praxis’. Islamic Law and Society 2/2: 135–56. Johansen, Baber, 1999. Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh. Leiden: Brill. Jonsen, Albert and Stephen Toulmin, 1988. The Abuse of Casuistry: A History of Moral Reasoning. Berkeley CA: University of California Press. Kirk, Kenneth, 1927. Conscience and Its Problems: An Introduction to Casuistry. London: Longmans, Green and Co. Kittsteiner, H.-D., 1988. ‘Kant and casuistry’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 185–213. Kohlberg, Etan, 1975. ‘Some Imami-Shi‘i views on taqiyya’. Journal of the American Oriental Society 95/3: 395–402. Leites, Edmund, 1988. ‘Casuistry and character’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 119–33. Mahoney, John, 1987. The Making of Moral Theology: A Study of the Roman Catholic Tradition. Oxford: Clarendon Press. Maryks, Robert, 2008. Saint Cicero and the Jesuits: The Influence of the Liberal Arts on the Adoption of Moral Probabilism. Aldershot: Ashgate. Messick, Brinkley, 1996. ‘Media muftis: Radio fatwas in Yemen’, in M. K. Masud, Brinkley Messick and David Powers (eds), Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge MA: Harvard University Press, 310–20. Moussavi, Ahmad Kazemi, 1996. Religious Authority in Shi‘ite Islam: From the Office of Mufti to the Institution of Marja‘. Kuala Lumpur: International Institute of Islamic Thought and Civilization. Padwick, Constance, 1961. Muslim Devotions: A Study of Prayer-Manuals in Common Use. Oxford: Oneworld. Passeron, Jean-Claude and Jacques Revel (eds), 2005. Penser par cas. Paris: Ecole des Haute Etudes en Sciences Sociales. Reid, Megan, 2013. Law and Piety in Medieval Islam. Cambridge: Cambridge University Press. Sampson, Margaret, 1988. ‘Laxity and liberty in seventeenth-century English political thought’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 72–118. Shakhuri, Ja‘far al- (al-Bahrani), 1998. Āyat Allāh al-ʿUz.ma al-Sayyid Muh.ammad H . usayn Fad.l Allāh wa-h.arakiyyat al-ʿaql al-ijtimāʿī ladā fuqahāʾ al-Shīʿa al-Imāmiyya. Beirut: Dār al-Malāk. Sistani, ‘Ali al-, 2002. Minhāj al-s.ālih.īn, 3 vols. Qom: Maktabat Fadak. Stewart, Devin, 2013. ‘Dissimulation in Sunni Islam and Morisco taqiyya’. Al-Qantara 34/2: 439–90. Tucker, Judith, 1998. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley CA: University of California Press. Tully, James, 1988. ‘Governing conduct’, in Edmund Leites (ed.), Conscience and Casuistry in Early Modern Europe. Cambridge: Cambridge University Press, 12–71.



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Yilmaz, Ihsan, 2005. ‘Inter-madhhab surfing, neo-ijtihad, and faith-based movement leaders’, in Peri Bearman, Rudolph Peters and Frank Vogel (eds), The Islamic School of Law: Evolution, Devolution, and Progress. Cambridge MA: Islamic Legal Studies Program, Harvard Law School, 191–206. Zysow, Aron, 2013. The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory. Atlanta GA: Lockwood Press.

Afterword

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James Laidlaw

In one of the most influential works of Anglophone moral philosophy of the second half of the twentieth century, Bernard Williams (1985) sought to challenge what he saw as the historical and cultural parochialism of the discipline at the time, by suggesting that it was imaginatively confined within a specific, rather narrow conception of ethical life that had come to be so dominant in the modern, post-Christian West that it prevented people from recognising as ethical at all ideas that fell outside it. If ‘ethics’ is any sustained, reflective way of answering the question of how one ought to live, it has come to be taken for granted, even in conflicting moral philosophies and also pervasively our political life and policy debate, that answers to that question must take a certain specific form. This Williams refers to as ‘the morality system’, and it is, he remarked, a ‘peculiar institution’ in very broad historical perspective, as well as being ultimately incoherent. Morality, on this conception, designates a unique kind of obligation, wholly separate from all other sources of motivation (such as prudence, self-­protection, personal affections or aesthetic taste). Only insofar as our conduct is motivated by this singular obligation do we count as acting morally. An ethical theory, according to this view, tells us the principles that we must follow in order to know where this obligation lies, and the only motivation that matters morally is the intention to act upon it. This is what Kant, the most influential modern philosophical systematiser of ‘the morality system’, meant in saying that the moral will is that which acts purely from respect for the moral law. Williams never tried to reconstruct exactly how this peculiar conception of ethical life had come about, but undoubtedly an important part of the story for him is that it involves a secularisation of Christian asceticism and of the notion of divine law. Part of its attraction, he argued, lies in the fact that it implies that despite appearances, human existence may be ultimately just. If you have the right will and intention, and obey the moral law, you will be free of moral blame, whatever fortune may throw at you. This conception of ethics on the model of law, and the presuppositions that underlie it, are not human universals. The ancient

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Greeks, Williams (1993) insisted, had no such faith in ultimately just moral law, as their epics and tragedies make clear, and in their ethical thought they were better off without some of the concepts which philosophy had invented – such as ‘the moral will’ – in order to make this faith seem more realistic than it really is. Michel Foucault was a very different thinker from Williams, but in his later work, which he referred to as his ‘genealogy of ethics’, he too found it helpful to distinguish, among the various general kinds of ethical thought and practice found historically and cross-culturally, those that are dominated by what he called moral codes or rules ([1984] 1986). Others, by contrast, focus more on what he called ‘ethical projects’ for the cultivation of particular kinds of admirable person, and the ‘technologies of the self’ they employ for doing so. All forms of ethical life have some of both kinds of formulation, but the relative weight they are given varies. Like Williams, Foucault thought that our modern thinking about morality had come to be dominated to an unusual degree by rules that aspired to universality in application, and tried to specify permitted and prohibited acts in a law-like fashion. When anthropologists began, from around the beginning of this century, to take a renewed interest in the ethical dimension of social life, these two sets of ideas were prominent among those they turned to for concepts to use in describing and comparing how ethical life is structured in different social and cultural traditions (see Laidlaw 2014). The attraction of looking ‘beyond law-like rules’, and therefore the appeal of these ideas from Williams and Foucault, lay partly in the fact that a very dominant stream in social thought had long conceived of the maintenance of social order, and the specific role of morality in that process, as a matter of people internalising, embodying or by some other means coming to act in accordance with a structured set of rules. Often – for instance in the lineage that runs from Durkheim through Lévi-Strauss and Bourdieu – the thought was that ‘structure’ could be conceived as a set of implicit or unconscious rules, that social order consisted of life being conducted in accordance with those rules (often it was held that this could only occur so long as the rules remained implicit and unrecognised by those within the system), and that what social analysis therefore required was making those hidden rules explicit (Durkheim [1937] 1957, 1973; Lévi-Strauss [1958] 1968, [1949] 1971; Bourdieu [1972] 1977, [1979] 1984). Thus, moral rules had long been central to anthropological conceptions of how societies worked, conceived as a matter of how ‘social control’ was maintained. Yet this view of things, while in one sense it made morality seem central to social life, had somehow gone along with a paucity of discussion and debate about the ethical in social analysis, and a near absence of productive ­dialogue

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with moral philosophers. The arguments of Williams and Foucault, among others, suggested a reason for this and a way forward: of course the ethical dimension of social life will look uninteresting if it is conceived narrowly as ‘moral rules’ and their role in social reproduction, because such rules make up only a subset of the ethical. So, for those who thought that the discipline needed to look at ethics afresh, the search was on for ways, other than law-like codes of rules, in which ethical thought and practice might be socially organised. In the couple of decades since, much attention has therefore been paid to projects of ethical cultivation and the diverse virtues they seek to develop (e.g. Mahmood 2005; Pandian 2009; Cook 2010; Lazar 2017; Heywood 2018; Evans 2020); to exemplars as reference points and guides to ethical thought and conduct (Humphrey 1997; Bandak and Højer 2015); to values and the question of how they are instantiated in social life and organised in relation to each other (Robbins and Sommerschuh 2016); to the narrative structuring of moral experience (Mattingly 2014); to emotion and affect as modes of ethical responsiveness in everyday life (Throop 2010; Das 2020); and to the way ethical criteria and evaluations are both predicated in ritual and woven into everyday interaction and conversation (Lambek 2015; Keane 2016). It has been a search that has borne plentiful fruit. But similarly fruitful, as we see in this volume, is the suggestion by Morgan Clarke and Emily Corran that in seeking to identify ways other than codes of rules in which ethical thought and practice is organised, anthropologists and historians may have fallen into a degree of over-­ correction, and have sometimes made the error of thinking that because rules had long featured so prominently in how their predecessors had thought about morality, there might be little interesting remaining to be said about them. As this volume amply illustrates, rules are more varied, complex and more intimately interwoven with other aspects of ethics than has sometimes been appreciated. Putting in its place one kind of general account of rules as the way in which morality is socially instituted does not require or imply neglect of the other ways in which rules may be of interest. Foucault’s depiction of moral systems as differentially emphasising codes of rules and ethical projects can easily be read as implying a kind of zero-sum relation, such that projects flourish where rules are not, and vice versa. But that would be a mistake. Even where engaging in projects of ethical selfformation is not compulsorily required by social rules, those projects are themselves, typically, internally structured and indeed constituted by rules. Such is the case in the Jain religious tradition, which I studied ethnographically in India in the 1980s and 1990s (Laidlaw 1995). Jain renouncers live a monastic life in hierarchically organised groups, and the minutiae of their everyday conduct are governed very precisely by an exhaustive

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and highly ascetic monastic code. The rules require itinerant homelessness, regular fasting and other austerities. They prohibit bathing, radically limit diet and possessions and prescribe exactly how alms may be collected, sleeping positions, bodily postures and the rigorous separation of the sexes: a female renouncer may not even hand a book to a man in such a way that they both touch it at the same time, even for a moment. Lay Jains revere and support these renouncers, and Jain doctrine holds that such a life is the only way in which the soul can hope to achieve release from earthly embodiment and suffering, so that even if it is gratefully postponed by almost everyone to a distant future life, it is professed as their ultimate ambition. But virtually none of the rules in the monastic code is a social rule for the laity. Even vegetarianism, the most salient index of Jain piety, which for renouncers excludes a vast array of non-meat foods, is left for individuals to calibrate, and beyond a basic avoidance of meat and eggs they may interpret it in nearly an infinity of ways. The renouncer’s life serves as a practical exemplar for the laity through a large repertoire, from which individuals may choose, of named ascetic practices – fasts of various scope and duration, regimes of confession and penance, foregoing everyday comforts such as use of furniture and so on. These all function both to cultivate virtuous motivations, emotions, habits and dispositions and to erase the effects on the character of past sinful actions, so that incrementally they take, one by one, tiny steps towards liberation. And all involve the voluntary subjection of the self to complex structured rules, by means of taking a specific vow to follow the ascetic practice in question, either for a specified period or in perpetuity. These vows, which are ritualised in form and may but need not be taken before a renouncer and wider audience, convert aspirations into specific obligations. But no two Jains are under the same such obligations. They vary almost infinitely in which and how many of these disciplines they adopt, for how long, at different points in their lives. So, it is not at all that voluntary self-cultivation thrives on an absence of rules. It thrives on a relative absence only of certain kinds of rules: socially enforced law-like requirements imposed on everyone. Other kinds of rules, and methods for making them bind particular people at particular times, are internal and intrinsic to the very practice of self-cultivation. This point, that precisely the forms of ethical practice, such as self-­ cultivation, which have sometimes been seen as opposed to Foucault’s ‘moral rules and codes’, are themselves constituted through rules of a different order, appears throughout the chapters of this book. It is related directly to another important point: the diversity of rules. Rules are not all of a piece, but come in various forms and work in diverse ways. Different kinds of rules have their different affordances, and are used in enabling different aspects of ethical life. The closest to the Jain case here is Emily Corran’s

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description of the way voluntary vows in medieval Europe enabled laypeople to participate in Christian asceticism while also meeting the demands of lay life. As Corran insightfully points out, strictness and leniency turn out not to be alternatives, but aspects of the same institutionalisation: vows to undertake austerities were conceived as binding, but such stringency was possible only because there was room for discretion for the clergy to commute them – for fasting to be replaced by almsgiving, for example – in order that congregants could cope with shifting circumstances and conflicting demands upon them. What to do when a general rule conflicts with a more specific one? As Donald Davis illustrates, in his thoughtful and illuminating comparison of the Hindu śāstras with Anglophone conservatism, it is probably a general feature of a conservative temperament, in such a situation, to think that the more specific rule abrogates the general one. Rationalistic and progressive temperaments will perhaps generally display the opposite prejudice. Both Williams and Foucault couch their arguments for broadening our conception of ethical life beyond law-like general rules in very broad-brush narratives of historical change: in Williams’s case, so broad-brush as to be more mythic in character than historical. The chapters in this volume begin to complicate and refine the pictures they present. We see changes both in the kinds of rules that predominate and in the balance and relation between rules and other ways of codifying and organising ethical life. Nicole Reinhardt, describing the replacement of the seven deadly sins with the Ten Commandments as a central reference point in confessional practice, identifies a trajectory which Foucault also saw in earlier Christianity, a change in the way moral life was evaluated from reference to a set of ­overlapping virtues and vices to ‘a crisp legally framed code’. This, she adds, also involved an individualisation of moral accountability. Martin Ingram describes an in some ways complementary change, a gradual shift in early modern English social life from legal enforcement towards internalised self-discipline, in the development of the notion of civility. He raises the important question of whether civility represented a secularisation of clerical rules of conduct and a making available to lay populations of forms of self-fashioning and aspirations to virtue that had formerly been exclusive to religious orders. Parallel developments have certainly been prominent features of recent religious change in other traditions (e.g. Cook 2010). That rules are constitutive of other forms of codification, such as projects of self-cultivation, does not exclude them also standing in other, complementary or conflicting relations. Rebecca Langlands describes the coexistence in the Roman world, in the late Republic and early empire, of multiple, overlapping codes of moral, legal and religious rules with a specifically

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exemplary mode of ethical thought. She shows that imaginative engagement with exemplars is not an alternative to rules, but part of the process by which rules were interpreted and implemented, and a way in which inevitable clashes between the demands of conflicting values were reconciled in practice, with individuals able to use reference to exemplary narratives to choose how to rank conflicting values in relation to each other situationally. This is interesting because it suggests a competitor to one influential account of how conflicting values are related socially, which is the model of stable systems of hierarchical encompassment developed from the ideas of Louis Dumont (1980; Robbins 2013). Emanuel Schaeublin interestingly sees moral account keeping as a variant of rule-following. Palestinian Muslims reckon that Islamic practices such as fasting and prayer increase a kind of personal account they have with God, which can be visualised as coins in a bag. Similar ideas of divine or cosmic bookkeeping are found in other religious traditions throughout Asia where, as here, they often go along with ideas of merit transfer. Schaeublin sees this kind of quantification of ethical conduct as a Foucauldian technology of the self, but also nicely illustrates the limits to this way of thinking: the points where calculation and rule-following may be seen to clash with ideas of divine grace. With others, Schaeublin perceives a shift in balance not just in Palestine but across the Arab world in recent decades, towards an increasing emphasis on quantification and individual piety, and explains this as a response to the uncertainties of arbitrary political repression. Generally, the more stress and weight that is placed on the value of faithfully following rules, the more the rules require interpretation in order that one might know just what needs to be done in order to adhere to them in specific situations. And that requires the development of rules of interpretation. And differences of view about those – inevitable when you have specialists in the interpretation of rules – leads to the formulation in turn of sets of rules about which rules to use in the interpretation of the rules, as Morgan Clarke lovingly describes in his comparative history of Christian and Muslim casuistries and Talal Al-Azem convincingly ­ illustrates for the Islamic madhhab-law tradition. Even the most apparently tightly rule-governed processes – perhaps it would be better to say especially the most tightly rule-governed processes – can turn out to be subject to multiple interpretive authorities. A case in point is conversion to Judaism. Jan Lorenz compellingly describes the competing authorities that seek to regulate this process for Polish converts seeking recognition as Jews in Israel. And he shows that the labyrinthine regulations and restrictions they have constructed, with their mutual inconsistencies, are best understood not so much as obstacles to the projects of radical refashioning of the self these converts seek to achieve, but as the very medium of that ­transformation:

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the discipline they require is constitutive of a self-transformation that is experienced as attainment of freedom. This understanding of the relation between discipline and cultivation, and power and freedom, is exactly the Foucauldian one that has been formative for the anthropology of ethics (Faubion 2001; Laidlaw 2002; Flathman 2003). The first generation of the new anthropology of ethics was not, I think, mistaken in following Williams and Foucault in seeking to provincialise the style of ethical theory that aspired to ground normative judgement in very general maxims or rules – a calculus of utility or a categorical ­imperative – in a deductive fashion, or in repudiating the reduction of ethical life in much social theory to mechanisms of social control. The ethical dimension of social life is nowhere wholly reducible to such ways of thinking and processes, and attempts to systematise along these lines reduce and impoverish ethical thought and fail to capture descriptively any lived forms of ethical life. As Charles Taylor (1989) observes, ethical theories of this kind cannot give an account of the bases of their own appeal or their own deepest commitments. But there is justice in Clarke and Corran’s charge that in their enthusiasm to emphasise and describe the variety of modes of ethical thought and practice other than the ruly, four things at least were not given sufficient attention: that rules come in a range of different forms, with interestingly and consequentially different affordances for ethical life; that rules are highly pervasive enablers of ethical practice and crucial to understanding how self-cultivation, exemplarity and narrative ethics, for example, actually work; that highly ruly ethical orders have their own specific characteristics, which are as important to describe and understand as their alternatives; and that charting the ebbs and flows of ruliness is a vital dimension of the social history of ethics. The highly encouraging conclusion to be drawn from this essay collection, which effectively remedies each of these oversights, is that if you look assiduously ‘beyond rules’ in the study of ethical life, what you find there are diverse other rules, and that both rules and ruliness are much richer, more internally complex and more ­interesting than many of us had heretofore appreciated.

References Bandak, Andreas and Lars Højer (eds), 2015. The Power of Example: Anthropological Explorations in Persuasion, Evocation, and Imitation. Special Issue, Journal of the Royal Anthropological Institute 21/S1. Bourdieu, Pierre, [1972] 1977. Outline of a Theory of Practice. Cambridge: Cambridge University Press. Bourdieu, Pierre, [1979] 1984. Distinction: A Social Critique of the Judgement of Taste. London: Routledge.

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Cook, Joanna, 2010. Meditation in Modern Buddhism: Renunciation and Change in Thai Monastic Life. Cambridge: Cambridge University Press. Das, Veena, 2020. Textures of the Ordinary: Doing Anthropology after Wittgenstein. New York: Fordham University Press. Dumont, Louis, 1980. Homo Hierarchicus: The Caste System and Its Implications. Chicago IL: University of Chicago Press. Durkheim, Emile, [1937] 1957. Professional Ethics and Civic Morals. London: Routledge. Durkheim, Emile, 1973. On Morality and Society, ed. Robert N. Bellah. Chicago IL: University of Chicago Press. Evans, Nicholas H. A., 2020. Far from the Caliph’s Gaze: Being Ahmadi Muslim in the Holy City of Qadian. Ithaca NY: Cornell University Press. Faubion, James D., 2001. ‘Toward an anthropology of ethics: Foucault and the pedagogies of autopoiesis’. Representations 74: 83–104. Flathman, Richard E., 2003. Freedom and Its Conditions: Discipline, Autonomy, and Resistance. London: Routledge. Foucault, Michel, [1984] 1986. The Use of Pleasure: The History of Sexuality, vol. 2. London: Viking. Heywood, Paolo, 2018. After Difference: Queer Activism in Italy and Anthropological Theory. Oxford: Berghahn. Humphrey, Caroline, 1997. ‘Exemplars and rules: Aspects of the discourse of morality in Mongolia’, in Signe Howell (ed.), The Ethnography of Moralities. London: Routledge, 25–47. Keane, Webb, 2016. Ethical Life: Its Natural and Social Histories. Princeton NJ: Princeton University Press. Laidlaw, James, 1995. Riches and Renunciation: Religion, Economy, and Society among the Jains. Oxford: Clarendon Press. Laidlaw, James, 2002. ‘For an anthropology of ethics and freedom’. Journal of the Royal Anthropological Institute 8: 311–32. Laidlaw, James, 2014. The Subject of Virtue: An Anthropology of Ethics and Freedom. Cambridge: Cambridge University Press. Lambek, Michael, 2015. The Ethical Condition: Essays on Action, Person, and Value. Chicago IL: University of Chicago Press. Lazar, Sian, 2017. The Social Life of Politics: Ethics, Kinship, and Union Activism in Argentina. Stanford CA: Stanford University Press. Lévi-Strauss, Claude, [1958] 1968. Structural Anthropology. London: Penguin. Lévi-Strauss, Claude, [1949] 1971. The Elementary Structures of Kinship. New York: Beacon Press. Mahmood, Saba, 2005. Politics of Piety: The Islamic Revival and the Feminist Subject. Princeton NJ: Princeton University Press. Mattingly, Cheryl, 2014. Moral Laboratories: Family Peril and the Struggle for a Good Life. Princeton NJ: Princeton University Press. Pandian, Anand, 2009. Crooked Stalks: Cultivating Virtue in South India. Durham NC: Duke University Press. Robbins, Joel, 2013. ‘Monism, pluralism, and the structure of value relations: A Dumontian contribution to the contemporary study of value’. HAU: Journal of Ethnographic Theory 3: 99–115. Robbins, Joel and Julian Sommerschuh, 2016. ‘Values’. The Cambridge Encyclopedia of Anthropology. http://doi.org/10.29164/16values (accessed 18 January 2021).

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Taylor, Charles, 1989. Sources of the Self: The Making of Modern Identity. Cambridge: Cambridge University Press. Throop, Jason C., 2010. Suffering and Sentiment: Exploring the Vicissitudes of Experience and Pain in Yap. Berkeley CA: University of California Press. Williams, Bernard, 1985. Ethics and the Limits of Philosophy. London: Fontana. Williams, Bernard, 1993. Shame and Necessity. Berkeley CA: University of California Press.

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Index

As a general rule, if a concept appears in the title of a chapter, it is not listed in the index unless it appears elsewhere in the book. accountability 15, 27n.8, 141n.5, 192, 238 accounting (moral) 149–54, 158–163 agency 16, 94, 96n.5, 104, 107, 119, 120n.20, 175, 197–8 see also enabling (rules as) Aquinas, Thomas 89, 96n.12, 127–33 asceticism 3, 42, 44, 80–6, 93–4, 96n.4, 234, 237–8 abstinence from luxury 106 abstinence from sex 3, 80–3, 87, 93 fasting 20, 80–90 passim, 145, 147, 154, 229n.5, 237–9 binding (rules and/or authorities) 24, 50, 88, 127, 169–70, 187n.12, 192–4, 203–6, 208n.17, 238 see also enabling (rules as) body 3, 70, 80, 124, 159–60, 171 see also control: bodily Buddhism 13–14, 41, 44 canon law 2, 9, 80, 85, 87, 128, 215 case 17–18, 21, 41, 77, 80, 93, 103–4, 106, 109, 111–19 passim, 195–206 passim, 213–15, 221, 224 see also casuistry casuistry 1–3, 17–18 (definition of), 20–4, 104 Christian 25, 131–2, 137, 211–15, 223

Islamic 191–4, 198–201, 215–17 manual of 81–85 Christianity 15, 76, 124–5, 149, 151, 238 see also canon law clergy 20, 61, 72, 82–3, 87, 92, 216, 218 advice of 13, 15, 84, 175, 176 authority of 4, 81–2, 84, 96n.5 clerical ideals 63, 238 see also jurist (Islamic); mufti; priest; professionalisation; rabbi codes of conduct 2–5, 7, 15, 18, 21, 23–4, 94, 103–4, 108, 125, 127–8, 140, 235–6 codification 54, 127–8, 173–4, 177, 183, 238 confession (sacrament) 3, 13, 22, 82, 90, 124–6, 129, 149, 216, 237 manual for 84, 128, 214 conscience 2–3 (definition of), 7–25 passim, 71, 77, 124, 128, 132, 140, 149, 152, 162, 211, 214, 224–5 cases of see casuistry conflicts of 21, 24 see also dilemma; forum, internal vs external conservatism legal 37–40, 42, 49, 51, 193 moral 107

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conservatism (cont.) political 19, 52–4 control bodily 3, 63, 65, 80, 91, 173 social 11, 82–3, 87, 235, 240 courts religious 9, 61, 76, 124, 170, 170–85 passim, 191–9 passim secular 10, 61, 72, 77, 108 customs 39, 50–4, 60, 65, 108 customary laws 10, 38–9, 54 customary norms 41, 49, 105, 110 Decalogue see Ten Commandments deception (lying, dissimulation) 17, 42–3, 70, 131, 216 devotion 4, 9, 20, 27n.15, 51, 81, 95, 196, 211, 216 dharma 39–54 passim Dharmaśāstra 38, 42, 44, 46, 48, 54 dilemma 3, 14–18, 24–5, 80–1, 90–3, 104, 111, 125, 149, 162–3, 170, 191, 214, 217–18, 225, 229 discretion 10, 24, 65, 89, 190, 201, 238 disposition 38, 52, 55n.2, 80, 125, 128–32, 156, 237 divine law 9, 16, 124, 127, 139, 170, 172, 182, 203, 215, 284 see also canon law; dharma; halakhah; sharia divorce 24, 195–205 passim see also marriage doubt 50, 137–8, 217–28 passim Elias, Norbert 19, 21, 59–60, 62–3, 68–9, 75 embodiment 39, 47–9, 67–9, 95, 103–6, 112–14, 126, 171, 200, 237 enabling (rules as) 19, 23, 26, 59, 81, 237 Enlightenment 6, 15–16, 214 example, exempla 14, 21, 51, 59, 66, 77, 103–4, 107–8, 119n.3, 120n.20, 193, 237–9 Roman exempla and exemplary ethics 14, 21, 103–23 passim exemplar 50, 67, 107

explicit rules 12–14, 105–7, 126, 164n.9, 235 fatwa 199, 211, 215–17, 223 fiqh 9, 191–200 passim, 215–19, 222 see also sharia flexibility 50, 81, 108, 151, 162, 221, 226, 228 formalism 12–15, 22, 26, 44, 108–9, 176, 185, 216, 219, 226 forum, internal vs external 9–10, 15, 28n.16, 124 Foucault, Michel 1–5, 25, 53, 59–60, 80, 94, 235–40 Foucauldian technologies of the self 5, 7, 19, 22, 55n.2, 80, 147–8, 173–4, 217, 239 see also self: technology of the self freedom 4, 18, 41–2, 86–7, 94, 128, 240 habit 37, 51–3, 60, 77, 125, 138, 237 habituation 37, 173 habitus 18, 128–32, 139 halakhah (Jewish Law) 12, 23, 169–86 passim, 216 Hinduism 37–58 passim, 76 individualism 2, 18, 125, 138, 149, 153, 162–3, 171–2, 182, 238 internalisation 3, 18, 39, 43, 48, 76, 235, 238 see also habit Islam 22–3, 159, 190, 211 Islamic Law see sharia Jainism 4, 25, 41, 44, 184, 236–7 Jansenism 14, 214, 219 Jesuit 14, 132–7, 214, 218–19 Judaism 23, 151, 169–85 passim, 239 judge 15, 24, 28n.26, 81, 171, 177, 182, 191–200 passim, 208n.17, 218 judgement (of court, judge) 12, 50, 170, 175, 192–206 passim moral 9, 16–18, 37, 45, 107, 113–17



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jurist (Islamic) 24, 28n.26, 190–206 passim, 215–16, 222–7 see also clergy, mufti justice 28n.26, 41, 115, 117–18, 161–2

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Kant, Immanuel 5–6, 15, 53, 55n.2, 211–12, 234 law Christian see canon law Hindu see dharma Islamic see sharia Jewish see halakhah Roman 21, 109–10 secular 2, 12, 193 vs morality 7–11, 234 see also divine law lawyer 13, 21, 28n.18, 28n.19, 69, 85, 129, 133, 190 laxity 14, 213–217 passim, 223, 228 see also pragmatism; rigorism legalism 11–12 (definition of), 14, 19, 20, 24, 38–44 passim, 52–3, 59, 64, 74, 80–1, 107–8, 125–40 passim, 147, 151–2, 163, 170–82 passim, 211–28 passim legal pluralism 8, 14, 23–4, 124, 190–4, 200, 222–4 legal positivism 7–8, 127, 194, 200 liberalism 4, 10, 12, 16, 18, 19, 25, 55n.2, 90, 93, 169, 211–12, 224, 228 MacIntyre, Alasdair 1, 5, 21, 140 marriage 4, 28n.26, 42, 52, 61, 66, 71, 82, 86–7, 92–3, 96n.10, 179, 186n.6, 195–9 passim, 230n.10 see also divorce meta-rules 23–4, 26, 172, 191–2, 200 modernity 2–5, 15–21, 49, 93, 140, 211–17, 234 moral philosophy 5, 190, 214, 234 mos maiorum 21, 103–4, 108–11 mufti 192–200 passim see also clergy; jurist (Islamic)

obedience 4, 5, 20, 22, 37, 66, 73, 124–5, 127, 129–30, 140, 162, 215, 221 blind 2, 215, 221–2, 226 obligation 5, 6, 8, 11, 16, 20–1, 25, 82, 84, 86–7, 92–3, 155, 170, 173–4, 181–4, 218–19, 222, 226, 234, 237 Pascal, Blaise 14, 214, 216, 218 pastoral care 20, 28n.26, 82, 92, 125–9, 216–18 penance 9, 89, 124–5, 135–6, 214, 216, 237 penitence 9, 20, 82, 83 penitential (n.) 128–9, 214 piety 4, 20, 23, 81, 94, 114, 147, 153, 157, 163, 164n.7, 173, 237, 239 practical ethics 20, 24, 85n.1, 104, 212, 215, 228 pragmatism 10, 96n.12, 220–1, 224, 227 pre-commitment 88, 90 see also Ulysses contract priest 10, 80–95 passim, 125–6, 129, 132 see also clergy probabilism 24–5, 185, 191, 193–4, 198, 201, 207n.8, 213–14, 218–28 passim professionalisation (religious, ethical) 12–14, 28n.26, 216 prohibitions 4, 17, 21, 38, 43–4, 94, 105–10 passim, 125–6, 129, 132, 138, 173, 181, 183–4, 194, 204, 211, 216, 224, 227, 235, 237 property 11, 41, 52, 88, 93, 169, 192, 206, 224–5 punishment 9, 39, 61, 71, 73, 76, 82, 106, 110, 112–15, 128, 133–4, 149 purity 147, 159, 173, 222 rabbi 171, 175–6 rabbinical court 23, 169–71, 174–5 see also clergy

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rationality formal vs substantive 16–17 rationalisation 95, 125, 194, 238 rationalism 45–6, 147, 150–1, 155, 158–9 reasoning 14–19, 37, 40–2, 44–7, 52, 54, 56n.17, 59, 92–3, 127, 133, 140, 150, 155, 157–8, 173, 192–4, 196–204 passim, 213, 228 Reformation (Protestant) 61, 75, 94, 124–5, 128, 139, 214 Counter-Reformation (Catholic) 85, 125, 138 restraint 20, 41, 48, 60, 65, 72, 76 rigidity 2, 12, 25, 52, 56n.18, 84, 118 rigorism 13–15, 19, 59, 71, 128, 219, 224, 227–8 see also tutiorism ritual 8–10, 38, 44, 52, 63, 109, 118, 125, 131, 170–86 passim, 236 ruliness, ruly 2, 11–12 (definition of), 14, 23, 25, 37, 77, 109, 119, 151, 158, 162–3, 170, 211, 240 rule density 12, 22, 44 self 16–19, 125, 140, 163 binding see pre-commitment; Ulysses contract censure 3, 77 cultivation 5, 23, 59, 94, 158, 173, 237–40 discipline 20, 60, 93 examination 16 formation 7, 18, 26, 39, 236 love 130, 137–9 technology of the self 1–24 passim, 59–60, 80–1, 86, 94, 147–8, 151–62 passim, 173, 200, 235, 239 sexuality 1, 10–11, 61, 93, 170 chastity 4, 20, 66, 73–4, 80–96 passim, 114 sexual misconduct 3, 71, 124 sexual restraint 48, 60, 74, 82 see also asceticism: abstinence from sex

scrupulousness 8, 11–15, 25, 72–4, 86–7, 105–7, 128–9, 147, 170, 194, 199–200, 219, 228, 237–9 sharia (Islamic Law) 1–2, 9, 12–14, 23–5, 28, 54, 94, 170, 190, 211–29 passim, 239 see also fiqh sin 21–2, 71, 73, 76, 81–2, 86, 88, 93, 128–39 passim, 150–1, 159, 214, 224, 226 original sin 43, 136 seven deadly sins 124–9 passim, 238 socialisation 37, 39, 54, 175 see also habit state (political) 3–15 passim, 23, 52, 55n.3, 116, 124–5, 174, 192, 200, 217 strictness 14, 185, 211, 225, 228–9, 238 see also rigorism technology of the self see self: technology of the self; Foucault, Michel Ten Commandments 6, 21–2, 94, 124–40 passim, 238 tradition (normative) 2, 12–14, 19, 81, 107, 126, 140, 146–62 passim, 169–70, 211–28 passim, 235–9 tutiorism (caution) 25, 219–28 passim Ulysses contract 87–8 see also pre-commitment utilitarianism 5, 74–6, 150, 186n.6, 240 virtue ethics 1, 5–7, 21–2, 26, 27n.8, 94, 103–9 passim, 118, 127, 132, 139–40, 151 v-rules 21, 103, 106 vows 4, 20, 80–95 passim, 151, 237–8 see also asceticism: abstinence from sex; pre-commitment; Ulysses contract Weber, Max 16, 125, 150 Williams, Bernard 6, 14, 21, 25, 234–40 passim