The Poetics and Politics of Custom: Law, Literature, and Time

Abstract

What role does the poetics of custom play in Renaissance literature? Stephanie Elsky's wonderful new book offers an extended meditation on this question. Recovering a sense of custom that requires pulling aside the curtain of modernity, Elsky shows just how fecund, how fertile, and how enabling of rhetorical invention and literary play is this older sense of custom. In large part, this fecundity lies in the particular temporality of that premodern sense of custom, namely, as the common lawyers were wont to say, of “time immemorial,” “time out of mind,” or “beyond the memory of man.” Rather than seeing the past as made up of discrete authorities that need to be applied to the present (the typically modern way of approaching it, possibly triggered by the shift from orality to writing in legal practice, and articulated in the modern doctrine of precedent), this older sense of custom treats the past as continuous with the present, and the present always as an opportunity, if not a duty, to remake—to fashion, shape, figure—the entire tradition again. Viewed in this way, custom—and common law as custom, for Elsky treats these two terms as synonymous in her period—is very far from static, staid, and conservative, as the moderns, drunk on the liqueur of novelty, might conceive it. Rather, it is “flexible, dynamic and enlivening” (2), full of potential for its own remaking and thereby constituting a common and highly generative poetics for Renaissance letters.Moreover, the recovery of the generative poetics of this premodern mode of custom goes hand in hand with noticing its many, complex, and sometimes contradictory political uses and resonances. In Elsky's treatment, the poetics of custom is intertwined with the politics of colonization (from the perspective of both the colonizer and the colonized), the politics of class and gender, and the politics of rebellion and resistance. Thus the gift of this book is to showcase, through a series of nuanced case studies, the relations between the poetics and politics of custom in the Renaissance. This Elsky does in a way that unearths the political tensions and thus also possibilities, sometimes surprisingly radical, within the poetics of custom. Given, further, the importance of a distinctive temporality to premodern custom, this book can also be read as a contribution to the interdisciplinary literature on relations between time and politics (see, e.g., Lazar 2019; Edelstein, Geroulanos, and Wheatley 2020; Hom 2020). This is a literature that can gain a lot from bringing law more prominently into the picture, as Elsky does, and as a number of recent studies have done (see, e.g., Grabham 2016; Beynon-Jones and Grabham 2019; Chowdhury 2020). As in Elsky's case, exciting results can emerge from triangulating law, literature, and time (see also Manderson 2019, who examines relations between law, art, and time).In the first chapter of her book, Elsky offers a helpful and revelatory overview of the various understandings and roles that custom plays in early modern England, including the political uses to which custom is put in the turbulence of the sixteenth and seventeenth centuries. The five subsequent chapters function as case studies, each focusing on a principal figure whose work engages with, or can be insightfully approached through, custom. The five figures are Sir Thomas More (who features in more than one chapter), Edmund Spenser (to an extent, in correspondence with Gabriel Harvey), Philip Sidney, Isabella Whitney, and William Shakespeare.Each of these case studies can be savored for its own sake. We are shown, in the second chapter on More, how the genre of the commonplace—a genre intimately related to custom—enables More, in Utopia (1516), to relate the two worlds he straddled: legal humanism and common law practice. Further, the commonplace—common, in the sense of accessible to all, often unwritten (and when written, only evidence, like the common law itself, of a common practice), and highly flexible and adaptable (because detached from context)—instantiates, within Utopia, a political tension between, on the one hand, an elegy for England's disappearing commons (there is, after all, no private property in Utopia), and, on the other hand, the observation that custom may not be enough to constitute and sustain a community (Utopia is, let us not forget, conquered by Utopus).Later, in chapter 5 on Whitney, the commonplace makes a triumphant return as a mode of writing oneself, as a woman, into a male and elite world—the world of property in the common law, and the world of leisure, but only for the select few. In a fresh and illuminating reading of Whitney's 1573 A Sweet Nosgay, Elsky shows how Whitney uses the temporality of the commonplace (in no-man's-land, so to speak, and operating out of the strictures of narratives of progress) to make it possible for her, as a woman and as a worker, to participate in and contest humanist literary practices. This is achieved, in part, by Whitney's remarkable rewriting of the one-sentence sententiae in Hugh Plat's Floures of Philosophie (1572) into little four-line ballads, transforming his grand flowers, in his garden, into little posies, which, one is tempted to say, sprinkle a common London. Equally so with Whitney's imaginary will, in which she bequeaths London to Londoners, and leaves the people of London its professions and its shops, its things and its places. Here too, Elsky asserts, Whitney deploys “the temporality of legal custom to represent multiple temporalities and thereby imagine a future” (146).1 Whitney does so, says Elsky, by treating London itself as a commonplace book.Custom's place in the politics of colonization, present in the analysis of More's Utopia, is given more sustained attention in chapter 3, on the Spenser-Harvey letters, and on Spenser's View of the Present State of Ireland. Here, custom features both as an agent of colonization—the colonization of English verse by the formal requirements of classical meter—and as a means of absorption and accommodation, from the perspective of the colonized, of the foreign into the native. In this treatment, custom appears as a medium, if not a strategy and means of coping with change that is sometimes radical and violent. Custom does this, again, because of its particular temporality, reimagining that which appears at first foreign (classical meter in England, English common law in Ireland) as part of a longer continuity. Custom's radical potential, including its capacity for epistemic violence, relies on its two-facedness: promising continuity, it absorbs and domesticates change.Chapters 4 and 6, on Sidney's Old Arcadia (1580), and on Shakespeare's hand in the rewriting of Sir Thomas More (1592–93) and in his Hamlet (1599–1601), both extend custom's political reach. Sidney, in presenting his eclogues as but the written versions of shepherds’ songs, is playing on custom's vexed relation to materiality, or indeed common law's status as a great, primal ocean, an ius non scripta, only ever evidenced, and only then defeasibly, by judges in particular cases. Subtly undermining his own authority, through the rhetorical figure of aporia, Elsky shows us how Sidney invites readers to make their own assessments of monarchical authority, on the basis of custom (e.g., will Euarchus's mere spectacle of Arcadian customs prove seductive enough?), and thus from the purview of that law imagined to be out of time, and common to all.What appears as a “constitutional romance” in Sidney's case turns constitutional tragedy in chapter 6 on Shakespeare. Here, Elsky performs pirouettes around the complex relations between custom and popular rebellion. In this analysis, custom once again appears as multifaceted, sometimes implored as a justification of popular rebellion (justified because of the alleged incursions being made into ancient customs), and sometimes projected into the future as a means of revolution (the emerging custom, the custom to come). Where custom may at first appear to be the realm of predictability, Elsky's analysis of Hamlet shows instead how custom, “That monster Custom” (Hamlet, 3.4.159), can combine “unpredictability and sustainability” (193). This, it must be said, is custom at a certain extreme, but it is the virtue of Elsky's reading that it can take us there.Elsky's readings probe in both directions: from law and toward literature, thereby showcasing the relevance of medieval and early modern legal history for Renaissance literary scholars, and from literature toward law, revealing how Renaissance rhetorical and poetic devices (especially, but not only, the commonplace) are essential to the theory and practice of law. In doing so, Elsky contributes to a growing community of scholars who, over the last half century, have been exploring the relations between law, rhetoric, poetics, and politics in the period, roughly, from 1300 to 1700. This book is a worthy companion to the scholarship of Wesley Trimpi, Joel Altman, Quentin Skinner, Barbara Shapiro, Lorna Hutson, Kathy Eden, Karen Cunningham, Victoria Kahn, Subha Mukherji, Luke Wilson, Bradin Cormack, and Christopher Warren—and that is very high praise indeed.One can only hope that more scholars, working across law and literature, will continue to explore the mysteries of custom. Apart from some important exceptions, custom remains underexplored, even within legal scholarship (see Perreau-Saussine and Murphy 2009). This is somewhat of a puzzle, as custom is highly relevant, featuring significantly in contemporary legal practice. For instance, in the global context there is the vexed and difficult question of how the customs in customary international law come into being. Courts and scholars must frequently deal with the question of where to place the emphasis, either on the long durée of certain actions being repeated, or in the much more recent chorus of acceptance of some actions as binding (if the latter temporality is emphasized, decisions tend to be much more progressive). The study of these two temporalities in this context can be further enhanced by attention to the poetics of legal language. For example, it is common to find references to the metaphor of “crystallization” in the judgments of the International Court of Justice, and in the work of international law scholars, on international customary law. Interestingly, this attention to how international customary norms “crystallize” tends to place the emphasis on acceptance rather than on repetition of action (i.e., on the moment of crystallization rather than on the process of crystallizing), thus arguably enabling more progressive decisions.The entanglement of temporality with politics, then, runs through the problematics of custom in contemporary times. These current debates can learn a lot from the way Elsky explores the politics in the poetics of early modern custom. Indeed, Elsky herself urges, in her final lines, that we not neglect the presence of custom in modernity: “We should pay attention to how custom, in its intertwined legal and literary iterations, pushes us to value different kinds, modes, and tempos of change—literary and otherwise—in modernity” (198).Needless to say, however, examining custom, as Elsky does, in the early modern period is of great interest for its own sake. And, within this period, there is more that could be done. For instance, more might be explored as to the similarities between the conception of custom in this period and the workings of memory; like custom, the latter is two-faced, and operates at both a personal and a communal level. It is also highly inventive and generative (see, e.g., Carruthers 2008), and it might be found that where custom gives a kind of dynamic unity to a polity, so memory, in a similar way, gives a dynamic unity to a person's identity. Further, the long arts of memory have a fascinating and little-explored relation to the history of law, both in elite practices of advocacy as well as in the creative agency of popular memory (see, e.g., Wood 2013; and Kane 2019). That is but one possible future. Another, for instance, is historiographical, namely, the promise of custom's weaving and holding together histories that could meet up and mingle more often, such as social and political history (as Elsky also observes [168–69]). One means of doing that might be via the platform of histories of knowledge: custom, after all, is also a mode of storing and transmitting knowledge practices, and it has its own epistemic technologies (e.g., the commonplace, or proverb), which elide easy distinctions between classes. Further, these epistemic technologies are highly creative; for example, the knowledge embodied in commonplaces and proverbs (as well as fables, parables, and exempla) is malleable and flexible, capable of being adapted to new circumstances, and thus bringing along with it a generative approach to the past. Again, these epistemic technologies are employed not only by elites, as modes of solidifying and enhancing power, but also by non-elites, and thus as modes of resistance. Custom, then, might be one promising platform for a political history of knowledge (drawing, of course, on the work and legacy of E. P. Thompson, as this has inspired more recent work; see, for example, Johnson 2019). There is no end, it seems, to custom's futures, as this book so wonderfully shows us.