Censorship and Cultural Sensibility by Shuger Debora;

Author:Shuger, Debora;
Language: eng
Format: epub
Publisher: University of Pennsylvania Press, Inc.

Chapter 6

Defendants’ Rights and Poetic Justice

To this point my focus has been on the moral norms that forbade certain sorts of communication regarding another person, even if true. These norms upheld rights to privacy and respect, rights that Tudor-Stuart persons generally construed as rules of charity. Yet if such rules imposed limits on the truths one might disclose, truth had its own prerogatives that, in turn, limited the duty of charitable concealment. From the Middle Ages on, all extended treatments of verbal transgression, among both theologians and jurists, dealt with the circumstances under which one might reveal private or dishonorable information about another. The answers given differ over time and from place to place, but early modern English law seems largely to have adopted the model proposed by the fourteenth-century canonist Johannes Andreae in his gloss to Durandus’s late thirteenth-century Speculum iudiciale.

This model seems to be an elaboration of the near-contemporary schema formulated by the preeminent medieval civilian Bartolus of Saxoferro, who approached the question by distinguishing disclosures made in a legal setting from those made outside it. Regarding the former, Bartolus held that it was not iniuria to disclose information that would be in the interest of the respublica to have made known. That Bartolus was not thinking exclusively or even primarily of crimes against the state is clear from his example of information whose disclosure would be in the public interest: namely, that such-and-such a person is a bastard and therefore not the true heir. Given that the state has an interest in seeing justice done, whether the true heir gets his rightful inheritance concerns the state. With regard to out-of-court disclosures, however, Bartolus posits different rules, which hinge on the motive of the speaker rather than the nature of the information. If, by making another’s misdoings known, a speaker sought to right a situation (animus corrigendi), his words would not be actionable. However, if he had no legitimate reason to have spoken as he did—for example, if his words were motivated by enmity (ex rixa)—then, even if he spoke only the truth, his disclosure constitutes iniuria.1

Like Bartolus, Andreae begins by dividing accusations made in court from other sorts of potentially injurious utterances. With respect to the former, however, he drops Bartolus’s criterion of public interest, maintaining instead that allegations made in court are not actionable, since bringing charges is an intrinsic and ordinary part of the legal process. His view regarding words spoken out of court largely corresponds to Bartolus’s: assuming the insulting allegation (convicium) is true, either one has a legitimate reason for making it or one does not. Andreae does not spell out what constitutes a legitimate reason, but his examples suggest that the offense must be such that its remaining unknown would result in injustice and, in addition, that its disclosure must be made in a way likely to rectify the situation. Thus, if one knew that a candidate for ecclesiastical promotion was ineligible because a bastard, one would have a legitimate reason to inform the candidate’s bishop, but not the candidate’s father.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.