Defending the 12th century since the 14th; blogging since the 21st.

Catholicism, Conservatism, the Middle Ages, Opera, and Historical and Literary Objets d'Art blogged by a suburban dad who teaches law and writes stuff.

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Who was Cacciaguida? See Dante's PARADISO, Cantos XV, XVI, & XVII.

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Saturday, March 27, 2004
Attention, medievalists. This blog once appeared on a list of blogs by medievalists, but with the caveat that this Cacc' dude doesn't actually write about the Middle Ages much. "He don't know me bewwy well, do he?" Be that as it may, I'm going to redress the imbalance today.

Criminal intent in the moral plan of the Divine Comedy

There's this law prof at NYU, Paul Chevigny. He has this article, From Betrayal to Violence: Dante's Inferno and the Social Construction of Crime, 26 Law & Soc.Inquiry 787 (2001). I read it with great eagerness to note its many errors, since you're pretty well tipped that there'll be a lot of 'em as soon as you see those words "social construction".

Well here's his deal. Modern legal codes consider violence to be worse than fraud. Kill someone, you get 20 to life, or maybe the drip. Commit, say, the crime of "false pretenses" (full name: "obtaining property by false pretenses"), and you're talking more in the 5-to-10 range, tops. We simply don't view crimes against property as being as bad as crimes against the person; and crimes that have fraud as part of their mens rea (the mental component of criminal blameworthiness) are almost always crimes against property.

But the plan of the Inferno is different: following a pattern that can be traced to Aristole's Ethics, book 6, via Cicero's De Officiis, Dante held that fraud is worse than violence, because it is a misuse of a specifically human faculty, reason. Animals can be incontinent (the sins punished in circles two through five) or violent (circles six and seven), but only man can practice fraud. See Inf. XI 22-27

So far, no controversy. We could minimize any controversy about the disconnect between the Common Law and the Inferno by attributing it to the distinction between divine and human justice; sins, not crimes, are punished in the Inferno. (You're probably asking at this point: never mind the Common Law -- what did either local Florentine law, or the rediscovered Roman Law, say about the mens rea of murder? Good question. I've been looking for the answer for some time. If any of you know, tip me off, will you?)

But Chevigny's take is that Dante's scheme reflects a pre-modern society lacking modern law-enforcement mechanisms. Such societies, insofar as they maintain order at all, are built above all on trust. Relationships between persons, institutions, parties, etc. -- and not state power -- are what we mainly rely on to make sure murder is kept to a minimum. Thus, a fraud is worse than a murderer, because while a murderer kills, a fraud undermines the system that prevents thousands of potential murderers from killing. And of course, the more strongly you're tied to someone else by bonds of fealty, the worse the fraud is: hence the difference between "simple fraud" in all its varieties (8th circle) and "compound fraud" (9th).

A very interesting theory, and it may contain some truth. But some objections occur to me. First, trust isn't any less important when we do have state power and a coercive system for restraining violent crime. This why marriage is important: it's a society-wide framework for trust, and when it breaks down, violence rises. Chevigny's theory of course would predict this; I quarrel not so much with the theory as with Chevigny's confinement of it to pre-modern societies.

Second, there's an interesting fact about the 8th and 9th circles: in the 8th (simple fraud, or fraud directed at the world in general), there are very few killers. You could say Ulysses (Canto XXVI) causes the death of his crew, and Guido da Montefeltro (Canto XXVII) is chargeable with any killings that Boniface's forces may have carried out at Palestrina while actingon Guido's advice. But within the 8th circle these are the exceptions. The sinners in the lowest of the 8th circle's ten bolgie (pouches; Dorothy Sayers reaches for an archaic English word that may be cognate with the Italian bolgia and calls them "bowges") are not killers: they are falsifiers, including opera's favorite identity-thief Gianni Schicchi; also falsifiers of metals and coinage (causing inflation was molto baddo conduct in Dante's view).

In the 9th circle, by contrast, practically everyone is a killer. Those who didn't directly stick a pike in someone, or lock a family in tower and starve them, at any rate contributed very directly, by their treason, to slaughters of their fellow-citizens. The sin punished here is "compound fraud" -- fraud against those who had special reason to trust you -- but in every case, that fraud either consisted of murder or contributed directly to it. Consider the last three sinners before we see Satan himself: Brutus and Cassius betrayed Caesar -- by killing him. Judas betrayed Christ -- knowingly aiding those who intended to get him killed.

Simple fraud is potentially separable from homicide; compound fraud, it appears, is not.

Now, it would be going too far to say, ah ha, Dante is just like a lawyer after all, viewing violence as worse than simple fraud. That claim is contradicted by the doctrine laid down in Inf. XI 22-45 and exemplified in Cantos XII (murderers) and XIII (suicides). (The concept of "violence against God" and "violence against Nature" are fascinating to me, but I'm not talking about those today.)

But I'm intrigued, contra Chevigny, with the similarities between the killers of the 9th circle and those of the 6th. About 1800, the state of Pennsylvania, by legislation, modified its Common Law doctrine on murder by introducing the idea of "degrees" of murder. Intent to kill would still suffice for a conviction for 2nd degree murder. But there's intent to kill and then there's intent to kill: sometimes that intent is accompanied by premeditation, or by a heightened degree of icy malevolence evidenced by, most typically, poisoning or "lying in wait" for the victim.

I hope this is starting to sound to you like Dante's idea of compound fraud. It does to me. Not a perfect match, of course: under the degree system, if you plan someone's death over a period of months, then lie in wait for your victim, then kill him, you're guilty of 1st degree murder, even though you may not have had any special personal links to the victim, which is what it would take to make you guilty of compound fraud for Dante.

But -- every killer in the 9th circle would be guilty of 1st degree murder if tried for murder under a Pennsylvania-type system (which most states in this country now have). At least I'd be delighted to take those cases as prosecutor.

Final note: the usual situation in which a defendant would be guilty of 1st degree murder without having a personal bond with his victim would the hired-killer situation -- and Dante deals with this, elliptically, while describing the simoniacs (XIX 49-51).

So. What do people think?