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  • Tabula Picta: Painting and Writing in Medieval Law
  • Max Staples
Madero, Marta, Tabula Picta: Painting and Writing in Medieval Law, Philadelphia, University of Pennsylvania Press, 2009; cloth; pp. 160; R.R.P. US$45.00, £29.50; ISBN 9780812241860.

You paint an image on a piece of wood. Somebody else owns the piece of wood. Who owns the work of art? This intriguing question underlies Marta Madero’s work. First published in French as Tabula picta: la peinture et l’écriture dans le droit médiéval in 2004, it has now been translated into English.

The person who owns the piece of wood takes it away, and refuses to give it back to you. You turn to the law. The question that the lawyer asks, after establishing your capacity to pay, is when and where the work was painted. This is in order to establish the fundamental point: what is the governing law?

Law is in one sense a social construct, because its formulation and codification have been arrived at by human societies. It is not, however, relative in the sense that different people or groups within one state might construct and believe in different systems of law. There can be only one law in force within a sovereign state, or that state is by definition in a state of civil war. Where judges interpret the law differently, those differences must be appealed to a higher court, until one or the other is struck down. The decision in Mabo (Mabo v Queensland (No. 2), 1992), for example, operated by identifying within common law the capacity for the recognition of a form of property that might be called native title, and not by changing the law.

This high degree of positivism distinguishes law from other academic disciplines and practices. Philosophy may ask what the law should be, sociology may ask what people think it is, and politics what they would like it to be, but none of these enquiries will be of any relevance in a court of law.

Assuming that you painted the panel in 2011, in Australia, the lawyer will ask you about the existence of contract. They will enquire as to whether [End Page 219] you painted it as part of your job, or if there was any other agreement, and if not how you came to be working on someone else’s wood. They will ask to see the details of any contract or agreement. Maybe they will turn to the Commonwealth Copyright Act 1968. This legislation makes distinctions between intellectual property and the various physical forms in which it may be embodied, and also provides for works of complex generation, such as sound recordings and film.

The lawyer will advise you on how and where legal action may be commenced, and alternative forms of resolution. By law, they are bound to provide you with a disclosure of costs, and an assessment of the likelihood of success.

Assume, on the other hand, that you painted the panel in 1100 in Paris, France. All of the lawyers from that time are dead. So you purchase Marta Madero’s book, in order to understand what you may do.

For all its merits, Madero’s book does not provide an overview of the legal system in medieval Europe. It does not explain what courts existed, how they were accessed, how they operated, or how their judgments were enforced. For a reader who is already a specialist in law, that may be no problem. It is more remarkable that Madero does not explain what laws were in force. These are alluded to generally as ‘Roman law’ and ‘the legal corpus compiled in Byzantium by order of Emperor Justinian’. Madero does not explain much more about where these laws come from or what they said.

Perhaps it is confusion on Madero’s part that accounts for the statement that the Corpus Iuris Civilis came from various sources, including what may be regarded originally as commentary. Once compiled, that commentary stopped being commentary, and took on the status of codified law. Madero explicitly states that she is not particularly interested in any actual laws and what they say. Instead, her...

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