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Stanford Law Review
Law in the Courts of Love: Andreas Capellanus and the Judgments of Love
Author(s): Peter Goodrich
Source: Stanford Law Review, Vol. 48, No. 3 (Feb., 1996), pp. 633-675
Published by: Stanford Law Review
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Law in the Courts of Love: Andreas
Capellanus and the Judgments of Love
Peter Goodrich*
PREFACE
A man, a potential lover, seeks the love of a woman who already has a
lover. She declares herself bound to another but offers her suitor a certain
hope: If she ever loses her present lover, she promises to take the suitor in his
place. A short while later she marries her lover, and the suitor demands that
she keep her promise. The woman denies his claim on the ground that she has
not lost her lover.
This late twelfth century dispute is presented to the Court of the Queen of
France and decided in the suitor's favor.' The court's decision relies on a pre-
cedent judgment delivered in 1174 by the Court of the Countess of Champagne,
a tribunal composed of some thirty women who collectively delineated and
adjudicated the distinct principles of love and marriage. According to the pre-
cedent, love and marriage are mutually exclusive: "Lovers bestow all they
have on each other freely, and without the compulsion of any consideration of
necessity, whereas married partners are forced to comply with each other's
desires as an obligation, and under no circumstances to refuse their persons to
each other."2 Relying on this 1174 precept from the courts of love, the Queen
binds the woman to her word for the simple reason that when her lover became
her husband, the woman lost her lover, thus fulfilling the condition of her
promise to the suitor.
The decision is recorded as Judgment XVII of De variis iudiciis amoris3 in
Book Two of Andreas Capellanus' Tractatus de amore.4 The opinion's reason-
* Corporation of London Professor of Law, University of London, Birkbeck College. This article
is part of a larger project on the history of the jurisdiction of love, and as such it owes much-by way of
pain, pleasure, and hope-to many. In truncated form, my thanks to Anton Schiitz, who first suggested
the topic. To Niki Lacey, Jane Larson, Ngaire Naffine, Peter Rush, and Renata Salecl for constructive
comments and enthusiasm. I owe a particular debt to Gunther Teubner for an extraordinarily close and
open reading of an earlier draft of the text. My thanks finally to Linda Mills for a thousand ideas
spanning several drafts of this article. Unless otherwise noted, translations are my own.
1. ANDREAS CAPELLANUS, ANDREAS CAPELLANUS ON LOVE 267 (P.G. Walsh ed. & trans., Duck-
worth 1982) (1176) (Judgment XVII).
2. Id. at 157. The judgments of the courts of love were recorded in Latin by Andreas Capellanus,
a 12th century cleric and scholar, and collected in a volume most commonly referred to as Tractatus de
amore. Id. at 1.
3. "Various judgments on love."
4. To make Capellanus' work accessible to the reader, all references to the Tractatus cite P.G.
Walsh's English translation, CAPELLANUS, supra note 1.
633
634 STANFORD LAW REVIEW [Vol. 48:633
ing evinces a curious and compelling conjunction of casuistry5 and lifestyle, of

the art of law and the rules of love, of the juridical and the personal. While
relying on the precedent of the Court of Champagne, the judgment also refers
to and incorporates other established norms from the courts of love, creating a
casuistic analysis that is intensely personal in its subject matter, yet strikingly
legalistic in its procedure and method. As an analysis of the legal grounds for
Judgment XVII demonstrates, the laws of love are not necessarily consistent in
outcome, but they are useful tools from which the courts of love constructed a
framework for resolving amorous disputes. One ground for the decision in
Judgment XVII is, in effect, statutory: The first rule of the Code of Love, the
"regulae amoris" reported in Book Two of the Tractatus,6 states that "Marriage
does not constitute a proper excuse for not loving."7 In terms of precedent, the
judgment demonstrates awareness not only of law from the Court of Cham-
pagne, but also of past rulings from other women's tribunals. The Court of the
Viscountess of Narbonne held in Judgment VIII that a new marriage alliance
"does not properly replace an earlier love-liaison unless the woman chances to
cease devoting herself to love entirely, and is in no way disposed to love fur-
ther."8 In Judgment IX, the same court held that marital affection and true love
were completely distinct-they were different in species and had their origin in
radically distinct movements of the soul. They could not, in consequence, be
compared.9 Notwithstanding that the decisions from both the Courts of Nar-
bonne and Champagne disagree on the grounds upon which to resolve the amo-
rous dispute at issue in Judgment XVII, they consistently acknowledge the role
of law in love and of love in law. In addition to statutes and precedents, cus-
toms of love, or amoris praecepta,10 further inform the courts' notions of the
character and institutions of relationships of desire.
While Judgment XVII's discursive reasoning relies on sources too numer-
ous and entangled to be unraveled here, one overarching principle merits atten-
tion: The court of love in Judgment XVII enforced a most intimate promise on
grounds of amorous conscience. An ethical dispute-a differentiation of right
and wrong-was decided as a question of love. Such a relation of desire to
faith, of love to fidelity, or of body to contract, clearly borrows from the spiri-
tual jurisdiction and its courts of conscience. The judgment is concerned with
matters of spiritual law, reiterating in a novel context that promises of love be
kept and that desire be channeled ethically. Although the medieval church
would eventually proclaim the doctrines and rules of the courts of love heresy,
and later literary and legal historians would dismiss them as fantasm,1 the
5. I use the term "casuistry" in its historical sense, to refer to a reasoning, developed in theology
and jurisprudence, of cases. These cases, of conscience and of law, were often hypothetical or exem-
plary and allowed for the refinement of casuistic reasoning around disputed questions (quaestiones dis-
putatae) in law and cases of conscience in moral theology.
6. CAPELLANUS, supra note 1, at 283, 285.
7. Id. at 283.
8. Id. at 257, 259.
9. Id. at 259
10. Id. at 116-17.
11. See text accompanying notes 35-47 infra.
February 1996] COURTS OF LOVE 635
ethical character of the rules of love and the juristic, yet illicit, nature of their
procedures and female personnel should not be ignored or denied. On a philo-
sophical level, Judgment XVII evinces not only fidelity to a lover's words, but
also a combination of spiritual and temporal conceptions of relationship, of
attachment, and of its ends. In substantive terms, the judgment draws upon
precedent and law beyond the ordinary jurisdiction of regal and ecclesiastical
law, or ius commune, creating and applying an alternative law of the feminine
public sphere, concerned exclusively with disputes over the art of love and
relationships between lovers. By distancing themselves from the bounds of
traditional law, the courts of love constructed an alternative jurisprudence capa-
ble of transforming moder conceptions of law and love, of the public and the
private, and of society and the self. To understand the judgments of love and
their philosophical relevance to contemporary jurisprudence, one must first
contextualize the decisions through an analysis of secular and spiritual love.
Women's courts of love spoke to a law of emotion and a corresponding
jurisdiction concerned not with individual rights or passions, but rather with a
space between lovers, independent of any recognized right, property, or estab-
lished propriety. Under the extensive logic of Judgment XVII, love and mar-
riage are combinations of different species of love. The Christian institution of
marriage was a form of amor purus or essentially spiritual love. Indeed, ac-
cording to Augustine, sexuality was not an imperfection but a part of God's
plan, and marriage was the only legitimate structure for virtuous or spiritually
elevated love relations after the Fall.12 Augustine and the patristic texts spoke
of a marital fidelity as a means of purifying the base nature of corporeal rela-
tions and transforming the evils of lust and passion into an other-worldly order
of spiritual affectation.13 The secular institution of marriage thus acted as a
temporal shadow or emulation of love's spiritual exemplar, rooting itself in
imitative obedience to an earthly father and conjugal hierarchy. By contrast,
the relationships adjudicated by women in the courts of love were of an amor
mixtus: Both spiritual and profane, both agape and eros, they were an invest-
ment of the soul inscribed, often elliptically, in mundane and corporeal rules.
To the contemporary reader, the subject matter of Judgment XVII no doubt
seems arcane.14 Yet, the judgment's recourse to precedent and to reasoning,
and its reference to Christian conceptions of marriage and to poetic notions of
love, map out a royal road for exploring the place of law in intimate relation-
ships, the role of the public in the private, and the convergence of the juridical
and the political in the personal. In furtherance of the relationship between
conscience and regulation, amorous intent and the determinations of law, this
article addresses the history and the law of the courts of love as systematized by
12. JOYCE E. SALISBURY, CHURCH FATHERS, INDEPENDENT VIRGINS 39, 46 (1991).

13. Id. at 47-48.
14. For a discussion of the conceptual evolution of the code of love from medieval through mod-
em times, see NIKLAS LUHMANN, LOVE AS PASSION: THE CODIFICATION OF INTIMACY 42-45 (Jeremy
Gaines & Doris L. Jones trans., Polity Press 1986) (1982) (describing the code's evolution from repre-
senting an ideal to suggesting a paradox to stimulating self-reflection).
Capellanus in his Tractatus de amore.'5 While there is considerable contro-

versy within the predominantly male professions of legal and literary history as
to the reality of women's courts and the jurisdiction of love, there is no doubt
that the courts of love captured the medieval literary imagination. In consider-
ing these courts and their jurisdiction over all disputes between lovers, this
article takes seriously and literally the classical Roman maxim of fictio figura
veritatis: Fiction is the figure of truth. Law has always produced and pro-
moted legal fictions, and I contend that the courts of love, whether real or
imagined, produced judgments as jurisprudentially relevant, and useful, as
more traditional legal fictions.'6 The same lessons emerge from the jurisdic-
tion and substantive rules of the courts of love regardless of their ontological
status. The willingness of contemporary historians to dismiss women's courts
as mere phantasms suggests a contemporary lack of imagination that in turn
denies lawyers access to a fecund tradition of alternative law or judgment's
"other scene."
The Tractatus is remarkably legal in character. It establishes both general

precepts of love and a code of rules for lovers, and applies the doctrine to
twenty-one judgments spanning an eclectic array of lovers' disputes.17 My
concern in the ensuing analysis of the Tractatus is legal, it aims at recreating a
"minor jurisprudence" of love to challenge traditional institutions and their mo-
nopoly over legal knowledge.'8 Introducing an alternative historical reality
with its own juridical details, facts, and jurisdiction interrupts the contemporary
idolatry of a single, supreme law. The repressed history of women's courts and
the judgments of love question the relationship between rule and lifestyle, be-
tween law and emotion. By granting jurisdiction to disputes between lovers
and thereby legalizing the most intimate ethics of living, the courts of love
transgressed the boundaries of positive law and the categories of public reason.
15. As will be observed later in the article, extrinsic evidence of other decisions and judgments of
love contemporary with those recorded by Capellanus abound in literature, particularly in troubadour
poetry. However, because I focus on the legal dimension of the tradition of courtly love, particularly the
judgments of love, I rely on Capellanus, whose Tractatus represents the first systematic reporting of the
De variis iudiciis amoris. See note 3 supra. The other major source for later judgments is MARTIAL
D'AUVERGNE, LES ARRETS D'AMOURS (A. & J. Picard & Cie 1949) (1460). See STEPHANO FORCATULO
BLITERENSI, CUPIDO IUSPERITUS (1553); Benoit de Court, Commentaires Juridiques & Joyeux, in MAR-
TIAL D'AUVERGNE, LES ARRETS D'AMOURS, AVEC L'AMANT RENDU CORDELIER, A L'OBSERVANCE
D'AMOURS (1731).
16. As for example, the "reasonable man."
17. CAPELLANUS, supra note 1, at 250-71.
18. A minor jurisprudence transcends sovereign and unitary law, neither aspiring nor pretending
to be supreme or universal. A minor jurisprudence is neither jealous of other jurisdictions nor fearful of
alternative disciplines. It acknowledges the strangeness of language and thus embraces all possible
interpretations and plural forms of knowledge. A minor jurisprudence, such as the feminine justice
explored in this article, challenges the law of masters, the genre and categories of established doctrine
and its paper rules. The fragmentary and deterritorialized language of a minor jurisprudence reveals,
and revels in, a politics of the literary practice of law and the existential commitments of writing:
"[w]here one believed there was the law, there is in fact desire and desire alone. Justice is desire and not
law." GILLES DELEUZE & FELIX GUATTARI, KAFKA: TOWARD A MINOR LITERATURE 49 (Dana Polan
trans., University of Minnesota Press 1986) (1975) (emphasis omitted). For further development of this
theme, see Peter Goodrich, Of Law and Forgetting: Literature, Ethics, and Legal Judgment, 1
ARACHNE 198 (1994); see generally PETER GOODRICH, OEDIPUS LEX: PSYCHOANALYSIS, HISTORY, LAW
(1995).
Their legally impossible-or, as I argue, their possible but, to contemporary

minds, legally unfamiliar-forms of decision challenge the monistic imagina-
tion and the unifying logic of positive law. In place of institutionalized proce-
dures and rigid legal norms, the courts of love suggest a plurality of regulatory
regimes capable of dispensing justice according to the ethical dictates of each
dispute's subject matter. Justice is relative, and, in matters of intimate relation,
right or wrong is often a question of love.
By placing law face-to-face with an ethics of emotion and a phenomenol-
ogy of relationship, the history and jurisprudence of the courts of love offer a
lens through which to reconceptualize contemporary concerns with the rights of
sexuality, as well as the sexuality of rights.19 The courts of love enforced con-
tracts of love, provided remedies for amorous betrayal, punished deceit and
slander of lovers, dictated the duties of separated lovers, and placed the punish-
ment of violence against women in the hands of women's tribunals. The judg-
ments of love provided public regulation of the private sphere through a
gendered conception of both legal and personal relationships, rather than from
the perspective of individual rights. The following judgment can illustrate this
unique view of legal relationships.
A young woman fell in love with a happy, gregarious, and fashionable
young man.20 She now complained that he had become pensive, distracted,
and melancholic. Life bored him, and he grew weary with the world. If given
flowers, for example, he would tear them to pieces and throw them away, while
if he heard music he would lose all control and start weeping. If one talked to
him of love at table he would start talking of death or relate rambling and
pointless stories from the past. He became virtually unrecognizable to her and
offensive to her friends. She made a plea to the court of love to sentence him to
return to his former self.
In his defense, the melancholic man argued that great labor, sorrow, and
privation was necessary to further the cause of love. He performed the most
19. In acknowledging and accepting the ethics of emotion and the validity of relationships, the
jurisprudential perspective of courtly love has contemporary applications to issues such as gay and
lesbian rights, reproductive rights, domestic violence, sexual harassment, and marital and custody dis-
putes. Furthermore, this minor jurisprudence reveals not only that sexuality and relationships merit
rights, but also that sexuality and relationships should, and often do, influence our construction of rights
in other contexts.
Although this article will not correlate the judgments of love to contemporary doctrine or practice, I
would like to highlight two obvious connections between feminist jurisprudence and the code of love.
First, the courts of love offer a historical record of women's procedures and judgments that differ mark-
edly from contemporary or modernist legal traditions. They suggest the possibility of alternative juris-
dictions and alternative valuations that are properly law. Second, on a more substantive level, the
judgments suggest conceptualizing the space and temporality of relationship as a jurisdiction with its
own ethical rights. Such rights, to imagination, faith, authenticity, respect, to a history, culture, and
aesthetic are largely unthinkable, utopian, or impossible in the contemporary scheme of legal rights.
The jurisdiction of love recognizes the particular, the corporeal, and the emotional; it values the ethical,
the rights that belong to the space in between-to the duration of relation or the possibilities of its
future. For an application of this idea to domestic violence, see Linda Mills, Empowering Battered
Women Transnationally: The Case for Postmodern Interventions, 41 Soc. WORK (forthcoming May
1996). For a comparable idea in the context of property rights, see Jeanne Schroeder, Chix Nix Bundle-
O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239, 314-19 (1994).
20. This case and judgment is reported in French in D'AUVERGNE, supra note 15, at 174-77.
loyal and sorrowful of services for his lover and had learned to abandon all
concern with worldly wealth or the opinions of men. In abandoning himself
completely to love, he "bought each joy with a hundred sorrows."21 His sad-
ness, he contended, was thus a personal matter, a sorrow imprinted upon his
heart that led him to request the court to release him altogether from his lover.
The court sentenced the melancholic lover to be mis aux herbes, to be
forced to spend one month as a prisoner in a flower garden. There he would be
condemned to see only flowers and greenery and so would revive his spirits.
The court further ordered that he be kept away from all melancholic company
and remain alone to recuperate his dreams and fantasies. His only companion
would be the woman complainant, who was to think positively of him and
whenever possible was to join him and to read him erotic poetry in his garden
prison.
This judgment is remarkable for its sensitivity to the space between the
lovers: It addresses the relationship, rather than either party. There is no con-
ventional victor, and no pronouncement of past fault; the judgment is neither
punitive nor retributory; it speaks instead of future possibilities of the lovers'
relationship.
This article argues that the courts of love are not only a striking model of
feminine justice, of the "lady common law," or Justitia, but also an encyclope-
dic documentation of an art of love or ars amatoria that addresses precisely
those questions of lifestyle, trust, relationship, care, and sexual exchange which
contemporary feminist jurisprudence, both on the continent and in America, has
labored to formulate and address. My analysis moves from preliminary histori-
cal observations on love, particularly amour lointain, or distant love, love of
the past as well as the past of love, to the substantive issues raised by the
judgments and the jurisprudential lessons we may glean from the casuistic rules
of amor mixtus and the art of love. In the strangest of paradoxes, the tradition
of amour lointain, the judgments of love, women's courts, and the regulae
amoris, together can act as an emblem of the possibilities of law in an age of
"object-choice."22 Law rejects both the personal and the imaginary,23 identity
and desire, as valid sources of controversy. From a psychoanalytic standpoint,
this phenomenon is analogous to repression: Moder law rejects the libidinal,
dark side of love or eros in favor of depersonalized, crystalline rules. Simi-
larly, historiography represses the phantasmatic character of love. By resur-
recting and radicalizing the courts of love, this article seeks to address the
21. Id. at 175.
22. See SIGM. FREUD, Contributions to the Psychology of Love: A Special Type of Choice of
Object Made by Men, reprinted in 4 COLLECTED PAPERS 192, 192-93 (Joan Riviere trans., 2d ed., 1934)
(1910); KLAUS THEWELEIT, OBJECT-CHOICE (ALL YOU NEED IS LOVE...): ON MATING STRATEGIES & A
FRAGMENT OF A FREUD BIOGRAPHY 17 (Malcolm Green trans., 1994) (1990) (describing Freud's object-
choice as an attachment to the imaginary and "the presence of an absent person which is loved in a
current body"); see also GIORGIO AGAMBEN, The Phantasms of Eros, in STANZAS: WORD AND PHAN-
TASM IN WESTERN CULTURE 22, 22-26 (Ronald L. Martinez trans., University of Minnesota Press 1993)
(1974) (tracing the connection between desire and unattainability, fantasy and reality, and the spirit and
the body from medieval thought through Freud's writings).
23. E.g., U.S. CONST. art. III, ? 2, cl. 1 (Case and Controversy Clause).
modern legal imagination from a space outside of the contemporary dichoto-

mies of public and private, self and other. This rethinking may yet serve to
challenge both jurists and practitioners to reconceptualize the role of law in
their lives, and the role of their lives in the law.
I. AMOUR LOINTAIN
"It may seem ... a curious and unusual detour," remarks the French psy-
choanalyst Jacques Lacan in his seminar The Psychoses, "to resort to a medie-
val theory of love in order to introduce the question of psychosis. It is,
however, impossible to conceive the nature of madness otherwise."24 Accord-
ing to Lacan, the courts of love offer a fundamental insight into the importance
of the imaginary and of the phantasmatic structure of the relationship between
self and other, and of one sex to the other. Courtly love captures the essence of
amour lointain: impossible or indefinitely postponed love-love centered on
the inaccessibility of its object, or in neo-Freudian terms, recognition of the
otherness of the object of love. Embracing the imaginary reveals the potential
absolutism or madness of love as addressed within the judgments of love.25
Lacan's most successful contemporary interpreter, Slavoj 2ilek, also states that
"[t]he impression that courtly love is out of date, long superseded by moder
manners, is a lure blinding us to how the logic of courtly love still defines the
parameters within which the two sexes relate to each other."26 Thus amour
lointain is the exemplary metaphor of a law of distance and of the structure of
love as passion in the real world.27 The legal implications of amour lointain
emerge from the judgments of love that concern obstacles in the path of love,
economies of jealousy and of scarcity, and disputes over the geography of
separation.
The ensuing exploration of amour lointain as evidenced through the judg-
ments of love pursues two primary theses. First, if, following Lacan, we can
understand both madness and love through the poetics and the rules of amour
lointain, it equally may be possible to understand important features of law, and
particularly of justice, through the history of the courts of love. Just as a histor-
ically distant conception of love still structures contemporary relationships, so
too a historically distant practice of law may restructure our conceptions of
equity and of the casuistry of justice, as well as help to explain the opaque or
repressed relationship between desire and legality. Second, the history of love
and of gender relations has not been a feminist or even a feminine enterprise.
24. JACQUES LACAN, THE PSYCHOSES: THE SEMINAR OF JACQUES LACAN 253 (Jacques-Alain
Miller ed., Russell Grigg trans., 1993).
25. Jacques Lacan, Courtly Love as Anamorphosis (Feb. 10, 1960) in 7 THE SEMINAR OF JACQUES
LACAN: THE ETHICS OF PSYCHOANALYSIS 1959-1960, at 139, 154 (Jacques-Alain Miller ed. & Dennis
Porter trans., W.W. Norton & Co. 1992) (1986) (referring to Andre Breton's L'Amourfou, or madness
of love, in relation to courtly love).
26. Slavoj 2izek, Courtly Love, or, Woman as Thing, in THE METASTASES OF ENJOYMENT: SIX
ESSAYS ON WOMAN AND CAUSALITY 89, 89 (1994). For a series of recent perspectives on Lacan and
amour lointain, see 23 NEW FORMATIONS (Summer 1994) (special issue entitled "Lacan and Love").
27. While I will return to that relationship of historical distance, see text accompanying note 16
infra, I am more concerned here simply to indicate the legitimate contemporaneity of the topic.
To the extent that a history exists, its pre-eminent concern has been the proprie-
tary institutionalization of relationship, notwithstanding the association of its
subject-matter with feminine attributes. There are at least two histories of the
judgments of love, for the simple reason that there are at least two places, two
persons, or two sexes, and two subjectivities implicated in amorous relation-
ships. Each subjectivity, concept or narrative of love generates its own version
of historical and legal knowledge.28 Capellanus referred to this duality as
duplicem sententiam,29 or double meaning. Thus, Capellanus' narrative of the
courts of love offers a salutary and corrective instance of the necessarily plural
quality of historical-and legal-writing.
By recognizing the duality inherent in both relationships and the legal judg-
ments of the courts of love, Capellanus' duplicem sententiam suggests a bolder
subtext in the judgments. It offers an alternative meaning to amour lointain
and its relevance for reconceptualizing contemporary notions of justice and
law, sexuality and rights. The judgments of love and their surrounding litera-
ture are deeply allegorical and thus play games with the language and the per-
sonae of love. Although the courts of love often appear to adopt a strictly
heterosexual norm, closer attention to, and openness toward, the literature and
records of feminine justice reveal many examples of love between woman and
woman, man and man. The allegorical character of the literature and of the
judgments further suggests that men often adopted the names or personae of
women, and women frequently assumed the guise or mask of men.30 These
strong gay and lesbian themes within the rules of love connote not only a sex-
ual politics of love, but also a sexual politics of the history of passion and other
intimate emotions that still burdens and distances contemporary historicism
from the "reality" of this sexual past.31 In more ambitious, psychoanalytic
28. I should at this point advert to a particular biographical irony. Although there are texts by
women authors, most notably Christine de Pisan, which discuss the courts of love, the only record of the
early judgments appears in the work of Capellanus, a male cleric. Further, my own recuperation of this
history of women's courts necessarily reflects the perspective of a white man. I do not apologize for
that circumstance, but I do recognize the limitations, as well as the privileges, my status confers on my
interpretation of, and imagination about, these texts. To the extent women's courts focused specifically
on the space between lovers-and between or within the sexes-I feel it is appropriate to invoke Iri-
garay's metaphor of a "sex which is not one," as a species of self-reflection. I have tried to contemplate
and interpret the judgments of love from within a space of relation and in a dialogue across the bounda-
ries of my sex. As to the privileges of masculinity, it seems ironic that it is a man who writes this article
reviving another man's history of women, lending the narrative credibility and publicity which might
otherwise be lacking from an account which belonged by both sex and inclination to a feminist legal
theorist.
29. CAPELLANUS, supra note 1, at 322. For discussion of this reference, see D.W. Robertson, Jr.,
The Subject of the De Amore of Andreas Capellanus, 50 MOD. PHILOLOGY 145, 146 (1953).
30. The most interesting evidence of love between woman and woman comes from the trobairitz,
the poetry and judgments of a small group of women troubadours. For exemplary texts of this kind, see
1 ECRIVAINS ANTICONFORMISTES DU MOYEN-AGE OCCITAN: LA FEMME ET L'AMOUR 247-49, 261-69, 301-
05 (Rene Nelli ed. & trans., 1977); see also MEG BOGIN, THE WOMEN TROUBADOURS 133 (1976) (re-
printing a poem from one woman to another). For the inevitable argument that the trobairitz did not
exist, see Jean-Charles Huchet, Les femmes troubadours ou la voix critique, 51 LITTERATURE 59, 59
(1983).
31. See JEAN-CHARLES HUCHET, L'AMOUR DISCOURTOIS: LA "FIN'AMORS" CHEZ LES PREMIERS
TROUBADOURS (1987) (discussing the homosocial reality of courtly love); see also RENE NELLI,
L'tROTIQUE DES TROUBADOURS 108 (1963) ("At the very least it had to be recognized that courtly
terms, the courts of love may be interpreted as the masculine unconscious,

where woman is a metaphor for an exchange of love between two men. In this
analysis, amour lointain represents an imaginary and forbidden copulation be-
tween two men. The woman here takes the place of the other in the sense of
being extrinsic to a homosexual desire: "The woman offers herself as the site
of an imaginary and impossible copulation between two men .... The woman
circulates from one man to an other, but in the sole title of signifier of a desire
which does not concern her, the unavowable homosexual desire."32 This
duplicem sententiam of legal history refers, in other words, to the necessarily
ambiguous relation of contemporary conceptions of desire to the plurality of
historical norms of erotic sensibility.
In Freudian terms, amour lointain refers to boundaries, limits, and distance,
as well as to the more familiar, morbid ecclesiastical notions of faith and death.
This distance or waiting not only characterizes the historical relationship of
courtly lovers and the judgments of the courts of love, but also marks the rela-
tionship of the historian, and, on occasion, the psychoanalyst, to love. Amour
lointain, the central theme of courtly love, still resonates in the modem imagi-
nation, suggesting that the subject, and the subjectivity, of the courts of love
must remain an open question. The boundaries and the practices of the courts'
mixed love and sexuate justice33 offers both a resource and jurisdiction that is
at once literary and legal, real and phantasmatic, historically remote yet con-
ceptually contemporary. While the records of women's courts and of judg-
ments of love indisputably exist, the interpretation of their existence or
nonexistence-their real or fictive character-and the elaboration of their prin-
ciples remain, like all textual undertakings, indefinite and infinitely
expansive.34
II. COURTLY LOVE IN OTHER DISCIPLINES
In order to understand the courts of love as a meaningful referent for mod-

ern jurists, it is helpful to survey previous treatments of courtly love in the
contexts of psychoanalysis, literature, and religion. Although Lacan identifies
a certain "strangeness" in a "juridical power exercised by the Ladies," one
which for him "cannot fail to excite a thrill," he nonetheless condemns any
society generally practiced sodomy so as to avoid the normal carnal fact of procreation; one cannot but
acknowledge that courtly love was in its essence, love 'against nature'.").
32. HUCHET, supra note 31, at 25.
33. The term sexuate rights derives from Irigaray, who uses the term "droits sexuds." See LUCE
IRIGARAY, JE, TU, NOUS. POUR UNE CULTURE DE LA DIFFERENCE 101-15 (1990); see also THE IRIGARAY
READER (Margaret Whitford trans., 1991). Sexuate rights are defined by Irigaray as rights which corre-
spond to and respect feminine subjectivity. Within Irigaray's argument, sexuate rights are rights insti-
tuted within a feminine domain of law and are distinctive by virtue of their ability to reflect a feminine
social order and "to deploy their subjectivity with symbols, images, realities, and dreams, in short the
objective means of subjective exchange." IRIGARAY, supra, at 113.
34. See Paul Remy, Les "cours d'amour": legende et rdalite, 7 REVUE DE L'UNIVERSITE DE BRUX-
ELLES 179 (1955) (arguing that at best the courts of love had a literary and didactic existence); see also
JACQUES LAFITTE-HOUSSAT, TROUBADOURS ET COURS D'AMOUR (5th ed. 1979) (arguing that the courts
of love existed, but as social diversion or amusement rather than as genuine tribunals); MOSHE LAZAR,
AMOUR COURTOIS ET FIN'AMOURS DANS LA LITTERATURE DU XIIe SIECLE (1964).
serious analysis of the courts of love to failure, to the status of a structural

fiction or necessary but nevertheless merely rhetorical metaphor.35 More than
that, "courtly love was created more or less as you see the fantasm emerge from
the syringe," while its concept of love "is commonly called, quite rightly, a
form of madness," in Freudian terms a mirage or delusion.36 While noting the
more political subtext of the judgments, 2ilek too dismisses courtly love as "a
semblance that conceals the actuality of male domination" through the pretense
"of man serving his Lady,"37 it is image, fantasy, a lure to servitude.
In the more conventional histories of canon law and of law and sexuality,
the Tractatus is honored only in its absence: It does not measure up to the real
and is therefore ignored.38 According to these traditional texts, there is no hard
evidence of the existence of courts of love before 1400,39 and the practice of
courtly love "has no useful meaning" in the scheme of historical ontology.40
Just as historians agree on the dates and the forms of invention of the courts of
love, they also concur that, if measured against the demands of the real, the
courts of love could not be said to have existed.
The concern of literary historians has been primarily biographical and
largely dismissive of the courts themselves. As if it were a significant feature
of the art of love, scholars have expended immense philological and archival
energy on searching for the true identities of Capellanus and his friend Walter,
to whom Capellanus addresses the didactically formulated Tractatus.4' The
courts, however, are quite simply erased; they did not exist, or in the well-
chosen words of John Benton, the Tractatus is "a work of the imagination," and
"the decisions of the courts of love are ... amusing fantasies."42 Such a view
is positively liberal in comparison with the more acerbic historicism that sees
the perpetuation of these fantasies as an offense to the reality of the past, as a
transgression of the rules of historical evidence, and as an obstacle to the under-
standing of related literature.43 As the products of romantic fiction, the courts
35. Lacan, supra note 25, at 146, 148-49.

36. LACAN, supra note 24, at 254.
37. ZI2EK, supra note 26, at 108.
38. In the view of historians, the Tractatus is relegated to a brief mention within footnotes. E.g.,
JAMES A. BRUNDAGE, LAW, SEX, AND CHRISTIAN SOCIETY IN MEDIEVAL EUROPE 308-09 n.238 (1987);
HENRY ANSGAR KELLY, LOVE AND MARRIAGE IN THE AGE OF CHAUCER 33 n.4 (1975).
39. The date 1400 marks the institution of the "Cour amoureuse" (court of love) in Paris. 1 LA
COUR AMOUREUSE DITE DE CHARLES VI 1 (Carla Bozzolo & H616ne Loyau eds., 1982).
40. John F. Benton, Clio and Venus: An Historical View of Medieval Love, in THE MEANING OF
COURTLY LOVE 19, 37 (F.X. Newman ed., 1968).
41. For a recent summary of scholarship on the Tractatus, see JOHN W. BALDWIN, THE LANGUAGE
OF SEX: FIVE VOICES FROM NORTHERN FRANCE AROUND 1200, at 16-25 (1994).
42. John F. Benton, Collaborative Approaches to Fantasy and Reality in the Literature of Cham-
pagne, in COURT AND POET: SELECTED PROCEEDINGS OF THE THIRD CONGRESS OF THE INTERNATIONAL
COURTLY LITERATURE SOCIETY (Glyn S. Burgess ed., 1980) 43, 46.
43. See D.W. ROBERTSON, JR., A PREFACE TO CHAUCER: STUDIES IN MEDIEVAL PERSPECTIVES 391
(1962) (questioning the utility of "a single all-embracing formula" like courtly love which lacks consis-
tency and historical confirmation); D.W. Robertson, Jr., The Concept of Courtly Love as an Impediment
to the Understanding of Medieval Texts, in THE MEANING OF COURTLY LOVE, supra note 40, at 1
(expressing disbelief as to the existence of courtly love and criticizing the concept as "not only impracti-
cal but downright inconvenient"); see also PETER S. NOBI.E, LOVE AND MARRIAGE IN CHRTTIEN DE
TROYES 5 (1982) (dismissing the usefulness of the Tractatus as a historical document).
of love are deemed trivial affectations, ironic and theatrical diversions from
truth. In short, they are the stuff of women's literature-an ephemera or chi-
mera, fantastical products of the fickle attention of the feminine mind. In the
stronger terms of the disciplines, their genre is literature, not law; their sub-
stance is imagination, not reality. The normative order of literary historicism
neither imagines nor perceives the relevance of women's courts or laws of love.
Within a historical framework, it is of little surprise that women, who were
defined early on in the patristic tradition as "lack" or as nothing,44 should pro-
duce nothing as their law. It is consistent to depict their courts and their rules
as madness taking the form of fantasies regulating imaginary relationships.
Yet, there is certainly room to challenge historians' denial of the reality of the
courts of love: Even if the tribunals did not exist or have either a form or a
procedure that we currently and contingently recognize as "lawful," they un-
doubtedly "existed" in the medieval mind. Bishop Stephen Tempier's list of
condemned books in 1277 included the Tractatus, criticizing its "conceits and
idiotic falsities," as well as its "manifest and abominable errors."45 Other me-
dieval reactions included censorship through rewriting the Tractatus;46 critics
also vilified Capellanus' work as a threat to the stability of marriage.47 Be-
cause one does not deny, condemn, censor, or exclude a purely imaginary con-
struct or simply fantastical specter, it seems plausible to impute a certain
reality, be it corporeal substance, political practice, or textual remnant, to this
mere-or merely feminine-literature and its reporting of judgments in the
courts of love.
The second significance of the history of these courts does not depend on
proof of their existence. Let the historians have their limited reality, let them
enjoy their presence in the past, the fort-da of objective histories. The follow-
ing section explores a more radical strand of genealogical48 thinking concerned
precisely with the imaginary domain: the symbolic space of difference and its
implication of a politics that crosses existing boundaries and established limits
of genre.
44. For discussion of this theme and relevant patristic texts, see SALISBURY, supra note 12, at 5,
23-27, 34, 49; see also ARISTOTLE, GENERATION OF ANIMALS (A.L. Peck trans., 1953) 91-93, 97, 101-
03, 109, 173-75.
45. A.J. Denomy, The De Amore of Andreas Capellanus and the Condemnation of 1277, in 8
MEDIAEVAL STUDIES 107 (1946); see generally ALEXANDER J. DENOMY, THE HERESY OF COURTLY
LOVE (1947). For commentary, see PIERRE LEGENDRE, PAROLES POETIQUES ECHAPPEES DU TEXTE:
LECONS SUR LA COMMUNICATION INDUSTRIELLE 90-120 (1982).
46. In addition to DENOMY, supra note 45, and the Statute of 1277, see also the history of the
rewriting of the text in LAFITTE-HoussAT, supra note 34.
47. Because courtly love centered on amour lointain, the quintessential impossible love was that
for another man's wife. See ROBERTSON, supra note 43, at 1-2 (describing the pitfalls and limited
payoffs of "courtly love" of another's wife); see also LI LIVRES D'AMOURS DE DROUART LA VACHE:
TEXTE ETABLI D'APRES LE MANUSCRIT UNIQUE DE LA BIBLIOTHEQUE DE L'ARSENAL (Robert Boussat ed.,
1926); Charity Cannon Willard, Christine de Pizan's Cent Ballades d'Amant et de Dame: Criticism of
Courtly Love, in COURT AND POET, supra note 42, 357, 363 (outlining Pizan's views on the traps of
illicit love).
48. I adopt Luce Irigaray's conception of genealogy as the study of gender and of relationships "as
we know them today and as they have come into being over time . . ." LUCE IRIGARAY, SEXES AND
GENEALOGIES V (Gillian C. Gill trans., Columbia University Press 1993) (1987).
III. THE POLITICAL MILITANCY OF THE IMAGINARY DOMAIN
Luce Irigaray's "political militancy of the impossible"49 aspires to the most

radical and foundational of all cultural transformations-changing the relation-
ship "between man and woman, women and men."50 Such militancy concerns
the will to rupture established patterns of political relation or legal rule, to ex-
press desire in institutional life, and to find a space for the imaginary domain,
for intimacy or the uniqueness of love, within the symbolic forms of social
life.51 This brand of militancy strives to specify impossible rights and makes
utopian demands because nothing less is worth fighting for.
The earliest recorded case of love illustrates the political militancy of alter-
native or imaginary history through an image of justice. This case comes not
from medieval literature, and the era of the courtly lyric and troubadour poem,
but from the first century histories of Plutarch, interpreted by Jacques Ferrand
in a sixteenth century treatise on lovesickness or erotic mania.52 Appearing in
a chapter concerned with remedies for erotic melancholy, the case constitutes
an oneiric variation on Ferrand's recommendation to sleep with the object of
one's desire, since the wounds of love are best cured by whomever caused
them.53
The case concerns a young Egyptian lost in love for a woman of the Athe-
nian court. He pursues her relentlessly and tries by innumerable means to per-
suade her to take him as her lover. With each of her emphatic and consistent
refusals, his obsession becomes more all-consuming. Eventually, he offers her
a large sum of money to sleep with him once, hoping that the liaison will cure
his erotic madness. She agrees. The night before the contract is scheduled for
fulfillment, the man dreams about making love to the woman in vivid detail-
avec tous les delices. Upon waking the next day, he realizes that he is cured of
his mania: "[T]he ardor threatening to consume him had been allayed."54
Hearing of this dream cure, the woman files suit for payment of the agreed
amount.
The case the woman argues is that it is her image that has cured the young
man. Having performed her part of the contract, albeit by different means, she
49. LUCE IRIGARAY, J'AIME A TOI: ESQUISSE D'UNE FELICITE DANS L'HISTOIRE 26 (1992).
50. Id. at 202. For a loosely comparable position, see Francine Demichel, Concepts juridiques et
difference sexuelle, in LECTURES DE LA DIFERENCE SEXUELLE 151 (Mara Negr6n ed., 1994).
51. See DRUCILLA CORNELL, THE IMAGINARY DOMAIN: ABORTION, PORNOGRAPHY & SEXUAL
HARASSMENT 27 (1995) [hereinafter CORNELL, IMAGINARY DOMAIN] (advocating a "process of rethink-
ing as well as contesting the order of civilization as it is predicated upon physical laws governing our
sexuality and its possibilities, tak[ing] us beyond the parameters of public political life and of legal
reform"); DRUCILLA CORNELL, BEYOND ACCOMODATION: ETHICAL FEMINISM, DECONSTRUCTION, AND
THE LAW 2 (1991) [hereinafter CORNELL, BEYOND ACCOMODATION] (suggesting that all women will
experience freedom when "the tyranny of established reality is disrupted and the possibility of further
feminine resistance and the writings of a different version of the story of sexual difference is continually
affirmed").
52. JACQUES FERRAND, A TREATISE ON LOVESICKNESS 333-34 (Donald A. Beecher & Massimo
Ciaovolella trans. & eds., 1990) (citing Life of Demetrius, in 9 PLUTARCH, LIVES 67 (Beradette Perrin
trans., 1959)).
53. Id. at 333.
54. Id.
demands the benefit of her bargain. The judge commands the young man to
appear before the court with the money. In the presence of both parties, the
judge takes the money and pours it into a brass bowl. It is then returned to the
young man and judgment pronounced for the woman; just as the young man
had been satisfied by the woman's image and an imaginary pleasure, so the
woman had been paid by an image, the sight and sound of the gold. The deci-
sion was received with approval by all present, except for the woman who
appealed unsuccessfully on the ground that while her image had cured the
young man, the sight and sound of the gold had whetted her desires rather than
satisfying them.
Although grounded in the imaginary, the judge's decision nonetheless re-
flects a classical sense of justice: It took the parties exactly as they were, face-
to-face, image-to-image, and rendered judgment according to the order of
causes of love that gave rise to the dispute. The judgment is radical both in
recognizing the imaginary as grounds for a cause of action and in resolving the
dispute by doing justice to the image. The decision was exemplary, and as
Ferrand's use of it suggests, it became a precedent for those concerned with the
rules and remedies of love. What is significant for the immediate discussion,
however, is a slightly separate point. The decision's significance lies in its
conjunction of two laws-the law of the body and the law of the soul. In
joining the two laws, the court recognized or accorded reality to both love and
faith, emotion and promise. More than that, the decision mixed the genres of
law and the interpretation of dreams and in doing so accorded reality to the
phantasm while equally treating the real as being also phantasmatic. To a nor-
mative historicism the judgment in this case would belong to a jurisdiction
outside that of law, to a nonhistory of the phantasm and merely imaginary
things. A genealogy of law, on the other hand, recognizes many jurisdictions,
and the decision represents another form of judgment-a minor jurisprudence
and a law appropriate to love.
The political militancy of the imaginary domain demands that we ask a
question unthinkable for normative historicism: What does it mean to deny
reality to the history and paradoxical rules of passion, to withhold being from
literature, to be as blind or as empty as lawyers in the face of love?55 In the
traditional historical schema, the real belongs to the sphere of objects, not that
of subjects; truth belongs to reference, not to sense; and law relates to what is
recognized, not what is strange. Yet, these assumptions impose moder values
on past practices and beliefs. In this sense, the historian's amour lointain, or
love of the past, is in this instance seemingly an amour propre or self-love.
Such historical narcissism denies the blandishments of time and masks the
55. See Benjamin Sells, Lawyers in Love, in BENJAMIN SELLS, THE SOUL OF THE LAW (1994).
Other contemporary studies of this issue include Peter Gabel, The Phenomenology of Rights-Conscious-
ness and the Pact of the Withdrawn Selves, 62 TEX. L. REV. 1563, 1566 (1984) (describing how two
individuals' repression of mutual desire leads us to create, and then believe in, "legal ideas as 'the
law' "). For a brief survey of the theme in historical perspective, see Peter Goodrich, Gynaetopia:
Feminine Genealogies of Common Law 20 J. L. & Soc'Y 276, 277 (1993) (using the constitutional
writings of 17th century British jurists to dissipate the "palpably coercive unitary conception of common
law").
changes distance brings. Only by blurring the boundaries, reinvesting in myth,

and embracing fiction as truth can the changes miscommunicated across histor-
ical distance resurface. This is in part a simple question of ethics, a require-
ment that a history of the other, here of women, attend to the other in her own
terms. Also at stake, however, is a question of law, namely the legitimacy and
reality of a specific past that informs notions of feminine identities, constitu-
tional rights, and women's law.
Over the centuries, several theorists have used the notion of an imaginary
domain to construct a realm of feminine power, acknowledging the literature
and law of sexual exchange. The French Renaissance historian Le Moyne, in a
work devoted to the history of women, La Galerie des Femmes Fortes, places
an unusual emphasis upon the significance of what he terms "imaginary spaces
of history-espaces imaginaires de I'histoire."56 Within such imaginary
spaces, Le Moyne discovers and expounds a history of feminine power and of
women's law. He elaborates an alternative history, a genealogy of another gen-
der and of its law. Le Moyne contends that a history of powerful women "is
not as limited as it might seem to those who do not know the virtues, or to those
who ... do not believe that there is another power to that which prejudice most
usually perceives."57 Contemporary theorists Luce Irigaray and H61lne Cixous
similarly reconstruct "other spaces" of historical reality along gender lines.58
Irigaray's feminine genealogy challenges the impoverishment of our concep-
tions of relationship and of love through denial of imagination: "[T]he best
minds of our epoch-usually male, sometimes female-maintain that eros is
chaos, night, bestiality, lack, annihilation, but that we should submit ourselves
to eros so as to relieve ourselves, so as to discharge-'to empty'-ourselves
and so to return to repose,"59 or all-too-often, to sleep. If love is a drug, and
sex no more than need combined with relief of tension, "une petite mort" or
loss of self, then as Irigaray puts it, "Pauvre lros! Pauvre amour!"60 More
56. P. PIERRE LE MOYNE, LA GALERIE DES FEMMES FORTES 13 (Paris, Cockart 1663). The theme
of imaginary otherness is not that unusual in the histories of erudite or powerful women. E.g., THOM.
HEYWOODE, GUSNAIKEION: OR, NINE BOOKES OF VARIOUS HISTORY CONCERNINGE WOMEN: INSCRIBED
BY YE NAMES OF YE NINE MUSES 2 (London, Adam Islip 1624) (referring to Parmenides' conception of
God as "an apprehension of an imaginarie thing"); JOHN LESLIE, DE ILLUSTRIUM FOEMINARUM IN
REPUB. ADMINISTRANDI, AC FERENDIS 19 (Rheims, Fognaeus 1580) (reviewing the history of illustrious
and erudite women and particularly of female government to argue that religious nature and law all
supported the "regiment" of women or feminine administration). In specifically juristic terms, the major
study of alternative history is JOHN SELDEN, JANI ANGLORUM FACIES ALTERA (London, Bassett 1622).
57. LE MOYNE, supra note 56, preface.
58. See, e.g., HELENE CIxous, COMING TO WRITING AND OTHER ESSAYS (1991) [hereinafter CIx-
ous, ESSAYS]; HELENE CIXous, Writing and the Law: Blanchot, Joyce, Kafka, and Lispector, in READ-
INGS: THE POETICS OF BLANCHOT, JOYCE, KAFKA, KLEIST, LISPECTOR, AND TSVETAYEVA 1, 3 (Verena
Andermatt Conley ed. & trans., 1991) [hereinafter CIxouS, READINGS] ("Literature is like history. It is
organized so as to repress and hide its own origin which always deals with some kind of femininity.");
LUCE IRIGARAY, LE TEMPS DE LA DIFFERENCE POUR UNE REVOLUTION PACIFIQUE 103-23 (Paris, Livre de
Poche 1989) (arguing that rethinking sexuality demands resurrecting ancient female myths and practices
previously obliterated from history). For an introduction to Cixous and Irigaray, see RosI BRAIDOTTI,
PATTERNS OF DISSONANCE: A STUDY OF WOMEN IN CONTEMPORARY PHILOSOPHY 238-44, 248-63 (Eliz-
abeth Guild trans., 1991).
59. IRIGARAY, supra note 58, at 103.
60. Id.
significantly, history's traditional negation of eros and of relationship, and its

displacement of desire and of love outside serious social speech or law, raises
questions of social justice, as well as of justice in and of history.
The first question of justice arises from historicism's denial of the subjec-
tivity of love's law-what I term the historian's fear of relationship,6' or of the
feminine. Historicism's destruction of feminine genealogy necessarily defines
sexual relationship as an indifferent, chaotic, and destructive force: Both his-
torically and epistemologically, woman is as inexplicable and irrational as pas-
sion itself.62 From the perspective of academic and legal reason, such
passion-such lack of control-immediately condemns the feminine within the
parallel traditions of history and law.63 The forgetting of feminine genealogies
and denial of feminine myths are active and positive features of the history of
legal reason.64 The first task of feminist genealogy, therefore, is to anticipate
and understand the tendency of law and history to fear and to repress the femi-
nine other-to destroy, or to silence, the body and the speech, the values and
the cultures, of women both in contemporary society and in the past. The sec-
ond task of feminine genealogy is to render some form of historical justice. At
the very least, justice requires an accounting of the lost values and possibilities
repressed through legal history's denial of feminine culture as a species of rea-
son or as a source of legitimacy-and so of law. To preserve the feminine
other, it may be necessary, as Cixous believes, "to insist on the necessity of an
illusion. The illusion consists in believing that people who have been hostages,
from time immemorial, of the world of calculation and the world of 'the' law
are capable of leaving it."65
This positive revaluation of historical and mythical feminine cultures in-
fuses the politics of contemporary feminist jurisprudence. Cixous' method pur-
sues an untamed writing "near to the wild heart,"66 seeking the "legal tablets
61. See Peter Goodrich, Doctor Duxbury's Cure: Or, a Note on Legal Historiography 15 CAR-
DOZO L. REV. 1567, 1586-87 (1994) (critiquing Neil Duxbury's histories of American common law for
"claim[ing] to stare candidly and unflinchingly upon the objects of history while denying the existence
of its own gaze, regard, or interpretations."); see also LUCE IRIGARAY, MARINE LOVER OF FRIEDRICH
NIETZSCHE 30-33 (Gillian C. Gill trans., 1991) (providing a poetic meditation on the historian's fear of
relationship by paralleling Nietzsche's relationship to history with his relationship to women).
62. Such an understanding-or, rather, misunderstanding-of amour passion is well analyzed in
LUHMANN, supra note 14, at 58-75.
63. Early legal representations of femininity as pretense, confusion, insatiability, and excess ap-
pear, for example, in ANDREAS ALCIATUS, NOTITIA DIGNITATEM IMPERII ROMANI, Ex NOVA RECENSIONE
PHILIPPI LAVVE BITURCI (Paris Cramoisy 1651) ("What is a woman? ... A confused man, an insatiable
beast, continuous disquiet, and excuse...."). For an extended discussion of this topic, see GOODRICH,
supra note 18, at 95-101, 168-80.
64. See IRIGARAY, supra note 58, at 122-23 (identifying the myth of Demeter and Persephone, in
which a little girl is stolen from her mother to fulfill a contract among male gods, as representative of
patriarchy's active destruction of women's genealogies).
65. Cixous, Grace and Innocence: Heinrich von Kleist, in READINGS, supra note 58, at 72-73
(emphasis in original). Cixous continues:
Here, I am not sending a pessimistic message. I think that nothing can destroy in us the part
made for happiness and love, happiness or love. But I also think that nothing can transform
the part that is not made for it. A politically just procedure would be to look for and regroup
forces capable of the same happiness and to not let oneself be altered by the bad, other, part.
Id.
66. CIxous, Writing and the Law, in id. at 1, 1.
... [of] another law, of the order of the living."67 Irigaray follows what, in
terms of academic rhetoric, is an equally extreme or militant path. She simi-
larly recuperates the allegories and mythologies, as well as the plastic and liter-
ary artifacts, of feminine cultures and myths. Irigaray, however, travels in a
different direction, writing in and experimenting with a poetics or prose of
love:68 She reinvests her genealogy of contemporary civic culture with ignored
texts and forgotten or derided mythologies. She writes of rebellious feminine
gods, of ethical resistances to law, of plural and polytheistic social relations, as
well as of the body, energy, breath, and writing. Irigaray intends to oppose the
fact that "we still exist in the absence of a culture of sexuality, of the flesh, of
the identity or style of genres."69 Recognition of the feminine other and of
alienated desire lends political force and social presence to the literature and
language of Irigaray's imaginary domain. She bestows symbolic status upon
the traditionally devalued subjectivity and intimacy within which desire con-
forms to predictable, if socially unconscious, laws. By writing in a style that is
both analytical and allegorical, philosophical and poetic, Irigaray introduces a
series of ignored or excluded or private values not only into the symbolic but
also into the public sphere.
Irigaray's logic has two dominant legal implications. First, it argues for a
law of value, an ethics which suspends and judges law itself, deriving justice
from a history of other relations and other loves. The literary and genealogical
recovery of another law based upon a certain reversal-namely, proximity to,
rather than distance from, the feminine-offers more than symbolic value. It
traces a maternal lineage, another origin or source of laws, a legitimacy outside
the established secular order. Second, Irigaray's assigning her historical recov-
ery to the imaginary domain challenges the supremacy and accuracy, certainty
or value, of positive law. She argues that:
[A] return to the origins of our culture reveals that it was once otherwise, that
there was an epoch when it was women who initiated relations of love. In that
time, woman was goddess and not servant, and she guarded both the spiritual
and the carnal dimensions of love.70
67. Id. at 26 (discussing her approach to the work of Clarice Lispector).

68. For examples of Irigaray's poetic style, see generally LUCE IRIGARAY, ELEMENTAL PASSIONS
(Joanne Collie & Judith Still trans., 1992); IRIGARAY, supra note 61. For a sampling of Cixous' style,
see HtLENE CIxous, THREE STEPS ON THE LADDER OF WRITING (Sarah Cornell & Susan Sellers trans.,
1993).
69. IRIGARAY, supra note 49, at 214. For poetic manifestation of our culture's unwillingness to
embrace the proximity of the feminine, and instead distancing ourselves from the sensual objects of our
desire to remain safe in our repression, see IRIGARAY, supra note 61, at 51 ("To think of the sea from
afar, to eye her from a distance, to use her to fashion his highest reveries, to weave his dreams of her,
and spread his sails while remaining safe in port, that is the delirium of the sea lover.").
70. IRIGARAY, supra note 49, at 210-11. For an elaboration on this theme, see LUCE IRIGARAY,
Divine Women (June 8, 1984), in IRIGARAY, supra note 48, at 55, 60 ("I am far from suggesting that
today we must once again deify ourselves ... [and] regress to siren goddesses, who fight against men
gods.... [W]e must not merely instigate a return to the cosmic, but also ask ourselves why we have
been held back from becoming divine women.") (emphasis in original).
That "woman was goddess" meant not only that she lacked limitations, but also
that culture respected sexual exchange and recognized desire as a relationship
of juridical value.
Recollecting an "other" history of feminine gods, feminine values, wo-
men's justice, and laws of love within an imaginary domain legitimizes sym-
bolic and civic spaces traditionally devalued as unreal or dismissed as
subjective. While investing in the imaginary may be an aesthetic, poetic, and
amorous good, it lacks practical political force and transformative potential un-
less it is endowed with the objectivity, visibility, and enforcement proper to
serious social speech, to that of law. Ultimately at issue is a law of relation-
ship, of what passes both between the sexes and within the sexes, an objective
space of sexual and amorous "transmission."71 Constructing this juridical
space connects law to its temporality, acknowledging the subjectivity and cor-
poreality upon which both relationships and laws are inscribed, for in
corporibus est sexum. A law of relationship also facilitates removing the femi-
nine from the space of male projection, from a space of otherness, from a dis-
tance which alienates and ultimately silences the feminine.
Doctrinal literature at once associates woman with veil or distance, lack or
absence, uncertainty or contingency, while simultaneously portraying her as
goddess, idol, or transcendence. This conflicted imagery reveals that such his-
torical categories are not feminine subjects, but rather places projected and in-
trojected within orders of male sociality and law. They are products of a
masculine unconscious and homosocial desire, objectifying-either through
dismissal or glorification-the subjective reality of feminine existence. Ironi-
cally, one could well argue that the legal historian thus acts out courtly love's
all-encompassing amour lointain: Historical reconstruction of feminine space
mimics the dominant fantasy of the courtly lyric, re-establishing women's su-
perior status within troubadour literature's hierarchy of love. The historian,
like the troubadour, projects:
a silent, pure regard, which lives in the hope of a return of its gaze. The curve
of the gaze returns to its source, it images the trajectory of speech addressed to
the woman, whose silence ... sends back to the troubadour his own song as the
discourse of the other. Woman is a place where desire is called upon to bind
itself to language.72
Of note here is the woman's silence; she serves merely as "a place" where
man's desire can speak and achieve subjective self-definition. The more radi-
cal implication of this exchange suggests that feminine space may be a site of
repression, and that a true jurisdiction of love demands that unconscious value,
an imaginary and emotive locus for law. On a simpler level, I suggest that
reconstructing the narrative of the courts of love validates spaces of subjective
self-definition-whether by, or upon, men or women-as worthy of social
71. See generally PIERRE LEGENDRE, L'INESTIMABLE OBJET DE LA TRANSMISSION (1985).

Luhmann develops the notion of "interpenetration" as a system of amorous exchange. LUHMANN, supra
note 14, at 172-78.
72. HUCHET, supra, note 31, at 36.
value. In terms of Renaissance iconography, Justitia may be joined with Eros,

so that love may have its laws and the soul its jurisdiction.
IV. THE JURISDICTION OF LOVE
A. Lust in Ecclesiastical Law
Legal history acknowledges a jurisdiction of love only as an object of canon

law and a negative incident of the regulation of marriage. Without recapitulat-
ing the well-documented histories of ecclesiastical law's governance of sexual-
ity,73 I briefly introduce a few fundamental concepts to illustrate certain
characteristics of the legal space of relationship. The classical jurisdiction of
ecclesiastical law was the governance of the soul.74 The history of spiritualized
love, of agape or amor purus, and of its attachment to an eternal object, offers a
competing jurisdiction to the numerous orders of earthly love and heresies of
carnal desire.
Ecclesiastical regulation sought to maintain faith and a spiritual love of God

in the face of threats from concupiscence, the lure or insatiability of the carnal
realm. In its struggle against carnal excesses, ecclesiastical law predictably
considered feminine sexuality and lust threats; indeed, Isidore of Seville de-
fines the word femina as coming "from the Greek derived from the force of
fire, because her concupiscence is very passionate: Women are more libidinous
than men."75 Ecclesiastical regulation of sexuality, therefore, focused on the
tension between spiritual love and carnal lust as represented by the temptation
and seduction of the feminine: "[W]oman's love in general is accused of ever
being insatiable; put it out, it bursts into flame; give it plenty, it is again in
need; it enervates a man's mind, and engrosses all thought except for the pas-
sion which it feeds."76 The ideal of femininity was thus Virginity and most
particularly for Tertullian, it should be veiled or, in later terms, shamefaced.77
73. E.g., PETER BROWN, THE BODY AND SOCIETY: MEN, WOMEN, AND SEXUAL RENUNCIATION IN
EARLY CHRISTIANITY (1988). Nietzsche still provides the strongest, or most antagonistic, philosophical
critique of Christian repression. FRIEDRICH NIETZSCHE, THE GENEALOGY OF MORALS, in THE BIRTH OF
TRAGEDY AND THE GENEALOGY OF MORALS (Doubleday 1956) (1913); see also FRIEDRICH NIETZSCHE,
Morality as the Enemy of Nature, in TWILIGHT OF THE IDOLS (1915). For a poetic approach to Nietzsche,
see IRIGARAY, supra note 61.
74. Ecclesiastical courts distinguished spiritual from temporal rule through laws and pleas quae ad
regimen animarum pertinent (which relate to the regulation of the soul). JOHN GODOLPHIN, RE-
PORTORIUM CANONICUM OR, AN ABRIDGEMENT OF THE ECCLESIASTICAL LAWS OF THIS REALM CONSIS-
TENT WITH THE TEMPORAL: WHEREIN THE MOST MATERIAL POINTS RELATING TO SUCH PERSONS AND
THINGS AS COME WITHIN THE COGNIZANCE THEREOF, ARE SUCCINCTLY TREATED 96 (London, Atkins
1687) (1678); see also J.-F. SENAULT, DE L'USAGE DES PASSIONS (Paris, Fayard 1987) (1641).
75. 2 ISIDORE SAINT OF SEVILLE, ETYMOLOGIAE bk. XI, 42-43 (Jose Oroz Reta & Manuel-A.
Marcos Casquero trans., Madrid, Biblioteca de Autores Christianos 1982). For a later example of wo-
men's perversion, see FERRAND, supra note 52, at 263-65 (discussing "whether the [malady of] uterine
fury is a species of lovesickness").
76. ST. JEROME, Against Jovinianus, in THE PRINCIPAL WORKS OF ST. JEROME 346, 367 (W.H.
Fremantle trans., New York, J.J. Little & Co. 1893). For an excellent discussion of this theme, see
generally SALISBURY, supra note 12 (examining how early Christian views of sexuality and gender roles
shaped men's and women's approaches to chastity).
77. Tertullian, On the Veiling of Virgins, in 4 THE ANTE-NICENE FATHERS: TRANSLATIONS OF THE
WRITINGS OF THE FATHERS DOWN TO A.D. 325, at 27, 27-33 (Alexander Roberts & James Donaldson
eds., Charles Scribner's Sons 1905) (1885) (presenting historical and theoretical rationales for the veil-
The feminine should look down or look away so as neither to tempt nor to
fascinate the eyes of men. The self-effacing virgin was the paradigm of spiritu-
alized love. She negated, within the laws of faith, the heresies that preached
sexual freedom and the power of women.78
It is equally in this context of the condemnation of a sexuality which inter-
feres with both faith and thought, with law and reason, that the ecclesiastical
jurisdiction explains the necessity of distance, masks, and asceticism, to the
relationship between, and within, the sexes. Such asceticism, veiling, or blind-
ness to the body and its sensuality consequently informed the law. The patristic
limitation of sexuality to reproduction appeared gained varied expressions in
both ecclesiastical and secular law.79 In relation to the church's law and its
forum internum or inner court of conscience, the proscription of lust and im-
pure thought stems from the dual offenses of adultery and idolatry, the latter
representing an internal manifestation of the former. Other rules, such as defa-
mation, regulated women's reputations, maintaining both the symbolic and the
proprietary values of sexual continence. If a man called a woman a "whore," a
suit for slander would lie in the ecclesiastical courts; whereas, if slander con-
cerning a woman's reputation hinders her marriage prospects, she may sue
either at common law or in the spiritual courts.80 Both options indicate that the
regulation of sexual relations was governed by a law of images that veiled
women's sexuality and was designed to introduce an indifference of appearance
and an asexuality of bodies.81 By extolling virginity, chastity, and the divinity
of procreation, the law legitimized and institutionalized sexual repression.
Denigration and punishment of the sin of lust, whether real or imagined,
also influences regulation of other forms of sexual incontinency, such as forni-
cation, lechery, incest, polygamy, and "all unlawful company of man and wo-
man."82 This tradition of asceticism infuses secular law by way of three types
of denial: the blindness of justice; the hostility toward writings more figurative
than the cold, dead letters of legal text; and the conscious separation of law
from the domestic sphere, defining all nonmarital sexual relations in terms of
ing of virgins); JUAN LUIS VIVES, A VERY FRUTEFUL AND PLEASANT BOOKE CALLED THE INSTRUCTION
OF A CHRISTEN WOMAN, Jiva (Rycharde Hyrde trans., Londini, Henry Wykes 1557), microformed on
History of Women (Research Publications Inc.) (discussing shamefacedness).
78. The single most common tenet listed in the Black Catalogue of Heretics was that "Lust and
Concupiscence, which, [according to the Pelagians, for example,] is naturally in us, is good, and nothing
in it whereof we need be ashamed." GODOLPHIN, supra note 74, at 576.
79. See BROWN, supra note 73, at 84-102 (1988); see also BRUNDAGE, supra note 38.
80. GODOLPHIN, supra note 74, at 516-17.
81. Renaissance writings often debated the indifference of the feminine soul, namely its indist-
inguishability from that of the male. But indifference of the soul had further implications for law,
making it impossible to distinguish the male and female bodies in legal terms. See, e.g., IAN MACLEAN,
THE RENAISSANCE NOTION OF WOMAN: A STUDY IN THE FORTUNES OF SCHOLASTICISM AND MEDICAL
SCIENCE IN EUROPEAN INTELLECTUAL LIFE 60-61 (1980) (discussing JOHN CASE, SPHAERA CIVITATIS
40-41 (1588)). Personality was an indifferent feature of an abstract corporeality; sex was no more than
an image: Whether depicted as an attribute or a lack, an icon or an idol, a status or simple absence from
the symbolic realm, sex made no concrete mark on the tablets of law.
82. RICHARD COSIN, AN APOLOGIE: OF, AND FOR SUNDRIE PROCEEDINGS BY JURISDICTION ECCLE-
SIASTICAL, OF LATE TIMES BY SOME CHALLENGED, AND ALSO DIVERSLY BY THEM IMPUGNED 30
(London, n.p. 1591).
incontinency, if not perversion or abnormality. If law is the principal form of

serious social speech, encapsulating both the values culture endorses, as well as
the transgressions which threaten its criteria of civility, then the sphere of rela-
tionships and of sexual exchanges, inside and outside of marriage, inhabit an
opaque zone of cultural neglect: They exist in law only as offenses or as indi-
ces of propriety.
B. The Domestic Jurisdiction and Love
The laws governing the image lie at the base of the modem legal tradition,
requiring interpretation not simply as forms of governance of the appropriate
forms of worship, but also as mimetic images of woman's appearance within
the social. Woman's image in the social context forms the basis for another
jurisdiction of love with both ecclesiastical and secular regulations: the juris-
diction of domesticity, of the "iconomy," or the domain of private law, in
which images of woman circulate between father, husband, and son. Again, in
this context, law defines relationship and affectivity not in terms of subjectivity
or desire, but in terms of possession, prohibition, and power. If we take just
one early instance, that of the literature concerned with what William Perkins
dubs the "christian oeconomie,"83 it warns against choosing a wife by virtue of
her beauty. The eyes were to express the "inward chastity of the mind" and so
were not to rest upon the surface of things, nor to be attracted to any idolization
of the body or face:
Thou may'st not trust too much to thine eyes (which are many times but a
false pair of spectacles) .... Some women are like painted cloth; look on one
side, and thou seest Virgins, Virtues, Queens; but on the other, nothing but
patches and rags: And then what match has thou made, when thou has gotten a
picture to thine eye; and a poison to thine Heart? Golden chains and silken
snares.84
Inner affinity, rather than external gaze, should govern external relationships;
unity of the soul should take precedence over bodily pleasure. Consequently,
domestic rules confined relationships of love to their reproductive function.
The domestic code silenced not only women's sexuality but also women's
speech. The sixteenth century instruction book for Christian women depicted
silence as "the noblest ornament of a woman" adding curiously: "Thou arte
none attourney of lawe ... nor pleadeste not in courte .... Holde thou thy
peace as bowldly as other speake in courte."85 Domestic silence complemented
83. WILLIAM PERKINS, CHRISTIAN OECONOMIE: OR A SHORT SURVEY OF THE RIGHT MANNER OF
ERECTING AND ORDERING A FAMILIE, ACCORDING TO THE SCRIPTURES (T. Pickering trans., F. Kyngston
1609) (Univ. Microfilms Int'l) (emphasis in original).
84. M. GRIFFITH, BETHEL OR, A FORME FOR FAMILIES: IN WHICH ALL SORTS, OF BOTH SEXES, ARE
So SQUARED, AND FRAMED BY THE WORD OF GOD, AS THEY MAY BEST SERVE IN THEIR SEVERALL
PLACES, FOR USEFUL PIECES IN GOD'S BUILDING 256-57 (London, Bloome 1633).
85. VIVES, supra note 77, at Miiia. For further discussion of feminine silence, see generally
GEORGE FOX, CONCERNING SONS AND DAUGHTERS, AND PROPHETESSES SPEAKING AND PROPHECYING, in
THE LAW AND THE GOSPEL 1 (London, n.p. 1661), microformed on Early English Books, 1641-1700
(Univ. Microfilms Int'l) (discussing "womens learning in silence, and also concerning womens not
speaking in the Church").
the subordinate, or accessory, status of woman, who functioned primarily as an

adjunct and subject of her father or husband. Distinguishing woman from an
"attourey of lawe" parallels her alienation and silence in the jurisdiction of
law with her silence in the domestic jurisdiction of love.
The domestic jurisdiction of love recreated the hierarchical relation be-
tween sovereign and subject in assigning identity within family relationships.
Faith, fidelity, and desire reproduced the Church, the ecclesiastical common-
wealth, and the male line. Where secular law talks of love, it does so in the
context of political love and the "ghostly power"86 by means of which the sov-
ereign should nurture his or her subjects. The crown was depicted thus as hav-
ing an internal jurisdiction, it was to act as specula pastoralis, and was to be
"nursing father" or "nursing mother" to the polity.87 It was to care for the souls
and the "peace inwardly" of the subjects or members of its realm. Such love of
power or political desire is depicted as incommunicable or inalienable, expres-
sive both of divine jurisdiction and the function of attachment.88 While the
roles and places of political love may be internal, they are subject to a law of
distance, nondisclosure, and dissimulation. Formulated in negative terms and
directed in silence beyond the body towards an incorporeal and eternal object,
such attachment is striking in its emptiness: Distance is kept for a reason; what
cannot be loved may only be worshipped. The body politic, unlike the body
human, must remain an abstraction.
Both the ecclesiastical and domestic jurisdictions of love define amorous
relation either as sin or as something which cannot be communicated or directly
addressed. Love of an object is reflected in its creation; thus, love is not only
an objectification, but an act of narcissism, a self-marriage offering escape from
the body and its temporality. This narcissistic, escapist feature of Christian,
patristic love is most relevant to the jurisdiction of the courts of love and there-
fore merits brief commentary. In many ways, the jurisdiction of love demon-
strates remarkable hostility toward the body and toward love in its temporal
forms. Love is an illusion induced by the false surfaces of mundane things-
particularly women: "For if someone wears a mask, is he not trying to hide the
total absence of a face? To cover over the desertion of his body? To lure into
the abyss one who is deceived by the mere appearance of life?"89 The masked
subject of Christian love directs that love to an object external to the world and
beyond time, implicitly characterizing it as an unconscious and irrational act:
"[I]f your only love is for eternity, why stay on this earth? If pleasures and
mortifications, for you, are perpetually bound together, why don't you give up
living? If birth amounts to a beginning of death, why drag out the agony?"90
Perhaps inevitably, the earthly failure of spiritualized amorpurus and its inabil-
ity to attain the eternal-and external-object of desire, paved the way for a
86. ROGER COKE, ELEMENTS OF POWER & SUBJECTION: OR THE CAUSES OF HUMANE, CHRISTIAN,
& LEGAL SOCIETY 21 (London, G. Bedel & T. Collins 1660) (Univ. Microfilms Int'l).
87. The term "nursing fathers" comes from id. at 43.
88. Id. at 43-44.
90. Id. at 23.
new jurisdiction in the courts of love, a legal space which regulated the more
compromised, yet more compatible, amor mixtus.
C. The Jurisdiction of Courtly Love
Unlike the ecclesiastical and domestic jurisdictions, the tradition of courtly

love, which contextualizes the jurisdiction of the courts of love, relates love to
the body, and thus to mortality, through the themes of fidelity and infidelity. In
one celebrated judgment, the Court of the King of Behaigne considers the ques-
tion whether a Lady whose lover dies suffers more than a knight whose unfaith-
ful lover takes a new ami.91 The court rules "that this knight suffers more than
this lady, and that his soul is in greater anxiety."92 The judgment explicitly
relies on terms of reason and justice, acknowledging the continuing emotions
and relations of both thwarted lovers' experiences. Though atypical, such emo-
tional concerns are proper considerations of justice, allowing the court to distin-
guish the position of the Lady whose lover has died from that of the knight
whose lover has been unfaithful:
Since she will not see him again, it will happen that [she will be made to]
forget him; for the heart will never love anything so much that it won't forget it
after separation.... [T]here's no woman or man alive whose love is so blame-
less, if he's caught by the amorous flame, who does not love the body much
better than the soul. Why is that? Because Love comes from carnal affection
93
For the knight, by contrast, separation and forgetting are impossible; his
love's continued presence stirs his emotions, and, as the court observes, "he
who is nearest the fire burns the most."94 His soul and life are most endan-
gered; beyond his current folly, grief, and delirium, he will also suffer an unre-
lenting jealousy.
The judgment of the Court of the King of Behaigne illustrates a number of
significant features of the law of love. One principal feature is an inversion of
the ecclesiastical jurisdiction. Although codified by a cleric and originating in
the monasteries, the judgments of love, the regulae, and the praecepta amoris
all equate amorous relationship with human love, acknowledging passion and
its bodily effects.95 The difference emerges in a series of substitutions. First,
courtly love supplants the eternity of the ecclesiastical jurisdiction with the
temporality of worldly relationships and carnal desires. The Court of the King
of Behaigne's judgment explicitly focuses on, and exalts, the anguish of the
91. See GUILLAUME DE MACHAUT, LE JUGEMENT DU RoY DE BEHAIGNE (n.d.), reprinted in LE

JUGEMENT DU ROY DE BEHAIGNE AND REMEDE DE FORTUNE (James I. Wimsatt & William W. Kibler
eds., 1988), at 124-25 (introducing the question for judgment).
92. Id. at 148-49.
93. Id. at 144-47.
94. Id. at 146-47.
95. For historical and theological background on courtly love, see generally C. STEPHEN JAEGER,
THE ORIGINS OF COURTLINESS: CIVILIZING TRENDS AND THE FORMATION OF COURTLY IDEALS 939-1210
(1985) (studying the institutions and values which laid the foundation for the rise of courtly literature,
especially in Germany); JEAN MARKALE, L'AMOUR COURTOIS OU LE COUPLE INFERNALE (1987) (using
history to demonstrate courtly love's challenge to traditional, Christian views of women).
living over fear of death. Second, whereas the ecclesiastical jurisdiction's sub-
limation of love to an other-worldly end emphasizes the illusory character of
temporal love, the judgments of love and the regulae amoris directly address
the worldly and bodily qualities of amor mixtus.
Courtly love's recognition of the physical character of love is not without
precedent: Bernard of Clairvaux succinctly stated that "we are carnal, and born
of the concupiscence of the flesh; thus it is necessary that our love begin with
the flesh."96 A significant feature of the tradition of courtly love therefore is its
mixture of profane love with sacred affection, passion with everyday life.
Whatever the theological interpretation of this mixing of spiritual and temporal,
and whatever its relation to the patristic conception of the role of the feminine
and of the soul, the regulae amoris offer strikingly temporal and physical
guides to emotional states.97 Some regulae take the form of descriptions. Rule
15 tells us that "every lover tends to grow pale when his partner looks at
him."98 Rule 16 observes that "[t]he heart of a lover beats fast at the sudden
sight of his beloved."99 By Rule 23, we learn that those in the throes of love
find it hard to eat or sleep.100 The emotional conditions of blush or palpitation,
attenuation or disturbance, excitation or fear, all signify spiritual states; the
rules complement a sense of the practical with an indication of the ethical im-
port of lovers' physical responses. The code of love is also a phenomenology
or symptomatology documenting the physical expressions of what Renaissance
theorists would later term erotic mania, lovesickness, or love melancholy.101
The law of courtly love prescribed concrete remedies for love, in addition to
establishing the imaginary domain within which that sweet sickness could de-
velop and gain expression through sighs and pallor, tears and words, letter writ-
ing, dreams, and other contracts.
Another consistent theme of the regulae acknowledges that love is both
fascinating and obsessive. Rule 30 states that true lovers always have the im-
age of their beloved before their eyes,102 and Rule 24 dictates that "[E]very act
of a lover is bounded by the thoughts of his beloved."103 Similarly, by Rule 25
the true lover regards nothing as good but that which pleases his or her lover.'04
Such obsession or fascination not only defines the corporeal recognition of the
state of love, but also indicates a fidelity that belongs to the flesh. Rule 12
states that a "true lover in his affection desires the embraces of none other than
his partner";105 yet, fidelity of the flesh is not fixed, and under Rule 17, "new
love forces the old to give place."106 Love waxes and wanes,'07 should always
96. Bernard de Clairvaux, quoted in MARKALE, supra note 95, at 19.

97. CAPELLANUS, supra note 1, at 283, 285 (listing all of the regulae in English).
98. Id. at 283.
99. Id.
100. Id.
101. E.g., FERRAND, supra note 52.
102. CAPELLANUS, supra note 1, at 285.
103. Id. at 283.
104. Id.
105. Id.
106. Id.
107. Id. (Rule 4).
be true to itself ("[a] lover extracts from an unwilling partner bitter love"'08),
and should be entered into with caution and attention to the ethical character of
one's beloved, since "[h]onesty of character alone makes a man worthy of
love."109 According to Rule 29, "[t]he man affected by excessive sensuality is
usually not in love."110 While many of the regulae concern entering into and
maintaining relationships of love, Rule 19 recognizes that "[i]f love diminishes,
it soon fades and hardly ever gains strength."11l
One final noteworthy feature of the regulae or code is its recognition of the
strict temporality of love and consequent imposition of lovers' duties consistent
with that position. The tradition of judgment concerns reality and hence ac-
commodates the contingency of love. According to Rule 2, there is no love
without jealousy; and, by Rule 21, "[t]rue jealousy makes the feeling of love
grow."112 Love exists within an economy of fear and of jealousy, and one
consequence of such an emotional context is that love ends. The regulae state
clearly that love should end only for good reason,113 such as by virtue of an-
other love or the extinction of passion. Should such circumstances arise, the
rules instruct the lover to remain bound to the former love for two years and
refrain from other relationships.14 Thus, the rules govern the beginning, the
maintenance, and the ending of relations of love with ethical, as well as prag-
matic, prudence. Love ends, but it cannot simply be abandoned; even epic love
moves on, but only with good reason, and never without paying its debts to
sorrow and to lust.
The significance of the jurisdiction of courtly love lies not in the consis-
tency of its rules, nor in their applicability as a code. Instead, the uniqueness of
the regulae, and the judgments from which they are collated, emerges from an
ethical casuistry of relationship and of sexual exchange. Rather than denying
the orthodoxy, morality, or reality of passion and love, the regulae address the
kinds of practical and ethical problems faced by lovers, as well as by partici-
pants in every remotely emotionally invested relationship. It is not, therefore,
the contents of the regulae that are so striking but rather their willingness to
confront the demands of intimacy, the ethics of relationship, and the beginning
and ending of love. The casuistry of love strives for a certain justice in rela-
tionships, a justice that requires, at a minimum, that serious social speech con-
front relations between lovers and acknowledge love's power and its passion as
worthy of something more than simple designation as irrationality or sin. In the
jurisdiction of courtly love, in contrast to ecclesiastical or domestic jurisdic-
tions, love is no longer silence, lack, or madness; the judgments of the courts of
love release the sexualized reality historicism fights hard to repress. In this
sense, the regulae amoris work towards the notion of a jurisdiction that does
108. Id. (Rule 5).

109. Id. (Rule 18).
110. Id. at 285.
111. Id. at 283.
112. Id.
113. Id. (Rule 8).
114. For an interpretation of Rule 7's analogous treatment of widowhood as the breakup of an
amorous relationship, see MARKALE, supra note 95, at 80.
justice to intimacy and recognizes that relationship is always predicated upon

the differing subjects and subjectivities engaged in exchange. Although tradi-
tionally concerned with amour lointain and the nonconsummation of love, the
judgments nonetheless permit a conception of law that governs affectivity and
adjudicates disputes concerning proximity, the body, and the power, as well as
the devastation, of amorous engagement.
V. JUDGMENTS IN THE CAUSES OF LOVE
The regulae and the previously discussed judgment of the King of

Behaigne both suggest an important justification for the jurisdiction of love:
The immediacy and intensity of love, as well as the psychic and physical
charge of relationships of love require symbolic mediation. The severity of
anguish in relationships and the reality of love's physical effects demand not
only consolation, but some species of justice appropriate to the nature and the
metaphysics of amorous disputes. Iconography frequently depicts Cupid, like
Justice, as blind.115 Most interpret Cupid's blindness as a parody of Justitia's,
suggesting that his blindness ignores reason and lacks the balance of the scales
of Fortuna.l16 A more interesting interpretation acknowledges Cupid's blind-
ness as a species of the aporia of justice. In affairs of the heart, and under the
laws of love, it is impossible to predetermine the causes or resolutions of spe-
cific wrongs, frustrations, or simple misunderstandings. The blindness of love
might be termed the law of nature, or rules of the "first Venus," as opposed to
what John Selden terms the prudential rules of "the second Venus"-namely
positive law.117 The law of the "first Venus" relates to the nature and contin-
gency, the force and violence of love; it effects a justice that recognizes the
difference of the "other" who comes to be judged.
A. The Aporia of Justice
The aporia of justice refers to the contradictions and complexities of the

real that render law ultimately undecidable. It surfaces in the incalculable mo-
ment when interpretation of the circumstances and persons to be judged dis-
rupts their singularity, suspending the rules and making new law.'18 More
important, however, than the hermeneutic character of justice is the classical
link between justice and love within the natural law of the "first Venus"-what
115. Absent from classical Greco-Roman iconography, Cupid's blindness first surfaced in the
Middle Ages as a symbol of immorality, as opposed to the modem connotation of Cupid's blindfold as a
sign of playful irrationality. Similarly, the blindness of Justice is of recent origin and the product of
humanistic, rather than medieval or Classical thought. ERWIN PANOFSKY, STUDIES IN ICONOLOGY: HU-
MANISTIC THEMES IN THE ART OF THE RENAISSANCE 105-09 (Harper Torchbooks 1962) (1939).
116. Marie Collins, Love, Nature and Law in the Poetry of Gower and Chaucer, in COURT AND
POET, supra note 42, at 113, 120 ("Cupid carries Fortune's scales which heed no reason, and his blind-
ness shows his judgments to be worthless ... .").
117. SELDEN, supra note 56, at 11 (emphasis added).
118. This is the theme of Jacques Derrida, Force of Law: The "Mystical Foundation of Authority,"
11 CARDOZO L. REV. 919, 961-73 (1990) (Mary Quaintance trans.). Derrida's theme borrows much
from the work of Emmanuel Levinas. See generally EMMANUEL LEVINAS, TOTALITY AND INFINITY: AN
ESSAY ON EXTERIORITY (Alphonso Lingis trans., 1979).
John Gower's epic poem Confessio Amantis terms the "lawe of kinde."'19 The
laws of love belong to a nature that is only partially accessible to humanity; it is
visible as a movement of the sensitive soul and as a law of physical being. The
aporia of justice in relation to love, in figurative terms the relation of Justitia to
Cupid, is the gap separating two distinct orders of law. In the language of
medieval scholasticism, "[l]ove is a stronger law unto itself";120 it lays down
its own rules, and suspends the criteria of justice by judging each case anew.
Yet, the courts of love and their judgments also recognize that some ephemeral
justice within love's own law can be taught, inculcated, or judged as a fixed
ethics of relationship and as a style of life. In this sense, the blindness of Cupid
and Justitia represents the reciprocal distance between two laws, the subjectiv-
ity and the singularity of their respective judgments. The casuistry of the courts
of love and their written judgments endeavor to fold the laws of one Venus into
those of the other, attempting to transcend the phantasmatic character of the
relation of love and bridge the abyss that separates two hitherto incompatible
jurisdictions.121
Courtly love's aporia of justice is the inevitable consequence of this conver-
gence of parallel jurisdictions and orders of law. Their conjunction is their
blindness; their union is their difference. This theme of convergence through
contradiction finds ample expression in the maxims of love stating that nothing
is further from love than duty, or that following rules and observing limits is
the antithesis of love, which is "without contract and without hope of re-
turn."122 Contemporary theorists have explored the role of love and the rule of
law in a variety of forms: Niklas Luhmann stresses the paradoxical character
of love and the improbability of its communication;123 Luce Irigaray finds mili-
tancy in love's impossibilityl24 and H6lene Cixous embraces the hedonistic law
of living, of "another reason, another logic" or "other scene."'25 However, the
question remains: How are we to understand the jurisdiction and judgments of
the courts of love as something more than illusions banned from the city, or
distant and veiled sites of the other, of the feminine, beyond the apprehension
of any manifest or positive law?126 How do we reconcile the distance of amour
119. 1 JOHN GOWER, THE ENGLISH WORKS OF JOHN GOWER 36 (G.C. Macaulay ed., 1970) (1390).
For a discussion of Gower's vision of love, see FRANCES MCNEELY LEONARD, LAUGHTER IN THE
COURTS OF LOVE: COMEDY IN ALLEGORY, FROM CHAUCER TO SPENSER 62-79 (1981).
120. BOETHIUS, THE CONSOLATION OF PHILOSOPHY 74 (Richard Green trans., Bobbs-Merrill Edu-
cational Publishing 1962) (524).
121. Jean-Claude Milner describes the relation of language to love as an "impossible conjunc-
tion." JEAN-CLAUDE MILNER, FOR THE LOVE OF LANGUAGE 120-22 (Ann Banfield trans., Macmillan
1990) (1978).
122. 1 LE BOULANGER, MORALE GALANTE OU L'ART DE BIEN AIMER 99 (Paris, 1669); see also
LUHMANN, supra note 14, at 68 ("Love only comes into being when one exceeds what can be demanded
and prevents a legal entitlement to love from ever coming about.").
123. E.g., LUHMANN, supra note 14, at 26 (describing passion as the primary symbol of the me-
dium of love).
124. See note 49 supra and accompanying text.
125. CIxous, READINGS, supra note 58, at 26.
126. As Irigaray explains:
Illusion no longer has the freedom of the city. It is no longer the companion, the adornment of
life. It fascinates like something beyond good living that must be expelled, wiped out of
lointain with the need for proximity of feminized values and sexuate rights
within the legal sphere? The answer lies in the judgments themselves.
B. Amour Lointain and Secrecy in the Judgments of Love

First and foremost, the judgments of love adopt the theme of distance, of
amour lointain, as a metaphor for the literal and metaphorical secrecy and hid-
denness of love relations. According to Rule 13, "[a] love does not usually
survive being noised abroad."127 Amoris praeceptum 6 encourages that love be
hidden and that lovers limit the number of their confidants, warning: "Do not
have too many privy to your love."'28 Similar rules pervade the Tractatus,
reiterating that lovers must maintain the secrecy of passion, engage only in
indirect communications through intermediaries or letters, schedule trysts at
night, and speak a language so obscure and encrypted as to be opaque to the
world.129 On their surface, such rules relate only to the extramarital character
of the relationship of love. But, secrecy within love is best understood in terms
of the homosocial economy of jealousy, the uniqueness of love, and the contin-
gent-and often unconscious-object of its choices. To allow love to be hid-
den, secret, dark, or distant is to accept the orders of men and of laws that
govern the polity-to them, the law of love is illusion, unconsciousness, or
excess. The hiddenness of love is a radical metaphor for love's externality to
the public domain. Love suggests threat or transgression and is thus relegated
to the opaque and distant status of the exile or alien who yearns to cross the
border from the space of otherness inhabited by the lover. Bernard de
Ventadorn's famous expression "LB est mon d6sir" (there where my love is)130
captures a sentiment of alienation referring both to the separation of lover and
beloved and, more significantly, to the internal alienation of a desire which is
other to the subject who loves and remains unheard within. In more positive
terms this alienation is the destiny of the lover no longer bound to a persona,
but rather to another space of relation that exists and endures between two
persons, yet cannot be defined by either one.
Judgment XIV addresses the theme of love removed from the individual to
the space of relation.'31 A lady has a lover who has gone abroad on an expedi-
tion (in all probability, a Crusade).'32 She has not heard from her lover for
three years and has no expectation of his return. She therefore seeks another
lover. A confidant of the first lover objects to the lady's infidelity and criti-
cizes her new love. The lady offers two defenses: First, she draws an analogy
to the rules of widowhood, namely that if a widow could remarry after two
years, any woman bereft of a living lover for a comparable period of time
everyday life. That illusion, in the final analysis, determines the laws of society cannot and
must not be seen.
IRIGARAY, supra note 61, at 99.
128. Id. at 116-17.
129. Id. at 271.
130. HUCHET, supra note 31, at 35 (quoting Bernard de Ventadorn).
132. Id. at 263, 262 n.41.
should gain the same concession; second, she explains that, throughout his ex-
tended absence, her lover has not sent a single message, letter, or other sign,
despite the availability of messengers and the relative ease of communication.
The Court of the Countess of Champagne heard the dispute, rendering judg-
ment against the woman along the lines of two themes of courtly love: com-
mitment and discretion. Pursuant to Rule 8, "[n]o man should be deprived of
love save for a most compelling reason."133 Thus, the lady could not desert her
lover solely on the ground of absence-she would also need to plead defi-
ciency of his love or allege his infidelity. Furthermore, the absent lover's fail-
ure to write letters or send messengers was judged an act of great wisdom:
"[H]e can entrust this secret of his to no stranger. If he had sent a letter with
the contents hidden from the bearer, the secrets of his love could easily have
been spread abroad by the wickedness of the messenger or by his elimination
by death on the way."'34
In doctrinal terms, Judgment XIV reverses the order of jurisdictions. The
order of love, specifically the ethic of relationship, merits priority over practical
concerns and desires and must endure across the longevities of the public
sphere. Love struggles against distance and delays in the mail because the do-
main of love is not grounded in geography or "law terms."'35 Its jurisdiction
floats on desire and its law expresses an unconscious temporality. A common
theme in the judgments is love's rebellion against, or subversion of, established
orders of reference and of the normative constraints imposed by state law and
its functional and bureaucratic systems of communication. Both the letter and
its carrier become emblems of the amorous subversion of public rationality and
the proprieties of communication. Letters are constantly lost; bearers of letters
betray and are betrayed; missives are reinterpreted, mistranslated, or delivered
to the wrong address. In each instance, the letter suggests another hidden order
of meaning with corresponding relations, attachments, feelings, and laws.'36
The letter signals desire and belongs to a jurisdiction of love that respects the
domain of faith and speaks the language of the soul. Its norm operates beyond
the homosocial realm of municipal law, embracing the uncertain narrative and
emotive duration-the being-of relation.
In a more contemporary idiom, the letter symbolizes the possibility of unre-
quited love: The envelope might remain sealed, the letter purloined, or the
133. Id. at 283.

134. Id. at 263. Judgment XXI makes the same point in a ruling that lovers who write letters
should never inscribe their names, nor stamp letters with their own seals, unless they have secret seals
unknown to anyone else: "By such action their love will always be preserved undamaged." Id. at 271.
135. A "law term" is a temporal measure designating when the law, i.e. courts, will be in session.
Term time was called "Dies Juridicos; Vacation, Dies Feriales." SIR HENRY SPELMAN, OF THE LAW
TERMS: A DISCOURSE (London, Gillyflower 1684), microformed on Wing: Early English Books 1641-
1700, STC II Unit 25, Reel 25 (Univ. Microforms Int'l). Whereas the principal feature of modem legal
time is delay, expediency dictated procedure in the courts of love: Cases were heard when pleaded.
136. My favorite example of miscommunication concerns a woman nearly fluent in Latin, who
chose lovers for their Latin skills. Her husband's inability to read Latin prevents his discovery of her
other life. JEAN DONNEAU DE VISE, LES NOUVELLES GALANTES, COMIQUES, ET TRAGIQUES 67-75
(Slatkine Reprints 1979) (1680). Other striking examples appear in FRANCOIS CALLIERES, NOUVELLES
AMOUREUSES ET GALANTES (Paris, Gabriel 1679).
message might be lost en route to its destination. It is a case in the domain of

communication of what Lacan terms amor interruptus, or suspension of the
message.137 According to Derrida, this species offatum epistolarum or nonar-
rival, illustrates:
that a letter can always-and therefore must-never arrive at its destination.
And ... this is not negative; it is good, and is the condition (the tragic condi-
tion, certainly, and we know something about that) that something does ar-
rive-and that I love you. Who would I have loved, otherwise? My family,
perhaps, starting with my father.138
This nonarrival connects to waiting and to the desire to determine an "ad-

dressee who might always, by chance, not arrive."139 This uncertainty is not
fortuitous or merely playful; the structure of forgetting and of going astray, of
multiple destinations, and of "destinerrancy"'40 are all conditions of secrecy,
enhancing the probability of successfully hiding an amorous letter in the public
hands of the post. Such also, of course, is the structure of relationships and of
love. They must recognize that the unconscious-be it eros or libido-is not
fully determinable nor capable of being entirely known.
If secret letters, lost letters, and letters never sent hold value in the courts of
love, it naturally follows that public proclamations should bring condemnation
upon the boastful lover. In Judgment XVIII, a certain man, from the worst of
motives, publicizes the most intimate secrets of his love.141 The ladies of a
specially convened Court of Gascony unanimously lay down a perpetual decree
that the knight be denied all hope of love thereafter: "He should continue to be
an object of derision and contempt in the whole court .... If any woman
should ... defy these ladies' statutes, she should for ever be subject to the same
punishment ... ."142 The knight's betrayal of the arcana amoris, or secret of
love, subjected him to the amorous equivalent of excommunication.
This judgment confines love's authenticity to the space and language of
relationship.143 The secrecy of love constitutes a property held jointly between
equals. Love's secrecy is, in effect, its claim to its own law. The defendant
transgresses or betrays that authenticity of relation. Secrecy or particularity of
the jurisdiction of love is not merely a feature of its illusory or imaginary sub-
ject matter, nor is it devoted to the heretical character of the pursuit of love.
Instead, secrecy is a condition of domicile within love's jurisdiction; discretion
137. LACAN, supra note 25, at 152.

138. JACQUES DERRIDA, THE POST CARD: FROM SOCRATES TO FREUD AND BEYOND 121 (Alan
Bass trans., University of Chicago Press 1987) (1980).
139. Id. at 191.
140. I borrow this term from Jacques Derrida, For the Love of Lacan, 16 CARDOZO L. REV. 699,
702 & n.7 (1995). Destinerrance is a pun: "the French word for 'addressee' is destinaire, and so one
noun for 'addressing' would be destinairance, which is a homonym for destinerrance . . . and so the
compound noun destinerrance literally translates as destination erring,' or 'destiny wandering.'"
142. Id.
143. This theme is common in later judgments of love, such as those reported in D'AUVERGNE,
supra note 15. In one example, a woman lays a complaint against her chambermaid for reporting her
"frolics" with a long-term lover to her husband. The High Court of Love in Paris rendered judgment
against the chambermaid for revealing the secrets of love. Id. at 82-88.
informs choice of law. In furtherance of secrecy, lovers approached the courts

of love anonymously and disputes were tried in camera.'44 Secrecy of process
and privacy of communication did not, however, intimate any literal inaccessi-
bility of this legal jurisdiction of love. In fact, the courts of love depended
upon communication of their decisions and observance of the regulae to main-
tain order within love. Rather than a barrier, secrecy was a means of accessing
the transgressive character of the jurisdiction of love, a psychic order in which
the object of desire is always obscure, while scarcity determines the value of
love within an economy of jealousies. Secrecy, furthermore, encodes the limits
of relationship, marking the inevitable indeterminacy of choices of love.145
The ultimate uncertainty of love and the inexplicability of love choices in-
fuse another prominent theme of courtly love-jealousy. Secrecy within the
practice of love institutes a fear of losing love, a possibility of jealousy which is
quite explicit in Rule 28: "The slightest suspicion forces a lover to entertain
dark thoughts about his beloved."146 At the same time, Rule 21 adds that
"[t]rue jealousy makes the feeling of love grow."147 Jealousy underscores the
unconscious character of love which the regulae both recognize and transgress.
Amour lointain is a form of object-choice that unconsciously repeats the early
structure of love-"the desire to have something back, which had once ex-
isted."148 Whether based on attachment or narcissism, the theory of object-
choice reveals the unconscious and so secret character of love as a limit within
which the courts of love can be used to rethink and recuperate the ethics of
laws determining the dual loss of self and subjectivity inherent in falling in, and
out, of love.
C. Judgments of Love and Sexuate Rights
The judgments of the courts of love deconstruct the varying epistemologies

of love secreted in amour lointain and its affects. The secrecy of relationship is
placed side-by-side with the visibility of judgment. Such procedural openness
offers a striking homology between the determinations of twelfth century wo-
men's courts and contemporary feminist concerns. Both acknowledge the inev-
itable convergence of the public and private spheres, recognizing the
unconscious influence of love on law and law on love. Most significantly, both
courtly and contemporary philosophers of women's law demand the feminiza-
tion of rights. Recent French feminist jurisprudence, as well as francophile,
Anglo-American feminist legal theory,'49 contends that social justice requires
144. CAPELLANUS, supra note 1, at 271 (Judgment XXI). Thus, for example, under later legisla-
tion, litigants would be identified only by a chosen color. LA COUR AMOUREUSE, supra note 39, at 41.
145. In Freudian terminology, the secrecy of love quite possibly repeats the trauma of the bed-
room scene and the child's discovery of its parents' sexuality. Secrecy here represents repression and an
inability to return to that scene of trauma. On that primal scene, see SIGMUND FREUD, THE INTERPRETA-
TION OF DREAMS 623-24 (James Strachey trans., 1965).
147. Id.
148. THEWELEIT, supra note 22, at 9 (emphasis in original).
149. I refer here to French theorists Luce Irigaray, see e.g., notes 33 and 49 supra, and H6elne
Cixous, see notes 58 and 65 supra, and American writer Drucilla Cornell, see note 51 supra.
legislation of a civic personality with correspondingly sexuate rights for the

feminine. Predicated upon feminine difference, the argument demands political
and juridical acknowledgement of the existential force and personal importance
of intimate relationship, of "[l]'amour entre nous,"150 as both a public and
private phenomenon. Luce Irigaray argues for "objective laws that will organ-
ize the relationships between women, and between women and men.... In the
absence of civil laws which positively define their real rights and duties, wo-
men only have subjective criteria by which to refer to themselves"-mere
opinion without objective force or social truth.151 For Irigaray, the personal is
juridical, the unconscious a jurist, and the instantiation of legal rights a direct
and objective establishment of the feminine within the symbolic. Ironically,
her radical legal reformulation bears striking resemblance to the jurisdiction of
love instituted centuries before through the courts of love.
A delineated code of feminine rights demands bifurcation of the traditional
conception of legal personality, so as to recognize both the duality of the sexes
and that (heterosexual) relationship occurs between the spheres of sexual differ-
ence. This sexuate space of exchange between two lovers (whether man and
man, woman and woman, or man and woman) becomes the focus of radical
legal theory as the site of relationship-the imaginary domain, irreducible to
existing legal categories and unbound by any extant unity, identity, or singular-
ity. As Irigaray observes:
We do not have a civil law concerning actual persons, and first and foremost
men and women .......... There is no definition of woman as woman in the
Code Civil, nor is there anywhere else any definition of man as man. Man and
woman are nowhere defined as sexual identities ... but as neutral individuals
152
Irigaray elaborates upon rights appropriate to the feminine, and so also to the
relationship between the sexes, in terms of rights of speech, aesthetic expres-
sion, public representation, institutional space, maternity and welfare provision,
and freedom from exploitative images and sexual commodification.153 Such
150. IRIGARAY, supra note 49, at 29. For an excellent discussion of this text, see Alain Pottage,
Recreating Difference, 5 LAW & CRITIQUE 131 (1994).
152. Id. at 43, 205.
153. LUCE IRIGARAY, Comment Devenir des Femmes Civiles?, in IRIGARAY, supra note 58, at 53,
56-58, 74-78 (Irigaray argues for a political ethic of the feminine subject defined in terms of the value
and the difference of the feminine. In broad terms Irigaray argues for specification and protection of
cultural, economic, spiritual, and legal domains expressive of feminine difference.); LUCE IRIGARAY,
Droits et Devoirs Civils pour les Deux Sexes, in IRIGARAY supra note 58, at 80, 82-90 (Irigaray uses the
story of Antigone to depict the power of the feminine in both history and law. Aside from specific
rights-to public space, means of expression, and economic independence as well as symbolic free-
dom-Irigaray argues that cultural understanding of economic exchange should be matched by a com-
parable understanding of interpersonal exchange); LUCE IRIGARAY, How Can We Create Our Beauty?,
in JE, TU, NOUS: TOWARD A CULTURE OF DIFFERENCE 107, 107-11 (Alison Martin trans., Routledge
1993) (1990) (exploring the feminist aesthetic); IRIGARAY, supra note 49, at 18-36, 202-20 (elaborating
both the absence of a civic and hence juridical definition of the feminine and the appropriate-and
appropriately imaginative-forms that such an identity might take); LUCE IRIGARAY, Your Health:
What, or Who, Is It?, in JE, TU, NOUS, supra, at 101, 101-05 (exploring the social, political, and cultural
implications of motherhood and women's procreative freedom).
codification provides symbolic value and political substance to feminine rights,

building into law a conception, as yet lacking, of the temporality and the sub-
jectivity of relationship. Through the symbolic affirmation of feminine differ-
ence, Irigaray proposes not only to revalue the feminine within public space,
but also to introduce law into the socially unconscious terrain of sexual rela-
tionship. In this latter respect, Irigaray is most radical in formulating utopian
rights to transform both literature and law through a militancy of the impossi-
ble.154 Aesthetics, histories, philosophies, literatures, and sciences in a femi-
nine genre, the right to positive public representation, to spirituality, and to half
of institutional space, all constitute serious challenges to the ruling jurisdiction
and order of law, which is predicated upon the unity and singularity of its
(predominantly masculine) sources.
In contrast to Irigaray's expansive and legally extraordinary, if somewhat
indeterminate, rights proposals, French jurist Francine Demichel adds concrete
delineations to her advocacy of sexually explicit rights. Like Irigaray,
Demichel offers a powerful critique of the asexual and disembodied rights of
established laws.'55 In her terms, law needs to reintroduce subjectivity into
legality through a sexuate and temporalized, pluralistic model of legal rights
appropriate to "lived time, to actual time, to the time of life."'56 Her particular
concern is with laws that can apprehend rupture and passage, fluidity and possi-
bility, rather than simple power: "Law already knows the concepts of identity,
system, and unity. But the space in between, movement, mixing or crossing,
that which evolves and changes, the complex agency of things, lie outside of
legal understanding. . . . Nomadic, mobile, uninhibited, women have not yet
constructed a legal symbolism"157-nor instituted any sphere of rights with
significant social force. Once law incorporates the domain of relationships and
expresses the social significance of desire and sexuality, women can rewrite the
socially unconscious and contingent terms of the gynaeceum, the contingency
of the traditionally feminine private sphere, creating a new legal symbolism of
public, feminine rights.
Rather than promote disruption or emphasize the feminine in legal con-
sciousness, Anglo-American feminist jurisprudence has attempted to legislate
sexuate, feminine rights within pre-existing models of state law, proprietary
rights, and gender hierarchy. Rather than develop a distinct jurisdiction with
radical procedures, Anglo-American theorists tend to adapt extant rights and
claims to novel subjectivities. One contemporary example is Jane Larson's
proposal for a tort of sexual deceit.158 Her argument, like those of French
feminist legal theorists and the twelfth century judges of the courts of love,
concerns the symbolic value, and the political and juridical thought, that culture
invests in sexual relationships. Larson reinvigorates the historic tort of seduc-
154. See text accompanying notes 49-51 supra.

155. Demichel, supra note 50, at 151-67.
156. Id. at 164 (emphasis in original).
157. Id. at 166-67.
158. Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit' ": A
Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374 (1993).
tion159 by analogizing it to an action for misrepresentation inducing sexual ex-

change.'60 Both contract and tort law have long recognized a cause of action
where a party fraudulently or negligently induces another's consent to a com-
mercial transaction by means of misrepresentation.'61 Larson's new tort ex-
pands this legal tradition to encompass cases where deception induces consent
to sexual intercourse.162 Thus, misrepresentation of physical condition (such as
infertility or general health), failure to disclose a sexually transmitted disease,
and abuse of a therapeutic relationship all form causes of action.163 Less cer-
tain grounds may lie in misrepresentations concerning intent to commit oneself
to a relationship or to marry.164 Aside from its ambiguous application to bor-
derline cases of promissory relationships, the tort of sexual deceit produces a
black letter rule: An action lies whenever a party "fraudulently makes a mis-
representation of fact, opinion, intention, or law, for the purpose of inducing
another to consent to sexual relations in reliance upon it."'65 The tort requires
proof of two key elements, deceit and reliance, and therefore imposes a mea-
sure of inherent restraint upon the availability of the action.166
The significance of Larson's tort proposal lies not in its details, but rather in
its application of existing law to a new area of human relationships.'67 In the
past, proposals for limited reform of law's relation to the private realm have
fallen far short of any principled remapping of the gynaeceum, or feminine
sphere, accepting the dominant legal conception of the private as a "domain
into which the King's writ does not seek to run."168 But, Larson's legal propo-
sal cuts through the public/private barrier in the same manner as does regula-
tion of pornography, which challenges the contingency of public/private
distinctions by revealing their inevitable convergence whenever established
legal hierarchy and political culture demarcate these spheres or draw the Carte
du Tendre.'69 At stake in Larson's vision is the justice of relationships and the
ethics of sexual expression. Cultural norms and legal arguments drawn from
concepts of privacy or domesticity preclude law from considering, evaluating,
159. See generally Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. (forthcom-
ing April 1996).
160. Larson, supra note 158, at 453-54.
161. VanderVelde, supra note 159.
162. Larson, supra note 158, at 453-54.
163. Id. at 404-11.
164. See id. at 464-65 (discussing Perry v. Atkinson, 240 Cal. Rptr. 402 (Ct. App. 1987) (dis-
missing a suit for fraud and deceit resulting from a broken promise to father a child).
165. Id. at 453.
166. Id.
167. I refer here to the immensely slow recognition of the effects of the wife's legal incapacity.
The common law rule which denied the wife either capacity in private law or status in public law still
lives on, despite minor reforms, in, for example, the nonrecognition of domestic contracts, in equity's
treatment of the private sphere, in its "tender treatment" of the wife, and in law's ambivalence toward
domestic violence and marital rape.
168. Balfour v. Balfour, 2 K.B. 571, 579 (1919) (refusing to acknowledge a cause of action, based
on mutual promises made in the ordinary domestic relationship, by wife against husband).
169. For a discussion of the legal distinction between public and private, see Nicola Lacey, Theory
into Practice? Pornography and the Public/Private Dichotomy, 20 J. L. & Soc'Y 93, 99 (1993) ("Dif-
ferent meanings and possibilities can be glimpsed or imagined which may gradually allow us to tran-
scend the oppressive social relations expressed in the current dichotomies.").
or judging sexual relationships. They entrench power in the hands of paterfa-

milias, of husband and father acting as "advocates, judges, Courts, sheriff's
officer and reporter."170 Rather than seeking feminine justice outside the male
legal sphere, Larson promotes challenge from within:
[S]kepticism of legal power is paralyzing; worse, it consigns women to an
existence outside of civil society, cut off from the system of public justice...
The argument that sexual matters are private carries with it the implication that
sexual relations are not political . . . [ceding] governance of that sphere to
private regimes of power.171
To counter the male monopoly over law, Larson's argument incorporates the
feminine within the existing legal structure, proposing feasible, reformist legal
resolutions through a specific species of misrepresentation. Yet, while her new
tort adds symbolic value to sexuate rights and powers, it fails to transform
law's inability to consider the domain of intimacy on its own terms.
The limitations of Larson's methodology bring us full circle to the imagi-
nary domain and the jurisdiction of courtly love. It is only possible to rethink
the plurality of sexual difference and the diverse jurisdictions that might dis-
place "the law" that governs disputes concerning the ethics and aesthetics of the
art of life, if we first conceive the space of relationship and of sexuality as an
independent temporality or site. The radicalism of relationship, the devastation
of desire, and the politics of love infuse the psychoanalytically informed juris-
prudence of American theorist Drucilla Cornell, who departs from the more
typical, American reformism to develop a novel and philosophically sensitive
conception of sexuate rights. In The Imaginary Domain, she argues that sexu-
ate rights demand recognition of a novel jurisdiction and object of law.172 The
juncture of civic identity and symbolic space for sexual identity is only possible
if law recognizes new forms of personhood as "minimum conditions of individ-
uation. ... [A]s a legal matter of equality, the equivalent bases for this chance
to transform ourselves into the individuated beings we think of as persons"
must be protected.173 Law is an imperfect instrument for the evolution of sex-
ual personality, thus transformation requires an alternative space for such
development:
170. Balfour, 2 K.B. at 579 (further describing the domestic sphere as beyond the purview of the
courts). For a discussion of the drawbacks of such a view by a late 17th century feminist critic of the
common law, see MARY ASTELL, SOME REFLECTIONS UPON MARRIAGE OCCASIONED BY THE DUKE AND
DUTCHESS OF MAZARINE'S CASE; WHICH IS ALSO CONSIDERED 38-39 (London, John Nutt 1700) (Univ.
Microfilms Int'l).
A Man enters into Articles very readily before Marriage, and so he may, for he performs no
more of them afterwards than he thinks fit.... For Covenants between Husband and Wife,
like Laws in an Arbitrary Government, are of little Force, the Will of the Sovereign is all in
all.
Id.
171. Larson, supra note 158, at 435, 438-39.

172. See generally CORNELL, IMAGINARY DOMAIN, supra note 51. Corell defends a "feminist
view of legal equality ... in the emotionally fraught sphere of life we call sex." Id. at 1.
173. Id. at 5.
It is under my definition a project that demands the space for the renewal of the
imagination and the concomitant re-imagining of who one is and who one
seeks to become. Hence, my insistence on the imaginary domain as crucial to
the very possibility of freedom ... to transform oneself . 174
As Corell's vision suggests, creating a symbolic space where sexuate persons
can dream, imagine, or fantasize new forms of relationship is, at best, only
marginally a legal task. If law is to play any role in the imaginary domain, it
would require new procedures, novel jurisdictions, and diverse and distinct
forms of judgment and of rule. It would require, in essence, a legal system
designed along the lines of the courts of love.
The preceding array of contemporary concerns over the feminine sphere,
sexuate rights, and the domain of love suggests that a juridical discourse on the
politics of sexuality can yet learn something from Capellanus' Tractatus and
the judgments of the courts of love. At the very least, women's courts allow us
to imagine a certain "feminization" of law.175 The art of courtly love is, in
essence, an art of living and hence a political art. Even by classical criteria, the
politics of love is a legitimate object of social and legal inquiry; yet, at the same
time it represents alternative procedures, judgments, and rules to challenge the
existing legal hierarchy. The regulae brought ethics to love, justice to relation-
ship, and the laws of the "Second Venus" to both sexual and platonic relation-
ships.176 The tradition of courtly love fused literature and law, but also
betrayed its theological derivation in insisting that love was justice, a natural
law, a divine marking of the soul (vestigium divinae caritatis).177 The twelfth
century roots of such doctrine need not, however, predetermine the afterlife of
the courts of love. The surprising substantive similarities between their judg-
ments and contemporary feminist approaches to amorous deceit and exploita-
tion of feminine sexuality suggests that the tenets and methods of courtly love
endure.
D. Truth in Courtly Love
Because the jurisdiction of love concerns the governance of souls, it is con-

sequently and immediately bound to questions of faith and infidelity, honesty
and lying, sincerity and misrepresentation.178 The fifth of the twelve praecepta
conditions love upon honesty, commanding the lover to avoid all lying.179
While this principle of morality in the form of law may seem difficult to recon-
174. Id.
175. I derive this notion from Corell's analysis of Derrida's "feminization of language" as a
structural phase of overturning masculine discourse on route to neutralized terms. CORNELL, BEYOND
ACCOMODATION, supra note 51, at 95.
176. See text accompanying notes 115-117 supra. For a discussion on 12th century Augustinian
ideas of the Venuses, see Robertson, supra note 29, at 148-149; see also MARKALE, supra note 95, at 57
(citing R6gnier's work); Danielle Rdgnier-Bohler, Postface to LE COEUR MANGE: RtCITS ROTIQUES ET
COURTOIS DES XIIe ET XIIP SItCLES 330 (Danielle R6gnier-Bohler trans., 1979).
177. Robertson, supra note 29, at 148-49.
178. A common 14th century title for the Tractatus was Incipit de arte honeste amandi et de
reprobatione inhonesti amoris. CAPELLANUS, supra note 1, at 1.
179. Id. at 117.
cile with the required secrecy of love, it more importantly connotes good faith
in relationships and sincerity in sexual interactions. False love is therefore the
most heinous of the crimes before the courts of love.'80 However, the require-
ment of fidelity is more about speaking truth in love than it is about absolute
faithfulness in a modem sense. In a dialogue immediately preceding the judg-
ments, Capellanus is asked the question:
[W]hat if a man breaks faith with his lover, not with the intention of winning a
new love, but under the impulse of pleasure which will not keep its distance?
Supposing a convenient spot offers him an unknown woman, or a courtesan or
someone's maid in randy mood meets the lover I mentioned? Should he be
deprived of his partner's love if he sported on the grass with such a woman?l81
Capellanus answers: "[A] lover is not on this account adjudged unworthy of

his partner's love, unless he chances to commit such excesses quite often with
several women, to such a degree that excessive sexual license is presumed in
his case."182 Any implicit suggestion of hedonism is ethically qualified by Pre-
cept 3, which commands: "When a woman is appropriately joined to another in
love, do not knowingly try to seduce her."'83
Also advancing the theme of truth in courtly love are proscriptions against
slandering (Precept 9) and exposing (Precept 10) love.184 Truth facilitates the
civility of relationships. More importantly, it necessarily requires positive rep-
resentation-whether in speech or imagery-of women in the public sphere.
The practice of truth lends symbolic value and ethical constraint both to con-
ceptions of the feminine and to those of lovers of either sex. Regulations on
public depictions of women and love do not stem from individual rights of
property or reputation, but rather from respect for amorous communication of
the symbolic valuation and imaginative space intrinsic to love.
These themes of respect for the "other" and of fidelity and sincerity in rela-
tionship emerge in Judgment XII.185 An individual already joined in a suitable
love affair persistently seeks the love of a second lady, falsely claiming that he
is destitute of any woman's love. His persistent and urgent pleading succeeds;
but having obtained the love of the second lady, he then deceives her and re-
turns to his original lover. According to the Court of the Countess of Flanders:
This man, who has employed such fraudulent trickery, deserves to be deprived
of the love of both ladies, and he ought not to rejoice further in the love of any
180. For discussion of this point, see MARKALE, supra note 95, at 34-35; cf IRIGARAY, supra note
61, at 12.
Too long have I been held back by the thread of compassion. I wanted a better destiny for
you-and me. How is it possible, from the weight of his destiny, to unburden the man who
submits to it?
Moving on is surely the road to take when love takes such a road. And surely this
farewell is the sign of love. Opening your horizon again to a more distant coming.
Id.

182. Id.
183. Id. at 268-69.
184. Id.
185. Id. at 261.
lady of worth. We believe that he is at the mercy of uncontrolled pleasure, and

this is wholly hostile to love ....186
The court adds that women should take every precaution to avoid deception by
men's amorous fraudulence, but where a woman is genuinely deceived, she
will suffer no blame: "[N]o one finds it easy to test the inner loyalty of man, or
his heart's inner secrets, and so great prudence is often found deceived by ver-
bal pretence."187
Far from consigning the question of deceit to the ruses of love or to the war
of the sexes, Judgment XII indicates a direct perception of the ethical limits of
seduction, as well as of the public need to judge those who gain consent by
illicit means.188 The questions posed to the courts of love were not confined to
the internal realm of the libido, nor could they be hidden behind the veil of
object-choice or sheltered from public judgment by doctrines of privacy, do-
mesticity, or family values. The ethics of love, like the morality of behavior
within relationships, belongs to the art of living, propagating a civilized lifes-
tyle that respects persons of both sexes. The development of sexuate rights
entails treating both genders in accordance with the reasoned principles of love
and the imaginary spaces of desire which engender and nurture such rights.
Desire and relationship dominate much of social life, and the aesthetics and
ethics of relationship are always present within human social proximity. Be-
cause interactions between and among the sexes occupy a vast territory of pub-
lic space and emotional life, the courts of love deemed them worthy of a degree
of judgment, discrimination, and legal analysis comparable to the treatment of
the other institutions and relationships governed by law.189 The first, and ap-
propriately subversive, task of the courts of love was to reject society's trivial-
ization of relationship and denigration of desire.
E. The Ethics of Relationship and Courtly Love

A further, remarkably feministic judgment usefully illustrates the courts'
substantiation and legitimation of the space of the imaginary and the value of
desire. In Judgment XIII,190 the Court of the Countess of Flanders heard the
following plea: A man utterly without moral worth or human value was ac-
cordingly refused love by all women. He nonetheless sought the love of a
certain woman with such importunity that she granted him hope. By her moral
teaching and counsel in the art of love and lovemaking, this lady so improved
this man's style and manners that he attained "the highest worth of character
and deserved praise for his general honesty."191 Now trained as a man of
honor, living and loving in accordance with the precepts of love, he attracted
186. Id.
187. Id.
188. In this respect, the judgment parallels Larson's tort of sexual deceit. See text accompanying
notes 158-171 supra.
189. For two sympathetic analyses focusing on the trobairitz, a small group of women trouba-
dours, see LAURIE A. FINKE, FEMINIST THEORY, WOMEN'S WRITING 29-74 (1992); Marianne Shapiro,
The Provencal Trobairitz and the Limits of Courtly Love, in 3 SIGNS 560-71 (1978).
190. CAPELLANUS, supra note 1, at 261-63.
191. Id.
the eye of another lady who seduced him. The man succumbed, paradoxically
forgetting his teacher's generosity and pains. In this respect, the issue before
the court is analogous to more contemporary debates over implied or explicit
contracts for domestic labor, or for recompense of emotional services.192 The
court held:
All will surely approve that the first lover should be able to recall her part-
ner from the embraces of any other woman, for by her diligent toil she has
raised him from the depths of wickedness to the highest peak of courtliness and
honest behaviour. One believes that the woman has reasonable rights to this
man, for by her wisdom and sedulous toil she made a man formerly devoid of
moral character into one more honest and adorned with thoughtful manners.193
The decision's fine and improbable casuistry results from the degree of
value it accords to the first lover's labors as well as to the ethics of relationship.
To teach a man to love is an extraordinary achievement and must be honored as
such. To adorn a man with an awareness of the needs of others is so precious
an exercise, and so unlikely an outcome, that law should reward it; society
should symbolize, through legal entitlement, the value of the woman's
achievement.
The decision is not without a certain element of irony-the education fails

at the moment the man takes a second lover, revealing that relationship endures
only so long as the fidelity and honesty it nourishes. In one sense, the man is
made to pay for the time and the love he took, but contrary to moder legal
assumptions,194 that payment is not grounded in possession, or some other exis-
tential proprietary right. It insists upon a recognition of the other, a justice of
proximity, and a species of art made into law. The judgment also moves to-
wards addressing the question not of individual right, but of rights between two
parties, or entre deux. The recurring challenge for the courts of love is to deter-
mine how the rules of love can bring justice to relationships when love exists
within a time and intentionality of its own. That labor, rather than simply
chance or fate, underlay the relationship in Judgment XIII clarifies the prob-
lem-namely how to construct and apply rules that recognize the contingent
duration of relationship, and within it, the subjectivities and intentionalitiesl95
of the parties to love. Unique and crucial to the justice of love is consideration
of a subjectivity that belongs to neither party but exists, nonetheless, between
them as an event-a libidinal, and thus juristic, exchange. In the court of love,
love in the time of object-choice is always potentially love in the time of law.
192. See, e.g., Joan C. Williams, Women and Property, in A PROPERTY ANTHOLOGY (Richard H.
Chused ed., 1993); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A
Proposalfor Creating a New Legal Status, 44 LA. L. REV. 1677 (1984); Carol M. Rose, Women and
Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992).
194. Contra Marvin v. Marvin, 18 Cal. 3d 660 (1976) (recognizing implied or explicit contracts
between nonmarried cohabitants regarding property division upon separation); O'Brien v. O'Brien, 66
N.Y.2d 576 (1985) (holding that a spouse's medical license constitutes divisible marital property).
195. On the two intentionalities bonded by relationship, see IRIGARAY, supra note 49, at 172. For
commentary, see Pottage, supra note 150, at 133-37.
Justice must accommodate the time and intentionality of love as a radical

emotion and as a desire that moves and changes the prior identities and pur-
poses of its subjects. Judgment consequently must recognize a space of rela-
tionship between parties that confers a property right of exclusion not upon
either individual as against the other, but upon the relationship as against the
world. The difference of such a justice resides in a fluidity or contingency that
can only judge according to the sudden and future-orientated acts of a subjec-
tivity created between two subjects: a mixing of subjectivities or "interpenetra-
tion," a space between, a space-a touch, caress, body, or bond-that is not of
itself but rather for the other. Judgment is not rendered according to the past
but is pegged to an event and anticipates the relationship's future: In the courts
of love, what is ethically essential and juridically distinctive lies not in the
relationship's present, but in its fuller, and more radical, "imaginary"
potential. 196
Another instance of love entre deux appears in Judgment XVI:'97 A man
arduously sought the love of a woman but had not yet spoken with her at any
length. Hoping to win her love, the man used a confidant to mediate their
relationship, "so that through his mediation each party might be able to dis-
cover more easily the wishes of the other, and reveal to the other with greater
secrecy their own; through the confidant, too, the love between them could be
more secretly conducted on a permanent basis."'98 After assuming his duty,
the confidant breaks his faith as messenger and presses his own interests as a
suitor. The woman improperly entertains his deceitful advances, "finally con-
summating love with him and fulfilling all that he asked."199 The original
suitor brings a complaint before the Court of the Countess of Champagne ask-
ing for a judgment on the confidant's fraud.
The Countess summoned sixty ladies to pronounce this judgment:
This crafty lover has found a woman who accords with his deserts, for she did
not blush to comply with this great crime. So let him enjoy the love he has
evilly gained, if this is his wish, and let her enjoy the kind of friend she de-
serves. But both must for ever remain sequestrated from the love of any other
individual ... 200
Having broken the code, both are banished from the domain of courtly love into
the isolated space of their amoral relationship.201 Both the size of the court and
the absolute character of its sentence, suspending the lovers in the purgatory of
their mutual affections, indicates the essential nature of this crime against love.
196. While the classical jurisdiction of conscience judged promises according to abstract, spiritual
criteria, its prospective methodology differed from that of the courts of love in that there was no recogni-
tion of bodies or of the unique subjectivities to be judged in unison. The canon law conception of
caritas governed the salvation of the individual soul, whereas the amor mixtus of the judgments of love
sought justice appropriate to the space between lovers.
198. Id.
199. Id.
200. Id.
201. Id.
The communicative integrity of the intangible space between lovers is at

stake in Judgment XVI; the relationship is conceived as a site of the message-
of the word, the love letter, the postcard. It is that space of meaning, that
distance of communication, which the confidant destroyed by shedding his role
as mediator to assume the guise of lover. In hermeneutic terms, the confidant
destroyed the text and stole the meaning of the message; and in so doing, he
obliterated the space of love, the imaginary address, the site of a message or a
caress sent to the other. In appropriating that which cannot be appropriated, the
confidant, like a lawyer, claimed to be someone he was not and could not be.202
The confidant's crime in modem terms is one of theft, but in the terms of
courtly love, his transgression rises to the level of sacrilege-attempting to
possess another's desire, to misappropriate the erotic substrate of the message,
to miscommunicate every signal that is sent.203 The sanctity of language and
communication in courtly love is similar to the myth of Babel: The desire to
communicate directly, to possess the message, to take over or to be inside the
other, destroys the very possibility of communication between ego and alter
ego by disrespecting and failing to address the other. To be in love is to take a
chance, to risk and embrace the dissolution of a prior identity. The risk of
eroticism takes the form of the communication or novelty of love, but it evapo-
rates along with the message when the proprietary space between lovers is de-
stroyed. The purloined letter in this instance returns the narrative to the realm
of mere property and its various institutions or, in Irigaray's formulation:
"When the lovers, male or female, substitute for, occupy, or possess the site of
those who conceived them, they founder in the unethical, in profanation. They
neither construct nor inhabit their love."204
POSTFACE
It is not the jurisdiction of the courts of love which is "curious and unu-
sual,"205 so much as the historicist detour by which they have been forgotten.
In this article I offer a somewhat radical or wild interpretation of the judgments
in an endeavor to do justice to a literature and history of women's courts and
rules of love. It is an interpretation that seeks to imagine another jurisdiction,
one which is not bound by the contemporary dichotomies of public and private,
self and other. I willingly omit questions of class and of property, of objectifi-
cation and of idealization through which legal history fails to imagine, to admit,
202. The god of lawyers was traditionally Janus or Mercury and connoted both a messenger and a
thief. The lawyer "represented" but did so by stealing from one realm (the divine) and representing it in
another (the human). On Janus, and his Latin equivalent Mercury, see GOODRICH, supra note 18, at 10-
11, 36-37.
203. For a definition and discussion of sacrilege, see SIR HENRY SPELMAN, THE HISTORY AND
FATE OF SACRILEGE 1 (London, John Hartley 1698) ("Sacrilege is an invading, stealing or purloining
from God, any Sacred thing, either belonging to the Majesty of his Person, or appropriate to the Celebra-
tion of his Divine Service.")
204. LUCE IRIGARAY, The Fecundity of the Caress: A Reading of Levinas, Totality and Infinity,
"Phenomenology of Eros," in AN ETHICS OF SEXUAL DIFFERENCE 185, 187 (Carolyn Burke & Gillian C.
Gill trans., Cornell University Press 1993) (1984).
205. See note 24 supra and accompanying text (quoting Lacan).
or to value the eroticism of communication and the indeterminacy of relation-

ship. The reason for my omission is simple: A history of the jurisdiction of
love and of women's courts is only possible if it takes as its subject matter a
space that exists between-and in transgression of-contemporary conceptions
of individual rights and their proprietary uses. By assuming there is something
of social value and of legal significance in the domain of intimate relationships,
a valuation of ethics emerges, recognizing that both the subject and its speech
are necessarily embedded in a desire, and a truth, exterior to any existing pro-
prietary right.
It would be possible, of course, to offer a more detailed and doctrinally
specific account of the courts of love. To do justice to their terms and substan-
tive rules would require a rethinking of the lawyer's conception of jurisdiction
and of the boundaries of law, subverting both the language of jurisprudence and
the temporal horizons of its rules. Such an endeavor would demand nothing
short of a new form of legal hermeneutics taking as one of its inspirations a
tradition of amour lointain that valued literature as well as law, eroticism as
well as finite possession, authenticity of relationship or the art of life and not
simply passive acceptance of contemporary institutional roles. In contempo-
rary terminologies, such an evanescent ground of sociality belongs to the un-
conscious, to object-choice, and to the therapeutic discourses of social
adaptation. Those discourses, steeped as they are in the metaphors of lack and
otherness, compromise and impossibility, fail to aspire to a social understand-
ing of the space and desire of relationships or the motives behind those actions
that touch the soul. The "laws of Venus" are omnipresent in society, even if
they occupy a sphere that our legal culture refuses to recognize. Lack of under-
standing is no excuse for continuing to ignore the laws of love. In fact, our lack
of comprehension is the strongest reason to endeavor to do justice to the teach-
ings of the courts of love.
In more profane terms, it is possible to venture three concluding hypothe-
ses. First, the courts of love and their various judgments were decisions by
groups of women. While it is tempting for that reason to view their judgments
as simple reversals of the established order of masculine rule and of its laws of
male succession, I prefer to interpret their work as that of a jurisdiction existing
alongside numerous other geographically or topically specific jurisdictions, to
the margin of what became the common law.206 Close reading of the later
history of the courts of love does not support the notion of inversion, but rather
suggests a forgetting or repression of this feminine jurisdiction. The law of
nature, to which the judgments of love contingently belong, forms part of a
tradition of justice that formed the unconscious of doctrine; according to a clas-
sic civilian maxim, profane or secular law is the offspring of natural law, and as
such "is a portion of the mother's entrails."207 It carries its otherness and its
206. I have made this argument in relation to the spiritual jurisdiction in Peter Goodrich, Salem
and Bizance: A Short History of the Two Laws, 37 RENAISSANCE & MOD. STUD. 13 (1994).
207. SIR JOHN FORTESCUE, DE NATURA LEGIS NATURAE 240 (Chichester Fortescue trans., Garland
Publishing 1980) (1869); see also Peter Goodrich, Gynaetopia: Feminine Genealogies of Early Common
Law, 20 J. L. & Soc. 276 (1993) (discussing this maxim).
origin inside itself; it cannot escape the memory of its source of legitimacy just
as the child cannot erase its relation to its mother. That origin was law's only
real certainty, and hence it needed the most thorough repression. In this sense,
the narrative of women's courts is a submerged occurrence within the history of
women's law; it does not reverse, so much as it remembers or reinstates, alter-
native legal possibilities.
My second hypothesis concerns the art of life and "a law of the living" that
this history might suggest. The casuistry of the judgments of love concerned
the immediate and affective life of the subject. The courts' overwhelming con-
cerns were with issues of fidelity or faith and the consequent truth or authentic-
ity of relations within the parameters of a then-extant code of love. I offer one
final example. In Judgment V,208 the Court of the Countess of Champagne was
asked to decide a case in which a man had been the lover of a woman for a
considerable time. He had loved extravagantly and faithfully, taking great
pleasure in consummating that love. The woman, however, did not reciprocate
his affections. When he tried to leave, she endeavored to keep him in his for-
mer, loving condition. The court held that "[t]he attitude of the woman is ad-
judged quite reprehensible, for she wants to be loved yet refuses to love. It is
stupid for a person to demand brusquely from others what he utterly refuses to
bestow on others."209 The court condemned the abuse of fidelity, the misuse of
the occasions of love, and the inauthenticity of the woman's affection as crimes
against the relationship and breaches of the law of ethical living.
The judgment's emphasis on living ethically in the time of love suggests a
crucial difference between the procedures of the courts of love and those of
common law. While it would be easy to interpret Judgment V in terms of
opposition between interior and exterior law, affection and knowledge, such a
characterization reveals the limited horizons of contemporary jurisprudence.
The judgments discussed in this article may appear to concern the emotive and
private, the obscure and intimate, the subjective and merely personal, but such
second-class classifications simply reflect the value that we place on them. I
believe the laws of love represent, in their own right, something much more
lasting-and much less easily dismissed. They are an attempt to think through
the most pervasive, the most political, and the most immediate problem of so-
cial intercourse and institutional life, namely the relation between the sexes. It
is conceived neither as a war, nor as a power play,-it is a question not of
possession, but rather of reciprocal recognition and mutual right. If we per-
ceive the desire for truth in relationships as a feminine characteristic and rele-
gate the values of care, relationship, fidelity, and truth to a realm outside of
law, these moder choices do not challenge the viability of the judgments of
love so much as they condemn our contemporary institutions and legal
doctrines.
I will venture one final, more tentative hypothesis. I have argued that the
history of the courts of love neither simply inverts the legal tradition, nor masks

209. Id.
the power or domination of law. Rather, it recollects an aspect and possibility

of legal tradition which is not valued by contemporary doctrine, and conse-
quently is not recognized by legal historicism.210 In a parallel sense, the same
history of repression is enacted at a personal level in the repressed subjectivity
of the lawyer. An individual's entry into law-one's training as a lawyer-
institutes and reproduces a comparable blindness. Legal training teaches the
subject to separate the personal and the legal, demanding the repression of
emotion and the privileging of the objectivity of rules over the subjectivities of
truth-Aristotle's wisdom without desire.211 Moreover, it draws the subject
into a network of relations and an institutional environment modeled upon legal
definitions and valuations of persons, actions, and things. It is an environment
which, by its nature, is competitive, antagonistic, and frequently destructive.
The legal institution does not always capture the individual subject in his or her
entirety; many find escape, but that escape typically follows the historical argu-
ment of this article. It is my hypothesis that lawyers will tend to find love or
relationship elsewhere-either in a past that came before the law, or in a spec-
tral domain outside the law, tenuously, if not tenebrously, exterior to the indi-
vidual persona. It is a love sought elsewhere, a lawyerly amour lointain
attached to exteriorities, a byproduct of commodities, or of the mirroring func-
tion of status. In Freud's terms, such love is either pre-Oedipal, the repetition
of a primary attachment, or a species of narcissism. In whichever form, it is
likely to be unconscious unless the legal persona has had the advantage of
considerable therapeutic help.212 In the end, my analysis leaves one question:
If I give so much of my time to the law, how much of the law speaks through
me?
210. For an extended discussion of this issue in relation to the history of the mixed jury, see
MARIANNE CONSTABLE, THE LAW OF THE OTHER: THE MIXED JURY AND CHANGING CONCEPTIONS OF
CITIZENSHIP, LAW, AND KNOWLEDGE 89-95 (1994).
211. Panu Minkkinen, The Law-Giver's Place: On the Unethical Quality of Legal Wisdom, 2 Soc.
LEG. STUD. 445 (1993) (quoting ARISTOTLE, POLICS).
212. Particularly impressive on this theme is THEWELEIT, supra note 22, at 9-41.

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Stanford Law Review

Capellanus and the Judgments of Love

ing evinces a curious and compelling conjunction of casuistry5 and lifestyle, of

12. JOYCE E. SALISBURY, CHURCH FATHERS, INDEPENDENT VIRGINS 39, 46 (1991).

Capellanus in his Tractatus de amore.'5 While there is considerable contro-

The Tractatus is remarkably legal in character. It establishes both general

Their legally impossible-or, as I argue, their possible but, to contemporary

21. Id. at 175.

modern legal imagination from a space outside of the contemporary dichoto-

terms, the courts of love may be interpreted as the masculine unconscious,

II. COURTLY LOVE IN OTHER DISCIPLINES

In order to understand the courts of love as a meaningful referent for mod-

serious analysis of the courts of love to failure, to the status of a structural

35. Lacan, supra note 25, at 146, 148-49.

III. THE POLITICAL MILITANCY OF THE IMAGINARY DOMAIN

Luce Irigaray's "political militancy of the impossible"49 aspires to the most

changes distance brings. Only by blurring the boundaries, reinvesting in myth,

significantly, history's traditional negation of eros and of relationship, and its

67. Id. at 26 (discussing her approach to the work of Clarice Lispector).

71. See generally PIERRE LEGENDRE, L'INESTIMABLE OBJET DE LA TRANSMISSION (1985).

value. In terms of Renaissance iconography, Justitia may be joined with Eros,

IV. THE JURISDICTION OF LOVE

A. Lust in Ecclesiastical Law

Legal history acknowledges a jurisdiction of love only as an object of canon

Ecclesiastical regulation sought to maintain faith and a spiritual love of God

incontinency, if not perversion or abnormality. If law is the principal form of

B. The Domestic Jurisdiction and Love

the subordinate, or accessory, status of woman, who functioned primarily as an

C. The Jurisdiction of Courtly Love

Unlike the ecclesiastical and domestic jurisdictions, the tradition of courtly

91. See GUILLAUME DE MACHAUT, LE JUGEMENT DU RoY DE BEHAIGNE (n.d.), reprinted in LE

96. Bernard de Clairvaux, quoted in MARKALE, supra note 95, at 19.

108. Id. (Rule 5).

justice to intimacy and recognizes that relationship is always predicated upon

V. JUDGMENTS IN THE CAUSES OF LOVE

The regulae and the previously discussed judgment of the King of

A. The Aporia of Justice

The aporia of justice refers to the contradictions and complexities of the

B. Amour Lointain and Secrecy in the Judgments of Love

133. Id. at 283.

message might be lost en route to its destination. It is a case in the domain of

This nonarrival connects to waiting and to the desire to determine an "ad-

137. LACAN, supra note 25, at 152.

informs choice of law. In furtherance of secrecy, lovers approached the courts

C. Judgments of Love and Sexuate Rights

The judgments of the courts of love deconstruct the varying epistemologies

legislation of a civic personality with correspondingly sexuate rights for the

codification provides symbolic value and political substance to feminine rights,

154. See text accompanying notes 49-51 supra.

tion159 by analogizing it to an action for misrepresentation inducing sexual ex-

or judging sexual relationships. They entrench power in the hands of paterfa-

171. Larson, supra note 158, at 435, 438-39.

D. Truth in Courtly Love

Because the jurisdiction of love concerns the governance of souls, it is con-

Capellanus answers: "[A] lover is not on this account adjudged unworthy of

181. CAPELLANUS, supra note 1, at 241.

lady of worth. We believe that he is at the mercy of uncontrolled pleasure, and

E. The Ethics of Relationship and Courtly Love

The decision is not without a certain element of irony-the education fails

Justice must accommodate the time and intentionality of love as a radical

The communicative integrity of the intangible space between lovers is at

or to value the eroticism of communication and the indeterminacy of relation-

208. CAPELLANUS, supra note 1, at 255.