Performing Custom

Chapter 4 focuses on the relationship between writing and authority within common law. It argues that Philip Sidney’s Old Arcadia reflects on debates about whether to codify England’s unwritten customs that were taking place during this period. He makes use of the tension those debates generate to explore the nature of Renaissance authorship. From the idea of unwritten custom, rooted in practice and performance rather than code and decree, Sidney develops an authorial persona that runs counter to our usual association of the Renaissance artist with loss and melancholy: the aporia or doubt that Sidney’s narrator creates throughout the prose romance and within its pastoral poetry allows him to construct a notion of authorship based on custom and rooted in a connection to an inaccessible past that, ironically, he has no desire to recuperate.

Forgetting Custom?

The final chapter explores the most extreme political usage of custom: to resist or even overturn a monarch. I argue that just as custom was invoked to justify popular rebellion during the sixteenth century, so too is it called upon to navigate their contentious staging in The Book of Sir Thomas More, a play that William Shakespeare is generally thought to have helped revise after its censorship, and Hamlet. I explore how the former play makes use of proverbs to recuperate rebellion from the charge of innovation while the latter play uses custom within a narratio, or description of offstage events by a messenger, to open up a space for the possibility of revolution, a concept and practice associated with breaking from the past. Drawing on political theology, this chapter contends that Hamlet discloses the possibility of custom’s enduring, generative power.

Inventing Custom

This chapter considers custom’s function in colonial conquest, juxtaposing England’s conquest-filled history, which emerges in Edmund Spenser and Gabriel Harvey’s debate about the imposition of classical meter, or quantitative verse, on English verse, with English attempts at expansion in Ireland, the subject of Spenser’s A View. I argue that their debate reveals the method by which the foreign becomes native via custom, a process that Spenser draws upon in order to justify his violent approach to conquering Ireland and imposing common law. At the same time, however, by exploring the history of Ireland’s equally customary Brehon law, Spenser reveals the difficulty of establishing linguistic—and therefore political—chronologies within a global history that stretches beyond the vexed borders of Ireland and England.

The Commonwealth of Custom in Thomas More’s Utopia

Thomas More sets the stage for fiction as a sphere in which to explore the constitutional promise of custom. This chapter argues that Utopia (1516) shares the same constitutional dispensation as England, since it is predominantly governed by custom rather than law. The chapter uncovers a remarkable similarity between the concept of legal custom in common law and of linguistic and cultural custom in the Renaissance humanist use of proverbs and commonplaces, which are ubiquitous in Utopia. I interpret this intersection of political and literary-linguistic custom as a means by which More ensures the commensurability of his native political institution with the classical tradition he sought to revive. The chapter reveals More’s awareness of the unstable boundaries of the concept of “common” in English law and continental humanism, a conundrum to which early modern writers would return over and again.

Introduction

The introduction offers a definition of custom as the basis of England’s common law and provides a lexicon of legal custom, including terms like time immemorial, the ancient constitution, consent, and commons, each of which contribute to the significance and power of custom as a legal concept. It argues that custom appealed to English literary writers who were experimenting with genre and form because of their society’s broad skepticism of novelty and thus it was crucial to ideas of Renaissance authorship. It situates the project within the larger body of work on early modern law and literature by showing how the latter can illuminate changes in the former. It further argues that the study of early modern law and literature should inform how we understand periodization because it offers different models of how the Renaissance understood itself and the past.

Conclusion

The conclusion explores the implications of custom’s centrality to Renaissance literature, as well as to the discipline of law and literature. First, it shows us that literary writers viewed their productions as a collective rather than singular endeavor over a long duration of time. Second, attending to custom requires us to see the political realm as indispensable to law and literature. Finally, it leads to a reconsideration of literary history and poetic and political periodization. That is, instead of modernity’s singular focus on novelty, custom’s vivid sense of the presence of the past demonstrates that different kinds, modes, and tempos of change can open rather than foreclose radical literary and political possibilities.

Cultivating Custom

Could women and non-elite writers participate in the poetics of custom? This chapter responds with a resounding “yes” by showing how Isabella Whitney’s 1573 A Sweet Nosgay immersed itself in the conceptual and philosophical world of common law. In particular, Whitney’s poetry draws upon and responds to the increased dissemination and popularization of knowledge about common law’s status as custom, while also posing challenges to that process. While nowhere in her volume does she mention the term custom, it is powerfully present in both the volume’s structure and in its poetics of the commonplaces and common places of Renaissance London in her mock last will and testament. Perhaps appropriately, it is a lower-class writer who is able to realize poetically the democratizing possibilities of custom’s literary properties.

Time Out of Mind

This chapter examines aspects of common-law custom crucial to early modern literary production. It sets the stage for understanding how a key concept of legal and constitutionalist thought shaped sixteenth-century literature, while this literature, in turn, transformed a legal-political concept into an evocative mythopoetics. It does so by focusing on a central aspect of custom that allowed for this relationship: the long duration of a practice, its supposed use since “time immemorial.” Temporality played a role not only in establishing the practice itself as a pattern, but also in legal education and professional knowledge about the practices that made up common law, often called “common learning.” Finally, “time immemorial” undergirded the increasingly political idea of the “ancient constitution.” This temporality was dynamic in nature and, as a result, it rendered custom and the ancient constitution a poetics that proved crucial for early modern literary writers.