Life may be a cabaret, but the law can be a circus
The on-going conversation between what people think should be the case and what people actually do
I remember as an undergraduate being fascinated by a clause in an early medieval European law code which specified that it is illegal to steal a woman’s clothes while she is bathing in the river, and then hide them so that she has to walk home naked. Apart from being a depressing reminder that the ‘high jinks’ of entrenched patriarchy are, indeed, very deeply entrenched, it struck me as exceedingly specific.
It was my first year doing a history degree and medieval law codes were a new and exciting goldmine for understanding an old and exciting world. I’d also never really thought much about law as a general topic, beyond particular discussions relevant to current affairs.
It was, therefore, a real ‘aha’ moment when I read an article about the difference between prescriptive law (laws outlining general ideas about what should and shouldn’t be allowed) and descriptive, or reactive law (laws reacting to something that has actually happened and describing what was done about it).
The boys who hid the woman’s clothes were fined, as I recall, and the salutary tale of their bad behaviour was preserved as law so that, if a similar case arose, the authorities would have some sense a) that we [the law-making society] all agree that this is not okay and b) that this is roughly how not okay we thought it was last time, in comparison to, say, cutting off somebody’s arm or stealing their sheep.
I’m no legal scholar, but laws are definitely part of the material I work with, and it turns out that most law - ancient, medieval and modern - is a mix of prescriptive and descriptive/reactive. And this makes sense, right?
Any society laying down official laws must already have quite a long history of more informal decisions about what is okay and not okay. And then, once those general principles are in place, people carry on being people and doing things that don’t really fit with those general ideas. Often, the legal sources have try to do both by drawing general points from specific cases.
Take this one, for example, issued by the Roman emperor Zeno in the fifth-century Mediterranean:
We order that no one shall be so bold as to monopolize the sale of clothing of any kind, or of fish, combs, copper utensils, or anything else having reference to the nourishment or the common use of mankind… Builders of houses or contractors…are absolutely forbidden from entering into agreements with one another, providing that where one of them is engaged to perform some work it cannot be done by another, or that one shall interfere to prevent another who has been employed to do it. Permission is hereby given to anyone to complete work which is unfinished and abandoned by another, without fearing to be subjected to expense by the latter, and to denounce all crimes of this kind without fear, and without being subjected to expense in court. Moreover, if anyone should venture to practice monopoly, he shall be deprived of all his property, and sentenced to perpetual exile.1
There is a pretty obvious general principle at work here, that people should not monopolise the sale of everyday stuff and that builders shouldn’t leave jobs unfinished then stop other builders from finishing them (or agree among themselves not to finish each other’s work), presumably so that the original builder can drive up the price from desperate customers, who really need not to have a hole in their roof, or whatever. However, the specifics hint at more descriptive law, i.e. things that actually went wrong and what was done about them.
It looks to me as if some unscrupulous traders were ripping people off over combs, fish and copper utensils in some very particular time and place. And, probably in the same town at around the same time (given that the law was passed about both issues) we could hazard a guess that cowboy builders were causing local homeowners enough problems that they petitioned the local Praetorian Prefect (apparently a man named Constantine), who then petitioned the emperor.
This was all very much in my mind this week because I have been applying for an employment visa for India (very exciting! A post of its own, coming soon…) and found myself looking directly at one of these cases where prescriptive law and descriptive law meet.
The right to an Indian employment visa is based on some general rules which, as far as I can see, are similar in lots of places: the person should have a job they are entering the country to do, they should be competent to do that job and there should be some reason why a foreigner should be employed rather than a citizen. So far, so prescriptive.
Then there are the exceptions. It is, for example, permitted to employ foreigners on slightly different terms than usual if they are (amongst other things):
Ethnic cooks employed by foreign Missions in India (not commercial chefs)
Foreign teaching faculty employed in the South Asian University and the Nalanda University
Circus artists2
Each of these has that feel of descriptive law, or - thinking as a historian - fossilised traces of specific moments in time.
I asked a colleague, who immediately said that the first category is almost certainly about making sure that foreign embassies can hire cooks from their home country to cook the kind of food that the diplomatic staff are used to, without having to pay them commercial rates. Fair enough. I haven’t checked. It wasn’t the exception that interested me most, but this tracks as an explanation.
The second one sent me looking at two very unusual higher education institutions. The South Asian University was founded in 2005 to pool the resources of all of the member countries of the South Asian Association for Regional Cooperation (SAARC: Afghanistan, Bangladesh, Bhutan, India, Maldives, Pakistan, Nepal, Sri Lanka). The idea was to create a shared centre of teaching and research excellence.
Nalanda University, meanwhile, started as an idea in 2007 and was officially inaugurated in 2010 as a resurrection of the 5th- to 13th-century centre of learning which had thrived in medieval Nalanda (in modern Bihar).
Both of these institutions were rooted in official international cooperation at a time, in the early 2000s, of conscious innovation in South Asian higher education. Enshrining legally their status as places of trans-national cooperation fits with that historical moment and the things these universities were (and are) intended to achieve.
The third exception also sparked a recollection for my colleague: apparently, in the 1970s, Soviet circus performers were big news in India, and lo, I discovered…
In 1964 ‘Gemini’ Sankaran, one of the pioneers of modern circus in India, took the first Indian delegation to the International Circus Festival, held in the USSR!
I ended up doing a lot more reading around the history of the circus in India, which began in the 18th century with ‘equestrian performers’, than I ever imagined. By the late 19th century circus was big business with multiple troupes all over the country, often hoovering up animals from the menageries of various local rulers and princely states, as these went out of fashion (both the menageries and, eventually, the princely states themselves).3
I haven’t (yet) been able to find the hard-copy proof I would want of the 1970s Soviet circus acts hypothesis, such as a nice printed programme proclaiming the Moscow Circus’s opening night in Pune, or similar. Nevertheless, I suspect it is there and the thing about new loose ends in a historian’s box of threads, is that you never know when one might suddenly go taut again, often when you’re looking into something completely different.
There is certainly plenty of evidence from the second half of the twentieth century for interest in circus performance and international collaboration between circuses inside and outside India. So, for a tangent that has nothing to do with my research, I am content, for now, that this explains why circus performers have their own exception to Indian visa law!
That hasn’t been the end of Indian circuses and the law, though, which brings me back to that bigger issue of prescriptive and descriptive legislation.
The circuses of India are under threat these days, because of further changes in the law. On one hand, the exception to visa law for circus performers came from a 20th-century moment when the popularity of circus acts was important enough to produce a descriptive exception to general law.
In 1997 and then 2011, on the other hand, circuses fell victim to two instances of prescriptive lawmaking. In 1997, the use of wild animals in entertainment was banned in India and in 2011 so was child labour. Both of these laws appear to respond to general principles, that wild animals are not toys and that children should not be made to work. Both create very specific difficulties for circuses.
Trained animals are not the only ways to keep people entertained at the circus, but ‘oooh, a lion/tiger/elephant!’ is a much cheaper thrill, from a purely logistical point of view (wages, equipment, prep time, etc.), than ‘ooh, a hugely complicated high-wire act with three fire-juggling acrobats!’ And fire-juggling acrobats are much easier and less expensive to train (from a purely practical point of view) if the training starts young, which ends up looking a lot like child labour. (None of this, by the way, is a comment on any of the morals encoded in any of the laws discussed.)
Reflecting on this brought me back sharply as my first encounter with the poor woman bathing in an early medieval European river. Legal sources so often like overhearing snatches on a bad phone line of a complex dialogue between how people think a particular society should look what people in that society actually do (and don’t do).
I’m guessing the lawmakers banning child labour in India in 2011 were not specifically thinking of circus performers, though the exception to the visa rules shows that other people, a few decades earlier, were. I guess the 1997 law about performing animals probably was thinking about circuses, and seeing them in a very different light to the people who made the visa exception.
The 1997s lawmakers, though, may not have realised that passing a law to protect animals might increase the burden on child workers in circus troupes, as acrobatic acts took up some of the slack.
Of course, what children can and cannot do for money, is a much bigger legal conversation, which stretches beyond either India or the circus. Think about youth-team football players in the big leagues of Europe and the US, or the new phenomenon of baby influencers (in some cases, millionaires before they can count their own fingers).
Maybe some future historian of circuses, or children’s rights, will collect up all the laws that currently exist about this issue, and the ones yet to come and write a book about child labour. Maybe some other historian will stumble on fragments of it, as I did, while doing something completely different, and take a momentary detour through time and space.
Either way, the wonderful thing about legal sources is that there will always be something to find because making law is a constant juggling act (sorry, couldn’t help it!). Between its lofty pronouncements and sometimes amusing everyday anecdotes, its unintended consequences and hairpin moral bends, it tracks imperfectly but wonderfully the real-life contradictions that arise when big groups of people try to figure out the theory and the practice of living together.