Table Of ContentTabula Picta
MATERIAL TEXTS
Series Editors
Roger Chartier Leah Price
Joseph Farrell Peter Stallybrass
Anthony Grafton Michael F. Suarez, S.J.
A complete list of books in the series is available from the publisher.
Tabula Picta
Painting and Writing in Medieval Law
Marta Madero
Translated by Monique Dascha Inciarte and
Roland David Valayre
Foreword by Roger Chartier
University of Pennsylvania Press
Philadelphia
Originally published as Tabula Picta. LLaappeeiinnttuurree eett ll’’ééccrriittuurree ddaannss llee ddrrooiitt mmééddiiéévvaall.
Copyright © 2004 Éditions de l'École des Hautes Études en Sciences Sociales
English edition copyright © 2010 University of Pennsylvania Press
All rights reserved. EExxcceepptt ffoorr bbrriieeff qquuoottaattiioonnss uusseedd ffoorr ppuurrppoosseess ooff rreevviieeww oorr sscchhoollaarrllyy
citation, none of this book may be reproduced in any form by any means without writ-
ten permission from the publisher.
Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4112
Printed in the United States of America on acid-free paper
10 9 8 7 6 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
Madero, Marta.
[Tabula picta. English]
Tabula picta : painting and writing in medieval law / Marta Madero ; translated by
Monique Dascha Inciarte and Roland David Valayre ; foreword by Roger Chartier.
p. cm. — (Material texts)
Originally published in French as: Tabula picta : la peinture et l'écriture dans le droit
médiéval, 2004.
Includes bibliographical references and index.
ISBN 978-0-8122-4186-0 (alk. paper)
1.Copyright (Roman law) 2. Law, Medieval. 3. Law and art—Europe—History—To
1500. I. Inciarte, Monique Dascha. II. Valayre, Roland David. III. Title.
KJA2438.I58M3713 2009
346.04'820902—dc22 2009023571
Contents
Foreword:TheThingsandtheWords vii
Introduction 1
Chapter1. DominiumandObjectExtinction 15
Chapter2. Accessio 28
Chapter3. Specificatio 38
Chapter4. Form,Being,andName 47
Chapter5. Ferruminatio, Adplumbatio 53
Chapter6. Factae andInfectae 67
Chapter7. Praevalentia 73
Chapter8. Pretium andPretiositas 76
Chapter9. ThePartandtheWhole 84
Chapter10. Ornandi Causa 89
Chapter11. QualitasandSubstantia 93
Conclusion 97
Appendixes 103
Notes 115
Bibliography 133
Index 139
Acknowledgments 143
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Foreword
The Things and the Words
Subtle and erudite, Marta Madero’s book is a contribution both
to the history of the property rights to artistic works and to the history of
ideas about material things. The corpus that she so meticulously analyzes is
that of the glosses and commentaries that medieval jurists consecrated to the
question of tabula picta, a notion inherited from Roman law and the terms of
which are seemingly simple: To whom does a painted tablet belong? To the
owner of the physical piece of wood on which an image is painted? Or to the
person who made the painting on that piece of wood? By extension, the same
question could be formulated in regard to writing and the parchment or any
other surface on which words had been inscribed.
It is thus possible to read Madero’s book in the first instance by placing
it in the genealogical longue durée of the definition of intellectual property
and its corollary, the construction of the figure or—to use Foucault’s formu-
lation—function of the author. Such a reading finds, in the writings of the
medieval jurists, the first formulations of a distinction made in the eighteenth
century and articulated with particular clarity by Kant between the book as
“opus mechanicum,” as an object belonging to whoever has acquired it, and the
book as discourse addressed to the public and remaining the inalienable prop-
erty of the author who has written it. In their way, the medieval glossators also
address the possible conceptual separation between works, considered in their
immaterial and continuing identity, and the multiple forms, whether simulta-
neous or serial, of their inscription and transmission. Such an understanding
of the book will see in the medieval distinction between substantial essence and
accidental forms the opposition, dear to practitioners of physical bibliography,
between “substantives” and “accidentals” and will recognize, as well, in the pri-
macy given to the painted work over the materiality of the surface on which it
is painted something like the concept of the “immatieral thing” framed in the
eighteenth century to designate the transcendence of aesthetic or intellectual
creations over their material existence. Such a reading of Madero’s book is
entirely legitimate but may, nevertheless, be misleading.
viii Foreword
For in fact, Madero’s book introduces us to an intellectual world that
is neither ours nor that of the eighteenth century, when the aesthetic and
legal concepts that have defined our modern discourse first came together.
The danger would be to subsume wrongly and unconsciously the reasoning
of the medieval jurists into the categories we have come to accept. For the
medievals, the purpose above all was to situate things—whatever they might
be—within a logical framework that allowed them to be described, catego-
rized, and placed in a proper hierarchical order. Physical evidence, shared
experience, the direct perception of natural or artificial realities are inade-
quate to this task because they are incapable of deconstructing and placing in
proper order the individual elements that nature or human art has brought
together into a single unit. Only juridical reasoning, which proceeds by way
of establishing distinctions, taxonomies, and hierarchies, is capable of trans-
forming the things before our eyes into manipulable categories that enable us
to determine their real identities, properties, and ownership.
Important consequences emerge from this, which oblige us to aban-
don our habitual way of thinking about things if we are to understand how
the authors whom Madero studies actually thought. For them, the painted
tablets or sheets of parchment covered with writing are objects that can be
comprehended only when one places them in the context of natural phenom-
ena or material productions that pose the same questions about the relation
between the parts and the whole, about the modes of uniting elements, or
about the hierarchy of the matrix to that which appears upon it. I will leave
to the reader the pleasure of discovering both the many subtle distinctions
between things factae and infactae, between accessio and specificatio or fer-
ruminatio and adplumbatio, as well as the multiplicity of opinions concern-
ing the definition of these categories and the way they are handled in legal
arguments. Madero’s analytic virtuosity here is astounding, as she guides
her reader through a universe of classificatory systems worthy of Borges. In
truth, these address a hugely difficult task: that of articulating the essential
reality to be decoded beneath visible appearances.
Madero thus takes the distinctions and categories of medieval law no
less seriously than Yan Thomas did Roman law or Alain de Libera and Alain
Boureau did Scholasticism; and her approach enables us to avoid two pit-
falls. The first would be to connect too closely the thought about the things
and legal procedural practice. The subjects of juridical argument are fully
concrete, to be sure, as they concern financial transactions, the transfer of
goods, and property disputes. But the construction of the categories that
enabled the jurists to think about things is built upon a foundation of ancient
Foreword ix
and scholastic philosophy. It is governed neither by the urgency of the judg-
ments nor by contractual relations between patrons and painters or copy-
ists. The contractual matters that engage them take up none of the logic
encountered in discussions of the tabula picta and focus, rather, on deadlines
to be observed, payments to be made, and the details of the commission,
such as the materials to be used, the iconography of the image, the typology
of the writing. By focusing on the conceptual architecture of the glosses and
commentaries rather than on the legal proceedings and decisions, Madero’s
approach runs counter to that by which historians, no doubt bored by the
formalism of legal studies, have privileged actual judicial proceedings, legal
practice, and the adjudication of disputes. She by no means intends to deny
the importance of such studies, based as they are on the archival records of
law courts. But her purpose here, as in her other published work in French
andSpanish,1 is to recall that in every period—and quite spectacularly so in
the Middle Ages—law consists first of all in the conceptual description of
acts, things, and people and that it is only upon this abstract description that
legal judgments can be based.
A second eror would be to think that painting and writing were being
considered by medieval jurists in aesthetic or intellectual terms. In the dis-
cussions concerning tabula picta, writing is always to be construed in its most
material sense. It is inscription, ductus, and copy. It is never understood in
the sense of literary composition even if the words écrire and écrivain have
been used in French to describe authors as well as scribes since the fourteenth
century. If the painting of wooden tablets has a different status, and one that
implies the recognition of an original production, it is nevertheless not taken
for a work of art. Its value is acknowledged according to the degree to which
a rough material is transformed into a new object. The tabulapicta as well
as the written parchment belongs to the world of material objects, and not to
that of aesthetic creation or symbolic representation.
The responses of the glossators to the question of the ownership of
painted tablets or written objects varied from one school, period, or opinion
to another, and Madero knowledgeably reconstructs the typology and chro-
nology of these differences. She shows that however diverse they were, these
responses were necessarily situated within a limited range of theoretical pos-
sibilities, defined by the logic of accesio and significatio. The first determines
which of two materialities joined in a single object appertains to or incor-
porates the other, thus establishing the proprietary right. For some jurists,
faithful to the Institutiones of Justinian, painting incorporates the wooden
tablet, thus granting proprietary rights to the painter, while writing for its
