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1039
Law As . . .: Theory and Practice in
Legal History
Christopher Tomlins* and John Comaroff**
I. From Law and to Law as . . . ........................................................................... 1040
II. Normative Systems, Historical Descriptions ...................................................... 1045
III. Law, Metaphysics, Justice ..................................................................................... 1049
IV. Legal History With/Out Law? ............................................................................. 1055
V. Law, Dis/Enchantment, Culture ........................................................................... 1060
VI. The Law as Fetish, as Framework, as Grace ..................................................... 1067
VII. Terms of Argument, Realms of Discourse ...................................................... 1073
VIII. Conclusion............................................................................................................ 1078

Some twenty years ago, for another conference in which one of us had a
hand, the political scientist and co-originator of the field of American Political
Development, Karen Orren, wrote an essay entitled Metaphysics and Reality in
Late Nineteenth-Century Labor Adjudication.
1
The essay rehearsed arguments
Orren would elaborate in her book Belated Feudalism.
2

The metaphysics in Orrens title were those of the common law of master
and servant, based on custom and precedent . . . accreted and enforced in judicial
holdings. Undisturbed by democratic or industrial revolutions, the common laws
rules remained secreted in the interstices of the American Constitution, detached
from their original settings, placed in a framework of concepts, the reasonability of
which was defined through a process of exposition by professionally trained
intellects.
3
The reality, by contrast, was the material reality of the workplace,
which existed simultaneously in two moments: the ancient moment to which the
rules of master and servant corresponded, and the moment of the late nineteenth

* Christopher Tomlins is Chancellors Professor of Law, University of California, Irvine.
** John Comaroff is Harold H. Swift Distinguished Service Professor of Anthropology and Social
Sciences at the University of Chicago.
1. Karen Orren, Metaphysics and Reality in Late Nineteenth-Century Labor Adjudication, in LABOR
LAW IN AMERICA: HISTORICAL AND CRITICAL ESSAYS 160 (Christopher L. Tomlins & Andrew J.
King eds., 1992).
2. KAREN ORREN, BELATED FEUDALISM: LABOR, THE LAW, AND LIBERAL DEVELOPMENT
IN THE UNITED STATES (1991).
3. Orren, supra note 1, at 16061.
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century, when those same rules encountered oppositionstrikes, pickets,
boycotts, industrial violencewhich, for the first time, demonstrated that the old
principles no longer held.
4

Orren proceeded to connect that opposition to broader cultural currents at
work in the epoch, specifically the currents of pragmatism.
5
Kunal Parkers essay
in this issue describes their impact.
6
The last three pages of Orrens essay were a
virtual honor roll of the antimetaphysical clubthe intellectuals, public and
private, whose so-called revolt against formalism marks the advent of early
twentieth-century progressivism: William James, Charles Sanders Pierce, Oliver
Wendell Holmes Jr., but also John Dewey, Herbert Croly, Walter Weyl, Walter
Lippmann, Roscoe Pound, and many more.
7
Hand in hand, as it were, the labor
movement and intellectuals fashioned a wholesale transformation of American
politics and culture, a victory of latter-day materiality over antimodern
metaphysics that would furnish the ideational bedrock for the liberal politics of
the twentieth century, for its liberal legalism, and for their insistence that all
knowledge was historical and social.
Twenty years after Orrens essay and a century after the antimetaphysical
revolution, law as . . . stands, modestly, for a distinct intellectual moment; not by
any means another proclamation of a new currency over outworn forms, but
something rather different, a moment of reconsideration, a pause to contemplate
what the theory and practice of history might gain by rejoining metaphysics to
materiality.
I. FROM LAW AND TO LAW AS . . .
Of Genealogy and History
Law as . . . identifies the early twentieth-century revolt as the moment of
invention of law and, first mooted in Roscoe Pounds turn-of-the-century
distinction between law in the books and law in action, nurtured subsequently
in the bosom of realism, and thoroughly popularized by the law and society
movement.
8
Law and relies on empirical context to situate law as a domain of
activity. It explains law through its relations to cognate but distinct domains of
action (society, polity, economy, culture) by parsing the interactions among them.
9

Both the theory and the practice of contemporary legal history exemplify the

4. Id. at 161.
5. Id. at 171, 17273.
6. See Kunal M. Parker, Law In and As History: The Common Law in the American Polity,
17901900, 1 U.C. IRVINE L. REV. 587 (2011).
7. Orren, supra note 1, at 17275; see generally LOUIS MENAND, THE METAPHYSICAL CLUB
(2001); MORTON WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM
(Beacon Press 1957) (1949).
8. Christopher Tomlins, How Autonomous Is Law?, 3 ANN. REV. L. SOC. SCI. 45, 5962 (2007).
9. Id. at 4647, 6165.
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influence of law and in their resort to synchronic analyses of relational
conjunction and disjunction, to which they add diachrony in order to reveal the
effect of law, or to explain its reality, by assessing change in its relation to other
phenomena over time. Unsurprisingly, the animating hypotheses of twentieth-
century legal history embrace the same broad relational problematics that have
preoccupied twentieth century law and theory: instrumentalism, relative
autonomy, mutual constitutiveness, legal construction, autopoiesis, and
indeterminacy.
10

The shift to law as . . . suggests something else, something distinctive.
Concretely, it suggests that explanations of law are not to be found, either
necessarily or sufficiently, in its relations to other things. As Shai Lavi notes, with
justification, the shift affords an opportunity to think beyond long-familiar
Weberian categories and trajectories.
11
It is not determinedly programmatic, a
route to the next big concept, but open-ended (hence the ellipsis). Yet it would be
idle to pretend that law as . . . takes no position, that it is not historically
situated. Blithely unaware of it at the outset, the conveners of the conference
where the essays here were first presented have discovered that we are on a path
that others are also following. We find ourselves riding a wave, one reverberating
in both legal
12
and historical
13
scholarship.
The wave owes its existence to developments in both history and law. As to
the latter, it has never been more of a hypostatized construct than at present.
14

We return to this observation below.
15
But what of the former? It, too,
hypostatizes itself, though in a more limited sense, being a professional practice
with less instrumental reach. Still, as a professional practice, contemporary history,
like law, is full of talk of itself.
Historys talk is of what history has to offer the present.
16
One offering is the
narrative history that has become something of a staple of literary nonfiction.
Narrative history represents history as edifying stories of the past. As Gordon

10. Id. at 4759. See generally Christopher Tomlins, Law and History, in THE OXFORD
HANDBOOK OF LAW AND POLITICS 723 (Keith E. Whittington et al. eds., 2008); Christopher
Tomlins, What Would Langdell Have Thought? UC Irvines New Law School and the Question of History, 1
U.C. IRVINE L. REV. 185, 24245 (2011); Christopher Tomlins, What Is Left of the Law & Society
Paradigm After Critique? Revisiting Gordons Critical Legal Histories, 37 LAW & SOC. INQUIRY
(forthcoming 2012).
11. Shai J. Lavi, Enchanting a Disenchanted Law: On Jewish Ritual and Secular History in Nineteenth-
Century Germany, 1 U.C. IRVINE L. REV. 813, 815 (2011).
12. See generally Yishai Blank, The Reenchantment of Law, 96 CORNELL L. REV. 633 (2011).
13. See generally Michael Saler, Modernity and Enchantment: A Historiographic Review, 111 AM. HIST.
REV. 692 (2006).
14. PERRY ANDERSON, ARGUMENTS WITHIN ENGLISH MARXISM 200 (1980).
15. See infra text accompanying notes 14353.
16. The following observations rely heavily on Christopher Tomlins, History Lessons, PERSP.
ON HIST.: NEWSMAGAZINE AM. HIST. ASSN, Dec. 2010, at 31, 3133; see also Tomlins, What Would
Langdell Have Thought?, supra note 10, at 21015.
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Wood describes it in a recent issue of Perspectives on History, narrative history
attends to the exceptional: individual personalities . . . unique public
happenings.
17
By their very nonrecurrent nature, the individual and the unique
are easily sequestered in bygone times, from which they can be appropriated at will
to offer homiletic advice to the present.
Narrative history conforms, broadly, to one of the three archetypes of which
Friedrich Nietzsche wrote in 1874 in the second of his untimely meditations:
the monumental.
18
Another conception, history as scienceoffered by Wood
himself as antidote to the shortcomings of narrativeconforms to another
Nietzschean archetype: the antiquarian.
19
As Wood characterizes it, scientific
history is like a coral reef, based on the premise that historical knowledge is
accumulative and that the steady accretion of specialized monographs will
eventually deepen and broaden our understanding of the past.
20
Its domain is the
social; its ideology, unsurprisingly, modernism; its spirit, objectivitythe capacity
to know the past as it really was, and ever more completely.
The scientific writer of history . . . builds a classic temple: simple, severe,
symmetrical in its lines, surrounded by the clear bright light of truth,
pervaded by the spirit of moderation. Every historical fact is a stone
hewn from the quarry of past records; it must be solid and square and
even-huedan ascertained fact . . . . His design already exists, the events
have actually occurred, the past has really beenhis task is to approach
as near to the design as he possibly can.
21

This is the historians version of Holmess nothing but history.
22

But because the phenomena studied by the scientific historian are
recurrentfor example, human behaviorthey are not so easily sequestered in
the past. On the contrary, they lure the historian toward presentism. Some
versions of scientific history accept the lure.
23
Others resist it. Those that resist do
so by insisting on the absolute temporality of all phenomenatheir watchword is
contextfrom which follows a rigid distinction between then and now, a

17. Gordon S. Wood, In Defense of Academic History Writing, PERSP. ON HIST.:
NEWSMAGAZINE AM. HIST. ASSN, Apr. 2010, at 19, 19.
18. FRIEDRICH NIETZSCHE, On the Uses and Disadvantages of History for Life, in UNTIMELY
MEDITATIONS 57, 6772 (Daniel Breazeale ed., R.J. Hollingdale trans., 1997).
19. Id. at 7275.
20. Wood, supra note 17, at 20.
21. PETER NOVICK, THAT NOBLE DREAM: THE OBJECTIVITY QUESTION AND THE
AMERICAN HISTORICAL PROFESSION 56 (1988) (quoting Edward P. Cheyney).
22. Parker, supra note 6, at 589; see also KUNAL M. PARKER, COMMON LAW, HISTORY, AND
DEMOCRACY IN AMERICA, 17901900, at 124, 25978 (2011).
23. One example is orthodox historical materialism, on which see Christopher Tomlins,
Toward a Materialist Jurisprudence, in 2 TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: LAW,
IDEOLOGY, AND METHODS: ESSAYS IN HONOR OF MORTON J. HORWITZ 196, 19899 (Daniel W.
Hamilton & Alfred L. Brophy eds., 2010).
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csura that underscores the absolute difference of the past.
24
Parker notes
Holmes disgust at the pasts insidious slide into the present: It is revolting to
have no better reason for a rule of law than that so it was laid down in the time of
Henry IV. It is still more revolting if the grounds upon which it was laid down
have vanished long since, and the rule simply persists from blind imitation of the
past.
25

Modernist scientific history describes a form of historical practice one can
term simple accumulation. It has spawned a critical response; call it complex
accumulation. Complex accumulation accepts the ineradicable difference of the
past: its watchword, too, is context. But unlike simple accumulation, it treats
material life as radically underdetermined. Far from an assemblage of essentially
similar phenomena, historical knowledge is deeply vulnerable to multiplicitous
variation that constantly intrudes upon the historians capacity to generalize. The
difference between simple and complex accumulation is observable in the entirely
contrasting meanings of historicism associated with each of them. Where simple
accumulation aspires to predicability, complex accumulation repudiates causal
explanation; this because it eschews the idea that consensus can be established on
a means of disciplining evidence and, hence, of producing theory. For
historicism as positivist science, complex accumulation substitutes historicism
as contingency: a past composed of an infinity of utterly contextualized, utterly
discrete, phenomenathat is, an entirely indeterminate past.
26

Notwithstanding their differences, modernist (simple accumulation) and
postmodernist (complex accumulation) historiography share a commitment to
contextualizing their subjects; therein lies a significant commonality of purpose.
For both, too, the csura that amputates past from present is the necessary
condition of their practice, creating a distinct subject on which to reflect, with
which to converse. For both, historical method begins by putting the past in its
place.
To identify history as the contextualization of past acts and events is entirely
understandable, but it does not exhaust the possibilities. Take for example
Nietzsches third archetype: the critical. Instead of appropriating the past to
inspire the present, or merely preserving it, critical history interrogates, judges, and
condemns the past in order to free the present from its grasp. In this way, critical
history serves life. Its enemy is scholasticism: knowledge not attended by action
. . . history as a costly superfluity and luxury.
27


24. See Christopher Tomlins, The Strait Gate: The Past, History, and Legal Scholarship, 5 L.
CULTURE & HUMAN. 11, 2122 (2009).
25. Parker, supra note 6, at 589 (quoting 3 OLIVER WENDELL HOLMES, The Path of the Law, in
THE COLLECTED WORKS OF JUSTICE HOLMES 391, 399 (Sheldon Novick ed., 1995) (1897)).
26. For the distinct meanings of historicism, compare Wood, supra note 17, at 1920, with
Robert W. Gordon, Historicism in Legal Scholarship, 90 YALE L.J. 1017, 1017 (1981). See also NOVICK,
supra note 21, at 7, 143, 157; Tomlins, supra note 24, at 1131.
27. NIETZSCHE, supra note 18, at 59, 7577.
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One might properly embrace critique as the purpose of history. Many have.
To do so, however, requires that one take a position on the past. Nietzsches
ultimate objective was to overcome the past. In contrast, the objective of law as
. . . is to use it to confront the present. To do so, law as . . . rejects the
sequestration of the past and the various histories that result from it. Law as . . .
dwells instead on the conditions of possibility for a critical knowledge of the here-
and-now: the moment, it might be said, when the origins of the present jut
manifestly and fearsomely into existence,
28
spirit into experience, metaphysics
into materiality:
Origin [Ursprung], although an entirely historical category, has,
nevertheless, nothing to do with genesis [Entstehung]. The term origin is
not intended to describe the process by which the existent came into
being, but rather to describe that which emerges from the process of
becoming and disappearance. Origin is an eddy in the stream of
becoming, and in its current it swallows the material involved in the
process of genesis. That which is original is never manifest in the naked
and manifest existence of the factual; its rhythm is apparent only to a dual
insight. On the one hand it needs to be recognized as a process of
restoration and reestablishment, but on the other hand, and precisely
because of this, as something imperfect and incomplete. There takes
place in every original phenomenon a determination of the form in which
an idea will constantly confront the historical world, until it is revealed
fulfilled, in the totality of its history.
29

If this is law as . . .or, at least, one rendition of ithow do the essays
that appear here under its imprint measure up? Is this a club to which their
authors would wish to belong?

28. 1 WALTER BENJAMIN, Critique of Violence, in SELECTED WRITINGS, 19131928, at 236,
242 (Marcus Bullock & Michael W. Jennings eds., 1996).
29. WALTER BENJAMIN, THE ORIGIN OF GERMAN TRAGIC DRAMA 4546 (John Osborne
trans., Verso Books 2003) (1963). A somewhat distinct translation of (most of) the same passage can
be found in SAMUEL WEBER, BENJAMINS -ABILITIES 8889 (2008). Commenting on the passage,
Weber adds,
The concept of origin that Benjamin articulates in this passage contrasts sharply with the
creatio ex nihiloor more precisely, creation out of formlessnessthat informs the biblical
text of Genesis. Instead, the notion of originand hence the notion of the originalis
construed not as an absolute beginning, nor as the passage from formlessness to form, nor
as the result of anything like the intervention of a divine logos. It is also not conceived as a
function of becoming (Werden) or of its dialectical counterpart, passing away (Vergehen). . . .
An origin is historical in that it seeks to repeat, restore, reinstate something anterior to it.
In so doing, however, it never succeeds and therefore remains incomplete, unfinished.
Yet it is precisely such incompleteness that renders origin historical. Its historicality resides not
in its ability to give rise to a progressive, teleological movement, but rather in its power to
return incessantly to the past and through the rhythm of its ever-changing repetitions set
the pace for the future.
Id. at 89.
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II. NORMATIVE SYSTEMS, HISTORICAL DESCRIPTIONS
Of Texts and Explanations
Steven Wilf has one foot, his Chancellors foot, the normative foot of the
legal scholar, inside the door. His historians foot remains outside, in the mid-air
of complex temporality and relationality, of radically situated subjects, layered
strata, and paths not taken, of alternative worlds and countergenealogies, out of
the cradle, endlessly orbiting.
30
The straddle is as it should be, for Wilfs is an
image of legal history poised between technicality and time, mixing overly
mutable texts with overly rigid forms of reading.
31
He recommends reading texts
schizophrenically, which is to say in a manner that resists the dominant traits of
each of the disciplines lobes: historys positivist descriptivism, which incessantly
produces narratives of how things really were; and laws linear instrumentalism,
which not only denies the existence of any alternative but pointedly ignores its
own utopic idealism. The resistances (contingency and possibility) are as
complementary, of course, as the dominant traits (positivism and
instrumentalism). Their amalgamation produces a new personality, beset by a
corrosive though constructive uncertainty. Wilf has created a roguish thing,
32

the first of many specters from the looking-glass world of law as . . . that will
wreak havoc with the law of which we are certain, for which we have a measure,
know what to trust toand also with the history that make[s] the standard for
the measure.
33

Wilf offers serial means, allegorical devices, to inspect the thickly clustered
normative systems beyond laws linear limits and historys descriptions, none more
evocative than Blakes telescope and Galileos observatory.
34
Together they
remind us of a third optical allusion perched, temporally, more or less midway
between them: William Hogarths 1724 engraving of Some of the Principal
Inhabitants of y
e
Moon, as they Were Perfectly Discoverd by a Telescope brought
to y
e
Greatest Perfection, also known, curtly, as Royalty, Episcopacy and
Law.
35
The engraving is entirely emblematic. Royaltys face is the coin of the
realm. Around its neck is a string of bubbles. Cloven-hoofed episcopacy works a
money pump. Law is a hammer in a periwig. Like Blakes telescope, Hogarths has

30. Arthur C. Clarke, Out of the Cradle, Endlessly Orbiting . . . (1959), reprinted in THE
COLLECTED STORIES OF ARTHUR C. CLARKE 697 (2000).
31. Steven Wilf, Law/Text/Past, 1 U.C. IRVINE L. REV. 543, 564 (2011).
32. JOHN SELDEN, THE TABLE TALK OF JOHN SELDEN 61 (photo. reprint 1979) (Samuel
Harvey Reynolds ed., 1892).
33. Id.
34. Wilf, supra note 31, at 56264.
35. See WILLIAM HOGARTH, ROYALTY, EPISCOPACY AND LAW (1724), available at
http://exhibits.library.northwestern.edu/spec/hogarth/politics3.html. Hogarths engraving satirizes
Sir James Thornhills paintings of William and Mary and their royal court, which adorn the Painted
Hall of the Old Royal Naval College, Greenwich.
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magnified its objects. It has not touched them. But it need not do so. Merely
magnifying their surfaces shows them, in their singularities and intimacy, as they
are. Observation is indeed the beginning of heresy. As readers and writers of texts,
interpreters of objects and tellers of tales about them, we can learn a lot from the
engravers eyeparticularly this one, who was so great an observer and, with it, a
great theorist of observation.
36

Laura Edwards provides us with a concrete instance of what Wilf advocates,
a new reading of a legal archive that produces a new text-in-context: the
formulaic phrasing (boilerplate) of the peace, translated into a novel way of
understanding the thickly normative order of the Anglo-American community
the ideal order of the metaphorical public body.
37
So completely does the peace
entwine law and society that law in society became law as society, literally located
. . . in actual social relations.
38
In Edwardss essay, locality is both a place and a
state of mind. Law and society blur together; inhabitants imagine justice as the
restoration of a particular social order, as the resolution of conflict, as the repair of
strains in hierarchy, as the recreation of habitual practice, and as the reproduction
of the status quo. The logic of the peace is reiteration, repetition.
Edwards does not deny that law and society can be seen as distinct. Indeed,
she notes that a self-consciously discrete legal system came into being after the
American Revolution. Invented by post-Revolutionary leaders committed to
establishing clearly defined governing institutions and laws at national and state
level, it was characterized by a distinctive repertoire of concepts (rights,
democracy) and by particular textual and institutional practices (statutes, cases).
But that legal system was not the sum of law, although it has been treated almost
invariably as if it were. By peeling away state law Edwards uncovers localized law,
bringing a far wider geography into legal history and, with it, in the American case,
a new understanding of rights and democracy. Observing the emergence of rights
as the signal means to configure peoples relationship to law becomes less an
exercise in documenting the progressive extension of those rights to previously
excluded groups than in disinterring the genesis of a framework that exacerbated
existing inequalities by using the principle of equality to sort subjects into those
with access and those without. A system based in individual rights made
subordinate people without rights even more vulnerable than they already were by
cutting off all access to the legal system.
39
Where local legalities had granted
highly unequal participation to all, state legality created exclusive modes of access

36. See WILLIAM HOGARTH, THE ANALYSIS OF BEAUTY. WRITTEN WITH A VIEW OF FIXING
THE FLUCTUATING IDEAS OF TASTE (1753); see generally JACK LINDSAY, HOGARTH: HIS ART AND
HIS WORLD (1977).
37. Laura Edwards, The Peace: The Meaning and Production of Law in the Post-Revolutionary United
States, 1 U.C. IRVINE L. REV. 565 (2011).
38. Id. at 566.
39. Id. at 575.
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by constituting white males as freemen through their rights over those without
rights.
40
Rather than progress, in other words, history charts a movement over
time from a plurality of local legal orders to samenessalthough we should note
that those local orders were themselves dedicated to the reproduction of the same.
Legal history has tied itself to a conception of law as a phenomenon
separable from society. Edwards argues that this is deeply problematic. She draws
attention to the simultaneous existence of legalities in markedly distinct forms, at
different levels and places, with different participants, all of which should enter
the legal historians field of vision. Indeed they must, she argues, if legal history is
to survive as a field of study. Like Wilf, Edwards predominant tone is one of
caution in appraising the fields prospects, but her solution points us in a different
direction, toward history rather than to a thickened normativity. Legal history
ought to pay more attention to history in general, lest it become an outlier,
difficult to penetrate, preoccupied with arcane issues outside the mainstream.
Historians at large are finding legal texts increasingly useful, but not the scholarship
that purports to explain them. Even as the stuff of its imagination grows more
central, the field courts marginality: We need new frameworks to widen the
scope of the field, lest we lose control over it.
41

Kunal Parker tells us, in a nutshell, what the existing framework is.
42
It
locates law in history, localized to time and place, contextualized, its internalities
externalized. By historicizing law, by rendering it contingent, this framework
seems to undermine the pretense of separation that disturbs Edwards. Why, then,
should she be disturbed? Perhaps because no amount of contextualization can
conceal that the initial move to contextualize necessarily arises from an initial
relational assumption: to imagine law in contextor in historyrequires that
one be able to imagine it apart from that context in order to know the difference.
Once introduced, Parker confirms, relationality is infinite, like mirrors set
opposite each other. As scholarship relentlessly historicizing law pours out,
offering us endlessly complex pictures of laws past and pointing to the plurality of
missed opportunities in the past (all of which are supposed to mirror the open
possibilities of the future), one cannot help but experience a sense of intellectual
exhaustion.
43
Why exhaustion? Because, having entered its way of thinking, there
is literally no means to avoid being overwhelmed by the endlessness of
historicism, by its world after metaphysicsthe world of nothing-but-history
that has become ever provisional, ever provincial.
44
The loss of self-control that
Edwards warns against is actually a corollary of the turn of legal history toward the
vertiginous historicism that is the chief component of the new frameworks she

40. Id. at 583.
41. Id. at 585.
42. Parker, supra note 6, at 594, 607.
43. Id. at 593; see also MARILYN STRATHERN, PARTIAL CONNECTIONS 119 (1991).
44. Steven Wilf offers variations on the same theme. See Wilf, supra note 31.
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seeks.
Parker points us in a different direction, away from antifoundational history
and back toward law. Specifically, he points us toward the common law during the
long nineteenth century, invoked by Kent early on as the water of life,
determinedly evaporated eighty years later by the reigning disenchanter of the
American legal tradition, Oliver Wendell Holmes Jr. Holmes, who, recall,
dissolved both life and law in the acid bath of nothing but history that was to be
the enduring fate of the twentieth century. Parker describes an America quite
distinct from the postfoundational world with which we are familiar, in which the
notion of given constraints was very real indeed.
45
In that America, political
democracy shared authority with the common law as a non-self-chosen
instrument of constraint, committed to upholding precedent and repeating the
past.
46
The common law was nonchosen because it was immemorialunfolding
outside historical time, changing insensibly, always adjusting the needs of the
present to the claims of the past and the future.
47

Eventually, the common law would be sucked dry by intellectuals insistent
on draining nineteenth-century life of its phantasmagoria, the void filled by the
incessant hubbub of their own reflective intellection. Progressive Era thinkers
followed Holmes in assailing the laws immemoriality.
48
It was to be reduced to
politics, made in the present from the knowledge of expert nonlawyers, endlessly
revisable. Parkers invocation of the common law is elegiac in the full sense of the
word. He mourns that which is irreversibly dead, but does not yearn romantically
for its revival. By paying attention to their antecedents he shows how two of the
most relentlessly positivist of scholarly discoursesmodern American history and
modern American lawstand revealed as settled knowledges. Simultaneously he
makes it plain that reference to those very antecedents reinfuses both history and
law with the capacity for a certain mystery, animating their capacity to unsettle
settled knowledge but without paying the exorbitant price demanded by what
we have come to call postmodernism, which is that knowledge shall never, ever,
settle again. What was science the first time around, in other words, can do a
second lap as metaphysics. Do we not, he asks, even in our postfoundational
world, continue to think foundationally about democracy itself as a mystic

45. Parker, supra note 6, at 596.
46. Id. at 603. Here Parker is in harmony with Laura Edwardss emphasis on the dedication of
the peace to reiterationthe restoration and repetition of given constraints. See Edwards, supra note
37, at 56566.
47. Parker, supra note 6, at 601. Compare id., with Roger Berkowitz, From Justice to Justification: An
Alternative Genealogy of Positive Law, 1 U.C. IRVINE L. REV. 611, 61819 (2011) (discussing the
metaphysical heart of Leibnizs legal science).
48. Parker notes that for Holmes, law was experience rather than logicthe product of
nothing but historybut that experience alone could not justify law. Experience (history) as
repetition did not count. Law as mere blind imitation of the past would not do. If law was to
repeat the past it must be with self-conscious (present-minded) purpose. Parker, supra note 6, at 589
(quoting HOLMES, supra note 25, at 469).
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teleology of ever-expanding rights, freedoms, and equalities?
49

III. LAW, METAPHYSICS, JUSTICE
Of Connection, Disconnection, Reconnection, (In)completion
Roger Berkowitz also examines the historical detachment of law from
metaphysicsand the possibility of their reconnection.
50
The essence of legal
positivism, he argues, lies not in its acknowledgment of human will in lawmaking,
but in its attempt to justify laws that have lost their natural authority: their claim to
justice, that is, located in divine rationality. In support, Berkowitz offers a
genealogy that traces contemporary positivism to the serial efforts of German
legal science to find justification for law. His point of departure is Leibniz, for
whom science, the authority of objective truth, was the specifically modern way
both to justify law and to repair its connection to justice.
Importantly, at the core of Leibnizs scientific method lay a metaphysical
conception of the origin of substance. A true beginning . . . must be something
from which nothing temporal, spatial, or causal can be removed.
51
We encounter
here a distinct but recognizable statement of immemorialityorigin that was
nonphysical and nonhistorical. Immemoriality was, of itself, enough of an
explanation of genesis for the common laws adherents. In their genealogy, the
detachment of law from the divine was incomplete.
52
Leibniz, however, took a
further step in the construction of a metaphysics of origin by applying his first
principle of science, the principle of sufficient reason: nothing is without a reason.
The subordination of law to its reason for being made it the expression of a first
principleuniversal well-willing, the entirely rational expression of Gods
judicious wisdomtransforming it from an authoritative statement of a practice
into a forceful product of the scientific knowing of justice . . . [a] scientifically
decipherable rationality . . . .
53

Leibniz reached Anglo-American common law, Berkowitz argues, by way of
the nineteenth-century legal science of Savigny and Jhering. The transmission was
hardly perfect. In place of Leibnizs rationalist ontology, Savigny located the origin
of law in the life of the Volksgeist, the common spirit and consciousness of the
people/nation. No longer knowable spontaneously by insight, laws essence
could still be discovered by means of a geschichtliche Rechtswissenschaft (historical legal
science) whose object of inquiry was the organic principle, by which what is still
living will automatically separate itself from what is dead and belongs only to

49. Parker, supra note 6.
50. Berkowitz, supra note 47.
51. Id. at 617.
52. See Peter Goodrich, Specters of Law: Why the History of the Legal Spectacle Has Not Been Written,
1 U.C. IRVINE L. REV. 773 (2011).
53. Berkowitz, supra note 47, at 619.
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history.
54
Here was no philosophical disquisition upon universal and rational legal
principles. Here, rather, was an attempt to separate the living-onhistorically
grounded legal principles active in the national consciousness . . . . the living unity
that binds the present to the pastfrom all that had passed irretrievably away,
so that laws restatement in the form of technical concepts and formulas
(Begriffsjurisprudenz) remained shot through with life-inspired insight.
55

If Savignys legal science shared its emphasis on life-and-becoming with
aspects of the nineteenth-century common law thought described by Parker,
Jherings critique of that science corresponds to Progressive Era thinkers
antifoundationalist reaction to the immemoriality of the common law. Like them,
Jhering counterposed human intention to what looked like an entirely historical
determination of outcomes. Law was a human product, a formal system of rules
that served ends discoverable by the social sciences.
56
Neither its origins nor its
ends were to be found in any metaphysical realm of transcendent unity, whether
conceived philosophically (Leibniz) or historically (Savigny). By thus subordinating
a merely technical law to other-determined ends, Berkowitz argues, Jhering
fulfilled Leibnizs original insight that positive law must be subordinated to
reasons while simultaneously sundering the attempt made by both Leibniz and
Savigny to make science the bond of law to justice.
57
Twentieth-century law
remains dependent on science for justification, but no science of law has
succeeded in establishing itself as a science of justice. Instead, science has
transformed law into a technical means for governments to pursue political, social
and economic ends.
58
Even so, the ideal of justice remains alive. Perhaps, says
Berkowitz, simply knowing that law is divorced from justice is the first step to
bridging the gap.
Marianne Constable, too, addresses the gap between law and justice,
reconnecting them, aspirationally, with rhetoric.
59
The task is executed in two
steps. The first is to understand law as contextualized practice or speech act,
thus to collapse the realist separation of law on the books from law in action
into law as claim, specifically the claim of authority. This directs our attention
away from the twentieth centurys stress on social outcomes as the only
worthwhile empirical, and implicitly normative, determinant of law; we return to
law not as instrumental means to an end but as the embodiment of a species of

54. Id. at 621.
55. Id. at 62223.
56. See, e.g., Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910). For
Jherings influence on Progressive Era legal thought, see MICHAEL WILLRICH, CITY OF COURTS:
SOCIALIZING JUSTICE IN PROGRESSIVE ERA CHICAGO 96115 (2003).
57. Berkowitz, supra note 47, at 627.
58. Id. at 629.
59. Marianne Constable, Law as Claim to Justice: Legal History and Legal Speech Acts, 1 U.C.
IRVINE L. REV. 631, 631 (2011).
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action, one that tells us what to do.
60
The second step is to note that, in telling
us what to do, the utterances that stake the claim of law to authority bind it,
whether willingly or despite itself, to issues of justice. Claims on behalf of and
within the system, as well as claims made against it, appeal however silently,
however strategically, however hypocritically, to justice.
61
Even speech that
denies the connection cannot avoid the issue. It is not the province of the court
to decide upon the justice or injustice . . . of [the law] . . . but to administer it as we
find it.
62
Here our attention is drawn to the speakers disclaimer and so to the
very question s/he refuses to entertain. Neither a God nor a higher law, but the
claiming that goes on in legal speech acts, binds us to issues of justice.
63

In our disenchantment we have learned, as Roger Berkowitz shows, to see
justice as evanescent, residual, drowned out by the sociolegal positivism that, in
Constables book, Just Silences, is the acme of contemporary law: the law of law
and that relegates connections between law and justice, if any, to empirically
contingent social realities.
64
Here, legal history fashions a place for itself
alongside rhetoric as a means to recover those connections by disclosing instances
from the past in which law has mattered as a name and as an act that was linked
. . . to issues of justice . . . .
65
In so doing, Constable argues, legal history reveals
itself to be an enterprise appropriately distinct from other practices of history, not
one that should seek greater companionship with them; it is a purposive enterprise
inhabited by the thick normativity Wilf recommends. How acts or events or
claims or utterances in the name of the law have mattered is the peculiar
contribution of history to legal scholarship.
66

Christopher Schmidt begins precisely with a speech act, a claim about law
and its connection to justice made by student leaders of the 1960 American sit-in
movement, a movement whose activism stood in vivid contrast to the legalism of
the NAACP. The student claim was that law is too slow in its response to
injustice, that resort to action in the world outside lawsocietyis the only
way to achieve justice.
67

The cleavage between law and society that Schmidt detects in student
rhetoric conforms to the positivist distinction of means from ends noted by
Berkowitz. Sociolegal scholars and legal historians who stress laws constitutive
capacities in social processes might question the tendency to separate the two. But

60. Id. at 636.
61. Id.
62. Dred Scott v. Sandford, 60 U.S. 393, 405 (1857).
63. Constable, supra note 59, at 636.
64. MARIANNE CONSTABLE, JUST SILENCES: THE LIMITS AND POSSIBILITIES OF MODERN
LAW 10 (2005).
65. Constable, supra note 59, at 640.
66. Id.
67. Christopher W. Schmidt, Conceptions of Law in the Civil Rights Movement, 1 U.C. IRVINE L.
REV. 641, 64142 (2011)
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the subjects of . . . historical inquiry can often be quite insistent in seeing law
and society as distinct.
68
Nor were the students alone. Segregationists defended the
norms and customs of their communities from federal law that impinged on them
from outside. Racial liberals as insistently advocated federal intervention,
regarding outside law precisely as a means to transform local social practice. In
each of these instances, the essential characteristic of law was its perceived
separateness from something else.
69
There were contrary views, however. In
intellectually different ways, Schmidt argues, Alexander Bickel and Martin Luther
King Jr. each embraced a definition of law that recognize[d] processes of cultural
change, social disorder, and political agitation as integral to the legal process
rather than located outside it.
70

One might argue, of course, that what each of the protagonists represented
as the separation of law and society was in fact a separation between preferred
conceptions of legality. Defenders of Jim Crow did not portray established social
customs as extralegal. They took them to be the appropriate source of legal
norms. Their folkways were their stateways. In Edwards terms, their point of
reference was local lawlaw as (local) societyrather than national law. Racial
liberals derived their norms from supralocal sources and turned to supralocal
authority to realize them. In the students case, antilegalism bespoke antagonism
to a particular representation of legality, namely, the institutional and professional
realm inhabited by the NAACP, in which law was the completion and therefore
the end of action. Nevertheless, their own strategythe continuous enactment of
alternative social practice, continuous engagement in the performance of
rightitself created its own legality in the form of a persistent, thickly normative
claim to justice.
71

Indisputably, in each case the protagonists specific conception of lawas
force, capacity, mode of action, or claimwas profoundly important to the way
they mobilized for or against its use. Likewise, Bickel and King conjured with law
in a fashion that suited their strategies for its deployment. Alike in their
understanding of law as an unfolding social process inseparable from the
struggles that gave it social and political presence, both blurred the positivist
distinction between law and society that, according to Schmidt, animated others.
72

That said, the implications of their positions were opposed. Bickel stressed the
dialogic quality of law. The impossibility of maintaining as law any mode of
legality distinct from existing customs and traditions led him to argue that legal
reformers, particularly the courts, [ought] to defer to social norms.
73
King, in

68. Id. at 643.
69. Id.
70. Id.
71. Id. at 653.
72. Id. at 658.
73. Id. at 661.
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contrast, focused on what was required to give basic legal principles real social
standing. For King, the recognition of the process of law in society was a call to
action.
74
Unlike the students, he did not reject legal process. But his conception
of the relation of action to law was one that, like theirs, regarded law as claim to
justice.
In a clever historiographical coda, Schmidt demonstrates that historical
accounts of the civil rights movement have themselves participated in the debate
over the relationship of law to society in a manner that echoes the arguments of
the protagonists themselves. As a methodology for understanding the movement,
he concludes, challenging the conception of law as a bounded, exogenous locus
of power and influence seems a useful starting point. From this perspective, law
functions constitutively within society rather than causally on society. At the same
time, it is necessary to recognize that drawing a distinction between law and
society was implicated in the way in which historical actors understood their
world and the role of law in that world; it had a decided influence on their
various strategies.
75
Whether or not it is of analytic use, in other words, the
distinction itself is an essential object of historical inquiry.
To unravel law from society is to hold out the hope of escape from law, to
resist its ubiquity, and thus to refuse the completion it brings. In Norman
Spauldings essay, human awareness lies precisely in the possibility of refusal
refusal to be bound, to be completed, to be ended or contained, whether by law,
psychoanalysis, sociology, or historyand, in holding the moment of refusal
indefinitely open, of engagement in the dream work (displacement, confusion,
doubt) that seeks a distinct form of consciousness.
76
One is reminded of Bertolt
Brechts destitute cripple, George Fewkoombey, who dreams of a Day of
Judgment, the greatest arraignment of all times . . . the only really essential,
comprehensive and just tribunal that has ever existed, which would judge the
living . . . the dead . . . all who had in any way wronged the poor and defenceless
in proceedings that would last hundreds of years.
77
To resist completion is to lay
an eternal claim to justice.
78

Resistance to completion, however, is itself resisted. We want self-

74. Id. at 662.
75. Id. at 676.
76. Norman W. Spaulding, The Historical Consciousness of the Resistant Subject, 1 U.C. IRVINE L.
REV. 677 (2011).
77. BERTOLT BRECHT, THREEPENNY NOVEL 38485 (Desmond I. Vesey trans., 1958); see
also Christopher Tomlins, The Threepenny Constitution (and the Question of Justice), 58 ALA. L. REV. 979,
100103 (2007).
78. See 2 WALTER BENJAMIN, Karl Kraus (Fragment), in SELECTED WRITINGS, 19271934, at
194 (Michael W. Jennings et al. eds., Rodney Livingstone et al. trans., 1999); 2 WALTER BENJAMIN,
Karl Kraus (Dedicated to Gustav Glck), in SELECTED WRITINGS, 19271934, supra, at 433, 44344, 447
48, 45657; Tomlins, supra note 23, at 20506.
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mastery.
79
The desire for completion is understandable: an uncontained
awareness is as ontologically terrifying as the finality of death. And so we end our
resistance through forms of avoidance, notably forgetting.
80
We displace, trim,
containor we are contained. We complete our resistance, or have it completed
on our behalf by structures of law, politics, and history that fashion the subject as
complianta consenting legal subject possessed of a settled knowledge. Even
theories of politics and law that begin from the position of the resistant subject
almost always transcend resistance by turning it into something else, whether
fulfillment (resistance as liberation) or futility (resistance as oppression).
Revolution and resistance are reduced to exceptional eventsaberrations verging
on the ahistorical and nearly always charged with the terror of anarchy.
81

Constitutions replace revolutions, citizens replace resistant subjects, the rule of law
creates boundaries to replace boundlessness. Fewkoombey awakens from his
dream of justice to find that he is himself the condemned.
82

It seems that society has the last word by hanging Fewkoombey. Yet Brecht
tells us that, in his waking moment, he has understood how ancient is the crime
to which he and his kind fall victim.
83
The question that remains, in other words,
is what knowledge one possesses at the moment of awakening, what memory the
resistant subject brings to bear on the materiality that presents itself when she
wakes up.
History can answer that question, Spaulding suggests, by avoiding
completion, taking memory seriously. But history, particularly legal history, more
often inspects its protagonists recollections through the telescope of law than
through their own psychic instruments. For history needs an identifiable legal
subject, as Hayden White has it, that can serve as the agent, agency, and subject
of historical narrative, a narrative overwhelmingly of identities understood as
jurally constituted.
84
History as activity, in short, presupposes law and thus
sustains it. To resist the presupposition, Spaulding turns to Foucauldian
counterhistory and its idea of revolution revealing origins marked by conflict
running time out of mind.
85
This turn supports a profound critique of American
legal history, whose attachment to the rule of law either reduces resistance to
lawlessness or completes it in narratives of legal reformthe always-desired
achievement of lawfulnessand represents resistance either as heroic or as tragic.

79. Spaulding, supra note 76, at 681.
80. See Norman W. Spaulding, Constitution as Countermonument: Federalism, Reconstruction, and the
Problem of Collective Memory, 103 COLUM. L. REV. 1992 (2003); see also Tomlins, supra note 24, at 3235.
81. Spaulding, supra note 76, at 682.
82. Tomlins, supra note 77, passim; BRECHT, supra note 77, at 396.
83. 3 WALTER BENJAMIN, Brechts Threepenny Novel, in SELECTED WRITINGS, 19351938,
supra note 78, at 6.
84. Spaulding, supra note 76, at 685; HAYDEN WHITE, THE CONTENT OF THE FORM:
NARRATIVE DISCOURSE AND HISTORICAL REPRESENTATION 13, 1214 (1987).
85. Spaulding, supra note 76, at 691.
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In neither case, it must be said, is the centered legal subject placed in doubt. We
are, in short, repeatedly tempted by our attachment to law to forget that resistance
is not something to be overcome, but rather the point of entry for modern
history.
86

IV. LEGAL HISTORY WITH/OUT LAW?
Of Counterhistory, Resistant Subjects, Representation, and the Spectacular
If we are to avoid dissolving history into law, we must attempt to write legal
history without assuming law, or at the very least imagine how to write of its
beginning and end. But is this not to dissolve law into nothing but history and
hence just another form of completion? Unless one is to hold history up as the
one permissible universal solvent that completes everything, therefore, one must
know how to write of historys beginning and end, too. This is, of course, to push
modern history away from its humanist origins, and its antifoundationalist present,
toward metaphysics.
87
But here is no problem. Resistance in Spauldings sense is,
precisely, the refusal of completion, the act of holding fissures open rather than
closing them. Such resistance properly belongs to the domain of metaphysics.
After all, the counterhistory that Spaulding invokes, of which Foucault speaks
the counterhistory to that which pacifies society, justifies power, and founds the
order . . . that constitutes the social bodyshows that laws deceive, that kings
wear masks, that power creates illusions, and that historians tell lies.
88
This
counterhistory, the only resource of the subject resisting her completion, necessarily
dwells in the realm of the metaphysical. For it relies on outwitting the trick, on
revealing the secret, on deciphering sealed truths, on detaching humans from their
given historic-juridical consciousness.
89
It is a form of history that can only be
dreamed of before it can ever be known.
If it is necessarily metaphysical, how do we portray counterhistory
particularly in the realm of legal history, whose texts are so imbued by the
grounded orderliness of law, its linear instrumentalism, its functionality, its hunger
for power? How do we determine whether its adversarial institutions might indeed
act as structures of resistance, as Spaulding says, given that it is so easy to fail
to recognize resistance at work?
90
The answer that Barbara Welke offers is to
turn to a new optic: from lines of text to lines of sight.
Welkes Owning Hazard is a terrifyingly graphic illustration of law and

86. Id. at 691.
87. See 4 WALTER BENJAMIN, On the Concept of History, in SELECTED WRITINGS, 19381940,
supra note 78, at 389.
88. MICHEL FOUCAULT, SOCIETY MUST BE DEFENDED: LECTURES AT THE COLLGE DE
FRANCE, 19751976, at 72, 73 (David Macey trans., 2003).
89. Id. at 72.
90. Spaulding, supra note 76, at 691.
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history hard at work together on resistant subjects, the burned bodies of
children.
91
It is a literal representation of the will of law to complete what cannot
be completedinjury compensated, legislation passed, consumers disciplined,
safety purchased through loss
92
and of history to be the story of completion,
the narration of a puzzle solved, of closure negotiated (trans-acted), of the
ownership of death and suffering passed on from victim to agent. Although
completion is what we most desire from our inspection of the body in its agony
and death, Welke enjoins us to resist it. The promise of completion is proven a lie,
over and over again, by the burned bodys incessant reiteration. Loss never
purchases safety. The hazard must be owned, and ownership never ceases. The
requirement is repeated again and again.
93
Welke gives us the counterhistory to
completion not by discovering an alternate possibility, an untaken path, in the
materials she presentscounterhistory is not pluralistic counternarrativebut by
an act of exposure that dismantles the process of production of history from texts.
Her exposure tears gaping holes in narratives effortless assemblage of the mise-en-
scne, through which an audience can clamber to finger the burnt cloth, hear the
screaming child, peer at the dictated memoranda of account, and judge for itself.
Owning Hazard is at once profoundly Rankeanwhat really happened, again
and again and againand profoundly anti-Rankean, tak[ing] apart evidence that
in the scholarly endeavor becomes reduced to a seamless narrative, to restore to
the reader/viewer a role in the interpretive process.
94
But in order to be this kind
of history, Owning Hazard is first theater, epic theater, which is to say the
representation of conditions.
95
In the simple act of putting on a show, Owning
Hazard creates a dialectical image of law as a condition[ ] of life
96
that is at
once searingly real and endlessly open for inspection.
If Barbara Welke shows us modern law as dialectical image, theater,
spectacle, Peter Goodrich offers us a deep analysis of the potency of that
representation.
97
His point of departure is the studied absence of attention given
to the legal spectacle heretofore. The law depends upon, is supported by, exists
through an array of background techniques, apparatuses of appearance, a
theatrical machinery of solemnization and approbation that is largely pre-
conscious . . . [T]hey are the apparatuses that make the law appear but, for it to be
law, the machinery of theatre of its manifestation has to be seen through, which is

91. Barbara Young Welke, Owning Hazard: A Tragedy, 1 U.C. IRVINE L. REV. 693 (2011).
92. Id. at 761.
93. Id.
94. Id. at 695. On Leopold von Ranke and on Rankean history, see NOVICK, supra note 21,
at 2728, 2931.
95. Walter Benjamin, What Is Epic Theater, in ILLUMINATIONS: ESSAYS AND REFLECTIONS
147, 150 (Hannah Arendt ed., 1968).
96. Id.
97. Goodrich, supra note 52.
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to say overlooked, penetrated, passed unwittingly by.
98
Thus the history of the
legal spectacle remains unwritten, the juristic use of images and performances
ignored.
99

The question, patently, is why? Why has the history of the legal spectacle
remained so determinedly unwritten? Goodrich offers three reasons. First, law
denigrates sight. Its practitioners are not trained to see, but rather to inscribe and
file, to look downward at their warrants and proofs, pleadings, tables and rolls.
100

But why does law denigrate sight? Because, second reason, its need to dissimulate
is greater than its need for spectacle. Images give law its power and glory, its aura
and effect. Images, however, reference what cannot be heard or seen directly and it is precisely
this vanishing quality to legal images that gives them their effect, their quality as
phantasms, apparitions, manifestations of power.
101
Again, why? What do those
images reference that is so disturbing, that requires them to vanish at the moment
of their apprehension? The answer is theology: the spectacle of the law is the
spectacle of the divine. [T]he symbols and synecdoches that made up the
spectacle, the ritual performances and plastic presences of legality had been
inherited from another jurisdiction and a longer established tradition.
102
Legal
texts must be shorn of that spectacle because it would be most dangerous to
address in law what precedes and instantiates legality.
103
Hence the apparatus of
appearance and machinery of visibility, was precisely to be precluded from
view.
104

The third and most profound reason lies in a further dissimulation; or, at
least, a displacement. Law, Goodrich tells us, is sovereign and transcendent. It
belongs, although silently, to theology, existing in hierocratic opposition to
oeconomy, to the executive and the administrative, the realm of mere government.
It is this double form that modern law inherits from theology in the
distinction between legislative power and executive action, substance and
relation, norm and decision. Sovereign power rules as a transcendent
form, as a universal expression and carrier of the image of the absolute,
but it is the executive and the administration that govern, that execute the
details and determine right and wrong in action.
105

In this system,
[g]overnance is what happens. Rule is what appears to happen. The
image, which shuttles between the two, is a legal devise that hides the
absence of law in the oeconomic order, in an administrative realm where it

98. Id. at 811.
99. Id. at 774.
100. Id. at 783.
101. Id. at 790 (emphasis added).
102. Id. at 792.
103. Id.
104. Id.
105. Id. at 794.
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is not sovereign dictate but pragmatism, the quotidian of institutions that
continues in its everyday order, its networks and decisions.
106

In the upshot, the spectacle, and its affective effect . . . is preserved in silence.
107

Goodrichs unwritten history evokes a more general dialectic, one that recalls
structural functionalist anthropologywhich has paid purposeful attention to the
theatricality of law.
108
Since any social universe is predicated on a metaphysic of
order, quotidian enactments of legality are as much about constituting and re-
presenting that order as they are about managing its breach; this is society
worshiping its normative self, reproducing its transcendence as a living
abstraction. But also, and here is the dialectic, law is a metapragmatic means, a
cosmic tautology, by which the obligatory is rendered desirable, the desirable
obligatory. For structural functionalist anthropologists, these were universal truths.
Goodrichs conjuncture of legality and sacral imagery, by contrast, inhabits both
the historical and the suprahistorical. It is embedded in the empirical murk of time
and place, but also appears as a general theory of legal spectacle. As such, it raises
the question not of unwritten history, but of how we should write history with
attention to theory.
Take, for example, Goodrichs claim (aphoristically restated) no law without
hierarchy, no hierarchy without law.
109
Empirically, one may counter with
examples drawn from acephalous African societies, peoples like the Nuer of the
Sudan. Speaking of their law, Edward Evans-Pritchard once said that, sensu stricto,
they have none, only to go on to write about it in exquisite detail,
110
as did Howell
in his Manual of Nuer Law.
111
At the other end of the spectrum, the modern
Western end, what of the operations of international law and arbitration?
112
Again
in a suprahistorical vein, Goodrich argues in his commentary on McPherson
113
that
law everywhere requires publicity and theatricality. Here, too, it is not difficult to
think of exceptions. Since the 1970s, writes Hussein Agrama of the patently
Euromodernist legal regime of Egypt, personal status courts have heard cases in

106. Id. at 808.
107. Id. at 793.
108. The anthropological literature on the theatricality of law is too extensive to annotate
here, but for one celebrated example, see MAX GLUCKMAN, THE JUDICIAL PROCESS AMONG THE
BAROTSE OF NORTHERN RHODESIA (2nd ed. 1967).
109. Goodrich, supra note 52, at 79395.
110. E.E. Evans-Pritchard, The Nuer of the Southern Sudan, in AFRICAN POLITICAL SYSTEMS
293 (M. Fortes and E.E. Evans-Pritchard eds., 1940).
111. PAUL PHILIP HOWELL, A MANUAL OF NUER LAW, BEING AN ACCOUNT OF
CUSTOMARY LAW, ITS EVOLUTION AND DEVELOPMENT IN THE COURTS ESTABLISHED BY THE
SUDAN GOVERNMENT (1954).
112. See, e.g., YVES DEZALAY & BRYANT G. GARTH, DEALING IN VIRTUE: INTERNATIONAL
COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER
(1996).
113. McPherson v. McPherson, [1936] A.C. 177 (Can.).
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private,
114
just the sort of thing that brought the wrath of the Privy Council down
upon Justice Tweedie.
But more importantly, there is a translucent trace to be found in Goodrichs
account of McPherson, a clue that helps explain when it is that the law has to be
public, when it tends to be saturated in spectacle, and when it can take itself
behind closed doors. In making his argument for the necessity of image-redolent
spectacle, Goodrich points out that, while Tweedie was excoriated for taking the
legal process out of the public eye, his judicial decision nonetheless stood. On one
hand, the sanctity of the sovereign law that rules was firmly asserted in the
criticism of the process; on the other, the enactment of the decree nisian act of
administration that govern[s]was upheld.
115
One might ask, why is that judicial
decision deemed merely administrative and not also an exercise of sovereign
law? Or in other words, how do we know when the law rules rather than governs,
when, in its iterative practice, it is theology and when oeconomy?
If the answer is when it is spectaclewhich is implied in the assertion that
where there is no spectacle there is no lawwe are faced with a tautology. The
tautology disappears, however, and the glimmer of explanation appears, if we
think about the problem by recourse to Walter Benjamins Critique of Violence.
Recall Benjamins observation of the Great Criminal. He draws our ambivalent
admiration, and is of enormous concern to authority, not because he breaks
sundry laws but because he violates the law, thereby undermining the very
foundations of order and sovereign governance.
116
Extend a step further and the
general point becomes clear: When the law asserts its sovereigntyor when it is
called into questionit appears to do so by means of spectacle, of sacral images,
of Ritualization, upper case. When law, indefinite and ordinary, works its means
and ends, it does so by way of humdrum administrative techniques, of everyday
ritualization, lower case.
117

The latter is no less law than is the law. It is just law in another register. It is
in this workaday register, to close Goodrichs circle, where the immanent
theology, the spectral images, and the latent dramaturgy of things legal make
themselves invisible, only to re-present themselves, to force themselves into the
light of day, when the law makes itself manifest, when it declares its sovereignty.
This may also account for the adiaphorism of the legal academy of which
Goodrich speaks in explaining why legal spectacle has not been much studied.
Could it be thatwhether or not the academy is afflicted by pragmatismits
predominant object of study and its everyday concerns are not the law, at least as
Benjamin might have distinguished it, but law, the quotidian realms of legality in

114. Hussein Ali Agrama, Secularism, Sovereignty, Indeterminacy: Is Egypt a Secular or a Religious
State?, 52 COMP. STUD. SOCY & HIST. 495, 51214 (2010).
115. Goodrich, supra note 52, at 794.
116. BENJAMIN, supra note 28, at 241.
117. See Lavi, supra note 11, at 83032 (discussing the anthropology of ritual).
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which spectacle, imagery, dramaturgy lie quietly at rest, lurking latently beyond the
scholarly gaze? After all, to the degree that legalities diffuse themselves into the
culture of the ordinary, of the everyday, of the pragmatic business of being-and-
doing, the sacral, spectacular moments of (the) law constitute a very small
proportion of its life.
V. LAW, DIS/ENCHANTMENT, CULTURE
Of Secularization, Ritual, and Estrangement
In part, Shai Lavis essay
118
might be read as a counter to Goodrichs
determined unveiling of the spectrality of law, his attempt to enchant our history
by drawing attention to the shades of a sacred past or of a transcendent future
that lurk beneath its rational-secularized surfaces.
119
Indeed, Lavis essay is
something of an antidote to the turn of legal history toward the metaphysical
suggested by law as . . . that Lavi identifies as of a piece with a wider reaction in
legal and sociolegal scholarship to the work of disenchantment undertaken in the
tradition of Max Weber by empiricism, historicism, and positivism.
120
Not that
Lavi is a skeptic. His own historical research simply cautions him against treating
enchantment and disenchantment as opposed inclinations with polar theoretical
implications. For him, they proceed hand in hand.
How so? First, argues Lavi, the Weberian theory of secularization itself
created the chimera of an enchanted religious past from which modernity is seen,
retrospectively, to have departed; even more, modernity constituted itself as the
epitome of the secular rationality that experienced faith as enchantmentand
then projected its own experience of that faith onto the past. Far from being linear
and sequential phenomena, then, enchantment and disenchantment were
constructed simultaneously. Second, modernity invented an anthropology of ritual
as a means of understanding behavior it now deemed irrational. That
anthropology invested religious practicewhich carried no connotation other
than careful, repetitive adherence to rules of conduct, the apt performance of
what is prescribed
121
with intense symbolic meaning and sacral significance.
Just as rationalization responds to the modern conceit that nothing is without
reason, Lavi observes, ritualization stems from the equally modern notion that
nothing is without meaning.
122


118. Id.
119. Id. at 814.
120. See Blank, supra note 12; see also Duncan Kennedy, The Disenchantment of Logically Formal
Legal Rationality, or Max Webers Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought,
55 HASTINGS L.J. 1031 (2004).
121. TALAL ASAD, GENEALOGIES OF RELIGION: DISCIPLINE AND REASONS OF POWER IN
CHRISTIANITY AND ISLAM 62 (1993), quoted in Lavi, supra note 11, at 825.
122. Lavi, supra note 11, at 825.
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Applying these theoretical perspectives to the history of Jewish religious law
in Germany, Lavi finds that, in the late eighteenth and early nineteenth centuries,
as the formerly autonomous Jewish community was brought under the
supervision of the increasingly secular German state, its religious law was
subjected to harsh criticism as uncivilized and unbecoming of a modern age of
reason, progress and rationality.
123
Coterminously with a discourse of
disenchantment that condemned it as superstition, however, Jewish religious law
was represented by both its critics and its adherents as enchanted. Familiar
practices, the meaning of which lay on their surface in the very act of their
reiteration, underwent a process of estrangement, of ritualization. Jewish
tradition became a riddle, the symbolic and hidden significance of which has to
be deciphered . . . supernatural, exotic.
124

Lavi draws a moral here for law as . . . . If law as . . . is a reaction to
twentieth-century legal realism and sociolegal positivisma reaction that
emphasizes the imaginative, the symbolic, the metaphysicalis not its attempt to
reenchant itself enabled by that prior moment of disenchantment? For his own
part, Lavi suggests, first, that we pause to consider the affinities between
disenchantment and enchantment, specifically the logic of their
codependence;
125
and second, that we consider anew the dialectic of religion and
secularization, not, like Goodrich, to discover the metaphysical embedded in the
rational, but to explore the extent to which meaning lies in the minutiae of
practice itself, in habit and repetition.
The manner in which Lavi runs together enchantment, ritualization, and
symbolization, and introduces into the mix the role in modernity of anthropology,
challenges us to think further about the relationships among them. Although
anthropology, he says, is known for making cultures and customs that are distant
and foreign more comprehensiblethat is, for disenchanting themit also
strives to make that which is, in fact, becoming ever more familiar, into
something strange, alien and enchanted.
126
Many would argue, of course, that
ostensibly familiar things are in fact strange, alien and enchanted, that it does not
require anthropology to make the point. Still, Lavis larger observation holds.
Indeed, it holds for humanists and social scientists across the breadth of the
academy: critical estrangement is precisely what we do. Bertolt Brecht called it
Verfremdung (defamiliarization), the effort to create in a public a capacity for critical
insight by distancing it from the otherwise self-evident ordinariness of what it was
seeing.
127
For an example we need look no further than Welkes Owning
Hazard, which defamiliarizes consumption, dramatically, by refracting it through

123. Id. at 823.
124. Id. at 825.
125. Id. at 842.
126. Id. at 832.
127. See, e.g., MEG MUMFORD, BERTOLT BRECHT 60 (2009).
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injury, agony, and death.
128

If estrangement is the epistemic touchstone of what we do, let us apply it to
our theory-work; specifically, let us defamiliarize ritualization and symbolization
which, self-evidently, seem to be associated with enchantment. Well, are they?
Almost ninety years ago, A.R. Radcliffe-Brown, in a classical piece of
anthropological writing, answered affirmatively, arguing that ritualization enchants,
that it infuses mystery into the ordinary, that it symbolizes in a manner that
demands decoding.
129
But a later generation of anthropologyembodied,
genealogically, in the work of Evans-Pritchard, Mary Douglas, and Edmund
Leachtook to treating ritual and symbolism as largely technical, repetitive
behavior. Evans-Pritchard showed that African oracles, which appear to non-
Africans as the most mysterious of ritual manipulations, are regarded by both
adepts and supplicants as largely pragmatic, forensic procedures;
130
in a similar
vein, Leach saw ritual as the communicative aspect of all behavior, repudiating
altogether the dichotomy between the numinous and the profane.
131

There is, in short, a large difference between Ritual, upper case, and
ritualization, lower case.
132
In many cultural contexts, ritualization is less about
enchantment than about habitual ways of doing things. Similarly, a symbol may be
a puzzle to be decoded, but that does not make it a mystery, nor in itself
enchanted, any more than a cipher is a thing of the Gods. It is only a mystery if it
resists decoding and demands an interpretation whose referents can never be
finally determined. All behavior is symbolic but only some of it is enchanted.
The lack of any necessary relationship between ritualization or symbolization
and enchantment does not invalidate Lavis argument; after all, he is careful to
treat enchantment and disenchantment as co-present, not opposed to each other.
Still, it would be helpful to know more about the substance of ritualization here,
about its communicative content for those involved, about the numinous
dimensions of the symbolic in Jewish law as it came under the secularizing impact
of the German state, if only to determine the extent to which this historical
account of the relationship between science, realism, and disenchantment on the
one hand, and metaphor, imagination, and enchantment, on the other does

128. See Welke, supra note 91.
129. ALFRED R. RADCLIFFE-BROWN, THE ANDAMAN ISLANDERS: A STUDY IN SOCIAL
ANTHROPOLOGY (1922); see also ALFRED R. RADCLIFFE-BROWN, STRUCTURE AND FUNCTION IN
PRIMITIVE SOCIETY (1952).
130. E.E. EVANS-PRITCHARD, WITCHCRAFT, ORACLES AND MAGIC AMONG THE AZANDE
(1937).
131. E.R. LEACH, POLITICAL SYSTEMS OF HIGHLAND BURMA: A STUDY OF KACHIN
SOCIAL STRUCTURE (The Athlone Press 1970) (1954); see also MARY DOUGLAS, PURITY AND
DANGER: AN ANALYSIS OF CONCEPT OF POLLUTION AND TABOO (Routledge Classics 2002) (1966).
132. See Jean Comaroff & John L. Comaroff, Introduction to MODERNITY AND ITS
MALCONTENTS: RITUAL AND POWER IN POSTCOLONIAL AFRICA, at xi (Jean Comaroff & John L.
Comaroff eds., 1993).
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indeed take us beyond the opposition between law and and law as . . . .
133
For
just as there exists no necessary relationship between ritualization and
symbolization on the one hand and enchantment on the other, so the
enchantment of the law is not necessarily distinguishable from, or opposed to, its
technical dimension or its rationalization.
Which should come as no surprise. For, to be sure, modernity sui generis has
sacralized the technical. A succession of its millennial faithsCommunism,
Fascism, Free Market Capitalismhave all preached the power of techne to
construct a better world for all. Perhaps the most potent expressions of this faith
are evident in the fetishization of the law, of its instrumental capacity, as a
systematic repertoire of rational practices, to yield an ordered, equitable, just
society. What could be more enchanted than to believe that law has a life of its
own: that it has the wherewithal to shape the very forces and relations that actually
shape it, to create the world in its own image, to determine, for both good and ill,
things that happen in that world, to make things appear commensurable, to yield
rational solutions to irrational problems. These are all entirely magical ideas.
Collectively, they indicate that it is in the very hyperrationality of the law that its
fetishization, its ultimate enchantment, lies.
All of this suggests that Lavis moral for law as . . . may not after all be
fatal to its purpose. For if law as . . . has emerged in reaction to laws
disenchanters, it is a reaction that recognizes their disenchantment as itself a
means to enchant, a means heavily favored by the present but with a long history
of its own, a means that law as . . . resists. Lavi has underscored the affinities of
disenchantment and enchantment. But what he describes as a codependence is
more appropriately conceived of as a dialectic, a dialectic that leads us not simply
to the metaphysical embedded in the rational, but also to the rationality of
modernist metaphysics.
For some, the receivedthat is, the Weberian, predialecticalopposition
between disenchantment and enchantment maps seamlessly onto a presumptive
opposition between law and culture. Assaf Likhovski reminds us that this cannot
be left unproblematized.
134
How, Likhovski asks, are we to theorize the
relationship between law and culture? Is it causal? Does one construct the other?
Or reflect it? Are they mutually independent? How does resort to the so-called
cultural defense in liberal legal systems inflect and illuminate that relationship?
To answer these questions, Likhovski deploys two instances from the legal
history of taxation. The first deals with the transplantation of income tax from
Britain to British Mandatory Palestine in the 1930s and 1940s; given that tax law is
often considered technical and hence easily transferable, Likhovski observes, it

133. Lavi, supra note 11, at 814.
134. Assaf Likhovski, Chasing Ghosts: On Writing Cultural Histories of Tax Law, 1 U.C. IRVINE L.
REV. 843 (2011).
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follows that its export to Palestine should tell us something about the extent of its
cultural specificity. The second concerns income tax in Britain itself in the two
decades after its introduction there (17991816); specifically, it addresses the
cultural connotations of taxation for developing notions of privacy. To these cases
Likhovski annexes a third, much shorter discussion of a 2004 Israeli Supreme
Court case, Israel Religious Action Center v. Ministry of Finance, which involved the
kabbalist miracle-worker Elazar Abu-Hatsera and his failure to pay taxes on
money allegedly given [to him] out of spiritual and religious belief by followers
whom he had blessed.
135
Here was my dybbuka wandering spirit possessing a
living bodywrites Likhovski, delightfully. How should we view Abu-Hatseras
cultural defense argument, and more generally, what exactly is the relationship of
tax law and culture?
136
His essay canvasses multiple options. Does law determine
culture? Does culture determine law? Does either determine the other?
If we accept the terms that Likhovski has chosen for the analysis of his cases,
it is hard to disagree with his conclusion that causality is complex, even
indeterminate. But the cases are so dissimilar, and involve such different species of
encounters between law and culture, that it is difficult to draw any definite
conclusion from themleast of all in respect of in/determinacy. The first, the
case of Abu-Hatsera, is about the tolerance of difference on the part of a legal
regime, and even more, about the challenge posed to liberalism by claims to the
sovereignty of religion. The second, the imposition of income tax on Mandatory
Palestine, arose out of, and devolved upon, the cultural politics of empire. And the
third, the case of British taxation and privacy, concerned the dialectics of culture
and the law within the confines of a shared social universe. Only the last is material
to the problem of determination. The Abu-Hatsera decision turned on whether to
grant an exception to religious difference within the hegemony of national law; the
Palestine example on whether to treat the natives as like enough, or too little
like, ordinary Britons to be taxed. In neither instance was a change in culture
wrought by the law, or a change in law wrought by culture. In each, the law dealt
with matters cultural either by accepting them as a legitimate exception or by
refusing to recognize them entirely.
137


135. Id. at 846.
136. Id.
137. It is worth briefly elaborating these distinctions. In 1983, Benedict Anderson depicted
the modernist polity as an imagined community founded on horizontal fraternity and cultural
homogeneity. See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE
ORIGIN AND SPREAD OF NATIONALISM (1983). Almost from that moment, if not before, nation-
states, particularly in Europe, have been engaged in a headlong rush toward ever greater
heterogeneity. One upshot is that identity politics are almost everywhere on the rise. Concomitantly,
legal claims made on the basis of differencein short, cultural defensesare more and more
common. In Africa, for example, they have become epidemic, to the extent that, in South Africa, for
one, an entire jurisprudence is emerging around them. But the point is that the law into which they
play is not that of the cultural context whence they come, but that of the culture from which they
demand exception. So, for instance, when Jews in Manchester, England, or Zulus in South Africa
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In the British example, the causal connection between the law and culture
Likhovskis theoretical conundrumis actually broached. But here we encounter
another problem, a problem less of relevance than of definition. Likhovski defines
culture in a very particular way: as a set of ideas, beliefs, symbols, values, social
norms, and practices which are often unconscious, are relatively stable and static,
and are widely shared by most members of a given social group.
138
It is, he adds,
distinct from politics and economicsand, by necessary extension, from law.
Having reified culture and set it apart in this way, Likhovski then seeks to establish
its relationship to another reified construct, this one left undefined: that is, law.
It is not surprising that, thus conceptualized, Likhovski finds it difficult to
discover any determinate connection between law and culture. For as legal
anthropology has long taken pains to point out, law does not exist outside culture at
all. It lives integrally within it. From where else could its own significata, its own
ideas, beliefs, symbols, values, social norms, and practices,
139
come if not from
the cultural order of which it is part? Why else does it vary cross-culturally?
Reciprocally, culture is everywhere mediatedgiven both manifest and material
lifeby law, however law may be endogenously conceptualized; which, in major
part, is a cultural question to begin with. In short, the relation between law and
culture is not one between two discrete, autonomous phenomena at all, but a
relation of part to whole. Phenomena in part-whole relations, logically, neither
reflect, nor construct, nor determine each other. They do all of these things some
of the time and some of them all of the time. Rather than ask which determines,
constructs, or reflects the other, the more pressing problem is to plumb the
cultural processes by which is law made, reproduced, authorized, alteredand by
what legal processes cultural worlds are produced, transformed, re-cognized.
This, in turn, demands that we see culture not as a set of ideas, beliefs,
symbols, values . . . which are . . . relatively stable and static, and are widely
shared,
140
but in dynamic, three-dimensional terms. A more contemporary
anthropological view than Likhovskis treats culture as a field of signifying
practices, the ground on which human beings seekby means at once material
and meaningfulto construct themselves and others; signifying practices that may
be more-or-less stable, more-or-less labile, more-or-less contested, more-or-less

insist on exemption from the law of the land on the grounds of their beliefs, it is not Jewish rabbinical
law or Zulu vernacular law on which their respective cultures are having an impact, but British and
South African jurisprudenceand their capacity as liberal democratic legal systems to deal with
diversity. Such struggles over the recognition of the excluded (example 1) are not the same as the
problems that faced colonial regimes, whose functionaries had to decide on the treatment of
indigeneity and difference under their regimes of rule (example 2). Nor are they the same as
endogenous arguments in Britain, ideological arguments couched in British cultural terms, over
privacy and taxation within a world defined by the presumption of sameness, likeness, unity (example
3).
138. Likhovski, supra note 134, at 846.
139. Id.
140. Id.
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enduring, variously empowered. At any historical moment, some are hegemonic,
taken for granted, others are ideological, being the ideas and values of different
fractions of the population that subscribe to them; some are conscious, others are
unconscious; many are suspended in between, recognized but not fully
cognized.
141
Like economics and politics, law is constituted, reproduced,
contested, and transformed within this field of meaning and practice. In it, some
legal ideas, institutions, norms, and conventions become authoritative, hegemonic.
Others become the object of ideological struggle. As they do, so they alter the
cultural fieldand, as the cultural field shifts its shape, so may they, but not
necessarily or in any overdetermined historical proportions.
Law and culture, culture and the law, in sum, are not causally connected in
any simple way. Nor are they independent of each other. The one is the field in
which the other becomes objectified, authorized, enacted, amendedsometimes,
as we have seen, by ritual meansbut never mechanically or autonomically so. In
the life of normative signs and practices there are always excesses and deficits,
supplements and decrements. Hence the ever-present possibility of the
unexpected, and of the erosion of prevailing hegemonies, orthodoxies, and
ideologies.
What does all this suggest for the work of legal history? To the degree that it
cannot but address this underdetermined, open dialectic of law in culturenot
law and culture, note, nor even law as culture, but law in culturethe task of the
discipline is to make visible the processes by which the means and ends of the law,
in all their Ritual and ritualized guises, become portrayed, practiced, and
understood as sensible; even more, to unravel the processes by which those means
and ends become the hegemonic, axiomatic instruments by which right is
exercised, by which property is made private, by which violence is sublimated into
juridicide. By which, in other words, law becomes a fetish.
142

Modern secular law, born of the separation of lex naturae from lex dei, has
always had the quality of a fetish. Thomas Aquinas anticipated the point in the
thirteenth century by noting how the sacral (grace) completed, by perfecting, all
natural law.
143
The point is echoed in Benjamins critique of the mythic violence
at laws originary core,
144
in Derridas analysis of the mystical foundation of its
authority,
145
and in Agambens attempt to find the key to power in the

141. See 1 JEAN COMAROFF & JOHN L. COMAROFF, OF REVELATION AND REVOLUTION:
CHRISTIANITY, COLONIALISM, AND CONSCIOUSNESS IN SOUTH AFRICA 1932 (1991).
142. See John L. Comaroff, Reflections on the Rise of Legal Theology: Law and Religion in the Twenty-
First Century, 53 SOC. ANALYSIS 193, 195 (2009), reprinted in CONTEMPORARY RELIGIOSITIES:
EMERGENT SOCIALITIES AND THE POST-NATION-STATE 193 (Bruce Kapferer et al. eds., 2010).
143. WALTER ULLMANN, LAW AND POLITICS IN THE MIDDLE AGES 272 (1975).
144. BENJAMIN, supra note 28.
145. Jacques Derrida, Force of Law: The Mystical Foundation of Authority, in ACTS OF RELIGION
228 (Gil Anidjar ed., 2002).
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triangulation of sovereignty, the sacrificial, and the juridical.
146
In the history of
the present, the signs of laws fetishizationthe form in which an idea will
constantly confront the historical world, until it is revealed fulfilled, in the totality
of its historybecome yet more pronounced.
147
They are to be read in the tidal
wave of national constitutions written and rewritten since 1989, with their stress
on political, economic, social, even cultural rights; in the emergence of new,
expansive forms of transnational legality and of legally-oriented NGOs;
148
in the
rapid growth of a global intellectual property regime;
149
in the rampant
judicialization of politics,
150
its rendering into lawfare;
151
in the rising, worldwide
hegemony of human rights
152
and everyday legal consciousness;
153
and, most
of all, in the resort to litigation to deal with an ever broader spectrum of everyday
matters. None of these things in itself is new, patently; that, after all, is the point
of theorizing them historically. But changes in degree, when they accumulate
sufficiently and come together in new assemblages, may amount to changes in
kind. Thus it is that the law appears in the present more and more as a fetish: as
an abstraction made real, a highly animated abstraction to which is attributed the
mythic, numinous capacity to configure the world in its own image. Interrogating
how this has come to be is, ultimately, what legal history is for.
VI. THE LAW AS FETISH, AS FRAMEWORK, AS GRACE
Of War, Governance, and the Rule of Rules
John Witt does precisely that in respect of the laws of war. For an answer, he
turns to a history that begins in the first moments of European settlement on the

146. GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (Daniel
Heller-Roazen trans., Stanford Univ. Press 1998) (1995).
147. BENJAMIN, supra note 29, at 4546; John L. Comaroff & Jean Comaroff, Law and
Disorder in the Postcolony: An Introduction, in LAW AND DISORDER IN THE POSTCOLONY 1, 2235 (Jean
Comaroff & John L. Comaroff eds., 2006).
148. David Schneiderman, Constitutional Approaches to Privatization: An Inquiry into the Magnitude
of Neo-Liberal Constitutionalism, 63 L. & CONTEMP. PROBS. 83, 87106 (2000); see also DEZALAY &
GARTH, supra note 112; Yves Dezalay & Bryant Garth, From the Cold War to Kosovo: The Rise and
Renewal of the Field of International Human Rights, 2 ANN. REV. L. & SOC. SCI. 231 (2006).
149. ROSEMARY J. COOMBE, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES (1998);
Rosemary J. Coombe, Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law
Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity, 6 IND. J. GLOBAL LEGAL
STUD. 59 (1999).
150. Cf. Martin Chanock, Culture and Human Rights: Orientalising, Occidentalising and Authenticity,
in BEYOND RIGHTS TALK AND CULTURE TALK: COMPARATIVE ESSAYS ON THE POLITICS OF
RIGHTS AND CULTURE 15, 34 (Mahmood Mamdani ed., 2000).
151. See John L. Comaroff, Colonialism, Culture, and the Law: A Foreword, 26 LAW & SOC.
INQUIRY 305 (2001); see also Comaroff & Comaroff, supra note 147, at 2631.
152. Heinz Klug, Transnational Human Rights: Exploring the Persistence and Globalization of Human
Rights, 1 ANN. REV. L. & SOC. SCI. 85 (2005).
153. PATRICIA EWICK & SUSAN S. SILBEY, THE COMMON PLACE OF LAW (1998).
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North American mainland and continues through the present.
154
His evidence
offers almost a textbook case for fetishization. As warfare has become more
destructive, laws of war have proliferated. And legal expertiseincreasingly
hyperrationalized and technicized, we might addhas become an integral part of
military command and control, to the extent that [l]awyers [now] sit in on
targeting decisions.
155
War law itself is no modern novelty, of course; it has run
like a thread through the history of American military operations and of the
Republics social experience of armed conflict.
156
Nor has its use changed much in
tune with modern circumstance. The past reveals no prior golden age of American
respect for the laws of war from which the present, in its confrontation with
asymmetric conflicts, informal combatants, and terrorism, has diverged.
Throughout its history, American engagement with these laws has been a
complex and sometimes ugly experience.
157

How then to answer the question, [w]hat is this thing, the laws of war?
158

Witt suggests, as a general proposition, that law is a domain of conflict amongst
competing social-cultural groups and that laws are framed in the course of that
conflict. This, he says, is true of any legal regime. Take, as an example, the clashing
cultural norms in the pursuit, practice, and purpose of combat that attended
European relations with autochthonous American populations from the beginning
of mainland settlement. From that clash emerged an intellectual framing of
European war law that excluded barbaric indigenous violence from the ambit of
what was allowablewhich, in turn, reinforced settler perceptions of Indian
warfare as savage and unruly. Witts account is interactive: cultural contest occurs
in a legal field and (re)constructs that field. In this particular instance, it produced
a mode of legal differentiation between European and Indian endogenous to the
history of war law itself. Indeed, it became a central feature of the laws of war,
one that American jurists and soldiers helped to elaborate and secure.
159

In other, similar cases, Witt considers how the role of American irregular
combatants in nineteenth-century campaigns of expansion alters our
understanding of the substance and significance of laws of war framed by military
professionals; and he shows how the laws of war have been a resource in political
struggles over the definition of state power and in the construction of the property
regime of the Early Republic, notably in the matter of slavery. These historical
cases, taken together, Witt argues, make it plain that war law has been created and
recreated not in exegetic disquisitions upon formal doctrine but in circumstances
of active social and cultural conflict. As such, war law stands not as a measure of

154. John Fabian Witt, The Dismal History of the Laws of War, 1 U.C. IRVINE L. REV 895 (2011).
155. Id. at 898.
156. Id. at 899.
157. Id. at 901.
158. Id. at 896.
159. Id. at 903.
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the legality of the American way of warfarethe mistake made by each of the
prevailing master narrativesbut as a wide-ranging, persistent framework for
moral contestation . . . about ends and means that has animated and shaped the
ethical conceptualization of some of the gravest moments in American
history.
160

Witts analysis of legal regimes as dynamic fields of social and cultural
contestation avoids many of the problems that arise from reducing law and culture
to discrete isolates, and from treating the latter as a static, ahistorical repertoire of
shared beliefs and symbols. His thesis, that the legalities of war take shape in a
contested field of meaning and practicethat is within cultureand in the process
alter it, is convincing. To call law a framework for ethical debate, however, is
open to question. In doing so, Witt suggests that law is more significant as a site in
which action occurs than as a substantive species of practice on its own account.
He also implies that, as a context, laws framing function persists through time
relatively unchanged, even as its discursive and pragmatic content may alter. This
view of the thing, the laws of war as a persistent framework within which
conflicts occur is consistent with Witts disapproval of the two received master
narratives which, while offering competing perspectives (declension, novelty),
nonetheless share a stress on discontinuity. They cant both be right, he says.
161

Declaring them both wrong is Witts prelude to the production of an alternate
narrative of continuity, of law as framework for multiplicitous (social, cultural,
political) contests.
There is no need to embrace the discredited master narrativesWitt
effectively lays waste to them bothto point out that, as a matter of historical
logic, they can both be right; that is, if one allows the possibility that the laws of
war of the nineteenth and early twentieth centuries were different from those of
the late twentieth and early twenty-first centuries. Whether or not they were is an
empirical question. But, as we have already noted in respect of the metaphysics of
dis/enchantment, there is good reason to be careful when considering the
question of dis/continuity; all the more so if we recall our earlier point that, in so
far as it is a hyperrationalized, technicist departure from the past, contemporary
war law is almost a textbook instance of fetishization. The conclusion? We ought
to be wary of presumptions of continuity, not least those that lurk in the
conceptualization of law as an enduring frameworkone that is essentially always
the same thing in function if not form. If nothing else, they carry the risk of
dehistoricizing history.

160. Id. at 911.
161. Id. at 898. Witts argumentative strategy herediscovery of two prevailing master
narratives, distinct from each other and both wrong, and substitution of a thirdis reminiscent of his
earlier history of the origins of workmens compensation. See JOHN FABIAN WITT, THE ACCIDENTAL
REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN
LAW (2004).
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Paul Frymer explores the legal incidents attendant upon one of the cultural
conflicts that figure in John Witts essay: that between indigenous populations and
the rapidly expanding antebellum American republic.
162
The result is an extended
commentary in the genre of American Political Developmentof which Frymer
is a leading exponenton the assumption of the weak state that has long
pervaded scholarship on the period.
163
Frymer concedes that the antebellum
United States did not look like a conventional imperium: it was not highly
centralized or bureaucratized, nor was it possessed of extensive fiscal-military
resources. This does not mean, however, that expansion was not a governmental
project. The state may have lacked the conventional apparatuses of empire, but
the instruments that it did possess were used effectively to further territorial
growth. These features of state power [were not] regulatory agencies and
militaries, but rather the political and legal control exercised over land distribution
through the creative use of property laws and the ability to move settler
populations strategically so that the nation could both populate and defend the
vast spaces.
164
This form of empire-building by subcontract was not uncommon
among eighteenth- and nineteenth-century European imperialists; in fact, it was
more the norm than the exception in colonial era expansion, in which a state of
colonialism often preceded the colonial state.
165
The deployment of private
enterprise and forces of order to serve a public purpose underscores the
significance of the states peripheries and proxies, its capillaries and
noncommissioned collaborators in the microprocesses of colonization. Land
laws replace the need for bureaucracies, and settlers . . . replace the need for
armies. Courts need not create or implement policy reform but need only to help
perpetuate the legitimacy of specific rules.
166
Here we have the hidden
transcriptshidden, that is, in plain sightof American state formation that are
attracting increasing attention these days, creating precisely the nexus of legal and
general historiography for which Laura Edwards calls.
167

Indeed, just as Edwards draws our attention to the blur of law and society
at local levels of governance, so Frymers account of Native American removal
makes plain how the same blur can be found at every level of state practice. Indian

162. Paul Frymer, Building an American Empire: Territorial Expansion in the Antebellum Era, 1 U.C.
IRVINE L. REV. 913 (2011).
163. For recent description, critique, and debate of the weak state assumption, see William
J. Novak, The Myth of the Weak American State, 113 AM. HIST. REV. 752 (2008), and AHR Exchange:
On the Myth of the Weak American State, 115 AM. HIST. REV. 766, 766800 (2010). See also BRIAN
BALOGH, A GOVERNMENT OUT OF SIGHT: THE MYSTERY OF NATIONAL AUTHORITY IN
NINETEENTH-CENTURY AMERICA (2009).
164. Frymer, supra note 162, at 917.
165. John L. Comaroff, Reflections on the Colonial State, in South Africa and Elsewhere: Fragments,
Factions, Facts and Fictions, 4 SOC. IDENTITIES 321 (1998).
166. Frymer, supra note 162, at 918.
167. Edwards, supra note 37. For one recent example of the fusion of legal and general
historiography, see BALOGH, supra note 163.
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removal is typically seen as a national policy associated specifically with Andrew
Jacksons presidency; and it did have advocates in his administration, as well as in
political-military circles.
168
But, Frymer shows, Indian removal was as much
process as policy, pursued incessantly and through a plurality of mechanisms
throughout the legal system. [L]egal mechanics disempowered indigenous
populations on a day-to-day basis, moving slowly but surely to engulf their lands
within the province of American authority. By the time Indian Removal became
the official policy of the national government, much of the work of American
expansion had already been accomplished.
169
Nor was this species of legal
imperialism a nineteenth-century invention. It began with European settlement.
170

American federalism merely added new layers, new subtleties, new sites to its
workings.
It is a commonplace of progressive theoryin legal history as in other
realms of sociolegal studiesthat law is the ultimate solution to the problems that
it causes: that it furnishes the rights with which the oppressed may counter the
might of their oppressors. Well, does it? And what if it does? Mariana Valverde
addresses these questions in her essay on the epistemological significance of
contemporary Canadian Aboriginal land claims litigation,
171
which follows on
fittingly from Frymers account of the legal mechanics of nineteenth-century
indigenous dispossession in the United States. Her findings are quite remarkable.
On one hand, in the matter of recognizing native title, Canadian courts have
yielded a degree of remedial ground to Aboriginal claimants by allowing limited
procedural and evidentiary provision for vernacular practices of claiming. On the
other, in defining the sovereign against whom claims are made, the courts have
embraced a wholly magical conception of The Crown, of its inherent
virtues, and of their dutiful expression by the Canadian state, to stand in for, and
thereby effectively fend off, what might otherwise be framed as indigenous
rights.
172
Instead of justice accomplished by a politics of recognition, the Crown
produces completion, or promises it, in the form of grace.
173
We are, it seems,
returned once more to the metaphysics of enchantment.
The threads of dis/enchantment interweave throughout Valverdes essay. In
the landmark 1997 case of Delgamuukw v. British Columbia, the Supreme Court of
Canada ruled that territorial claims presented in the Aboriginal vernacularin the
performance of ritual narratives and songs, rather than in documentary and

168. See, e.g., DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE
TRANSFORMATION OF AMERICA, 18151848, at 34257 (2007).
169. Frymer, supra note 162, at 942.
170. See, e.g., CHRISTOPHER TOMLINS, FREEDOM BOUND: LAW, LABOR, AND CIVIC
IDENTITY IN COLONIZING ENGLISH AMERICA, 15801865, 93190 (2010).
171. Mariana Valverde, The Honour of the Crown Is at Stake: Aboriginal Land Claims Litigation
and the Epistemology of Sovereignty, 1 U.C. IRVINE L. REV. 955 (2011).
172. Id. at 957.
173. Id.
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archival textsshould be reconciled at trial with the ordinary rules of evidence
rather than dismissed as hearsay.
174
Precisely how this was to be done was left
unclear. Subsequent litigation has tended to affirm that, while mythical
(enchanted) testimony might be granted exception, there is a boundary that must
not be crossed between a sensitive application and a complete abandonment of
the rules of evidence.
175
The normative, disenchanted procedural episteme, in
other words, must remain intact. To be accorded the necessary exception,
furthermore, both mythical evidence and those who proffer it must meet technical
standards of anthropological authenticity that prove their unchanged, unbroken
cultural lineage.
Meanwhile, in other cases, Canadian courts have found that the state has a
duty to consult affected Aboriginal peoples in matters, for example, of resource
development; it is a duty, though, that inheres in the honour of the Crown
rather than in either the redress of historical injustice or modern rights
doctrines.
176
In these cases, the balance of enchantment and disenchantment is
reversed. Where in native title litigation mythical evidence was to be
accommodated, grudgingly, to otherwise unyielding technical rules of evidence, in
duty to consult cases the Crown determines doctrine and its development.
Valverde suggests that, in general, Aboriginal litigants might well find advantage in
proceedings that invoke the duty to consult. But control over the terms of
participation in all cases, whether by changing what counts as evidence of legal
possession or by peering into medieval mists to refine the obligations of the
Canadian state, remains securely in the grasp of the law.
177
Here, Canadian courts
epistemic innovation has produced grace in action, purposeful sovereignty in
practice. Glancing backward to Peter Goodrichs invocation of MacPhersonalso a
Canadian casewe are allowed another glimpse of legality-as-theology at the very
moment of its enactment as effective oeconomy. Rather than provincialize itself
by putting in question its own self-knowledge,
178
Canadian law determinedly
subsumes Aboriginal metaphysics within Eurocentric technical rules and
disciplines in one line of cases, while enthusiastically asserting the transcendence
of a Eurocentric metaphysics embodied indexically in the numinous honor of the
Crown in the other. Canadian law, it would appear, is in full control of the logic of
its own dis/enchantment, and hence of the definition of the legal resources that
oppressed subjects might use in contests with sovereign authority.

174. Delgamuukw v. British Columbia (Delgamuukw v. the Queen), [1997] 3 S.C.R. 1010
(Can.).
175. Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911 (Can.), quoted in Valverde,
supra note 171, at 957.
176. Valverde, supra note 171, at 966.
177. Id. at 971.
178. Id. at 956.
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VII. TERMS OF ARGUMENT, REALMS OF DISCOURSE
Of Law, Economics, Politics, and Governmentality
How terms of argument are controlled, how a realm of discourse is defined,
how epistemes are brought to life or banished is the topic of Roy Kreitners
essay.
179
Kreitner interrogates the late nineteenth-century American debate over
money; specifically, over bimetallism. Famous for its roots in agrarian populism,
the debate pitted deeply entrenched interestsfarmer and industrialist, debtor and
creditor, West and Eastagainst each other. It climaxed in the 1896 presidential
election. And then, abruptly and puzzlingly, it disappeared from American politics.
Kreitner explains why by pointing to the generative power of the terms of
dispute. He shows that the argument was won by transforming those terms, thus
to produce a new discursive field and a new discourse of money.
180

Although Kreitner asks us to think of the battle over money as a
jurisprudential contest, law is not foregrounded as an actor or an active principle
in his analysis. Unlike Frymer and Valverde, he offers no catalog of cases or
statutesor of legal theorists. This suggests that, like John Witt, Kreitner sees
legalities as a framework within which cultural contestation occurs, which is (more
or less) where he ends up. But it is not where he begins. His account is rather of a
realignment between politics, economics, and law as modalities of thought and
action. It lays bare a discursive recoding of the terms of conflict that (i) removes
distribution from the ambit of politics, (ii) naturalizes the economy as a realm of
spontaneous, individualized action, and (iii) substitutes law as a facilitator of
transactional exchanges for law as medium of purposive intervention. In place of a
polity in which socioeconomic outcomes are a legitimate subject for political
determination by representatives in government, in which government is the
human face of the state, in which the state instantiates popular will through
legislation, and in which law is open to functional determination, this
realignment produces a microeconomic figuration that banish[es] the collective
and its politics from the money equation.
181
In that figuration, debate over
monetary questions is conducted in economics not politics, money becomes
facilitative of purely private and wholly individual exchange, endlessly repeated,
among all individuals, and law becomes the backdrop to moneys mediating
role, the ground, the known quantity or accepted baseline for individual action
. . . a limitation on what politics might even attempt to achieve.
182

The battle of monetary standards coincided with the dissolution of classical
legal thought in Oliver Wendell Holmes Jr.s antifoundational, antimetaphysical

179. Roy Kreitner, Money in the 1890s: The Circulation of Politics, Economics and Law, 1 U.C.
IRVINE L. REV. 975 (2011).
180. Id. at 976.
181. Id. at 1010.
182. Id. at 101012.
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acid bath, recounted so well by Kunal Parker.
183
The coincidence suggests an
alternative reading. Rather than mark a fundamental shift from politics to
economics, the battle might be seen as a consequence of a modernist loss of faith
in the possibility of absolute monetary valuethe denaturalization of money
turning it into the stuff of policy, of social construction, its meaning to be fought
out across a whole gamut of institutional and discursive sites: politics, law,
economics.
184
Given, however, the long, troubled history of fiat currency in the
United States and its predecessor colonies, it is difficult to imagine that late
nineteenth-century Americans had any faith in absolute monetary value to lose.
Which is why Kreitners emphasis on the modernist shifttoward the treatment
of policy as a matter of technique to be governed by expertise rather than
politicsis more compelling. It is also highly compatible with the history of
American progressivism, as Kreitners description of the discourse that would
dominate monetary policy underscores. It was founded on an economics for
which the technical analysis of . . . incentives would reach new heights in powerful
modeling and elegance, creating (or at least greatly reinforcing) a mode of
expertise with which it would be difficult to compete.
185
This, of course, is
economics as science, and, less obviously, as completion, drowning resistant
subjects in abstract relations . . . a model of structural objectivity . . . the authority
of scientific expertise.
186
All are modes of discourse that resonate with, rather
than undermine, the classical legal thought that rendered law as a natural(ized)
baseline for the analysis of exchange.
187

Kreitner himself sees the separation and naturalization of distinct spheres
of law, economy, and politics as a powerfully Weberian denouement, which
returns us once more to the salience of dis/enchantment in making sense of it. On
one hand, the emergence of scientific disciplines, and the surrender of policy to
their discourse of expertise, speaks to a process of disenchantment. On the other,
to attribute to the human sciences a capacity to produce nomothetic knowledge
about social life is to fetishize them in a manner that enchants their very hyper-
rationality. There is no better example of the double character of dis/enchantment
in this respect than Roscoe Pounds turn-of-the-century Law in Books and Law
in Action.
188
Pound posited action against books as a supremely
disenchanting critique of legal formalism, laying the foundation for legal realism
and sociolegal positivism. Simultaneously, however, he fetishized disciplinary
knowledge as the enchanted alternative. Lawyers, he said, should cease to assume

183. Parker, supra at note 6.
184. This interpretation was proposed by Morton Horwitz at the Law As . . . Conference in
a commentary on Kreitners paper, available at http://ocw.uci.edu/courses/course_banner.aspx
?id=113 (follow Interpretations Law, Policy, Economy Commentary hyperlink).
185. Kreitner, supra note 179, at 1012.
186. Id.
187. Id. at 101213.
188. Pound, supra note 56.
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that jurisprudence is self-sufficient.
189
They should make the law in action
conform to the law in the books . . . by making the law in the books such that the
law in action can conform to it.
190
How? By look[ing] the facts of human
conduct in the face, which meant, crucially, look[ing] to economics and
sociology and philosophy.
191
The social world was to be apprehended by looking
at once at human conduct and, by resort to professional discourses, past it.
Disciplinary expertise alone had the capacity to judge what the facts of human
conduct wereand what they signified.
192

Once it had separated them, Pounds sociological jurisprudence sought to
reconcile books with action, the juridical with the social, on its own, new, terms.
Each was granted a specific reason for being: the disciplines existed to discover
social factsthe facts of human conductby the deployment of expertise; the
juridical existed to regulate them by resort to law, its own expertise.
Reconciliation, however, was predicated on sustaining separation. Indeed, Pound
dedicated his career to defending the legitimacy and inviolability of the juridical
and its autonomy from the social.
193
His innovation, in short, was to sharpen the
lines of difference between the legal and its (economic, political, social) context by
constituting each of them as distinct, and distinctive, realms of knowledge.
194

Modernity, of course, was to reify, deify, define, and discipline those realms
of expertise, perhaps none so much as law and economics, which were later to be
joined in a hyphenated conjunctureLaw-and-Economicsa conjuncture at
once ideological and scholarly, enchanted and disenchanting. These disciplines,
among others, became the producers, purveyors, and arbiters of universal truths,
of the nomothetic and the naturalized, of new technologies of public life. And
they shipped their truths and technologies to the farthest corners of the earth,
where indigenous populations and places became laboratories in which those
technologies might be tested, those truths further refined.
Just such a passage takes us to Ritu Birlas India,
195
where a specifically
English version of one universally enchanted technology of public life, the self-
regulating free market, was installed by the colonial state in the nineteenth and
early twentieth centuries. Narrating its history through the lens of postcolonial
and particularly Foucauldiantheory, Birla considers the differences between
law and economy and law as economy as optics on the workings there of
governance. Law and economy, she argues, treats each element as a distinct

189. Id. at 36.
190. Id.
191. Id. at 3536.
192. See Tomlins, supra note 10, at 199202.
193. Id. at 201.
194. Id. at 20001.
195. Ritu Birla, Law as Economy: Convention, Corporation, Currency, 1 U.C. IRVINE L. REV. 1015
(2011).
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system, each a logos, each an arena outside the other.
196
In this iteration, law
acts on the economy to produce effects, namely, market relations. Those
effects may garner acceptance or provoke resistance but, whichever it is, the
separation of the two systems is underscored. By contrast, law as economy
stresses their mutual entailment, expressed in the etymological union of oikos with
nomos, in a household order produced and reproduced by regulative convention, in
practices of arranging, managing and governing, in administration.
197
In this
iteration, the interpellation of the market requires the deliberate disembedding of a
prior economy from its vernacular context. To illuminate that process, Birla turns
to political economy in its Foucauldian transformationthat is,
governmentalityas a potent modern arrangement of power directed at
managing political subjects as bodies and populations, at distinguishing, in
language that recalls Peter Goodrich, the terrestrial self-interested economic
subject from the celestial abstraction of the citizen, and at inscribing upon
that subject modes of conduct productive of a specific habitus.
198
For the legal
historian the challenge is to locate what it is that grants governmentality its
potency through interrogating law both as logos (after Goodrich) and nomos (after
Edwards); both in its vocalizations of sovereignty, that is, and in its production
of the social. Thinking law as economy, Birla adds, opens a robust engagement
of the relationship between law as nomos or conventionwhich, she reminds us,
Weber defined as conduct without coercionand law as logos.
199
The former,
recalling Edwards, she describes as the situated, located historicity of conduct
and practice; the latter, now recalling Goodrich and Valverde, as sealed scripted
judicial logic and sovereign (even divine) performative, as standardizing
Benthamite logic and the commands [of] sovereignty.
200

In showing how the Raj displaced a vernacular capitalism in India with
colonial capitalism, how the latter was created and sustained by market
governance, and how the market itself became an ethico-political sovereign
that monopolized both the definition of economy and the imagining of the
social,
201
Birla returns us one last time to the dialectics of dis/enchantment. As
she notes, the disembedding of the economy marks the abstracting of the self-
regulating market from the density of social meanings, a process that rendered
the market a model for all social relations.
202
The market abstracted, naturalized,
rendered universal is the market disenchanted. Yet, as Birlas Foucauldian analysis
demonstrates, the market was not stripped of all social meaning. It was simply

196. Id. at 1018.
197. Id. at 1021.
198. Id. at 1017; see also Goodrich, supra note 52.
199. Birla, supra note 195, at 1020.
200. Id. at 1020; see also Edwards, supra note 37; Goodrich, supra note 52; Valverde, supra note
171.
201. Birla, supra note 195, at 1023.
202. Id. at 1025.
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overlayed with new significata, of which one, at least for the colonizer, was its
putative universality, its rationality, its . . . modernity. Palimpsest economism,
Steven Wilf might suggest.
203
Put another way, the market was not
disenchanted. It was enchanted in a different register. At the same time, vernacular
capitalism, with all of its enchantments, continued to existas culture, at once
ancient and ever present, at once provincialized, privatized, ritualized. [T]he
colonial legal regime codified shifting, locally situated customary conventions into
scripted logics of religious personal laws, thus rendering formerly negotiable
hierarchies and differencesthemselves oppressive, and so not to be celebrated
as rigid and fixed.
204
The thought resonates with others among our authors:
Goodrich, Valverde, Edwards, and Wilf, already present, are joined by Lavi and
Schmidt.
205

Birlas conclusion stresses that the coercive force of innovationthe
recoding of one economy as universal, another as cultureinheres in law as
sovereign performative (logos).
206
There are limits to its efficacy, of course: the
ever presence of culture offers vernacular practice opportunities to evade the
laws that attempt to regulate it. Custom retains a currency with which legalities
cannot keep up.
207
Reading law as economy, however, dissolves the difference
between colonial and vernacular capitalism in at least one critical respect: the
practice of economy enacts law through arranging, managing and governing. As
nomos or convention, economy marks a set of actions that speak, as distinct from
the more familiar speech that acts, or the speech-act, the logos (the word and
system) that marks the autonomous performatives of sovereignty, ethical or
political.
208
The dissolution underscores the presence of coercion in the nomoi, the
actions that speak, no less than in the speech-act, in the debt servitude of
vernacular Indian capitalism, with its uncompromising patriarchy and strict
gender codes, as much as in the colonial capitalism that sought to displace it.
209

We have run full circle to Laura Edwardss peace, it seems: a peace profoundly
patriarchal and highly gendered, in which subordinates are at once
incorporated and kept in their place.
210

After all that we have been through, to end with the intrinsic, ubiquitous
coerciveness of the lawa bite with every bark,
211
whether logos or nomos,
212


203. See Wilf, supra note 31.
204. Birla, supra note 195, at 1024.
205. See Lavi, supra note 11; Schmidt, supra note 67.
206. Birla, supra note 195, at 1025.
207. See Kunal M. Parker, Context in History and Law: A Study of the Late Nineteenth-Century
American Jurisprudence of Custom, 24 LAW & HIST. REV. 473 (2006).
208. Birla, supra note 195, at 1035.
209. Id. at 1024.
210. Edwards, supra note 37, at 570.
211. Wilf, supra note 31, at 560.
212. Birla, supra note 195.
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whether Calcutta or the Carolinas
213
might seem a modest conclusion. So what
else is new? Well, among other things, the numinous magic of concealment in all
its myriad forms that inheres in legalities, in their arcane powers.
214
It is this magic,
as Catherine Fisk and Robert Gordon put it in their introductory essay, that
make[s] the state and its exercises of power . . . disappear,
215
whether by
dissolving it into nothing but history,
216
by naturalizing it,
217
by hiding it out of
sight,
218
by dispersing it into webs of cultural complexity,
219
or by disguising it as
something else.
220
It is in the very act of concealment, we would suggest, that the
impetus and the possibility lie for law to complete itself, to extend its hegemony,
to fulfill its self-appointed purpose, to secure its sovereignty. But its completion
has often been resisted,
221
its hegemony exposed,
222
because, like all things occult,
the magic of legalitiestheir dissimulation
223
is imperfect, subject to failure.
That which is concealed is always open to discovery; which, finally, is the task of
history. In penetrating the magicality of the lawin opening up to critical view its
gaps,
224
silences,
225
incapacities,
226
or simply its routines
227
lie opportunities to
question its sovereignty, to break the grip of techne, to recover its poesis, to reassert
its creative capacity to seek justice.
VIII. CONCLUSION
As each of us has had previous occasion to observeindeed, one (Tomlins)
in response to the other (Comaroff)Janus, the God of Gates and of those who
keep them, is surely these days the most popular of academic deities;
228
little
wonder, this, in an age of purposefully directionless direction. In the very first
essay in this collection, Steven Wilf names Janus the God of Legal Historians.
229

Once more we are catching up to the curve. This time we are way behind. Maxime

213. Edwards, supra note 37.
214. Valverde, supra note 171.
215. Catherine L. Fisk & Robert W. Gordon, Forward: Law As . . . Theory and Method in Legal
History, 1 U.C. IRVINE L. REV. 519, 538 (2011).
216. Parker, supra note 6.
217. Kreitner, supra note 179.
218. Frymer, supra note 162.
219. Likhovski, supra note 134.
220. Witt, supra note 154.
221. Spaulding, supra note 76.
222. Welke, supra note 91.
223. Goodrich, supra note 52.
224. Berkowitz, supra note 47.
225. Constable, supra note 59.
226. Schmidt, supra note 67.
227. Lavi, supra note 11.
228. See John L. Comaroff, Foreword to CONTESTED STATES: LAW, HEGEMONY AND
RESISTANCE, at ix (Mindie Lazarus-Black and Susan F. Hirsch eds., 1994); Tomlins, supra note 23, at
209.
229. Wilf, supra note 31, at 544.
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2011] AFTERWORD 1079

du Camp, famed author of Paris, Its Organs, Its Functions, Its Life, anointed Janus the
God of History more than 150 years ago. History, he explained, is like Janus, it
has two faces. But, he added, Whether it looks at the past or at the present it
sees the same things.
230

We take Wilf to be suggesting something not altogether dissimilar, if less of
temporalities than of substance. Legal historians should be bifocal, but we should
also temper our respect for the claims of difference made for themselves by the
twin topoi of our attention, law and history. We must of necessity keep an eye on
each, but the point of having two eyes is not to suffer double vision. It is to have
properly focused, more acute in/sight. Each of the essays in this collection
encourages us to gaze upon the past and present with two eyes, and to understand
that, as our perspectival depth deepens, we will see how ineluctable differences
and dichotomies dissolve into clarityor, better yet, transpose themselves into
dialectics of comprehensible proportions. The moral of the story? That our critical
vision, in all its careful bifocality, ought to aspire to one resolved object of study,
capaciously conceptualized. Legal history should not always be looking in two
directions, forever glancing nervously from one to the other.
Law as . . ., we reiterate, is neither a manifesto nor a prescriptive statement
of intent. Neither does it seek to be a paradigm. Were it to pretend to any of these
things, our best gift to the reader would be to declare it dead and done with. It is
no more than an eddy in the stream of becoming
231
that stands, at most, for an
attempt to open up a perspective. It is also, as its ellipsis suggests, a perspective in
progress, unfinished, incomplete, becominghopefully in both senses of the word.
Having spoken here of the urge toward completion and all the dangers inherent in
it, we are comfortable with the serial periods that mark an ongoing process rather
than a full stop. We hope, nevertheless, that the essays presented here have
demonstrated that law as . . . is not without its uses, its promises, its
provocations.

You have finished, statesman.
The State is not finished.
Allow us to change it
To suit the conditions of life.
Bertolt Brecht, Versuche 2 (1930)



230. Maxime du Camp, epigraph to Walter Benjamin, Paris, Capital of the Nineteenth Century,
Expos [of 1939], in WALTER BENJAMIN, THE ARCADES PROJECT 14 (Howard Eiland & Kevin
McLaughlin trans., 1999).
231. See BENJAMIN, supra note 29.