One
Introduction: Melancholia Juridica
The study of law has always traveled under the sign of Saturn, and the sages both of common and civil law have seldom paused to doubt the depressing character of legal study. The humanist reformer Hotman referred to the "abyss" of this study being such as to steal every waking hour, leaving no time either for scripture or other pursuits. The only fault greater than the "irritating and futile" flaws, the impostures or injustices of the interior matter or substance of the discipline was the vice which he perceived to be natural to its form: "What man of sense and judgment can read a single page of this word play [badinage ] without suffering weariness of heart as at a foul smell."[1] Hotman also referred to the study of law as an endless, disputations, and damaging pursuit of fragments, pieces, and patches (lopins ) representing "uncertain conjectures and tenuous divinations."[2] The lawyer compulsively sought to reconstruct a law lost in antiquity, particularity, and incoherence. Even Baldus, the most learned of fourteenth-century Continental jurists, is reported to have remarked on his forty-seventh birthday that he was still an apprentice in the law, that he still knew only a little of the law and was "dazzled by the authorities," so much so that he was forced to judge as often by chance as by reference to assured, certain, or written rules.[3] Nor were the common lawyers more reticent in their condemnation of the discipline. Dr. John Cowell, the second holder of the chair of common law at Cambridge University, remarked in 1607 that the study of common law had yet to be embellished
[1] François Hotman, Anti-Tribonian ou discours d'un grand et renômmé jurisconsulte de nostre temps sur l'estude des loix (Paris: Perrier, 1567, 1603 ed.) at 111. My translation.
[2] Ibid. at 134.
[3] Ibid. at 109.
by systematic or serious learning, that it had yet to acquire scholarship and a knowledge of Continental learning, that it had yet to gain "some comfortable lights and prospects toward the beautifying of this ancient palace, that has hitherto been but dark and melancholy."[4] His contemporary Sir John Doderidge referred to the study of law as being "multorum annorum opus, the work of many years, the attaining whereof will waste the greatest part of the verdour and vigour of our youth," and requiring not only constancy and endless hours but also the continence or chastity of an unrelenting discipline.[5] So too, even Sir Edward Coke, most usually an eulogist of the tradition and its perfections, was forced to admit that the student in the laws of the realm, "having sedentariam vitam, is not commonly longlived; the study [is] abstruse and difficult, the occasion sudden, the practice dangerous."[6]
The examples of law's melancholia could easily be multiplied. The directions or preparatives for legal study required both physical and mental preparation for the dangers of the discipline. The demands of law were numerous and life-long, the discipline required the training of the body and the capture of the soul. Sir John Fortescue referred to law as a "forbidding" discipline, as a sacral pursuit which was to engender a "filial" fear in its students.[7] William Fulbecke talked of the pernicious and addictive character of legal study, and of the obscure, dull, and coldly prosaic style of its texts: "The books of law . . . are not pleasant to read, the words or terms are harsh and obscure, the style no whit delightful, the method none at all."[8] Abraham Fraunce similarly considered legal study to be "hard, harsh, unsavoury, unpleasant, rude and barbarous" and as if that were not enough he concluded with an olfactory reference to its "loathsome savour."[9] The discipline of law demanded everything of its student and sought, in the emblematic community of the Inns of Court, to regu-
[4] Dr. John Cowell, The Interpreter or Booke containing the Signification of Words (Cambridge: Legat, 1607) at fol. 3a.
[5] Sir John Doderidge, The English Lawyer (London: I. More, 1629, 1631 ed.) at 29.
[6] Sir Edward Coke, A Book of Entries containing perfect and approved presidents of Courts, Declarations . . . and all other matters and proceedings (in effect) concerning the pratick part of the laws of England (London: Streeter, 1610, 1671 ed.) at fol. A 5 a.
[7] Sir John Fortescue, De Laudibus Legum Angliae (London: Gosling, 1468–70, 1737 ed.) at 3.
[8] William Fulbecke, Direction or Preparative to the Study of the Law (London: Clarke, 1599, 1829 ed.) at 51–52. The long subtitle to the book reads: Wherein it is shewed what things ought to be observed and used of them that are addicted to the study of law. Sir Edward Coke, The Reports (London: J. Rivington, 1611, 1777 ed.), pt. III at fol. C 7 b, also refers interestingly to a study whereby "thou shalt wholy addict thyself to the admirable sweetness of knowledge and understanding: in lectione non verba sed veritas est amanda. "
[9] Abraham Fraunce, The Lawiers Logike, exemplifying the praecepts of logike by the practice of the common lawe (London: W. How, 1588) at sig. 3r.
late every detail of gesture, dress, diet, lifestyle, company, and behavior. The early legislation of the Inns explicitly required reverent behavior, a minimum of noise and forbade beards and long hair as well as colorful clothing, alcohol, tobacco, and games of shoffe-grotte. Lawyers should wear "sad colours," appear downcast, and generally be quiet in the limited sphere of their life outside of court.[10] In terms of principle Fulbecke, in the course of elaborating the proper regimen of the law student, stated "the next thing I require in a student is temperance . . . a restraint of mind from all voluptuousness and lust, as namely from covetousness, excess of diet, wantonness and all other unlawful delights."[11] Other authors agreed fully that the study of law, which required as its first art that of memory, necessitated that the "student keep a diet, and eschew surfeits, to sleep moderately, to accompany with women rarely, and last of all to exercise the wit with cunning of many things without book."[12] Other more pedantic and curious manuals of advice dictated that the student should rarely eat red meat, since its "vapours and fumes do cloud the mind and overshadow the clearness of the brain,"[13] and should rise early and not study too late. The need to begin study at dawn was in part a reflection of the demands of an unending pursuit, but it was also metaphysical: dawn was the friend of the muses (aurora musis amica ), the air in the morning "was subtilized, and made thin, pure and free from all gross vapours but in the night time it is thickened, and corrupted with all contagious exhalations, which possessing the senses, do pierce into the brain."[14] The night, in a sense to which this study will frequently return, was the time of fantasy or imaginings, of images and women, and all were perceived as threats to the capacity, probity, and reason of law, for "night always comes on with the mind disturbed."[15]
[10] On the early rules and legislation of the Inns of Court, see William Dugdale, Origines Juridiciales or Historical Memorials of the English Laws, Courts of Justice, Forms of Tryal (Savoy: T. Newcomb, 1666, 1671 ed.), especially 188–192. See further Peter Goodrich, "Eating Law: Commons, Common Land and Common Law" (1991) 12 Journal of Legal History 246.
[11] Fulbecke, Direction or Preparative at fol. J 9 b.
[12] Thomas Wilson, The Arte of Rhetorique (London: Garland, 1533, 1982 ed.) at 420.
[13] W. Phillips, Studii Legalis Ratio or Direction for the Study of the Laws (London: F. Kirkman, 1667) at fol. k i a–b; William Fulbecke, Direction or Preparative at 48.
[14] Fulbecke, Direction or Preparative at 46–47; similarly Phillips, Studii Legalis Ratio at fol. J 9 b, distinguishes the spirit at dawn and dusk: "For the spirits of our Bodies, following the dispositions of the air, which in the morning at sun rising is subtill and thus pure and free from all gross vapours and our minds being of the same condition, are quick and nimble . . . and after sleep the memory is moistened with the vapours arising out of the stomach, and so made fitter and better disposed to receive the figures of the matter conceived and apprehended."
[15] Marsilio Ficino, De Vita (1480), translated by C. Boer as Book of Life (Dallas: Spring Publications, 1980) at 16. The other source of this fear is "the monster . . . the coitus of Venus" also discussed in ch. 7.
It is tempting to conclude that the study of law either attracts or produces unhappiness. It is tempting to surmise that wealth, status, and political influence, the rewards of law, can never be a full compensation for the risks of looking too long "upon ink and black buckram."[16] The fate of the law student is that of studying a discipline that Sir Roger North depicted not only as dangerous, difficult, and less pleasant than other disciplines but also as demanding the "whole man . . . [who] must not only read and talk, but eat, drink and sleep law . . . nulla die sine linea ."[17] In Fulbecke's view, lawyers were eventually consumed by law. They became "so full of law points that when they sweat it is nothing but law, when they breathe it is pure law, when they sneeze it is perfect law, when they dream it is profound law. The book of Littleton's Tenures is their breakfast, their dinner, their tea, their boier [supper] and their rare banquet."[18] Law, or legal addiction, consumes the subject from within until nothing but law is left—a façade, a face, a "winding cause," the melancholy of exploitation and nothing more. And, according to Burton's Anatomie of Melancholy, it was not simply the individual who would need to be saved from law's inevitable melancholic effects but equally the state or commonwealth which was prone to succumb to the same humor or condition of melancholy. In diagnosing the mental health of a population, in analyzing the unconscious of the institution, Burton does not hesitate to offer law and lawyers as a symptom of collective mental illness: "I undertook at first that Kingdoms, Provinces, Families, were melancholy as well as private men," and thus he adds "where [a population] be generally . . . contentious, where there be many discords, many laws, many law suits, many lawyers . . . it is a manifest sign of a distempered melancholy state."[19] For much of the first book of the Anatomie, law is virtually synonymous with the diagnosis of melancholy. The topic or theme is a common one in commentaries upon the state of the commonwealth. For Burton, law "is a general mischief in
[16] Cyril Tourneur, The Revenger's Tragedy (London: Eld, 1607) at lines 49–53: Lussorioso: "Why, will that make a man melancholy?" Vindice : "Yes, to look long upon ink and black buckram—I went to law in Anno Quadragesimo secundo , and I waded out of it in Anno setagesimo tertio ." For another dramatic satire of law and lawyers, see George Ruggles, Ignoramus or the English Lawyer (London: n.p., 1621, 1736 ed.).
[17] Sir Roger North, A Discourse on the Study of the Laws (London: T. White, 1650, 1824 ed.) at 7. He remarks a page later that "there are other studies more pleasant than law."
[18] William Fulbecke, A Parallele or Conference of the Civil Law, the Canon Law and the Common Law of this Realme of Englande (London: Society of Stationers, 1602, 1618 ed.) at fol. B 2 a–b.
[19] Robert Burton, The Anatomie of Melancholy: What it is, with all the kinds, causes, symptomes, prognosticks, and severall cures of it by Democritus Junior (Oxford: H. Cripps, 1628) at 39. For further views of melancholy, contemporaneous with Burton's, see T. Bright, A Treatise of Melancholy (London: Vautrollier, 1586); Nicholas Breton, Melancholike Humours (London: Scholartis Press, 1600, 1929 ed.).
our times, an unsensible plague, and never so many of them . . . and for the most part a supercilious, bad, covetous, litigious generation of men. . . . A purse milking nation, a clamorous company, gowned vultures, qui ex iniuriam vivunt et sanguine civium, thieves and seminaries of discord . . . irreligious Harpies, griping catchpoles . . . without art, without judgment."[20]
The nation, according to Thomas Wilson in 1601, was being consumed by common lawyers, a profession that had gained an unwarranted and uncivilized monopoly on disputing "since the practise of civil law has been as it were wholly banished and abrogated, and since the clergy has been trodden down by the taking away of Church livings."[21] The profession had expanded beyond reason and conscience, and some more compendious means of composing disputes had to be possible. As if the condition of seizure, addiction, or apprenticeship to law was not deterrence enough, the lawyer thus had also to face a constant stream of criticism precisely directed at the obscurity, superabundance, immorality, and greed of, and delays promulgated by, his profession. Early political commentators on the growth of the modern legal profession constantly talked of swarms of lawyers infecting the commonwealth like the plague.[22] Dramatists satirized the lawyer as a pettifogging fraud, as a hanger-on and parasite: "Without the least taste of university learning, they advance, swelled with presumption, and full of ignorance and impudence to the Bar."[23] They were brave and ludicrous "magnificoes" who hid their ignorance of both law and custom behind the use of "inkhorn" terms, a nonsensical jargon composed of Greek, Latin, French, Dutch, Danish, and double Dutch—"if all men spoke such gibberish, 'twere a happiness to be deaf."[24] The lawyer was more popularly perceived as a wheedler and wrangler, a scrivener without a soul, an advocate of venal motive whose only cause was a barbarous self-interest in dirty lucre. The law was expensive and time-consuming, delay was piled upon delay, while incompetence or simple confusion would eventually
[20] Ibid. at 49.
[21] Thomas Wilson, The State of England, A.D. 1600 (London: Camden Miscellany, 1601, 1936 ed.) at 25.
[22] For further representative critiques of common lawyers, see: John Day, Law Tricks (Oxford: Malone Society Reprints, 1608, 1950 ed.); John Warr, The Corruption and Deficiency of the Laws of England (London: R. Dutton, 1649). Excellent secondary discussions are provided by J. H. Baker (ed.), The Reports of John Spelman (London: Selden Society, 1978); C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The Lower Branch of the Legal Profession in Early Modern England (Cambridge: Cambridge University Press, 1986).
[23] Richard Head, Proteus Redivivus or the Art of Wheedling or Insinuation (London: W. D. 1675) at 272.
[24] Ruggles, Ignoramus at 8. See further, Sir Henry Spelman, The Original of the Four Law Termes of the Year (London: Gillyflower, 1614) at 99; see also Fraunce, Lawiers Logike, Preface. Burton, Anatomie of Melancholy, refers at 49 to the disease of damnificos linguas , a language of the damned.
ensure that the litigation almost always outlived the litigants. The melancholy engendered by the internal difficulty of legal study was thus frequently complemented by an extreme external lack of appreciation. To cap it all the lawyer was perceived as socially incompetent, emotionally inept and, more generally, as "impatient, sour . . . morose and incapable of conversation."[25]
The external condemnation of the profession of law no doubt contributed considerably to the unhappiness of the lawyer. More than that, however, it indelibly marked the character of the legal institution. In one sense it made the lawyer defensive and protective of his calling and its homosocial professional environment. In response to criticism the common law tradition was stated to be the most ancient and best of all systems of law, it was unique and "connatural to the nation": it was uninterrupted tradition, age-old usage, immemorial practice.[26] In the extravagant words of one eulogist, "the law of England is really to us who live under it, the Foundation of all our happiness; it secures to us our Estates, our liberties, and our lives, and all that is dear to us in this life, and not only so, but by securing our religion, it secures to us the means of attaining everlasting happiness too. By this law, we not only enjoy the pleasures of this world, but even God."[27] The law, according to Roger Coke, is embodied in the Crown, which has the role of a "nursing father" and is bound to care for its subjects in both their temporal and their "ghostly" or spiritual form.[28] In addition, extensive popular criticism forced the lawyer to reinvent and to rely heavily upon the architecture, theater, and other symbols of justice to identify the profession and to protect the tradition. Lawyers had to restate that this law was English law, that its ancient practice was both custom and constitution, and its rule the law of nature habituated to the manners of England. The essence of common law became the fantasm of its Englishness. It was a tradition that existed to protect those things that the English value and had always valued. Its constitution was domestic, its law unwritten, its creed a matter of good manners and of doing things as they had always been done.[29] At one level, I will suggest that if the legal tradi-
[25] Judith Drake, An Essay in Defence of the Female Sex (London: Roper, 1696) at 140–141.
[26] For a classic statement of this view, see Sir John Davies, A Discourse of Law and Lawyers, in Le Primer Reports des Cases & Matters en Ley Resolves et Adjudges in Les Courts del Roy en Ireland (Dublin: Franckton, 1614, 1615 ed.).
[27] J. Fortescue-Aland, "Preface," in Sir John Fortescue, The Difference between an Absolute and a Limited Monarchy, as it more particularly regards the English Constitution (London: private distribution, 1475, 1714 ed.) at iv.
[28] Roger Coke, Justice Vindicated, from the False Fucus put upon it, by Thomas White Gent., Mr Thomas Hobbes, and Hugo Grotius (London: T. Newcomb, 1660) at 21 and 98.
[29] The most influential discussion of this theme is in Richard Hooker, Of the Lawes of Ecclesiastical Politie (London: R. Scott, 1593, 1676 ed.). Specifically on manners, see Calybute Downing, A Discourse of the State Ecclesiasticall of this Kingdome, in relation to the Civill (Oxford: W. Turner, 1586, 1632 ed.).
tion seems melancholic, if it appears historically as insular, slow, and obscure, this is no more than an expression of the fact that such is the character of the English. The legal tradition embodies the melancholic soul of a private nation afraid not simply of others but, in analytic terms, primarily of itself and of its emptiness, its stupidity or lack of thought.
It would be easy to suppose that in consequence of such existential and emotional inadequacy, thinly veiled by the façade of legal reason, some inner compensation would be needed as a palliative for those that risk studying a discipline so dangerous to both individual and collective well-being or institutional health. The first and recurrent theme of the present study is thus the analysis of legal melancholia in terms of that which is mourned or has been lost in the course of a monastic legal training. This aspect of study was constantly remarked by the wives of lawyers and by early feminists as leaving the law student unfitted for ordinary conversation and the legal husband emotionally incompetent to deal with the demands of an extralegal or nonadversarial life. In Freud's terms, melancholia is the morbid internalization of the loss either of a loved person or "of some abstraction which has taken the place of one, such as a fatherland, liberty, an ideal, and so on."[30] Melancholia is distinguished from mourning by the unconscious character of the lost love-object, and it is thus the first task of a jurisprudence of melancholia to reconstruct the lost objects of legal life: for the individual these would probably be youth, vigor, manners, emotions, the English tongue, and the various bodily hedonisms associated with a life beyond the library and its dusty aura of the texts of law. For the institution the losses are more complicated but would undoubtedly include the loss of its authentic sources, the pristine immemorial law which preceded the inventions of statute, the native common law in the Celtic and later Anglo-Saxon tongues that existed prior to the Danish, Roman, and Norman invasions, the true unwritten constitution which represented an "honest" England that preexisted Europe and its increasingly vocal call to a written law. The Oedipus myth should also, however, alert us to the fact that the negative dimension of loss inevitably has a positive representation. Oedipus marries his mother as part of a search to evoke, to restore, or to become the dead or lost father—the king, an imaginary patriarch whom Oedipus had never known.[31] In more technical language
[30] Sigmund Freud, "Mourning and Melancholia," in Sigmund Freud, Collected Papers , IV (London: Hogarth Press, 1948) at 154.
[31] For discussion of this theme, see Paul Ricoeur, Freud and Philosophy: An Essay on Interpretation (New Haven: Yale University Press, 1977); Jean-Joseph Goux, Oedipe Philosophe (Paris: Éditions Aubier, 1990); Gananath Obeyesekere, The Work of Culture: Symbolic Transformation in Psychoanalysis and Anthropology (Chicago: Chicago University Press, 1990).
Freud termed this process that of a "hallucinatory wish-psychosis" with which the melancholic replaces a reality that has caused pain and grief: every dream, for Freud, fulfills a wish. Is it possible, in other words, that the positive imagery of law, the dreams of order, science, reason, and justice, are simply the melancholic lawyer's projection to cover the lack of reason, system, and justice in a common law composed of infinite particulars, of precedents, customs, statutes, and other contingent and specific rules?
I do not suppose that a psychoanalytic diagnosis of the institutional condition of law will make either lawyers or law happy enterprises—after all they have their dinners, costumes, words, (emotional) distance, and money for that—but it does suggest that it might be intelligible to treat the study of law as both more and less than the systematizing analysis of a technical order and practice of rules. The corollary of the argument for a study of law's melancholia, of its unconscious losses and fictive gains, is an assertion of the value of a critical legal theory or of a jurisprudence that understands and analyzes the law not simply for professional ends but also as a specific genre of human relationship and as an activity or form of life. The agon and the agony of learning legal rules is to the legal mind only one aspect of law's dominion. The apparent evil hides a deeper good, the conscious delay and disorder of law an unconscious order and grace, the visible spectacle an invisible reference. The apparent world of the law, like the ecclesiastical order of images from which it devolved, is only ever an indicium , a symptom or sign of the value of law and of that metaphysical or invisible order that extends beyond or underpins the tangible surface realm of legal instruments and judgments. One simple illustration from an early fourteenth-century legal ruling on contempt of court should suffice to illustrate the point.
In the case of William de Thorp v Mackerel and another , the plaintiff, the "king's sworn clerk," was walking from the Inns of Court to the Court at Westminster in the company of sundry other "men of law."[32] While proceeding along Fleet Street, William was attacked by Thomas Mackerel and others, who assaulted William with "force and arms and beat, wounded and ill-treated him and inflicted other outrages on him, that is to say pissed on him [urinam super ipsum ] and trampled him underfoot." The writ of trespass later issued by the plaintiff, a venire facias , stated that the defendant was in contempt of the King and his court and further that this contempt had been committed in presencia curie or in the presence of the court. Judgment was for the plaintiff, and the court simply accepted as un-
[32] William de Thorp v Mackerel and another (1318), Coram Rege Roll no. 233, in Sayles (ed.) (1955) 74 Selden Society 79. For another example, see Henry of Naburn v Walter le Flemyng, Richard of Duffield and others (1316) 74 Selden Society 72.
problematic that although the contempt had been committed some two miles from the Court at Westminster, it was nonetheless committed in the presence of the court. It was, in short, a contempt or scandalizing of the court which was to be treated by the common law according to the geographical fiction that what took place some two miles from the court occurred in the court, in the presence of, or in contemporary terms, in the face of the court. William de Thorp was awarded 100 shillings in damages and later became Lord Chief Justice.[33]
Aside from its immediate expression of animosity toward a scandalous irreverence to a particular officer of the court, the decision in Thorp v Mackerel can be interpreted most directly as indicating, if only momentarily, the dependence of the visible order of law upon an unseen and unconscious mapping of a nonphysical legal territory. The relationship can be posed in many different ways. In medieval terms the visible and natural body of law was subordinate to the mystic body or corpus mysticum of the realm. Just as the canon law held that the church did not inhabit a territory (ecclesia non habet territorium ), the law of the land was also conceived as extending from the realm of appearance and of corporeal presence to a territory and space of the mind. When William de Thorp was attacked it was only coincidentally a natural person who was injured. The real subject of the contempt was the dignity, the imaginary peripatetic place, symbolic presence, or office of law. What was attacked was not a simple body but rather an image or sign of law's other body, the other scene of its presence and place. Historically the law always traveled with the person of the King,[34] and by the time and extension, the court and the judges, the itinerant delegates of the King's justice, were similarly to be deemed as traveling by simulation or as if they were part of the law or of the Crown's mystic presence or "other scene." And thus, according to William Lambard, "it must be true, that the king and his council are not to be tyed to any one place, seeing that the place itself neither addeth nor derogateth to, or from their authoritie."[35]
The institution, in short, constantly spills from the court and the text into life, and to trace that quiet and imperceptible crossing of boundaries requires a jurisprudence that is attentive to the little slips, repetitions and compulsions, melancholic moods or hysterical outbursts, that hint at the transgressive movement from one order to another, from conscious to unconscious law. More than that, the law depends upon a geography of
[33] Dugdale, Origines Juridiciales at sig. 99r.
[34] By legislation of 1300, the Court cannot be "divorced from the person of the King" but was always to be deemed as traveling with him. See Statutes of the Realm , i 139 [Articuli Super Cartas , cap. 5].
[35] William Lambard, Archeion or Discourse upon the High Courts of Justice in England (London: H. Seile, 1591, 1635 ed.) at 148.
mental spaces, which cannot be reduced to its physical presences, its texts (lex scripta ), or its apparent rules. The appearance of law is only ever an index or sign, a vestige or relic of anterior and hidden causes. A structural principle is operative in legal dogmatics, which attributes causes strictly to an invisible or unconscious order, to the imagination of the senses (formae imaginariae ) and in doctrinal terms to the spirit of law. The order of this spirit or meaning, text or truth, is a positive unconscious within which are stored the originary and repeated themes of institutional life. They constitute a historical a priori , the patterns and forms of an itinerant law, those memories of the tradition which by virtue of their foundational or structural quality are no longer represented but simply are lived without the need for further representation: "The mask is the true subject of repetition. Such is the case because the nature of repetition differs from that of representation, because the repeated cannot be represented, but must always be signified, while masking at the same time that it signifies."[36] A canonic geography or mapping of law institutes a cartography of those structures, those forms of terror or manipulation that bind invisibly and from within, for they are the measure of that most complex and mixed of spiritual and temporal constructions, namely the presence of an "unwritten law." In one recent and intriguing depiction of the architecture of the Inns of Court the same point is made by reference to their topology: "Common law is revealed : . . . accordingly, the Inns function as a 'threshold' between the physical world and the invisible principles of law. If the body claims truth from metaphor, then the Inns hide behind the face of the city, the street, creating an insubstantiality out of an imposing gaze, the expression of law that, having once appeared, always struggles against the hazard of chance which would erase it. Hence, the mask of the Inns is articulated less with architectural ornament than with the slipping away of what is deflected by the mask . . . the final and ultimate teleology of law; an authentic source."[37]
The second theme of the present study is to pursue the deflections or screenings instituted by the mask, façade, or image of law. The law is in psychoanalytic terms a symbolic permutation or point of passage between one order and another and it is variously depicted as hinge, pleat, or gate, Mercury or Janus, name or text. It is the point of splitting or moving from one order to another, an intangible folding or exchange between differ-
[36] Gilles Deleuze, Différence et répétition (Paris: Presses Universitaires de France, 1968) at 29.
[37] David Evans, "The Inns of Court: Speculations on the Body of Law" (1993) 1 Arch-Text 5, at 11. See, for a discussion of the body as mask, Peter Goodrich, "Specula Laws: Image, Aesthetic and Common Law" (1991) 2 Law and Critique 233.
ent realms, a changing of places.[38] The specific strategy of this study is that of thinking historically of psychoanalytic jurisprudence. Using the earliest theoretical discipline associated with law, namely rhetoric, the study progresses to a genealogy of the image in law through an analysis of Reformation and Renaissance discourses on images and their destruction, on idolatry and iconoclasm both as forms of thought and as expressions of law. The result of that analysis is, broadly, to trace the law's relation to the image and specifically to reconstruct the genealogy of law's laws of interpretation, its laws of thought and their exclusion of figuration within the evidential and expository traditions of legal dogmatics. Contemporary jurisprudence is thus here challenged through the practice of comparative history and through the reconstruction of a series of discourses of and upon law from the Renaissance and the Baroque, from the sixteenth and seventeenth centuries. The allusion to those specific historical periods is in part a reflection of a postmodern sense of the contemporary, namely, that things are not going well, and in part an attempt to rethink the institution and to rewrite the law in the terms of its failures, in the terms of the traditions and texts—the emotions, the lives—that have been suppressed or excluded from doctrine and its representations of institutional history.
In positive terms the analysis of early legal treatises examines two formative or constitutional repressions, namely those of the image and of woman. Common law jurisprudence adopted to varying degrees the Continental doctrines of iconomachy (of hostility toward images) and of the inferior condition of woman through the influence of the Reformation and the Renaissance, respectively. The present work traces that dual inheritance and endeavors to elaborate the influence and continuing, although displaced, effects of those two repressions. The discourse against images, technically the antirrhetic, it will be argued, became in the aftermath of print culture a discourse against textual figures, painted words, and imaginary signs. It was a discourse of denunciation, against the heresy or heterodoxy of what Tyndale terms "image-service,"[39] and subsequently a discourse against words, against the materiality or rhetoricity of language.
[38] For a most extensive discussion of symbolic permutation, see Pierre Legendre, L'Inestimable object de la transmission: Étude sur le principe généalogique en occident (Paris: Fayard, 1985), especially at 298 ff. In classical Freudian terms the important texts on permutation are: Sigmund Freud, Totem and Taboo: Resemblances between the Psychic Lives of Savages and Neurotics (Harmondsworth: Penguin Books, 1919); Sigmund Freud, Civilization and its Discontents (London: Hogarth Press, 1975); Sigmund Freud, Moses and Monotheism (London: Hogarth Press, 1939).
[39] William Tyndale, An Answer unto Thomas Mores Dialogue made by William Tyndale (London: n.p., 1530) at fol. C xiii b: "When the images are no longer memorials only then they should be taken down for the abuse."
The antirrhetic was continuously presented in terms of the image as a woman or a harlot and the service or worship of images as fornication or adultery. Because it was law, one might say, the antirrhetic thought in terms of analogy, of metaphor or substitution, and so outlawed images because they did not seek to substitute but rather relied on contiguity or metonymy, upon a free association, a mobility that passed through the law but always also exceeded it. In short, the antirrhetic was also a means of establishing a law of gender division. The antirrhetic instituted a prose that was if not always resistant to the images of femininity, was nonetheless unremittingly hostile to the "other sex." Where the antirrhetic operated to institute a specific and singular order of iconic or "real" images, the displaced discourse of the antirrhetic, that which propelled the law against the political right or law and suffrage of women, operated to institute a particular order and law of thought consonant with the antique requirement of the Decretals that law be served with chaste eyes, oculos castos servare .[40] The denunciation of woman in the early doctrinal and constitutional writings of common law was the repression of a figure of femininity, of a metaphor or face which represented the plurality or creativity of thought, an other scene of reason, a genealogy of myths or histories of difference.
The final theme, although I am uncertain of its success, is that of the return of the repressed within the discourse of law. In strict Freudian theory the repressed constantly presses against the barrier of consciousness, "in order to impose its contents on consciousness. Yet the resistance offered by consciousness, on the one hand, and the pressure of desire, on the other, leads to a displacement and deformation of that which could otherwise be reconstituted unaltered. The dynamic of delirium recalls the constitution of the dream or the phantasm."[41] The repressed returns, in other words, and is repeated in displaced forms. I am less concerned, however, with the point of principle than with the politics of theory that it implies. The historical and rhetorical reconstruction of textual imagery and of feminine genealogies or gynaetopias , of the forms of repressed discourse within the jurisprudential tradition, suggests a specific and rigorous strategy of institutional politics, a strategy of legal difference. Repression is a
[40] Gratian, Decretum , in Corpus iuris canonici (Leipzig: B. Tauchnitz, 1140) at C 6 q 1 c 13; discussed in Pierre Legendre, L'Empire de la vérité (Paris: Fayard, 1983) at 110–113.
[41] Julia Kristeva, "Psychoanalysis and the Polis" in W. J. T. Mitchell (ed.), The Politics of Interpretation (Chicago: Chicago University Press, 1983) at 91–92; see also Luce Irigaray, Marine Lover of Friedrich Nietzsche (New York: Columbia University Press, 1991) at 5: "Here is the future, in that past which you never wanted." For an extended elaboration of this theme, see Pierre Legendre, L'Amour du censeur: Essai sur l'ordre dogmatique (Paris: Éditions du Seuil, 1974). For two striking statements of this view in Freud, see "Repression" in Collected Papers IV at 84–98; Sigmund Freud, Beyond the Pleasure Principle (London: Hogarth Press, 1961).
positive and internal act, it lays out a space within the institution; in the case of law the space is one of images, of flowers, ornaments, aesthetic judgments, tastes, emotions, lifestyles, and fantasies, a space consonant with all of those disciplines and discourses that doctrine and law conceived to be incidental, accessory, merely rhetorical, contingent or other to the tradition (ius non scriptum ) or established practice of law. The recollection of institutional repression offers a positive politics, a wealth of resources, of fragments and contaminations of the science of doctrine, the purity of reason or the ideality of law. It offers the possibility of a criticism or critical legal studies that rereads and rewrites doctrinal scholarship and, by implication, the future of professional practice through the epistemological other of legal knowledge. In one sense, different forms of reading are aligned to different rhetorics of writing, and the challenge to the law or rhetoric of genre is a radical challenge because it threatens the founding principle of institutional transmission, its custody of meaning and text. In a more complex sense, the accepted literary or, more properly, grammatological forms of doctrinal scholarship are closely tied to appeals to laws of reason and reference, clarity and iteration, which necessarily deny—not least through visual metaphors of reason—the very existence of the object of critical scholarship, an unconscious or repressed tradition within the legal institution.
The threat of the repressed within the institution is in one significant sense the threat of the unknown or, more precisely, the intimation of that which has not yet been determined, which is not mapped in advance by law's regula or calculus in the institutional form of knowledge as recognition.[42] The positivized jurisprudence of common law, the epistemology of doctrine, is tied by precedent to a knowledge that is known in advance, to a prior determination of the forms, classifications, languages, and similitudes through which judgment will be repeated. The critical method of the present study aligns itself with the suspension of such prior judgment, with the bracketing of the established positivities of legal method, and in so doing it suspends also the preexistent audience of law's literary practice. Critical legal studies has as one of its goals that of rewriting the arts of law, that of writing differently and so also thinking the difference of law.[43]
[42] This theme is lengthily elaborated in Gilles Deleuze, Différence et répétition . For an analysis of aporia or suspension of recognition or predetermination in legal analysis, see Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority'" (1990) 11 Cardozo Law Review 919; and more broadly, Jacques Derrida, The Post Card: From Socrates to Freud and Beyond (Chicago: University of Chicago Press, 1987), especially at 4–5.
[43] While the present work is intended as a contribution to critical legal studies, and at least in a European sense is located within and by reference to that genre, it does not directly address the literature or topics of critical legal studies. It is my view that little would be added to this study by spelling out the negative implications of historical and comparative traditions of critique for the scholarship of much of contemporary critical legal studies. At the same time, however, to the extent that this work attempts to evidence and think through a dissonant tradition of legal critique, the histories of forgotten texts and interpretations, and the failures and the repressions of doctrine, its motive of resistance to legal orthodoxy does not differ greatly from that of contemporary critical legal scholarship. The difference is rather one of method and of historical scholarship or of institutional and so also ethical responsibility. For discussion of these and related themes, see Peter Goodrich, "Critical Legal Studies in England: Prospective Histories" (1992) 12 Oxford Journal of Legal Studies 196; Peter Goodrich, "Sleeping with the Enemy: An Essay on the Politics of Critical Legal Studies in America" (1993) 68 New York University Law Review 389.
It addresses an audience that is either unknown or that does not yet exist, one that has yet to come into being. It is in that perhaps limited respect both institutionally creative and theoretically radical. Certainly it is the rhetorical character and experimental style of critique, rather than any substantive content, that occasions the greatest degree of institutional hostility and doctrinal denunciation. The academic institution is quite simply lost in the face of a literature whose audience is unknown, either long passed on or not yet in existence in institutional terms. It cannot police the disciplinary boundaries nor assert the institutional propriety of a rhetoric that displaces its audience. Nor can it legislate a politics of style in which poetry is law.
The recourse to rhetoric, aesthetics, and psychoanalysis as providing methodologies and terminologies for critical analyses of law is not simply an obscurantist or an elitist strategy. These disciplines are those that even liberal versions of doctrine would exclude and philosophy of law pronounce improper or in error. Without directly addressing the substantive implications of the opposition between dogmatic jurisprudence and its margins, the peripheries against which it defines its own sanctity and truth, it is possible to observe that law carries with it a history of advocacy, polemic, and denunciation. Even at the level of doctrine it cannot be denied that the dogmatic function has always been political in the sense of being gauged to institutional and didactic goals. It teaches the exemplary forms of citizenship, it fabricates or institutes subjectivity, it demarcates the principles and boundaries of social thought. The law as model, image, or icon of social presence is the site of social reproduction, of political love and collective desire. To offer an analysis of the law's relation to images it is necessary to retrace the relationships, the judgments or forms of living that the image masks, internalizes, or hides. The "real image" or icon is the point of attachment to law, and the analysis of the image therefore puts into play the stake of legality as such, the capture of subjectivity, the apprehension or seizure of thought in the institutions, texts, or judgments of law. The law, Coke's "nursing father,"[44] takes hold, it institutes subjectiv-
[44] Roger Coke, Justice Vindicated at 43.
ity through and across the imagery of law and the rhetoricity of its texts. The following chapters pursue and analyze that imagery or montage of lawful being as the subjective content of institutional subjection, as what used to be termed the "humane" form of law: its justice, its style, its poetic sermons or judgments. To recollect and elaborate the plastic and textual forms of law's appearance is also to trace and analyze the signs of law's disappearance, the sites of its repressions, of its violences, and of its failures. It is in the recuperation of the "other scenes" of law, precisely in the recollection of its failures, its losses, and its repressions, that a critical jurisprudence can offer some elements of political radicalism. The other scenes of law—its images, its figures, its architecture, its rites, myths, and other emotions—are potentially the economies of resistance to law. They evidence, I will argue, the possibilities of a jurisprudence of difference, and specifically a genealogy of other forms of law, of plural jurisdictions and distinctive subjectivities, of other genders, ethnicities, and classes of legality and of writing. Such, it is to be hoped, will be the revenge of the image upon a law that over centuries has denied the value of vision.