Seven
Oedipus Lex:
Interpretation and the Unconscious of Law

We approve not of a stoical apathy . . . for passions are the feet of the soul .^[1]

If the argument of the previous chapters has succeeded in any measure it will be in having outlined the displacement of the power of the image from plastic to textual forms. If the image is the sign or figure of a historically feminine difference within the textual tradition and culture of print which followed the Reformation, then literary theory, hermeneutics, and rhetoric are the appropriate disciplines for the analysis of that difference. Textual aesthetics as well as philology and its modern variations become the techniques through which to analyze the other body, the spirit, dignity, or corpus mysticum of legal judgment. The juridical word as text, as print, as ratio scripta , embodies the tokens or tropes of secular belonging, it marks out the spiritual territory, the meaning, and the mysticism within the positivities of judgment. While it will be argued in this chapter that an analysis that traces the images, figures, and women within the juristic text is a first gesture in the direction of a politics and writing of legal difference, of thinking law differently, the specific argument to be addressed devolves upon a certain discovery in relation to the tradition and politics of legal textual analysis. In unadorned terms, this discovery is that rhetoric is the premodern form of psychoanalysis, of a secular interpretation of conscience, emotion, and the passions. A jurisprudence that endeavors to offer a critical analysis of what has here been termed the institutional unconscious can thus begin its effort to trace, to analyze, and to activate law's creativity through the techniques and the procedures of forensic rhetoric and its theory of the legal emotions.

Forensic rhetoric was and is the premodern curricular form of analysis of legal speech acts or, more felicitously, of the force of law. In this regard

[1] Allestree, Funeral Handkerchief at 7.

it is already a methodology of symptomatic reading or of interpretation of the unconscious of law. The specific analyses substantiating and exemplifying this argument will be developed through the rhetorical analysis of three legal anomalies, namely the rule allowing the recovery of damages in tort for psychiatric harm occasioned by damage to property, the postal or mailbox rule in contract, and the relative immunity of the Crown from actions for contempt of court. Legal anomalies, slips or symptoms, are here understood as points of condensation and are thus to be analyzed not only in terms of a rhetoric of persuasion or emotion but also as signs of discursive divergence in which more than one legal narrative plays against another, surface against surface, depth against depth, word against image.^[2] The figure can here be termed a sign of repression; it masks the compression, displacement, or omission of other significations and other meanings. It is specifically, it will be argued, an indication of the imaginary, of difference within the text of law.^[3] In each of the cases to be examined, the analysis of a specific trope or textual figure—antonomasia, allegoria , and synecdoche —will allow for the reconstruction of the genealogy of a substantive legal anomaly. The analysis of the rhetorical form, the elocution, or figuration of the legal rule will trigger a zone of affectivity within institutional memory and serve to indicate a repressed history at the source of the anomaly. In explicitly psychoanalytic terms, the tropes and figures of the texts analyzed all represent species of displacement or substitution which invite interpretation of the unconscious affect, the "dream thoughts" in Freud's terms, which organize or make sense, or make the other sense, of the text.

The argument builds upon classical rhetorical forms in which both the trope and the figure of speech are linked to memory and to desire, to emotion and to the images or places that recollect or reinvoke the passions

[2] Freud, Interpretation of Dreams , especially at 312–319, elaborating the concept of condensation in terms of compression of thought in the content of the dream. Condensation is predicated upon omission, upon the unconscious process of thought within the dream.

[3] On the specific issue of imagining difference in law and legal culture see the excellent introductory analysis in Cornell, "What Takes Place in the Dark," particularly at 51–52: "We cannot, in other words, know in advance what the ultimate meaning of our attempts to encounter difference will be, precisely because such attempts break the hold of common sense over our imaginations. . . . We have to be able to re-imagine the sensible, given to us by our own standards of making sense." Cornell draws much from Clifford Geertz, "The Uses of Diversity" (1986) 25 Michigan Quarterly Review 105. See also Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard University Press, 1991); and for liberal variations on that theme, see M. Minow, "Partial Justice: Law and Minorities" in A. Sarat and T. Kearns (eds.), The Fate of Law (Ann Arbor: University of Michigan Press, 1991); James Boyd White, Justice as Translation . For further anthropological analyses, see James Clifford and George Marcus (eds.), Writing Culture: The Poetics and Politics of Ethnography (Berkeley and Los Angeles: University of California Press, 1986).

that persuade or move to action.^[4] Rhetoric studies language, or the forms of bodily and verbal enunciation, as the signs of the passions, as indexes of an invisible, unconscious, or oneiric logic of institutional speech. Rhetoric had always been perceived as the "artificer of persuasion," as will and word doing the work of imagination.^[5] Law, which reasons explicitly by images, analogies, associations, and other narratives or metonymies, similarly represents or dissimulates the invisible affects or unconscious desires of legal custom, judicial intention, or sovereign will. It is possible to go further and to suggest that rhetoric studied the symptoms or signs of desire through which Freud and later Lacan mapped out the linguistic structure of oneiric or unconscious laws.^[6] "Linguistic evolution," Freud remarked, "has made things very easy for dreams. For language has a whole number of words at its command which originally had a pictorial and concrete significance, but are used today in a colourless and abstract sense."^[7] Without the theme of evolution, the remark still has a remarkable historical and theoretical force: language is already an archive of image and imagination, of law, of judgment, of interpretation. Rhetoric, which studies the tropes and figures of language simultaneously and necessarily, studies also the unconscious of the institution as the long-term significance of its figures and as the symptoms of the culture, work, and affect of law.

The analysis of unconscious aspects of legal decision making is not a new theme either within European or Anglo-American legal thought.^[8]

[4] On the rhetorical art of memory, see for example the forensic rhetorical manual of Wilson, Arte of Rhetorique at 413–430, on memoria ; and on specifically legal memory, see Doderidge, English Lawyer at 12 and 200 ff., arguing that memory is the first legal art and record its most permanent practice. On the schemata of memory see Ramus, The Logike at 13–14 on memory and argument. For an excellent recent study see Carruthers, Book of Memory ; on collective memory, see Paul Connerton, How Societies Remember (Cambridge: Cambridge University Press, 1990); on law's collective memory, see Goodrich, "Eating Law."

[5] Plato, Gorgias at 453 a. For discussion see Thomas Cole, The Origins of Rhetoric in Ancient Greece (Baltimore: Johns Hopkins University Press, 1991).

[6] The classic texts on language, symptom, and unconscious are Freud, Interpretation of Dreams ; Sigmund Freud, Psychopathology of Everyday Life (Harmondsworth: Pelican, 1942); Jacques Lacan, "The Function and Field of Speech and Language in Psychoanalysis," in Jacques Lacan Écrits: A Selection (London: Tavistock, 1977). For discussion, see Jacques Lacan and A. Wilden, Speech and Language in Psychoanalysis (Baltimore: Johns Hopkins University Press, 1981).

[7] Freud, Interpretation of Dreams at 442.

[8] In an Anglo-American common law context, there exists a quite varied history of jurisprudential recourse to psychoanalysis. See J. Frank, Law and the Modern Mind (Garden City, N.Y.: Anchor, 1930, 1963 ed.); A. Ehrenzweig, Psychoanalytic Jurisprudence: On Ethics, Aesthetics, and Law (Leiden: Dordrecht, 1971); G. G. Schoenfeld, Psychoanalysis and the Law (Springfield, Ill.: Thomas, 1973); F. R. Beinfenfeld, "Prolegomena to a Psychoanalysis of Law and Justice" (1965) 53 California Law Review 957, 1254; P. Gabel, "The Phenomenology of Rights Consciousness and the Pact of the Withdrawn Selves" (1984) 62 Texas Law Review 1563. For a review of recent and critical works on psychoanalysis and law, see Caudill, "Freud and Critical Legal Studies." In Continental terms, the most important work has been that of the Lacanian lawyer, Pierre Legendre. His first and in many ways most influential works on psychoanalysis and law were Legendre, L'Amour du censeur ; Legendre, Jouir du pouvoir . See also Papageorgiou-Legendre, Filiation . For an introduction to Legendre's work, see my chapter "Law's Emotional Body" in Goodrich, Languages of Law ; Alain Pottage, "The Paternity of Law," in Costas Douzinas et al. (eds.), Politics, Postmodernity and Critical Legal Studies: The Legality of the Contingent (London: Routledge, 1994).

Jurisprudential analyses of legal language in terms of its metaphoric, symbolic, narrational, and ideological characteristics are a commonplace of critiques of law that range in their theoretical perspective from legal realism to feminism, from pragmatism to semiotics, and from existentialism to systems theory. That history of the conjunction of the two disciplines will not be rehearsed here, for the simple reason that metaphors of surface and depth, phenomenon and structure, appearance and reality, lack sufficient linguistic or, more properly, philological detail to allow for the development of a methodology of reading and so writing and practicing law. I will argue here that it was rhetoric which was the discipline that traditionally classified the forms of language use, of invention, topics, argumentative distribution, tropes, discursive (sentential) figures, elocution, and memory in terms of emotive effect. Psychoanalysis and jurisprudence can, therefore, draw historically upon a common language and certain shared themes. It may be briefly noted from the existing literature that both disciplines are concerned with authority and with prohibition, innocence, and guilt. The law of the father equiparates with that of the sovereign, and the private self is considered as juridical an institution as is public legal personality.^[9] In a pragmatic sense, lawyers and analysts take cases and endeavor to resolve conflicts and, more broadly, to adapt the individual to the conditions of institutional existence.^[10] In a more hermeneutic sense, both professions indulge in symptomatic readings of written and also often unwritten texts.^[11] The surface is never an adequate explanation, but is rather to be interpreted in terms of gaps, symptoms, slips,

[9] This theme is central to Lacan, Écrits ; see also Lacan, Four Fundamental Concepts . See further Jacques Lacan, Le Seminaire IV: L'Ethique de la psychanalyse (Paris: Seuil, 1990). For commentary and application of that model, see Legendre, Le Crime du Caporal Lortie ; see also David Caudill, "Name of the Father and the Logic of Psychosis: Lacan's Law and Ours" (1993) 4 Legal Studies Forum 421. On the educational significance of this theme, see Peter Rush, "Killing Me Softly with His Words" (1990) 1 Law and Critique 21; Peter Goodrich, "Psychoanalysis in Legal Education: Notes on the Violence of the Sign," in R. Kevelson (ed.), Law and Semiotics (New York: Plenum Press, 1987). More broadly see P. Gabel and D. Kennedy, "Roll Over Beethoven" (1984) 36 Stanford Law Review 1.

[10] On which theme see particularly Legendre, Le Crime du Caporal Lortie ; Papageorgiou-Legendre, Filiation . For a discussion of the former work see Alain Pottage, "Crime and Culture: The Relevance of the Psychoanalytical" (1992) 55 Modern Law Review 421.

[11] This theme is addressed directly in David Caudill, "Lacan and Legal Language: Meanings in the Gaps, Gaps in the Meaning" (1992) 3 Law and Critique 165.

repetitions, and other indications of repression or unconscious cause.^[12] The list of coincidences, of themes or terms, doubts or desires that are shared by law and psychoanalysis could be proliferated, but to little purpose. The argument here will rather concentrate upon the linguistic and specifically rhetorical interest that the two disciplines share.

Rhetoric studies language use, particularly as argument, style, and memory, in terms of topics, tropes, and figures of speech. It studies flawed linguistic phenomena—the figures of enigma (aenigma ), slip (paracriasis ), lapse (aposiopesis ), neologism (soraismus ), ambiguity (amphibologia ), paradox (paradoxon ), repetition (anaphora ), solecism, impropriety (catachresis ), deceit (ironia ) and error (cacozelia )—as well as decorous speech (analogical decorum ) and felicitous use (gnome ) so as to discover the underlying emotion or affective content of language use.^[13] For the rhetorician, words are inevitably signs and should thus be read as symptoms of affective states. In its classical definition, a trope was not simply the use of a word in a changed or "non-proper signification" but was further defined as a linguistic shift either between species or between affections: thus metonymy, irony, metaphor, and synecdoche are the principal tropes of species, while catachresis (borrowing), hyperbole (exaggeration), metalepsis (cause for effect) and litotes (diminution) are the master tropes of the affections.^[14] The figures of speech, the schemata, are defined as the linguistic forms of representation, as "the apparel and ornament of the body . . . of words and speech" which allow the speaker not only to represent but equally to fashion, to carry across, to feign, dissimulate, seduce, delight, and move.^[15] The gnome or figures of sentence are thus defined by Smith as "pathetical, or such as move affection and passion."^[16] The figures of speech are understood rhetorically as condensations of emotion, as the specific languages of particular passions. In rhetorical manuals the most powerful or effective of figures were thus those that carried the greatest emotional content or were deemed likely to have the greatest affective impact. Figures were therefore listed according to their potential use in different genres of speech. In most lists of figures, however, extremity of emotion was associated particularly with figures of antithesis (oppositio ), exclamation (ecphonesis ), emphasis (auxesis ), recollection (anamnesis ), or visual effect (hypotyposis ).^[17] The

[12] See Freud, Psychopathology of Everyday Life ; Obeyesekere, Work of Culture ; Derrida, Writing and Difference ; Ricouer, Freud and Philosophy .

[13] These figures are drawn primarily from Puttenham, Arte of English Poesie ; Peacham, Garden of Eloquence . Further useful lists and discussions can be found in Thomas Farnaby, Index Rhetoricus ; Smith, Mysterie of Rhetorique .

[14] See, for this particular classification, Smith, Mysterie of Rhetorique at fol. B 1 b.

[15] See particularly Puttenham, Arte of Poesie at 155–161.

[16] Smith, Mysterie of Rhetorique at fol. B 4 b.

[17] Quintilian, Institutio Oratoria (on enargeia ); Lamy, Art of Speaking ; and more broadly, Derrida, "The White Mythology"; Goodrich, "We Orators."

classical art and practice of rhetoric was that of persuasion or at least of discovery of the means of persuasion; it sought to manipulate emotion, to advocate policies, plead causes, or praise civic offices by means of identification between audience and oratorical projection. The judicious use of the lexicon of tropes and other rhetorical and argumentative forms would institute a distinction, discrimination, or judgment between affect and antipathy, between identical and alien, like and unlike and, finally, in terms not dissimilar to Freud's basic drives of eros and thanatos ,^[18] between affirmation and negation, between life and death.

The rhetorician pursued the linguistic levers of passion. The orator was always an advocate in search of the continued oratorical play (permutatio ) of irony or allegory, of things signified "by other words."^[19] Rhetoric was a consistent pursuit of emotive force, of some movement of the mind "as of love, hatred, gladness or sorrow" under the general label of vehemence of affection (pathopoeia or affectus expressio ).^[20] This oratorical goal of affective dissimulation, of allegorical representation of the "other scene" of human motive, desire, and action, was subject to a further unconscious law. As the definition of affective expression suggests, the language of public speech, or institutional enunciation, which is to say the language of rhetorical genres, of law (forensic), politics (deliberative), and ceremony (panegyric), was antagonistically structured. What was represented earlier to be the antirrhetic character of dogmatic discourses may be found in detail in the figuration of dogmatic argumentation. In terms of law and the agonistic presentation of argument and judgment, doctrine and decision, it follows logically that its characteristic emotional force was and is to be found in figures of antithesis or opposition whereby the realm of affectivity may be identified and separated from that of the alien, unfamiliar, or other. In broader terms it can be argued further that all institutional speech is pleading in the context of some species of trial: the hearer is always a judge.^[21] Whether the court is that of reason, taste, opinion, or law, all auditors are in some measure forensic actors and they play the role of both jury and judge.^[22] A further explanation might project the juridical into the social so as to suggest that the antagonistic or properly antirrhetic structure of discourse was a consistent form of institutional self-representation. To have an effect, to persuade, threaten, or otherwise move its auditor, the legal speech or written judgment had to identify its audience or constituency

[18] See Freud, Beyond the Pleasure Principle.

[19] Puttenham, Arte of Poesie at 155–156; Smith, Mysterie of Rhetorique at fol. E 6 a.

[20] Smith, Mysterie of Rhetorique at fol. S 5 b.

[21] In most of the curricular manuals, hearer and judge are synonyms, as for example in Puttenham, Arte of Poesie at 189.

[22] This Aristotelian dictum is discussed in Vickers, In Defence of Rhetoric at 77.

and provide that audience or those hearers with such symbols, images, icons, or figures as would allow communication in its classical or at least etymological sense of communion, of meaning as a transference that displaces the auditor from one realm to another, from opinion to reason, temporality to spirituality, visibility to invisibility. The audience of law will identify itself narcissistically with the legal institution, with the mirror of its projected images, and will simultaneously reject its competitors, neighbors, or simple alternatives, those whom the law has denounced or the judge admonished. Thus the rhetoric of affectivity is coupled with that of negation. The praise of the identical, the similar, the like or proportionate is accompanied by denunciation, denial, or negation of the strange, the unlike, disproportionate or heteroclite. It does so in the same historical and political sense in which it was argued earlier that the antirrhetic institutes orthodoxy as that which creates heterodoxy, and doctrine as that which defines heresy as its necessary or complementary and so also supplementary form.^[23] A preliminary illustration from a collection of moralizing essays should suffice to indicate the nature of this correlation between affirmation and negation, praise and denunciation and, more broadly, between unconscious intent and the figures of speech. For where rhetoric maps the emotional body of the institutional audience, psychoanalysis will subsequently attend to the images, figures, and symbols whereby linguistic practice can be read symptomatically as representing past patterns of power, repressed emotive sources of action, and the residue more generally of unconscious desires.

In an exemplary essay directly concerned with persuasion through appeal to the affections, Daniel Tuvil represented the effective orator as speaking with the "tongue of the heart." To capture the affection of the auditor is the principal part of rhetorical success,

and the reason hereof is not farre from hand. For passions are certain internal acts, and operations of our soul, which being joined and linked in a most inviolable, and long-continued league of friendship with the sensitive power, and facultie thereof, do conspire together like disobedient and rebellious subjects, to shake off the yoake of reason , and exempt themselves from her command and controllment, that they still exercise those disordered motions, in the contract world of our frail and human bodies.^[24]

Borrowing in no little measure from the theological conception of the invocation of faith through appeal to and inscription upon the heart, Tuvil

[23] This argument is made most forcefully by Foucault, "The Discourse on Language." For an interesting example of this thesis, see Godolphin, Repertorium Canonicum , especially ch. 40, "Of Blashphemy and Heresy."

[24] Tuvil, Essaies Politike and Morall at sig. 15v–16r. For another striking example of this argument, see J-F. Senault, De l'usage des passions (Paris: Fayard, 1641, 1992 ed.) at 137–148.

argues for a practice of persuasion that takes hold of the body, which is ethical in the strong sense of determining habitual practice; the body, in short, is the unconscious. Rhetoric is here used to analyze, evoke and, on occasion, to unleash a dark and unconscious realm of vehement affection, sense, and corporeal volition or will. Whether it is depicted as deceitful, irrational, or simply subversive, the rhetoric of affection plainly depends upon or harbors either other reasons or the other of reason, which is in rhetoric variously termed the imagination, intensivity, violence or affection, image or idol.

Rhetoric and psychoanalysis converge in the analysis of the conflict or cause that relates the institutional to the individual, and in both disciplines law is the term used to depict the relation of the subject to patristic judgment, patria, regia, iudex, or pater . The common theme of cause, conflict, or disputation is most noticeable in the alignment of rhetoric with specific images of conflict, trial, demagogy, and verbal war. The telos of rhetorical speech is victory rather than any more direct cure, a metaphor that was lengthily elaborated in Bernard Lamy's The Art of Speaking , although other handbooks provide equally striking elaborations in terms of confutation, defeat, and overcoming, as well as the more obviously forensic forms of figuration such as demonstration, self-evidence, necessity, and disproof.^[25] In Lamy's depiction our effect upon others is most typically a consequence of the figures of our speech, which include the bodily gestures, tears, and other physical signs that accompany oratory. The necessity of figures, however, lies in the hostility of institutional environments or the adversarial contexts of speaking. The rhetorician is always on trial or "before the law." Such trial dates back historically to an "original," which was trial by combat, by ordeal, or by physical omen,^[26] and Lamy simply recollects this antagonistic and physically threatening history of pleading a cause by subsequently and lengthily comparing the orator and the pleader to a soldier fighting, suggesting if nothing else that the soul is constantly in conflict, both in directing its own passions and in defending itself from those of others. In broader rhetorical terms, the discourse of the institution manipulates figures of speech, dissimulates, cajoles, threatens, orders, and persuades because these are the forms of social action. The unconscious is a jurist pleading both innocence and guilt, torn between hedonism and pessimism, desire and law. The dogma or "delirium" of institutional speech, its insistence and its repetition, is simply a further level or reflection of the antinomy of affection and negation, praise and denuncia-

[25] As, for example, in Fenner, Artes of Logike and Rhetorike ; Sherry, Treatise of Schemes and Tropes .

[26] See Sir John Davies, Of the Antiquity of Lawful Combats in England (1601) in R. Grosart (ed.), The Works of Sir John Davies (London: private circulation, 1869).

tion approval and polemic, through which the soul, or in contemporary terminology, identity, is instituted and prolonged.

If autobiography provides both the lexicon and the narrative structure—the affections and the antagonisms of the individual unconscious—social history is the unconscious structure of institutions. To the extent that the institution survives, insofar as it is independent of any single generation of its custodians, access to its unconscious motivations, its repressions and its desires, must frequently be indirect. Access will not, for obvious reasons, be by means of the "royal road" to the science of the unconscious, the interpretation of dreams. The institution is delirious or uncontrolled only in its habitual procedures, standard forms, precedents, protocols, and other texts. It is in the slips or figures of the text that rhetoric may attend to, recover, or reconstruct certain of the antagonisms, fears, identities, and desires that over the long term motivate or cause institutional enunciations. In the ensuing analysis three examples of anomalous common law rule will be used to illustrate the potential uses of rhetoric in locating an institutional delirium or unconscious of law. The examples, which are all of contemporary legal anachronisms, will move from the analysis of textual figures to that of the emotions, conflicts, or repressed histories that may be used more or less persuasively to interpret them.

Antonomasia: Psychiatric Harm and the Englishman's Home

The first example is taken from the law of torts. It concerns the recoverability of damages for psychiatric harm caused by negligently occasioned nervous shock. The anomalous case is that of Attia v British Gas plc. ²⁷ The plaintiff employed the defendants to install central heating in her house in Middlesex. "[R]eturning home at about 4 P.M. on 1 July 1981 she saw smoke coming from the loft of the house. She telephoned the fire brigade but, by the time the firemen arrived, the whole house was on fire. . . . Obviously the house and its contents were extensively damaged." The defendants admitted liability in negligence for the physical damage to the house, but the question remained whether the plaintiff could recover damages for "nervous shock," the psychiatric harm occasioned by seeing her "home and its contents ablaze" for a period of somewhat over four hours.^[28] The Court of Appeal held unanimously that psychiatric damage occasioned by seeing "her home and possessions damaged and/or destroyed"

[27] Attia v British Gas plc [1987] 2 AER 455.

[28] Ibid. at 456 g–j.

was recoverable. The decision is in some respects an obvious one, and it could be argued that it simply extends the general criterion of foreseeability to a new situation. The categories of negligence, as Lord Macmillan once remarked, are never closed. The stronger argument, however, and one to which, fortuitously, I adhere, is that the decision is anomalous both in terms of lacking doctrinal justification and in terms of failure to accord with existing precedent.

The extant law on recoverability of damages for psychiatric harm at the time that Attia v British Gas was decided was the House of Lords decision in McLoughlin v O'Brian.^[29] In terms of doctrinal development, the decision in McLoughlin explicitly established a multiple test of proximity as the basis for recoverability in actions for nervous shock. Lord Wilberforce, in a judgment that has more recently been annotated and affirmed by the House of Lords in Alcock v Chief Constable of South Yorkshire ,^[30] stated that three elements were inherent in any claim: "the class of persons whose claims should be recognized; the proximity of such persons to the accident; and the means by which the shock is caused."^[31] It is clearly the first head of foreseeability that is here significant:

As regards the class of persons, the possible range is between the closest family ties, of parent and child, or husband and wife, and the ordinary bystander. Existing law recognises the claims of the first; it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life or that defendants cannot be expected to compensate the world at large.^[32]

The basis for drawing the line was the familiar policy ground of Anglo-American torts, namely that the admissibility of such actions would raise the specter of indefinite liability owed to an indeterminate class of potential plaintiff.

Without discussing whether British Gas plc was a recognized calamity of the modern world, Lord Wilberforce may finally be cited as authority for a methodological argument, namely that in situations of the type under discussion, "the courts have proceeded in the traditional manner of the common law from case to case, on a basis of logical necessity."^[38] The figurative use of the term "logical necessity" deserves brief comment in terms precisely of figuration or condensation. To claim that reasoning by likeness,

[29] McLoughlin v O'Brian and others [1982] 2 AER 298.

[30] Alcock and others v Chief Constable of the South Yorkshire Police [1991] 4 AER 907.

[31] McLoughlin v O'Brian at 304 f–g.

[32] Ibid. at 304 f–h. Cited and approved in Alcock at 912–913.

[33] Ibid. 302 f–g.

by metaphor or simile, by translation from one image to another, from one affection or experience to the next, is a procedure of logical necessity can only be understood as irony, antiphrasis, or the dissimulation of dreamwork. it is no more possible to "deduce" a relation between one context and another than it is feasible to claim any strict identity between the legal reconstruction of different events occurring at different times and affecting different parties. The logical necessity of analogy is at most a subjective necessity imposed by custom and habit. Whereas Roman law long recognized the logical weakness of such arguments predicated upon similarity, the common law returns continuously to claim, somewhat mystically in the context of common law's avowed empiricism, that analogy is the "natural tendency of the human and legal mind."^[34] The analogy then suggested by Lord Wilberforce is that of the different situations in which parents can recover for psychiatric harm caused by injury to their child. Lord Scarman added laconically that "I foresee social and financial problems if damages for 'nervous shock' should be made available to persons other than parents and children."^[35] The Australian case of Jaensch v Coffey, which stipulated no specific kinship tie but a "close, constructive, and loving relation" between the parties probably hit upon a formulation that best describes the current law: the tie must be close and affectionate and while it need not necessarily fall within the conventional classifications of lineal or familial proximity it does require a human affection lodged between human partners.^[36]

With the well canvassed exception of rescue cases and the unique example of a claim based upon fear of injury to a workmate,^[37] legal doctrine has consistently maintained that proximity with regard to the class of persons that is to be allowed to recover means a tie of blood or of recognized relationship. Such a relationship has always been taken to mean a relationship between persons. Even taking account of judicial paternalism or the

[34] For discussion of this issue, see W. T. Murphy and R. W. Rawlings, "After the Ancien Regime: The Writing of Judgments in the House of Lords 1979/1980" (1981) 44 Modern Law Review 617; Goodrich, Reading the Law, ch. 6. More broadly, see W. T. Murphy, "The Oldest Social Science? The Epistemic Properties of the Common Law Tradition" (1991) 54 Modern Law Review 182; and Goodrich, "Poor Illiterate Reason." For a discussion specifically relating to nervous shock, see Joanne Conaghan and Wade Mansell, The Wrongs of Tort (London: Pluto Press, 1993) at 28. "What is clear is that the nervous shock cases represent not a considered and logical extension to tortious rules of liability but rather an arbitrary and essentially non-logical extension to what we have argued is an illogical process."

[35] Ibid. at 311 e.

[36] Jaensch v Coffey [1984] 54 ALR 417 at 457 (per Deane J).

[37] On rescue see Chadwick v British Transport Commission [1967] 2 AER 945, and also the American decision of Wagner v International Railway Co. (1921) 232 NY 176; on workmates see Dooley v Cammell Laird. & Co. Ltd. [1951] 1 Lloyd's Rep. 271, and for an Australian example see Mount Isa Mines Ltd. v Pusey [1970] 125 CLR 383.

doctrinal desire to keep the legal judgment separate from the sphere of domesticity, it is hard to see that it falls within the "natural tendency of the human and legal mind" to perceive a house either as or as being "like" a relative or "analogous to" a person. Nor does precedent provide any examples of "logical necessity" leading from person to property or from animate to inanimate. A person is not in ordinary speech nor in art nor in legal language like a house. The only precedent that could offer support of any kind for the Court of Appeal decision would be the somewhat obscure earlier decision of the Court of Appeal in the case of Owens v Liverpool Corporation .^[38] In that case the plaintiff's dead relative, an inanimate person, was in a coffin that was dislodged by a tram-car operated by the defendants. Severe "mental shock" was occasioned to close relatives of the deceased who witnessed the accident and who feared the coffin would be ejected into the road. On the grounds that it is the dignity or office of the dead to be in repose, the disturbance to the coffin and the threat that it might at any moment slide out of the damaged hearse and fall to the street was sufficient ground for recovery. The court recognized that the threat of injury to the dead was a marginal if not tenuous analogy to earlier situations, but it suggested that what was significant was the proximity or strength of affection between the parties. MacKinnon L.J. went further at one point and suggested consideration of the moot case of mental damage caused by the death of a much loved pet dog.^[39] The "beloved" dog, of course, is the Englishman's best, most trusted, and most loyal friend, and it is easy to imagine that the court might well have difficulties distinguishing the family dog from other members of the family. It remains the case, however, that the subjects of injury in precedent cases extended no further than a hypothetical living nonperson or a dead relative.

Returning to the decision in Attia it is evident rhetorically that more is at stake than a simple question of the foreseeable consequences of damage to property. There is indeed an immediate shift in the depiction of the facts of that case from the cognitive to the affective and from description to evaluation when the object of damage is renamed and becomes not a house but a home. The figure^[40] in question is that of antonomasia, or change of name. It is described by Smith as a sentential figure (figura sententiae ), which "is a figure . . . for the forcible moving of affections, which doth after a sort beautify the sense and very meaning of a sentence."^[41] Its

[38] Owens v Liverpool Corporation [1938] 4 AER 727.

[39] Ibid. at 730 f–g.

[40] It should be noted that for Peacham, Garden of Eloquence at fol. E iii b, antonomasia is listed under "tropes of words," while for Puttenham, Arte of Poesie at 168, it is listed under figures. While it is properly a trope, antonomasia can also be a figure of speech where it is used argumentatively rather than simply as an "improper" or "borrowed" sense of a word.

[41] Smith, Mysterie of Rhetorique at fol. B 4 a.

rhetorical effect is depicted by Peacham as that of metonymically transferring the value of some "dignity, office, profession, science, or trade" from its proper referent to a novel comparata .^[42] In its usual rhetorical manipulation, the substitution of name is metonymic in the sense of selecting a quality or essence that is representative of the whole: Cicero for eloquence, the philosopher for Aristotle, Blackstone for the law, and so on, where the substituted name elects to qualify the object or subject in either a positive or negative fashion. The attribution is the more powerful for being unmarked or tacit, its force and accuracy are simply assumed, and not only is the lauded or denigrated part taken for the whole but there is also a move from passive to active, from description to qualification and in sum, from object to telos or goal. Whether the term "house" or "home" is more properly descriptive of the structure that formed the subject matter of the decision, it is the shift or slippage from one term to the other, from species to species or from the descriptive to the evaluative, that should give occasion for rhetorical concern. The trope is an indicator of an affectivity or unconscious intent, it is a figure of a subtle argumentative shift, and it is precisely the hidden, oneiric, or repressed connotations of "home" that the rhetorical analyst should pursue. It will be claimed here that these connotations are institutional and largely unconscious. It is certainly the case that the legal status or meaning of a home is not addressed in the judgments, nor would it appear to have been raised by counsel in argument. The institutional connotations of the shift from one noun to another have in these circumstances to be reconstructed in terms of the particular judgment and also in the longer term context of the doctrinal text of which the decision in Attia is but a minor incidence.

In the course of a preliminary judgment in favor of the defendants, Sir Douglas Frank at first instance had noted that grief and sorrow were understandable responses to "the loss of all that is embodied in the word 'home' and of one's possessions."^[43] In a statement that reversed the order of substitution, such that home became house, Sir Douglas Frank took the "modern" view that loss of possessions and of "one's own house" was not a foreseeable cause of mental illness. The Court of Appeal differed. It recognized that the claim broke new ground, indeed "that no analogous claim has ever . . . been upheld or even advanced."^[44] Nonetheless the court managed to discover a duty of care and to deem it possible that as a matter of fact it was foreseeable that the plaintiff would suffer psychiatric harm. Bingham L.J. went so far as to list other objects of affection that might, if

[42] Peacham, Garden of Eloquence at fol. E iii b. See also Smith, Mysterie of Rhetorique at fol. F 1 b; and Lamy, Art of Speaking at 215.

[43] Attia at 461 c–d.

[44] Ibid. at 464 c–d.

destroyed, so unsettle the seemingly restrained emotional world of their owner that recovery should probably be allowed: namely, a scholar's life's work of research or composition and a householder's "cherished possessions" or heirlooms.^[45] In the present instance the damage was not simply to contents but to the structure and place of the home itself.

To "fall in love" with a house is ungrammatical in law and is also not recognized as a cause of action for mental distress in either contract or tort according to a recent decision of the Court of Appeal, with Bingham L.J. (unpromoted) again sitting.^[46] In Watts v Morrow, the plaintiffs, a stockbroker and a solicitor, jointly purchased a second home, a country house, relying upon a negligently prepared survey. The summary of facts records that Mr. Watts "fell in love with the house" and that Mrs. Watts said that "it was very beautiful, a house with a heart and difficult to resist."^[47] Nonetheless, the Court of Appeal had no difficulty in denying a claim for damages for distress or loss of peace of mind: "frustration, anxiety, displeasure, vexation, tension, or aggravation" occasioned by breach of contract were, for reasons of policy, irrecoverable.^[48] It would be, it might be argued, somewhat promiscuous to allow recovery of damages for melancholia occasioned by witnessing harm to a second home, however much loved. To digress momentarily, the decision in Attia might be taken to suggest a concept of fidelity to a single home: monogamy might be matched by what could be termed monoheimy . In short, in the absence of any manifest legal reason, in doctrine or in precedent, for the extension of liability in psychiatric harm to cover damage occasioned by injury to things, it is necessary to follow the curious moral extensions and the rhetoric, symptom and trope, of the judgment in Attia and to inquire further into the legal significance of the home. The conscious surface of the decision is here of less importance than its unconscious longings and loves—what is proffered as immediate justification is of less moment than the longer term, structural causes of judgment. The apparent logic must face the delirium that is the law.

There are two important legal connotations associated with the home and traceable to the very dawn of the modern common law. First, both in case law and in doctrinal writing, the Englishman's home is his castle. As early at 1605, in Semayne's Case,^[49] it was held that the home was a place of sanctity, of tranquility and peace. It was the safest of all refuges (domus sua cuique est tutissimum refugium ). It was a hiding place, an escape, a castle, a

[45] Ibid. at 464 e–f.

[46] Watts and another v Morrow [1991] 4 AER 937.

[47] Ibid. at 940.

[48] Ibid. at 956.

[49] Semayne's Case [1605] 5 Co Rep 91.

fortress, a site of repose and of defense. In Thomas Wood's Institute of the Laws of England, ⁵⁰ Semayne's Case is discussed and cited as authority for the rule that whereas an assembly or meeting of three of more is an offense, it is not punishable if it is "for the safeguard of his House, and for the Defence of the possession thereof." It is permissible for a citizen to gather friends to prevent any unlawful entry into his own house "but he cannot assemble his friends for the defence of his person against those that threaten to beat him, while he is out of his house." The carapace of skin is obviously of less material significance and is of course—and not only by virtue of this legal rule—shorter lived than the edifice of bricks and mortar, the family home. Elsewhere in An Institute, a variety of definitions are provided of house (domus ) and of mansion house (domus mansionalis ), and the protection of these spaces and structures is spelled out at length. It is again not without significance that "a chamber in an Inn of Court, where one usually lodges, is a mansion-house" and so inviolate, a rule that no doubt did much to aid the longevity of members of the legal profession.^[51]

In later case law the sanctity of the home and garden is reiterated and emphasized. The most famous statement of right comes in Entick v Carrington, where Lord Camden asserted the legal protection of the home to be an "extraordinary jurisdiction" coeval with the law itself and so without origin or evidence beyond its statement, save that "precedent supports it."^[52] The Saxon concept of "house-peace" and the liberties spelled out in Magna Carta are likely sources of such precedent, although none is needed for so ancient a rule.^[53] He subsequently remarks upon the ethical legitimation of the rule as being coincident with the end or telos of law and of society itself: "The great end, for which men entered society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole." With a measure of hyperbole suitable to the occasion and the threat to this admittedly defeasible right, Lord Camden concludes with the celebrated defense of the English home and garden, stating that "no man can set foot upon my ground without my licence, but he is liable to an action, though the damage be nothing . . . [even for no more than] bruising the grass . . . or treading upon the soil." In later cases a similar exaggeration of an impermanent right is stated in terms of the protection of every single room in the house by separate writs

[50] Wood, An Institute at 735–736.

[51] Ibid. at 652.

[52] Entick v Carrington and three others, 1765, in State Trials (London: Hansard, 1813), vol. 19 at 1066.

[53] See Coke, Magna Carta, particularly fol. H iv b, K i a.

of trespass.^[54] The house, of course, was many things in legal terms and was certainly not free of legal and ecclesiastical interference with regard, for example, to "good government"^[55] or with respect to the proper forms of worship or the duties of husband and wife.^[56] It was in an express sense a symbol, a condensation of numerous narratives of English identity, of political apathy and personal privacy, of freedom and domestic servitude.

Whether the common law protection of the house as home of the subject is viewed as successful or otherwise effective, the home is a legal term and an image invested with a remarkable significance. The home is autobiographically both domesticity and family, the site of an originary law, that of paternity, as also in its earliest stages it is the gynaeceum, or maternal domain. The home is connotative psychoanalytically of emotional security, of a second law of nurture, of the "nursing parent" and of the immemorial, of that which is—like common law—a record or testament aere perennius .^[57] The home represents tradition in the precise sense that the home is external to and survives its occupation, it is the place of the ancestors and forefathers, of the graven image or imago, of all that, in nuce, to which we belong. The instant that the court in Attia v British Gas plc turned from house to home, categorizing the injury as being occasioned not simply by damage to property but, far more specifically, by damage that was caused by the burning of the home, it returned unconsciously to a category of legal tradition with an extraordinary, although heavily veiled, affective force. The description—by the figure of prosographia —of the burning home as the material cause of the harm suffered carries an unconscious sense of an absolute violation: to destroy a sacred place is by ecclesiastical law a sacrilege,^[58] a transgression of the boundaries between species or profanation of the marks of an iconic space. In more secular terms, destruction of the home is disrespectful of tradition—contemptuous of lineage, of ancestral virtue, and of the "titles of antiquity" which honor and family pass on through the home. One can go further and suggest that destruction of the home connotes a challenge to the most basic law, not simply that of kinship but in legal terms that of the first societas, the family and its order of succession. To destroy the home is technically a "monstrous" act because

[54] See Bruce v Rawlins [1770] 95 Eng. Rep. 934; Ratcliffe v Burton [1802] 27 Eng. Rep. 123.

[55] See An Act to retain the Queen's subjects in obedience, 1593 (35 Eliz. cap. I).

[56] See Queen's Injunctions, 1559, extracted in G. Prothero (ed.), Select Statutes and other Constitutional Documents illustrative of the Reigns of Elizabeth and James I (Oxford: Clarendon Press, 1894) at 185–187.

[57] See Carl Jung, Memories, Dreams, Reflections (London: Collins and Routledge, 1963), especially 221 ff.

[58] See Spelman, History and Fate of Sacrilege at 22–25.

it takes away from the support of the family and threatens a situation in which reproduction is no longer reproduction of the same, in which the child is a monster because it is unlike the father or the mother.^[59]

It remains to be observed that the plaintiff was a woman. In Owens v Liverpool Corporation , the court remarked that "if real injury has genuinely been caused by shock from apprehension as to something less than human life (for example, the life of a beloved dog), can the sufferer recover no damages for the injury he, or perhaps oftener she, has sustained?"^[60] It is not clear what weight this shift in gender would have in determining the factual outcome of either case, but it should undoubtedly be observed that in affective terms the home is a gendered category. In constitutional doctrine, the household, according to Sir Thomas Smith, here following Aristotle, is the internal domain of women while the external world is the sphere of men.^[61] In terms of the ecclesiastical law of marriage contemporary with the earliest surviving statements of the privacy and sanctity of the home, it is clear that protection of the home is protection of the vulnerable, the women and children for whom the home is the world. In this respect the portrait of the facts in Attia again betrays an unconscious reservoir of institutional emotions or structures of value that persist over the longue durée of common law. The figure of antonomasia indicates a slip or unconscious motive, it allows for the reconstruction of "another scene" of legal judgment, that of affectivity and desire.^[62] In terms, finally, of the structure of the legal unconscious, the case of Attia is representative of one dimension of the conflict that constitutes the dogma, dream order, or delirium of the institution. It opens up a zone of affectivity, an object among objects of identification and of love, a political desire toward which legal policy will inevitably be directed. It forms an inside, an identity against which must be compared the corresponding zone of exclusion, of alienity, foreignness, or otherness with which a later example will be concerned. In the next example, however, the question of identification is again central to the rhetorical recovery of a repressed memory of the objects and meanings of a specific legal anomaly, the treatment of contractual communications sent by post.

[59] Selden, Titles of Honour at sig. b 4 a. For extensive discussion of this theme of genealogical legitimacy, see Legendre, L'Inestimable objet de la transmission ; and more technically, see Legendre et al., Le Dosier occidental de la parenté .

[60] Owens v Liverpool Corporation at 730.

[61] Smith, De Republica Anglorum at 58–59: "The first sort or beginning of an House or Familie called Oikonomia."

[62] On the use of this metaphor, see Pierre Legendre, "Analecta" in A. Papageorgiou Legendre, Filiation at 216–218 (on "Freud's concept of l'autre scene ").

Allegoria, or the Erased Face of the Offeree

The second example is taken from the law of contract. It concerns the much remarked anomaly that while contracts are the result of consensus and thus depend upon communication between the parties, an acceptance is binding once put in the post. The postal or mailbox rule is generally accredited in Anglo-American case law with an early nineteenth-century origin in the decision of the King's Bench in Adams v Lindsell .^[63] In doctrinal terms, the rule in that case was justified by reference to the imposition of a necessarily arbitrary cutoff point in relation to communication. If such a point of no return were not imposed, then in the view of the court "no contract could ever be completed by post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum ."^[64] Such an arbitrary drawing of the line, a version of what Bachelard would have termed nemesis complex,^[65] the desire for finality, has been viewed by most commentators at best as an ill-conceived concession to the needs of business certainty and at worst as irrational by virtue of being inconsistent with the consensual principles of contract formation. Explanations for the rule are various and will be briefly reviewed. If nothing else, the absence of any plausible, let alone satisfactory, justification for the postal rule generates continued academic debate.^[66] Most commentators accept that in its original terms, covering letters and subsequently the telegraph, the rule—with the exception of the per incuriam decision of the Massachusetts supreme court in McCullough v Eagle Insurance and the historically misconceived decision in Rhode Island Tool Co. v United States^[67] —is here to stay.^[68] Justifications for the rule become secondary and less consequential save in the area of the potential adoption or disavowal of the rule in relation to more recent technologies.

[63] Adams v Lindsell [1818] 1 B. & Ald. 681; Henthorn v Fraser [1892] 2 Ch. 27; Holwell Securities v Hughes [1974] 1 WLR 155.

[64] Adams v Lindsell at 683.

[65] Gaston Bachelard, The Psychoanalysis of Fire (New York: Harper and Row, 1974) at 43–45.

[66] Simon Gardiner, "Trashing with Trollope: A Deconstruction of the Postal Rules in Contract" (1992) 12 Oxford Journal of Legal Studies 170; also Goodrich, "Contractions"; Costas Douzinas and Ronnie Warrington, "Posting the Law: Social Contracts and the Postal Rule's Grammatology" (1991) 4 International Journal for the Semiotics of Law 115.

[67] Respectively McCullough v Eagle Insurance Co. [1822] 18 Mass. (1 Pick.) 278; and Rhode Island Tool Co. v United States , 128 F. Supp. 417 (Ct. Cl. 1955).

[68] G. Treitel, The Law of Contract (London: Sweet and Maxwell, 1991) at 24; P. S. Atiyah, An Introduction to the Law of Contract (Oxford: Clarendon Press, 1989) at 77; Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34.

In brief doctrinal terms, the mailbox rule is an exception to the requirement that the formation of a contract conform to the voluntary assumption of obligations by the parties. For the contract to be adequately consensual, for there to be consensus ad idem , or a meeting of minds at the same time, it is necessary for the substance of both offer and agreement to be brought to the notice of the relevant party either by explicit words or by conduct or behavior that can be deemed to have the same communicative effect. What is required of both words or actions is that they come to the knowledge or notice of the other party.^[69] That a posted acceptance escapes this rule is illogical, but it is presented in the case law as either an aspect of the law of agency or a feature of the fiction of continuing assent. With regard to the issue of agency, the principle is adapted from the Roman law of sale. Once the letter or message is placed in the hands of the authorized messenger, then the master or sender is deemed to have entrusted the messenger with the communication and it is reasonable to rely upon the message as communicated by the bare messenger or agent. Thus in the American case law, much has revolved around a line drawn at the point where the message leaves the control of the sender. In Lucas v Western Union Telegraph Co. in 1906, the American authority for viewing the moment of completion as being the moment that the acceptance takes effect is rehearsed as being because "thereafter the acceptor has no right to the letter and cannot withdraw it from the mails. Even if he should succeed in doing so the withdrawal will not invalidate the contract entered into."^[70] In English case law a similar view, predicated upon a species of control compulsion, is also evident from early in the history of the rule: "The acceptor in posting the letter, has . . . put it out of his control and done an extraneous act which clenches the matter, and shows beyond all doubt that each side is bound. How then can a casualty in the post, whether resulting in delay, or in non-delivery unbind the parties or unmake the contract? . . . If he [the offeror] trusts to the post he trusts to a means of communication which, as a rule, does not fail."^[71] The additional justification, adding conceptual legitimacy to the empirical observation of the general trustworthiness of the postal service, was derived from the earlier decision of Cooke v Oxley which designated a mailed offer as a continuing offer and found, upon the fiction that at each moment of transmission the offeror renewed his consent and that the assent of the offeree consequently constituted an irreversible meeting of minds.^[72]

[69] Thus, classically, Dickinson v Dodds [1876] 2 ChD 463.

[70] 131 Iowa 669, 109 N.W. 191. Confirming, inter alia, Tuttle v Iowa State Traveling Men's Association, 132 Iowa 652, 104 N.W. 1131.

[71] Household Fire and Carriage Accident Insurance Co. Ltd. v Grant [1879] 4 Ex. D. 216.

[72] Cooke v Oxley [1790] Times Reports 653, discussed in Morison v Thoelke , 155 So.d 889 [1963]. This explanation of the rule is also rehearsed by Allan Farnsworth, "Meaning in the Law of Contracts" (1967) 76 Yale Law Journal 939.

The tenor of textbook explanations of the postal rule is either mutely resigned or straightforwardly cynical. For Corbin, to take an exemplary exposition, the explanation is empirical: "A better explanation of the existing rule seems to be that in such cases the mailing of a letter has long been a customary and expected way of accepting the offer. It is ordinary business usage," to which Corbin adds that while there may be inconvenience occasionally engendered, "we need a definite and uniform rule as to this."^[73] For Llewellyn, the question of the justification of the anomalous rule was best addressed pragmatically: "The vital reason for throwing the hardship of an odd delayed or lost letter upon the offeror remains this: the offeree is already relying, with the best reason in the world, on the deal being on; the offeror is only holding things open; and, in view of the efficiency of communication facilities, we can protect the offeree in all these deals at the price of hardship on offerors in very few of them."^[74] The judicial reiteration of these explanations adds little more than a sense of habitual caution or institutional faith. As recently as 1983, Lord Fraser summarized the view of the majority of the House of Lords on the distinction between telex and post in no more compelling logical terms than the observation that the rule "seems to have worked without leading to serious difficulty or complaint from the business community."^[75] In Holwell Securities Ltd. v Hughes the arbitrariness of the rule or at least the apparent idiosyncracy of its continued usage was such as to prompt Lord Justice Lawton to assert a species of the indeterminacy thesis, a vague but doubtless deeply felt limitation to the rule, namely that it was not to be applied where its application would lead to absurdity: "The rule does not apply if, having regard to all the circumstances, including the nature of the subject matter under consideration, the negotiating parties cannot have intended that there should be a binding agreement until the party accepting the offer had in fact communicated acceptance."^[76] Underlying such a view is most probably a simple sense of historical incomprehension: why continue to apply an archaic and anomalous rule when it seems to lack any logical necessity even at the time of its inception? As one court famously remarked, in the course of a failed attempt to overturn the rule, "to apply an outmoded formula is not only unjust, it runs counter to the whole stream of human experience. It is like insisting on an oxcart as the official means of transportation in the age of the automobile. The cart served a useful purpose in its day, but is now a museum piece. . . . The rea-

[73] Arthur Linton Corbin, Corbin on Contracts (St. Paul: West Publishing, 1950), s. 78.

[74] Llewellyn, "Our Case-Law of Contract: Offer and Acceptance," pt. 2 (1939) 48 Yale Law Journal 779, 795.

[75] Brinkibon Ltd. at 39.

[76] Holwell Securities at 159.

son for the rule [has] disappeared."^[77] Both in the textbooks and in the courts, however, the balance of habit and reaction, of tradition and deference to precedent, tips the scales imperceptibly toward continued adherence to the rule, toward what Nusbaum, an American, termed "repetition compulsion."

Attempts to find some more rational explanation for the postal rule range from the historical through the literary to the psychoanalytic.^[78] Starting with the latter, an article in the mid-1930s by Professor Nusbaum suggested that criticism of the postal rule and of the decision in Adams v Lindsell in particular had been extensive and was "sufficient" to discredit the rule. Nonetheless "they [the judges] stick to it in England as well as in this country. An attempt should be ventured to apply some 'psychoanalysis' to their actions and to look for the 'complex' behind them."^[79] While Nusbaum offers neither diagnosis nor therapy for the Anglo-American judiciary, his suggestion has considerable merit. Why repeat a discredited decision, or at least a rule that even the judiciary has acknowledged to be arbitrary, if not for some other reason that is either repressed, forgotten, or inadmissible? Nusbaum concentrates on the idiosyncracy of the rule and adverts to its lack of historical or comparative justification. His purpose is in large measure simply to show (arguably inaccurately) that civil law systems historically have not had such a rule and that there is good reason for that absence.

A recent commentator, Simon Gardiner, elliptically takes up Nusbaum's challenge and offers a "deconstruction" of the postal rules in terms of their historical and social context of origin. The context, he argues rather unconvincingly, is that of the nineteenth-century reform of the post office: the post office monopoly, standardized rates, prepayment of postage, and the cutting of letter boxes in doors all merged in the public imagination to equate posting with the certainty of delivery: "The thesis, then, is that the decisions of the 1840s were influenced not so much by internal considerations about offer and acceptance in contract as by way of regarding

[77] Rhode Island Tool Co.

[78] See additionally A. Nusbaum, "Comparative Aspects of the Anglo-American Offer-and-Acceptance Doctrine" (1936) 33 Columbia Law Review 920; P. Winfield, "Some Aspects of Offer and Acceptance" (1939) 55 Law Quarterly Review 499: M. Sharp, "Reflections on Contract" (1966) 33 University of Chicago Law Review 211.

[79] Nusbaum, "Offer-Acceptance Doctrine" at 922. That Nusbaum, in a paper that originated as a seminar presentation to Karl Llewellyn's contracts class, refers to psychoanalysis should not come as a surprise, granted the influence of Freud upon the realists in the 1930s. For a discussion of this point see particularly Neil Duxbury, "Jerome Frank and the Legacy of Legal Realism" (1991) 18 Journal of Law and Society 175. See also Caudill, "Freud and Critical Legal Studies" at 662–667. The major realist discussion of psychoanalysis and law is probably Frank, Law and the Modern Mind .

the phenomena of posting as such."^[80] Using Trollope's novels as a literary pre-text for reformulating the logic of the postal rule, the deconstruction ends by confirming the repressed or at least lost external cause of the rule: "The postal acceptance . . . thus stands alone as an exception to a general requirement for full communication. . . . [The] rule may be regarded as something of a museum piece."^[81] The fiction or "artificiality"^[82] whereby the act of posting is treated by simulation "as if" it were communication of acceptance is here viewed as anomalous or as "compulsive," and so arbitrary if not necessarily evil. Gardiner also recognizes that like repression itself the postal rule is likely to return: "It is worth noticing, however, that there is a chance of history repeating itself."^[83]

Where Gardiner introduces history and literature to provide an indication of the "real reason"^[84] for the rule, it is arguable that his analysis of the rule does not take the logic of deconstruction—or Nusbaum's suggested psychoanalysis—far enough. As other contributors to the debate over the rule have pointed out, the postal exception may well be more significant than the standard rule.^[85] While the rule of full communication suggests a linguistically unrealistic ideology of consensus, the postal rule introduces the objective possibility of the nonarrival of the letter and faces the consequences of that failure of delivery or noncommunication which constantly threatens to undermine the subjective theory of contracts. The narrative of the nonarriving letter would be similar to Poe's popular story of the purloined letter: the repetition or the "sticking" of the postal rule would serve to recollect or even to cure a general theory of contractual communication that represses the mechanisms, the grammatological but also linguistic means whereby the letter, the ipsissima verba of the contract, circulates or finds its destination.^[86] The rule of full communication would be part of the blindness of law, the exception would be conceptually anterior and liberatory: "The exception comes before the rule in order to put the

[80] Gardiner, "Trashing with Trollope" at 184. A more plausible version of this argument in relation to post and politics is made in Geoffrey Bennington, "Postal Politics and the Institution of the Nation," in Homi Bhabba (ed.), Nation and Narration (Routledge: London, 1989).

[81] Gardiner, "Trashing with Trollope" at 192.

[82] Holwell Securities at 157 (per Russell LJ).

[83] Gardiner, "Trashing with Trollope" at 192.

[84] Ibid. at 176.

[85] See Douzinas and Warrington, "Posting the Law" at 123–125; Goodrich, Languages of Law at 150–152.

[86] The "Purloined Letter" is much discussed within psychoanalysis and also increasingly within law: Jacques Lacan, "Seminar on the Purloined Letter" (1972) 48 Yale French Studies 39; Jacques Derrida, "Le Facteur de la Vérité," in Derrida, The Post Card; S. Felman, Jacques Lacan and the Adventure of Insight (Cambridge, Mass.: Harvard University Press, 1987), ch. 2; Caudill, "Lacan and Legal Language" at 200 ff.

rule into circulation. The post comes before the prior, the letter before the phone, endless circulation before the wealth of tradition, the postal relay before the fixity of meaning and the order of politics and law."^[87] What one commentator views as being an inappropriate extension of the ideology of the metaphor of "meeting of minds," namely that the offer is made continuously as it travels to the offeree,^[88] is represented deconstructively as the precondition for the possibility of contract as such. Where psychoanalysis would assert the priority of the postal rule because it privileged the signifier over the signified, deconstruction would support the postal rule on the basis of a similar inversion of the hierarchical opposition of writing to speech: the written is anterior to the spoken, the post thus represents the "destinal of Being," and the postal rule in consequence would be the emblem of the discipline of contract as a whole.^[89]

There is support in the history of contract, and particularly in the early formbooks such as West's Symbolaeography, to support both the psychoanalytic and the deconstructive readings adverted to above.^[90] The earliest forms of contract were written obligations adopted and adapted from precedent writings provided by means of "the [notarial] trade of the making of evidence, and terms thereof, which as they be most ancient, so without doubt are they the surest, and [of] most vailable effect, and a greater danger it is for those not exactly learned in the laws to alter or vary from the same."^[91] The contract, symbolon, creed or record, is in legal principle immemorial and immutable: the language of law is in Coke's terms vocabula artis, an "unknown grammar,"^[92] which circulates perpetually within its own professional genre. The language of legal record, as the "language of memorials" was destined more for posterity than for secular receipt.^[93] The written obligation, assumpsit, or consensual bond circulated in the external language of durable legal forms. The contract is here a trace or vestige of a structure, of a prior and external agreement, of a code or language of law which precedes and survives its momentary intentional or temporal use. The postal rule, which recognizes precisely the priority of the signifier, of

[87] Douzinas and Warrington, "Posting the Law" at 124. The argument comes directly from G. C. Cheshire and C. H. S. Fifoot, Law of Contract (London: Butterworth, 1945, 1991 ed.) at 53: "[The rule] is perhaps less surprising if we attend to the history of the matter. Adams v Lindsell was the first genuine offer and acceptance case in English law and, in 1818 there was no rule that acceptance must be communicated. As so often happens in English law, the exception is historically anterior to the rule."

[88] This argument is suggested by Farnsworth, "Meaning in the Law of Contracts" at 945.

[89] Derrida, The Post Card at 65.

[90] West, First Part of Symbolaeography, particularly fol. A 8 a.

[91] T. Phayr, A New Boke of Presidentes, in manner of a Register (London: Whytchurche, 1544) at fol. ii a.

[92] Coke, The First Part of the Institutes of the Laws of England at fol. C 6 a.

[93] Doderidge, English Lawyer, at 51.

the letter, over the sense or content, directly expresses the logic of common law history. It would be presumptuous in the extreme to suppose that there exists any single explanation—historical, literary, philosophical, or psychoanalytic—to this rule. Too much has condensed around the continued metaphor or, properly, allegory, of the post and the rule of posting. That the fiction continues to return, that letters bind without being read, that the law treats writing "as if" it were speech, in short the allegorical narrative of contract by letters, necessarily suggests an other scene or unconscious place of judgment.

In historical terms, the postal rule can be traced to the Digest, which in 18.1.1.2 rules that "sale is a contract of the law of nations and so is concluded by simple agreement; it can thus be contracted by parties not present together, through messengers, or by letters [per nuntium et per literas ]." In the reception, as Gordley has shown, the glossatorial interpretation of this passage frequently addressed the question of when the contract by "bare messenger" or letter was complete. Accursius, in the Glossa Ordinaria, thus takes the view that if the offeree's letter or message of acceptance has been sent, an attempted revocation by the seller before receipt of the acceptance would not be effective:^[94] "To Petrus, Cinus, and Bartolus the obvious difficulty with this position is that the seller becomes bound to a contract to which he did not consent at the moment it was formed. The issue in Accursius's mind, however, was not whether the seller had consented but the moment at which a communication is effective."^[95] In terms of the postreception development of civil law, the issue raised by correspondence was that of the status of messengers or other agents in communication between absent parties. The question became that of whether a simple or bare messenger could represent a continuing condition or consent to the transaction. The letter, in Alciatus's definition, was a silent messenger (tacitus nuntius ) and so out of the power of the sender it communicated in its own right. By this logic, the offeree was entitled to rely upon the continuing validity of the offer.^[96] Gordley mentions one other significant circumstance in the Corpus Iuris Civilis in which letters are effective even if not received. It is that by Code 5 176 a marriage can be dissolved by a document that never reaches the other spouse.^[97] This last example will prove to be of the utmost importance.

The glossatorial reception of the law of sale has an indirect impact upon

[94] Gloss to D 18112 (et per literas ), discussed in James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991) at 45–46.

[95] Gordley, Modern Contract Doctrine at 46.

[96] Alciatus, De Notitia Dignitatem at 190.

[97] Gordley, Modern Contract Doctrine at 46.

English law.^[98] Historical accounts of the development of modern contract doctrine make it clear that the elaboration of indigenous rules governing assumpsit and covenant was as significant as was the earlier inheritance of Roman law.^[99] Although it is evident, not least from Gordley's discussion, that the common law of contract had significant Roman borrowings and further that nineteenth-century developments were borrowed almost entirely from civil law,^[100] the most significant, yet least discussed, area of reception of contract doctrine was in the law on "spousals" or marriage contracts. In premodern English law, the use of the term "contract" was often synonymous with marriage, and it was in relation to the law of spousals that many of the doctrines later developed as part of the modern law of contract were first developed. In particular, rules relating to capacity, to duress, to consideration, to offer and acceptance in praesentia and in absentia, to present and future intent, and to the plea of non est factum all had their earliest development in relation to the law of marriage.^[101] It should also be emphasized that the law of marriage was subject to the jurisdiction of ecclesiastical courts and judges trained in civil law, and it is that Roman inheritance that the common lawyers admitted subsequently into English law.

The specific point to be made is simple and surprising. The postal rule, the allegory of the privileged offeree, is the allegory of the law's somewhat limited protection of women in the formation of spousals contracts. Henry Swinburne provides the most succinct annotation of the law governing spousals contracted inter absentes, by messenger or by letter. His analysis begins with a relatively complicated discussion of the theory of the formation of spousals. The contract is to be inferred from words or from manifested intentions: "What are words but the messengers of men's minds? And wherefore serve tongues, but to express men's meanings?"^[102] The word is already, in this analysis, a species of letter, a symbol of intent that can, however, be corrected or referred to its precedent cause, the intention of the author or sender, for if

[98] On the position of Roman law in England during the early reception, see F. de Zulueta and P. Stein, The Teaching of Roman Law in England around 1200 (London: Selden Society, 1990). Bracton, De Legibus, vol. II at 62–65 and 283–290, evidences a clear knowledge of glossatorial discussion of the Digest, on gifts, contracts, and obligations.

[99] See particularly A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford: Clarendon Press, 1987).

[100] See particularly, A. W. B. Simpson, "Innovation in Nineteenth Century Contract Law" (1977) 91 Law Quarterly Review 247; Gordley, Modern Contract Doctrine at 161–214.

[101] I shall concentrate here upon Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts (London: Browne, 1686, 1711 ed.); Godolphin, Repertorium Canonicum ; Anonymous, Baron and Feme ; Wood, An Institute .

[102] Swinburne, Treatise of Spousals at 63.

the Parties did intend to contract matrimony, then although the words import no more than spousals de futuro [i.e., engagement], the contract is no less matrimony; but when the meaning doth appear, then, howsoever the Rude and Vulgar sort do often abuse their terms, and speak improperly, we must be directed by the [rule which says] we must not otherwise depart from the signification of words, but in case it be manifest, that the speaker meant otherwise.^[103]

With the stated exception of a manifest dissonance between word and intention, the meaning of the utterance and of its sending is to be construed by law and not by reference either to illocution or subjective states. The analysis of the contract made inter absentes thus begins by taking up the glossatorial distinction between proctor and messenger and, following Alciatus, defines the messenger as without warrant or authority but "imployed only about the expedition of a bare fact, as the delivery of a meer message, or a sole postage of a letter."^[104] It is thus the instrument, the symbol, messenger, or letter that is the object of analysis: between whom can the letter legitimately circulate, who can send and who can receive these messages? The question concerns the circulation of the "deed," obligation, or fact, the movement of the signifier and not of the signified. It is a question initially of whether the woman has the capacity to utilize a particular form of acceptance. The question Swinburne addresses next is therefore that of "whether the woman may contract matrimony by a special messenger or letters, as well as the man?"^[105] Deciding that by canon law she can in principle, Swinburne is then faced with the question, "what if the party to whom the message or letter importing consent of matrimony, being delivered, do immediately upon the receipt thereof express the like consent, whether is the contract hereby finished?"^[106] The answer is that at the instant of responding to the messenger or letter, "there is mutual agreement at one instant . . . because the party which did first consent is still presumed to continue and persevere in the same mind, until the time of the others consent." In short, the contract is "perfect" or finished the moment that the woman to whom the offer of marriage was sent expresses consent. The offeror cannot, in other words, revoke the offer between the time of consent and the time of receipt of consent. The manifest fiction cited by Swinburne relates to the offerors' continued offer, idem est non esse et non apparere, which is to say that not to be and not to appear is all one in the construction of law: if the revocation has not been received it is taken not to exist. Underlying this figure of consent is the relation of man to

[103] Ibid. at 63–64.

[104] Ibid. at 178.

[105] Ibid. at 180.

[106] Ibid. at 181.

woman. It is the woman that benefits from the fiction of continued assent or continuing offer, it is the woman who is protected by the "artificial" or fictive operation of the postal rule. If in later common law it seems anomalous to protect the offeree, this is only because of the erasure of the face of the offeree—it has been forgotten that it was a woman who put a letter of acceptance in the post.

The question of the image and of gender lurks unrecognized in the background of the early development of the modern law of contract. They are certainly not the only unseen influences, but it should be noted that it is not only the postal rule that survives as a memory of contracting women. The bulk of rules governing what is now termed the "policing of the bargain" had their early operation developed around the regulation of marriage contracts. It is beyond the scope of the present argument to examine the rules of contract that develop around domestic relations and primarily concern the wife's lack of will and so of capacity,^[107] but the unconscious memory of marriage contracts can be seen in the judicial use of hypotheticals drawn from the law of spousals to explain the rules of offer and acceptance. What if a soldier on leave from the front offers marriage by post just before returning to the front? What if a man shouts a proposal of marriage across a river and the offeree's answer is drowned out by a passing steamboat? Baron Barmwell, in British and American Telegraph Co. v Colson,^[108] thus asks "if a man proposed to a woman and the woman was to consult her friends and let him know, would it be enough if she wrote and posted a letter which never reached him?" The answer that Lord Bramwell offers is of less significance than the continued presence of the female offeree.^[109] The example is not insignificant nor merely hypothetical, it recollects an institutional history, an unconscious structure within which it would be ethically absurd to allow the man to escape his duties and dishonorable in the extreme to leave a woman in suspense or unprotected. The spiritual exemplar of contract had always been that of marriage. In ecclesiastical law the order of marriage ran from that of the church to Christ, that of the priest to the church, that of the Christian to the creed, that of woman to man. The hierarchical order of marriages was not only a symptom of the necessary permanence of the contracted institution, it was also a sign—a symbol or credo—of an order of communication, of the places of communication in a dialogue in which the sovereign, father, parent, priest, or male suitor or proposer would ask a question or make an offer to which

[107] On which see Anonymous, Baron and Feme at 4–6, 214–217. Wood, An Institute at 96–103. For interesting discussion in the case law, see Copland v Pyatt, Trinity Term, 6 Car. 1 Roll 687, 79 ER 814. For discussion of the political implications of these rules, see C. Pateman, The Sexual Contract (Cambridge: Polity Press, 1988).

[108] British and American Telegraph Co. v Colson [1871] LR 6 Exch 108 at 118.

[109] The example is recited by Lawton LJ in Holwell Securities .

the offeree could only say yes or no. The offeree in this model of contract is powerless in the sense of being brought to speech in a formulaic place, in being subject to no more than an elective rite. If the law recognized the minimal duty of protecting the offeree's election, it should not be supposed that this granted the woman offeree any very great or very real right.

In place of the simple anomaly of the postal rule it is possible to offer an account and explanation of the rule that is both more poetic and more sensitive to its political circumstance. In place of the ideal speech situation, or indeed some variant theory of the rational discourse of law, the historical and analytic reconstruction of the postal rule tells a more complicated and less optimistic story. The postal rule always potentially binds the offeror to a contract of which they are not aware. It binds the parties objectively and imposes a fiction of consent upon what is always potentially a failed communication. At one level it can simply be observed that the rule is a historical residue, a relic whereby the law protects the feminine gender at the moment of its civil death, the point of its entry into an irreversible subjection to the husband. The postal rule, in protecting the feminine offeree, is itself ironically an exception to the general rule of law, which is that the married woman or "feme covert" has no contractual capacity whatsoever, for husband and wife are one person. In common law the married woman was sub potestate viri, under the control or in the law of the husband,^[110] while the unmarried woman was for a considerable portion of time likely to be in patria potestas, or some form of guardianship or wardship.^[111] The protection of the woman offered by the postal rule should thus serve to recollect the inequality of the contracting parties and the "civil death" that the marriage contract represented for the feminine offeree.^[112]

The argument from the postal rule can be taken somewhat further. Far from simply evidencing the possible failure at the heart of all communication, the postal rule indicates the inequality of communication and offers one potential explanation of the failures of legal meaning. The legal recognition of the rights of the offeree should not hide the nature of the contract to which the offeree is destined to submit. While it is true that the law offered a minimal protection to the woman through recognizing and enforcing premarital contracts or spousals, such that, for example, in Synge v Synge the Queen's Bench enforced a premarital promise of disposition of property by the husband, the general rule was to the opposite effect.^[113]

[110] Bracton, De Legibus at 36.

[111] Glanvill, Tractatus de Legibus at 59.

[112] See Anonymous, The Lawes Resolutions at 2–4. It might also be added that the consent of the woman to the offer of marriage was only a minor aspect of a much broader network of legal relations. Ultimate consent to marriage lay with the father, whose consent also brought with it the property (maritagium ) that would pass with the marriage itself.

[113] Synge v Synge [1894] 1 QB 466. See, for a similar principle, Hammersley v De Biel (1845) XII Clark and Finlay 46; 8 ER 1312 at 1327: "If a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a Court of Equity will take care that he [sic] is not disappointed, and will give effect to the proposal." The decision is in many respects more liberal than that arrived at in current state law in New York, see Morone v Morone , 50 N.Y.2d. 481, 429 N.Y.S.2d. 592, 413 N.E.2d 1154 (1980).

Mary Astell, writing in the late seventeenth century and considerably before the decision in Balfour v Balfour , confirmed the modern contractual incapacity of the wife^[114] and cogently and proleptically observed that "covenants between husband and wife, like laws in an arbitrary government, are of little force, the will of the sovereign is all in all. . . . Thus men happily sign articles relating to property and goods but then retract them, because being absolute master, she and all the grants he makes her are in his power."^[115] The model of communication offered by the postal rule and affirmed by the legal incapacity of the wife is one of an explicitly hierarchical and predetermined series of enunciative positions. The slave or the wife or the offeree can communicate, they have an animus or will (voluntas ), but the law will only recognize their speech or writing within the preestablished terms of a licit hierarchy of transmission. While the postal rule can be used to indicate that there are indeed circumstances under which the woman or the subordinate can communicate and bind in law, it is equally indicative of the powerlessness of the feminine offeree after the contract has been made. It allows us to observe that the woman is granted a final request, but it does not fit easily into any model of communicative rationality. It offers rather a glimpse of the other scene of communication, a vision of speech and of writing by position, a bureaucracy of intentions, a repression rather than a poetics of transmission. In strict historical and doctrinal terms, it has to be reiterated that the model of legal communication to which the postal rule forms a limited exception is one that denies the validity of domestic contracts, that refuses to grant legal status to promises defined as belonging to the private sphere, and that frequently does not recognize the juridical personality of the woman in the context of the home. It should be reiterated also that the doctrinal context of the postal rule can only be reconstructed through the recognition of the unequal legal background of the parties communicating by post. The postal

[114] Balfour v Balfour [1919] 2 KB 571, at 579: "In respect of these promises each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted." The reason is also, of course, that there would be a conflict of sovereigns and of prerogative rights. Regia potestas would vie with patria potestas .

[115] Astell, Some Reflections upon Marriage at 38.

rule makes legal sense only if it is analyzed in terms of inequality of speech situations and, specifically, the difference and inequality of genders.

Synecdoche: Egyptians, Aliens, Others, and the Crown

The example of the postal rule is again an instance of the image, of the long-term movement of law across considerable distances of institutional time. The trope, figure, or anomaly in the text in many senses contradicts the legal maxim that what does not appear does not exist. It is precisely through these figurations, through slips, lapses, or displacements from one institutional category to another, that the unconscious of law can be glimpsed and its reconstruction attempted. The examples argue persuasively that the survival of the institution is intimately linked to a dogmatics that appears arcane or obtuse in part by virtue of relying upon an unconscious reservoir of institutional connotations, metaphoric structures, and long-term deployments of meaning that develop in the indefinite time of precedent. As Fortescue once remarked, "we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason."^[116] Rhetoric was explicitly the art of memory, of reconstructing the forgotten or repressed, as well as that of civil speech.^[117] Like psychoanalysis is sought not only to classify the places or topoi of memory but also to map the dialectic of memory and its erasure, of repetition and forgetting, and to provide some significance both to that which surfaces in memory or dream and to that which is conspicuous or marked by its absence.

The two examples so far given of the law relating to a woman and her home and to the anomaly of the postal rule, to a woman contracting in absentia , both imply a certain legal politics of the sexes or of gender. There is more at stake in these legal examples than is immediately apparent. In the example of the home, it should be recollected that the anomalous ruling reverts to a history in which the woman is in several legal contexts treated as property while the home and garden, the spheres of domesticity, are treated as persons. With regard to the postal rule, the example of the law's patronage of women offerees should be placed in the context of a law of marriage in which the marriage contract is often the last contract that the

[116] Fortescue J. in Anon [1458] YB 36 Hen VI 25–26.

[117] Stanley Fish, a great contemporary forensic rhetorician, inadvertently forgets this aspect of rhetoric in repeatedly arguing that the practice of judgment requires forgetfulness as the condition of deciding. See Fish, "The Law Wishes to have a Formal Existence" at 204–205. See also Stanley Fish, Doing What Comes Naturally (Durham, N.C.: Duke University Press, 1989) at 397.

married woman ever makes. She is subsequently incapable either of contracting or of making a will because she is plene in potestate viri —in the complete power of the husband^[118] or, in Bracton's phrase, not simply alieni iuris but sub virga , or under the rod.^[119] It may not be inappropriate to recollect in this context that the primary and "simplest" division of the law of persons is not between male and female but between slave and free.^[120] It is that stake, the distinction between freedom and slavery, which is the subject matter of the final example to be canvassed here, namely the law of contempt of court and the prerogative of the Crown as opposed to the right of aliens, asylum seekers, and others belonging to the category of peregrinus or foreigner. By way of link to the previous examples, it may first be noted incidentally that the earliest foreigners to emerge within the Western tradition were the Danaides, who were female and Egyptian.^[121]

The distinction between slave and free is crosscut in classical Roman law by that between citizen and foreigner. Similarly, one of the oldest and most venerable of rules of common law relates to the distinction between members of the community and strangers. If we start with the commonality of lawyers itself, it is not insignificant that one of the first rules learned by those that joined the archetypical community of the Inns of Court was that they were prohibited from inviting "forraigners, discontinuers . . . [and] strangers" into the Inn.^[122] Other legislation of the Inns was concerned directly and unremittingly with maintaining the specific physical appearance of community. Not only were foreigners and strangers excluded from the ironically titled Inns of Court, but it was forbidden to look like a foreigner, to dress like a foreigner, or to behave like a foreigner.^[123] While it is true that the rules governing the exclusion of foreign fashions and Continental mores had a peculiar and distinctive urgency in the Reformation, the principles of patriotism and xenophobia involved are of much longer standing.

Commencing with Bracton, the legal term "Englishry" (Englecerie ) refers generically to being an Englishman and also to certain consequences

[118] The rule is elaborated in Glanvill, Tractatus de Legibus at 59. See further, Anonymous, Baron and Feme at 4–7. On testaments, see further Swinburne, A Briefe Treatise ; Godolphin, The Orphan's Legacy .

[119] Bracton, De Legibus at 35.

[120] This classification derives from Gaius. See de Zulueta (ed.), The Institutes of Gaius at 4: "Omnes homines aut liberi sunt aut servi." Bracton, De Legibus at 29, repeats the definition.

[121] On which point see Kristeva, Strangers to Ourselves at 42: "It is noteworthy to observe that the first foreigners to emerge at the dawn of our civilisation are foreign women—the Danaides."

[122] Dugdale, Origines Juridiciales at sig. 192r–v, referring to legislation of the Middle Temple of 1631 and 1635. This literature is commented on in Goodrich, "Eating Law."

[123] See Dugdale, Origines Juridiciales at sigs. 148–155; 191–195.

of such a designation in cases of murder. The antithesis of Englishry was Francingena , or being a Frenchman, which term was taken to include all foreigners or aliens, "all outlandish men and women and especially Danes."^[124] To be a foreigner was a synonym of being outlandish, uncouth, or simply dangerous. So too by the earliest common law, again reported in Bracton, to be a stranger (extraneum ) was equally opprobrious and suspicious, and "it was because of this suspicion that it was established that no one receive a stranger into his house or permit him to depart except in broad daylight."^[125] The legal image of the foreigner is already quite precise: he was alien, other, outlandish, extraneous, and suspect. The condition was also infectious: those that traveled with foreigners or Egyptians were likely to become not simply like them but of them.^[126] In later legislation the foreigner is linked both to the stranger and to the Egyptian. An Act of 1540, An Act Concerning Strangers , simply expelled foreigners, whereas legislation as early as 1350, An Act Touching such as be born beyond the Seas , specifically defined the rights of succession and of property of those born outside the "faith and ligeance" of the English Crown.^[127] It is in relation particularly to the break with Rome and with the principles of a universal church that the fear of foreigners became most extreme during the post-Reformation period.

Rastall's Collection in English of the Statutes in Force in its 1603 edition lists five Acts of the Realm in force specifically concerning Egyptians, foreigners, and vagabonds. The associations of the stranger are insidious in the extreme, and the definitions of foreignness and its consequences are multiple. Thus Egyptians are defined as "divers and outlandish people . . . using no craft nor seal of merchandise . . . [and who] use great subtlety and crafty means to deceive the people . . . of their money."^[128] The foreigner would take away fortune and wealth by deceit. The Egyptian was however an amorphous or spreading category and not simply an economic and ethical threat. Later legislation defined Egyptians further as "foreigners—come from abroad" and continued to include "vagabonds" who were inhabitants of England who had fallen into the ways or company of Egyptians. "Be it enacted . . . that every person and persons, which . . . shall within this realm of England or Wales, in any company or fellowship of vagabonds, commonly called, or calling themselves Egyptians, or

[124] Bracton, De Legibus at vol. II, 381–383. See also Cowell, The Interpreter .

[125] Bracton, De Legibus at vol. II, 387.

[126] For an excellent analysis of this metaphor of the alien as viral, drawing upon Baudrillard, La Transparence du mal , see P. Minkkinen, "Otherness and Difference: On the Cultural Logic of Racial Intolerance" (1992) 3 law and Critique 147.

[127] Respectively, 1540 32 H. VIII cap. 16, and 1350 25 Ed. III cap. 2, which was confirmed in 1368 in 42 Ed. III cap. 10.

[128] Rastall, A Collection in English at sigs. 144v–145v.

counterfeiting, transporting, or disguising themselves by their apparell, speech, or other behaviour, like unto such vagabonds . . . and shall or continue to do so . . . for the space of one month . . . shall be deemed a felon."^[129] The extent of the legislative drive against the stranger, foreigner, nomad, Egyptian, or vagabond suggests an extreme fear not simply of external danger but of internal decay. Even at the level of self-representation or appearance, any suggestion of foreignness had to be abhored, and legislation too frequent to tabulate governing "apparrell" was concerned as much as anything else with the avoidance of foreign cloths, cuts, fashions, and colors of dress, in the interest both of recognizability but also for the avoiding of foreign vices, namely that "inordinate excess of apparel" associated with strangers who neither knew their place nor their degree.^[130]

The fear of the strange, outlandish, Egyptian, or foreign repeats itself historically through differing institutional forms that range across Jew, barbarian, intellectual, witch, colored, unclean, heretic, poor, ill, communist, hedonist, homeless, woman, idolater, and nomad. While qualities or properties of strangeness become conflated with the terroristic exclusion of the specter of the other as such, it is possible to trace an institutional delirium concerned with the imaginary essence of the immigrant, the alien, and the foreign. Such a chorography or, in rhetorical terms, topothesia ,^[131] the feigned description or illusory mapping of the threat of foreignness against which community defines itself, has been attempted in various forms by political theory. Attempts also have been made to trace the concept of the foreign in common law, the antirrhetic or antiportrait of those outside the "ligeance" of social legitimacy, kinship, or common identity.^[132] The final example borrows from that obscure or repressed history of exclusion and examines the figure of synecdoche in the law of the land. It is by means of this metonymy, by means of a tellurian contiguity or contagion that makes the law of England the law of the land or lex terrae , by means of proximity (Englecerie ) and insularity, inhabitation and domicile, that alienity, foreignness, and nomadism more broadly can be both defined and by definition excluded. The contemporary law, in other words, still manipulates

[129] Ibid. at sig. 145v.

[130] Ibid. at sigs. 12r–14v. For a contemporaneous discussion of wanton excess of dress and of the insidious character of appearing like a foreigner or a woman, see Harrison, An Historicall Description at fols. 172r–173r, stating that "nothing is more constant in England than inconstancy of attire. Oh how much cost is bestowed nowadays upon our bodies and how little upon our souls."

[131] Peacham, Garden of Eloquence at fol. U iii a.

[132] For an interesting discussion of this theme, see Costas Douzinas and Ronnie Warrington, "A Well-Founded Fear of Justice: Law and Ethics in Postmodernity" (1991) 2 Law and Critique 115, and in a more extended form, in Douzinas and Warrington, Justice MisCarried ; Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1992).

antithetical affections. It nurtures identity and sacrifices those beyond the pale or geography of common law.

The case in question stems from an application for asylum in the United Kingdom. In M. v Home Office ,^[133] the letter M. marks an omission and, on its facts, an exclusion, the place where the applicant would have stood. It concerns again the circulation of a letter, an alphabetical character, M., between Zaire, Paris, and London, in a case concerning a refugee from political persecution. It ends with the return of the letter and the revocation of a possible (social) contract. The letter is the letter M., a terrifying textual metonymy, a synecdoche , a minimalist monument for an asylum seeker who died so as not to confuse the cartographic fictions or heraldic symbols of common law. The letter M. is all that remains, it is the trace of a being; M.—perhaps for murder, the stop mark after the letter by convention noting that additional letters are missing. For the narrative purposes of the case, we pick up in September of 1990 when the applicant originally sought political asylum in Britain. The applicant was a union organizer in Zaire, where he had participated in organizing antigovernment strike action. He had been arrested and had escaped from Zaire to Nigeria and from there to Britain. M. applied for asylum in Britain under the Geneva Convention relating to the Status of Refugees and was refused by the Home Office. The Home Office did not regard M.'s story as credible, and the letter of 16 November informing M. of the decision concludes by stating the all-encompassing discretionary power of the Home Office in such cases: "The Secretary of State recognises that a person fleeing persecution may not be able to provide documentary or other proof to support his statements . . . however, allowance for such a lack of evidence does not oblige the Secretary of State to accept unsupported evidence as necessarily being true."^[134] Although the conclusion lacks logical force—its two propositions are not connected—the issue of writing, of text and body, reemerges in the subsequent stages of the case.

M., through his lawyers, sought leave to apply for judicial review of the decision to refuse him asylum and his application was refused on 25 March 1991. He promptly sought to renew his application and while that application was pending he was examined by a doctor provided by the Medical Foundation for the Care of Victims of Torture. The doctor reported that "[t]he scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he

[133] In the Court of Appeal [1992] 2 WLR 73 and in the House of Lords [1993] 3 AER 537.

[134] Ibid. at 81.

describes."^[135] The skin was and is the first site of writing: not only was the letter (M.) a brand on the forehead of the slave, but inscription upon the body and the pain of mutilation were the archetypes of a memory that later became attached to writing. In the instant case the bearer of this writing was about to depart the jurisdiction: his text was about to circulate elsewhere in the direct sense that pending further appeal M. was to be repatriated on 1 May.

At 5:30 P.M. on 1 May, a further application for review was made to Mr. Justice Garland, who was apprised also of the fact that M.'s plane was due to leave Britain at 6:00 P.M. for Paris and from there he would be transferred, still in custody, to an aircraft bound for Kinasha, Zaire. Mr. Justice Garland "did what any judge would have done in these circumstances. Having concluded that the application was not frivolous, he sought to obtain an undertaking from Mr. Gordon on behalf of the Home Office that M. would not be flown out of the jurisdiction and thus the protection of the courts of this country"^[136] until after the application had been heard. The Home Office was informed of this request but for reasons that are unclear, failed to respond in time to prevent M.'s departure to Paris, from where he was flown to Zaire. Solicitors for M. contacted Mr. Justice Garland later that night and informed him of M.'s plight. Garland J. responded by issuing a mandatory order for the return of M. to the jurisdiction of the court and secondly ordering that pending M.'s return he be kept in the custody of servants or agents of the Crown in Zaire. This order was communicated to the Home Office, and the British embassy in Zaire was informed that M. should be placed in protective custody and returned to Britain.

M. arrived in Zaire at 7:30 A.M. and was taken to the British embassy pending return to Britain. In the meantime the Home Office considered the case. At a meeting later that day, the Home Secretary took advice and decided to revoke the order to return M. to the jurisdiction on the grounds firstly that the underlying decision to refuse M. refugee status was correct and would be affirmed and secondly that Mr. Justice Garland had exceeded his powers in making an order against the Crown: a mandatory order against the Crown was outside the jurisdiction of the courts. The consequence of this decision was that M. was informed that his appearance in London was no longer required, and he was released from the custody of the embassy. M. was never heard from again. The question before the court, on this set of facts, was whether the Home Secretary, a Minister of the Crown, was in contempt of court in refusing to comply with the mandatory order issued by Mr. Justice Garland.

At first instance, before Mr. Justice Brown, it was held that the court

[135] Ibid.

[136] Ibid. at 84. (Emphasis added)

had no power to issue a prerogative order (mandamus) against the Crown. The reason given was that the relationship between government and judiciary is one based upon "trust"^[137] and has no greater status than that of a request. It may be noted, somewhat ironically, that the word "trust," coming from the old Norse traust meaning "strong," is a perhaps unwittingly appropriate description of the de facto relation between Crown and law, but it is hardly an appropriate depiction of a legal value. On appeal, on the specific issue of contempt, the Court of Appeal found no reason to deny the court's power to issue a prerogative order such as mandamus or habeas corpus against the Crown. While the word of the Crown "is its bond,"^[138] and such orders are to be viewed as largely unnecessary, the High Court is nonetheless in principle a court of unlimited jurisdiction and so is capable of issuing any orders it wishes so long as they are not illegal.

The ensuing question, whether the Crown could be held liable for contempt of court, has not only a symbolic significance as a form of atonement for the treatment of M. but a more considerable importance for the fate of all those that subsequently seek remedy or justice in matters of asylum. Can the Crown be made to listen to the alien, the other, or the refugee? It is, after all, an age-old principle stemming from Roman law, that in fictione juris semper est aequitas .^[139] The Court of Appeal made no reference to such a principle but rather argued that actions in contempt could only be taken against "a person or body with sufficient legal personality. As neither the Crown nor the Home Office has any legal personality, no such proceedings can be brought against them."^[140] The logic of this decision requires careful reconstruction. The Crown, Rex or Regina, is a legal fiction without personality; it is a metaphor, and as a "symbol of royalty, 'the Crown' was no doubt [historically] a convenient way of denoting and distinguishing the monarch when doing acts of government in his political capacity from the monarch when doing private acts in his personal capacity."^[141] In this context neither "the Crown" nor its equally fictitious substitute "the Government" can be imbued with either natural or juridical personality. Thus while the Home Secretary, as a Minister of the Crown, was in honor and in trust obliged to comply with the order of mandamus, no action for contempt of court could lie if he did not. Further, it would be absurd to attempt to enforce contempt proceedings, its sanctions being in personam, against the Crown or government. The three remedies avail-

[137] Ibid. at 80.

[138] Ibid. at 92.

[139] (Fiction in law is always toward just ends.) See, for example, Wilkes v The Earl of Halifax [1769] 2 Wils. KB 256 (95 ER 797).

[140] M. v Home Office at 94.

[141] Town Investments Ltd. and others v Dept. of Environment [1978] AC 359, at 380, per Lord Diplock.

able, imprisonment, fine, or sequestration of assets, would be each and alike ineffective. It would be impossible to imprison "some body or thing which, whatever else it may be, is not a natural person. It would be largely futile to fine a department . . . it would be impossible to sequestrate all the Government's financial assets."^[142]

What chance then does an alien or foreign natural body have against such an icon of social presence? How can a single letter be the means of holding an office and dignity in contempt and so bound to act? The "deliberate decision"^[143] to ignore an order of the court had as its consequence the probable death of M., the sacrifice of a natural body, a refugee, a person, to the cause of preserving the symbol—the icon—of an imaginary unity and community, the mystic body of the realm, this England. As in any act of sacrifice, the symbolic was held to have priority over the real. Further, the imaginary here determined that the symbolic, the "political body," the realm as represented in the Crown, was beyond the law. There could be no retribution against nor legal accountability for the acts of fictitious persons, nonnatural bodies or imaginary juridical beings. The life of one implied the death of the other. The silence of one was the speech of the other. The incivility or alienity of one was the propriety of the other. The court proceeded latterly to distinguish "contempt" from more serious offenses and cited approvingly the following elaboration, "the phrase contempt does not in the least describe the true nature of the class of offense with which we are here concerned. . . . It is not the dignity of the court which is offended—it is the fundamental supremacy of the law which is challenged."^[144] The Secretary of State for the Home Department, as a Minister of the Crown and as one "mutually recognised" element in the "unwritten constitution," could not be said to be in contempt either of the supremacy of law or of the dignity of its administration.^[145]

At one level the example of M. v The Home Office is a simple, although important, instance of the ultimate stake of legal fiction. The representation of legal acts and more specifically the figures of the legal text have striking and violent consequences. This is not to differentiate legal interpretation from other species of interpretation and enforcement, nor the community of law from other political or social forms. The issue is rather that of reading the rhetorical figure, the synecdoche, the letter M., the diminutive or vanished part for the whole, the disappearing sign of a deeply embedded and dramatically implemented unconscious form and conflict, that of antirrhesis or here antinomy, in the production and life of the legal

[142] M. v Home Office at 95.

[143] Ibid. at 98.

[144] Ibid., citing Johnson v Grant [1923] S.C. 789, 790.

[145] Ibid. at 99.

text. The singular letter, the lone syntagma, the "undocumented" stranger or outsider comes before the law and is made to wait. His testimony is disbelieved by the Home Office, yet no attempt is made to verify or falsify his narrative. He is expelled contrary to an express order of the court, yet it is held that this defiance of the law is not contempt and is not punishable, at least insofar as such an action would have to lie against the other synecdoche in the case, the symbol of our unity, the icon of our presence, the Crown.^[146] On one side of the conflict in this particular case, the affectivity of law holds to an image of inviolate unity, of fictive presence, and of imaginary trust or honor. This affectivity constitutes that most significant of images, that of the body of the realm, of the constitution and the jurisdiction of law. On the other side of this affectivity lies a relatively silent antiportrait, a refusal to listen, a void or absence of speech in which the other is characterized not simply as without jurisdiction but as mendacious, demanding, inconsistent, and without credibility or right to any further appeal. This was an Egyptian or "outlandish" person, Francingena or vagabond, not merely potentially a felon but unconsciously always already fated to being disbelieved, unknown, untruthful, and eventually silent.

On appeal to the House of Lords the decision was affirmed although the distinction which the Court of Appeal had drawn between the two personalities of the Home Secretary, namely that of officeholder and that of private person or "Mr. Baker personally," was deemed to be "unduly technical."^[147] It was perhaps an element of what Lord Woolf termed earlier "the theory which clouds this subject."^[148] It was therefore held, and not without a certain unconscious historical sensibility, that the Crown did have juridical personality: "It can be appropriately described as a corporation sole or a corporation aggregate."^[149] The crowning irony of the final decision was that while no explicit distinction was to be drawn between person and dignity, subject and office, the corporation sole or aggregate is nonetheless a collective corpus, an invisible or notional personality, a mystic body or fiction whose "relationship with the courts does not depend on coercion."^[150] Lord Woolf thus admitted without apparent qualm or conscience that "contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive"

[146] The majority in the case held that an action could lie against the Home Secretary, Mr. Kenneth Baker, in person. In person, however, while Mr. Baker could in principle be held in contempt, he would not be regarded as being in any great measure culpable and in consequence the action would have no significant effect, nor would the then Home Secretary be personally liable for any fine consequent upon a ruling of contempt.

[147] M. v Home Office [1993] 3 AER 537 at 568.

[148] Ibid. at 544.

[149] Ibid. at 566.

[150] Ibid. at 567.

and that "it would clearly not be appropriate to fine or sequest the assets of the Crown or a government department or an officer of the Crown acting in his official capacity."^[151] In short, there would be no law between the Crown and Her Majesty's Judges who, after all, exercise their function as lawyers sub prerogativa regis, with both majesty and power (maiestatem vel potestatem ).^[152] The same contradiction, therefore, still holds and the fiction of the Crown binding one body with the other would connote too directly the attempt to engender presence in the word of the law; it would connote the impossible circularity of the presence of spirituality and temporality in the same body and was thus to be fictionalized again in terms of a finding of contempt that was explicitly without legal force or enforcement. To punish the corporation sole of Her Majesty's Government would be too narcissistic an act, it would require self-mutilation, in that one member of the body would have to punish another. The synecdoches of Crown for custom and country, and of M. for applicant, both suggest a contiguity, however protracted, between part and whole. For the Crown to sanction itself would have to be a fiction, and such was the solution at which the House of Lords arrived in intimating that a finding of contempt was all that was needed to bring law to government or to force compliance with an injunction. In any event, as a practical matter it was a decision arrived at far too late, in the wrong place, and without any significant legal effect: a justice miscarried or a law displaced.

The only other judge to offer an opinion in the House of Lords was his honor Lord Templeman, who again made appropriate historical references, this time to the principle that what pleases the prince has the force of law—"the judges cannot enforce the law against the Crown as monarch because the Crown as monarch can do no wrong"—but then proceeded to claim that enforcement may be against the Crown as executive. The ground for that decision was that any other decision would "establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition that would reverse the result of the civil war."^[153] The rhetoric of the case thus returns again to the bellicose and agonistic. The civil war established parliamentary supremacy and subjected the judiciary to the supremacy of legislation. In the case of M., a case that was deemed by Lord Donaldson to be remarkable for "the chapter of accidents, mistakes and misunderstandings" which occurred, the judiciary fell very far short of challenging the legality or the justice of ministerial actions.^[154] What the courts variously required was that the grace by

[151] Ibid. at 566.

[152] The definition of legal function comes from Cowell, The Interpreter .

[153] M. v Home Office [1993] 3 AER at 541.

[154] M. v Home Office [1992] 2 WLR at 96.

which parliament related to the law be an invisible grace, the apparent relation an apparent subjection. For all its metaphysical complexities of corporate and individual subjects, the transmission of interior grace—of the meaning or spirit of law, of unwritten tradition or knowledge (subauditio or subintellectio )—was a matter of convention, of manners or of proper form. It was transmission of an image, of a law prior to law in which necessity was the figure of grace and law an allegory, as it always is, of the legitimacy, the domesticity of power: it is in this image that we see ourselves, in this effigy that necessity speaks and law is honored as decorum and patria . Lord Donaldson, again in a case of contempt, remarked a few years earlier of a journalist's refusal to disclose his sources, that the rule of law and specifically its provisions relating to contempt of court are "society's answer given through the mouth of Parliament, and who are journalists, victims or judges to set themselves up as knowing better? . . . Personal and professional honour surely equates with the acceptance of, and obedience to, the rule of law."^[155] There is always, in short, the face of the law as an attribute of social presence and as an element in the iconic representation of the self-presence of the polity, of the unity of plurality.

Envoi

The ornaments, symbols, and images of law, in this instance the figures of the legal text, indicate those slips or unconscious motives that allow for the reconstruction of an "other scene" of legal judgment. The other scene is that of the unconscious, of repressed desires and internalized prohibitions, of the affects and identifications that constitute reason and institute law, as visibility, as affect, and as text. The example of M. v The Home Office is in this context a striking instance not only of the latent violence of textual interpretation but also of the rhetorical forms that constitute the indicia or signs of structure in the surface figurations of legal texts. The analysis of the rhetoric of the antirrhetic, of the polemical or agonistic structure of the legal unconscious, indicates a series of oppositions, antitheses, or simple contradictions in the organization and force of legal thought and its corresponding forms of textuality. The legal text constitutes a visible material surface, a "terranean" screen, a body of law whose figurative function is that of representing in the imago or effegie, mask or face of a corporation sole or aggregate, an invisible order, a spiritual coherence, a dogma, fiction, or unity which will identify and direct the thought or the vision of the subject of law to its licit mythic image or source. The text is only ever a sign of apparent juridical community, of a mixture of visual and epistemic

[155] X Ltd. v Morgan-Grampian (Publishers) Ltd. and others [1990] 1 AER 616 at 622.

control, of the combination of image and word. It is the visible surface or icon of a more complex source and belief, order and unity. The unity and identity of law experienced in and through the figures of the text are pitched against—and mark the boundaries of—an outside or externality that is both heteroclite and dispersed, confused and dissembling. The incidence and continuance of such an oppositional or antinomic argumentative structure, the explicit study of law as an instance of the dogmatic genre of an unconscious antirrhetical structure, deserves a final comment.

It might be said that the case of M. v The Home Office represents an instance of empty speech, of a speech that has lost its subject yet cannot mourn. The text erases a letter and kills a person; it removes one possible and existent gloss and thereby it blots out a child of the text. It negates—denies, rejects, or annihilates—that which is excluded from the text, yet it simultaneously represses and so incorporates an other of the law. Repression drives within. Negation accepts or at least takes account of that which is repressed and repression thereby is paradoxically symptomatic of the persistence of that which doctrine or orthodoxy would seek to exclude.^[156] In the literal sense of negation it is easy to observe that the antirrhetic establishes over time an imaginary—or indeed a bestiary—of lost objects, exiled subjects, illicit images, condemned words, and failed memories. It peoples the text with orthodoxies, the iuris vincula, of dogma and faith while establishing an unconscious lexicon of the voiceless, the silent, the exiled, and the excommunicated. The jurisdiction is the sphere of legal affectivity as well as the site or institutionally authorized place of its enunciation. Yet a speech that has lost its subject, a speech that represses its "other scene" or unconscious bonds, cannot mourn its losses and so cannot recognize either the death of the subject or the unconscious of the text implicit in the violence that legal discourse does to things. A final brief narrative of the contemporary symbolization of legal violence will serve as a conclusion.

It is ironic that at a time when the legal profession and judiciary have had to face considerable criticism by virtue of miscarriages of justice, as also by virtue of the age, inflexibility, archaism, and elitism of the law, that the Lord Chancellor comes upon the idea of a review of Court Dress, with a specific reference to the abolition of the wig. The wig, the coif, rings, robes, and dinners are all significant symbols of an internal community or affective "brotherhood" of the law. The wig and its more elaborate forerunners are mentioned in many descriptions of investiture ceremonies for

[156] See Sigmund Freud, "Negation," in Sigmund Freud, General Psychological Theory (New York: Collier Macmillan, 1963). For further discussion of negation, see Julia Kristeva, Revolution in Poetic Language (New York: Columbia University Press, 1984); on "empty speech," see Lacan, Écrits at ch. 3; M. Borch-Jacobsen, The Freudian Subject (London: Macmillan, 1989).

Serjeants at Law.^[157] "Hoods and Coyfes" were placed on the heads of new Serjeants. The question is why, and it is answered in terms of the "Quoyff" being a symbol of two things: "Videlicet, it is a Helmet or Sallet, that they should not feare having that on to speake bowldly the Law, and est sicut vestis candida et immaculata, and they might weare it in [the] place of justice before the King's presens; and their partye garment and hoodd betokeneth prudence and temperancye."^[158] Again, the emblem or symbol can be reconstructed according to a historical genealogy. The original headdress of the lawyer was in certain French jurisdictions a metal helment that would guard the lawyer from attack by irate clients. The helmet was soon replaced, however, by the coif, which became in less aggressive circumstances the wig or perruque, a symbolic helmet, a memory of the need to protect the learned head from attack in times when that attack would be verbal or political rather than physical. Consciously, or more probably unconsciously, the legal institution no longer wishes to recollect the sudden and surprising criticism that was formerly meted out to the sagacious cerebellum. The Lord Chancellor's consultation document has been interpreted as asking whether the time has come to abolish the wig. I am tempted to suggest that the better question would have been that of whether current circumstances have made it advisable for the profession to return to the use of the helmet.

[157] See Dugdale, Origines Juridiciales at fols. 118 a–122 b. See also J. H. Baker, The Order of Serjeants at Law (London: Selden Society, 1984).

[158] The source is Sir Christopher Wraye Lord Chief Justice, cited in Dugdale, Origines Juridiciales at fol. 120 a.