Two
History Becomes the Law:
Mourning, Genealogy, and Legal Historiography

Historiographers disagree so much that most must be lies. . . .^[1]

I will begin with an event. It takes the form of an emblem of that process of losing that constitutes and reconstitutes the past. Under the rubric of memory, a late Renaissance treatise on codes of conduct, The Ladies Calling, offered practical advice for widows in the following terms:

The remains of her husband be of three sorts, his body, his memory and his children . . . The more valuable Kindness, is that to his Memory, endeavouring to embalm that, keep it from perishing, and by this innocent Magic . . . she may converse with the dead, [and] represent him so to her own thoughts, that his life may still be repeated to her; and as in a broken Mirror the refraction multiplies the Images, so by his dissolution every hour presents distinct ideas of him, so that she sees him the oftener, for his being hid from her Eyes.^[2]

The widow's memory of her husband, her diffuse and frequent recollection of his various images, was somewhat disingenuously or at least inaccurately termed an "innocent magic." The advice or injunction to remember was followed by further instructions as to the proper character of her inner representations or recollections of loss: "She is not only to preserve, but to perfume his memory, render it fragrant as she can not only to herself, but to others."^[3] To the extent that the widow was responsible for publicly attesting the life and memory of her husband, she was further exhorted to revive specifically the "remembrance of whatever was praiseworthy" in the life of the deceased, to vindicate his name and to stifle

[1] Henry Cornelius Agrippa, Of the Vanitie and Uncertaintie of Artes and Sciences (London: H. Bynneman, 1575) at sig. 13v.

[2] Richard Allestree, The Ladies Calling (London: n.p. 1677) at 68–69.

[3] Ibid. at 69.

or allay all calumnies or accusations, even such as were true. Memory, in short, was a creative art that aimed not simply to preserve, register, or reinscribe the dying image of the husband but also to remember for posterity, to recollect so as to represent a fidelity that would outlast and embellish the passing of the husband and the transience of death.

The widow was enjoined to write and to rewrite and so to embody a specific history. Her task was that of a living narration, an invention of memory that would both honor the deceased and restore, rectify, or cure the future—the public image and lineage of his life. The widow must love and embody what remains of the past, its fantasm or meaning. In consequence she must love the past differently, not simply because of its disappearance but also because of the need to reconstruct its images or remains according to the protocols of present meaning. Through the image of that which has died, she was to embody, preserve, and represent the dead, not only symbolically, to others, but also emblematically as the other in herself. Such is properly the "ladies calling," or the woman's fate, which is explained elsewhere in Allestree's treatise in terms of the due observance of distance (modesty) and specifically the virtue of a movement from external to internal images as the method or therapy of incorporation of virtue or grace: "Why should they dote on the fictitious image, of a perhaps fictitious beauty, which their glass presents them when they need but look inward to see an infinitely fairer idea?"^[4] For the widow, inward virtue or the "fair idea" lies in the fidelity that is actively expressed in the fantasmatic histories of an image. She is the bearer of the responsibility of a particular and peculiarly inventive or displaced series of memories. It is the argument of this chapter that the widow herself may act as the emblem of a form of historiography, that of a genealogy in which the multiple images of the past both represent the fate and disperse the identity of contemporary institutions or present lives. While the example of the widow's memory of her husband is already charged with resonances of genealogy and of law, legitimacy, and propriety, a number of specific elements of historiography can be grafted onto the process of mourning and memorializing that the widow undertakes in obedience to an unwritten or informal law.

History as Cure

Memory remains as the trace of the other. Memory, however, is an active faculty, and it cannot be ignored that the subject which bears or incorporates the other, the absent object of memory, is the widow.^[5] She does so, if

[4] Ibid., Preface.

[5] On the creative force of memory, a power well recognized in law, see, for example, Doderidge, English Lawyer at 12–13, depicting memory as "the chest of an inestimable treasure, given from God for the preservation of all kinds of knowledge: it is as Plutarch says, the store house of all our understanding; and as Plato says, Mater Musarum , the Mother of the Muses: as Aristotle says, it is the guide of our experience, and the ground-work of all wisdom." For more general studies, see Mary Carruthers, The Book of Memory: A Study of Memory in Medieval Culture (Cambridge: Cambridge University Press, 1990); Frances Yates, The Art of Memory (London: Routledge and Kegan Paul, 1966).

she observes her calling, because of a duty to the dead husband and so as to live on as his memory, as a widow, unmarried, chaste yet not a virgin.^[6] The duty of mourning and of recollection of that which has passed should therefore be understood actively and therapeutically as instituting a type of being through a restrained although never passive rite of loss.^[7] The purpose of recollection is not only to preserve and further the image of the departed but is equally to train the soul and to remind the widow or the friend of a separation that they too will experience. The widow is cautioned "not to be conformed to this world"^[8] and further advised that death should remind her of the vanity, the folly, and the bitterness that are aspects of all temporality: "The time that's passed is vanished like a dream or shadow. . . . Already we are dead to all the years we have lived, and vain it is to expect to live them over again."^[9] The act of mourning impresses upon the soul the intimation or shadow of mortality. It preaches the inevitability and constancy of death as such—not simply of the husband's death. It equally defines death, past and future, as something ordained by providence, signaled by Saturn, by law, and yet sent to cure or to relieve the husband and the widow alike of unhappiness. More than that, how-

[6] Allestree, Ladies Calling at 80, recommends that the widow not marry again. In ecclesiastical terms remarriage would be a concession to lust and sexual pleasure. For the patristic grounds of this view, see, for example, St. Ambrose, De Viduis, in The Principal Works of St. Ambrose , Select Library of Nicene and Post-Nicene Fathers, vol. 10 (Oxford: Parker and Co., 1896). Generally, see James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: Chicago University Press, 1987); M. Ingram, Church and Courts, Sex and Marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987); A. Blamires (ed.), Woman Defamed and Woman Defended (Oxford: Oxford University Press, 1992); Madeleine Lazard, Images littéraries de la femme à la renaissance (Paris: Presses Universitaires de France, 1985).

[7] That the widow's mourning should be restrained is a theme pursued in Thomas Allestree, A Funeral Handkerchief (London: for the author, 1671) at 8, forbidding "inordinate passion; not tears simply but their excess; not tears of sympathy . . . but despairing repining tears." Also on widows and melancholy, see Burton, Anatomie of Melancholy at 193. More broadly on femininity and melancholy, see Julia Kristeva, Black Sun: Depression and Melancholia (New York: Columbia University Press, 1989); Juliana Schiesari, The Gendering of Melancholia: Feminism, Psychoanalysis, and the Symbolics of Loss in Renaissance Literature (Ithaca: Cornell University Press, 1992); Anne Juranville, La Femme et la mélancholie (Paris: Presses Universitaires de France, 1993).

[8] Richard Allestree, Whole Duty of Mourning and the great concern of preparing ourselves for death practically considered (London: J. Black, 1694) at 56.

[9] Ibid. at 5.

ever, mourning prepares the widow. It works upon her soul. Memory is the technique that will cure her of her loss by instituting innumerable images of that which has passed, by providing a vision or reordering of the past that will include the absence of the husband and so detach the widow from her loss.

The model of such detachment is broadly that of the crucifixion, of an exemplary death which is both a sacrifice and a redemptive communication with the spirit. Mourning is classically depicted in doctrine as the requisite manner of recollection of the spirit. In the terms of one Reformation defense of the Catholic faith: "Preach [docente ] so as to move the people [ecclesia ] not to clamour but to mourning. Let the tears of the audience be your commendation."^[10] Doctrine, like history or as history, thus mourns so as to recognize the reality of the past and to detach the faithful, or those that recognize their calling, from the form of the past, its absence or loss. It is in the latter respect that the treatises on bereavement represent the rituals of mourning as curative: consideration of the dead institutes a "house," a commonplace or "school of mortification."^[11] Recollection of that which has passed at the time of its passing, remembrance or reflection upon the last periods of a life, will act "to make a deeper impression on the soul, and be retained in the memory more than all the memorials that have been rehearsed."^[12] The realization of the vanity and the transience of the body will prepare the widow for a life of renunciation consoled only by the images preserved in memory and a knowledge of the advantages of death. In the modern and less poetic language of psychoanalysis, mourning, which is also almost a symptom of femininity,^[13] is equally depicted as working upon the soul or, in the terms of the modern discipline, as freeing the subject from its attachment to the object it has lost. For Freud, the "work" of mourning is that of the subject's coming to terms with the reality of loss.^[14] The process is depicted as being one of intense struggle through which the mourner slowly parts with a continued existence, the internal image or hallucination through which the lost

[10] Thomas Stapleton, A Fortresse of the Faith first planted amonge us englishmen, and continued by the Universal Church of Christ (Antwerp: Ihon Laet, 1565) at sig. 138r.

[11] Allestree, Whole Duty of Mourning at 55.

[12] Ibid. at 57–58.

[13] See Luce Irigary, Speculum of the Other Woman (Ithaca: Cornell University Press, 1985) at 66–70; Juranville, La Femme et la mélancholie particularly 77–107.

[14] Freud, "Mourning and Melancholia" at 154: "Now in what consists the work which mourning performs? I do not think there is anything far-fetched in the following representation of it. The testing of reality, having shown that the loved object no longer exists, requires that all the libido shall be withdrawn from its attachments to this object. . . . Each single one of the memories and hopes which bound the libido to the object is brought up and hyper-cathected, and the detachment of the libido from it accomplished. . . . When the work of mourning is completed the ego becomes free and uninhibited again."

object lives on in the mind of the mourner.^[15] The process is depicted by Freud as one of separation or distancing, a curious and painful "mental economics" of detachment. This process of detachment could also, however, be interpreted as a species of hermeneutics, an analysis, another series of histories of, let us say, woman, image, and law.^[16]

It is initially and inevitably the case that mourning is not for the benefit of the dead, nor does it endeavor to change the past but only, although such is not an insignificant act, to multiply and ameliorate its images in the present. The function of mourning, like that of all historical writing, is expressive of a contemporary event and endeavors either to excise a past, a fantasm, which threatens the health of the mourner, or to manipulate the images of vanished time as a resource for the future or, in the most spurious of contemporary notions, for living well. In either event, the curative virtue of mourning shares many features with the institution of historical writing, which is itself inevitably also an interpretation and displacement of the past: "Modern medicine and historiography are born almost simultaneously from the rift between a subject that is supposedly literate, and an object that is supposedly written in an unknown language. The latter always remains to be decoded. These two 'heterologies' (discourses on the other) are built upon a division between the body of knowledge that utters a discourse and the mute body that nourishes it."^[17] The object of history is most obviously and most directly the alien realm of loss: the passed is that which is foreign, obscure, inert, and irrecoverable. The past can only be deciphered, and the only reason for that decipherment is the interest, pleasure, crisis, or peril of the contemporary. The institution of history, like reflection upon our own senescence, is multiple, varying, and purposive; it is the most powerful and the most social of the

[15] Ibid. at 154.

[16] For a critical appraisal of Freud's thesis coinciding with the advice of the Ladies Calling, see Jean Laplanche, Seduction, Translation, Drives (London: ICA, 1992) at 172–173: "Everything rests here upon the notion of detachment (Losung ) which Freud, in an entirely inadequate understanding, considers as the liberating severing of a bond with the object, and not as an analysis . Upon the fabric of my existence, woven with the web of the other (now lost), loss causes me to perform an unravelling, a painful meditation. But each thread, although I indeed separate it off from the whole, is not broken as Freud claimed. It is, on the contrary, over-invested, contemplated separately, reintegrated into its history and beyond this history in common, of the couple for instance, reintegrated into a more inclusive and much longer history."

[17] Michel de Certeau, The Writing of History (Now York: Columbia University Press, 1988) at 3. Both existential and psychoanalytic approaches to history repeat this point extensively. It was an important theme in Jean-Paul Sartre, Critique of Dialectical Reason I, Theory of Practical Ensembles (London: New Left Books, 1976) and may be traced more recently in another important critique, Peter Sloterdijk, Critique of Cynical Reason (Minneapolis: Minnesota University Press, 1987), as, for example, at 115: "History is always a secondary force that must be preceded by an impulse of the moment."

species of thought, it is unconscious in its effects and yet active as either therapy or domination of an invisible or lost cause.^[18] Retrospection is a kind of sorcery that imagines, invents, and reinvents those losses that mark survival or that constitute, in its most ancient sense, the image of contemporary identity as person, institution, collectivity, or law. The curative power of remembrance or, in institutional terms, of historical memory, lies not in the accuracy of the recollection nor in the similitude of the image to the subject recollected but rather in the internal effects of the play of past, image, and imagination.

Mourning, in psychoanalytic terms, stands between the subject and melancholia^[19] either by virtue of separating the subject from the object or by reinterpreting the history of the subject so as to incorporate the loss of the loved object. Memory thus cures by instituting innumerable images of that which has passed, by providing a vision or reordering of the past that will include the absence of the husband or the loss of some other abstraction or ideal. Time, in another Renaissance conception of such recollection, "must play the physitian," to which the anonymous author of The Lawes Resolutions of Women's Rights adds, "I will now help him a little: why mourn you so, you that be widows? Consider how long you have been in subjection under the predominance of parents, of your husbands, now you be free in liberty, and free proprii iuris at your own law."^[20] The widow comes to reinterpret the past and eventually to inaugurate a novel present, not least by virtue of the legal recognition of her civil status, of her will, upon the death of the husband. The multiple images of the husband, the fragmented reflections of a previous life, the shattered specular remains, are the opposite of a classical fidelity to the image or death mask of the paterfamilias . The widow inherits a life; she may love again although it is recommended that such a love be of the church, of the spirit and not of the flesh. The fragmentation of the past acts finally as a spur either to the integration of the self or to a more wayward and idolatrous mobility, a flux and renewal of form, the becoming of the widow now separated from her former subjections.

Separation has also been the technique of the historian whose interpretations depend upon that breakage, rupture, or periodicity which places

[18] On the fantasmatic character of individual and collective memory, see Sigmund Freud, Psychopathology of Everyday Life (Harmondsworth: Pelican, 1942), especially ch. 4; also Sigmund Freud, "Screen Memories" in Standard Edition of the Complete Psychological Works of Sigmund Freud (London: Hogarth Press, 1953), vol. 3 at 303–322.

[19] In the Freudian vocabulary, melancholia is an extended mourning which is differentiated from simple mourning not only by the pathological persistence of grief but by the unconscious character of the loss. See Freud, "Mourning and Melancholia" at 155.

[20] Anonymous, The Lawes Resolutions of Women's Rights or, the Lawes Provision for Woemen (London: J. More, 1632) at 232.

the object of historical knowledge in the past. Against that breakage which constantly threatens to suggest the externality of both the past and of the event, the Baroque conception of plurality, of a past that constantly dissolves and reforms, is suggestive of an internality of the other or of its meaning, an internality toward which the history of mourning itself points. The truth of death, according to Allestree, was not privation but "permutation and change."^[21] Death sent on—it was nothing less than the sign of all future possibility, the augur of an "impossible mourning," a distant "premonition of the other," the source of "a law which speaks to us through memory."^[22] The other cannot ever be in us as a resurrected self, nor can the image of the other in any way accurately represent the reality of its remains. The image is the repetitive and numerous object of survival, it is the constant or occasional reminder of the dissolution of the subject, it is a fantasy that identifies both subject and death in the plural or dissipated reinterpretation of what has gone. The image as memory exists only in constant dissolution, in the corruption or deferral of presence, in the shattered unity of all identity over time. In similar terms the history of the institution or the history of law is subject to the same process of dissolution, it lives in the scriptural mirror or written remains of innumerable cases, diverse and fragmentary jurisdictions, in permutation and change obscured by the glass of reason or the distance of norms.

Genealogy

The object of the widow's memory was conceived explicitly as absence. The past was precisely nonpresence or discontinuity; the past was passed by virtue of absence, by dint of apparent disappearance, it was text or trace, image or fantasy, symptom or lack.^[23] In this aspect the widow looks back upon her husband's fate, upon death as that which threatens to hide, render obscure, or remove from view. The first emblem of historical method

[21] Allestree, Whole Duty of Mourning at 142.

[22] Jacques Derrida, "Mnemosyne," in Jacques Derrida, Memoires: For Paul de Man (New York: Columbia University Press, 1986) at 6 and 8. For discussion of that text and the theme of memory, see D. Farrell-Krell, Of Memory, Reminiscence, and Writing (Indianapolis: Indiana University Press, 1990), especially 283–291.

[23] See Paul Virilio, The Aesthetics of Disappearance (New York: Semiotexte, 1991); Jean Baudrillard, The Evil Demon of Images (Sydney: Power Institute, 1987) at 39: "The idea [is] that the disappearance of something is never objective, never final . . . it always involves a sort of challenge, a questioning, and consequently an act of seduction." That nothing disappears absolutely is, of course, the classic Christian response to death and is elaborated extensively, for example, in Allestree, Funeral Handkerchief at 23 ff.: "Death is a strict door-keeper, all that pass out that way, the door is shut on them, they shall never return to converse with us in this world. . . . All our groans, sighs, sobs, and pittiful cries cannot awaken them out of the sleep of death."

that this chapter invokes is thus that of the exteriority or silence of the past. The widow looks back upon a body now absent, she conjures a salutary image of that which was left behind, mute and beyond all objective recuperation. The object of memory and, by implication, the witing of history, is directed in this aspect to the creation of an internal exteriority: the historical care or concern is not so much with "what happened" but with the event of death and the silence or absence it engenders for those that live on. The object of memory is not, however, the corpse—which has in any event also disappeared or putrefied^[24] —nor is it the state or the various signs of being dead or discontinued. The object of memory is the recollection of disappearance, the deciphering of the myths, emblems, and clues,^[25] the relics, ruins, or remains of the passage of that which is passed on.^[26] The mode of historical writing, in other words, is both cryptic and creative, it reminisces and it reinvents: "None of this, however, constitutes a reconstruction. Something has been lost that will not return. Historiography is a contemporary form of mourning. Its writing is based on absence and produces nothing but simulacra. . . . It offers representation in the place of bereavement."^[27] So too, to take another example, The Anatomie of Melancholy places memory among the "inner senses" and observes that its objects are things "past, absent, such as were before in the sense."^[28] In theological terms, memory is thus the conceit of images (imaginaria visionis est indigna ), a sight of what no longer exists, an unhappy recollection

[24] Although it should be noted that there is discourse of putrefaction which reminds the widow or the friend of the "horrors of death." See Allestree, Whole Duty of Mourning at 49–50: "And in such degree hath corruption prevailed, that some bodies hath been forced to be buried very deep, in the earth. So noysome have they been, and soon putrefied, but they are not to be looked upon with the Eye, yet are they more to be thought upon, and our fading estate to be reflected upon." On the representation of the dead, or more precisely of dead bodies, see [Tribonian et al.] The Digest of Justinian, ed. Alan Watson. (Philadelphia: Pennsylvania University Press, 535, 1985 ed.) 11.7.44, discussed in Pierre Legendre, Le Désir politique de Dieu: Étude sur les montages de l'état et du droit (Paris: Fayard, 1989) at 37–38; see also Anonymous, "Of the Variety and Antiquity of Tombes and Monuments of Persons Deceased in Englande" (1598), in Thomas Hearne (ed.), A Collection of Curious Discourses (London: J. Richardson, 1771). More generally, see Nigel Llewellyn, The Art of Death: Visual Culture in the English Death Ritual c. 1500–c. 1800 (London: Reaktion Books, 1991).

[25] On decipherment and historical method, see Carlo Ginsburg, "Clues: Roots of an Evidential Paradigm," in Carlo Ginsburg, Myths, Emblems and Clues (London: Radius, 1990). See also de Certeau, Writing of History at 85: "The past is first of all a means of representing a difference . . . the figure of the past keeps its primary value of representing what is lacking ."

[26] On the theme of passage, see Walter Benjamin, The Origin of German Tragic Drama (London: New Left Books, 1976); see also the excellent discussion in Susan Buck-Morss, The Dialectics of Seeing: Walter Benjamin and the Arcades Project (Boston: MIT, 1989) at 159–201.

[27] Michel de Certeau, The Mystic Fable, Volume One: The Sixteenth and Seventeenth Centuries (Chicago: Chicago University Press, 1992) at 10.

[28] Burton, Anatomie of Melancholy at 23.

(infoelix memoria ).^[29] What is left, according to the Digest, is no more than a likeness, the image made from what has gone.^[30]

Unable to restore the past as physical presence, the widow must engage in a pathological reflection upon the signs and, more strongly, the symptoms of an absence and so recuperate her own health by means of multiple and momentary refractions of her loss. She sees her husband more often by virtue of his dissolution and so, in a curiously Freudian turn, she remembers him so as to put him to rest, so as to forget his actual past. While the widow's relation to the past is quite explicitly imaginary, it would be wrong to suppose that the reinterpretation of the past differentiated personal mourning from historiography. Both endeavor to interpret or give meaning to loss. The exteriority of the past, its existence only in texts, ruins, and other sedimented or imaginary remains, is the site of the power of historical writing, namely that it gives speech, a language, to that which is silent; it deciphers an other that would not otherwise be read. One might thus note that on any model or by any method, the writing of history is engaged, either therapeutically or politically, both with its subject, the widow who remembers or the historian who writes, and with its object, the departed husband or the imagined past. Whatever the means of the relation between interior and exterior, presence and absence, life and its relics, the evocation of dissolution, of absence and silence, necessarily involves elements of a dialectic or play between image and subject, fantasm and reason, and finally, one might add, between repetition and reproduction. Where the widow fills the space of absence with multiple images, with partial and distortive reflections of the lost object, the history of institutions similarly traces the varied elements of discourse and structure, relic and fragment that compose the identity—the legitimacy—of cultural forms. The widow preserves the name of her husband not simply so as to relieve herself of a certain sorrow or sense of bereavement, but also for purposes of reproduction: the widow protects the memory of the dead man, but she also tends thereby to her children and to the law of succession, which passes on from father to son in an unbroken line:^[31] whoever has seen me has seen the father.^[32] In short, mourning institutionalizes the widow's loss and emblematizes that which has vanished as the prototype of

[29] James Calfhill, An Answere to the Treatise of the Cross (London: H. Denham, 1565) at sig. 173v.

[30] Digest 11.7.44. What is important in determining the sanctity of burials is where the head is buried, cuius imago fit, from which images are made.

[31] On succession and specifically dower—the third of the husband's property held by the widow for her life—see, particularly, Anonymous, Lawes Resolutions at 231–360.

[32] Through the image, the father becomes an emblem. For discussion of Athanasius, see Legendre, L'Inestimable objet de la transmission at 61–64.

that which will follow. The husband becomes a real image, an institution, a history to which the son adapts.

The fantasmatic character of adaptation is not directly the issue. The widow reflects upon an absence, she mourns by means of certain signs, symptoms, or effigies of that which has disappeared. Whatever the labor of adaptation or of resistance in which the widow in fact engages, the figure of the widow may act as an emblem of a species of historiographical method, that of genealogy. To the extent that she acts as host and guarantee of reproduction, the widow becomes an institution, she repeats. The institution may similarly be depicted as a widow. The institution or, more simply, the law, requires its own effigy, its own paternity, its own forms of legitimacy or familial identity and role. In this respect it acquires an unconscious or, in more pragmatic terms, it writes so as to have a past, it writes so as to lay claim to an identity. Against that historiographical tradition and its institutional texts, against the grain of identification, unification, and establishment, against the law of transmission through precedent, scripture, and patristic norm, the genealogical method turns rather to the multiple images of the broken mirror, to a past that is both fecund and fluid in its imaginary representations of loss. Genealogical method suggests nothing less than a history of law as a history of institutional imagination, a history of the unconscious of a human science, a history of the multiple images of justice, of person, thing, and action which form the work, the symptoms, of legal culture.^[33]

In positive terms the genealogy of an institution takes the form of the expression of a series of partial histories. The genealogical method looks to the plurality of institutional histories and not only to its legitimate forms. Either as supplement or as excess, genealogical method traces equally the various unconscious forms of institutional transmission. It provides a reading of custody and succession, permutation and repetition through the symbols, the icons, idols and failures, the deaths and the survivals, the singularities and the repetitions embedded in the longue durée of all institutional forms: "I imagine a history of imperious or sovereign exceptions, a history which would develop a counter-subject . . . a history of symptomatic intensities . . . of fecund moments, of the power of the fantasm . . . a history of the limits of representation and perhaps at the same time a representation of these limits."^[34] While the symptomatic intensities referred to are

[33] On the notion of the work of culture adapted from psychoanalysis to social anthropological use, see particularly Obeyesekere, The Work of Culture. In terms of legal culture see Drucilla Cornell, "What Takes Place in the Dark" (1992) 4 differences: A Journal of Cultural Studies 45; Luce Irigaray, Le Temps de la différence (Paris: Livre de Poche, 1989).

[34] Georges Didi-Huberman, Devant l'image: Question posée aux fins d'une histoire de l'art (Paris: Éditions de Minuit, 1990) at 231.

those of the history of art, there is no reason in principle why they should not be those of the art of law, of a tradition that claims to be the art of the good and the equal, the art of justice and of its representations before the law. The present study, however, will limit its analysis of these juristic arts to the genealogy of the image itself within the law. Its concern is therefore with a history or mourning peculiar to law, the history of the positivization of an institution, the history of its lost objects as revealed through its symptoms, its repetitions, the detritus of institutional survival, of the costs of a wisdom without desire.

The concerns of a genealogy of law are thus disparate and often contradictory. They require a rethinking of the institution in terms of the history of its failures and its exclusions as well as of its successful custody of the law over the indefinite time of institutional duration. It is a question, in short, of a most detailed reading of fragments and texts, of the forms and the margins of representation, of lost projects and peripheral interpretations over the antique and structural times of the law, for "antiquity has no bounds, no limits, it signifies the age of indefinite time."^[35] It is in this sense that a genealogical history develops a somewhat different and nonlinear conception of time as imaginary distribution and as indefinite or oneiric sequence and cycle: the time of the institution is that of numina, of clouds, and not of sequence or chronography for "religionis authoritas non est tempore aestimando, sed numine ."^[36] The reading of intensities as symptoms of events, as repressions, takes place within an institutional time characterized more by rhythm than succession. In the terms of legal historicism and of common law, it is a time already designated as immemorial and unbroken, the time of nature in culture and of virtue in law. It is marked precisely by the episodic duration of dreams, by the varying permanence of symbols or affectivities that answer to the logic of events and of thoughts and not to that of succession. In more formal terms the genealogical analysis of the institution may thus be depicted as concerned not with an origin or continuity of descent but rather with the "accidents, the minute deviations—or conversely the complete reversals—the errors, the false appraisals, and the faulty calculations that gave birth to those

[35] John Favour, Antiquitie Triumphing over Noveltie: Whereby it is proved that Antiquity is a true and certaine note of the Christian Catholicke Church (London: Richard Field, 1619) at 35.

[36] John Jewel, A Defence of the Apologie of the Churche of England (London: Fleetstreet, 1567) at 491 (the authority of religion should not be estimated in terms of time but of the Gods or of clouds). For a philosophical analysis of the same issue, see Yifat Hachamovitch, "In Emulation of the Clouds: An Essay on the Obscure Object of Judgement," in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch (eds.), Politics, Postmodernity and Critical Legal Studies: The Legality of the Contingent (London: Routledge, 1994).

things that continue to exist and have value for us."^[37] Genealogy suggests the study of the dispersed traditions of common law, its disparate sources and its several languages, its forms of delirium, its imaginary objects. There is, in other words, no real object of legal science but only that fantasm of unity necessary for the maintenance of the profession itself.^[38] At one level, the fantasm has been recognized by the critics of common law jurisprudence in terms of the negative depiction of the sources of law. Thus the law is represented as being based upon what John Selden termed "dulling custom,"^[39] upon a "poor illiterate reason,"^[40] upon legally discovered precedent and the transmission of narrow repetitions which Mary Astell, to use proleptically a feminine genealogy, somewhat later designated as the "foundation of vice . . . a merciless torrent that carries all before it," including prudence and virtue.^[41] In this sense the basis of law in custom is itself a species of ignorance or of forgetting, a form of unconsciousness or dream, a series of repressions, represented in the multiple and differing languages of separate jurisdictions and distinct historical eras of law. More technically, recourse to custom is a form of stupidity or idiocy, an appeal to the people (idiota ) and to opinion (doxa ), neither of which are guides to anything other than the irrationality of precedent or the unconsciousness of past causes.^[42]

A genealogy that pays regard to the unconscious, to the intensities and the symptoms of the institution, suggests that custom has to be challenged on the one hand by the reason and virtue of plural principles and on the other by a history that predates or otherwise circumvents the narratives of legal custom, the self-evident and false truths lauded by Coke, Davies, and other "sages of the common law."^[43] In both cases the classical form of

[37] Michel Foucault, Language, Counter-Memory, Practice (Ithaca: Cornell University Press, 1977) at 146.

[38] On the notion of a delirious profession, taken originally from the poet Paul Valéry, see Jean-Claude Milner, For the Love of Language (London: Macmillan, 1990) at 77–78.

[39] John Selden, The Historie of Tithes (London: private circulation, 1618) at vi.

[40] Sir Robert Wiseman, The Law of Laws or the Excellency of the Civil Law above all other humane laws (London: Royston, 1656, 1666 ed.) at 147.

[41] Mary Astell, A Serious Proposal to the Ladies for the Advancement of their True and Greatest Interest (London: R. Wilkin, 1694, 1698 ed.) at 30, 49, 81-82.

[42] I take the term idiota in this context from Thomas Stapleton, A Returne of Untruthes upon M. Jewell (Antwerp: Latius, 1566) at sig. 69r. See, for discussion of this theme in earlier legal history, M. T. Clanchy, From Memory to Written Record (Oxford: Blackwell, 1979, 1992 ed.). On the irrationality of precedent see Wiseman, Law of Laws at 36–45, at 45: "We conclude that the way of judging by precedents is as erroneous a guide to walk by, and as little satisfactory to the people, as a law or custom that is void of all Equity and Reason, and therefore by no means to be entertained or admitted."

[43] On the historical sense of Coke, Davies, and others in the doctrinal tradition, see J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987); also Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1989). See also Peter Goodrich, "Ars Bablativa: Ramism, Rhetoric and the Genealogy of English Jurisprudence," in G. Leyh (ed.), Legal Hermeneutics: History, Theory, Practice (Berkeley and Los Angeles: University of California Press, 1992); and also, Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990) at 63–111.

argument is to resort to a mythology of origins or of the "originals" of common law which are mystical precisely because the human source of law can never be directly represented. While it may be noted that common law has always resorted to mythical and often transparently feminine categories of origin in "time immemorial" or some other indistinct corpus mysticum at the dawn or border of law, the explicit invocation of origins tends to take the rhetorical form of an opposition between history and tradition, past and precedent as primary or first sources of law.^[44] That origin and reproduction are best figured by the image of women is of considerable significance within the present work. It expresses not least the need to recognize that the opposition between different species of historical narrative is a principal stake in the politics of institutional forms. The play of history and myth, of symptom and fantasm is as much a feature of common law doctrine and its theory of sources as it is of the repressed genealogies of plural or other jurisdictions, let us say those of the feminine, of the gynaeceum , of the soul or of the spiritual courts, of localities, of language, of thought. "True 'mourning' seems to dictate only a tendency: the tendency to accept incomprehension, to leave a place for it, and to enumerate coldly, almost like death itself, those modes of language which, in short, deny the whole rhetoricity of the true. . . . In doing so, they also deny, paradoxically the truth of mourning, which consists in a certain rhetoricity."^[45] The rhetoric, allegory, or figuration of retrospection multiplies the images of the past which can neither be wholly internalized nor fully comprehended as an externality. Genealogy in its turn is a method of such incomprehension and, like "true mourning," seeks no more than to provide a gently uncomprehending account of the multiple forms of the past, a poetics or at least plurality of historic absences or former laws.

In a more obviously institutional sense, the genealogy of common law may well reflect a sense of mourning for the passing of precedent, the loss of the unwritten, the positivization of judgment—and there are few who would imagine that things are going well. More broadly, the genealogical sense of the legal institution requires an expanded conception of its history. To understand the plenitude of law, to understand also what has been lost, involves the admission, which is intrinsic to genealogical study,

[44] On the concept of antiquity and origin, see, for legal examples, Spelman, Original of the Four Law Termes ; Dugdale, Origines Juridiciales.

[45] Derrida, "Mnemosyne" at 31.

that the institution internalizes its losses, that it carries a past obliquely on its surface, that it repeats, and that like all subjects it may be analyzed symptomatically in terms of the cultural work that its repetitions, its rites, and its symbols perform. To read the unconscious of an institution, the unconscious of law, over the surface of its texts and other forms of presence entails a strict attention to those signs of intensity or condensation which Freud articulated to the life history and which a hermeneutic of institutions will attach to the persistence or longue durée of collective forms and their symbolic expressions. Such an entry into the private life, the delirium or desire,^[46] of the institution first requires a recognition of unconscious patterns, the projections—the incomprehensions—of the present in relation to the past: "One has then to concede that there does exist, at some distance, a social unconscious. And concede, too, that this unconscious might well be thought more rich, scientifically speaking, than the glittering surface to which our eyes are accustomed."^[47] As to the referent of such an unconscious, it may variously be described as a "vanishing antiquitie," an "imaginarie thing," a "fantastical power," a myth, a desire, or some other image that will cover the void of a deathbound subjectivity.^[48] However visible, the identity of the institution, of the law, is inevitably a feature of structures, of what used to be termed traditions and, equally inevitably, genealogy deconstructs, as all psychoanalytic thought deconstructs, the unities, the beliefs, the spiritual constraints of the current age and its emblems of collective subjectivity—order, identity, and norm.^[49] A genealogy is in this respect a critical enterprise. To analyze the unconscious of law is to read the institution against itself, to read it paradoxically or against its common sense: in the form of repression, although not without a certain narcissism, the institution internalizes as its own form of unhappy consciousness the failures upon which its successes were built. To read the institution against itself is to read the history of institutional repression as a history of incorporations, a pathology of failures,

[46] The expression is taken from Pierre Legendre, Jouir du pouvoir: Traité sur le bureaucratie patriote (Paris: Éditions de Minuit, 1976).

[47] Fernand Braudel, On History (Chicago: Chicago University Press, 1980) at 39.

[48] Such expressions are taken from the presciently titled Of the Vanitie and Uncertaintie of Artes and Sciences at sig. 52v–53v (Of the Interpretation of Dreams; onirocritica ) by Henry Cornelius Agrippa.

[49] Such is not of course to claim that there are not staggering continuities over the time of structures but rather that the unconscious inevitably works to undo the conscious life. For a powerful if historically vague analysis of the institutional unconscious, see Régis Debray, Critique of Political Reason (London: Verso, 1983). Most recently in Legendre's massive project on occidental structures, see Pierre Legendre, Les Enfants du texte: Etude sur la fonction parentale de états (Paris: Fayard, 1992). For an imaginative critique of conceptions of continuity and structure, see Giorgio Agamben, The Coming Community (Minneapolis: Minnesota University Press, 1993).

exclusions, losses, traumas, and their symbolic recollection. It is a question of reproducing a theology of law, a science of spirit, a history of the fates, not because these are desirable or recuperable forms but because the repressed returns and the injunctions of these unconscious structures are the law of law or, in secular terms, the law of thought. It is a question of genealogy when criticism uses history, and pragmatically that means that a method should be developed that is cognizant of a poetics repressed within institutional prose, of an affectivity harbored in its science, a power in its reason, an image in its logic, a justice in its law.

Image and Unconscious

What is the history of law if not the history of institutional trauma or the history of collective encounters with the real?^[50] In the mythology of common law, the argument may be taken further: from where are its rules drawn if not from the unconscious of its subjects, from the patterns of their repeated practices, from their habits, habituations, and other pathological or incorporeal forms? The laws, on this model, are explicitly dead letters (literae mortua ) requiring the anima legis of the Crown or judge.^[51] The law itself is variously depicted as a silent judge (lex est mutus magistratus ), an inanimate justice (lex est iustitia inanimata ),^[52] a second nature (usus altera fit natura ),^[53] a tacit and illiterate consensus of men.^[54] Such are all unconscious or sleeping forms, repeated practices that express repression by virtue of repeating rather than inventing, thinking, or judging anew: "I do not repeat because I repress, I repress because I repeat, I forget be-

[50] Jacques Lacan, The Four Fundamental Concepts of Psychoanalysis (London: Pelican, 1978) at 54–55: "The real [presents] itself in the form of that which is inaccessible in it—in the form of the trauma, determining all that follows, and imposing on it an apparently incidental origin." Alternatively, Lacan is reported by Sherry Turkle, Psychoanalytic Politics (New York: Basic Books, 1978) at 243, as remarking (while in America) that "when we bang our heads against a stone wall we are struggling with the real," and its effect, one might speculatively add, is to daze, to render unconscious, to block, or to damage.

[51] Francis Bacon, The Elements of the Common Lawes of England (London: J. More, 1630) at fol. A 2 a.

[52] The first two classical maxims are taken from Davies, A Discourse of Law and Lawyers at 275–278. For another example, see John Selden, The Duello or Single Combat: From antiquitie derived into this kingdome of England, with several kindes, and ceremonious formes thereof from good authority described (London: I. Helme, 1610) at 23, who discusses trial by ordeal as trial by "mute judges."

[53] Sir John Fortescue, De Laudibus Legum Angliae (London: Gosling, 1468–70, 1737 ed.) at 14.

[54] William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), vol. 1 at 63–64 (tacito et illiterato hominium consensu et moribus expressum ). On the sense of custom see Peter Goodrich, "Poor Illiterate Reason: History, Nationalism and Common Law" (1992) 1 Social and Legal Studies 7.

cause I repeat. I repress because, at first, I cannot live certain things or certain experiences except in the mode of repetition."^[55] The common lawyer saw law as an archaism older than any other, as a speech without tongue, an unwritten scripture of the heart, an image (an idol) which Mercury must bring to life.^[56] The source of law was a "vanishing imagination," it was variously internal decree, Druidical, feministic, divine, or prescribed by immemorial use.^[57] Even without such obvious emblems of an imaginary source and imagined identities, the classical definition of law as a knowledge of things both divine and human betrays the juristic belief that law is a mixed discourse, a training both of the body and soul, a governance of the secular and the spiritual.^[58] And further still, it would be hard not to recognize that sense of "another scene" or imaginary source in the principal rule of legal method both in common law and civil law for which the pontiff or lawyer or judge must know both the words of the law and the force of the law. They must act as "interpositae personae, " as interpreters and legislators who will find behind, between, or beyond the literae or words of law its truth (vera judicia ),^[59] its force and power (vim ac potestatem ), its other—in short, its legal meaning.^[60] It is not the surface but the depth, not the apparent but the hidden, not the obvious but the arcane that prescribes the meanings and indeed the loves of a law that is paradoxically

[55] See Gilles Deleuze, Différence et répétition (Paris: Presses Universitaires de France, 1968) at 158. See also Pierre Legendre, L'Inestimable objet de la transmission at 90: "We repeat even when we invent, we repeat. . . . It is the most interesting question we can raise: how, in the reproduction of the species, do institutions fabricate subjects who repeat, new subjects who repeat even in their creativity."

[56] Davies, Discourse of Law and Lawyers at 276, provides the imagery of Jupiter as legislator and Mercury as interpreter. For a brief discussion of these metaphors, see Donald Kelley, The Human Measure: Social Thought in the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1990). From a very different, although not incommensurate perspective, see Irigaray, Le Temps de la différence, ch. 4.

[57] The figures of sources of law do not merit further detailed elaboration here. I have surveyed the principal figures in Goodrich, "Eating Law" at 256–260.

[58] Doderidge, English Lawyer at 28, citing the classical maxim "iuris prudentia est rerum divinarum humanarumque scientia ."

[59] On vera judicia or legal truth see the extended discussion in Wiseman, The Law of Laws at 65–70, discussing the civilian conception of vera judicia : "No words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison of truth, faithfulness and integrity. For verba menti, non mens verbis servire debet, words are made as instruments to serve and express the mind, and not to command or control it."

[60] Thus Digest 1.3.17 (Celsus) Scire leges non hoc est verba earum tenere, sed vim ac potestatem (to know the law is not to know the words of the law, but its force and power); Digest 50.16.6.1 (Ulpian) Verbum "ex legis" sic accipiendum est, tam ex legum sententia quam ex verbis (the expression "from the law" is to be taken to mean as much from its true sense as from its literal meaning). For a scrupulously scholarly discussion of this theme within Renaissance legal treatises, see Ian Maclean, Interpretation and Meaning in the Renaissance: The Case of Law (Cambridge: Cambridge University Press, 1992), especially 158–178.

without desire: "In reading it is not the words but the truth which ought to be loved (est amanda )."^[61]

The key to reading the lawyer's love, the institutional design, the force, power, or violence of the text has always been conceived in terms of escaping the letter and discovering the spirit—the soul or anima —of law. From the perspective of historical criticism or genealogy it is a question of taking up again the figures of legal interpretation as symptoms of this excess, this love beyond the letter, this spirit or intensity which betrays another scene of law, a law of thought. While the tradition has named such a scene of interpretation variously as equity, justice, truth, or power, there is no reason not to pursue these internal images—that equity, for example, which the judge is to have always before his eyes as one appointed semper aequitatem ante oculus habere . There is no binding reason why doctrine should always speak in a language that denies the unconscious significance of this "work" of law, as if Freud had never written, as if the unconscious, once ignored enough or denied sufficiently often, will simply go away. For the widow depicted in the Ladies Calling it was a matter of shattering the mirror and so moving beyond the singular image to multiple reflections of the dead. The truth of mourning lay in an elegiac or poetic trace of the other, it lay in an allegory or dissimulation, a fantasm, which allowed the widow to love differently, to love plurally through multiple images now that the husband had departed. For the institution, for the law, it is not so different a matter: interpretation recognizes a "labile ratio " or mobile meaning, a spirit, soul, or force, a "ghostly form," that lies behind the shattered words or, rhetorically, the borrowed or broken figures, the images of the text. Renaissance lawyers indeed happily defined such meanings as signs of the soul (notae animi ) or as "symbols of things [notae rerum ] which express the passions and movements of the mind and will."^[62] There is, in short, much more to legal interpretation than reading the simple surface of the text; there is a constant movement that creates and recreates a text that will conform to or express the love or force that comes as law: "the law 'always speaks,' and its force is derived from the fact that it speaks to us, although it is couched in written form."^[63] Interpretation supplements, it adds a surplus and it replaces: for good or ill, it is commentary, another text; it brings art to law, equity to rules, images to words, spirit to

[61] Coke, Reports, pt. III at fol. C 7 b (in lectione non verba sed veritas est amanda ).

[62] Goddaeus, Commentarius repetitae praelectionis in titulum xvi libri 1 Pandectarum de verborum et rerum significatione (Nassau: n.p., 1569, 1614 ed.) at 6, discussed in Maclean, Interpretation and Meaning at 160–161.

[63] Maclean, Interpretation and Meaning at 173. This hermeneutic theme of the constant reinterpretation of the past, the alien or written, as if it were present is pursued with relentless rigor by Jacques Derrida, Of Grammatology (Baltimore: Johns Hopkins University Press, 1976) at 144–157, 269 ff.

letters, meaning to texts. Two questions emerge. On the one hand, there is the issue of how the law speaks, a question of interpretation or hermeneutics, a question also of symptoms and their analysis. On the other hand, the question is that of from where the law speaks, a matter of power, of the other scene or unconscious of the legal institution and of the subtext, motive, or desire that drives forward the languages of law, the rules of speaking, the institutions of life that are slowly internalized as the limits of thought.

At the level of interpretation, a symptomatic reading needs simply to pursue the path of the legal supplement, the histories of the instabilities of legal meaning and hence also of the inventions, creativities, traumas, and defenses of the interpretative art. Again drawing upon the Renaissance treatises on the meaning of words, the speech of law is itself never complete, the oratio or the verba require further extension, and these implications, amplifications, or corrections are termed subauditio or subintellectio,^[64] terms which, however transcribed, admirably imply a sense beyond, beneath, below, to the side of, or near to what is heard or what is thought. The meaning that is transmitted subauditio is explicitly a rumored meaning, hearsay, a fragment, something internal to the intellect or understanding, an intuition, an image, an unconscious form.^[65] To which I may add, at the risk of superfluity, that access to the unconscious is defined precisely as being by way of such fragments and slips, by way of that which is beneath the surface, underneath what is heard, below what is understood. More specifically still, it comes via the oneiric narrative of images: "Dreams think essentially in images."^[66] Whether this ontological affinity between the subject's unconscious and the representation of the institution allows for any closer analogy of reading or interpretation will depend upon the cultural work which the law is seen to perform, upon whether the unconscious can be made to make a difference to our understanding of law.

Images in the text and in the other verbal and plastic representations of law are distortive forms both of recollection and of representation; they are the affects, the symptoms, the intensities or condensations of the desire that law hides or conceals behind the reason of rules. Subsequent chapters will review the juridical history of the image (ius imaginum ) so as

[64] See the divisions presented by Stephanus de Fredericis, De iuris interpretatione, in Tractatus iuris universis (Venice, 1574) at i.208–225; Jerome Sapcote, Ad primas leges Digestorum de verborum et rerum significatione (Venice, 1579) at 56.

[65] On the significance of subauditio and subintellectio, see Maclean, Interpretation and Meaning at 166. On a similar theme in common law, see J. H. Baker, "Introduction," in J. H. Baker (ed.), The Reports of John Spelman (London: Selden Society, 1978), vol. 2 at 159–163.

[66] Sigmund Freud, The Interpretation of Dreams (New York, Avon Books, 1965) at 82.

to read the images within the law. The present discussion of legal historiography will simply reiterate that such recourse to images in the history of legal interpretation, in both its difference and its repetition, is suggestive not only of law's uncertain desires, its traumas and repressions as well as its other affects, but also of their intrinsic or internal character, of the incorporation of such affectivities. If it is again a question of from where the law speaks, the image is the point of fracture or of divide, the screen or, in Kafka's parable, the door or gate that demarcates the boundary between the outside and the inside of law. The image is both inside and outside, both law and desire, sign and sentence, symptom and word. The image represents what did not previously exist, it provides a species of unity or form for what was otherwise fragmentary, shapeless, and inchoate, prior to thought or not yet institutionalized. The image "says the other,"^[67] it screens its absence, it indicates that which has become separate from the institution or which cannot be seen but only figured: the images of law—the figures, the monuments, the fictions, signs, and texts—institute social desire, its obligations, its subjectivities, its sense of identity and, in the Occident, its sovereign power. The image enters under the skin, it is the institution, it is the law—if by law we mean the sign that moves, the motive, drive, or force that compels the subject to act.

The image, finally, is a false truth: it is veritas falsa because it can never be that which it represents. It is a mark of the soul, an emblem of spirit, a visible sign of that which cannot be seen.^[68] Yet what is law in genealogical sensibility if not just such a series of images, a history written and rewritten innumerable times? Again returning to the historicism of the Renaissance, the art of law is both explicitly an addiction, a reverie, fiat, or disputatious whim as well as being dogma, truth, and sovereign will. For François Hotman we thus find over time a law that can never be known in its entirety, a law so complex and confused as to require both reason and chance, rule and fortune, fiction and norm in each act of recollection: "Even their judges admit to being dazzled by the authorities and to judging more by chance than by reference to assured and certain law."^[69] Here again, the law is a chimerical thing, an impermanent institution, a collection and

[67] De Certeau, Mystic Fable at 11. For an extended and frequently brilliant analysis of the image in these terms, see Legendre, Le Désir politique de Dieu at 33–42.

[68] The definition: What is an image? A false truth (Quid est pictura? Veritas falsa), is from A. Alciatus, De Notitia Dignitatem (Paris: Cramoisy, 1651 ed.) at 190. For discussion of that definition, see Goodrich, "Specula Laws"; and most recently, Pierre Legendre, Dieu au mirroir (Paris: Fayard, 1994), pt. I.

[69] Hotman, Anti-Tribonian at 110–111: "Such a vast literature grows up on the books [of the Corpus Iuris Civilis ] that Baldus, at forty-seven comments that he is still an apprentice; even the judges admit to being dazzled by the authorities and to judging more by chance than by reference to assured and certain law."

codification of disparate practices, a "discipline [which] is disputatious because it rests on nothing more complete than a collection of fragments, reports, pieces [lopins ], themselves representing no more than uncertain conjectures and tenuous divinations."^[70] Similar sentiments were regularly although less eloquently expressed by humanistic critics of English law: it was aulae vanitatem —a tapestry of vanities^[71] —a "dark and melancholy science,"^[72] it existed only in the recollection of particular cases, half-heard reports of antecedent judgments,^[73] in the "dreams of serjeants and counsellors,"^[74] in "digressions and imaginations,"^[75] in a law "in vast volumes confusedly scattered and utterly undigested."^[76]

Like the widow's memory of her husband depicted in the Ladies Calling, legal retrospection multiplies the images of the past. The broken mirror both multiplies and disperses, it is a visual Babel, an internal Baroque folie du voir,^[77] it deconstructs, it supplements, it tears apart so as to set one past against another. Recollection, and particularly a recollection that recalls the multiplicity of the past, threatens the institution by indicating not only its contingency but also its disorder, its polemics, and its agonistic relations to other jurisdictions: historiography in its genealogical guise denies the unity of law and its culture through the exemplification of the disparate histories and numerous forms that laws may take. Legal humanism, historicism, or simply the law's recollection of its past deconstructs and has always deconstructed professional pretensions to universality and to positivization, to science or to truth. The common law may be intrinsically or essentially a historicist discipline—a system of precedent would seem to suppose as much—but such a characterization would attribute too great a degree of self-consciousness to a tradition that basks in "indefinite time," that denies the validity or the need for history,^[78] and that believes,

[70] Hotman, Anti-Tribonian at 131.

[71] Burton, Anatomie of Melancholy at 3.

[72] Cowell, The Interpreter at sig. 3r.

[73] Baker (ed.), Reports of John Spelman, vol. II at 159–161.

[74] Fraunce, Lawiers Logike at sig. 89v.

[75] Ibid. at sig. 119r.

[76] Ibid. at vi.

[77] The expression is taken from Christine Buci-Glucksmann, La Folie du voir: De l'esthétique baroque (Paris: Galilée, 1986). See also her extended discussion of historical writing in Christine Buci-Glucksmann, La Raison baroque: De Baudelaire à Benjamin (Paris: Galilée, 1984).

[78] Most famously, see Coke, Reports at pt. III fol. B v a: "To the grave and learned writers of histories, my advice is, that they meddle not with any point or secret of any art or science, especially with the laws of the realm, before they confer with some learned in their profession"; and at pt. VIII at sig. L 3 a (of legal records): "They are of that authority that they need not the aid of any historian." For another pertinent example, see Edward Stillingfleet, Ecclesiastical Cases Relating to the Duties and Rights of the Parochial Clergy, Stated and Resolved according to principles of conscience and law (London: Henry Mortlock, 1698) at 329: "Littleton says that time out of memory of man, is said to give right because no proof can be brought beyond it. And this he calls prescription at common law." See also, for a strikingly comparable French example, Antoine Hotman, Traité de la Loy Salique, in Opuscules Francoises des Hotmans (Paris: Mathieu Guilleme, 1611).

semantically rather than explicitly, in the continuity or presence, the positivized and permanent form of contemporary law.^[79] To love the common law in either its Anglican or its American manifestation is to believe in the recollection of precedent, to value and to multiply the remains of common law, to recall endlessly the past and the precedents, the plural jurisdictions and the many substantive forms of oral memory and other inscriptions of unwritten law. To love the common law is to believe not in its reason or science, but in its capacity to change, its historic ability to become other, to pass on. It is this conception of the power of common law and of the plurality of its reasons that allows for the distinction between positivized and dynamic jurisprudences. At a more mundane level it allows the practical assertion of a labile ratio of common law, of a logic of the supplement, of an unconscious of law that is transmitted subauditio, underneath, next to, or along with every legal text as its image, its underside, its backface, or its law of law.

Rewriting Law

The task of reassembling the diverse fragments, the histories and multiple images of common law has not gone entirely unheeded, nor is the tradition entirely free of histories that resist the dominant and almost unremittingly laudatory historicism.^[80] The Ladies Calling required that the widow rethink her relation to her husband, that she appropriate or encompass his death and thereby learn to live differently, proprii iuris, according to her own law. Similarly and not without certain sentiments of mourning, advocates of alternative forms of legal governance, of feminine rule, of legal poetics, or of less ambitious species of legal reform have turned to the past of common law to recall images and precedents of other laws and of its possible subjects or its subjection of difference. The most striking example is undoubtedly John Selden's work Jani Anglorum Facies Altera, translated as The Reverse or Back-face of the English Janus and dedicated to the re-

[79] Hooker, Of the Lawes of Ecclesiastical Politie is the most important English exponent of this view.

[80] On the specific issue of psychoanalysis and law see the useful review by David Caudill, "Freud and Critical Legal Studies: Contours of a Radical Socio-Legal Psychoanalysis" (1991) 66 Indiana Law Review 651. The most remarkable study is still Legendre, L'amour du censeur . For a case study utilizing psychoanalysis, see Pierre Legendre, Le Crime du Caporal Lortie: Traité sur le père (Paris: Fayard, 1989). See also the commentary in Renata Salecl, "Crime as a Mode of Subjectivization: Lacan and the Law" (1993) 4 Law and Critique 3.

cuperation of feminine genealogies of common law.^[81] Selden's work collected all the surviving scraps and fragments, stories, customs, relics and myths of antique law that could be used in some way to evidence feminine genealogies and thereby support or install a prehistory of female rule, of women deities, of feminine sovereigns, of women as legislators and as illustrious or erudite subjects. The details, the images, of that work will be analyzed subsequently. The work itself had on its title page an emblem of Janus and a motto which read: "One face looks upon the people, the other upon the Gods (haec facies Populum spectat; at illa Larem )." one law, it might be argued, is conscious, the other unconscious—or, in Irigaray's terminology, one masculine, one feminine.^[82] The back-face, the reverse side or retrospect, could hardly be bettered as an image of an institutional unconscious and it is in many senses the task of critical historiography to multiply the other faces or indeed the faces of the other in common law.

In a contemporary idiom the other faces of common law would coalesce around its histories of repression and its narratives of failure. They would include the faces of the vernacular, of nature, of equity, of justice, of women, of aliens, of ethics, of subjectivities, and more distantly and darkly of violence, desire, and the failures or miscarriages of law.^[83] Such histories may appear to approximate a Baroque conception of the past as allegory or ruin, they may equally be taken as the narratives of legal fantasms or juristic imaginations. Further still, they might be taken to form an archaeology of law's appearances and its disappearances, of its contexts and of its fates. With whatever form and whichever objects such undesirable histories will take up, their political significance lies in their challenge to the closures of law.^[84] If nothing else, they suggest the fecund possibilities of thinking law otherwise or thinking law differently. In such a context the emblem of the widow takes on another and perhaps peculiar connotation. The widow is a woman and at least for a time—even if not by legal definition—she is a woman in mourning. As I will later argue more extensively, woman is an image in law, she is the specter of creativity as also of death because femininity is, by tradition, nature: inexorable, material, passionate, and unconscious. The feminine, the image, it will be argued, is

[81] John Selden, Jani Anglorum Facies Altera (London: T. Bassett, 1610, 1683 ed.), more accurately translated as The Other Face of the English Janus .

[82] See Luce Irigaray, J'aime à toi: Equisse d'une félicité dans l'histoire (Paris: Grasset, 1992); and also my review of that work, "Writing Legal Difference" (1993) 6 Women: A Cultural Journal 173.

[83] See Goodrich, "Critical Legal Studies in England" at 201; see also Costas Douzinas and Ronnie Warrington, Justice MisCarried: Ethics and Aesthetics in Law (Hemel Hempstead: Harvester, 1994).

[84] For recent discussions of law, critique, and closure, see Alan Norrie (ed.), Closure and Critique in Contemporary Legal Theory (Edinburgh: Edinburgh University Press, 1993).

literally the repressed, she is in analytic terms the only wholly appropriate social expression of repression because she cannot be excluded but can only be exiled or excluded within. The feminine, the image, is the outside within, she is an internalized exteriority, a desire within wisdom, a fate or seduction within the present, either ignored or denied yet nonetheless inevitable and no less a law for being repeated without being recognized: "Repression, not forgetting; repression, not exclusion. Repression as Freud says, neither repels, nor flees, nor excludes an exterior force; it contains an interior representation, laying out within itself a space of repression"^[85] or what to consciousness is an image, a woman, a mystery, or an enchanting void. She is the emblem of another law or law of law, of the contingency and thus fracture of such doctrine, dogma, or jurisprudence that claims the singularity, unity, or closure of legal forms. Woman is in the history of law a figure of uncertainty, of doubt or desire, foresight or faith, idolatry or immaculate conception; she is many and she is none, both matter and void. The interdiction of the image, in spiritual and latterly in secular law was, I will argue, a prohibition of the feminine, of the sensual and of imagination in the long process of positivization of common law.

In a paradoxical sense, the widow claims the future by multiplying the images of the past. The object of memory is difference in the sense that the widow is charged with loving in memoriam not the husband but the image, something else, something multiple and dispersed, a lost object or fractured presence, a series of masks or legitimate hallucinations. Death, which as an event is the metaphor through which history takes place, is heteronomous, it cannot have meaning, it can only have meanings in the same sense that humans have purposes and thereby engage and repress the contingency that obsesses memory and obscures the productive force of meaning: "Historiography tends to prove that the site of its production can encompass the past: it is an odd procedure that posits death, a breakage everywhere reiterated in discourse, and that yet denies loss by appropriating to the present the privilege of recapitulating the past as a form of knowledge."^[86] The widow is in this sense potentially a figure of power, as is the image, because both threaten law with the violence of plurality, with the slippage of sensuality or, in a secular form, with the dangers, the pleasures, and the pains of idolatry, if not of a more rigorous rethinking of law. "To begin (writing, living) we must have death. . . . We must have death, but young, present, ferocious, fresh death . . . today's death,"^[87] a death

[85] Jacques Derrida, Writing and Difference (London: Routledge, 1978) at 196. For a feminist elaboration of this position in terms of bodies and sexes, see Judith Butler, Bodies that Matter: On the Discursive Limits of Sex (New York: Routledge, 1993).

[86] De Certeau, Writing of History at 5.

[87] Hélène Cixous, Three Steps on the Ladder of Writing (New York: Columbia University Press, 1993) at 7.

that will remind us of the body and of its future, the trace of the other, of finitude, of the resistance to closure that writing may yet represent.

When it returns to questions of law, the writing that mourns remembers the loss of one that was loved. As in mourning, which is of the essence of memory, so too in historiography writing institutes images that pass between the public and the private, between reason and imagination, spirit and materiality. Writing does not only inscribe, as memory does not merely recapture—it could not; rather, it reminds the soul of the body, the reason of another and more material law. The historiography of the image in law must play upon a series of differences and upon the multiple senses of the image in the unconscious of law. It must move in a profane and dissolute manner between jurisdictions and classificatory systems, between the archive and its institutions, between scripture and law so as to offer elements for a history of an extended present: "Genealogy does not pretend to go back in time to restore an unbroken continuity that operates beyond the dispersion of forgotten things . . . [nor] is it concerned with the erecting of foundations: on the contrary, it disturbs what was previously considered immobile; it fragments what was thought unified; it shows the heterogeneity of what was imagined consistent with itself."^[88] It may be remarked in conclusion that while such a methodology is hardly novel it is nonetheless politically charged in institutional terms. After all, what is the legitimacy, the lineage, of the institution if not the written reason, the incontestable logic, the irrefragable truth of its law? What is that law if not text, the history, the writing, the thought that lays claim to found institutional identity?

In that mourning, and specifically the images of the other through which mourning internalizes loss, marks a certain desire, it marks the limit and, in a sense, the failure of law. It does so not only through its denial of the fixity of the meaning of loss but also in its creative representation of the past through a constant movement or flux between subject and object, and between past, present, and future. The law in a sense has always been a creative form of historical writing, it was in practice always a glossatorial and so philological tradition, it was at certain times synonymous with historical writing—the jurist was an epigone, a classicist^[89] —and yet, ironically, its history was a history of the denial of history, a history of repetition, of

[88] Foucault, Language, Counter-Memory, Practice (Ithaca: Cornell University Press, 1977) at 146–147.

[89] On which correlation see Friedrich Nietzsche, "We Philologists," in Friedrich Nietzsche, The Case of Wagner (Edinburgh: T. N. Foulis, 1911) at 117–118, 126, 139–140, and Friedrich Nietzsche, "Homer and Classical Philology," in Friedrich Nietzsche, On the Future of Our Educational Institutions (Edinburgh: Foulis, 1909) at 147. For an important theoretical discussion of this correlation between history and law, see Gillian Rose, Dialectic of Nihilism: Post-Structuralism and Law (Oxford: Blackwell, 1984) at 131–170.

truths that take the form of repression.^[90] For the common law tradition, historical sense and the mythologies of memory were in practice primary sources of legal decision, and doctrine has frequently recognized the subversive quality of such historical reflection. History frequently becomes the law, but it has tended to do so apologetically and in the doctrinal guise of truth, as ratio scripta (written reason) or some other concept of scriptural or universal law. Against such dogmatic contentions, even a strictly scholastic conception of the motives of recollection or the play of memory would offer a subtle deconstruction or gentle incomprehension and productivity within an overwhelmingly antiquarian and increasingly positivized legal historiography. In classical terms, the English lawyer and judge Sir John Doderidge suggested that the "memory intellective" has a double operation. The one is called "actus memorandi, the other actus reminiscendi . The first of these is the representation of things past, as if they were present, representing the image of things forepassed in the same manner as if they were now actually and really present. Actus reminiscendi is as it were the discourse of memory . . . out of one thing remembered [memory] discovereth another thing in manner lost and forgotten."^[91] In each form, either as memory or as reminiscence, recollection both simulates and invents, it disturbs and pursues images, or, in Aristotle's terms, affections harbored within the soul. In that recollection suggests a certain passion, either nostalgic or visionary, to historical sensibility, it also suggests a desire that comes with the historical wisdom of the law. The image is the sign of such desire, and it is to the history and hermeneutics of the image in law that subsequent chapters will turn.

[90] For an influential exposition of this thesis, see Donald Kelley, Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York: Columbia University Press, 1970). For theoretical discussion of history and law, see Mark Cousins, "The Practice of Historical Investigation" in D. Attridge et al. (eds.), Poststructuralism and the Question of History (Cambridge: Cambridge University Press, 1987); W. T. Murphy, "Memorising Politics of Ancient History" (1989) 50 Modern Law Review 384.

[91] Doderidge, English Lawyer at 16–17. In terms of sources, see Aristotle, De Memoria et Reminiscentia, in R. Sorabji (trans. and ed.), On Memory (London: Duckworth, 1970).