Conclusion: Penitus Amputare, Inner Incisions

The rhetoric of foundation, of origins and sources, of constitution and community, is in large measure a discourse of symptoms. The plastic image, the tropes or textual figures of the antirrhetic are alike signs for the direction of vision both in a literal sense and also in an anagogic or internal sense: the "mind's eye" or inward image is to be directed toward a hidden grace, an invisible and imaginary source. The symbol is in Reformation terms always a monument, it moves the mind (movet mentum ), legitimately or falsely, from from to substance, sense to spirit, and from body to soul. The symbolic is therefore no more than the medium that evokes or refers to the imaginary, the perfect community or model of relation, of which the symbol (image or word) is a distant replica. In this respect it is interesting to consider the disputed status of "aereall," or vanishing signs. The question posed was whether the sign of the cross made on the forehead, in the air, or with water could be idolatrous. Such signs vanished almost immediately, their materiality was transient in the extreme and it would in many senses be hard to conceive of such spectral signs as being

[137] Sir John Fortescue, De Natura Legis Naturae (1466) in The Works of Sir John Fortescue (London: private distribution, 1869) at 326.

[138] Ibid. at 322–323.

[139] Smith, De Republica Anglorum at 19.

in themselves objects of false worship or latria . For the reformers, however, the vanishing sign was the exemplary idol by virtue of being that much closer to the model it replicated: "But if there be any odds between the material and the mystical [aereall] cross, it is the mystical that hath the start . . . for the cross aereall hath more need to be abolished than the material. . . . As in the mother, so in the daughter. Provided that the cross aereall be acknowledged the mother of the material."^[140] The material sign is in this logic a monument of the mystical, the more evanescent or the less material the form of signification, "so much the quicker is the passage ab imagine ad rem significatem ."^[141]

The dispute as to vanishing signs is a dispute as to the permissible forms of the signs of the invisible. In the reformer's argument the proper form of signification of invisibility or perfection was the word, and in its purest form that word was spoken: God was heard but never seen, his voice was known but not his face. The word was the "image of the soul" and a faith which was heard came consequently by the word, by tradition, and by text.^[142] The emphasis upon the scriptures was thus secondary to the conception of an oratorical word that was in its strictest sense the presence of the Father in the Son: writing was in this respect artificial memory, a visual image—although a permitted one—of a precedent sound or speech.^[143] The dual nature of all signs was thus transmitted from the visual to verbal, from the imagistic to the rhetorical and graphic, but the structure of seeing and reading was analogous. The inversion or reversal that took place was not at the level of the structure or hierarchy of reference but rather at that of the lawfulness of specific types of sign: whereas the image had previously been the mark of memory, the book of the illiterate, the symptom or model of presence, that role was now to be taken by the word, and the image was, by the same process of inversion or reversal, to be subordinated to the word. Allowing that in the age of print the text was the principal type of the word, scripture the first source of faith, it follows that the image became an aspect of, and internal to, the text. Where in civil law the image previously took the place of knowing how to read (pro lectione prictura est ), the text now took the place of knowing how to see: "We have not images of their bodies, but of their souls, for those things which are

[140] Parker, A Scholasticall Discourse at 47–48.

[141] Ibid. at 49 (from the image to the thing signified). See also Calfhill, An Answere at sig. 24r, 29r–29v, on the power of the air.

[142] Calfhill, An Answere at sig. 64v, also 22r–24v.

[143] It is this structure of priority and reference that contemporary philosophy, and Derrida in particular, has so consistently endeavored to deconstruct. See particularly Derrida, Of Grammatology . See further Derrida, The Post Card ; also my commentary on this theme in Peter Goodrich, "Contractions," in Anthony Carty (ed.), Post-Modern Law (Edinburgh: Edinburgh University Press, 1990).

spoken . . . are images of their souls [and] the written lives of holy men are printed unto us, as certain lively images."^[144] Rhetoric became an art of seeing well or vividly through words, through graphic signs and oral disputations, through texts and speech. In a work on the ars dictaminis, or art of writing letters, Angel Day opines most explicitly that "the excellency of the writer, and the painter concur in one, who the more that each of them studies by perfection, to touch all things to the quick, by so much the more nearer do they both aspire to that exquisite kind of cunning, that in each of these differences, is absolutely to be required." Successful painting will "present many things to the eye, the conceit whereof is marvellous" and so also will excellent writing visually provoke desire and depict situations upon which a "man may gaze . . . as a thing in present life, and most certain view."^[145]

The assertion of the word as the primary legitimate form of knowing became the basic method of science in the age of print.^[146] It displaced rhetoric but did not alter its object or function, namely that of construing a truth of which language was only ever the model, figure, or replica. The image had come to be perceived as too worldly, too sensual, too contingent, or too close and was replaced by the word: the image was a false model, it represented nothing, it was transparent, a simulacrum.^[147] This transference was not without its cost. By the same token that the text became the principal form for the direction of vision, it became a dissimulation, an image that forgot (repressed) that it was an image, a sign that hid its dual function in the abstract linguistic claim that it was no more than a medium, a transparent means of reference. It is possible to cite a double cost, two moments of repression. The first reduced the image to language, while the second associated imagistic or figurative language with rhetoric

[144] Calfhill, An Answere at sig. 65r.

[145] Angel Day, The English Secretorie or Methode of Writing of Epistles and Letters with a Declaration of such Tropes, Figures and Schemes, as either usually or for ornament sake are therein required (London: Cuthbert Burby, 1586, 1607 ed.) at 23.

[146] The conventional wisdom is that print inaugurated the restraint, if not the death, of rhetoric. Thus, most notably, Roland Barthes, "L'Ancienne rhetorique" (1970) 16 Communications 172; and G. Genette, "La Rhetorique restreinte" (1970) 16 Communications 158; T. Todorov, Theories of the Symbol (Oxford: Basil Blackwell, 1982). The same argument is expounded somewhat repetitively in Vickers, In Defence of Rhetoric, chs. 3 and 4. On the visual character of print see W. Ong, Ramus: Method and the Decay of Dialogue (Cambridge: Harvard University Press, 1958); Elizabeth Eisenstein, The Printing Press as an Agent of Change (Cambridge: Cambridge University Press, 1980); Petrus Ramus, The Logike (London: Vautroullier, 1574) (emphasizing logical schemata as aids to memory); H-J. Martin, Histoire et pouvoirs de l'écrit (Paris: Perrin, 1988); R. Chartrier and H.-J. Martin (eds.), Histoire de l'edition Francais (Paris: Fayard, 1989).

[147] The relevant reforming maxim is taken from Lactantius, ut religio nulla sit, ubi simulachrum est (there is no religion where there is an image).

and for that reason subordinated rhetoric to logic as the proper method of science and of law.^[148] In short, the rhetorical, figurative, and imagistic levels of the text became the "positive unconscious" of the sign, the marks of language's long term, the history (trauma) that tradition and its associated forms of repetition endeavored—indeed existed—to forget.^[149]

The full implications of the repression of rhetoric as a discipline associated with images, with the signs of nothing, cannot be investigated here. It remains, however, to link the repression of the discipline to the rhetorical or antirrhetic structure of legal argument. The antirrhetic was explicitly a discourse of foundations, its stake was the delineation of a reality that would exist against or overcome all others. Its unity was thus forged against dispersion, its nature against human artifice, its reason against sophistry and feminine deceit, its authority against irreverence or illegitimate signs. The antirrhetic, as genre, thus established a specific structure of antagonism, of prosecution or threat, a rhetorical structure that was most evident and accessible through its characteristically antithetic figures of diction, its tropes and other incidents or accidents of expression. The semiotic force of rhetorical study lies precisely in the ability of rhetoric to read critically against such figures, to reconstruct the accidents or intentions of the text in terms of a discursive structure that transcends the apparent significance of textual image and verbal diction and so allows a comprehension of the stake and force of the antirrhetic as genre. Two concluding remarks seem appropriate.

The first observation is hermeneutic. Contemporary revivals of legal or forensic rhetoric have tended to concentrate upon that aspect of the classical discipline which promotes argument or dialectic as the appropriate or ethical means of institutional action. Rhetoric will found community upon probable reasons, upon a communitarian dialogue or dialectic

[148] The development of this repression can be traced in terms of the use of rhetorical categories and divisions in the vernacular logics of the reformation period. Ramus published a rhetoric to accompany the logic and organized the Logike itself rhetorically, according to dialectic (argument) and disposition (judgment), see Ramus, Logike at 17-18, 71-72. Lever, Arte of Reason, organized his "witcraft" according to topics (commonplaces), invention, figures, and memory; Fenner, Artes of Logike and Rhetorike, divides logic into invention and judgment; Thomas Wilson, The Rule of Reason, conteyning the Arte of Logique (London: John Kingsten, 1584), divides reason into topics, invention, division, style, and disputation. For a similar development in legal logics, see Fraunce, Lawiers Logike ; Doderidge, English Lawyer, 148 ff. It was, in a sense, rhetoric's finest post-classical hour. For elements of this view, set out in philosophical rather than historical terms, see Friedrich Nietzsche, On Language and Rhetoric (Oxford: Oxford University Press, 1873, 1989 ed.) at 21-27.

[149] This sense of positive unconscious is taken from Foucault, The Order of Things at ix. On the historical significance of the unconscious in history or in the the longue durée, see L. Febvre, A New Kind of History (Princeton: Princeton University Press, 1978) at 38–42; Braudel, On History, pt. 2.

in which the force or felicity of argument will determine appropriate legal outcomes. The opposite is more likely to be the case. Understood historically, the antirrhetic character of oratory aligned rhetoric with the adversarial fate or defense of institutions: although the discipline certainly had a function in guarding the great theological, legal, and political orthodoxies of the institution, it did so by dividing and opposing elements of community, by constituting hierarchies of belief, authority, and reason.^[150] While the return to rhetoric may well have the advantage of translating antagonism into discourse, it cannot plausibly be viewed as anything other than a return to a fundamentally antithetic dispute as to the character, foundation, and reason of the institution. Its object is difference, whereas its figure, image, or emblem is most properly that of dispersion. Language, as the very term antirrhetic implies, is the sign of plurality and of confusion; it marks the difference of peoples and the separation or distance that is the object of law.

At a substantive level the lesson of rhetoric's history is that the institutional sites of oratorical and polemical practice are both theatrical and affective: it is the function of rhetoric to persuade and to possess. The recurrent crises of images, as well as of words, figures, and ornaments of speech and of law, are testimony to a dramatic institutional stake, that of reproduction. The history of rhetoric thus plays itself out in relation to the defense of institutional genealogies: the question of the authority of truth and of law is answered by establishing its lineage, by inventing or evoking a source that will resolve what truth is, by indicating whence it came. The legitimacy of institutions and offices, of persons and laws, is thus played out in relation to their lineage and their rights of succession: it is lineage or genealogy as the source of authority which is at stake in the questioning and defense, the antirrhetic, of legal forms or institutional traditions. When the antirrhetic figures of sanctity, nature, and reason are repeated in the discourse or defense of law, they mask and repress the restatement of truth as a question of blood, a question of a legitimacy that rests upon genealogical principles, upon lineage and its representation of a social filiation or legal constitution predicated upon a shared father or common origin and source. In a less technical vocabulary, it is myth, the fictions of truth and community, that rhetoric exists to dispute and defend. To challenge the form, authority, and reason of law is to question the order of reproduction to which they belong; it is also to invoke the antirrhetic, to invoke the discourse of foundations, to question the nature of rhetoric in the rhetoric of nature. It is for this reason, to take a contemporary example, that when critical legal studies and feminist legal theory question the character and

[150] For an interesting, though perhaps unconscious exemplification of this argument, see Rose, Dialectic of Nihilism at 11-49.

legitimacy of legal judgment, they are met with the full, although unconscious, rhetorical force of the antirrhetic. The critics of doctrinal forms are nihilists,^[151] they lack both decency and respect,^[152] they are faithless and their reason is that of confusion and dispersion,^[153] their fate is properly that of expulsion and their best expression would be silence. Critics of doctrine and of patriarchy have tended to avoid the terms and substance of this antirrhetical discourse of nature, belonging, and reason as irrational or mythological and thus inappropriate to the rational dialogue of civility and its constitutional forms. My analysis of the antirrhetic has suggested that such a position is repressive in the technical sense of constituting a legal unconscious, of driving the image of law's other or the thought of contingency within. The analysis has attempted also to suggest that far from being extrinsic or accidental, the figures of antirrhetic are the explicit and repeated signs of the discursive structure of foundation and of constitution. They are the deep or sedimented form which the institution takes over the long term. Criticism or eulogy that endeavors to engage questions of the history or the form of law cannot avoid directly addressing the nature, sanctity, and reason, and the unity, faith, and authority that is the stake of such discourse and the reality of its institution.

In more mundane jurisprudential terms, the history and recovery of the antirrhetic provides an important corrective to the rhetorical analysis of doctrinal discourse. The foundational character of doctrine and specifically of constitutional writings lies precisely in their polemical form. The treatise, the primary form of legal doctrinal writing that developed from Renaissance statements of the Anglican form of civil and ecclesiastical polity, does not escape the rhetorical marks of the antirrhetic. In its positive formulation, the treatise asserts an identity and community that is both fictitious (imaginary) and exclusory. In specifying the demonstrative character of its reasoning and the comprehensiveness of its jurisdiction, the treatise may not need to invoke explicitly the antiportrait of its opponents. In its modern positivized form the legal treatise is most usually content to "refute by silence." Its silence, however, is not without the traces of

[151] The contemporary aspersion of nihilism dates back to responses to American legal realism and is generally utilized in a pejorative rather than a philosophical sense. See, for discussion, M. Kramer, Legal Theory, Political Theory and Deconstruction at 23–25, 240-241; Goodrich, Reading the Law at ch. 7; Neil Duxbury, "Some Radicalism about Realism?" (1990) 10 Oxford Journal of Legal Studies 11. For a much cited example, see P. Carrington, "Of Law and the River" (1984) 34 Journal of Legal Education 222.

[152] As, for example, C. Fried, "Jurisprudential Responses to Realism" (1988) 73 Cornell Law Review 331; P. S. Atiyah, "Correspondence" (1987) 50 Modern Law Review 227; R. Post, "Post-Modernism and the Law," London Review of Books (February 1991).

[153] As, for example, White, Justice as Translation at 263–264, 267. Also on closure rules, see Fish, Doing What Comes Naturally at 392–398. D. N. MacCormick, "Reconstruction after Deconstruction: A Response to CLS" (1990) 10 Oxford Journal of Legal Studies 539.

its polemical motives or origins. In one sense the pure or normative character of the treatise as a statement of a system of positive rules of law is necessarily iconic: its normativity expresses its distance from the sociality which it both constitutes and regulates. In this respect, its iconic character opposes it to the diversity and contingency of social relations: the unity of the normative order is purchased at the price of dissimulation, its coherence is the mask of the diversity of its object. It is constituted against the social and against the historical particularity of the subjects of law. In more classical terms, it defines itself against contingency (antinature), private reason, and imagination. A demonstrative style is in this sense no more than a figure or image of proof, and a treatise, in being the exemplary work of demonstration, is also the strongest form of figuration: it represents or imagines a purity of reason—an ideal which legal practice can never achieve. In a secondary sense, the treatise can be read symptomatically in terms of the explicit traces of the antirrhetic which reside in the inessential and marginal characteristics of the treatise. Refutation by silence or the demonstration that proves or "shows"^[154] the truth of that which lies in controversy cannot escape the polemical necessity of policing the boundaries of the treatise. Precisely as doctrine, as teaching, it has to persuade, and that persuasion, in its own terms, transmits a language and forms of argument that developed over the long term of an agonistic and adversarial legal practice. The polemical form of that practice gains expression at a higher level of abstraction in terms of categorical distinctions in which doctrinal writing separates itself from questions of political and ethical judgment, from questions of justice and of social change as well as from any explicit expression of its own epistemic properties or rhetorical style.

[154] Lever, Arte of Reason at 99.