Law and the Order of Culture "endnotes"

Notes

Introduction: The Relatively Autonomous Discourse of Law

1. See Carol J. Greenhouse, "Just in Time: Temporality and the Cultural Legitimation of Law," Yale Law Journal 98 (1989): 1631-51.

2. Raymond Williams, Culture (Glasgow, 1981), 13.

3. Robert M. Cover, "Foreword: Nomos and Narrative," Harvard Law Review 97 (1983): 11.

4. Stephen Greenblatt, "Culture," in Frank Lentricchia and Thomas McLaughlin, eds., Critical Terms for Literary Study (Chicago, 1990), 230, 226.

5. See Zillah R. Eisenstein, The Female Body and the Law (Berkeley, 1988), 20, 42-51; and Talcott Parsons, Sociological Theory and Modern Society (New York, 1967), 510.

6. To the extent that all cultural discourses "distribute the effects of power," they, like law, attempt to domesticate themselves as "'self-evident' and 'commonsensical'" (Paul A. Bové, "Discourse," in Lentricchia and McLaughlin, Critical Terms for Literary Study , 58, 54). What distinguishes law, therefore, is both the particular content of the legitimacy it seeks and the particular way in which it seeks to attain it.

7. Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 101. See Isaac D. Balbus, "Commodity Form and Legal Form: An Essay on the 'Relative Autonomy' of the Law," Law and Society Review 11 (Winter 1977): 571-88. Pierre Bourdieu situates the relative autonomy of the law in the space between " formalism ," which "sees the law as an autonomous and closed system whose development can be understood solely in terms of its 'internal dynamic,'" and " instrumentalism ," which "conceives of law as a reflection, or a tool in the service of dominant groups" (Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," The Hastings Law Journal 38 [1987]: 814).

8. Peter Goodrich, Reading the Law: A Critical Introduction to Legal Methods and Techniques (London, 1986), 20.

9. See Daniel Bell, "The Turn to Interpretation: An Introduction," Partisan Review 51 (1984): 215-19.

10. See, e.g., William N. Eskridge, Jr., "Gadamer/Statutory Interpretation," Columbia Law Review 90 (1990): 609-81.

11. Jonathan Culler, On Deconstruction: Theory and Criticism after Structuralism (Ithaca, 1982), 193-200, 129-34.

12. Michel Foucault, "What Is an Author?" in Josué V. Harari, ed., Textual Strategies: Perspectives in Post-Structuralist Criticism (Ithaca, 1979), 158.

13. Hans-Georg Gadamer, Truth and Method (London, 1975), 274-305. Gadamer calls the intended application of legal interpretation "exemplary" of "all other understanding."

14. David M. Trubek, "The Handmaiden's Revenge: On Reading and Using the Newer Sociology of Civil Procedure," Law and Contemporary Problems 51 (Autumn 1988): 124.

15. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 144.

16. Ibid., 139-40.

15. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 144.

16. Ibid., 139-40.

17. Ewald's position is entirely consistent with that of Foucault, who writes: "I wish to suggest that one must analyze institutions from the standpoint of power relations, rather than vice versa, and that the fundamental point of anchorage of the relationships, even if they are embodied and crystallized in an institution, is to be found outside the institution" (Michel Foucault, "The Subject and Power," in Hubert L. Dreyfus continue

and Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics [Chicago, 1983], 222).

18. Bourdieu, "The Force of Law," 839.

19. See Frank Michelman, "Law's Republic," Yale Law Journal 97 (1988): 1493-1537; Robert Post, "The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell," Harvard Law Review 103 (1990): 601-86; and Jürgen Habermas, The Theory of Communicative Action (Boston, 1981).

20. Foucault, "The Subject and Power," 212.

21. Stephen Greenblatt, Renaissance Self-Fashioning: From More to Shakespeare (Chicago, 1984), 256.

22. Frank Lentricchia, "Foucault's Legacy—A New Historicism?" in H. Aram Veeser, The New Historicism (New York, 1989), 231-42. Compare Mark Maslan, "Foucault and Pragmatism," Raritan 7 (1988): 94-114.

23. Greenblatt, Renaissance Self-Fashioning , 256.

24. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings (New York, 1980), 96.

25. Foucault, "The Subject and Power," 221-22.

26. Catherine Gallagher, "Marxism and the New Historicism," in Veeser, The New Historicism , 41. See Catherine Gallagher, "Politics, the Profession, and the Critic," Diacritics (Summer 1985): 37-43.

27. Michael Ryan, Marxism and Deconstruction: A Critical Articulation (Baltimore, 1982), 1-9.

28. Bernard Yack, The Longing for Total Revolution: Philosophic Sources of Social Discontent from Rousseau to Marx and Nietzsche (Princeton, 1986).

29. Robert Mangabeira Unger, Knowledge and Politics (New York, 1975), 260.

30. Ibid., 294-95. For a discussion of the theological dimensions of Unger's thought, see Stanley Fish, "Critical Legal Studies: Unger and Milton," Raritan 7 (Fall 1987): 1-20; and Stanley Fish, "Critical Legal Studies (II): Roberto Unger's Transformative Politics," Raritan 7 (Winter 1988): 1-24.

29. Robert Mangabeira Unger, Knowledge and Politics (New York, 1975), 260.

31. The trilogy consists of Social Theory: Its Situation and Its Task (Cambridge, 1987), False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy (Cambridge, 1987), and Plasticity into Power: Comparative-Historical Studies in the Institutional Conditions of Economic and Military Success (Cambridge, 1987). For a discussion of the trilogy, see Robin W. Lovin and Michael J. Perry, eds., Critique and Construction: A Symposium on Roberto Unger's Politics (Cambridge, 1990).

32. Unger, Social Theory , 18-22.

33. Ibid., 6-7.

32. Unger, Social Theory , 18-22.

33. Ibid., 6-7.

34. Unger, False Necessity , 510. In a strikingly innovative move, Unger suggests the creation of "destabilization rights" that would "protect the citizen's interest in breaking open the large-scale organizations or the extended areas of social practice that remain closed to the destabilizing effects of ordinary conflict and thereby sustain insulated hierarchies of power and advantage" (ibid., 530).

35. Unger, Social Theory , 1. break

Generalization in Interpretive Theory

1. The contributions and footnote references in "Interpretation Symposium," Southern California Law Review 58 (1985): 1-725, provide a contemporary survey of discussion of legal interpretation other than in work in cognitive science and artificial intelligence. A series of papers by Steven Knapp and Walter Benn Michaels offers an elegant entrée to discussion among literary critics of interpretation generally. See "Against Theory," Critical Inquiry 8 (1982): 723-42; "A Reply to Our Critics," Critical Inquiry 9 (1983): 790-800; "A Reply to Richard Rorty: What Is Pragmatism?" Critical Inquiry 11 (1985): 466-73; "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49-68. Knapp's and Michaels's contributions between 1982 and 1985 are collected in convenient form together with related papers by others in W.J.T. Mitchell, ed., Against Theory: Literary Studies and the New Pragmatism (Chicago, 1985). With respect to artificial intelligence and its possible application to computer reading or writing of statements of law, see Anne von der Lieth Gardner, An Artificial Intelligence Approach to Legal Reasoning (Cambridge, Mass., 1987); Herbert Simon, The Sciences of the Artificial , 2nd ed. (Cambridge, Mass., 1982), 130-59.

2. Knapp and Michaels, New Pragmatism , 16, 140-41.

3. A text is to be thought only somewhat free floating because much contemporary reflection on the possible objectivity of language, outside law, is reluctant to grant that the meaning of a word or a sentence in a language is an empirical matter. E.g., Stanley Cavell, Must We Mean What We Say? A Book of Essays (Cambridge, 1976), 1-43.

4. This is quite aside from differences in kinds of legal texts, to be noted below, but not to say that examples of texts—such as the inheritance statute in Riggs v. Palmer (see continue

Ronald Dworkin, Taking Rights Seriously [Cambridge, Mass., 1978]), or the opinion in Rylands v. Fletcher (liability without fault in tort; see A. W. Brian Simpson, "Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher," Journal of Legal Studies 13 [1984]: 209-64)—are not examined closely, or that it is not profitable to do so.

5. Cf. Ford Motor Co. v. Federal Trade Commission , 673 F. 2nd 1008 (9th Cir., 1981), cert. denied, 459 U.S. 999 (1982); People of Illinois v. Film Recovery Systems, Inc. , no. 8311091, Circuit Court of Cook County, Ill. (1985).

6. My own comments may be found in Joseph Vining, Legal Identity (New Haven, 1978), 93, 94, 119-20, 134; The Authoritative and the Authoritarian (Chicago, 1986; revised ed., 1988), 21-22, 74, 176, 217-18, 221.

7. E.g., Knapp and Michaels, in Mitchell, New Pragmatism , 19.

8. I think of the epilogue to Leo Tolstoy, War and Peace , trans. Rosemary Edmunds, 2 vols. (Baltimore, Md., 1976), 2:1339-1444.

9. Nonlawyers are sometimes astonished to find this true even in matters involving business: when one is engaged in one's affairs and sells an orange grove, and, under the law of contract, engages to harvest and sell the oranges for the buyer of the tract, the securities laws may become relevant. Though what one has in one's hands are a property deed and a contract, and though no gilt-edged paper changes hands, the situation one has brought about may eventually be analyzed in "totality," "in truth," "substance," "reality"—the words are used—as the "selling of a security." See Securities and Exchange Commission v. W.J. Howey Co. , 328 U.S. 293 (1946); Securities and Exchange Commission v. Glen Arden Commodities, Inc. , 368 F. Supp. 1386 (E.D. N.Y., 1974), aff'd sub nom. Glen Arden Commodities, Inc. v. Costantino , 493 F. 2nd 1027 (2nd Cir., 1974).

10. Knapp and Michaels are aware of this. See "Against Theory 2," 63. The involvement of an agent ("agent" in its legal rather than philosophic sense) extends and complicates such analysis.

11. The "tort mode" is not really applicable to legislation. Unlike contracting parties' acts, the consequences of legislators' acts are not visited upon legislators themselves but upon others and upon the future of the world; nor can the consequences accorded legislators' acts be reduced to reversible shifts in money flows.

12. Further discussion of this aspect of the legislative text may be found in Vining, Authoritative and Authoritarian , chaps. 9, 10, and 11.

13. Perhaps not all should be called texts. Some, as noted, may not be speech or treated as speech.

14. See James Boyd White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago, 1984).

15. See, e.g., Anthony T. Kronman, Max Weber (Stanford, Calif., 1983), 11, 22, 28, 45, 53, 73, 89-91; Joseph Raz, The Authority of Law (Oxford, 1983).

16. E.g., Knapp and Michaels, in Mitchell, New Pragmatism , 103. Art invites, but does want to daunt. Restating into life what is heard—reviving and building—it nonetheless wants a circle woven round it thrice: to deny to its readers, through closure, the possibility of doing what it has just demonstrated the possibility of doing.

17. The word client may not convey the spread of the audiences to whom a lawyer speaks in ordinary practice. The client is often an institution, or an agency of government. Others beyond the client may be expected to rely upon an opinion letter. In fact, in some circumstances an opinion letter may be mandated by statute.

Special considerations, and rule formulations of them, apply to lawyers' statements to a judge in litigation. break

18. Owen Barfield's Poetic Diction: A Study in Meaning , 2nd ed. with afterword (Middletown, Conn., 1972), is in part a meditation, indeed a lawyer's meditation, on the place of conscious thought in writing and speaking.

The first word that comes to mind is of course not necessarily the last. The critical faculties are there to meet it. But the critical faculties can be engaged only if there is something for them to be engaged upon.

19. E.g., Michael A. Arbib, In Search of the Person: Philosophical Explorations in Cognitive Science (Amherst, Mass., 1985), 32; "English as a Computer Language," The Economist , 4 April 1987, 84-85.

20. Virginia Woolf, Three Guineas (New York, 1963), 125.

21. Since writing the above, I find Roy Harris making a similar point in stronger fashion in The Language Machine (Ithaca, N.Y., 1987), particularly at 136-37, using inter alia A.M. Turing's reference to "authority" in his "Computing Machinery and Intelligence" (1950) in Alan Ross Anderson, ed., Minds and Machines (Englewood Cliffs, N.J., 1964), 8. break

Theories of Constitutional Interpretation

1. Claude Lefort, Democracy and Political Theory , trans. David Macey (Minneapolis, 1988), 39.

2. Testimony of Ernest Chambers, Marsh v. Chambers , 463 U.S. 783 (1983), joint appendix at 20, 23-24, 27.

3. Testimony of Robert E. Palmer, ibid. at 40-41, 45, 51, 83, 89; exhibit 1, 1975 Prayer Book, 4 April 1975, ibid. at 96; exhibit 2, 1977-78 Prayer Book, 7 February 1977, ibid. at 98.

4. Although the clause speaks only of Congress, it has been held to be binding on the states by virtue of the Fourteenth Amendment.

5. 504 F. Supp. 585 (D. Neb. 1980).

6. 675 F. 2nd 228 (8th Cir. 1982).

7. I stress the phenomenological character of this point. It is of course quite plausible to contend that all reading is necessarily active, and hence "interpretative." But not all reading requires a reader self-consciously to inquire into the meaning of a text. From a phenomenological point of view, therefore, some reading does not require that the process of interpreting a text be thematized.

8. United States v. Butler , 297 U.S. 1, 62 (1936).

9. It is necessary at this point to distinguish between textualism as a putative "theory" of interpretation, designed to reveal the meaning of an uncertain text, and textualism as a rule of evidence or priority, which is designed either to exclude from consideration data from beyond the four corners of the document or else to assign to the language of the text priority over such data. Textualism as a rule of evidence or priority would follow from, and presumably be justified by, an anterior theory of interpretation.

10. On the relationship between interpretation and situations where "meaning is continue

doubtful," see Marcelo Dascal and Jerzy Wroblewski, "Transparency and Doubt: Understanding and Interpretation in Pragmatics and in Law," Law and Philosophy 7 (1988): 203-24. It is clear, as Dascal and Wroblewski point out, that the distinction between meaning that is plain, that "fits the case under consideration directly and unproblematically, as a glove to a hand," and meaning that is questionable is not one that turns on the "inherent quality of a legal text" but is rather "pragmatic" in nature, turning on all the factors involved "in a given communicative situation" (215, 221).

11. Marbury v. Madison , 5 U.S. (1 Cranch) 137, 176 (1803).

12. Ibid. at 163. The phrase was made famous in America by John Adams, who had appointed Marshall to the bench; in Marbury Marshall wickedly used it to pinion John Adams's archenemy, Thomas Jefferson. For the derivation of the phrase, see Frank Michelman, "Foreword: Traces of Self-Government," Harvard Law Review 100 (1986): 4, n. 2; 40-41. For a discussion of other strange circumstances surrounding Marbury , see John A. Garraty, "The Case of the Missing Commissions," in Garraty, ed., Quarrels That Have Shaped the Constitution (New York, 1964).

11. Marbury v. Madison , 5 U.S. (1 Cranch) 137, 176 (1803).

13. Marbury v. Madison , 5 U.S. at 163, 175.

14. Alexander Bickel, The Least Dangerous Branch (Indianapolis, 1962), 16-17.

15. Dred Scott v. Sandford , 60 U.S. (19 How.) 393 (1857).

16. Marsh v. Chambers , 463 U.S. at 796 (Brennan, J., dissenting).

17. See Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification (Stanford, Calif., 1961), 39-83.

18. For a discussion of the nature of the rule of law, see Joseph Raz, "The Rule of Law and Its Virtue," in The Authority of Law (Oxford, 1979), 210-19.

19. For further discussion, see Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, Mass., 1988), 47-49.

20. Henry Paul Monaghan, "Stare Decisis and Constitutional Adjudication," Columbia Law Review 88 (1988): 752 (quoting Archibald Cox, The Role of the Supreme Court in American Government [New York, 1976], 50). See Vasquez v. Hillery , 474 U.S. 254, 265-66 (1986); Roscoe Pound, "What of Stare Decisis?" Fordham Law Review 10 (1941): 2.

21. 675 F. 2nd at 233.

22. Lemon v. Kurtzman , 403 U.S. 602, 612-13 (1971). See Comm. for Public Education and Religious Liberty v. Nyquist , 413 U.S. 756, 773 (1973).

23. Marsh v. Chambers , joint appendix at 49.

24. California Senate Journal , 37th sess. (1907), 171-73, 307-8, 805-6, 808, 818-21.

25. Marsh v. Chambers , 63 U.S. at 801.

26. Ibid. at 786-88.

27. Ibid. at 788, 790.

25. Marsh v. Chambers , 63 U.S. at 801.

26. Ibid. at 786-88.

27. Ibid. at 788, 790.

25. Marsh v. Chambers , 63 U.S. at 801.

26. Ibid. at 786-88.

27. Ibid. at 788, 790.

28. This was essentially the position advocated by the solicitor general in his brief for the United States as amicus curiae . The solicitor general argued that in Chambers "analysis of the legislative chaplaincy practice under the Lemon test seems pointless" because "historical analysis . . . should alone suffice to demonstrate that the Nebraska chaplaincy" was consistent with "the intended meaning and scope of the Establishment Clause"; ibid., Brief for the United States, at 21-22.

29. Ibid. at 801.

30. Ibid. at 802-5.

31. Ibid at 816-17. As Brennan has subsequently explained: "I frankly concede that I approach my responsibility as a justice, as a 20th century American not confined to [the] framers' vision in 1787. The ultimate question must be, I think, what do the words of the Constitution and Bill of Rights mean to us in our time"; address by William Brennan at Hyde Park, New York, The Recorder , 8 November 1989, 8. break

29. Ibid. at 801.

30. Ibid. at 802-5.

29. Ibid. at 801.

30. Ibid. at 802-5.

29. Ibid. at 801.

30. Ibid. at 802-5.

32. Paul W. Kahn, "Reason and Will in the Origins of American Constitutionalism," Yale Law Journal 98 (1989): 504.

33. William W. Van Alstyne, "The Idea of the Constitution as Hard Law," Journal of Legal Education 37 (1987): 179. For a useful symposium on the subject, see Constitutional Commentary 6 (1989): 19-113.

34. Osborne v. Bank of the United States , 22 U.S. (9 Wheat.) 326, 381 (1824).

35. Eisenberg, Nature of Common Law , 158-59.

36. See J. M. Balkin, "Constitutional Interpretation and the Problem of History," New York University Law Review 63 (1988): 928.

37. Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue , 460 U.S. 575, 583, n. 6 (1983).

38. Lest this analysis seem too hypothetical, it should be noted that from 1967 until 1973 the Supreme Court decided thirty-one obscenity cases without opinion because it was unable to agree on a rule of law to distinguish obscene from nonobscene speech. See Frederick F. Schauer, The Law of Obscenity (Washington, D.C., 1976), 44.

39. For a similar argument in the context of statutory interpretation, see Edward H. Levi, An Introduction to Legal Reasoning (Chicago, 1949), 30-33.

40. In speaking of "legal implications," of course, I am excluding the immediate impact of the decision on the parties to the case. The effect of the Chambers decision on the Nebraska state legislature is, at least for purposes of Chambers's specific lawsuit, independent of the principle of stare decisis . That principle only determines the effect of the decision on other, similarly situated legislatures.

41. Frederick F. Schauer, "Formalism," Yale Law Journal 97 (1988): 509-48.

42. See Ronald Dworkin, Law's Empire (Cambridge, Mass., 1986).

43. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review 60 (1980): 234.

44. Speech of Attorney General Edwin Meese III before the American Bar Association, 9 July 1985, Washington, D.C., in The Great Debate: Interpreting Our Written Constitution (Washington, D.C., 1986), 9.

45. Charles Fried, "Sonnett LXV and the 'Black Ink' of the Framers' Intention," Harvard Law Review 100 (1987): 759. See H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review 98 (1985): 895-98. This version of historical interpretation might, for example, justify textualism as a rule of evidentiary exclusion. See note 9 above.

46. Monaghan, "Stare Decisis," 725.

47. See Raoul Berger, Federalism: The Founders' Design (Norman, Okla., 1987), 13-20.

48. The undeniable force of this conclusion also illustrates the ease with which constitutional interpretation escapes from the specific and plain words of the constitutional text.

49. For an elaboration of this argument, see Ronald Dworkin, A Matter of Principle (Cambridge, Mass., 1985), 33-57.

50. This was also James Madison's position; see The Writings of James Madison , ed. Gaillard Hunt, vol. 6 (New York, 1900), 272; Powell, "Original Understanding," 937-38.

51. Marsh v. Chambers , 463 U.S. at 815, n. 32; quoting Bernard Schwartz, The Bill of Rights: A Documentary History , vol. 2 (New York, 1971), 1171.

52. Gerald C. MacCallum, Jr., "Legislative Intent," Yale Law Journal 75 (1966): 766-69.

53. Friedrich Nietzsche, The Use and Abuse of History , trans. Adrian Collins (Indianapolis, 1957), 11. Hence the notorious "illicit love affair" between "Clio and the Court"; continue

Alfred H. Kelly, "Clio and the Court: An Illicit Love Affair," Supreme Court Review (1965): 119-58.

54. See p. 21 above.

55. For a discussion, see Brest, "Misconceived Quest," 225-26.

56. For the definitive analysis of this point, see David Hume, A Treatise of Human Nature , 2nd ed., ed. L. A. Selby-Bigge (Oxford, 1978), 534-53.

57. Hanna Pitkin, "Obligation and Consent," in Peter Laslett, W. G. Runciman, and Quentin Skinner, eds., Philosophy, Politics, and Society , 4th ser. (Oxford, 1972), 62.

58. Daniel A. Farber, "The Originalism Debate: A Guide for the Perplexed," Ohio State Law Journal 49 (1989): 1099-1100.

59. Missouri v. Holland , 252 U.S. 416, 433 (1920).

60. Karl Llewellyn, "The Constitution as an Institution," Columbia Law Review 34 (1934): 14-15, 26.

61. J. N. Findlay, Kant and the Transcendental Object: A Hermeneutic Study (Oxford, 1981), 241.

62. Hanna Pitkin, "The Idea of a Constitution," Journal of Legal Education 37 (1987): 167, 169.

63. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York, 1978), 14-15, 78.

64. Ibid., 79.

65. Ibid., 77.

63. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York, 1978), 14-15, 78.

64. Ibid., 79.

65. Ibid., 77.

63. Philippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (New York, 1978), 14-15, 78.

64. Ibid., 79.

65. Ibid., 77.

66. Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 759 (1985) (opinion of Powell, J.).

67. Ibid. at 787 (Brennan, J., dissenting).

66. Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 759 (1985) (opinion of Powell, J.).

67. Ibid. at 787 (Brennan, J., dissenting).

68. Bowers v. Hardwick , 106 S. Ct. 2841, 2844 (1986).

69. Ibid. at 2851 (Blackmun, J., dissenting).

68. Bowers v. Hardwick , 106 S. Ct. 2841, 2844 (1986).

69. Ibid. at 2851 (Blackmun, J., dissenting).

70. David Couzens Hoy, "A Hermeneutical Critique of the Originalism/Nonoriginalism Distinction," Northern Kentucky Law Review 15 (1988): 493, 495.

71. For a good survey, see Walter F. Murphy, James E. Fleming, and William F. Harris, Jr., American Constitutional Interpretation (New York, 1986).

72. Of course they need not be incompatible. Each of the three conceptions of authority can be understood in ways that render it functionally indistinguishable from the others. Thus an original act of consent can be construed as mandating on the one hand the rule of law, or on the other a continual, open sensitivity to the national ethos. The national ethos can be interpreted to require fidelity to precedent or submission to the founders' consent; the principle of stare decisis can be implemented in such a way as to express either the national ethos or the imperatives of an original act of consent.

The point, however, is that these potential convergences are merely contingent, and hence not truly dispositive of the distinctions that divide the three conceptions of constitutional authority. For example, a judge who argues that constitutional authority resides in an original act of consent that also happens to mandate sensitivity to an evolving national ethos is committed to the position that such sensitivity would be improper if the content of that consent were different. Thus for such a judge the discernment of consent would retain a privileged position.

73. For a path-breaking critique of this approach, see Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York, 1982).

74. As I write this, for example, the survival of a woman's constitutional right to terminate a pregnancy within the first two trimesters depends to no small extent upon the continue

value assigned by the Supreme Court to the principle of stare decisis ; see Webster v. Reproductive Health Services , 109 S. Ct. 3040, 3056-57 (1989) (opinion of Rehnquist, C. J.); ibid. at 3078 (Blackmun, J., dissenting); Akron v. Akron Center for Reproductive Health , 462 U.S. 416, 419 (1983).

75. For examples, see United States v. Scott , 437 U.S. 83, 86-87 (1978); Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 (1985). It is particularly important that past precedent not be entirely decisive "in cases involving the Federal Constitution, where correction through legislative action is practically impossible," Burnet v. Coronado Oil and Gas Co. , 285 U.S. 393, 405-8 (1932) (Brandeis, J., dissenting), and hence where, since the practice of constitutional amendment is so cumbersome and impractical, correction can in many circumstances only come as a practical matter when the Court itself turns away from stare decisis . For this reason the Supreme Court has a "considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases"; Glidden Co. v. Zdanok , 370 U.S. 530, 543 (1962) (opinion of Harlan, J.). See Patterson v. McLean Credit Union , 109 S. Ct. 2363, 2370-71 (1989).

76. Marsh v. Chambers , 463 U.S. at 792.

77. This suggests that we should expect to see historical interpretation predominate (at least in cases of first impression) in the years immediately following the ratification of a constitutional provision. During that time there will be an obvious and perceptible identification with the process of consent. But as the years pass, and as the connections to that process fade, the assumption of identification may become increasingly less plausible or persuasive. Changed circumstances or altered cultural conditions may make the consent of the ratifiers seem foreign or alien, quite unlike our own consent. It is at such moments that one would anticipate a transition from historical to responsive interpretation. Llewellyn offers a marvelous description of this process in "Constitution as Institution," 12-15.

78. In the words of Don Herzog, "The consent of the governed is a special case. It hangs not on the choices made by individuals but on the responsiveness of the state to the people, taken as a collective body"; Happy Slaves: A Critique of Consent Theory (Chicago, 1989), 215.

79. It is of course possible to argue that we should be bound by the ratifiers' will even if it does not reflect our own. But then it must be explained why this is the case, and that explanation cannot invoke the authority of consent. One possible explanation is that the government couldn't function if decisions made according to appropriate democratic procedures were to lose their authority simply because the passage of time had altered the relevant democratic constituency. But this explanation, stressing as it does the necessity for the Constitution to remain in effect as law in order to sustain the values of continuity, reliance, and predictability, would logically lead to a form of doctrinal, rather than historical, interpretation.

80. Brown v. Board of Education , 346 U.S. 483, 489-95 (1954).

81. For a discussion of the incompatibility of Brown with any form of historical interpretation, see Monaghan, "Stare Decisis," 728.

82. Plessy v. Ferguson , 163 U.S. 537 (1896).

83. See, e.g., Cooper v. Aaron , 358 U.S. 1 (1958).

84. John Hart Ely, Democracy and Distrust (Cambridge, Mass., 1980), 2-3. In recent years, with the advantage of hindsight, more convincing arguments have been made that Roe could seriously be justified as a form of doctrinal interpretation.

85. For a discussion of the distinction between expressive and hegemonic functions of law, see Robert C. Post, "Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment," California Law Review 76 (1988): 299-300. break

86. See Thomas C. Grey, "Do We Have an Unwritten Constitution?" Stanford Law Review 27 (1975): 703-18; David Lyons, "A Preface to Constitutional Theory," Northern Kentucky Law Review 15 (1988): 459-98.

87. Ely, Democracy and Distrust , 88, note.

88. Henry Paul Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): 375-76 (emphasis added).

89. For the fascinating suggestion that we may have actually enshrined the wrong document, see Akhil Reed Amar, "Our Forgotten Constitution: A Bicentennial Comment," Yale Law Journal 97 (1987): 281-98.

90. For a brief discussion of the history of "organic" metaphors of the Constitution, see Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York, 1986), 19-20.

91. The words are those of Chief Justice Charles Evans Hughes, in Home Building and Loan Assoc. v. Blaisdell , 290 U.S. 398, 443-44 (1934).

92. See, e.g., Hans-Georg Gadamer, Truth and Method (London, 1975); Alasdair MacIntyre, After Virtue (Notre Dame, Ind., 1981).

93. Philip Selznick, "The Idea of a Communitarian Morality," California Law Review 75 (1987): 451.

94. On the distinction between preferences and values, see Mark Sagoff, "Values and Preferences," Ethics 96 (1986): 301-14.

95. "Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure"; Robert H. Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47 (1971): 9.

96. Theodor W. Adorno and Max Horkheimer, Dialectic of Enlightenment , trans. John Cumming (New York, 1972), 38. As Adorno and Horkheimer observe, "so long as the identity of the user of reason is disregarded," reason acquires an "affinity" with "force" (87).

97. Nonet and Selznick, Law and Society , 29.

98. One alternative conclusion, of course, is that there be no constitutional law at all, but only simple majority rule. The point in text assumes that those propounding the counter-majoritarian difficulty are attempting to offer a characterization of an appropriate, rather than nonexistent, form of constitutional law.

99. For a clear example of this form of argumentation, see Ely, Democracy and Distrust ; for a general discussion, see Farber, "Originalism Debate," 1097-1100.

100. See, e.g., Richard H. Fallon, Jr., "A Constructivist Coherence Theory of Constitutional Interpretation," Harvard Law Review 100 (1987): 1217-23.

101. The phrase is from John Schaar, Legitimacy in the Modern State (New Brunswick, N.J., 1981), 38.

102. Adorno and Horkheimer, Dialectic of Enlightenment , 87. break

Facing Facts in Legal Interpretation

1. Several historians of the English common law have argued that the law as we currently understand it—a set of specialized categories, rules, and procedures—emerged when questions for the experts came to be separated out from questions for nonexperts. And in this progressive distinguishing, law came to be considered a separate entity from facts when it had not been considered so previously. See S. F. C. Milsom, "Law and Fact in Legal Development," University of Toronto Law Journal 17 (1967): 1-19; J. H. Baker, An Introduction to English Legal History (London, 1979), 67-82; and A. W. B. Simpson, Invitation to Law (Cambridge, 1988), 69-70 and 90-91. Influential among the American legal realists and making the case on different evidence, Leon Green thought the law/fact distinction was primarily a shorthand for sorting out which jobs were to be done by a judge and which by a jury. See his Judge and Jury (Kansas City, Mo., 1930), 279.

2. Many of the antifederalists writing at the time of constitutional ratification in the United States strongly supported the institution of the jury as a way of avoiding the potential tyranny of a central government. See, for example, An Old Whig, A (Maryland) Farmer, and Minority of the Maryland Ratifying Convention, in Herbert Storing, ed., The Complete Anti-Federalist , 7 vols. (Chicago, 1981), 3.3.51, 5.1.66, 5.4.6. But the debate did not assume, as we do now, that judges have effective control over the construction of the law and that the role of juries was to be limited primarily to the finding of facts. Juries in prerevolutionary Massachusetts, for example, commonly decided not only questions of fact but also questions of law since juries received conflicting interpretations of the law from multiple judges and often from counsel too in almost every case. See William E. Nelson, Americanization of the Common Law (Cambridge, Mass., 1975), 3-4. The constitutional provision that federal courts should have jurisdiction over law and fact (Article 3, Section 2) generated a good deal of concern that these courts would come to have power they did not possess in the states, and the guarantees of federal juries in the Fifth, Sixth, and Seventh Amendments were thought to provide some check on this.

3. Challenging on sufficiency of evidence is one way to challenge the findings of facts themselves. Appealing on the grounds that the trial court reached a clearly erroneous conclusion of fact is another. But facts are more up for grabs on appeal than the simple statement of appellate rules indicates. Edward H. Cooper argues that the clearly erroneous rule is not one determinate standard but rather many standards that vary with continue

the specifics of the case, the issues of law raised, and the time at which the case is brought. This means that courts have substantial flexibility in deciding when a finding of fact by the trial court is mistaken, and one might conclude from this that appeals courts have substantially more control over the determination of matters of fact than the usual rule reveals. See "Civil Rule 52(a): Rationing and Rationalizing the Resources of Appellate Review," Notre Dame Law Review 63 (1988): 645-70.

4. James Bradley Thayer, "Law and Fact in Jury Trials," in A Preliminary Treatise on Evidence at the Common Law (Boston, 1898), chap. 5.

5. Nathan Isaacs, "The Law and the Facts," Columbia Law Review 22 (1922): 1-13.

6. A. W. B. Simpson, "The Analysis of Legal Concepts," Law Quarterly Review 80 (1964): 535-58.

7. Mixed questions of law and fact arise when both the judge and jury have an important part to play in the settling of an issue before the court. The determination of negligence in a tort action is one common issue of this kind. The judge decides what sort of evidence is relevant and how much evidence is sufficient for a jury to find negligence, while the jury decides whether a particular defendant has actually been negligent. With this intertwining of functions, it becomes very difficult to see where the law leaves off and the facts begin. See, for example, Francis H. Bohlen, "Mixed Questions of Law and Fact," University of Pennsylvania Law Review 72 (1924): 111-22; and Fleming James, "Functions of the Judge and Jury in Negligence Cases," Yale Law Journal 58 (1949): 667-90 for further discussions of this problem.

8. Karl Llewellyn took this as an important theme in much of his work. For example, in The Bramble Bush (New York, 1930), 64-70, he argued that the process of applying rules to facts was anything but mechanical for most judges; instead judges brought their sense of what the law required to bear on how the facts were to be seen in the first place, making separation of the two impossible. And Jerome Frank, who thought that "facts were guesses," saw much of the process of legal decision making to be a jumble of facts and rules. See particularly Courts on Trial (New York, 1969), particularly 14-61. Walter Wheeler Cook noticed that many legal descriptions contain words that sound like factual descriptions but are actually legal judgments, as when a court says that a person is "lawfully possessed of ten chairs"; "'Facts' and 'Statements of Fact,'" University of Chicago Law Review 4 (1936): 233-46.

9. Neil MacCormick has tried to preserve the distinction by sorting out two kinds of facts: those which present problems of proof (where the puzzle is to figure out whether they are true or not) and those that present problems of interpretation (where the puzzle is to figure out what legal categories fit best). Although this represents an improvement on the usual binary distinction, what he has done is to put mixed issues of law and fact into a category that is then set in opposition to the categories of law and fact. But this is largely unresponsive to the criticisms of the law/fact distinction urged by the realists and others; Legal Theory and Legal Reasoning (Oxford, 1987), 86-97.

10. For example, Ronald Dworkin excludes questions of fact from his theory of interpretation, which focuses on the analysis of legal texts; Law's Empire (Cambridge, Mass., 1986), 11-12. And he writes about facts, "If judges disagree over actual, historical events in controversy, we know what they are disagreeing about and what kind of evidence would put the issue to rest if it were available" (3). Clearly, in Dworkin's view, while law needs an elaborate theory of interpretation, facts only need more evidence for judges to be sure that they've got it right.

11. See Walter F. Murphy, James E. Fleming, and William F. Harris, Jr., American Constitutional Interpretation (Mineola, N.Y., 1986), for a careful consideration of the most forceful alternatives. break

12. Though even here, the similarities may be deeper than the differences. For a case to this effect, see Paul Ricoeur, "The Model of the Text," in Interpretive Social Science: A Reader , ed. Paul Rabinow and William Sullivan (Berkeley, 1979), 73-101.

13. This problem is analogous to the problem of literal meaning of a legal or literary text. Literal meaning may seem obvious and straightforward, but it always presupposes a context against which a particular meaning is the only sensible one. See John Searle, "Literal Language," in Expression and Meaning: Studies in the Theory of Speech Acts (Cambridge, 1979), 117-36, for a discussion of the backdrops presupposed by literal language and the impossibility of logically specifying all the relevant features of context on which meaning depends. See also Stanley Fish, "Normal Circumstances, Literal Language, Direct Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without Saying, and Other Special Cases," in Is There a Text in This Class? (Cambridge, Mass., 1980), 268-92, for an argument that literal meaning always has a context it is presupposing, illustrated by shifting the contexts behind particular phrases. In Fish's view, the context is provided by the interpretive assumptions of a particular interpretive community: "A sentence is never not in a context. We are never not in a situation. . . . A sentence that seems to need no interpretation is already the product of one" (284).

14. Once we have a thoroughly interpretive view of law, judging is interpretive "all the way down." Clifford Geertz is one teller of an Indian tale about an Englishman who "having been told that the world rested on the back of an elephant which rested in turn on the back of a turtle, asked . . . what did the turtle rest on? Another turtle. And that turtle? 'Ah, Sahib, after that, it is turtles all the way down'"; "Thick Description: Toward an Interpretive Theory of Culture," in The Interpretation of Cultures (New York, 1973), 3-30, quote at 29. Legal interpretation does not rest on some bedrock of facts. The interpretation of law and fact are mutually supporting "all the way down."

15. Riggs v. Palmer , 115 N.Y. 506, 22 N.E. 188 (1889).

16. Ibid. at 509.

17. Ibid.

15. Riggs v. Palmer , 115 N.Y. 506, 22 N.E. 188 (1889).

16. Ibid. at 509.

17. Ibid.

15. Riggs v. Palmer , 115 N.Y. 506, 22 N.E. 188 (1889).

16. Ibid. at 509.

17. Ibid.

18. Of course, what this means in practice is usually that the judges imagine what the legislature would have done if the legislature had the sensibility of the judges. Empirical evidence about legislative intent may be consulted, but often it is not. Legislative intent is frequently the projection of judicial wishful thinking. As Roscoe Pound put it, appealing to the intention of the legislature "assumes that the law-maker thought as we do on general questions of morals and policy and fair dealing. Hence it assumes that of several possible interpretations the one which appeals most to our sense of right and justice for the time being is most likely to give the meaning of those who framed the rule"; "Spurious Interpretation," Columbia Law Review 7 (1907): 379-86.

19. Brian Simpson has pointed out to me that this maxim has a long history going back to Ulpian in The Digest of Roman Law 50.17.134.1: "Nemo ex suo delicto meliorem suam conditionem facere potest" (No one can make his condition better by his own misdeed). In Riggs , Simpson suspects that the maxim came to Judge Earl by way of Broom's Legal Maxims , a reference book in common use at the time.

20. Riggs v. Palmer , 115 N.Y. at 511-12.

21. Ibid. at 515 (Gray, dissenting).

22. Ibid. at 517 (Gray, dissenting).

20. Riggs v. Palmer , 115 N.Y. at 511-12.

21. Ibid. at 515 (Gray, dissenting).

22. Ibid. at 517 (Gray, dissenting).

20. Riggs v. Palmer , 115 N.Y. at 511-12.

21. Ibid. at 515 (Gray, dissenting).

22. Ibid. at 517 (Gray, dissenting).

23. As Ronald Dworkin argues in the opening chapter of Law's Empire and as Rick Lempert has pointed out to me in his comments on this paper, judges do not generally cast their disagreements as differences in theories of interpretation but rather as differences in what the law is .

24. Pound, "Spurious Interpretation," 382.

25. Fish, "Normal Circumstances," 280. break

26. See Ronald Dworkin, "The Model of Rules I," in Taking Rights Seriously (Cambridge, Mass., 1977), 14-45, for his early discussion of the case. Riggs reappears prominently in Law's Empire as one of the cases drawn thematically throughout the book.

27. Benjamin Cardozo, The Nature of the Judicial Process (New Haven, Conn., 1921), 41.

28. Ibid., 43.

27. Benjamin Cardozo, The Nature of the Judicial Process (New Haven, Conn., 1921), 41.

28. Ibid., 43.

29. Dworkin, Law's Empire , 87.

30. Llewellyn, Bramble Bush , 33.

31. Owens v. Owens , 100 N.C. 240 (1888). In Owens , the question was whether a wife who was convicted as an accessory in the murder of her husband was entitled to maintain her right of dower. In ruling that she was, the court referred to explicit provisions in the statute of wills depriving the wife of this right only in cases where she had committed adultery or where she was living apart from her husband at the time of his death. From this, the court concluded that without explicit provision to the countrary, the right of dower was preserved when the wife was involved in the murder of her husband, and that "it belongs to the lawmaking power alone, to prescribe additional grounds of forfeiture" (242).

32. The North Carolina Supreme Court reports finding no other case like this in any state before that time, and John W. Wade, writing in 1936, also reported that there were no other earlier cases; "Acquisition of Property by Wilfully Killing Another: A Statutory Solution," Harvard Law Review 49 (1936): 715-55. My own investigation produced the same conclusion. There may have been cases that never reached the law reports, which means that either there were no such cases, or that the cases were settled before trial, or that the cases were never appealed after trial, or that the cases were thought to present doctrinally obvious points and so were not in need of reporting.

33. See, for example, Shellenberger v. Ransom , 41 Neb. 631 (1891); Deem v. Millikin , 6 Ohio Cir. Ct. 357 (1892), affd. 53 Ohio St. 668; In Re Carpenter's Estate , 170 Pa. 203 (1895); Ellerson v. Westcott , 148 N.Y. 149, 42 N.E. 540 (1896).

34. See Viviana Zelizer, Morals and Markets: The Rise of Life Insurance , for an account of this growing industry.

35. See, for example, Fauntleroy's Case (1830), 4 Bli. (N.S.) 194; Prince of Wales v. Palmer (1858), 25 Beav. 605; Cleaver v. Mutual Reserve Fund Life Assn. (1892), Q.B. 147.

36. New York Mutual Life Insurance Co. v. Armstrong , 117 U.S. 591 (1886), was an American insurance case decided on grounds of fraud. It was cited in Riggs because, after basing the holding squarely on fraud, Justice Field added, in dictum: "But, independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they were just and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered the assured. It would be a reproach to the jurisprudence of this country, if one could recover insurance money payable on the death of a party whose life he had feloniously taken. As well might he recover insurance money upon a building he had wilfully fired" (600).

37. Justice Carter, writing in Wall v. Pfanschmidt , 265 Ill. 180, 183 (1914), noted the absence of cases on this point in England until the end of the nineteenth century and remarked, "The courts of Great Britain do not seem to have been called upon to pass upon it until in very recent years, doubtless because of the ancient common law doctrine of attainder." Attainder, as we will see, brought into effect forfeiture, corruption of blood, and civil death for convicted felons so that questions of their inheriting from others, whether their victims or not, would not arise.

38. As Mark Tushnet has pointed out to me, much would rest on just when a felon was deemed dead. If the felon were deemed dead at the moment of conviction, then the continue

property could have come into the possession of the felon between the time of the murder and the conviction. This would allow the property to pass on to the heirs of the felon (in the absence of special provisions about forfeiture to the state). If the felon were deemed to have predeceased the murder victim, then the property would pass on to the victim's heirs. It is not clear explicitly from the existing case law just which of these rules held, but the lack of cases in the law reports would seem to indicate that civil death was figured retroactively from the moment of the criminal action and not just prospectively from the moment of the conviction.

39. Forfeiture is of Saxon origin. Both real property and chattels were forfeited to the crown when a person was convicted of treason. Property escheated into the lands of the relevant lord when a person was convicted of a felony. The difference in the fate of property after treason and felony convictions of the legal possessor came about after attempts by the Crown to extend the forfeiture rule to felonies were blocked by baronial opposition; A. W. B. Simpson, A History of the Land Law , 2nd ed. (Oxford, 1986), 20. The doctrine of corruption of blood was introduced after the Norman Conquest. Simpson, writing about the doctrine of escheat following a felony, noted that "later, lawyers attributed the escheat in cases of felony to the curious and biologically absurd notion that the felon's blood was 'corrupted,' whatever that may mean, so that inheritance was impossible through him" (20).

40. Article 3, Section 3. The Article 3 provision about bills of attainder can be sharply distinguished from the Article 1 bans on the practice. Article 1, Section 9, provides that Congress shall pass no bills of attainder, and Article 1, Section 10, extends the same ban to states. These provisions were clearly designed to prevent legislatures from picking out individuals or groups for punishment without judicial trial; Cummings v. Missouri , 71 U.S. 277 (1867), and Ex Parte Garland , 71 U.S. 333 (1867). But the Article 3 provision, outlining the tasks and limits of courts, could hardly have been designed to prevent punishment by the judicial branch. Instead, the Article 3 provision limited the punishment that came with heinous crimes to deprivation of property within the lifetime of the person convicted . Once the convict died, the state could no longer hold the felon's property, but had to let the property pass on to heirs; Bigelow v. Forrest , 76 U.S. 339 (1869); and Wallach v. Van Riswick , 92 U.S. 202 (1876). This reversion avoided the sort of hereditary punishment that corruption of blood and forfeiture had effected in England, but the administrative difficulties of holding property until an uncertain time in the future was undoubtedly one factor contributing to the swift decline of forfeiture as a punishment. By the end of the nineteenth century, only three states, Delaware, Kentucky, and Pennsylvania, allowed forfeiture and corruption of blood during the life of the attainted person as the Constitution allowed. See Frederic Stimson, The Law of the Federal and State Constitutions of the United States with an Historical Study of their Principles, a Chronological Table of English Social Legislation, and a Comparative Digest of the Constitution of the Forty-Six States (Boston, 1908), § 142, p. 182.

41. Actually, the New York courts had a rough time with this. First, the chancellor ruled that civil death made someone absolutely unable to answer a suit in common law; Troup v. Wood , 4 Johns. Ch. 228 (1820). Then, when a similar matter involving the same parties arose again, the chancellor said that he had been wrong the first time and that the transaction in question happened before the statute of 1799, which explicitly required civil death to follow on conviction for felony. That being the case, the matter had to be settled by the rules of the ancient common law, which controlled the issue in New York before the 1799 statute was passed. According to those rules, civil death could only be "confined to the cases of persons professed, or abjured, or banished continue

[from] the realm" and so could not be conferred on someone convicted of a felony, who was still bound to answer a complaint; Platner v. Sherwood , 6 Johns. Ch. 118, 128 (1822). In cases arising under the statute of 1799, other New York courts ruled that a person who was civilly dead could not be recognized in law for purposes of defending a lawsuit; Graham v. Adams , 2 Johns. 408 (N.Y. 1801). Then, they ruled that the convict could be named as a defendant in an action by someone else even though he could not bring suit in court himself; Davis v. Duffee , 1 Abb. Dec. 486 (N.Y. 1855); Morris v. Walsh , 14 Abb. Pr. 387 (N.Y. 1862); Phelps v. Phelps , 7 Paige 150 (N.Y. 1838). When the Sixth District Supreme Court heard a civil case against a convict growing out of the criminal offense for which he was convicted ( Freeman v. Frank , 10 Abb. Pr. 370 [1860]), it seemed to hold that the immunity of convicts to being named as defendants in lawsuits was waivable by the convict. In this case, a rape victim filed a civil suit against the man who had raped her. He answered that he was civilly dead and so could not be sued, to which the court responded: "The fact that the defendant has answered, though by attorney, shows he is neither civilly nor physically dead. It is conclusive that he is living, and not under any disability that prevents him defending the action. The defendant, by answering, proves he is alive; and when he avers in his answer that he is dead, he is not to be believed" (372). The court ruled that civil death was demurrable in this case. So, while some cases allowed the convict to be sued, no case after the passage of the 1799 act allowed a convict to use the courts for his benefit. For another account of the history of the civil death fiction, see David Mellinkoff, The Language of the Law (Boston, 1963), 326-28 and 336-39.

42. In Re Deming , 10 Johns. 191 (N.Y. 1813), the state supreme court ruled that a man who had been convicted of circulating counterfeit money could be declared civilly dead, and his marriage was automatically dissolved. When Deming was pardoned, his status as father was restored, but he could not challenge the second marriage of his wife or the sale of his property by the administrators of his estate.

43. For discussions of the conditions involved in civil death and their variation across jurisdictions, see James John Lewis, "Convicts," Corpus Juris 13 (1917): 912-20; the annotation to Re Will of Marguerite Lindewall , 139 A.L.R. 1301 (1942); and the detailed summary of the doctrine in Judge Andrews's majority opinion in Avery v. Everett , 110 N.Y. 317 (1888).

44. The current New York Code § 79a still holds that "a person sentenced to imprisonment for life is thereafter deemed civilly dead," though the scope of civil death in most places has been cut back a great deal from what it had been in the nineteenth century: "A convict sentenced for a term less than life may forfeit all public offices and private trusts, but his civil rights are only suspended during the term. He does not lose citizenship, but merely some of his rights and privileges as a citizen. And many, though not all, of the latter are restored when the sentence has been served"; "Criminal Law," American Jurisprudence , 2nd ed., vol. 21A (1981), § 1023, pp. 566-67.

45. There is dictum in the New York case In the Matter of A. H. Garland , 32 How. Pr. 241, 251 (1865), to the effect that in the English common law "the party attainted lost all power to receive or give by inheritance." And Justice Field went on to say that the prohibition of such punishments under the federal Constitution were limited only to cases involving bills of attainder passed by legislatures. Though he does not say so explicitly, Justice Field seems to imply that courts can still inflict such punishment on those convicted of felonies or treason.

46. Wright v. Wright , 2 Desaus. (S.C.) 242 (1804).

47. Banishment was a punishment inflicted upon criminals requiring them to leave the continue

jurisdiction in which they had been convicted of a crime. Banished criminals were not allowed to return to this jurisdiction until the end of the sentence imposed. Convicts receiving life sentences were banished permanently from the state in which the conviction had occurred.

48. Wright v. Wright , 2 Desaus. (S.C.) at 244.

49. Murder in the second degree (defined as a "killing of a human being . . . when committed by design to effect the death of the person killed . . . but without deliberation and premeditation"; Penal Code of the State of New York in Force May 1, 1882 , § 184) was punishable by life imprisonment. Although Elmer was only sixteen years old when he poisoned his grandfather, children over twelve were considered capable of committing adult crimes and were, therefore, fit for adult punishment ( Penal Code 1882 , § 19). Although we do not know Elmer's sentence, we can guess that it was imprisonment for life.

50. Penal Code 1882 , § 708. The provision about civil death can be traced back to an act of 29 March 1799, though the 1799 provision, perhaps significantly, includes the phrase "civilly dead to all intents and purposes in the law"; Laws of the State of New York 1799 , chap. 57. That latter phrasing was changed in the revisions of 1813 when the "to all intents" clause was dropped.

51. Riggs v. Palmer , 115 N.Y. at 508.

52. 33 and 34 Vict. Ch. 23 (1870).

53. Avery v. Everett , 110 N.Y. 317 (1888).

54. Ibid. at 323.

53. Avery v. Everett , 110 N.Y. 317 (1888).

54. Ibid. at 323.

55. Judging that a case is one of first impression requires complicated interpretive judgments about how the facts of the present case differ from the facts in prior cases. But once the judgment has been made, cases that look superficially similar can be ignored.

56. New York had abolished the doctrine of forfeiture in March 1801 ( Laws of the State of New York , 24th session, chap. 60), but Andrews drew only on the English statutory history in his opinion. He nowhere mentioned that New York had abolished forfeiture long before England got around to it. But forfeiture involved turning over the property to the state, while the question in this case was whether property should be kept from passing to successors or heirs. A convict's will might take effect upon his civil death without running afoul of the prohibition against forfeiture. But Andrews did not recognize the difference between forfeiting property to the state and passing on property to heirs.

57. Avery v. Everett , 110 N.Y. at 332.

58. Ibid. at 334 (Earl, dissenting).

59. Ibid. at 335 (Earl, dissenting).

57. Avery v. Everett , 110 N.Y. at 332.

58. Ibid. at 334 (Earl, dissenting).

59. Ibid. at 335 (Earl, dissenting).

57. Avery v. Everett , 110 N.Y. at 332.

58. Ibid. at 334 (Earl, dissenting).

59. Ibid. at 335 (Earl, dissenting).

60. Re Donnelly , 125 Cal. 417, 419 (1899).

61. I use the term ordinary description to refer to the dominant convention for describing a particular state of affairs outside the legal community. There may be many descriptive conventions, and a sociology of description would want to examine these, but in the present analysis I have assumed that there is only one. My purpose here is to show the gap between legal and nonlegal discourses, leaving aside for the moment the question of the multiplicity of nonlegal discourses.

62. Some rules have this complicated form and do not involve fictions. For example, we could say: "If a person has killed someone intentionally, she has committed murder. And if she has committed murder, she is to be sentenced to prison for life." Murder in this construction operates just like the fiction in our example in the main text, intermediate between the legally relevant facts and the ultimate legal consequences. But murder is not a fiction because there is no gap between the legal description and ordinary description. break

63. It should be noted here that this construction could work perfectly well without the fiction. One could just say that if Elmer has murdered his grandfather and been sentenced to prison for life, he cannot inherit, leaving out the whole contortion of civil death. Just why the fiction is used anyway will be addressed later, as we discuss the use of fictions as organizing metaphors.

64. Riggs v. Palmer , 115 N.Y. at 508-9.

65. G. E. M. Anscombe, Intentions , 2nd ed. (Ithaca, N.Y., 1976), 86.

66. As A. W. B. Simpson has noted, "No word is immune from the hazard of legal definition, and once a word features in the formulation of a legal rule the danger is never far off; pass a Cats Act, and soon there is a legal concept of a cat"; "Analysis of Legal Concepts," 547.

67. "Macbeth does murther Sleepe, the innocent Sleepe"; William Shakespeare, Macbeth , 2.2.36. I am grateful to Robert Post for reminding me of this metaphor.

68. We have seen above, in note 62, that the term murder may have this character because it, too, can be seen to follow the form of a fiction: if A 1 (specific action of defendant), then A 2 (it is called murder). And if A 2 , then B (specified punishment). Murder is both a legal conclusion in the first part of the rule and a factual premise for the second part of the rule.

69. An example of a description that does not go beyond physics is given in J. H. Hexter's The History Primer (New York, 1971), 25-26: A father asks his son why he has come home all covered with mud. The boy offers the following description: "If a muddy area is entered at a relatively high velocity by a perpendicular rigid or semirigid object long in proportion to its base at point of contact, the base will accelerate more rapidly than the entry speed of the object. Consequently the center of gravity of the object will move in a downward and backward arc. . . . I am a semirigid body, and, when erect, have a height long in proportion to my base. . . . Given a few simple laws of classical mechanics, it follows that under the particular circumstances set forth I should end my motion recumbent in the mud." Clearly, this is unresponsive to the father's query, which is aimed at affixing blame for the result. In order for the description to be responsive, it must contain elements that have moral relevance, just as legal descriptions must include terms that are legally relevant.

70. This recalls Wittgenstein's comment, "Can I say 'bububu' and mean 'If it doesn't rain I shall go out for a walk'?"; Ludwig Wittgenstein, Philosophical Investigations , 3rd ed. (New York, 1968), 18. Before he asked that question, the answer had to be no. After he asked that question, the answer would almost certainly be yes. So, it can't be just the word itself that carries meaning, but the social practice of language that enables words to come to have new meanings.

71. Erving Goffman, Strategic Interaction (Philadelphia, 1969), 7.

72. Paul de Man's discussion of catachresis makes clear that old words are always taking on new meanings, which ring false at first until they come to be reliably recognized as having the new meaning. Then they are no longer thought to be abuses of language. See Paul de Man, "The Epistemology of Metaphor," in On Metaphor , ed. Sheldon Sacks (Chicago, 1978), 11-28, at 19-20.

73. Peter Seidman has pointed out to me that convicts might well find this talk of fictions strange. They might argue, from experience, that saying someone is civilly dead just is to indicate that the person is deprived of certain legally recognized rights. It is not a false representation, or a "let's pretend," that the person is actually dead. It is literally true that civil death has happened to convicts, that they are dead as far as civil society and its privileges go. On this view, civil death is a wholly different sort of entity than continue

natural death, pure and simple, and the modifier civil succeeds in describing a new factual state. But while a civilly dead person would probably not be mistaken for an actually dead person (and dead would not be taken as an accurate description of a convict), it is nevertheless an interesting judicial practice to describe a living convict as sort of dead, even though the legal term bears a distinctive linguistic tag. As I will argue later, what is going on here is the description of a new entity in terms of a familiar one, much like the process that happens in metaphor.

74. Implied invitations are commonly found in cases involving trespassing children. When nineteenth-century children trespassed onto a railroad's land and got mangled in railroad turntables, courts frequently found that the children were not trespassers at all but rather were on the railroad's property by the implied invitation of the railroad. Invitees are owed a greater duty of care, and this implied invitation made the railroad liable for the injuries of actually trespassing children. See, for example, Keffe v. Milwaukee RR Co. , 21 Minn. 207 (1875).

75. Constructive discharge is a term used in sexual harassment cases to describe the situation of a woman whose working conditions have become so intolerable due to the harassment of a supervisor or coworker that she quits. Though she has quit, the law finds that she has been constructively discharged or fired because it was the actions of others that led to her leaving her job. See Yates v. Avco , 819 F. 2nd 630 (6th Cir., 1987).

76. Juridical bays are bays invented by judges, usually according to some rule that specifies when indentations on a coastline are to count as a bay for the purposes of law. So, for example, in a case where the seaward boundary of New York State was at issue, the Supreme Court found that Long Island was a peninsula because it first declared Long Island Sound to be a juridical bay; United States v. Maine et al. , 469 U.S. 504 (1985).

77. "An implied contract is one not created or evidenced by the explicit agreement of the parties, but inferred by the law, as a matter of reason and justice from their acts or conduct"; Black's Law Dictionary , 4th ed. (St. Paul, 1968), 395.

78. In law, derelicts are abandoned or cast-off property. But sometimes ships, without actually being abandoned, are found to be no longer under the control of the crew, and the ships are then said to be quasiderelicts, even though they have not actually been abandoned; ibid., 530.

79. And so it should not be surprising that the facts presented by Riggs reached the Court of Appeals immediately after the civil death fiction was held not to extend to property rights. "Provision X," civil death, had kept cases like this from arising until the limits of civil death were made quite unclear by the English statute against forfeitures and by the New York court's decision in Avery .

80. I make this argument at greater length in Kim Lane Scheppele, "A Theory of Legal Interpretation: The Mutual Construction of Facts and Rules," in Legal Secrets: Equality and Efficiency in the Common Law (Chicago, 1988), 86-108.

81. Our third institutional appearance of the distinction between law and facts, separating the holding of a case from its associated facts, is an operation that is fraught with difficulty for the same reason that legal reasoning generally is. See, for example, Arthur L. Goodhart, "On Finding the Ratio Decidendi of a Case," Yale Law Journal 40 (1930): 161-83; and Edward Levi, An Introduction to Legal Reasoning (Chicago, 1949).

82. For an account of how this narrative construction process works in juries, see Lance Bennett and Martha S. Feldman, Reconstructing Reality in the Courtroom (New Brunswick, N.J., 1981). But as Kate Stith reminded me, juries rarely have an opportunity to explain what facts they did find and what narratives they thought persuasive. Jurors generally only report verdicts, and trial judges in deciding whether to set aside a ver- soft

dict or appellate judges in reviewing the case can only guess at the story the jury constructed. The jury's job of finding facts does not result in a statement of facts as seen by the jury, but the jury's factual findings are supposed to be given deference, even though judges don't know what they were. This assumes that judges can imagine how jurors could have reached those conclusions with that evidence and that judges can then give that imaginative product deference in later deliberations. The main exception to this, the special verdict, allows juries to report their conclusions about specific facts, but it is not often used.

83. Juries don't actually provide a coherent account of what they found. Jurors may be interviewed by journalists after the fact (and so nonjurors may get some ideas about their findings that way), but there is no written record of the facts that the jury found to be true or false, nor is there a written account of the narrative that the jurors constructed. The standard practice in figuring out what a jury found is to assume that all doubts in the evidence were resolved in favor of the party the jury picked to win. But this process of reconstruction by judges itself provides substantial freedom in casting facts. And this may be where the ideals embedded in institutional design and the practice in operation come apart.

84. Judges also can be expected to have general social background knowledge, too, and sometimes they take it into account through the provisions for judicial notice.

85. This description does not imply that courts always work in this idealized way. Because juries don't leave records of their deliberations and conclusions, there is a great deal of room for judges, particularly on appeal, to recast the facts without this constraining influence of multiple value systems. But the institutional design seems constructed so that ordinary descriptive practice works its way into law, and it is that design that I am trying to "read" here.

86. Even the transformation produced by literal death is often accompanied by important social rituals in contexts where death is routinized. See David Sudnow, Passing On (New York, 1971).

87. Hales v. Hales , 307 A. 2nd 657 (1965). On appeal, however, the court ruled that though this was a case of constructive desertion, the husband had left for two years without making an attempt to contact his wife during that time. Because he did so, he was held to have "impliedly consented" to the separation, which made it no longer grounds for divorce. In tangled discussions like this, it's hard to see how ordinary discourse could follow along.

88. Jeremy Bentham was the most virulent critic of fictions, captured in his writing: "Fictions of use to justice? Exactly as swindling is to trade"; Rationale of Judicial Evidence , ed. John Stuart Mill, vol. 4, book 8 (London, 1827), 300. And in his criticism of lawyers' use of fictions, Bentham wrote: "They feed upon untruth, as the Turks do upon opium, at first from choice and with their eyes open, afterwards by habit, till at length they lose all shame, avow it for what it is, and swallow it with greediness, not bearing to be without it"; A Comment on the Commentaries , ed. J. H. Burns and H. L. A. Hart (London, 1977), 58-59.

89. "This maxim is invariably observed, that no fiction shall extend to work an injury; it's [ sic ] proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law"; William Blackstone, Commentaries on the Laws of England , vol. 3 (Chicago, 1979), 43.

90. Ellerson v. Westcott , 148 N.Y. 149 (1896).

91. Ibid. at 154.

90. Ellerson v. Westcott , 148 N.Y. 149 (1896).

91. Ibid. at 154.

92. Note the similarity between this solution and the one adopted in 33 and 34 Vict. Ch 23 (1870). There, convicts were allowed to keep property, but all control over the continue

property was given over to an administrator. Judge Andrews seemed quite generally impressed with the English solution on this question.

93. Beatty v. Guggenheim , 225 N. Y. 380, 396 (1919).

94. See George Gleason Bogert and George Taylor Bogert, The Law of Trusts and Trustees (St. Paul, 1987), § 478.

95. Uniform Probate Code , §§ 2-803 (emphasis added). break

The Placement of Politics in Roberto Unger's Politics

1. G. W. F. Hegel, Philosophy of Right , trans. T. M. Knox (London, 1952), § 279A.

2. See, e.g., Mark Kelman, A Guide to Critical Legal Studies (Cambridge, Mass., 1987), 3; Duncan Kennedy, "The Structure of Blackstone's Commentaries," Buffalo Law Review 28 (1979): 205-382; Patrick Monahan, "The ' Rights ' Stuff: Roberto Unger and Beyond," Texas Law Review 62 (1984): 1477-1539, 1483-84.

3. See, e.g., Martin Heidegger, Nietzsche , vol. 3, The Will to Power as Knowledge and as Metaphysics , trans. Joan Stambaugh, David Farrell Krell, and Frank A. Capuzzi (San Francisco, 1987), 174:

Truth has established itself as the securing of beings in their perfectly accessible disposability. That transformation ordains the prepotence of beingness . . . as malleability. Beingness as malleability remains at the beck and call of that Being which has released itself into sheer accessibility through calculation, into the disposability of the beings appropriate to it by way of unconditioned planning and arranging.

This was written in 1939. The question, alive today, of the possible internal relations between Heidegger's writing and National Socialism, is, in its form, parallel to the question I ask about Unger. Starting from Unger's explicit political program (Superliberalism), I interrogate in this paper its internal relations with metaphysics. (I say "in its form" to dispel the implication of a parallel between National Socialism and Superliberalism.)

4. See, e.g., Charles Davis, "Religion and the Making of Society," Northwestern University Law Review 81 (1987): 718-31; cf. Stanley Fish, "Unger and Milton," Duke Law Journal , 1988, no. 5:975-1012, 992.

5. Drucilla Cornell, "Beyond Tragedy and Complacency," Northwestern University Law Review 81 (1987): 693-717.

6. It is worth asking whether, if we do recognize in these distinctions the description of continue

something unsatisfying, we do not also sometimes feel dissatisfaction in something that could be described as their insufficient distinctness.

7. The tone and language of the network news commentary on the momentous events occurring in Eastern Europe as I write this—events that will bear on this question—can convey the impression that there are, indeed, two basic possible types of social structure, and that to constitute or carry on a polity is to plump for one and play by its rules.

8. Cf. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London, 1985).

9. But are the concepts "fact," "value," "reason," "self," and so on themselves fixed enough to give us a purchase on the epoch of liberalism? Is thinking that they are Platonism?

10. Michael Walzer, "Interpretation and Social Criticism," in The Tanner Lectures on Human Values (Salt Lake City, Utah, 1988), 17.

11. Immanuel Kant, Critique of Pure Reason , trans. Norman Kemp Smith (New York, 1965), B145; Aix; Axi-xii; B295; B867.

Consider how Kant indicates that it is not possible in philosophy to have a "different opinion " (Axvii; Kant's emphasis), error—this may be part of the thought—amounting to emptiness, illusion, or nonthought altogether; any "hypothesis is to be treated as contraband" and "forthwith confiscated" (Axv). Are the police entering the courtroom? Wittgenstein is inheriting Kant, I take it, when he says that "it would never be possible to debate [theses] because everyone would agree to them." The question then, from Wittgenstein's perspective, might be what sense it makes to outlaw or prohibit that which already cannot be done—a question already lurking in the words that Wittgenstein says might sum up the whole sense of the Tractatus Logico-Philosophicus : "What we cannot talk about we must pass over in silence." Is something prohibited here? Or is this a tautology? (Parallel to Unger's politicization of Kant's metaphor, I suppose, is his more recent discovery in "Wittgenstein's late philosophy" of a politically conservative "alternative view" to his own—one that "begins with disbelief in . . . the naturalistic thesis" but "combines cognitive skepticism and social dogmatism" ( Passion , 11). One can only surmise the influence here (I won't pause to ask how successful) of Saul Kripke's communitarian skeptic—strange business for a theorist worried about the autonomy of his criticism.)

12. See Otto Neurath, "Protokolsätze," Erkenntnis 3 (1932): 204-14.

13. Henry David Thoreau, Civil Disobedience , ed. Sherman Paul (Boston, 1960); Walden , ed. Walter Harding (New York, 1963).

14. The idea of autonomy as the condition of radical criticism is evidently capable of being put, at any rate, to the most varied of political uses . It may be coupled, for example, with the conviction that certain theoretical questions are inconsistent with the stable inheritance of a political culture. I am thinking here of Edmund Burke's valorization of the socially established and entrenched, his rejection of what he calls "political metaphysics" in declaring, against the rewriting of the social constitution going on in France, that "all the [possible] reformations . . . hereafter, will be carefully formed upon analogical precedent, authority, and example"—a lawyerly voice. Burke, Reflections on the Revolution in France , ed. F. G. Selby (London, 1930), 64, 34.

15. In Thoreau's sentence, one rests outside the institution—a darker thought, perhaps, than some have wanted to find there.

16. See Richard Rorty, "Unger, Castoriadis, and the Romance of a National Future," Northwestern University Law Review 82 (1988): 325-51. break

17. The second volume, under the heading "Freedom," indexes, less formally, "trashing the script" ( ST , 642).

18. Unger's sentence reads "the contrast of legal reasoning to ideology, philosophy, and political prophecy." I am leaving out "philosophy" here because it would become ambiguous in the text of my discussion. No harm is done, however, because it is clear that in Unger's text the word philosophy is nearly synonymous with ideology —at least it is certainly not what Hegel means by a "philosophy" of right. For the contemporary defense of "formalism" in legal thought that inherits its understanding from Hegel, see Ernest Weinrib, "Legal Formalism: On the Immanent Rationality of Law," Yale Law Journal 94 (1988): 949-1016. Weinrib, it may be noted, takes Unger's "critique of formalism" as the clearest countervailing position to his own.

19. See, e.g., ST , 23, 81, 83, 169; FN , 97, 248, 277, 317, 334, 348, 397, 431; Passion , 4.

20. Since texts are not "identical" to marks or sounds or to anything else nonsemantic, there is some pressure, evidently, to "identify" texts with an intention or meaning—as do, e.g., Steven Knapp and Walter Benn Michaels, "A Reply to Our Critics," in Against Theory: Literary Studies and the New Pragmatism , ed. W. J. T. Mitchell (Chicago, 1985), 95, 102; "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49-59. To me, it seems that the concept of "a text" is so murky to begin with that it is probably not worth talking about its "identity" at all.

21. Perhaps the nation's poem only becomes legible as the report of philosophy at the close of dusk when a "form of life" grows old.

22. The same modal ambiguity seems to vitiate Unger's rejection of a "natural context." "A context" is said to be "natural if it allows those who move within it to discover everything about the world that they can discover" ( Passion , 5). In a robust sense of can , every context would be natural on this definition.

23. See Stanley Fish, Is There a Text in This Class?: The Authority of Interpretive Communities (Cambridge, Mass., 1980), as well as his article "Unger and Milton."

24. I am indebted for this phrase and my understanding of the thought it represents to Stanley Cavell, "The Availability of Wittgenstein's Later Philosophy," in Must We Mean What We Say: A Book of Essays (Cambridge, 1976).

25. Compare Ludwig Wittgenstein, Philosophical Investigations , trans. G. E. M. Anscombe (New York, 1958), 230.

26. Ibid., § 500, p. 139.

25. Compare Ludwig Wittgenstein, Philosophical Investigations , trans. G. E. M. Anscombe (New York, 1958), 230.

26. Ibid., § 500, p. 139.

27. Friedrich Nietzsche, The Will to Power , trans. Walter Kaufmann and R. J. Hollingdale (New York, 1968), § 909.

28. Duncan Kennedy, "The Structure of Blackstone's Commentaries," Buffalo Law Review 28 (1979): 205. Why "contradiction"? Perhaps this is meant to bring out that the conflict between self-assertion and engagement with others is, as Unger rightly says, "a tension between the conflicting demands of self-assertion themselves" ( CLSM , 93), and hence not adequately thematized by the familiar opposition of "liberty" to the claims of the collectivity.

29. I don't doubt that Kennedy has something else to say; the present point is that it involves some premise other than a description of human sociability. What is this premise?

30. David Hume, A Treatise of Human Nature , ed. L. A. Selby-Bigge (Oxford, 1978), 495.

31. Cf. note 59 below.

32. Friedrich Nietzsche, Thus Spake Zarathustra , trans. R. J. Hollingdale (London, 1961), 83.

33. But Unger correctly mentions the name given by literary tradition to the undefined, comedic transformation of the conditions of personality, speaking already in his first continue

paragraph of "the attraction death exercises over life." "Death" is traditionally such an uninterpreted concept. Cf. Richard Wolheim, The Thread of Life (Cambridge, Mass., 1984), 260.

34. See also CLSM 5, 14, 89, 114, 116, 117; FN , 40.

35. See also CLSM , 91; ST , 149; FN , 355-56, 359. Unger's "internal development" requires holism: we must understand the political morality of liberalism as intimately related to political experience in its (often conflictual) variation and detail. We cannot begin by elucidating political concepts and only later turn to working out their doctrinal application.

36. Can this mean something more than thin descriptions of the practices that set up empowered states and legal systems?

37. John Rawls, A Theory of Justice (Cambridge, Mass., 1971), 5, 9.

38. Rawls writes: "The concept of justice I take to be defined, then, by the role of its principles in assigning rights and duties and in defining the appropriate division of social advantages. A conception of justice is an interpretation of this role"; ibid., 10.

39. John Rawls, "Justice as Fairness: Political Not Metaphysical," Philosophy and Public Affairs 14 (1985): 223-57.

40. On the constructive yield of negative or skeptical argument, note also FN , 580, 589, 572-73, 531-32, 558, 360-61; ST , 46, 3, 9.

41. See, e.g., Paul Brest, "The Substance of Process," Ohio State Law Journal 42 (1981): 131-85, 140: "Instances of representation-reinforcing review demand value judgments not different in kind or scope from the fundamental values sort."

42. The ruler, Thrasymachus says, unless he is a "simpleton," has reason to seek only his own advantage; Plato Republic 349B-C, in The Collected Dialogues of Plato , ed. and trans. Edith Hamilton and Huntington Cairns (Princeton, N.J., 1961).

43. See also FN , 9, 13, 59, 229, 244, 249, 279, 280, 290, 291, 297, 334; ST , 5, 7, 155-56, 198, 210; CLSM , 26, 33-34, 37, 93; PP , 1.

44. This is analogous to the way that for Richard Posner wealth maximization (Kaldor-Hicks efficiency) is explanatory of common law doctrine; see "A Theory of Negligence," Journal of Legal Studies 1 (1972): 29-96.

45. See CLSM , 57-88. Cf. John Finnis, "On 'The Critical Legal Studies Movement,'" in Oxford Essays in Jurisprudence , 3rd. ser., ed. John Eekelaar and John Bell (Oxford, 1987), 162: "Is not loyalty a strange name on the lips of those dedicated to the permanent revision of all confining social structures, all schemes of division and hierarchy?"

46. Freud found the opposite "quite apparent":

Order is a kind of repetition-compulsion by which it is ordained once for all when, where and how a thing shall be done so that on every similar occasion doubt shall be avoided. The benefits of order are incontestable: it enables us to use space and time to the best advantage, while saving expenditure of mental energy. One would be justified in expecting that it would have ingrained itself from the start and without opposition into all human activities.

Sigmund Freud, Civilization and Its Discontents , trans. Joan Riviere (London, 1946), 55-56.

47. Stanley Fish has made an epistemological version of the same point: "The attribution of openness and freedom to one social or mental structure relative to others would itself have to be made from within one of those structures, and therefore it would not be accepted by someone who was hearing it from within the assumptions of some other structure"; "Unger and Milton," 999-1000. But this does not appear to support his continue

conclusion that "all contexts are equally (if differently) constraining" (ibid., 11), only the weaker conclusion that judgments about relative constraint must be made within a particular context and may be challenged from the assumptions (aims, interests) of a different context. Moreover, if openness-judgments "have to be made" from within a structure with its own assumptions about (what counts as) openness, it is hard to see from what standpoint Fish can himself make the judgment that "all contexts are equally constraining."

48. Unger recognizes that "by its very existence, a [set of institutional arrangements] excludes other constitutional arrangements. By excluding other such schemes, it also rules out certain modes of practical or passionate association that people may come to want. No constitutional system can be perfectly elastic in relation to all possible instances of collective life" ( FN , 461; see also 312, 325, 250).

49. This kind of objection is represented by Jeff Powell, who finds the whole ideal unattractive; see "The Gospel According to Roberto: A Theological Polemic," Duke Law Journal 1988, no. 5: 1013-28.

50. Nietzsche, Thus Spake Zarathustra , 86.

51. Hegel, Philosophy of Right , § 35A, p. 235.

52. See Hume, Treatise of Human Nature , 254, 259.

53. Karl Marx, "Economic and Philosophical Manuscripts," in Selected Writings , ed. David McLellen (Oxford, 1977), 82; Friedrich Nietzsche, Beyond Good and Evil , ed. and trans. Walter Kaufmann (New York, 1966), 74; Sigmund Freud, The Interpretation of Dreams , in The Standard Edition of the Complete Psychological Works of Sigmund Freud , ed. and trans. James Strachey, 24 vols. (London, 1953-74), 5:613-14; quoted in Stanley Cavell, "Freud and Philosophy: A Fragment," Critical Inquiry 13 (1987): 386, 390-91; Jacques Lacan, The Four Fundamental Concepts of Psycho-Analysis , trans. Alan Sheridan (New York, 1978), 36, 49, 53, 59, 60.

54. Hegel, Philosophy of Right , § 37A, p. 235.

55. J. L. Mackie, "Can There Be a Right-Based Moral Theory," Midwest Studies in Philosophy 3 (1978): 350.

56. Compare CLSM , 103-5.

57. See, e.g., Joseph Raz's criticism of Mackie in The Morality of Freedom (Oxford, 1986) 203-7.

58. For similar reasons the libertarian may wish to see rights as "side-constraints" on the pursuit of value, grounded in some non-negotiable property of personality, like "the capacity to shape one's life." See Robert Nozick, Anarchy, State, and Utopia (New York, 1974), 50. There would seem to be problems with this particular suggestion that derive from ambiguity about its status. As an empirical property, there is every reason to believe that under an unrestricted regime of liberty rights, many people would lack it.

59. Note also that disagreement about ends is always an essential possibility for personality. Hence even in a situation of perfect harmony (some group ideally linked in wishing each other's well-being), the nature of personality permits us, on this account, to ask what persons would be entitled to if they should fall out with one another. The (Humean) thought that we cannot apply the concept of justice (or injustice) to harmonious situations seems to suppose that in assessing the justice of a situation we take account only of what is indicatively true of present relationships—a sort of suppression of modality . The importance of this modal element is suggested by Hegel: "Right is nothing but a bare possibility and, at least in contrast with the whole range of the situation, something formal. . . . To have a right gives one a warrant, but it is not absolutely necessary that one should insist on one's rights, because that is only one aspect of the situation"; Philosophy of Right , § 37A. Contrast with this the claim that continue

"the adversarial presuppositions of a framework of rights will be out of place . . . in a condition of complete interpersonal harmony"—for example, where "communities are united around . . . a common goal"; L. W. Sumner, The Moral Foundation of Rights (Oxford, 1987), 210-11. If right can exist as a modality of personality without being insisted on, so, too, rights not insisted on in situations of harmony need not be, as Sumner says, "out of place." The place of right, one might say, is the space of possibility. Compare Jeremy Waldron, "When Justice Replaces Affection: The Need for Rights," Harvard Journal of Law and Public Policy 11 (1988): 625-47.

60. Nietzsche, Will to Power , § 25, p. 18.

61. I owe a debt to Ernest Weinrib for helping me to understand this part of the argument. See his review, "Enduring Passion," Yale Law Journal 94 (1985): 1825-41.

62. See Passion , vii; FN , 350-51; ST , 42, 15, 16; CLSM , 94-95; FN , 350, 351, 353. My own view is that the fact/value distinction (or rather bundle of distinctions) is much more obscure than the problem I am raising. Nor do opinions on it reliably divide liberals and their critics. Anyone tempted, for example, to say that liberals are skeptics about values should review the work of Ronald Dworkin or Thomas Negel.

63. When I claimed in a recent talk that Unger's Superliberalism was inheriting the thematics of Kantian liberalism, an objection came from my audience that Unger wasn't Kantian at all but Nietzschean. I found this astonishing because it implied not only that we can confidently calculate the difference, but that we know what a political translation of Nietzsche would involve—something I can't begin to see, something, I am inclined to say, that responsiveness to Nietzsche's writing requires that we doubt. Under such qualifications, I agree that it is Nietzsche who first deeply encounters some of the problems in Unger's text, wrestles with them, and teaches them to a secular culture as the ( end-less ) self-overcoming of the human: "O my friend, man is something that must be overcome"; Thus Spake Zarathustra , 83. But this is Zarathustra's inverted version, his inversion, of Wittgenstein's " must remain silent." It forces us to ask, again, whether anything is being articulated or prohibited in what has the form of a law or a prohibition. (Perhaps it is not a prohibition but a prayer.) Indeed, the friend who Nietzsche invokes and in whose name a necessity is announced encodes this very problematic. It is a friend who knows liberal legality, the difference, say, between tyranny, love, and justice ("Are you a slave? If so, you cannot be a friend. Are you a tyrant? If so, you cannot have friends"). But the liberal friend is, for Nietzsche, a friendship of which we are not yet capable ("Which of you is yet capable of friendship?"), and also, evidently, the name of the grammatical "we," the human turning-together in language that, as the prior condition of all political discourse, makes it possible for Nietzsche to address all of "us"—his readers—as friends ("O my friend"). Such matters are richly explored by Jacques Derrida's "The Politics of Friendship," Journal of Philosophy 11 (1988): 632-44, an essay from which my own thoughts, here and elsewhere in this paper, have benefited. I owe a more general debt to James Conant's unpublished reading of Nietzsche's "Schopenhauer as Educator," which discusses the difficulties with some straightforwardly political applications of Nietzsche's moral perfectionism. Conant's paper is largely indebted to recent work of Stanley Cavell's. See Conditions Handsome and Unhandsome (Chicago, 1990) from which the theme of "moral perfectionism" derives.

That the necessity of "overcoming" establishes itself in Zarathustra's cry in the name of a relationship that is at once prior, present, and future, begins to indicate the obscurity of any attempt to refigure it politically as "revisability." If Zarathustra still speaks of "a goal for humanity" (the one goal) as "humanity itself," Nietzsche later comments that, when one represents matters in this way, "it seems impossible that 'goal-lessness' is the principle of our faith"— faith , as if a severe split were redeter- soft

mining itself between (call it) politics and prayer. Some passages from Heidegger's interpretation of Nietzsche are worth summoning at this point, because they both clearly anticipate in their language what in Unger is a political rhetoric , and force upon us, I think, the question of whether such a rhetoric can be placed or projected politically at all:

The proper subject of will to power is permeated by an essential counterwill that is opposed to all fixity, a counterwill that characterizes the very essence of power.

As overpowering [will to power] is continually underway toward its essence. It is eternally active and must at the same time be end-less, insofar as "end" means a state subsisting independently outside it.

If in the midst of being, which in general is end-less . . . the new kind of man wills himself and in his own way wills an end, he must necessarily will the overman.

Heidegger, Nietzsche , 3:173, 211, 226. The last of these sentences is particularly interesting because it appears to recover "overcoming" under the description "willing an end," encouraging us to feel, as I say in the text, the indebtedness of overcoming (hence the indebtedness of Unger's political "revisability") to Kantian liberalism. Again, Nietzsche's—for me still immeasurable—inheritance of Kant is evident. Zarathustra: "Can you furnish yourself with your own good and evil and hang up your own will above yourself as a law?"; 89.

64. A formula: proceduralism is autonomy in political translation--the social will that wills itself. On these Hegelian themes I have benefited from Charles Taylor, Hegel (Cambridge, 1975), 365-427.

65. Hegel, Philosophy of Right , § 5.

66. Heidegger's phrase; see note 63 above.

67. Again, I feel this question refracting itself through the lens of Heidegger's confrontation with Nietzsche. In 1944-46 Heidegger writes: "All transcendence, whether it be ontological or theological, is represented relative to the subject-object relation. . . . It makes no difference in the essence of this fundamental metaphysical position concerning the human existence whether man takes that transcendence seriously as 'providence' for his religious subjectivity or takes it merely as a pretext for the willing of his self-seeking subjectivity"; see Nietzsche , vol. 4, Nihilism , trans. Frank A. Capuzzi and David Farrell Krell (San Francisco, 1982), 234.

68. This irony is perhaps only the result of the misunderstanding at work when a (much noted) indeterminacy of result is taken as a defect in legal argument, rather than as an essential feature of legal , as opposed to some other form, of argument—say, policy, where once a goal (or mix of goals) is posited, determinate calculations can in principle be made. But this is for another essay.

69. Not, apparently, to ask whether any of this is true or valid , for then "we" would catch ourselves in the surprise, the bewitchment, of a fiction that is neither true nor false, or of a grammar that is the prior condition of there being any truth or falsity, validity or invalidity at all. Perhaps we must remain (essentially) on the edge.

70. See note 63 above.

71. "Which side are you on?"—this question seems inevitable in the climate of the current institutional controversies surrounding Unger's work. From this perspective, the difficulty would be to see how it can be asked or answered at all. One might as well ask which side Unger is on. break

Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777–1793

1. Michel Foucault, "What Is an Author?" in Textual Strategies: Perspectives in Post-Structuralist Criticism , ed. Josué V. Harari (Ithaca, N.Y., 1979), 141-60; originally published in 1969. For its influence in critical debates, see Harari, Textual Strategies ; Peggy Kamuf, "Criticism," and the response by Nancy K. Miller, "A Feminist Critic and Her Fictions," Diacritics 12, no. 2 (1982): 42-53; and Biddy Martin, "Feminism, Criticism, and Foucault," New German Critique 27 (1982): 3-30. For its impact in orienting historical research, see Martha Woodmansee, "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author,'" Eighteenth-Century Studies 17, no. 4 (1984): 425-48; Molly Nesbitt, "What Was an Author?" Yale French Studies 73 (1987): 229-57; Mark Rose, "The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship," Representations 23 (1988): 51-85; and Carla Hesse, "Reading Signatures: Female Authorship and Revolutionary Law in France, 1750-1850," Eighteenth-Century Studies 22, no. 3 (1989): 469-87.

2. The formulation is Peggy Kamuf's; "Criticism," 45. Appearing almost simultaneously continue

with Foucault's essay, the other key theoretical contribution to this discussion was Roland Barthes's essay "The Death of the Author," in Image-Music-Text , ed. and trans. Stephen Heath (New York, 1977), 142-48 (first published in 1968). See also Jacques Derrida's contribution in "Signature Event Context," Glyph 1 (1977): 172-97, esp. 180-83 and 193 (originally published in 1972); and Derrida, "Limited Inc abc . . . ," Glyph 2 (1978): 162-251, which explicitly problematizes the issue of authorial claims through the mechanism of copyright. These essays have been recently reprinted in Derrida, Limited Inc (Evanston, Ill., 1988).

3. Foucault, "What Is an Author?" 141, 159.

4. Woodmansee, "Genius and Copyright," 426.

5. Rose, "Author as Proprietor," 56.

6. Jane C. Ginzburg, "A Tale of Two Copyrights: Literary Property in Revolutionary France and America" (Paper presented at the Library of Congress Symposium on Publishing and Readership in Revolutionary France and America, May 1989), cited with permission of the author. Ginzburg's purpose in characterizing this conventional view of French copyright theory, it should be noted, is to take issue with it. For an introduction to the French tradition of legal interpretation of "author's rights," see Henri Desbois, Le Droit d'auteur en France , 3rd ed. (Paris, 1978); and Claude Colombet, Propriété littéraire et artistique , 2nd ed. (Paris, 1980).

7. Alain Viala's Naissance de l'écrivain: Sociologie de la littérature à l'âge classique (Paris, 1985) deals exclusively with the seventeenth century. Similarly, Robert Darnton's work on French writers in the eighteenth century does not extend into the revolutionary period. See Darnton, The Literary Underground of the Old Regime (Cambridge, Mass., 1982); and The Great Cat Massacre (New York, 1984). The recent appearance of Robert Darnton and Daniel Roche, eds., Revolution in Print: The Press in France, 1775-1800 (Berkeley, 1989), has remedied this situation to some extent. But it too contains no sustained examination of the problem of authorship. Two specialized studies deserve special note for their contribution to the history of authorship and publishing during the Revolution: Robert Darnton, The Business of Enlightenment: A Publishing History of the "Encyclopédie," 1775-1800 (Cambridge, Mass., 1979); and Gary Kates, The "Cercle social," the Girondins, and the French Revolution (Princeton, N.J., 1985).

8. Roger Chartier and Henri-Jean Martin, eds., Histoire de l'édition française , vol. 2 (Paris, 1983). A recent effort to redress this lacuna has been made by Jean-Claude Bonnet, ed., La Carmagnole des muses: L'Homme des lettres et l'artiste dans la Révolution (Paris, 1989).

9. See Henri-Jean Martin, Livre, pouvoirs, et société à Paris au XVIIe siècle (Geneva, 1969); François Furet, "La Librairie du royaume de France au 18e siècle," in Livre et société dans la France du XVIIIe siècle , ed. Furet (Paris, 1965); and especially Chartier and Martin, Histoire de l'édition française .

10. For the text of the six decrees of 1777 see Athanase Jean-Léger Jourdan, Decrusy, and François-André Isambert, eds., Recueil général des anciennes lois françaises , 29 vols. (Paris, 1826), 25: 108-23.

11. Communauté des libraires et imprimeurs de Paris, Code de la librairie et imprimerie de Paris . . . arrêté au Conseil d'état du roi le 28 février, 1723 . . . (Paris, 1744).

12. For a full discussion of the history of literary "privileges" under the Old Regime, see Augustin-Charles Renouard, Traité des droits d'auteur dans la littérature, les sciences, et les beaux-arts , vol. 1 (Paris, 1838), 106-93; and Henri-Jean Martin, "Conditions politiques: La Librairie et les pouvoirs," in Chartier and Martin, Histoire de l'édition française , 2:64-93. For discussions of the origins and history of legal theories of claims upon ideas and texts, and upon their transmission, under the Old Regime see Gaines continue

Post et al., "The Medieval Heritage of a Humanistic Ideal: Scientia Donum Dei Est, Unde Vendi Non Postest," Traditio 11 (1955): 195-235; Natalie Z. Davis, "Beyond the Market: Books as Gifts in Sixteenth-Century France," Transactions of the Royal Historical Society , 5th ser., 33 (1983): 69-88; and Raymond Birn, "The Profit in Ideas: 'Privilèges en librairie' in Eighteenth-Century France," Eighteenth-Century Studies 4, no. 2 (1971): 131-68.

13. For further discussion of the social and economic realities of authorship in the seventeenth and eighteenth centuries see Viala, Naissance de l'écrivain ; Martin, Livre, pouvoirs, et société ; and Darnton, Literary Underground of the Old Regime .

14. Martin, Livre, pouvoirs, et société ; Martin, "Le Prééminence de la librairie parisienne," in Chartier and Martin, Histoire de l'édition française , 2:262; and Birn, "Profit in Ideas."

15. This was Nicolas Fontaine's Histoire du vieux et nouveaux testament (Paris, 1670); the case is cited by Birn, "Profit in Ideas," 139.

16. "C'est le fruit d'un travail qui lui est personnel, dont il doit avoir la liberté de disposer à son gré"; cited by Birn, "Profit in Ideas," 144. All translations are my own unless otherwise noted.

17. Rose makes a similar observation about the source of property arguments in the English context; "Author as Proprietor," 56.

18. Malesherbes, the director of the Royal Administration of the Book Trade between 1750 and 1763, advanced arguments for revising the code of the book trade to allow authors to publish and sell their own works, rather than to require them to use licensed publishers and booksellers, in his "Quatrième mémoire sur la librairie: Sur les réglements à faire pour empêcher l'impression, le commerce, et l'introduction des livres défendus," written sometime between 1750 and 1764 and first published in Chrétien-Guillaume Lamoignon de Malesherbes, Mémoires sur la librairie et sur la liberté de la presse (Paris, 1809), 175-78. Notes for a second memorandum, advancing similar arguments, were written by François Marin, general secretary of the book trade, at the request of Joseph d'Hemery, inspector of the book trade in Paris and submitted to the new director of the Royal Administration of the Book Trade, Sartine, in 1764; see Marin, "Représentations et observations en forme de mémoire sur l'état ancien et actuel de la librairie et particulièrements sur la propriété des privilèges, etc., présentées à M. Sartine par les syndic et adjoints, et en marge les observations que M. Marin a faites sur chaque article, d'après les notes instructives que je [d'Hemery] lui ai remises par ordre du magistrat," March 1764, Fond français 22183, Bibliothèque nationale; cited by Birn, "Profit in Ideas," 153-54.

19. Jourdan et al., Recueil général , 25:108.

20. Denis Diderot, Oeuvres complètes , 15 vols. (Paris, 1970), 5:331.

21. For a more extensive treatment of the complex subject of Diderot's epistemology, its relation to the development of French aesthetic theory, and the idea of authorial originality in particular, see Jacques Chouillet, La Formation des idées esthétiques de Diderot (Paris, 1973), esp. 403-17; Chouillet, L'Esthétique des Lumières (Paris, 1974), 73-82 and 120-25; and Roland Mortier, L'Originalité, une nouvelle catégorie esthétique au siècle des Lumières (Geneva, 1982), 153-63. The renaissance origins of the idea of authorial originality are treated extensively in David Quint, Origin and Originality in Renaissance Literature (New Haven, 1983). The standard work on the epistemology of the French Enlightenment is Ernst Cassirer, The Philosophy of the Enlightenment (New York, 1964). For a discussion of the complexities of Diderot's epistemological stance in relation to both Locke and Descartes, see Robert Darnton, "Philosophers Trim the Tree of Knowledge: The Epistemological Strategy of the Encyclopédie ," Great Cat Massacre , 191- hard

214. Both Rose and Woodmansee note the contribution of the idea of authorial "originality" to arguments for authors' property rights in Germany and England; see Woodmansee, "Genius and Copyright," 427; and Rose, "Author as Proprietor," 56.

22. Diderot, Oeuvres complètes , 5:349.

23. Simon-Nicolas-Henri Linguet, Mémoire sur les propriétés et privilèges exclusifs de la librairie: Présenté en 1774 (n.p., n.d.); cited in Renouard, Traité des droits d'auteurs , 175. For further discussion of Linguet's views on the organization of the book trade, see also his Mémoire signifié pour le sieur Luneau de Boisgermain, défendeur, contre les syndic et adjoints des libraires et imprimeurs de Paris, demandeurs (Paris, 1769).

24. Elisabeth Badinter and Robert Badinter, Condorcet: Un Intellectuel en politique (Paris, 1988), 99-142.

25. I have been unable to find any earlier reference to the pamphlet, Fragments sur la liberté de la presse , than the edition of Marie-Jean-Antoine Caritat, marquis de Condorcet, Oeuvres complètes , ed. M. F. Arago, 12 vols. (Paris, 1847), 11:257-314. Arago provides the date 1776, but without explanation. The text is mentioned in neither Keith Michael Baker's Condorcet: From Natural Philosophy to Social Mathematics (Chicago, 1975), nor the most recent biography by Badinter and Badinter, Condorcet . Nina Ratner Gelbart, however, notes that Condorcet contributed a series of articles, including one on the freedom of the press, to the Journal des dames in the later half of 1775. The Fragments , however, are clearly too extensive to have been intended only for publication as a journal article; see Gelbart, Feminine and Opposition Journalism in Old Regime France: "Le Journal des dames" (Berkeley, 1987), 229.

26. Condorcet, Oeuvres complètes , 11:294.

27. For the most definitive treatment of the intellectual origins, character, and development of Condorcet's epistemology, see Baker, Condorcet .

28. Condorcet, Oeuvres complètes , 11:308-11.

29. Ibid.

30. Ibid.

31. Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; "Genius and Copyright," 440.

28. Condorcet, Oeuvres complètes , 11:308-11.

29. Ibid.

30. Ibid.

31. Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; "Genius and Copyright," 440.

28. Condorcet, Oeuvres complètes , 11:308-11.

29. Ibid.

30. Ibid.

31. Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; "Genius and Copyright," 440.

28. Condorcet, Oeuvres complètes , 11:308-11.

29. Ibid.

30. Ibid.

31. Ibid. Interestingly, Woodmansee finds a similar line of argumentation advanced in the German context, although she does not explore its implications; "Genius and Copyright," 440.

32. Though it is beyond the purview of this particular inquiry, it could be argued that despite the conclusions of Woodmansee and Rose, their evidence suggests that a similar tension was present in both the English and German contexts as well. Though each of these authors clearly establishes the presence of arguments for unlimited property in ideas in eighteenth-century England and Germany, it is clear that these arguments did not go uncontested and that, ultimately, the laws that ensued from the debates in these countries did not reflect a victory for unlimited property rights. See Woodmansee, "Genius and Copyright"; and Rose, "Author as Proprietor."

33. For the original text of these two documents see Keith Michael Baker et al., eds., University of Chicago Readings in Western Civilization , vol. 7, The Old Regime and the French Revolution (Chicago, 1987), 226-31 and 237-38.

34. See Carla Hesse, "Economic Upheavals in Publishing," in Darnton and Roche, Revolution in Print , 69-97; and Hesse, Res Publicata: The Printed Word in Paris, 1789-1810 (Ph.D. diss., Princeton University, 1986).

35. France, National Constituent Assembly, article 13 of the decree of 10 August 1790, "Relative à la dépense publique," Archives nationales, F17, 1258, doss. 2.

36. France, National Legislative Assembly, decree of 17 March 1791, in Collection générale des décrets rendus par l'Assemblée nationale (Paris, 1791), 52-62.

37. France, National Constituent Assembly, Committee on the Constitution, "Projet de loi contre les délits qui peuvent se commettre par la voie de l'impression et par la publi- soft

cation des écrits et des gravures, etc., présenté à l'Assemblée nationale, le 20 janvier 1790, par le Comité de constitution," in Procès-verbal de l'Assemblée nationale , 76 vols. (Paris, 1790), 11:1-24; also in B.-J.-B. Buchez and P.-C. Roux, eds., Histoire parlementaire de la Révolution française , 40 vols. (Paris, 1834), 4:273-88.

38. Hesse, "Economic Upheavals in Publishing"; Hesse, "Le Sort des imprimeurs et libraires parisiens après la chute de la chambre syndicale en 1791," in Roger Chartier and Daniel Roche, eds., Mélanges de la Sorbonne: La Révolution et le livre (Paris, 1989).

39. Jean-François Royer, Avis intéressant aux gens de lettres et aux amateurs de bons livres et des bonnes éditions , n.d. [1789/90], Archives nationales, F17, 1010D, doss. 4102. In a cover letter to the Committee on Public Instruction, dated "thermidor, an II" (1794), Royer states that he composed this letter "four years earlier."

40. "Procès-verbal de Police de la section de Ste. Geneviève, 23-24 octobre 1791," Archives de la Préfecture de police de Paris, AA200, items 182-83.

41. Buchez and Roux, Histoire parlementaire , 4:270.

42. Ibid., 4:271-72.

43. Ibid., 4:272.

44. Ibid., 4:273-88.

41. Buchez and Roux, Histoire parlementaire , 4:270.

42. Ibid., 4:271-72.

43. Ibid., 4:272.

44. Ibid., 4:273-88.

41. Buchez and Roux, Histoire parlementaire , 4:270.

42. Ibid., 4:271-72.

43. Ibid., 4:272.

44. Ibid., 4:273-88.

41. Buchez and Roux, Histoire parlementaire , 4:270.

42. Ibid., 4:271-72.

43. Ibid., 4:272.

44. Ibid., 4:273-88.

45. On the political reaction of the propertied classes to the popular revolution, see Georges Michon, Essai sur l'histoire du parti feuillant, Adrien Duport (Paris, 1924). For the connection of cultural elites to this conservative backlash of 1790-91, and especially of writers and publishers, see Darnton, Business of Enlightenment , 505.

46. See Baker, Condorcet , 272.

47. See François Lanthenas, De la liberté indéfinie de la presse (Paris, 1791), 6. Lanthenas writes: "A proposal of the Committee on the Constitution of the National Assembly to regulate the press, proposal attributed to MM. Condorcet and Sieyès, appeared a few months after this glorious revolution."

48. Condorcet, Oeuvres complètes , 11:252-314; and the "Projet de loi contre les délits," Procès-verbal de l'Assemblée nationale , 12:17-24; also in Buchez and Roux, Histoire parlementaire , 4:273-88.

49. Buchez and Roux, Histoire parlementaire , 4:283.

50. Ibid., 4:284.

49. Buchez and Roux, Histoire parlementaire , 4:283.

50. Ibid., 4:284.

51. See, for example, Alma Söderhjelm, Le Régime de la presse pendant la Révolution française (Geneva, 1971), 118-27 (originally published in Paris in 1900-1901); and Claude Bellanger, ed., Histoire générale de la presse française , 3 vols. (Paris, 1969), 1:432.

52. For an extensive discussion of the critical response of journalists and pamphleteers to the clauses on sedition and libel, see Söderhjelm, Le Régime de la presse , 123-28.

53. Elysée Loustallot, "De la liberté de la presse," Révolutions de Paris , no. 29, 23-30 January 1790, 17-18; emphasis in the original.

54. Louis Félix-Guyment de Kéralio, De la liberté d'énoncer, d'écrire, et d'imprimer la pensée (Paris, 1790), 51-53.

55. Ibid.

54. Louis Félix-Guyment de Kéralio, De la liberté d'énoncer, d'écrire, et d'imprimer la pensée (Paris, 1790), 51-53.

55. Ibid.

56. Jean François de LaHarpe, Adresse des auteurs dramatiques à l'Assemblée nationale, prononcé par M. de LaHarpe dans la séance du mardi soir 24 août ([Paris, 1790]), 8.

57. Fernand Gerbaux and Charles Schmidt, eds., Procès-verbal des Comités d'agriculture et de commerce , 4 vols. (Paris, 1906), 1:518-19.

58. Birn, "Profit in Ideas," 139.

59. Gerbaux and Schmidt, Procès-verbal des Comités d'agriculture et de commerce , 1:756.

60. Comités d'agriculture et de commerce to the Comité des recherches, 13 January 1791, Archives nationales, D29 bis 16, 182, doc. 10.

61. France, National Legislative Assembly, decree of 17 March 1791; in Collection générale des décrets , 52-62.

62. Gerbaux and Schmidt, Procès-verbal des Comités d'agriculture et de commerce , 2:256. break

63. Ibid.

62. Gerbaux and Schmidt, Procès-verbal des Comités d'agriculture et de commerce , 2:256. break

63. Ibid.

64. François Hell, Rapport fait à l'Assemblée nationale par M. Hell . . . sur la propriété des productions scientifiques ou littéraires, imprimé par ordre de l'Assemblée nationale , Archives nationales, AD8, 16 (Paris, 1791), 5-8. I have been unable to determine if this proposal was ever actually presented on the floor of the National Assembly.

65. Ibid., 15.

66. Charles-Joseph Panckoucke, "Sur les chambres syndicales," Mercure de France , 23 January 1790; and "Sur l'état actuel de l'imprimerie," Mercure de France , 6 March 1790.

67. Panckoucke, "Sur l'état actuel," 37-38.

68. Ibid. There is much more to be said about the role of English copyright law in the French revolutionary debates. While Panckoucke here invokes it, the Hell proposal, for example, explicitly refuted arguments in favor of adopting the English model. See Hell, Rapport fait à l'Assemblée nationale .

67. Panckoucke, "Sur l'état actuel," 37-38.

69. See, for example, Desbois, Droit d'auteur , 416; or Claude Colombet, Propriété littéraire et artistique , 6.

70. M.J. Guillaume, ed., Procès-verbaux du Comité d'instruction publique de la Convention nationale , 7 vols. (Paris, 1891), 1:iv.

71. Ibid., 1:iv-xiii. Although the exact composition of the committee was constantly changing, both of these men were continuous and influential presences.

70. M.J. Guillaume, ed., Procès-verbaux du Comité d'instruction publique de la Convention nationale , 7 vols. (Paris, 1891), 1:iv.

71. Ibid., 1:iv-xiii. Although the exact composition of the committee was constantly changing, both of these men were continuous and influential presences.

72. See Renouard, Traité des droits d'auteur , 211-25; see also Michele Marie Root-Bernstein, Boulevard Theater and Revolution in Eighteenth-Century Paris (Ann Arbor, Mich., 1984).

73. LaHarpe, Adresse des auteurs dramatiques , 37-39.

74. Ibid., 44.

73. LaHarpe, Adresse des auteurs dramatiques , 37-39.

74. Ibid., 44.

75. Article by M. de Charnois in Le Modérateur ; cited by LaHarpe, ibid., 45.

76. Renouard, Traité des droits d'auteurs , 305-6.

77. For the attribution of the projet to Mirabeau, see the letter written to the National Assembly on behalf of the authors of dramatic works on 18 September 1792, in Guillaume, Procès-verbaux du Comité d'instruction publique , 1:52.

78. Isaac-René-Guy LeChapelier, Rapport fait par M. LeChapelier au nom du Comité de constitution sur la pétition des auteurs dramatiques , 13 January 1791, Archives nationales, AD 8, 16 (Paris, 1791), 4-6.

79. A succession of meetings and debates on the retroactive implications of the laws ensued between the authors and the theater directors within the Committee of Public Instruction on 9 and 23 December 1791 and 2, 6, 9, 13, and 23 January 1792. See M. Guillaume, ed., Procès-verbal du Comité d'instruction publique de l'Assemblée législative (Paris, 1889), 47-48, 76, 78-79, 83, and 94. See also Pierre-Augustin Caron Beaumarchais, Pétition à l'Assemblée nationale . . . contre l'usurpation des auteurs ([Paris, 1791-92]).

80. The presentation of the proposal was first attempted on 5 February 1792 but was deferred first to 8 February and then finally to 30 August 1792. See Guillaume, Procèsverbal du Comité d'instruction publique de l'Assemblée législative , 96.

81. Guillaume, Procès-verbaux du Comité d'instruction publique , 1:52-53. For the original letter, the reference is now Archives nationales, F17, 1001, 39, 1.

82. Ibid.

81. Guillaume, Procès-verbaux du Comité d'instruction publique , 1:52-53. For the original letter, the reference is now Archives nationales, F17, 1001, 39, 1.

82. Ibid.

83. The struggle between the theater owners and authors was as byzantine as it was, ultimately, fruitless; see ibid., 51. In February, P.C.L. Baudin was charged by the committee to draft yet another law concerning the rights of authors of dramatic works, with the intention of abrogating the law of 30 August 1792. See Baudin, Rapport et projet de décret sur la propriété des auteurs dramatiques présentés au nom du Comité d'instruction continue

publique par P.C.L. Baudin , Archives nationales, AD8, 16 (Paris, [1793]). The report was announced in the Journal des débats et des décrets , no. 168 (4 March 1793); cited in Guillaume, Procès-verbaux du Comité d'instruction publique , 1:347 and 349, note 1. On 28 February the playwright Michel Jean Sedaine sent a letter and a petition to the committee demanding that the heirs of Racine receive perpetual royalties on the presentation or publication of his works. His plea was to no avail; letter and petition from Sedaine to the Committee of Public Instruction, Archives nationales, F17, 1004B, 447, 1. On 4 March Baudin's proposal, which abrogated the law of 30 August 1792 and reaffirmed the original law of 13 January 1791, was published by the committee and distributed to the members of the convention. Protest against the proposal was registered by the committee on 19 March. The proposal was pursued no further; Guillaume, Procès-verbal du Comité d'instruction publique , 1:367, 369-71, and 392, note 3.

84. Letter from authors and editors of music to the National Assembly, 2 January 1792, Archives nationales, F17, 1004A, 397. This letter and petition were forwarded to the Committee of Public Instruction on 2 June.

85. Jean-Baptiste Louvet to the National Convention, 23 February 1792, Archives nationales, C147, no. 167.

86. Guillaume, Procès-verbaux du Comité d'instruction publique , 1:347 (session of 20 February 1793).

87. Cited in ibid., 1:348.

88. Ibid., 1:xiii.

86. Guillaume, Procès-verbaux du Comité d'instruction publique , 1:347 (session of 20 February 1793).

87. Cited in ibid., 1:348.

88. Ibid., 1:xiii.

86. Guillaume, Procès-verbaux du Comité d'instruction publique , 1:347 (session of 20 February 1793).

87. Cited in ibid., 1:348.

88. Ibid., 1:xiii.

89. Alfred Jepson Bingham, Marie-Joseph Chénier: Early Political Life and Ideas, 1789-1794 (New York, 1939), 123-26.

90. Ibid., 125.

89. Alfred Jepson Bingham, Marie-Joseph Chénier: Early Political Life and Ideas, 1789-1794 (New York, 1939), 123-26.

90. Ibid., 125.

91. For a textual analysis of the provenance of the projet , see Guillaume, Procès-verbaux du Comité d'instruction publique , 2:80. My hypothesis is that Chénier is responsible for drafting the version of the law ultimately presented by Joseph Lakanal, and that for political reasons he did not present it himself. In both the contemporary press and the Committee of Public Instruction's proceedings, Chénier is assumed to be the author, and the proposal conforms closely to the views expressed in his petition of 18 September 1792. This theory is also supported by Bingham, Chénier , 123. It should be noted, however, that Lakanal later claimed credit for the proposal; see his Exposé sommaire des travaux de Joseph Lakanal (Paris, 1838), 9-12.

92. Jérôme Madival and Emile Laurent, eds., Archives parlementaires de 1787 à 1860 , 1st ser., 82 vols. (Paris, 1875-1913), 69:186-87. A little over a month later, on 1 September 1793, the convention added a new clause to the law to clarify explicitly that this law was intended to supersede the LeChapelier law on theater authors of 1791 and to cover equally authors of dramatic works; ibid., 73:293-94.

93. Lakanal's speech to the National Convention, 19 July 1793; in Guillaume, Procès-verbaux du Comité d'instruction publique , 2:82.

94. For recent developments in the history of reading see Roger Chartier, Lectures et lecteurs dans la France d'ancien régime (Paris, 1987); Chartier, ed., Les Usages de l'imprimé (Paris, 1987); Chartier, "Texts, Printings, Readings," in Lynn Hunt, ed., The New Cultural History (Berkeley, 1989), 154-75; and Robert Darnton, "Readers Respond to Rousseau: The Fabrication of Romantic Sensitivity," Great Cat Massacre , 215-56.

95. For important theoretical reflections along these lines, see Gérard Genette, Seuils (Paris, 1987). break

Norms, Discipline, and the Law

1. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 135, passim.

2. Ibid., 144.

3. Ibid.

4. Ibid., 82-83 and pássim.

1. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 135, passim.

2. Ibid., 144.

3. Ibid.

4. Ibid., 82-83 and pássim.

1. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 135, passim.

2. Ibid., 144.

3. Ibid.

4. Ibid., 82-83 and pássim.

1. Michel Foucault, The History of Sexuality, vol. 1, An Introduction , trans. Robert Hurley (New York, 1980), 135, passim.

2. Ibid., 144.

3. Ibid.

4. Ibid., 82-83 and pássim.

5. Georges Canguilhem, The Normal and the Pathological , trans. Carolyn R. Fawcett and Robert S. Cohen (New York, 1989), 239.

6. See François Ewald, L'Etat providence (Paris, 1986), particularly part 2, chaps. 1 and 2.

7. It is worth noting that it is impossible to insure oneself against danger.

8. See Lorenz Kruger et al., The Probabilistic Revolution (Cambridge, Mass., 1987).

9. Alphonse Quetelet, Du Système social et des lois qui le regissent (Paris, 1848), 13-14.

10. Ibid., 18-19.

9. Alphonse Quetelet, Du Système social et des lois qui le regissent (Paris, 1848), 13-14.

10. Ibid., 18-19.

11. Alphonse Quetelet, Sur l'Homme et le développement de ses facultés; ou, Essai de physique sociale , 2 vols. (Paris, 1835), 1:20, 2:250.

12. Ibid., 1:147-48.

11. Alphonse Quetelet, Sur l'Homme et le développement de ses facultés; ou, Essai de physique sociale , 2 vols. (Paris, 1835), 1:20, 2:250.

12. Ibid., 1:147-48.

13. Eugène Reboul, Les Assurances sur la vie (Paris, 1863), 44.

14. Statutory order of 26 January 1984 concerning normalization.

15. Norman F. Harriman, Standards and Standardization (New York, 1928), 24.

16. Some of these organizations include: Normenausschuss der Deutschen Industrie, 1917; Union Suisse de normalisation, 1918; American Engineering Standards Committee, Commission permanente de standardisation (France), Engineering Standards Committee (England, reorganized from an earlier institution created in 1901, the International Standardizing Association), 1928-30.

17. See Jacques Maily, La Normalisation (Paris, 1946), 11 and passim; Harriman, 1; John Gaillard, Industrial Standardization, Its Principles and Application (New York, 1934), 1 and passim; Waldemar Hellmich, Vom Wesung der deutschen Normungauschuss: D.I.N. 1917-1927 (Berlin, 1928).

18. Albert W. Whitney would interpret this transformation as the passage from a process of natural selection to a process of selection based on rational choice. See National Industrial Conference Board, Inc. [NICB] Industrial Standardization (New York, 1929), 18. break

19. Maily, La Normalisation , 24.

20. See Hellmich, Vom Wesung der deutschen Normung .

21. See Hellmich, ibid.; Maily, La Normalisation , 26.

20. See Hellmich, Vom Wesung der deutschen Normung .

21. See Hellmich, ibid.; Maily, La Normalisation , 26.

22. Maily, La Normalisation , 35 and passim; Harriman, Standards , 24 and passim; NICB, Industrial Standardization , 23 and passim.

23. See Maily, La Normalisation , chap. 5, "Les Avantages de la normalisation," 89 and passim.

24. For example, see ibid., 48 and passim.

25. Ibid., 49.

23. See Maily, La Normalisation , chap. 5, "Les Avantages de la normalisation," 89 and passim.

24. For example, see ibid., 48 and passim.

25. Ibid., 49.

23. See Maily, La Normalisation , chap. 5, "Les Avantages de la normalisation," 89 and passim.

24. For example, see ibid., 48 and passim.

25. Ibid., 49.

26. See Gaillard, "Definition of Concepts in a Standard," Industrial Standardization , 36.

27. Harriman, Standards , xvi.

28. Hellmich, Vom Wesung der deutschen Normung : "There is no such thing as an isolated or independent norm; all norms are interdependent."

29. Harriman, Standards , 79.

30. See Jessie V. Coles, Standardization of Consumers' Goods: An Aid to Consumer Buying (New York, 1932).

31. Maily, La Normalisation , 150 and passim; NICB, Industrial Standardization , chap. 6, "The American Standards Association and Other National Standardizing Bodies," 100 and passim.

32. Maily, La Normalisation , 61.

33. Canguilhem, Normal and Pathological , 249.

34. Emile Durkheim, The Rules of Sociological Method , ed. Steven Lukes, trans. W.D. Halls (London, 1982), 92.

35. Canguilhem, Normal and Pathological , 239-40.

36. Ibid., 263-64, 267-68.

37. Ibid., 125ff.

35. Canguilhem, Normal and Pathological , 239-40.

36. Ibid., 263-64, 267-68.

37. Ibid., 125ff.

35. Canguilhem, Normal and Pathological , 239-40.

36. Ibid., 263-64, 267-68.

37. Ibid., 125ff.

38. Foucault, History of Sexuality , 144.

39. Ibid., 86.

40. Ibid., 144. break

38. Foucault, History of Sexuality , 144.

39. Ibid., 86.

40. Ibid., 144. break

38. Foucault, History of Sexuality , 144.

39. Ibid., 86.

40. Ibid., 144. break

Law, Boundaries, and the Bounded Self

1. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (Chicago, forthcoming 1990). Parts of my argument may also be found in "American Constitutionalism and the Paradox of Private Property," in Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy (Cambridge, 1988). break

2. The reference to democracy is an anachronistic usage. That term was used disparagingly by almost all the leading Framers. They used the term republic . I use democracy here because it captures the basic issues more easily for the modern reader.

3. Framers is the term conventionally used for the members of the Convention of 1787 in which our Constitution was written.

4. In 1937 (one hundred fifty years after 1787), West Coast Hotel v. Parrish , 800 U.S. 379, signaled the end of the era beginning with Lochner v. New York , 198 U.S. 45 (1905), in which the Supreme Court had struck down social welfare legislation in the name of property and contract. But the Framer's basic paradigm of rights as limits has endured even though property no longer holds a central place.

5. See works cited in note 1 and Jennifer Nedelsky, "Economic Liberties and the Foundations of American Constitutionalism: The Federalist Perspective," in Sarah Thurow, ed., To Secure the Blessings of Liberty: First Principles of the Constitution (Lanham, Md., 1988), 220-43.

6. The Constitution did contain some important prohibitions, particularly on state governments. The most direct efforts to protect property through prohibitions are found in Article 1, Section 10: "No State shall . . . coin Money; emit Bills of Credit; make any Thing but Gold and Silver Coin a Tender in Payment of Debts."

And Section 9 contains prohibitions on the federal government, the most famous of which refers to the suspension of the Writ of Habeas Corpus. My point here is that specific prohibitions were not the primary means by which the Framers sought to secure individual rights.

7. Of course, the Bill of Rights was not included in the 1787 Constitution. It was added as amendments in 1789. And the Bill of Rights had a purpose and rationale different from the rest of the Constitution. It was aimed at the Anti-Federalists' fear of tyrannical rules, not the Federalists' fear of the people. Nevertheless, it fit quite comfortably within the Federalist conceptual framework: it defined rights as limits to the legitimate authority of government. The irony is that the Bill of Rights has taken on the significance it has in our system because of the establishment of judicial review, the final consolidation of the Federalist conception of constitutional government.

8. Property was once again a central focus. It was crucial to the justification and articulation of the powers of judicial review. By drawing on the ostensibly clear contours of common-law property rights, the Court could declare its boundary-setting functions to be inherently legal rather than political, that is, dictated by the rule of law rather than involving matters of collective choice.

9. This phrase is from Catherine Keller's From a Broken Web: Separation, Sexism, and Self (Boston, 1986).

10. And many readers will also recognize the status accorded to the vision of selves as separate, as bounded off from one another, as the subject of Michael Sandel's critique of John Rawls and liberalism, Liberalism and the Limits of Justice (Cambridge, 1982).

11. Charles Reich, "The New Property," Yale Law Journal 73 (1964): 733-87, at 731 and 771.

12. Laurence Tribe, American Constitutional Law (Mineola, N.Y., 1978), 889. This is, of course an old piece of Tribe's work. It is possible that he has now more fully integrated his ideas and his imagery. I chose these sections because they are typical of modern legal discourse in that they make some acknowledgment of the social dimensions of human beings, which is not, however, fully reflected in the rest of the argument.

13. Ibid., 897.

14. Robert Post, "The Social Foundations of Privacy: Community and Self in the Common continue

Law Tort," California Law Review 77 (1989): 970-72. Post argues that the privacy tort transcends the debate over whether we should think of the self as essentially independent and autonomous or as embedded in social norms, "for the tort presides over precisely those social norms which enable an autonomous self to emerge. . . . This mysterious fusion of civility and autonomy lies at the heart of the privacy tort" (974). This is, I think, in important ways the right sort of inquiry: How do our social structures foster or undermine autonomy? The further question is, though, whether our social structures and conceptions of boundary can encompass an adequate conception of autonomy. Post cites Edward Shils as capturing this fusion in his reference to "the 'social space' around an individual. He possesses [it] . . . by virtue of the charisma which is inherent in his existence as an individual soul—as we say nowadays, in his individuality—and which is inherent in his membership in the civil community" (974, n. 89). It is striking that the "social space" allocated to women has been very different from men's. As Adrienne Rich reminds us, even going to the bathroom alone, surely one of the most basic instances of Western conceptions of privacy, is something many mothers of young children have to forego; Of Woman Born: Motherhood as Experience and Institution (New York, 1986). Shils is right in the sense that the social space allotted to women does reflect both their peripheral membership in the community and the sense in which they are not treated as having full human individuality. But what is missing is a sensitivity to the notion that, since privacy will mean something different for women, if it is treated as an enclosed social space that is an index of their value and their membership both will be diminished in comparison to men's.

15. I develop this argument more fully in Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thought, and Possibilities," Yale Journal of Law and Feminism 1 (Spring 1989): 7-36.

16. George Lakoff and Mark Johnson, Metaphors We Live By (Chicago, 1980). Indeed their arguments have been extremely useful to me in providing a metaphoric base for my argument here.

17. Andrea Dworkin, Intercourse (New York, 1987), 137, 122.

18. Ibid., 123.

17. Andrea Dworkin, Intercourse (New York, 1987), 137, 122.

18. Ibid., 123.

19. For a very different and interesting treatment of boundaries in legal discourse, see Robin West, "Jurisprudence and Gender," University of Chicago Law Review 55 (1988): 1-72. West seems to think that boundary imagery is appropriate for men. I think she also tacitly accepts it for women when focusing on the nature of the threats they face, namely invasion in the form of both intercourse and pregnancy.

20. Post, "Social Foundations of Privacy," 974.

21. Dorothy Corkville Briggs, Your Child's Self-Esteem (New York, 1975), 134.

22. I selected this book because, in general, I like its tone and stance toward children. It was thus a source of boundary metaphor that inspired at least initial trust. It is worth noting that the book was written before most of the feminist work on parenting and the separative self. But it is also the case that references to separation and the age of separation can still be found in virtually all parent guidebooks.

23. Ibid., 124-25.

24. Ibid., 129-30 (emphasis in the original).

23. Ibid., 124-25.

24. Ibid., 129-30 (emphasis in the original).

23. Ibid., 124-25.

24. Ibid., 129-30 (emphasis in the original).

25. Starhawk, Spiral Dance: A Rebirth of the Ancient Religion of the Great Goddess (New York, 1979); Dreaming the Dark: Magic, Sex, and Politics (Boston, 1982); and Truth or Dare (New York, 1987).

26. In fact, Starhawk is drawing on the same psychological discourse that the child-development literature uses.

27. Starhawk, Truth or Dare , 148.

28. Ibid., 141.

29. Ibid., 148-49.

30. Ibid., 156. break

27. Starhawk, Truth or Dare , 148.

28. Ibid., 141.

29. Ibid., 148-49.

30. Ibid., 156. break

27. Starhawk, Truth or Dare , 148.

28. Ibid., 141.

29. Ibid., 148-49.

30. Ibid., 156. break

27. Starhawk, Truth or Dare , 148.

28. Ibid., 141.

29. Ibid., 148-49.

30. Ibid., 156. break

31. One could play out another variation on the theme of boundaries and "safe space" for children: Should one try to provide them with a physical environment that presents as few prohibitions as possible, or a set of clearly delineated boundaries they are not to cross?

I should say that I do not think all spacial metaphors imply boundaries. We only assume they do.

32. For example, referring to a particular group she says, "We might have resolved our conflicts more effectively had we understood that they were about the group's boundaries, and that our real needs conflicted. Some of us strongly identified with the need to keep the group open; others identified with the need to create intimacy and trust. . . . We could have more consciously valued that tension"; Truth or Dare , 152.

33. "I have a right" is a claim that often has that quality; it may invite action, but not open conversation.

34. Starhawk, Truth or Dare , 152.

35. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly 38 (1923): 470-78.

36. This "mistake" was pointed out to me by my colleague Arthur Ripstein of the Department of Philosophy, University of Toronto. I had just started to read Metaphors We Live By and was going on about it enthusiastically when he said that there was a central problem of treating the "body as container" as natural. Given the orientation of the book, I could hardly believe they could have made that "mistake." But there it was on page 29.

37. Starhawk, From a Broken Web , 234. Of course she is also using in-out metaphors, but for the purpose of merging them. When we leave conventional prose and become more poetic, it is easier to avoid the conventional metaphoric structure—and to begin to create a new one. For example, she also says, "If it is true, that 'everything is in a certain sense everywhere,' then bodies need not obey the conventions of fixed time and simple space. To the contrary: 'We have come to forget the feel of our own skin. Removed from our skin, we remain distant. You and I, apart'"; 233-34, quoting Luce Irigaray, This Sex Which Is Not One (Ithaca, N.Y., 1985), 217.

38. Lakoff and Johnson, Metaphors We Live By , 29.

39. Susan Griffin, Pornography and Silence (New York, 1981); quoted in Keller, From a Broken Web , 155.

40. Lakoff and Johnson, Metaphors We Live By , 29. This bold assertion of "our" experience reminds me of a conversation I once had with a student in class. I asked the class why they thought legal and political theory continued to take the separate individual as its starting point when we had such good information about (at least) the social dimension of language and knowledge. A student answered that he thought it was because when we look inside ourselves, it is our singularity that most immediately and powerfully strikes us. I was at the time eight months pregnant. I certainly did not experience myself as essentially singular. My child is now two and I would still not say that singularity can capture my sense of my essence (although Michael is only part of the reason for that).

I think it only fair to add that whatever subtle sexism inheres in images of the "separative self," the authors show no overt signs of it. Indeed, George Lakoff's Women, Fire, and Dangerous Things: What Categories Reveal About the Mind (Chicago, 1987) has one of the most illuminating discussions of rape that I have read.

41. Alfred North Whitehead, Process and Reality (Cambridge, 1929); quoted in Keller, From a Broken Web , 155.

42. Lakoff, Women, Fire, and Dangerous Things , 271. break

43. Of course many feminists make essentialist claims about the body, too. What is striking, of course, is that the "unmediated" messages they get from their bodies are radically different from those of Lakoff and Johnson, and sometimes from those of other feminists. All in all, I think we should be wary of essentialist claims of any variety. The connections between body, mind, and experience are more complex than essentialist claims allow for, even very interesting ones like those Lakoff and Johnson propose.

44. Lakoff and Johnson direct our attention to this important issue of coherence: "So it seems that our values are not independent but must form a coherent system with the metaphorical concepts we live by"; Metaphors We Live By , 22.

45. Keller, From a Broken Web , 1.

46. Ibid., 2.

45. Keller, From a Broken Web , 1.

46. Ibid., 2.

47. C.S. Lewis, Surprised by Joy (London, 1955); quoted in Keller, From a Broken Web , 1.

48. See particularly ibid., chap. 3.

49. Ibid., 96.

47. C.S. Lewis, Surprised by Joy (London, 1955); quoted in Keller, From a Broken Web , 1.

48. See particularly ibid., chap. 3.

49. Ibid., 96.

47. C.S. Lewis, Surprised by Joy (London, 1955); quoted in Keller, From a Broken Web , 1.

48. See particularly ibid., chap. 3.

49. Ibid., 96.

50. Quoted from Pornography and Silence in ibid., 155.

51. Ibid., 160-61. Keller also offers an illuminating quote from Mary Daly, Gyn/Ecology (Boston, 1978), 412:

The mindbinders and those who remain mindbound do not see the patterns of the cosmic tapestries, nor do they hear the labyrinthine symphony. For their thinking has been crippled and tied to linear tracks. . . . Since they do not understand that creativity means seeing the interconnectedness between seemingly disparate phenomena, the mindbound accuse Hags of "lumping things together." Their perception is a complete reversal.

It is also worth noting that at one level Keller agrees with Johnson: "For it is a self conceived as separate that has after all projected its grid of fragmentation upon the world" (161). Compare Lakoff and Johnson: "Each of us is a container, with a bounding surface and an in-out orientation. We project our own in-out orientation onto other physical objects" (29). They differ of course in the status they accord to the experience of separateness.

52. Ibid., 163.

53. Ibid., 194.

50. Quoted from Pornography and Silence in ibid., 155.

51. Ibid., 160-61. Keller also offers an illuminating quote from Mary Daly, Gyn/Ecology (Boston, 1978), 412:

The mindbinders and those who remain mindbound do not see the patterns of the cosmic tapestries, nor do they hear the labyrinthine symphony. For their thinking has been crippled and tied to linear tracks. . . . Since they do not understand that creativity means seeing the interconnectedness between seemingly disparate phenomena, the mindbound accuse Hags of "lumping things together." Their perception is a complete reversal.

52. Ibid., 163.

53. Ibid., 194.

50. Quoted from Pornography and Silence in ibid., 155.

51. Ibid., 160-61. Keller also offers an illuminating quote from Mary Daly, Gyn/Ecology (Boston, 1978), 412:

The mindbinders and those who remain mindbound do not see the patterns of the cosmic tapestries, nor do they hear the labyrinthine symphony. For their thinking has been crippled and tied to linear tracks. . . . Since they do not understand that creativity means seeing the interconnectedness between seemingly disparate phenomena, the mindbound accuse Hags of "lumping things together." Their perception is a complete reversal.

52. Ibid., 163.

53. Ibid., 194.

50. Quoted from Pornography and Silence in ibid., 155.

51. Ibid., 160-61. Keller also offers an illuminating quote from Mary Daly, Gyn/Ecology (Boston, 1978), 412:

The mindbinders and those who remain mindbound do not see the patterns of the cosmic tapestries, nor do they hear the labyrinthine symphony. For their thinking has been crippled and tied to linear tracks. . . . Since they do not understand that creativity means seeing the interconnectedness between seemingly disparate phenomena, the mindbound accuse Hags of "lumping things together." Their perception is a complete reversal.

52. Ibid., 163.

53. Ibid., 194.

54. Dorothy Dinnerstein, The Mermaid and the Minotaur (New York, 1976); Jessica Benjamin, "The Bonds of Love: Rational Violence and Erotic Domination," in Hester Eisenstein and Alice Jardine, eds., The Future of Difference (Boston, 1980). Keller offers an interesting critique of Dinnerstein as aiming at making a separative self available for women too; see From a Broken Web , chap. 3.

55. Ibid., 200.

56. Estella Lauter, Women as Mythmakers: Poetry and Visual Art by Twentieth-Century Women (Bloomington, Ind., 1984).

57. Ibid., 220.

56. Estella Lauter, Women as Mythmakers: Poetry and Visual Art by Twentieth-Century Women (Bloomington, Ind., 1984).

57. Ibid., 220.

58. To explain what she sees in the art she presents, Lauter offers a series of boundary-dissolving metaphors from the philosopher Hilda Hein.

Sexual intercourse, for example, is experienced by many women as an "active and mutual engulfment" wherein there is neither a loss nor a triumph of self, but a commingling and redistribution of self and reality. Similarly, "mother and child mutually shape each other not merely through the period of their direct physical attachment, but . . . throughout their lives." "Imagine knowing as an act of love . . . a giving of self to the subject matter, rather than an 'objective' standing at a distance. As one allows the known to suffuse one's being, one takes it in, envelops and is enveloped by it." break

Ibid., 221.

59. Ibid., 223.

58. To explain what she sees in the art she presents, Lauter offers a series of boundary-dissolving metaphors from the philosopher Hilda Hein.

Sexual intercourse, for example, is experienced by many women as an "active and mutual engulfment" wherein there is neither a loss nor a triumph of self, but a commingling and redistribution of self and reality. Similarly, "mother and child mutually shape each other not merely through the period of their direct physical attachment, but . . . throughout their lives." "Imagine knowing as an act of love . . . a giving of self to the subject matter, rather than an 'objective' standing at a distance. As one allows the known to suffuse one's being, one takes it in, envelops and is enveloped by it." break

Ibid., 221.

59. Ibid., 223.

60. There is generally too little concern, however, about what it takes to foster or develop the capacity.

61. See, for example, Catherine MacKinnon's discussions of pornography in Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass., 1987), although I should note that MacKinnon argues that pornography is not essentially speech.

62. Lauter, Women as Mythmakers , 218.

63. I think this is finally the place to say a brief word about "communitarians." There is of course considerable diversity among those who might be so labeled, but I think it is fair to say that in general their work is characterized by mediating rather than combining antinomies. My own formulation of the "tension between the individual and the collective" also has some of this quality. It is an effort to take seriously the social dimensions of human beings, but a (temporary, perhaps) incapacity to find ways of expressing a unity rather than complementarity of the individual and the social. I take the projects of the feminist theorists I have been discussing to be both more radical in their aspirations and more successful in them. break