 Thank you, Chris. In the early summer of 2007 when the realization began to dawn on me, that I might actually have to leave my happy home at Duke to start a brand new law school here at UC Irvine, I panicked. First I envisioned sort of a Judy Garland, Mickey Rooney musical, Catherine and Irwin start a law school with singing and dancing, and that caused me to panic a little more. As wonderful as UC Irvine is as a university, how could we possibly create a law school with an intellectual community that would rival what I had known at Duke and for that at the University of Southern California? Then I calmed down and started dreaming about what kinds of intellectual community we could build in this sunny, if slightly anomic corner of my home state. We thought about blending the first rate interdisciplinary study, which Irvine was already known for, with a truly deep commitment to training future lawyers. We wanted to break down the idea, which is all too pervasive in American legal education, that there was some kind of trade-off between superb theoretical, critical, interdisciplinary, historical, sociological scholarship, and caring deeply about training lawyers and what most of our students wind up doing, which is not what we do. And I think that we are well on our way to doing it. The faculty, the graduate students of the administration here at UC Irvine are exceptionally fine, and their work has helped to make UC Irvine a wonderful home for a law school with real ambition to be the center of intellectual inquiry in interdisciplinary theoretical ways. Optimists that I am in my wildest dreams, I couldn't have imagined a better inaugural year than the one we have had, and I could not imagine a better inaugural interdisciplinary event than the one we commenced this morning. I have known and admired many of you through your work or personally for a long time, and I'm thrilled to discover the work of others whom I have known. You're being here, you're sharing your brilliant papers and having a weekend of conversation, and the conversation is really what the high point of this conference will be, I think, could not possibly be better for an inauguration of what we want to do here at Irvine. This gathering of people and ideas promises to shape the way many of us and many others who will read the papers in the UC Irvine law review in years to come will think about what legal history is and what it does both for the legal profession but also for inquiry way outside of law and indeed history. Your presence here and the tapestry of ideas that your papers present would not have occurred without the effort and ingenuity of one person, my colleague, Chris Tomlans. We've hired a number of wonderful faculty here at the UC Irvine Law School but none that I treasure more or feel more fortunate to have as a colleague than Chris. He embodies in one person what I dream we might create at UCI. Having Chris as a colleague is like having entire sections of the Library of Congress as your friend. I've gotten some credit for organizing this event that I really don't deserve. You're in this room because of his creativity, his encyclopedic knowledge of the field and of everybody in it, and his generosity of intellect and spirit. Please join me in thanking Chris. I'm so sure to turn the floor over to another person who has been an inspiration and the very best kind of friend for many years. Dirk was a law professor at the University of Wisconsin when I was just a young lawyer with no status other than being a friend of a young scholar whom Dirk was mentoring. But he took me under his wing as well and played a much greater role than he realizes or will admit in convincing me that I too could become a law professor as a person and as a scholar. He's truly extraordinary, so it's particularly wonderful to have him here at Irvine to inaugurate this inaugural event. My job is to do the introductions for this first panel. This is, as I understand it, a conference about what Thomas Wentworth Higginson, the 19th century abolitionist and publicist, would call the newness, at least the newness in legal history, about the next big thing. And it's appropriate that it occurred here at UC Irvine where Chris Catollens and Catherine Fisk and Irwin Chemerinsky and all the others are creating the newness in legal education. I look out at this audience and I really think you don't need long introductions of our panel members who are known to you also. So I think what I'm going to do is do a very short introduction and then maybe try and set in my own personal terms the scene for this panel. I'm thinking of it in part based on a very long flight last night, what the papers, how the papers spoke to me. So think of this as a kind of wangnye of the papers, the taste that, and I hope it doesn't sour you because it shouldn't sour you because the papers are really good. Anyway, okay, the paper givers, just briefly for those few of you who don't know them already are as follows. Stephen Wilf, who is actually going to be channeled by Chris Catollens because of a volcano in Iceland, is one of the wonders of recent days. He's now someone who works in three radically different fields, the social history of the American Revolution, the history of Jewish law and mysticism, and intellectual property law. His essay offers a guide for the perplexed and it's really very impressive. Let's see who's next. Kunal Parker, I can't say much about him because he's my own student. So I feel kind of silenced by that. We're to know, I do that all the time. Kunal holds a PhD for Princeton, he holds a law degree from Harvard and an undergraduate degree from Harvard. He is about to publish a history of custom, the common law, and history of the sort of triangular relationship between them through the 19th century. He's the only graduate student at Princeton. I know who went and took graduate courses in the philosophy department at the same time that he was finishing, working on his PhDs. Norman Spaulding teaches at Stanford Law School. He works in several legal areas, including the history of legal ethics, and he is clearly becoming immensely learned in Lacan and Freud. He shows how difficult it is to think seriously, to use well that ubiquitous historians turn resistance. And Marian Constable, who teaches in the rhetoric department at Berkeley, lives at the border between legal history and legal theory, which is why she belongs in a rhetoric department, I think. And she is the author of two prize-winning and quite wonderful books. Okay, so let me quickly do a little scene-set, call it my lagnac. How to describe the present moment. I can only speak for myself and let me avoid or try to avoid the universalizing week. Thirty years ago, as a graduate student, I worried that doing history was either an adequate sociology, or worse yet, that I existed to provide easy examples or instances that sociologists or social theorists would do the real work with. Twenty years ago, I wanted to be an anthropologist. That is how to do legal history as ethnography. Fifteen years ago, I discovered that every other discipline was going through a methodological crisis, one effect of which was to lead them to embrace history and historical ways as a kind of salvation. Meanwhile, and this is, I think, the theme of this panel, of the papers of this panel, I was always reading law through the lens of the Austinian performative. I knew as a law student that legal speech did things. I remember the phrase, it is so ordered, as a terrifying sentence for me. And like Marion, I love the cacophony of speech acts. Importantly, I dare say, I guess even here, we love our subjects. Love the weirdness of legal history. Bruce Mann's men in debtor's prison taking time to write and even more to try to live by their own constitution. I love lawyers' fights in trials, the weirdness of what they do and say. I love trial transcripts even as I suffer with the miseries of witnesses trying to make their words sound and sound is crucial here in legal. I also love the fun of deciphering the arcane. What on earth John Norton Pomeroy thought about specific performance? How to read and echo it? So before we, and here I mean you, not me, get all wrapped up in metas and ultimate realities. Let's not lose sight of the joys of our practices. Stephen Willf has me dead to rights. You'll hear more about that through Chris when he talks about archived addiction. I have all addictions, it's always disappointing, it's never enough and I always feel the need to go back for more. But in terms of my life as a historian, once I extricate myself momentarily from archives, including archives I construct in my head or assemble in my computer, what then? Well then I live in historiographic time. I struggle against past interpretations. I situate them in their worlds. I want to kill them gently and metaphorically. I know that what I think about and why I think it will eventually be known if and when anyone cares or reduced to my times. But still older generations, older works of legal history fall into my thoughts. Fill my thoughts. Anxieties of influence, anxieties of absence. Nothing worse than finding oneself absorbed in a subject lacking in historiography and when that happens of course I make it up. Anxieties of triviality, anxieties of megalomaniac. And of course I read and I read and I read, which you'll hear more about that means these papers. When I read I'm doing many things, making many kinds of inferences or guesses, leaps of faith. I think a lot recently as I worked with trial transcripts about how witnesses and lawyers must have sounded. I think about class and race and gender that's so last century I know. And intelligence and experience and craft. I worry a lot how lives were changed because of the law again so last century. I worry a lot and here comes the archives again about how I select what to read and once I've selected about what I focus on, which paragraphs or phrases I worry about. I worry about exhaustion and boredom about everything I don't read because I'm bored or tired or because nothing in the historiography or in my experience has sensitized me to look at it. I take this conference will be a continuous opportunity to be resensitized to new things. It's work and what I do and it's legal history or at least my legal history in the present moment. So we begin. It's actually a great privilege and pleasure for me to have the opportunity to read this paper for him. I know he's extremely disappointed that he could not be here. He felt extremely guilty that his paper arrived less than 24 hours ago. I know that some of you may have read it. Many of you will not have an opportunity. In many ways it's an unfinished paper. It's almost a series of fragments of irony, whimsy and humor interspersed with very, very deep learning. As I read it myself, it reminded me irresistibly. The voice that was in my head reading it to me was none other than Ira Glass. It has a kind of this American life polity term as I will try to convey. James must surely be the patron deity of legal historians. For regular historians we are a subspecies of intellectual historians. Read as specialized texts. We originally defined ourselves as casualists who specialize in cases and statutes. While this description is certainly rather limited and cannot describe the varied activities of legal historians today, we still result to claims that we can read certain texts with technical skill. Although these texts are not arcane, it is a rather old-fashioned assertion of a guild monopoly, which surprisingly still often works. For our non-historian colleagues and law faculty, however, we turn our other face towards context. We stake our authority upon knowing the period, deeply situating law in a particular, or just a specific time and place. These two faces are presented at different moments and to different audiences, historians and lawyers, and therefore some of us have become as comfortable in our shifting dual identity as any minority group. While we are legal historians, we put the accent mark on the first half of the phrase and others who consider themselves truly part of the historical fraternity, most of us are simply artful dodgers of one sort or another. This is not surprising since we have embraced what Henry Lewis Gates calls a two-toned approach for strategic reasons. To use a Chicago metaphor, we navigate our way down the midway, shifting between text and context, between claims of expertise made upon legal texts, and claims made upon social knowledge, between a law school on one side with the windswept, difficult to cross divide, and the contextual scholars and the social science faculties on the other. But this is not the first time we have taken this path. Before text and context, there was a similar binary, law and society. The law and society's economy is deeply rooted in the kind of academic strategies legal historians employ. Moreover, it fits the neutral politics often inhabited by historians' noble dream of objectivity and the loyally distaste for dogmatism. When examining legal texts, historians can operate within the boundaries set by ordinary doctrinal analysis. The contextual approach represented by the law and society movement on the other side has a comfortable relationship to mid-20th century end of ideologies. As Michael Grossberg has argued, the Wisconsin School of Legal History, the early practitioners of legal history grounded in the law and society movement, have a historically coherent view of law as a rational instrument that could be seized upon by members of the dominant middle class to achieve consensual economic goals. Its interest in private ordering, empirical social science, method and functionalism often reflected the belief that social forces could be easily cabined into sensible categories. It's remarkable how long these hollow boxes law and society have remained with us. Frayed, rusty, somewhat dilapidated, this model continued to stand partly because of its usefulness in carving out a respectable role for legal historians and partly because there was no sense of what might take its place. As Robert Gordon has pointed out, there always remains a conceptual problem for those who see the world as divided between two separate spheres, law and society, to work out the secret of that relationship. Secrets can be compelling. This paper focuses upon a different sort of relationship, the role of legal historian as a reader of texts. I emphatically, though, do not want to construct or read a text or a text context by carter. Any discussion of legal historians interrogating texts should not replace one chop-down form of dualism with another. After all the binary paradigms, such as law and society or law in the books, law in action, why add another? It does not seem to matter what the source of these constructions is. Whether liberal Marxists, reconstructed Marxists, past and present schools, identity-based critical studies or simply passe, there is always some binary lurking in the background which can be plucked out of obscurity and turned into the legal and historical methodological approach of the day. At a time when we've witnessed the crumbling of all binary distinctions that have defined scholarly thinking should come as no surprise that dualism is not a terribly attractive distinction to make. So my goals are fairly modest. My essay seeks to identify the relationship of legal historians to texts. How do we explain the fact that text is of essential importance to legal historians and at the same time under examine? First, as I've mentioned, there is a gesture of reheat shifting back and forth between text and context and never very thickly probing either category. The very prevalence of text, second, makes it less visible. Text is a precondition of legal historical study and is like water for fish and may year to be navigated rather than interrogated. Third, text is maddeningly an inexact construct. Derrida once famously declared everything in this text. It is an expressive container for holding ideas, a discrete set of symbols, a fluid, uncontainable part of a much larger family. In this sense, text is a social construction and agreed upon subject. Fourth, text is the locus of interpretation. A text is what we call a text for the purpose of analysis. This might be an easy definition, a kind of textual positivism, but where does it take us? Like spoke tailors, legal historians cut and reshaped texts to fit their purposes. A text might be small, a statutory fragment or a rambling case, but there's always a decision being made about how to identify its size, boundaries and contours. Fifth, the very mutability and silences of the text deny interpretation. The point is made by Walter Benjamin. The term text comes from the Latin word textum, meaning a woven cloth. It is woven as part of a much larger, more elusive pattern of remembrance and forgetting. According to Benjamin, the mother of text is Penelope. The day unravels what the night is woven. When we awake each morning, we hold in our hands, usually weakly and loosely, but a few fringes of the carpet. Legal historians are therefore as much the producers of text as the readers of text, but at the same time, they are subject to its vagaries. So I seek to identify both the power of legal historians over text in the numerous ways that are subject to texts' own demands. The relationship between legal historian and text, then, is not an easy hooking up, but a troubled, complex association that must be examined from the point of view of defining texts of which changes over time. My focus will be upon ourselves, the historians of work, during what they do best, providing temporality rather than upon the texts on more and more time. The science of a special gift of looking backwards. I will not offer any simple answers to the problems of texts. This essay is not a methodological guidebook, not a taxonomy, or different sorts of methods of reading, not a celebration of the historian's metier, not a glimpse of the possibilities posed by borrowing tools from neighbouring disciplines, not a historiographic essay and not a manifesto, though it may slip into one or other of these genres from time to time. The essay is organized in four broad sections. This is the Ira Glassberg. The first section, what might be illegal texts, probes the possibilities and difficulties inherent in defining a text. It addresses many of the problems we have identified. Immutability of texts, its porous boundaries, its enigmatic nature, its self-contradictions. Must a text have an author? How should texts be read? Are legal texts different than other texts? Part two, The Strange Career of Legal Textilism, asks why legal historians have failed to explore the technologies of textual interpretation. This is especially puzzling in light of mainstream historians' preoccupation with these issues of methodology. In this section, I offer a brief excursion of the sociology of knowledge for legal history. The avoidance of theory, methodology, the heuristic term is very much a part of how legal historians position themselves in the late 20th century legal academy. I trace some of the promising roads, not taken. Act three, a short dictionary of misunderstood legal historical terms, is based on Milan Kander's insight that lexicans might be constructed around sites of contention. The examines a series of phrases which I hope might serve to open up the discussion of alternative historical methodological methods. I choose to employ the sort of literary device because of my discomfort with either a straightforward and limited set of methodological approaches and with a polemical tone of many historiographic studies. The dictionary is intended to be illustrative of alternative approaches to writing the legal history. Part four, Blaine's telescope draws intensive conclusions. So, act one, what might be a legal text? Just as Victorian women might experience parts of mirasthenia, historians suffer from the close relative of a peculiar malady identified by there it are, archive fever. What is archive fever? It is to burn with a passion. It is never to rest interminably from searching for the archive right where it slips away. It is to run after the archive, even if there is too much of it right where something in it unarchives itself. It is to have compulsive, repetitive and nostalgic desire to the archive. An irrepressible desire to return to the origin, a homesickness, a nostalgia for the return to the most archaic place of absolute commencement. The archive simultaneously preserves and hides the past. Is there such a disease as mal-detects, as Derrida described mal-dakeef? Every text is a disappointment. It insufficiently informs. It lacks authority. It's incomplete. Text is a calmerical, intertunable, multi-local, slippery, generally untrustworthy. And one is not a text. Text has come to mean too much and too little. It is the object of study, but it also serves as the conditions of communication. The encounter between the legal historian of the text is fraught with danger. Texts often survive our hands by the term mal. Derrida may be misfortune or disquiet as much as fever. Yet there is a kind of overheated pursuit particular to the historical calling. Mal-detects is a kind of occupational disease. They don't spend their lives on a quest looking for smoking gun texts. The writings of historical actors which exquisitely reveal the blend of motive, guile, self-consciousness, which is not merely revealed by actions. This is what Michelet called the exhumation of their deepest desires. But texts like lovers rarely turn out to be everything we hope or imagine. Indeed, even if the text is illuminating, even confessional, it will expose its own lacuna. In some ways, knowing the etiology of this disease is helpful. It spares us slipping down the radicals of heuristic thinking. We cannot master the slipperiness of our ever elusive texts. We cannot flee our texts for context. We cannot ever tie ourselves to the masts in order to be preserved from the sirens of multiple interpretations. Strangely, we pretend that we have interpretive power. Our metaphors tell us a great deal about how we deal with texts in general. And all of them do not quite fit a legal text. Texts might be dissected, unpacked like a portmanteau, or become an ocular instrument as we search for optic. But there, that points us in a different direction, where we look inward toward the psyche of those searching for past. In a sense, we are in the delirium of our fevers, the creator and preserver of documents. A text is something we work upon, what a document is something we create. Roland Barthes, Jacques Derrida, Julia Christophe have all pointed out that texts are multi-local, speaking to each other like crickets on a summer evening. The instability and chemical character of texts is implicit to the text itself, because no text can ever be disentangled from others. If a text cannot be anything more than a crossroads of other texts, if a reader is critical for making the text unified by seeing, then perhaps we should turn to the reader, the legal historian, to speak of a relationship between the reader and text, rather than the text itself. Legal texts are different, and therefore they must be read differently. Brooke Thomas has pointed out, without a doubt, legal texts can have literary qualities. But in the last analysis, their function is different. Legal texts are often intentionally derivative, moving forward across time, established terms of art. They seem to be exclusive, limiting alternative interpretive challenges to authority, and making claims to be closely reasoned and inevitable in their conclusions. Above all, legal language is an instrument of technology of power. It is impossible to read what it covers, nor must a narrative, which underscores the literary quality of legal texts, without the curative reminder of violence in the word, which tells us that behind every legal word learns a threat. What makes an efficient legal text different? First, its authorial voice might be institutional. Congressional history, for example, or legislative intent, rather than simply the voice of the single romantic author. The ventriloquist-like imposition of authorial intent upon the text is a cottage-industrial source, legislative history, and therefore its artificial nature is more fully exposed. The text, second, is often a pastiche, a brick-on-azure terms from prior texts. Lawyers borrow shamelessly from each other. Indeed, the conservative use of language pushing words forward through time is a particularly notable aspect of lawyerly writing. Legal terms of art create well-traveled causeways between one text and another, but more importantly, the similarity of texts created by using boilerplate and serverally-retained legal language suggests that intertextual readings, that is, reading one text against another, must be an even more insistent task of the legal historian. Third, legal texts are always texts seeking to limit the reader. They privilege one reading over another as more authoritative and more correct. If all texts are some limiting function of a meaning, then legal texts with their demands for interpretive exclusivity are particularly notable on the boundaries of their place upon imaginative readings of alternative possibilities. Alternatives must always be justified. The art of distinguishing the case allows one to read a judicial decision differently from another. This has been suggested for legal texts or instrumental texts. If, as Jackson lives, has written all history as the history of longing, then all interrogations of legal historical texts are forms of creating. Act two, the strange career of legal textualism. American legal history seems to have come of age. It is a multi-volume history of the country's leading judicial institution, the Holmes Divide Sisters Supreme Court. It has two massive encyclopedias published in the past few years. A new biographic dictionary identifies important figures and all the work the Founders Constitution makes a constitutional canon that has been truly canonical. The field has its own canonical works in both the areas of overarching narrative and the methodological critique, which can be emanated and serves the foil for disagreement. In a certain fashion, legal history now embodies both the Enlightenment project that is in psychopedic surveys of knowledge and the romantic making and arm-making paradigms. In 1960, there were only five legal historians operating in elite law schools. Today, legal historians consider the essential part of the infield of any major law school. Princeton's history department has its own distinguished chair in the field. Not surprisingly, legal historians are at a celebratory mood. As in any successful discipline, it is fragmented into schools representing different approaches. Stanford and Wisconsin Law School reflect a long-standing law and society tradition. Virginia is doctrinal. Yale produces legal cultural history. Harvard is about a law school. Princeton is encouraged to focus on the world with strategies of ordinary people within legal frameworks. Harvard, as always, has focused on whatever Harvard thinks is important. A professional organization hosts yearly conferences with devoted attendees who regularly travel to its meetings, and it even has the ultimate right of passage of website to trumpet our latest accomplishments. Still hesitant to join the Hazard celebrating disciplinary triumphalism, thick tones did not prevent 19th century Protestant theology from turning into an intellectual dinosaur. While legal historians often have claimed to be more than most comfortable with fellow historians, their connection has free as the larger historical academy has experienced new trends. The term toward narrative makes historical study look remarkably non-analytic. The antithesis of a lawyer focuses on crisp intellectual aspects. Identity history has placed gender race in class for core historical studies. The straight jacket of national jurisdictions has made legal historians seem fixed upon rigid national boundaries at the very moment that mainstream historians approach the plasticity of the permeability of territories. When was the last time that a subordinate made a cameo of opinions of many important legal historical migrants? If the new cultural history has often meant a history embodied, legal historians have been curiously disembodied. Legal historians in other words have been left behind by other historians. Legal historians are borrowers from borrowers. As intellectual magpies traveling from nest to nest they occasionally bring methodologies borrowed from other heirs of scholarship to bear upon their own legal historical inquiries. But when was the last time someone borrowed from us? We inherit derivative methodologies and remain uncritical by our own historiographic preconceptions. How many legal historians simply follow cases one after another like beads on a rosary until we reach a believable conclusion that this is the past? Much legal historical work is a beheading tradition which in turn represents the sole creation of a legal doctrine. In some ways while we claim the mantle of historians the fact is that among historians Moreover, as I suggested at the beginning the turn toward the historical academy rather than the legal has left us with the worst of both worlds. We're often insufficiently archival. Poorly attuned to methodological concern as the dealers in particular kind of texts were detached from other aspects of an historical period to be proper contextless. The textual term I value cannot provide an escape path since it is simply the latest annunciation of a new historical methodology. The issue of which is ultimately proven to be a revolution which did not happen or perhaps a better image might be a banana-Republic coup. The radio station is seized a colonel immediately pressed fatigues issues a statement about the failure of the old regime offers overstated promises about what will come in its place. It is all very dramatic in the end however the change in regime also fails. These are all reasons to rethink our identity. All the photo theory in the world does not make us real historians. Nevertheless, as I will argue we've retreated from the normative task of lawyers and I believe this is the side of our identity which offers the most promising possibilities. But our lower academic legacy also has its limits. It is striking that there are almost no autobiographies of law professors. The legal profession and especially the legal academy with its focus on performative pedagogy does not fail at the cultivation of entomality. Even our lawyers were influenced by reading ancient classics. They gravitated the Sicilian rhetoric while in stark self-examination. In contrast, numerous fine memoirs of historians have been written. Historians are inclined to this genre for a variety of reasons. To create a document for a future generation of historians, to situate their themes with a larger intellectual and political currents of their times. To apprentice the next generation of scholars through the telling of a builder's rationale the how I became a historian genre. Nevertheless, what is striking is that the degree of self-regarding inner consciousness, awareness, attunement to psychological postures knowing the deeper aspects of the personality all this seems notably lacking among lawyers. Legal historians seem to share this outer directiveness. What might remedy the situation? Short of encouraging Freudian psychoanalysis or mandatory training in spiritual exercises it's unclear how to promote the transformation of the legal historical psyche. Yet without such a change the region of texts in a truly sophisticated way remains out of reach. Legal history developed in this particular fashion largely because of not taking certain roads. There were two particularly promising approaches that were missed. Historical jurisprudence at the end of the 19th century and the historical contribution to legal realism in the 1920s and 1930s. The first of these, historical jurisprudence argued that the contingent, evolutionary, and unmasking of past forms might have a critical influence on how we think about making law in our own times. Maybelline for the sense of the long debate and a willingness to ask enduring questions about the origins of liberty and the nature of equality, he embraced rather than flared emerging debates and political theory. Verogradov brought historical jurisprudence in the political note. He divided the world into historical jurisprudence into the rationalists, nationalists, and evolutionists. And like Raitland, he brought into the discussion psychology, empirical investigations, and a sense of rootedness and its influences on historical process. Historical jurisprudence was an alchemical movement turning the experience of history into the logic of law. Unlike the Rawlsium dance of the Southern Veils, it does not strip human beings from their cultural past. It creates a radically situated subject. Then during the 1920s, Judas Goebbels' class in Columbia, Development of Legal Institutions, also constituted an attempt to situate legal texts in their contexts. The courses intended as a means of repudiating the tradition which confined legal historical inquiry to a mere genealogy of cases. It focused on the world of social sciences, political, economic, or social factors of the growth of particular rules and institutions. Goebbels' whole law, not as an isolated phenomenon, but as a phase of civilisation. There was a real possibility of constructing a legal history to the age of legal realism. Goebbels' casebook began with the murky origins of curvature, but it ended with the New York migrants' property act. Law students should learn, law students should learn, is flexible, contingent, and liable to change with circumstances. The paternalism of common law notions of the property of white was the casebook's end point. If historical jurisprudence lost in analytic philosophy and deontological liberalism, then the historicism of realism might be said to have been the victim of an empirical realist claim. The irrelevance of history became a legacy of realism. Precedent provided a dead weight from the past that created burdens for the recasting of a modern, outcome-driven legal system. The interest of law and economics legal historians turned inward. Goebbels often seemed to portray common law as our Roman law, filled with obscure doctrinal adherence to traditional common law doctrine. He demonstrated a posture of the creating of common law as dense, full of obscure terms of art and dry as dust interpretations with specifically English past in an ever more global world. Act 3 A short dictionary of misunderstood legal historical terms. In the Unbearable Bacchus of Green, shared novelist Milan Condere includes a short dictionary of misunderstood words. These are words seemingly shared that affect subject to multiple, often conflicting meanings by romantic couples, Savina and France, women betrayal, living in truth, parades, light and darkness. According to Condere, there is the semantic source of the rhythm flowing through this language. An intimate vocabulary captures the connection between them. For our purposes, I will try to define a few phrases that might guide the relationship of legal historians to texts. The counter genealogical gesture, palimpsest legalism, legal history of the imagination and thin normativity, the conafivity. First, the counter genealogical gesture. What does it mean to operate in a counter genealogical fashion? It means to search for alternative paths and words not taken. Elective affinities do not seem to be obvious connections. It somehow had started to end up tracing the origins of contemporary legal doctrine or institutions in a comfortable, linear fashion. For example, uncovering the intellectual pedigree of federalism or the early modern structure of appalled institutions. This is not a new world. Law was traditionally the keeper of both official codes and official paths. During polis, public documents were kept in the archaic, which was often the home of the manuscript. Continuity, however, tends to replicate what Bentham called everything as it should be a form of legalism and renders legal history the least dangerous branch of legal science. Law does not replicate itself naturally with one rule beginning another in biblical style. Instead, laws of resonance which could reverberate through time by being seized by the past. Anti-abortion activists have seized from the resistance of northern 19th century Americans to the fugitive slave acts, which made a moral demand for the capture of slaves in free state and the return to their masters. Anti-game marriage preference of mind, the anti-polygamy movement of a century earlier. These are examples, of course, of the Nakhlemen, the afterlife of statutes. An afterlife journey comes into existence because later generations have identified the threads of the real and big belief hardships. The section is incomplete at this point. Stephen intended to go on to discuss how Benjamin's distinction between genealogists on the one hand and elective affinities on the other might inform a non-genealogical legal history. Second, palimpsest legalism. To borrow a psychological I can, excuse me, to borrow a psychoanalytic term which in turn borrowed from art history if you peel off one layer of history on a canvas another might be discovered underneath. And if this section Stephen intended to discuss the methods which might be used to strip away one past to see another. Third, the legal history of imagination. Often by definition a legal text is a text because it's official created by the arbiters of legal authority legislators and councils judicial figures, markets and constitutional conventions. This is a kind of Astonian positivism adopted by legal historians. As Austen defined law is a rule set by men a command of a superior to an inferior with sanctions for non-compliance that is a bark with a bite. The purpose of such a definition is to provide a description of what law excludes as a category. Law emphatically was not custom, natural law, divine and normative interventions or the embodiment of justice in rules. Law was seen as a hegemonic power of the state. But in fact a great deal of law has been made outside of official legal boundaries. Imaginary punishments, market executions parodic statutes, still-born reform proposals, fabulous narratives about how law came into being. Law is often envisioned, formulated represented as a cultural artifact by a wide array of historical actors including the common people independent of government's power to come on and punish. This might be called the legal history of the imagination. Law might be made out of myth. Indeed, the fact that historians must read themselves from the shackles of the kind of historical positivism run cause the as I can please the least that is as it actually was. As well as legal positivism. French medievalist I am all for example shows how one of the best laws of the middle ages, the just primus noctis, the right of the feudal law to have sexual relations with the right of a vassal on her wedding night was in fact an exceedingly well circulated myth. Robert Tsai is currently working on a project identifying a collection of constitutions, America's forgotten constitutions. Those written by citizens as diverse as 19th century utopians, to John Brown's followers, to 20th century white supremacists. Elsewhere I have shown how legal commentators constructed an entirely universe of pre-Sanai law in order to pose the jurisprudential possibility of a legalism more oral more customary or discretionary and more concerned with the psychological question of how a non-buried person might be created outside of the blunt obligations imposed by a divine law in any moment. Even more intriguingly imaginary the law might be used to construct overarching narratives that might replace our traditional stories about legal origins. Take the classical question of the beginnings of British North America's legal and constitutional order. The received tradition is one of settlement grounds for authority from the crown established through the legal institutions such as courts or legislatures. Such an American comes down legal authority in the fashion of an apostolic succession. The monarchy is charged of agents, parliament and its cults and repositories in the legalist's of early America. These ultimately will be transmitted in the final succession to a new constitutional order. Yet among the oldest legal codes opposed to counting the new world are those written by Buccaneers and Utopians. Pirates establish direct democracies with equal voting and equal shares in Putin. What does it mean that new world constitutionals might have its origins between the devil and the deep blue sea? All perhaps imaginary legal traditions again are the aspirations of Europe. Before actually constructed and created, they were imagined. For some like Thomas Small, the new world is a place where all things grew milder, the air less burning, the soil more violent, the beasts less wild. In such an environment it may be possible to experiment with new forms of governance. Lastly, thin normativity and thick normativity. Thin normativity is the usual kind practiced in the rarefied atmosphere of law reviews. Change the following provision to provide for a different outcome. Thin normativity is the shifting of lenses. What happens to the way contract doctrine might be constructed if an historian unearths evidence of equitable consideration in an earlier period? What does it mean for contemporary law if the public private distinction only emerges in the present day form late in the 19th century? How important is the fact that transparency was a central feature of the criminal punishment of the period of the American Revolution? Thin normativity then identifies the role of a legal historian to reorient the viewer. And finally, conclusion. According to William Blake the problem with the telescope is that it alters the ratio of organs that leaves the object untouched. Legal history shares this optic. Filling and reorganizing text in neat narrative categories sometimes described in continuity and other times focusing upon an object legal historians magnify the thousands of legal documents. They chart the constellations of how the documents are related to change. When the documents do not fit together they randomly adopt epicycles. However, legal historians are commonly agreed to dissect texts one with their multiple meanings and in a sense, during violence to the text operate on them to reassemble legal expression in order to show their inherent possible meanings. The butter knife, not the scalpel has been their favorite instrument. Their way from the essential task of war is close reading and seeking social change and remain coiled up in their comfortable academic niches. Now scholars legal historians have proved more at ease with a distant vision than with tangible normative proposals. The object has too often remained untouched. Since this essay has sunk the praises of thick normativity let me conclude with a normative or at least a prescriptive summation. I've tried to strike a path midway between two frequently taking words and discussions about historians and their work and to apply these to the ways you might think about the future of legal history. On one hand we should be more self-conscious about methodology than merely reasserting the centrality of craft. Of course there's the historians Boyce-Gertrude von Neck, who must be careful with sources, diligent in pursuing facts, recognize the contributions of others, however finely attuned intuitive sense of the political and social culture of the period cultivate felicitous rhetoric and always keep in mind the mantra of change over time. But metiae should not mean that we embrace a vow of theoretical impoverishment. On the other hand we cannot turn into the young and the restless, a sort of James Dean academic discipline always cruising down the road in search of the next big methodological approach. After the social historical term came the cultural anthropological term, then came the linguistic term, finally the global term, which took the road into the borderlands, past the war terms and across boundaries. After all these terms is it any wonder that we are experiencing a sense of intellectual vertigo? But at some level historians will keep waiting for the next big paradigm. While those seeking a new paradigm might consult Gordon's pocket-guided to the exotic varieties of legal historical approaches. An even greater temptation is to reach for a do-it-yourself methodological toolkit. Rummaging about the methodologies, however, is no more satisfying than the search for an off-the-rank suit about any sort of measurement whatsoever. Gallaudet's observatory tower in Padua looks remarkably like the turret of a renaissance palazzo reaching into the sky. It has all the hubris of the fortified home of a Florentine or Venetian patrician. The soaring height, the square observation point, sitting aloft in narrow red brick turret, and the decorative carving of the buttresses. All this bespeaks a raw assertion of power if a renaissance artist wished to depict the tower of Abel. He or she need not proceed any further. Imagine, though, the structure in Gallaudet's own time. Within this baton that stands a figure, squinting through a small brass telescope. The lens of the scratched, the length of the brass tube extends barely an arm's length into the heavens and the object remains untouched. His text is the arrangement of the stars on the evening's dusky canvas. Has he forced the heavens to yield another one of its secrets? But Gallaudet, of his country, recognises a more important truth. Observation is simply the beginning of ferocity. So my visual was seen, in fact, painfully simple after that. But I will just proceed anyway. So two related questions amaze my paper, which the first is, how is it that the common law tradition remains at an integral moment of governance in the United States from the American Revolution until the early 20th century? And second, what's the flourishing of the common law tradition in America from through this period? Tell us about the relationship between law and history, and how might that relationship eliminate some of the questions raised by this conference as I understand them. So, at first glance, the vital presence of the common law might seem odd in a country that was premised in so many ways in breaking with its European past and in a similar political control of its own destiny. Or, for the common law had originated in and remained closely identified with England, it was ideologically committed to upholding precedent and to repeating the past, claiming as it did so to embody the in-memorial customs of English, customs so old with their origin lay beyond the memory of man. It consisted of judicial rather than legislative articulation legal principles. This was because only common law judges according to the story were deemed possessed of what they called the artificial reason necessary to shape it. For all these reasons, one might expect Americans who were intensely proud of their republican experiment to reject the common law. Instead, throughout this period, it was widely over the memory universally claimed and celebrated. In no small part, this was because the common law came with such heavy ideological freight. Since the early 17th century, which common lawyers have resisted the encroachments of the steward monarchs in the name of England's ancient constitution and an aberration of in-memorial endlessly repeated common law freedoms. As a result, many prominent American legal thinkers from the 18th century on considered the U.S. Constitution to be informed by and indeed to be incomprehensible without reference to the common law. Combined with this storied history of resisting the claims of monarchs, the common laws claimed to represent the customs of the community made it possible to argue that it was entirely organic, emerging from the people themselves rather than to any imposition from above. From the perspective of its adherents, this made the common law the most free, the most self-given of all possible laws, a crucial component of American freedom and indispensable supplements to American political democracy. It was little wonder then that 19th century American lawyers would argue that the common law was more than merely important in America, America was unimaginable without it. Now, as legal and intellectual historians write today, we are apt to think of the survival of the common law in America through the 19th century and at least two different registers, but you could come up with other, of course. First, and less important for my purposes, one might think of it in terms of the relative weakness of the American state throughout the 19th century. America was, of course, famously the country of courts and parties rather than understate. A state that could generate laws missing, judges fill the gap. Second, and more important for my purposes, we might think of it in terms of the triumph of a certain conservative ideology. The 19th century common law and the judges who administered it are often seen as premises standing for strong property and contract rights and against the redistributive impulses associated with social democracy. Viewed as an instantiation of a conservative ideology, the survival of the common law throughout the 19th century might be explained in terms of the impoverishment of American social democracy until the early 20th century. Law as politics, of course, as we all know, and the grip of an anti-redistributive common law judiciary and the common law in general then can be explained as the reign of a conservative politics. I argue in the longer paper that when we see law as politics today, we are heirs to a particular modernist way of thinking about the relationship between law and politics that ultimately rests upon a certain understanding of history. This understanding of history emerged in the late 19th century and is most clearly revealed in the writings of Oliver Wendell Holmes over Holmes as by no means alone. For Holmes, thinking historically was ultimately an anti-medifysical strategy, right? By thinking historically, one demolished the atemporal metaphysical foundations upon which law, or in fact any other foundational philosophy, rested. Once laws foundations were undermined in the name of history, there was nothing separating the world from politics. As such, common law judges enjoyed indeed, the common law judge's activity came to be seen as ill-driven as encroaching upon the turf of democratic majorities. Under the impact of the Holmesian Revolution and legal force that followed in the early 20th century, the common law declined in prestige and retreated as a mode of governance at least relatively speaking. Law in the 20th century, as we all know was taken away in important respects from common law judges and turned over to democratic majorities. The relative demise of the common law was the relative triumph of democracy. This is of course a familiar enough story, although it is not often related in terms of the emergence of certain anti-meravisible historical consciousness. My object, however, is to attempt to make sense of the longevity of the common law in 19th century America by examining the very different relationships among law, history and political democracy before the Holmesian Revolution in America. This inquiry might enable us to think differently about how law and history have worked together. In order to begin to examine the relationships among democracy in 19th century America, one has to distance oneself from one of the critical assumptions of modernist historical thought, namely that an iconoclastic dismantling of the metaphysical foundations of phenomena through the technique of revealing their temporal origins would clear ground, enable critical self-reflection and open up the world for reimagining and remaking. This was not the ideational world of 19th century America. Indeed, the 19th century was a world in which the notion of given constraints was very real one standard explanation for the persistence of the givenness of constraints is that even though Americans had long ceased to enact biblical strictures as law, this was a society that remained overwhelmingly religious. But the presence of religion in 19th century America thought if offered up as a definitive explanation for the givenness of constraints or limits is simply too broad. It tells us nothing about the complex ways in which 19th century Americans went about constructing their worlds and naming limits. So in what follows, I begin by offering the sense that our 19th century Americans imagined the scope of political democracy the formal sphere of political. The formal sphere of political, which would be called upon to do so much heavy lifting in 20th century America, was often imagined as constrained, but it is the kinds of limits that were imagined and the ways in which those limits were made to interact with each other that are ultimately of interest. When it comes to 19th century understandings of political democracy, it's important to keep in mind that it is a very narrow. From the American Revolution into the 20th century throughout the western world political democracy, even as it was an aspiration for millions, was new and exceptional and not necessarily viewed as a prerequisite to national prosperity or prominence. The explosive eruptions and vicissitudes of various revolutions, the late 18th century revolutions, the Latin American struggles, the revolutions of 1848, the Paris Commune, to name just a few, underscored political democracy's violence and dangerousness. It should not be surprising then that political democracy is the object of deep ongoing suspicion. This suspicion was at the heart of the republican tradition that gave rise to the elaborate structures of checks and balances in the U.S. Constitution, as we all know, but it continued into the 18th 19th century long after the preoccupation with republicanism had waned. Fingers strove mightily to ponder political democracy's limits, to conjure truths that the democratic subject of conscious political activity would be unable to tamper with. The mid-century Scottish romantic conservative historian Thomas Carlisle offered the catchiest formulation in one village with considerable currency throughout the English-speaking world. Carlisle analogized the nation to a ship that had to round Cape Horn. With the establishment of political democracy among the crew of the ship sufficient to negotiate this confrontation with an inexorable and limiting nature. Carlisle's answer was I'm equivocal and I'm quoting Carlisle Your ship cannot double Cape Horn with by its excellent plan of voting. The ship may vote this and that above, dex, and below in the most harmoniously exquisite constitutional manner. The ship, to get around Cape Horn will find a set of conditions already voted for and fixed with adam and team rigor by the ancient elemental powers who are entirely careless of how you vote. Ships, accordingly, do not use the ballot box at all. One wishes much, some other entities since all entities lie in the same rigorous set of laws could be brought to show as much wisdom and sense at least of self-preservation, the first command of nature. Democracy is a very extraordinary method of navigating whether in the streets of Magellan or the undiscovered sea of time. So nature or ancient elemental powers in Carlisle's formulation consisted of a set of conditions already voted for and fixed with adam and team rigor that operated as absolute limits on political democracy. But one should not imagine that the world of the 19th century was one in which limits to political democracy were necessarily self conjured up only by those ideologically opposed to it such as Carlisle. What we take to be a limiting or cabling of political democracy was in fact often merely taken to be an actually existing feature of political democracy, nothing other than the order of things itself. Throughout the 19th century, American political and legal thinkers were acutely aware of political democracies manifest and the most necessary or inevitable incompleteness even in those very few countries that claimed to be democracies. Nineteenth century American political legal thinkers were fully aware for example, that large segments of the Native American population, a changing group that included women, minors, African Americans, Native Americans, properly less white males, were not full participants in the policy but were nevertheless subject to its laws. At the same time they were conscious of how much of the rest of the world was non-self governing. While some saw this as the basis for demanding an extension of political democracy others did not see that this incompletion made American political democracy less democratic but instead that it underscored the fundamentally or essentially non-democratic nature of law. This in turn fed the sense of constraints on political democracy a burkian inevitability of subjection to a governing order that one had not chosen. Did the fact that women were constrained to obey laws that they had not had any part in making itself not imply that everyone was similarly constrained and you see this in fact in the writings of someone like Joseph Story. So this sense that the world was in crucial ways beyond the power of the democratic subject to remake in the youth 19th century American political and legal discourses it allowed political democracy to coexist with various kinds of limits, most of which we would today reject as being founded on an illegitimate metaphysics. As a result the political legal sphere was crowded with metaphysical times in historical and historical times with mysterious origins times with a given logic and direction and meaning. For our purposes the two different kinds of given times that enjoyed currency as limits to the sphere of political democracy are the non-historical pre-modern times of the common law on the one hand and the changing times of metaphysical history on the other. The ways in which these times intersected I suggest should lead us to what would provincialize I'm here I'm referring of course to Dinesh Chakraborty's book on the subject my friend Dubey Love was a said that mine is a very Indian book about America so I should lead us to provincialize our own post-homes in thought to render its reign less tyrannical and belittling as we look back on the 19th century. So let me first begin with the non-historical time of the common law from the 17th century on the common law tradition had claimed for the non-historical time of immemoriality. The origins of the common law were said to reach back to a time beyond memory of man, a time beyond historical specification or determination. It was precisely this resistance to history that common lawyers relied upon to claim legitimacy for the common law. To free from the strictures of the law that could be bit down in chronological time common lawyers could claim a diffuse imprecise and mysterious antiquity on behalf of the common law. This special antiquity allowed them to claim legitimacy, vis-à-vis law-giving acts that could be located in chronological time such as acts of monarchs or legislations. Such temporarily delimited acts of monarchs, common law as argued, could never possess the wisdom of the law that embodied the wisdom of multiple generations going back into the midst of time. But the immemoriality of the common law did not mean that it was immune to change. Even as they maintained that the common law was quoted immemorial, 17th century common lawyers hailed the common law's ability to respond to changing circumstances to a time of quote insensibility. The common law changed so insensibly it was argued that it could never be seen to change. This was in other words also a time impervious to historical specification or determination. The precise moment of change could never be pinned down in chronological time. Change could only be inferred by comparing origin and endpoints. And once again, common law is used this time of insensibility as proof of the common law's superiority because insensible, whatever change the common law brought about was less abrupt, less disruptive and less violent to the argued than the sudden changes introduced by moments and ledges to ledges. It was precisely the indistinctness of these times of immemoriality and insensibility times that could and would easily crumble under the magnifying glass of common historical thought that American lawyers claimed albeit in complicated ways throughout the 19th century. To 19th century American common law thinkers the bentomite charge that common law judges as they pleased was simply an illegitimate dispersion. To them the common law was an inherited body of immemorial doctrine that commanded a measure of fidelity but this was never a blind fidelity. Above all the common law was a method. Indeed the best, the most scientific and the least despotic method of quote insensible step-by-step loaning. The common law judge was uniquely privileged far more so than any elected legislature to quote read the community that presented itself to him in the courtroom. When the common law judge spoke in other words he, the common law judge, responded perfectly to the actually existing state of the community. He decided case by case unwilling to turn his back on the past or to plunge headlong into the future. As such the common law judge was committed to a careful calibration of the competing claims of the past, the present and the future of maintaining the identity of society of the time even as he was committed to change. The authority of the common law came precisely from its indistinct but when these features of the common law method were combined it was democratically elected legislatures rather than common law judges that appeared to produce the law in moments of wild abandon, devoid of any connection to the past, correspondence to the present and solicitude for the future. It was legislatures that were unscientific in their lawmaking. American political democracy shared space as it were then with the law that began that could not be seen to have begun that changed that could not be caught in the deepness of these times of the common law assured fixity and flexibility all at once. The second kind of metaphysical time that limited the scope of democracy in 19th century America was the time or rather I should say the times of metaphysical history. Throughout much of the 19th century history was not self-consciously anti metaphysical when one contemplated the historical world when did not see it as many historians are now accustomed to seeing it as the product of nothing but history and created the phenomenon giving way to another. One saw it instead in terms of the logic of a number of metaphysical firsts that underlay the passage of time and that gave meaning. These metaphysical firsts went by various names, God, spirit, laws, life and so on. There has been a powerful tradition in American intellectual history that has charged American historical thought with inadequacy or weakness. 18th and 19th century Americans were too mired in their sense of their own exceptionalism and we have been told to understand their historical world as genuinely historical i.e. as devoid of a foreordained directionality. Regardless of the overwhelmingly metaphysical nature of 19th century history discussions about history and about America's place in history were vigorous a fact that intellectual historians often slight. Even though 19th century Americans organized the historical world in terms of a number of metaphysical firsts they did not necessarily agree with one another about what constituted the logic of history or different accounts of what history was about of where it was headed. Furthermore for all Americans the actually existing world was unambiguously complex crowded not only with different logics but also with what had come to be recognized as exceptions to those logics. Metaphysically written ideas of history were applied to American democracy from the American Revolution going forward. Even as many of the 19th century saw democracy as itself furnishing the logic of history to the extent that history was imagined to possess it could equally serve as a check on democracy. If history had a meaning and it was going somewhere in other words it was possible to judge the activities of the democratically elected legislature in terms of that logic. Thus judged the legislature could be wrong in the sense that it was guilty of flouting the logic of history. Let us take the example of slavery. Pro-slavery thinkers in the mid-19th century believed that history instantiated the natural law of subordination of blacks to whites. And history proved this natural law. What could look at the subordination of blacks to whites across temporal and geographic contents and conclude this. But it also implied that American democracy could not violate this natural law. Anti-slavery legislation was thus represented as an exception to this law as something that went against the logic of history itself. So the space of democracy was calmed or limited in other words by the logic imagined to imbue history. So thus far I have been arguing political democracy in 19th century America coexisted with two different metaphysical times. That of the common law on one hand and that of history on the other. It is in the intersection of these times that we see how common law is made out of peace for the centrality of the common law as an important mode of governance in America. I'm not suggesting to be sure that the common law has a motive that the flourishing of the common law in the 19th century is entirely due to 19th century common law as skillful mobilization of the times of metaphysical history. So that would be a certain kind of crude, idealist argument that would be as bad as the crude materialist one. Nevertheless, 19th century law as turned to history remains noteworthy. It reveals their thinking to be far more sophisticated than we have given them credit for for the most part. It goes at least some way towards explaining the resilience of the common law in the 19th century and it serves to diminish prosy and false monopoly on historical thinking about law. Armed then with the indistinct common law times of immemoriality and insensibility convinced of the superiority of the common law method over that of regenerated law. 19th century American legal thinkers turned to the common law tradition to make sense of pressing issues ranging from labor to crime, commerce to slavery, marriage to lower government. Thanks to the work of modern orbits and others we've long known a considerable creativity of 19th century American lawyers in shaping legal doctrine to suit the needs of America's emerging modern economy. However, it is important to emphasize that the common law was by no means the exclusive preserve of pro-common for example, common law ideas sustained both anti-and pro-slavery positions during the years of the Civil War when Americans had to rethink the very nature of that political system, the common law tradition could even provide a legal framework for the prosecution of the war. Indeed, we need to think of the common law tradition as being a tradition of thought in and of itself encompassing ideas about time, law, society and government to which American legal thinkers turned again and again. Even as they turned to the common law tradition however, 19th century common law is turned to the metaphysical times of history. The ubiquity of historical thought of 19th century common law thinkers compels us to be more cautious in talking by the uniqueness of the modernist turn to history. History, as I suggest was something the common law thinkers were doing all along. Indeed, it was a virtual obsession. If we think of 19th century common law thought as crudely instrumentalist or formalist or repetitious, we're operating with a caricature of the way this important body of legal thought worked. In the first instance we're working together of the metaphysical times of the common law in history to subject the common law to history. From the 18th century on, English and Scottish legal thinkers were acutely aware that the old common law had developed in a land-based feudal society. Their challenge was to fit it to the needs of the commercial society. American lawyers were similarly aware that the English common law did not fit the needs of their country in many respects and that changing circumstances would require to be revisited. But from what perspective was the common law's inconsistency meant that it would not be judged? History understood as something imbuing time with meaning and logic would provide the necessary perspective. From the time of the American Revolution going forwards then, American common lawyers judged the common law rigorously in terms of a varying prevailing logic of history. Thus judged, parts of the common law would declare obsolete and excised, others systematized, yet others reformed or revived. American common law's critical use of metaphysical history tells us something significant, I think, about the relationship between metaphysical and anti-metaphysical history. From Michael's Tohensian perspective, it is anti-metaphysical modernist history that allows us to see bits of law as contingent and therefore subject to reform. But 19th century common law thinkers were also able to render bits of law contingent and therefore something to reform. The only difference is that they saw it from the perspective of a history that was metaphysical that had a meaning, logic and direction. Religious faith is so little at variance with skepticism, the philosopher Carl who was the student of Hollywood, observed half a century ago, quote, that both are broadly united by their common opposition to the presuppositions of a settled knowledge. If I understand the statement correctly, Dorbeth is arguing that religious faith, which might be a standard for the metaphysical history of the 19th century, and skepticism, which might be a standard for the modernist anti-metaphysical histories following Holmes, are both opposed to a settled knowledge. Both are techniques for unsettling knowledge, for seeing things as contingent and therefore manageable. In being brought to bear on the common law, the metaphysical histories of the 19th century then were no less effective than their 20th century counterparts. Even as they subject to the common law history, however, 19th century common law thinkers could argue that the common law occasionally is doctrine, but more often as method, itself realized and embodied the logic and meaning of history. It's important here to emphasize that because 19th century common lawyers were not using history to pull down foundations generally in the manner of Holmes, the context of the 19th century came into history and therefore reduced to politics. The times of the common law and history brushed up against each other, informed each other, constituted in each other without destroying one another. History produced a perspective on the common law, but at the same time the common law produced a perspective on history. 19th century common lawyers then revealed themselves to be able simultaneously to inhabit two different types of metaphysical time, the non-modern times of the common law on one hand and the other on the other. The common law of the 19th century America is a shuttling between the time of law and the time of history as a subjection of the common law to history and as a subjection of history to the common law goes some way, although of course not all the way, towards explaining the extraordinary resilience of the tradition of common law of the 19th century America. The common law tradition that common law has drew upon and defended so vigorously throughout the 19th century could not survive the way it did had it not been constantly updated, constantly reinvigorated, constantly re-presented and just as important, argued that the common law itself embodied the logic and meaning of history to secure a place for the common law in America. Political democracy in America was incomplete, crowded with given times constrained by history. When the common law was joined to history, common lawyers were able to argue that they, rather than democratically elected legislators, were better able to take American society in the direction in which history was pointing, better able to embody history's meaning and logic. When history ceased to have a necessary direction, as was the case where modernist anti-mediphysical history emerged around 1900, the common law could be mean to look like mere politics, right? By its influential opponents, until then common law thinkers could argue that they had a vital role to play in America's development and this is of course a totally over-determined and exact conclusion because I think the history of the 20th century is much more complicated than the one I just presented to you, but that's not something I deal with a lot. What 19th century common law thinkers' use of history does then, I suggest, is offer us one mode of thinking of law as history. In bringing history to bear upon the common law, which is what law and history scholarship attempts to do, 19th century American common law thinkers simultaneously argue vigorously that the common law itself embodied or realized the logic of history, which would be one way of arguing law as history. In the 19th century, common law thinkers were able to argue that they had a vital role to play in order to be one way of arguing law as history. So if we take 19th century legal and historical folks seriously, we might find an impossible combination of history and law, a way of thinking law as and law as both at the same time. The challenge posed by this conference in other words is something that 19th century American common law thinkers were doing all along. But to show that something was done all along is, does not, nor is it intended to diminish the question as it has been posed to us here. Thanks to Chris and to everyone at Irvine for the invitation and what in particular I know for Chris must have been countless hours bringing everything together. Catherine sort of said what I was going to say, which is he's the kind of colleague that makes all of us wish we could replicate him or multiply him at our own institutions. I won't name names about who I want to be replaced by that reputation. So let me just say that he's the kind of person and scholar that makes you grateful and happy to be an academic full stop. I'm not going to read from my paper for a variety of reasons that cause me to have to talk with my therapist. I'm and indeed I must say I'm tempted just to take Stephen's dare and summarize my paper by saying that I do indeed favor analysis for legal historians and lawyers alike. The paper is also fairly brief and it's now lodged in cyberspace, I guess with my consent, notwithstanding rather considerable ambivalence on my part about its current structure style content so there's dissemination enough of the text and I guess I'm not going to tell you how many times and how many different ways I try not to write the paper in its current form. I will say that I begin writing to say something very different with the purpose of trying to say something very different about resistance. I had possibly metaphysical ambition. To ground resistance in something outside something that would provide means for connecting in particular resistance to justice. Something along the lines of a connection that Stuart Hampshire explores in a lovely argument in his provocative book, Justices Conflict that project failed repeatedly. So I stopped digging and the papers essentially was left of the abandoned pit. I'm not completely devastated by the failure though the reason for that may give you some cause. Mary May accused me of silencing justice but I must say the paper and the larger project of which it's a part that I want to speak to that will involve speaking some law and some cases in it I've been drawn away from justice to questions that seem to circulate in and through again and again indeed to be constituted by unless the point I want to try to make now in and through to circulate in and through and indeed to be constituted by resistance. So to get at that consider if you'll pardon to concede the consequences of inverting or frankly bastardizing the famous natural law expression and unjust laws no law at all and inverting it with resistance to produce something like the form a law without resistance to any law at all. Now in descriptive terms latter is surely more accurate positivists have been rather officially and I think too long insisting on the point that we cannot use any measure of justice to identify what counts as law and perhaps I could convince some natural law theorists or any of you out there to concede that it's really your resistance to law in the name of justice to be sure but your resistance that redeems even if it does not define the status of law. The richer implications of the inversion a law without resistance is no law at all are not descriptive in this sense in a sense that's occupied which is not legal theory. They spring instead from what I take to be the more basic point one that may strike you I hope strikes you obvious the more basic point that law marks without ever eliminating the areas of dispute of social conflict undisputed terrain wherever it may be found by dubious does not typically require the articulation of an enforcement of law it's not when we need law I think this is as true of Marx's laws of economic determinism mechanics of censorship and psychoanalytic theory as it is of formal law but here for now today staying with formal law instead of the following civil liberties are written against government temptations they cannot eliminate so they mark a point of resistance between citizen and state indeed some of the most important instances in some of the most important instances the government interest that leads to infringement of what we want to call infringement of civil liberties is not some illicit temptations but an expression of constitutional duty itself so we have conflict between fundamental legal commitments not a simple narrative of infringements that we're always wanting to tell the tension between the fourth amendment and police investigation comes to the courts quite frequently the fact that both legal values in the fourth amendment and the duty to faithfully execute the laws which all executive officials swear to can be framed in the language of justice seems to me in the pen less significantly from an interpretive standpoint than the simple fact that both take their meanings, both values take their meanings as law within a structure of irreducible resistance the classic example one that I have called classic 1928 case of Olmstead v. United States involving the use by the Department of Justice attorneys of evidence that had been obtained knowingly by the legal wiretaps in order to secure convictions the case is famous, you've probably seen it quoted before for Justice Brandeis' parade of horribles about government law as an invitation to anarchy it's not off topic, so I'll give it to you when these unlawful acts were committed by federal agents, they were crimes only of the officers involved when the government, having full knowledge sought through the Department of Justice to avail itself of the fruits of these acts in order to accomplish its own ends it assumed moral responsibility for the officer's crimes and if this court should permit the government by means of its officer's crimes to effect its purpose of punishing defendants criminal defendants like there would seem to be present all the elements of a ratification if so the government itself would become a law breaker in a government of laws, this is the famous quote you see displaced out of the case in a government of laws the existence of the government would be a peril if it fails to observe the law spruculously our government is the potent the omnipresent teacher for good or ill it teaches the whole people by its example enter the parade of horribles crime is contagious if the government becomes a law breaker it breeds contempt for law it invites every man to become a lawyer himself semi-colon it invites anarchy and by wiretapping phone lines federal agents have recorded hundreds of hours of conversations among individuals in Washington state who were conspiring to import it it must be conceited a massive amount of liquor it violates in the national prohibition act Department of Justice lawyers decided there were two charges in one conviction by relying almost exclusively on the wiretapped conversations and derivative evidence notwithstanding the fact that the wiretapping was a crime under Washington state law the majority found no illegal search and seizure in the case under the Fourth Amendment because the defendant's homes and his cute legal expression were not entered and it brushed aside the concern that so-occupied Brandeis and lawlessness in the government with the assertion that the criminal law of Washington could not control the rules of evidence in federal court so jurisdiction is used to avoid the specter of the use in lawlessness so it was left to homes who in a separate descent noticed that the case involved structural resistance for that reason I give you the case resistance arising from contested constitutional and public values that defy any ready synthesis though Holmes gives you the concise synthesis of the defiance of ready synthesis he admonishes that the court faced two objects of desire both of which we cannot have it is desirable that criminals should be detected and to that end that all available evidence should be used it is also desirable that the government should not itself foster and pay for crimes but when they are the means by which the evidence is to be obtained when they are the means by which the evidence is to be obtained it is also desirable that the government should not itself foster and pay for crimes when they are the means by which the evidence is to be obtained we have to choose and for my part I think at a less evil that some criminals should escape than that the government should play an indignable part I think Holmes makes the right choice but what matters for present purposes is that neither choice avoids lawlessness and both resonate with compelling collective interests contested electives a more mundane but at a more mundane but no less important level at least in the American context the adversary system itself operates on or establishes if you will for legal decision making for the process of rights definition a structure of resistance and I'm not just referring to agonistic rules of procedure and evidence but the fact that those agonistic rules of procedure and evidence are followed not by the closure of judgment even in the run of the mill case not by the closure of judgment but quite often by its attracted and entirely new rounds of litigation over the remit and its enforcement which speaks to the status of the judgment the story of Brown to give an obvious example is not only incomplete without but is in fact undone by the remedies and enforcement decisions rendered decades later in cases like Milliken versus Bradley one Milliken versus Bradley two Missouri versus Jenkins one through three and all of this long before Seattle schools and Robert's little nail in the coffin we come to know what the law is by a resistance resistance tells us it takes law off the books it tells us what's going on off the books something like the same thing occurs in run of the mill simple private law cases all the time I'm a procedure instructor in addition to somebody who writes about the history of the field profession my favorite example of this in a run of the mill case is midcom wood products versus Harris 27th circuit $29,000 of wood Harris buys it from midcom wood and big surprise here he doesn't pay for it he's in breach of contract midcom and threatens to sue Harris gets a lawyer Harris's lawyer offers a settlement the settlement is agreed to by midcom and wood products Harris doesn't pay so Harris is accused of breach once again of lawyers from midcom and wood products and threatened with suit a suit's actually filed this time and comments lawyers are waking up to the resistance of Mr. Harris a promissory note is entered to resolve the first lawsuit Harris does not pay the promissory a second lawsuit is filed Harris does not show up to defend or answer in the second lawsuit a default judgment in favor of midcom and wood products is entered against Mr. Harris it takes midcom that six years to locate assets this is the post judgment part default judgment entered does not end the case it takes six years from midcom and wood products lawyer to identify assets of Mr. Harris those assets are attempted to be seized Mr. Harris comes into court for the first time in the case having had a lawyer all along but for the first time in the case comes into court and says guess what you sent the notice of service of process to 13c court drive I live at 15c court drive the gavel goes down the case is thrown out the judgements void for want of jurisdiction for the defective service of process ten years a debt all including Harris verbally through his lawyer himself as conceded as newly owed is not paid now whatever one's view about justice and resistance to Brown the injustice it's exceedingly difficult I think to frame my students find it exceedingly difficult I take great pleasure I must confess in their difficulty trying to find a way to frame Harris's conversion that's the key column I'll work for theft here of wood and his procedural maneuvers a way to find that theft a way to frame that theft to avoid judgment in anything like the register of justice it's purely self-interested quite open resistance to law and the lesson of the case is that it's tolerated indeed good lawyering for Harris requires it even more fundamentally in my view there's no constitutional guarantee of complete constitutional fidelity for any branch of our government in fact the range of doctrines precludes the courts from taking up and providing remedies for lawlessness by other government actors from a structural perspective what this means is that the constitution contemplates internal resistance and not just at the level of intergovernmental resistance endorsed by federalism and separation of powers but also in the sense that there's no guarantee of complete constitutional fidelity endorsed by federalism and separation of powers though that's no small thing but by and through the unreviewable extralegal action of discreet state actors this is Justice Scalia he's going to give you some godly good constitutional chapter at first but I think it would work the endeavor this is Scalia in a case the details of which we could talk about if you're interested I turn then to the substance of the courts all colorable constitutional claims arising out of the respondent's dismissal may well be constitutionally required what could possibly be the basis for this sphere here's the key surely not some general principle that all constitutional violations must be remediable in the courts the very text of the constitution refutes that principle since it provides that each house shall be the judge of the elections returns and qualifications of its own members and that for any speech or debate shall not be questioned in any other place speech or debate clause claims concerning constitutional violations committed in these contexts for example the rather grave constitutional claiming that an election has been stolen this is the 1988 case he's walked back on that particular line cannot be addressed to the courts even apart from the straight text of the constitution we have found some constitutional claims to be beyond judicial review the doctrine of sovereign immunity not repealed by the constitution but to the contrary these partly reaffirmed as to the states by the 11th amendment is a monument to the principle that some constitutional claims can go unheard no one would suggest if Congress had not passed the Tucker Act that the courts would be able to order disbursements from the treasury to pay for property taken under lawful authority and subsequently destroyed be able to say it but unlawfully without just compensation and finally the doctrine of equitable discretion which permits a court to refuse relief even where no relief at law is available when that would undo the impair the public interest does not stand aside simply because the basis for the relief is a constitutional claim and some it's simply untenable that there must be a judicial remedy for every constitutional violation members of Congress and the supervising officers of the executive branch take some the same oath to uphold the constitution that we do and sometimes they're left to perform that oath unreview as we always are now it could not be otherwise much as I like to find myself in disagreement with justice that room for constitutional error the executive branch and its administrative agencies just focus there for a moment the agencies that are responsible for regulation and the enforcement of law would be crippled which is to say that the law itself would in some sense be crippled the only question for debate the difficulty acknowledging is in fact the question for debate is the degree of tolerable constitutional error the degree of tolerable resistance to law but the areas of state resistance to law are broad indeed prosecutorial discretion just about every area of habeas review in federal courts of unconstitutional state court convictions much of criminal procedure generally nearly all of administrative law just by sovereign immunity, qualified immunity justiciability doctrine to tell you when you serve a claim in court vast areas as we now know of national security and these are not I'm at pains to emphasize harmless constitutional errors the stuff only for legal scholars to be concerned with I could here add an ex-versus on the Bush administration's extra legality with respect to torture the expansion of executive power that coincided with it the borrowing from expansions of executive power in the Roosevelt administration and the first wave of the New Deal or from Andrew Jackson's presidency and his reliance on Andrew Tawny to secure a victory in his so-called war against the bank and as well the post hoc political ratification of both that extra legality and of executive power by Congress in the Military Commissions Act all of this a kind of law reform notice that is operating through lawlessness here by the executive seizing the authority of initiative to act first change the legal terrain in which that action is taken and thereby change the legal terrain in which it's evaluated and largely unreviewable by the courts but I hope I've said enough already to make sense of the inversion with which I began resistance to law is constitutive of our legal order borrowing from Stephen Will's lovely menu? Chris, I think is the metaphor law is a lexicon constructed on contested sites resistance to law is constitutive of our legal legal order constitutive in ways I hope I can convince Chris are not merely so my paper for this channel is a kind of prologue to a larger project that is addressed in the first instance to the memory work of those of us who have sworn in oaths to uphold the constitution of the laws and find ourselves quite regularly indeed I want to suggest rather systematically in the position of counseling resistance to law on behalf of resistance subjects we lawyers and no less the resistance subjects we represent have created rather elaborate quite vexed and in my view genuinely understudied narratives to diminish, conceal and rationalize our role and resistance to law so the paper traces modern history's debt to revolutionary resistance and to law not so much to make a general endorsement of counter history which I take it as familiar to all of this audience as to locate a method by which we might we lawyers we legal historians approach resistance to law without forgetting our role without forgetting how pervasive it is a method that is for returning law and history to resistance to what will cause seizures without letting either discipline hide out in the other I too want to start by thanking Chris and the UCI School of Law for coming up with such a provocative call and bringing all of us together and thank Chris and Catherine and everyone else for the wonderful organization so far and what I'm going to do is just read my paper so I'm hoping that most of you didn't read it when it was circulated if I have actually read most of the other papers and so what I'll try and do is I'll also try to make it gesture towards where it is that I think that they fit I mean the ones on this panel will be able to tell because you're here but in case you aren't here for every session you can maybe see how it is that the conference will possibly lead together and if I don't mention your paper it probably means I haven't read it not but I don't think highly of it so my paper is Laws Playing to Justice and I am beginning by taking off from some criticisms that I received from other work that I did so in Just Silences I wrote that justice today lies in various ways in the silences of legal texts and I suggested that different disciplines take different approaches not only to law but also to silence and to justice and I criticized particular approaches that disregarded downplayed or otherwise dismissed the need to attend to silence and to justice in studying law. What I'll do today is suggest that taking seriously the difficult claim that justice lies in the silences of legal texts leads one to value precisely the kind of scholarship that recognizes both the importance of and the limitations of texts as utterances and as artifacts with their own particular provenance and context. Legal history is of course one such area and hence it's an enterprise through which one can productively engage with law and with its modern silences. Indeed I suspect in fact I know that such engagements already happen in legal history so I'm taking my talks today to be to exhort legal historians to continue to provoke confrontation with issues of justice and silence probably in some ways like and I'm like Norman Spaulding's talk that you just heard that is to provoke confrontations which other areas of legal scholarship might simply ignore or simplify at their peril and so in this spirit I'm going to point several ways in which what I consider to be a rhetorically inflected legal history is particularly suited to reflection on justice in law. My points together suggest if not quite a theory and method for legal history certainly it defends of approaches to law that characterize the humanities and a challenge to those who fail to perceive the relevance of sexual work for understanding law. Legal texts are enacted and legal actions occur whether just or unjust in the name of the law and that is originally the title of my paper. Like an annoying snatch a lollipop song in the name of the law refuses to go away even though I got rid of it in my title. In accompanies legal texts and actions even as it's difficult to understand and seems to have received no explicit scholarly attention. Exploring the name of the law cannot be left to studies of law that have little or no use for the way language works. Such studies of law are radically incomplete. In their own terms this may not be problematic but for the purpose of understanding law these studies leave out too much and our rhetorically informed legal history or perhaps I should say historically informed legal rhetoric offers welcome correctives. The rhetorical historical study of law as a series of speech acts that I'm going to propose reorient its current tired debates in the legal scholarship of other fields and that will be part one of my paper. This speech acts approach to law emphasizes as in some sense admittedly does all the history the temporal aspects of law as an event belonging to a tradition however contested that tradition is and that's part two even as this approach to legal speech acts also draws attention to the ways in which law differs from the subject matter of other sorts of histories and my claim is that it differs, law differs legal history differs from both law and from history more generally speaking insofar as law as rhetorical phenomenon and event appeals to justice so the appealing and the claiming about justice is important to what it is that I might give you. So part one law as speech act and this is the part where I've related to the other fields in the call for papers. So in keeping with the terms of what are the original calls for this conference I'm going to begin with a challenge to legal realism which is the longer probably. Although more sophisticated scholars of law now widely disclaim the strict legal realist distinction between law and action and law in the books that distinction still holds in many approaches to legal research and legal education. Legal realists and historians of law and who turn to the empirical study of law are indeed correct that formal rules do not describe legal behavior. They're correct that legal reasoning bereft of any correspondence with actuality is vacuous but in distinguishing law and action and rejecting legal text as simply law in the books, realists no less than theorists who would reduce law to statements of rules as we shall see, move too quickly away from the ways in which speech and writings matter. Law and society scholarship has long shown how law acts. As a new legal realism symposium in a relatively recent Wisconsin law review puts it recent law and society scholarship shows how law acts from the bottom up as well as from the top down. In the bottom up formulation attention to legal ideology legal consciousness and law in everyday life does much to fill the gap between action and doctrine but that feeling is not as satisfying as it could be and actually there's a paper coming up later in Laura Edwards' paper on keeping the piece which I think might be a nicer way of thinking about that feeling. So law and society continues to emphasize legal actions over legal speech and continues to focus on power, domination and control in and of law. As most of law and society claims then in law as elsewhere it may indeed be that actions speak louder than words but using words through speaking and writing is action in a very particular sense and what many who don't have ears behind their ears as nature put it do not understand loudness may not always be what is most abdition. In the context of legal histories relying on textual materials and it's important to note that both law and history rely largely on written text and their authority and revitalize and explicitly rhetorically inform legal history could or can or does hasten the death rows of the law and action law and the books distinction insofar as it shows how law and the books whether legal doctrines or some other sorts of utterances or written or spoken productions are themselves act and acts and how law and action cannot be understood through empirical study alone. Informed by understanding legal writing and speaking practices legal history reorients common misunderstandings of text as static and then also as image free as you'll see in Peter Goodrich's paper later. An example of this comes in Cronin of this very excellent book Files Law and Media Technology which for instance shows how changing and archiving practices accompany different sorts of governance. Different ways of circulating depositing, wording, copying, pasting deleting, notarizing, storing, compiling and indexing characterize different forms of law. Transmission of news through moral acts announced by local town prior for instance not only differ from the updating of the codices of Imperial Rome but enable or accompany a different sort of rule and administration. Further, when files become documents and humans kept in public places rather than personal notebooks it's possible to make copies to prove legal claims. Such an emphasis on evidence rather than on transmitting news the way it was with the local prior takes reality to be what's found in the file. Dispatched letters sever the links between acts and objects of transmission that characterize formal public announcements. The silent reader of a sealed letter takes its content and not its exact wording as Imperial command and she goes on and it's a great book I really recommend it. In grounds speak that texts of law involve practices of writing and speaking legal history complicates not only the difference between an ineffective law on the books and which you've heard about a little bit today and in powerful if also out of control law in action then. But also complicates whatever remains of philosophically simplistic positivist understandings of legal power as simply commanding authority. Insofar as legal history recognizes that the legal quality of a text or action is given by its context such history also recognizes as indeed did John Austin himself when he defined law not simply as command which readers apart mistakenly take Austin to be doing. But he defined it as command by threats which subjects are in the habit of obeying. So he's claiming that more is required for there to be law than a powerful agent. Legal history that acknowledges both the dynamism of speech and writing and the context that's necessary for a speech act such as command to be effective as well approaches the insights of a second Austin J.L. who famously argued that non non-sensical utterances are speech acts whose success in any particular instance depends on its context or on what you call the total speech situation. For the responsible speech act of command that is law to work argue both Austin's supported by legal history and by Lon Fuller the circumstances must be right or in Austin's legal the felicity of what he at first calls a performative utterance and then later an ill-occutionary speech act requires that there has to be a convention or procedure for the act that includes the uttering of certain words by certain persons in certain circumstances that the persons in certain circumstances the appropriate ones, the procedure must be executed correctly and completely if certain thoughts and feelings are required you have to have them, there has to be that kind of thing. All parties to law today know this, that procedure matters and we have a great example of that just a few minutes ago. Unless forms are filled out and fields filled in all the way on time, scanned or sent to the right office, signed by the proper parties, stating an appropriate cause of action, a street number for instance a claim fails to amount to a successful complaint just any reps in other words cannot make less and context them the conventions and circumstances surrounding a sensible law matter to its success as law now the legal positivism that today predominates in the western philosophical tradition of course associates less law less with command than with a system of rules that in some sense establishes the conditions of its own production of law as law and that has no necessary connection to justice and here I'm thinking about H. L. E. Hart and his idea of law as a system of primary and secondary laws and you know we can talk about that but despite modern legal philosophies repudiation of law as command today's legal positivism nevertheless continues to rehearse the old debate between legal positivism and natural law and the claim as you know is that for the natural law people law grounds the justice of law in morality or in a higher law while positivism insist that there's no necessary connection between my morality and there's actually some nowadays who are starting to deny the statements of this debate there was a recent lecture at Berkeley where Liam Murphy who's a positivist invited to give his talk gave a whole talk on how much the disagreement between positivism and non-positivism as to the grounds of what matters and his answer was not much except in merely verbal ways and I'm going to go on and talk a little bit about you know this gesture towards what's merely verbal but before I get there I want to just remind you that legal positivism and natural law do agree on one thing they agree that law whether it's as rule or as right they agree that law somehow tells us what to do in the telling of law that's acknowledged to happen by both sides of this dispute the rhetorically savvy legal historian again recognizes activities of knowledge for production of discovery and enactment of dissemination and receipt of law the telling of law that all the philosophers recognized is an activity while in principle this activity need not I suppose happen only through words it does occur largely through language today and since 19th century codification movements and 20th century restatements largely through writings the telling of law today thus is a series of speech acts while one can contest particular descriptions or characterizations of this activity of telling or series of speech acts as law surely this often neglected commonality between natural law and legal positivism is as telling about law as is the original dispute between them disagreement as to the grounds of law actually matters less than that law claims and that's a speech act law claims the authority whatever the grounds to tell us what to do and law often rightly or wrongly does so in the name of maybe what we can call justice which name justice it has at least at times taken to be its own whether that's so or not is an open question but has taken that name as its own however verbal and you have to acknowledge that it's sometimes silent so however verbal is law's appeal to authority and justice this appeal is not merely verbal the appeal and claim of law is not only a speech act right the speech act of appealing the speech act of claiming but also carries with it and follows a particular tradition the authority and justice of this tradition is not or at least has not always been merely verbal as legal histories show and I think that probably Mary Ann Abel Verdi's paper the honor of the crown sort of resonates with this point so law must be investigated not only as the tradition which Lovie at this conference and others show can be done in different ways than we're used to but law must be investigated also as claim and as appeal what does law do in the claiming and appealing that is fundamental to it and how does it do so through the particular speech act of claiming it seems law is bound as it has been throughout the tradition of western jurisprudence and law finds us for its speakers to issues of justice language not a God or a higher law has bound the law even or perhaps especially when law is unjust and this is perhaps in keeping with the resistance point to claims about issues of justice and that's very important to my argument is that it's language it's not God or a higher law that binds us and binds our law to issues of justice and I don't mean that language makes our law just what I mean is that the claim to justice is the way in which our relation to what justice would our relation and the relation of our law to what justice might be could possibly happen but claiming is only one if perhaps a privileged one of the speech acts of law legal sources and actors complain, rebut, instruct appeal, threaten, testify, swear object, overrule, enact appoint, find, business, amend approve, deny, declare, agree promise, qualify, hold sentence and so on those are all speech acts legal history reads its sources for what they do and how they do it that is for verbs and adverbs rather than for the truth of their representations and for their classifications of persons and things or nouns as is done in at least some legal education the doings of all it's legal speech acts emerge not only as having a tradition but also as events or occurrences that happen in or take time and then here I have an insight that I was just coming to this morning and listening to Kunal's paper again which is that law not just has but is tradition and that how it understands its own time is going to be relevant to how you understand this linking up to some of the other papers but that's just an insight the second part of my paper is that if we now move from the idea of law as speech act to law as eventing time we can think about what the difference is in a particular case that I picked because I had it in my first year criminal law casebook Morissette versus the United States the usual way of teaching students to read and read this case could be transverse issue, rule analysis and conclusion following identification of parties, procedural status, description of facts and so forth and you can read Morissette it's true for establishing that intention is a requisite element of criminal liability that in omitting reference to intention in statute Congress didn't intend to create a new category of crime that is unwitting conversion and that blah blah blah, trial and court instructions regarding intention were an error in particular circumstances but if you read the opinion instead for what it does which is actually how it is that is written Morissette becomes the story itself a speech act of the series of speech acts comprising a trial so Morissette gathered spent bomb cases from federal land and sold them thinking they were abandoned property he was indicted and inditing would be a speech act as would accusing me that we heard so much earlier he was indicted under U.S. statute for unlawfully, willfully and knowingly stealing and converting property in United States the trial court convicted and sentenced him following the trial judge's instructions instructing also being a speech act to the jury that they could presume intention from knowingness wrongful intention and the appellate court affirmed speech act with one judge dissenting speech act and the Supreme Court then reversed in a speech act this Court of Appeals decision and the Supreme Court first dealt with the appellate court's interpretation of the statute that progress enacted in another speech act and then they dealt with the trial judges erroneous instructions to the jury and the Supreme Court argued speech act that the jury could have legitimately concluded speech act otherwise so you're getting the idea the Court of Appeals construed in which in this case would be a speech act of criminal intent from the Congressional statute as dispensing with it but the Court held that where Congress borrows terms of art which are accumulated in which are accumulated the legal tradition and meaning of centuries of practice that presumably knows and adopts the cluster of those ideas and you get the idea of how it is that the Court then finds speech act no grounds for inferring, speech act any affirmative instruction speech act from Congress blah blah blah I'm not going to go into that but if you really want an example of speech acts in action a great idea a great illustration of that is Barbara Lucky's dramatic presentation through dialogue of her example that she'll talk about tomorrow the point is that in my case as well as in the practice of law as probably most people here know but doesn't all get said the opinion as well as other aspects of law become one of a series of speech acts making claims about the series of speech acts making claims about law which is itself a series of events if events can be told though their import like the import of traces in a text nevertheless cannot be completely foretold who could have predicted that a medieval law grit about a widow in 1310 who fails to win back her land could become a 21st century example of the thrill of legal analysis or that the editing out of lawyer's names but not those of judges in cases in case books suggest to one writer that law students are not taught how lawyers in many cases quote had a sense of injustice a sense of wrongness about the system and then use their lowering skills to bring about a change and they were successful as legal history moves beyond the actualities of socio-legal positivism that's the legal realist talk I did at the beginning the abstractions of mainstream philosophy of law that's the natural or positive law debate I gotta do and the statements of rules of professional legal education that's the more set comparison to a study of particular events in context that take place over time it leads one to think about the ways that justice is and has been said and unsaid in text of law even the story of how bill gets passed or fails to pass is a tale of claims as to what the law or the constitution or the budget or whatever it is is and or should be accounts of such claims and what happens to them lead one to think about the ways in which justice may yet be said and unsaid not only in text of law but also in text of history justice is said and unsaid in claims made and in responses to claims made in the name of the law not only through the speech acts of law but also through those of history and the third part of my paper which is a page long has to do with law as claim to justice attention to claims as to the justice or injustice said and done in the name of the law shows how law matters if justice no longer lies within the main wing of philosophy history and rhetoric must now have the issue of law's claims explicit and implicit counts and present to justice and I think there's some of this going on in Roy Crichton's paper that would be a later rhetorically informed legal history suggests that law matters in a different way than to other sorts of phenomena that are the central concerns of most social and cultural histories and here I'm sort of on tentative ground because I don't really know what the central concerns are for social and cultural histories I have a kind of sense but you know you can dump on me for this if you want those histories in my sort of ignorant opinion seek either what is taken to be typical from which they like social study and to generalize or they explore what is presumed unique whether spectacular or marginal from which cultural imaginary secretifiers suppress anxiety and greed law as speech acting event is both typical of and unique in society it both represents and is atypical of its culture so law always matters in both ways then as that from which one may generalize and as that which reveals more than itself the contribution of explicitly legal scholarship to history is that it allows one to consider how what is said and done in the name of the law matters it matters not simply what is done through law is typical or is revealing of fantasy but because the name of the law matters to those who invoke its name explicitly or implicitly and to those who cure it how an act or event or claim or utterance in the name of the law has mattered is the peculiar contribution of history to legal scholarship legal history shows that the name of the law has mattered thus raises the question whether the name of the law and law's corresponding character as its speech act that claims and appeals to justice will continue to matter it raises questions as to the possibilities of law of claims to justice and thus of our connection to justice which comes not so much from law or higher morality but appears through such legal speech acts as claim and that's what I would think would be the direction that legal history needs to go or to say that it is already in thank you I think the drill is that we now should take a short break and then we'll return to listen to Cristian needs no further introduction okay this time I'm speaking in my own behalf or if you don't like what I say perhaps I'll play but I'll continue to channel Steven about 20 years ago now for another conference in which I had a hand an old friend, Karen Arman who's a scientist at UCLA wrote a very fine essay which she entitled metaphysics and reality in late 19th century label and adjudication the essay rehearsed arguments that she would soon elaborate in her book Belated Feudalism the metaphysics to which Karen referred were the metaphysics of the common law of masquerade and servant based, she wrote on custom and precedent accreted and enforced in judicial holdings formal rules embedded in the structure of the constitution unmoved by democratic master revolutions detached from their original settings placed in a framework of concepts the reasonability of which was defined through a process of exposition by professionally trained intellects reality was the material reality of the workplace that existed in two discrete moments the ancient moment to which the rules of master and servant in their own origin corresponded at the moment of the late 19th century into which in their continuity they discordantly intruded and where they encountered an opposition strikes pickets boycotts massed industrial violence that was as it were a movement out from under a demonstration of the old principle's no longer hell Karen proceeded to connect this demonstration to what she termed broader cultural currents at work in the epoch the currents you'll not be surprised to hear this after listening to Kanale Parker's paper and reading it, the currents of pragmatism the last three pages of Karen's essay were a virtual anti metaphysical club the intellectuals public and private whose so-called revolt against formalism marks the moment of early 20th century American progressivism Crowley, Whale, Whitman James, Dewey, Holmes Pound, Pierce and more and in hand as it were labor movement and intellectuals and a transformation of American politics and culture the victory of current realities over timeless truths that would furnish the material and ideational bedrock for the 20th century's liberal politics for its liberal legalism and for their twin insistence that all knowledge was historical and social I had at the time 20 years ago reason to dissent from aspects of Kanale's argument and I still though do although what's interesting to me is that my reasons now are rather different from my reasons then but that's a real importance this morning I mentioned Kanale's essay because it gives me my introduction to these papers in this opening panel because they like others we will hear over the next few days respond to the historical moment that Aron celebrated and to its intellectual creations they do so in part because as organizers we invited the response we identified precisely that early 20th century moment as the moment of invention of what we called law and what is called law and law and first mooted in Roscoe Pound's turn of the century distinction between law in the books and law in action nurtured subsequently in the bosom of realism thoroughly popularized by the law and society movement law and research relies on empirical context to situate the law as a domain of activity it explains law through its relations to cognate the distinct domains of action society, polity economy by pausing the interactions among them but the theory and the practice of contemporary legal history we argued exemplify the influence of law and in its resort to synchronic analyses of relational and disjunction to which it adds diachronic temporality as a further index of relationality that situates phenomena in temporally discreet empirical contexts and attempts to reveal the effect of law or to explain the reality of law by assessing change over time in law vis-a-vis that contextualizing domain be it society, polity or economy from which law is held relationally distinct so the animating hypotheses of legal history events the same broad relational problematics that at successive moments have preoccupied law and instrumentalism relative autonomy mutual constitutiveness legal construction orthoporesis in determinacy we invited those who recontacted to consider the legitimacy of law and to mull the possibility of a distinct conceptualization that recursed more as one which Shia Levy in his paper for the next session has identified with justification as an invitation to a re-enchanted writing of legal history but it would be incorrect to identify the conference call as the point of origin for this session's all for Shia's identification or indeed for any of the papers that we will hear over the next two days the call itself expresses ideas informed by the work of those who are here as well as the work of others all of whom have helped to create this as a moment so to speak for appraisal and discussion contemporary history as professional project is full of talk of its own endlessness history and that is not the only discipline that I've done this by any means has fetishized the complexity and contingency of relationality to the point where relationality simply produces more and more of itself one reads the book reviewers in any history journal one will meet several notifications of this or that revision or reinterpretation so commonplace that not to be revising or reinterpreting will seem somehow odd one loses count of the number of times one is told one will be forced to rethink some conclusion someone else reached only 2 or 5 or 15 or 25 years earlier the result is nevertheless that history has increasingly become its own subject not unfortunately in so rigorously self-conscious a manner that would lead us to a non-material philosophy of history rather we are as Arthur C. Clarke once put it out of the cradle endlessly orbiting this is not intended as a complaint more an empirical observation I am not advocating a return to the cradle my hope is that in our maturity if that is what it is with science we can discover a language a rhetoric in terms that is not constantly assimilable to the endless orbit of what Mori Horwitz for one has identified in conversation as nothing but moves moves that do not in fact convey one anywhere other than to a new site for the production of more moves more output the hope of course naive in that it is itself very and immediately assimilable to a move thus its expression to more output still one cannot hope so it is in that spirit of hope that I turn to these papers my own customizable addresses the time on a gap between law and action and fills it with speech thereby she demonstrates that if the gap really does not exist it collapses in on itself our attention then is drawn not to a conception of action as the only worthwhile empirical and also implicitly normative guide to law's reality but to law is the embodiment of particular species of action speech action an enactment of speech a practice amongst more practices a speech how does law act Mori Horwitz asks it acts in the name of stakes acclaimed to above and to what my answers justice she says it in a complex way in which the name of the law seems to be justice as if one cannot be quite sure the connection becomes unclear fragmented a conversation on which there's too much static or perhaps to use a metaphor that shows my age perhaps it's a party value in the rigor of our disenchantments we've learned to talk of justice as evanescent residual drowned out in my aunt's paper law is positively garrulous noisy cacophonous as noisy as the sociolegal positivism that in her book Just Silences is the acme of contemporary sociologized law that is the law of law and that she says there relegates connections between law and justice if any to empirically contingent social realities my aunt proposes that the act of speech naming and claiming reconnects law and justice but amid the noisy prattle of law and struck by how inarticulate law is when it actually comes to speaking of justice the observation is that intended counter to my aunt's proposition after all a stammer and embarrassed silence is as much a speech act as any other what is it however when the speech is speech but not claim but specifically disclaim one example only but it seems to me not unique take Roger Twine speaking for the majority in Dred Scott it is not the province of the court to decide upon the justice or injustice of the law but to administer it as we find it to name oneself justice in this particular prominent instance is to invite ones undoing struck by how my aunt describes law on the books rather than in them it's a figure of the speech of course it led me to two thoughts first of books as artifacts and of how in for example Kafka's process the trial law is contained in books for the secret the expression law on the books rather than in them can suggest that books are law books because that is the name of them but what is in the books remains secret justice may be in them but it is not read or this is closer to my aunt's meaning perhaps justice may be secret precisely because of the name on the books that is when we read them only in one way when we read them as law books because that is their name justice then becomes an infusion a ghostly infusion spectral a di-book to borrow Asaf's lovely open justice is like law in the books waiting and hoping to be known but only to be discovered once read distinctly a silence perhaps as my aunt has argued or alternatively not that to which law gestures in speech or silence at all but instead that which unfolds from law not when called upon or squeezed out or tracked down and cornered but only when it has sufficient reason of itself so to do to return very briefly to Kafka and the neo-advocate Dr. Disciples does not practice law at all he reads he reads and turns the pages of our ancient books the law that was studied but no longer practiced Walter Benjamin was Kafka's opening to justice if law is speech act hence action practice does the practice obscure rather than connect to justice my second thought somewhat distinct was of law under books as law always poised for action as origin as it were as strong as coil spring steering wheels paper which I will retain gives us a succession of images of the nature of law texts and precisely this form as a sort of latent energy thrusting, instrumental powerful, inevitable intolerant, hungry for some reason this is for those of you who read Harry Potter remember the monster book of monsters and think of law books as monster books and monsters they have to be bound with a belt to keep them shut because otherwise they will come out and bite you on the ankle can justice ever inhabit texts such as these Colonel Park his paper lets one's appetite for his book though I should of course confess immediately that I have an interest in his success because I am the editor of the series in which his book will be published um here too we encounter a gap as it were a blank created by intellectuals insistence on emptying 19th century life of its phantasmagoria and filling the void with the incessant hubbub of their reflective intellect what is drained in this particular instance is the common law invoked by Kent early in the 19th century as the water of life determinedly sucked out approximately 80 years later by the American legal traditions reigning a visceral Oliver Wendell Holmes Jr who dissolves both life and law in the acid bath of nothing but history that is to be the fate of the 20th century to my eye Parker's invocation of the common law is elegeric almost in the full sense of a word that is it mourns that which is irreversibly dead radically for its revival but what is most decidedly his achievement it seems to me is to show how by paying attention to their antecedents two of the most relentlessly positivist of scholarly discourses namely modern American history and modern American law both stand revealed as subtle knowledges while simultaneously each by reference to those antecedents is re-infused with the capacity for a certain mystery invigorated in their capacity to unsettle subtle knowledges and here I am following canal's reading of Carl Lewis who may have not myself read but without necessarily paying a surprise at that capacity the exorbitant exaction demanded by what we have come to call postmodernism which is that knowledge shall never ever settle again what I mean to suggest is that what the science now maybe can do a second lap as metaphysics what might happen if we were to re-infuse wealth's hungry law books with metaphysics that same thread of metaphysics had been by Norman Spalvin's resistant subject and to the fabric of this morning although the read is certainly distinct the subject's resistance and hence chance to awareness lies on the possibility refusal to be bound refusal to be completed refusal to be ended or contained by anything law or politics or history and in holding the moment of refusal itself indefinitely open and reminded of Berthold Brecht's dispestitute purple George Furkinby and Frebenin Hovel who dreams the day of judgment the greatest arraignment of all times of the judge, the living, the dead all who had in any way warmed the poor from defenseless and who awakens from his dream to find that he is himself a condemned the moment of future of his awakening his arrest and his execution Brecht annihilates the possibility of a relationship between justice and law the oppressed will not be rescued by dreams the question rather is the knowledge one possesses the moment of awakening the knowledge one brings to bear on the materiality that presents itself when one wakes up it seems that society has the last word by hanging George Furkinby in that waking moment he has understood how ancient is the crime to which he and his kind fall victim law reminds us of the price that accompanies refusal an unbounded awareness is as ontologically terrifying as the finality of death and is hence as much an occasion for avoidance as that first scene which he inverts in his paper terror urges us to displace to trim, to contain or to complete our existence or to have it completed for us on our behalf by structures of law politics of history that undertake completion by rematerializing the subject in compliance a consenting legal subject to settle knowledge I think here I'm sure that we are quite as bereft of means to apprehend the possibility of a distinct subject position as Norm argues in his paper I wondered for example when agonists like my colleague at the American Bar Foundation Bonnie Honig stand in Norm's account of contemporary political theory at the intersection of law and history also like those like Cornelia Lisman already mentioned by Marianne perhaps in a very different way Carol Payton this work in both cases seems not to assume the legal subject but rather to trace the means and media of its construction as such I agree though that when I take to get a larger point that if our history is not to dissolve into law then our task is to write legal history without necessarily assuming law to do that one must be able at least to imagine history without law or at the very least imagine how to write a law's beginning and end but then the question arises whether this is not to dissolve law into history as as Holmes did and hence pose just another form of completion it seems to me one must therefore know how to write of the beginning and end of history too unless one is to hold history up as the one allowable universal critical solvent and hence the one allowable mode of completion that completes everything except itself resistance in norm's sense is precisely to resist completion to hold open a fissure rather than close it this is precisely why in my view his resistant subject properly belongs to the fabric of metaphysics although after listening to his presentation that's fine I begin to see why that is not necessarily the case let us remember the counter history which Norman books in his paper of which of course speaks the counter history to that which pacifies society justifies power and founds the order that constitutes the social body this counter history that shows that laws deceive that kings wear masks that power creates illusions and that historians tell lies this counter history this is the resource of the resistant subject necessarily dwells in the realm of the metaphysical for it is a history that relies on outwitting the trick on detecting the secret on deciphering the truth that has been sealed on detaching its subjects from their given historic juridic consciousness and locale in order to introduce them to a form of history and time that could be dreamed of precisely because it may not be known now I said a few minutes ago that canals paper wets one's appetite for his book it seems not unkind and I have no need or I have no desire to be unkind for I value his friendship to say that Steven Wilson's paper wets one's appetite for as it were the rest of his paper Steven has written us a menu for a feast that comes accompanied with more than enough hints of what's in store to set one celebrating I will spare him the inevitable illusion to slow a food let's instead begin with the sign of the restaurant door as plans for this event were coming together and we corresponded about his participation we corresponded about possible titles for what he intended to write and Steven sent me his the title he chose as one of two and I said I like that one he then responded that he did two and described it quite unforgettably as the a new genre of legal history slash nonfiction I can't think of a better interpretive term for a pursuit that exists at the junction of two distinct bodies of text and practice that to make sense it must keep distinct and simultaneously bring together in time and at the same time throughout as in all great cooking one's palate encounters successive subtle contrasts in flavor in Steven's paper the gentle astringency of a fine vinegar seasons his account of the state of legal history the doing of what we do a judicious dusting of time or perhaps the satisfaction of a well-aged cheese serves metaphorically caution this against two rash of a suit of methodological faddishness when I came to Condero's dictionary in Steven's paper it made me pause to look at another Ambrose Bierce's General's Dictionary which may be familiar to many of you Bierce respectively defines law essentially as power history as lies and justice I quote commodity which is a more or less adultery condition the state sells to the citizen as a reward for his allegiance taxes and personal service but of all Steven's devices the richest I think of Blake's telescope and Galileo's observatory I hope this works because Blake's telescope and Galileo's observatory bring irresistibly to mind the third optical illusion perched temporarily more or less between them the Impogats utterly unforgettable 1724 engraving that will be done to many of us entitled some of the principle inhabitants of the moon as they were perfectly discovered by a telescope brought to the greatest perfection a known more simply as royalty law as you will see I hope you can see well his face is the coin of the realm around its neck is a stream of bubbles Clover and Hooft Episcopacy works a money pump law is a hammer in a periway like Blake's telescope Hogarth's telescope has magnified its objects it has not touched them but here's no problem it need not touch them for engaging upon them it has penetrated them it shows them as they are as in Galileo's observatory simple observation is indeed the beginning of heresy as readers and writers of texts interpreters of objects and tellers of tales about them we can learn a lot from the engravers I particularly this one Hogarth who was so great an observer and with it also so great a theorist of observation the god of games and those who keep them Janus is these days the most popular of academic gods particularly in our practice of purposefully a directionless direction this morning Steven's paper named the god of legal historians once more it seems we are catching up to the curve we're way behind the curve in this particular case more than 150 years ago Maxime de Comte author of Paris, its organs, its functions its life anointed Janus Goddard of history history he wrote is like Janus it has two faces but he added dryly whether it looks at the past or at the present it sees the same things in a sense it takes Steven's advice in his paper to be not that dissimilar as legal historians we can be Janus faced but we need not be so respectful of the claims of difference of the twin objects of our attention law and history insist on making for themselves one may have an eye for each but the advantage of having two eyes is supposed to be that it improves one sight not that it condemns one to a life of double vision each of these papers this morning in its own way encourages me to believe that we can look with two eyes and if we look carefully enough we can see that what appears to be difference or dichotomy may simply be distinctness a speech act law can be action as metaphysics law can be history and history can be law and in the moment of waking up the resistant subjects of knowledge can settle upon what has unsettled the subject and so to finish with Penelope the day need not unravel the knowledge the night has woken thank you very much I think at this moment what we hope what we ask is interventions discussions questions from the floor from the panel anything of that nature we have microphones down here the format of the room is such as to make free discussion not easy not difficult we hope you will engage with each other as much as direct your attention as it were back and forth in a bilateral way between audience and panel maybe could people identify themselves as this this is a question for the conference I'm here as a lawyer and not as a historian although as an academic lawyer a social part of my legal practices are doing history so I took the conference title literally law as and I read all the papers seeking to find a lawyer doing history I discovered of course that there were none I did discover a couple things one that law as history already has proposed disciplinary discipline it's in some way about closely reading texts and not just in Stephen Will's explicit terms but in many of the historians presentations the second thing I discovered is that the papers were quantitatively balanced between historians who were engaged in what might say nationalist enterprise what can history give us as a purchase on law and legal practices and and then there are a group of loosely irrationalists Nicheans, discourse deconstructors, psychoanalysts images and there of course question ability to do any kind of rationalist purchase on legal practice now as a whole group of texts aggregate texts the revelation is that both the irrationalists and the irrationalists depend upon each other dialectically and we have to invent the other if the other wasn't already present so the historians are worried about the degree of rationality in their claims and the irrationalists are extremely rational in the presentation of their position so why is this bothersome to a lawyer well a lawyer, it seems to me is always engaged in strategic representation and as such it seems to me problematic that we always teach our students to use official case reports statutory language legislative reports all of which of course are documents of history all of which of course are winners of history and that we don't teach our students to deal with the context of production of law which following E.P. Thompson and I take to be both in our renaissance form of social struggle so we don't do much representation of the losers histories involved in all of these continuous contests and of course that means we don't recover what are not saying but often are lost voices so the question this raises for the lawyer as strategic actor is what do what do the participants in this contest do about lawyers doing history as strategy and why are the legal historians seemingly drawn to working with against out through winners documents does somebody want to answer or start a new thread can you pose that as a it strikes me you pose that as in part a rhetorical question to which you may have an answer yourself even if your answer is one of I think what you guys are doing is bullshit it would be good to pause it out I think well lawyers as engaged in strategic representation are always looking for the best strategy the paper that I felt closest to actually presentation not the paper's folding but the live's folding was about law not being understandable except as resistance to law well that's a kind of of external content within the production of law shorter it recognizes law as inherently contested and struggle over power but it doesn't lend itself to an interior legal practice which is based upon the struggle of different groups continuously as witnessed in episodes over power or the legitimation of existing conditions and as a lawyer rather than a historian I want to try to increase the interiority of legal practice as as contested and always in a legitimate impressive I think there are ontological reasons why that's a good strategy I think several of us have actually not answers but responses I mean one is that this goes back to the law and society legal realism the problem of legal history in the context of law and society was that sociology and political science and economics had at least a self presentation that they could be useful history never had that presentation so legal history always failed was always a stepsister within the law and society context so one side of it is there is the sort of law office history problematic which always seemed like bad history there are generations of critiques of that law and society never seemed exactly to work I take part of the law part of the response to it vastly over simple is that doing legal history is also a practice it's about people reading about a way of understanding the world that is different than being useful to a lawyer or being useful to lawyers it may be it is a form of liberal education it's a form of opening up possibilities and alternatives that may not just to use the sort of old fashioned 50s language or the sort of Llewellyn-esque language does that have cash value that's a different question but I take what's going on in this room and what has happened in recent legal history and to go further what's happened in recent law and society work is to challenge the sort of cash value for law understanding of the practice of what we do but that's the contrast lawyer's strategy or strategic representation has cash value and it does not resolve the contrast I guess I'm not sure my position to answer the question as a panelist who does not hold a PhD in history question doesn't seem posed to me but I do want to say that with respect it seems to me to turn on some false dichotomies that it seems to me precisely the objective of the presenters here to Pierce so let me just bring two of them up the idea that case law represents winner's history would depend on a very taking a very thin time slice and evaluating we may do that in the classroom to our error to our students detriment but I don't think even if you took the domain of law to represent in cases themselves you would find winner's history what you find is a series of really interesting reversals and losers who are becoming winners and losers who are shifting position winners who are shifting position winners finding ground eroding under them if you take a kind of diachronic perspective that I think becomes readily apparent so I don't I just not sure that there's a lost history on the side of looking to law and only finding winners that view it seems to me not to be a historical view of law and then on the legal representations as strategic it kind of leaves implied that the other representations the one you're going to once you heard this morning and going to hear you know tomorrow are not strategic and also that law can't be capable of non-strategic representation I think precisely there again the idea is to erode that false dichotomy and to pay attention to the respects in which law wants and promises something other than strategic which is in fact strategic and in which historians and academics and legal academics are engaged in the same the same enterprise I take the fascinating I guess a perfect as the word to use first question for the conference but I my gut reaction to the question was that it is entirely appropriate for those present to seek to find means of approach to law that are if you will outside the church and I think what we'll find in fact what I think I try to argue both in the paper and in my presentation is that when we get outside the church we're going to find lawyers and clients there too well I'm not positive that I understand the question but what I would say is that when lawyers are engaged in strategic representation and that law students are not taught enough about context that this is precisely the claim of Beth Merz's book on the language of law school and learning to think like a lawyer and that as Dirk has mentioned the law and society movement was an attempt to try and get to those contexts the limitations of law and society is precisely that the context it puts law in is as what you call a struggle of groups over power and that if you start if you take for granted that the lawyers practice is necessarily about the struggle of groups over power and you look for tools regarding power you're not going to be very successful at resistance or at justice which really I would think motivates and underlies although you don't acknowledge it the struggle of the groups for power that you're dealing with so I think what some of the sort of probably the papers that you're considering has irrationalist and sort of involved in Nietzschean or deconstructive or whatever it is you put together there are doing are pointing to the limitations of the instrumental analysis of lawyering that doesn't realize that characterizing it simply as a struggle of groups over power is not exhaustive of what lawyers like yourself do should we take another question Mariana Mariana you just identify yourself quickly Mariana so I do have a question for but I just can't resist adding a historical correction to dirt's account of law and society because it's a very American perspective I was just saying the domination of the law society movement was born for social scientists uniquely American and I really objected people talking about the law society movement from the US centric perspective I mean in Canada the whole law society movement was led by legal historians and in fact was monopolized by legal historians for about 25 years and sociologists came to it very late so I just think I came to correct there are such an eminent historian but really in the context of this conference I think it's important to recognize these differences anyway but I have a question for Kunal which is about your use of the term metaphysical which troubles me a little bit because it seems to in a sense cover far too much like 19th century historical sensibilities certainly we're often teleological or Christian or whatever but to call all of that metaphysical I wonder if there aren't some finer divisions because whether you're a pragmatist or whether you're a Nietzschean you sort of denounce any kind of teleology as metaphysical but I don't think all teleology is metaphysical I mean you can have Marxist or materialist teleologies and you can have liberal humanist teleologies and so I just sort of wonder why you picked that term and exactly what word is it doing maybe I do anything like so actually oh this works too so yeah I mean I was recently sort of taken to task by an academic philosopher I'm sorry I was recently taken to task by an academic philosopher for precisely my use of the term metaphysics and my responses you know I mean there are a couple of different responses I mean one is of course I don't I have no interest in making a claim that metaphysics from the perspective of any prior understanding of what metaphysics is or isn't but rather that it is in fact one of the languages that one of the historical languages of the period itself there's a sort of very self-conscious sort of premissing of a historical consciousness that emerges in the late 19th century against metaphysics so I sort of build on that and then also I would say secondarily these kinds of discussions in the philosophy of history history as sort of directionality metaphysics is of course a very broad term which you can find so you can find causation as being about metaphysics for instance and a whole bunch of things and I'm using it in more limited ways maybe I take that criticism as a helpful corrective my name is Matthew Cromer my question was for Professor Parker as well I really enjoyed all the papers by the way, I thought they were historic to me I have sort of a historiographical objection maybe to that physical thing which is that I mean you might be giving all our wonder homes way way too much credit because even sort of historians of ideas, theorists thinking someone like Reinhardt Kasselike or something would date what you were talking about a very similar thing to the early 18th century right there are people like Pocock who would say no no no Kasselike's giving the enlightenment way too much credit this historicism happened in the 16th and 17th century that's when they decided to get rid of this juristic wholesome totalizing natural law and metaphysical stuff right and I thought Professor Spaulding's paper really used the relationship between what Pocock and Foucault were doing and this kind of revolutionary, growing modern reformation moment and the word metaphysics is problematic not just because it's I'm not a philosopher so I don't want to get into debates about what that means but it's problematic because it oversees the complexity which I think you're probably drawing attention to of historical thinking before what we think of as historicist studies of the law of the 20th century thinking of legal antiquarianism or the explosion of historical scholarship and all I mean, you know, when Hugh writes his histories, is that metaphysics? I you know, he would roll over in his grave to a certain extent I mean, when Jefferson collects the laws of Virginia, is that metaphysics? I know he would, I mean he, again he would roll over in his grave at that there's a series of critical pieces of the legal history of before this sort of epic-making division you're making that sort of suggests kind of counter narrative and I was wondering just to sort of a final point where you would put something like Larry Kramer's recovery of quote-unquote popular constitutionalism in your narrative of where metaphysics and historicism sort of meet each other so you're absolutely right, of course you even date your story in memorabilia and lists and so that's been done so one of the things that what I'm doing really is a set of temporary concerns to be left aside once I finish a book, which is that within I would say still, within the telling of the history of American legal thought itself Holmes occupies a sort of pivot position and you could very well make the argument that he is less central but we have made him central and so I take it so that was one of the starting points of think there's a shift in the way in which not only American legal historians think about the past but also the ways in which legal law students are taught. During my first year of law school we had a legal realist bridge session in the first semester where we were sort of told about the innovative nature of legal realism so I think that's a very important part of the way that story has been told having said that what I'm trying to do is not so much to diminish the importance of Holmes or people that follow Holmes is if you like a sort of label that explains what he follows about it not trying to demonstrate its lack of nearness as much as to show that nearness and a lack of nearness producing a relationship between nearness and lack of nearness is precisely the problem that the relationship between law and history sort of revolves around it's the same kind of structural problem I'm afraid I have to apologize I have to confess that I have nothing to say about Larry so Chris wants to I just wanted to I just wanted to add that indeed it may be entirely appropriate to argue that a phenomenon an intellectual phenomenon has earlier roots or earlier manifestations or whatever there is a sort of game that historians play which I have played at times which is to say you're wrong because I found your phenomenon in an earlier moment therefore your phenomenon is kind of disallowed I don't mean that that is your particular point but humankind continually reinvents the same things over and over there is no reason that because Pocock for example may discover a phenomenon of historicizing in 17th century thought that hums cannot rediscover and conceptualize as original thought the same phenomenon at the end of the 19th century they don't sort of the one does not cancel the other we're not on our ladder of progress I think we we can dispense with that can I just add something really briefly I think that just picking up on what Chris said I think this was very much what I wanted to do in this project is it's sort of important to be able to hold on simultaneously to the idea that something is new and that something is old that something is both similar to itself and different from itself and what I would take from that is my own commitment to taking seriously the ideas of the people that I worked on is in fact the common law representation of itself that drives my understanding of history rather than the other way around and so in the mode of if you know what I'm going to say and if Marilyn's returns anthropology in fact this is the form of the RPG study that in fact shapes the form of your anthropology that's sort of what I wanted to do sort of really take seriously what common law thinking was as a way of turning it back if you like as a light bulb on my own work as an historian yeah I mean I heard you say I mean I think that's absolutely right those points are well taken but it just seems to me that I mean if you've already decided the common law is fundamentally a historical that the temporality of the common law is a historical you're going to get a series of already sort of deciding to a certain extent and I just in the introduction as a historian there's so many sort of historiographical counter here it is that are there and it's obvious that you know that they're there and they don't seem to sort of argue with them explicitly which is wondering if how much they were there behind your thought where did they learn yes your own question I got a professor of law professor of history of law and professor of medieval studies at UC Santa Barbara interested in the history of the subject and turning to legal discourse in the early and later Middle Ages part of that history so I have a question for professors Baldwin just a straightforward question I found very interesting both here written paper and your presentation but what I'm wondering is in your role presentation the resistance subject that you present to us is very much a person who's saying no I'm not going to follow the law could you make a connection for us between the war psychoanalytic resistance subject that you discuss in your written paper and the one that you presented orally so part of what I want to say is just a practical thing about particular constraints in research agenda and the fact that I come to this larger project both as someone interested in the theory of resistance and as somebody who still practices law pro bono anyway and teaches and writes in the area of legal ethics so I spend a lot of time thinking about how to instruct and to exhort and to challenge people who are going to exercise a tremendous amount of social power there's no question about that in their fidelity to law in their conception of their fidelity to law so that has prompted me to take some of the psychoanalytic stuff seriously it's prompted me to as I think I used the metaphor of digging early on in the talk and I mean it seriously I found myself digging digging past the ethics codes digging past the standard conceptions of legal theory to get at something that matches what I see lawyers doing in practice interestingly no I'm not sure actually it's interesting because it's quite captured what I see lawyers doing is trying to find ways to say yes to clients whom others believe they should say no so it's a complicated relationship and position that the lawyer is in it is not just as the voice of the prohibitory power of law and that complicates of course when one looks to the psychoanalytic side it says who is the lawyer representing who is the client is this a subject is this a legal subject what does the client want what can't the client say she corporation it class action class of plaintiffs or defendant class it wants but let me just try to give you the register which kind of pushed me into the psychoanalytic account I have been have struggled since I first read Discipline and Hunish with Foucault's injunction to turn away from sovereign power from juridical discourse and to look to the operation of disciplinary power and his I think critique of law and legal discourse and political theorists and historians for being so caught up with the story of sovereign power and not that of disciplinary power and it seemed obviously right to me and then immediately as a lawyer and as someone who thinks and writes about legal ethics incomplete as an account of law kind of impoverished conception of sovereign power or the relationship between sovereign and disciplinary power or if you will some of the appropriations of that that pushed me back to Lacan who describes censorship the psychic censorship as law as the operation of law and also wants to the linguistic structure we all come into this involved order as law but also wanting to describe and to take analysts to task for failing to question their own desire and their own resistance and the way they approach subjects resistance to analysis so it's trying to think those two things together or to push them together the intersection and interdependence of sovereign power disciplinary power and Lacan's account of the subject and I think that has a tremendous amount the lawyers aren't eager to ask the question to do with the counseling moment where we hope or want the lawyer to say no or the client is saying no into the lawyer's job to emphasize that yes is actually the answer where to start Hi Justin Richland, UC Irvine my questions for Mary and Constable and it's a question from a fellow traveler as you know in the sort of legal language and discourse analysis world and my question is this so I very much take time value in and pursue in my own ways this sort of effort to collapse as Chris described the distinction between law and you know on the books of law and action and the effort to sort of say law and the books is law in action it is legal action and I find speech act theory so it is for that purpose but I sometimes wonder and I often wonder for myself the reason why I think I find it so this is in fact because law was so much the inspiration for thinking about the form of force of speech right and the same thing with purse I mean purse in this privatism is semiotic turned to Nicholas St. John Green and all of the window homes for the conceptualization to do things right so then what are we just in a vicious cycle here we just are we letting is inviting its own tail to then turn speech act theory back I mean is it turning back to understand law are we getting anywhere are we is it a business then to use speech act theory to understand law or is it just colluding in the in reaffirming the force of law by using it to understand it and this is maybe this is not I don't think this is a question only you and I care about but I think it's one I'm constantly grabbing I mean if I if I have a center question it has to do with how extensively it's already known to some degree written or assumed that legal action is speech acts and that the whoever it was I forgot what I was saying you said about how when law becomes operative or it's hereby determined or the operativeness of law it is so ordered we know at that moment this is what makes the law the law in that speaking so everyone knows that already and so your question is what what else is going on here aren't we just repeating what it is that in some ways has been known for and I think the difference in what it is that I'm interested in is how it is that drawing our attention explicitly back to the claiming that goes on in law has to be claimed to something whether that something exists and actually this is a response I have to Chris's comments is because it's not necessarily the case that there's justice out there or in here and there's law somewhere else and that law connects to that other thing through speech it's that the speech acts of law are what it is that enable whatever it is that we think or do or have access to and somehow invoke as justice and so I think it's that link to justice is not at all what you know Austin or you know the people who are explicitly doing speech act there you are thinking about when they're not law so I would say that it's the corrective that speech act that thing about law is speech acts is able to offer to other fields having to do with law like philosophy of law or sociology of law which is the important thing about legal speech acts. Does that answer your question? Well I'm amazing you had an answer for me because I had to puzzling with this answer and what I'm hearing is you know it's something that Paul Cahn in Rain of Law calls this the appearance of law and it is this appearance that makes the difference so how do we know the difference between legal power or political power right or your political power has to do with the how it appears how it appears is in this discursive modality or whatever it's in the lens discursive and traditional one right and that's important because otherwise you lose the connection you have to have both to have the connection with justice Chris? I guess I just wanted to to ask when I am a question which he is on from but Justin has said in response to your response because it occurred to me actually as I was delivering my comment that perhaps this is a stupid question but what distinguishes what you are doing from ethnography are you doing an ethnography of speech in effect? tell me what ethnography is I mean ethnography is like Justin so I mean do you see the point of the question I wonder if you have a response whether you see in my I am as doing what exactly what you do I think what Marianne and I do is very similar I think that we come from different traditions but what I do see is the question always being so what is the performative force of speech in these moments but then also you're saying it's a kind of it's always a grounding in a particular moment with habits of being and habits of discourse and habits and traditions that you're speaking to and bringing forth but also making a new so it's presupposing and attaining at the same time and in that respect I completely agree what I find so hard to do and this is where the question goes is right and that's what law wants to constantly do very explicitly and very understands itself as doing and so it's a slippage we are constantly slipping between the analytic guy and being able to say aha look we found something very interesting here and then wondering aren't we just sort of saying right and legal power is law is power I mean I don't know and re-inscribing disability I don't know whether it's ethnography or not I'm not sure I don't know let's take some more questions this is just another way identify yourself I've written also down this read to from the University of Toronto this is just sorry very briefly maybe another way into this and that is to return to the subject but also the question of agency because Marilyn I really appreciate at your point that what we're trying to do here is not simply address law in its instrumentality which is the dominant way in which law is taught and addressed as far as I know it's a story and indeed addressed by lawyers in a kind of utilitarian way and so the question about agency in law requires us to really think through the relationship to an agency in instrumentality Marilyn I'm coming down from a paper I just gave at Columbia Law and a slippage in what I mean as a slippage I'm now just chance myself for running my paper for tomorrow but the slippage between laws law is local, sovereign command and laws are almost inhabiting and the reason I bring it up is that I would ask you and also Norman and also Kunal to elaborate a little bit on what kind of subject you were imagining when you were problematizing law and history as an agency you're imagining because my problem with Austin a sort of more traditional reading of Austin, not the brother kind is that it presupposes an intending subject the figure of law is the intending subject the inferior intending subject it seems to me that all of your gestures are problematizing now but you haven't named that Norman it's interesting to me that you use the word existence rather than complicity we perhaps you might think of all of us subjects as complicit in law right so what would it mean to rethink the name resistance as complicity then Kunal the subject of common law is this effect the subject effect of people and it would be interesting to think about elaborating the relationship between agencies of activity just on that ground so just a very open question about what kind of agency what makes your intervention actually problematize law and agency not just law and history because history sometimes is a standard for agency I just want to say one thing the previous person is the author of a book called arguing with tradition sorry but in terms of your question about what kind of subject is being imagined here and doesn't this presuppose an intending subject I think you're right yes that Austin does presuppose an intending subject but that's not all he says that there's a limit JL JL okay how to do things with words he his conditions for what it is that makes a speaker solicitous require more than that the subject intent and so that's what I'm most interested is what else right what else there is than what it is that law presumes as willing and intending somehow right so it's the subject beyond what is intended that's at stake here okay so I did 30 seconds of subject agency yeah and agency everything is 30 seconds so I'm really interested in moving away from a certain conception of law as tax that is to say the one that's dependent on appellate judge as high oracle of law and the courtroom as the site of the articulation of the law the place where the speech acts that might give us law actually meaningfully take place or where their meaning actually found so I'm interested in after judgment what happens after judgment there are I could give you a look there are an astonishing number of if we get off of away from the not escaped brown there before an astonishing number of cases that we repeat we rehearse we teach over and over again the most history of which is extraordinarily revealing for the question of resistance and I might say agency as well not an attending subject I'm not as interested in that and don't take psychoanalytic theory to lead us there but rather to a wanting subject and an attorney and a client a relationship of displaced agency which raises questions of definition on both sides for the object that is wanted and so it's that that I want to interrogate in the larger project that this paper is just kind of a way of clearing some theoretical ground to go there I would simply say very quickly that since I'm often accused of being reckless I'm sorry but but I think that what I'm trying to do might in fact be named in the ways that you are suggesting but what it would add is to sort of draw out of there and sort of enter your language is something that has to have been told Catherine who needs no introduction I think everybody knows who I am so what I heard among the papers and that particularly emerged in Richard's comment has to do with where we get when we say law as as opposed to law and and I'm interested in what the panelists think about what I heard in each of your papers is the porousness about law using as gives us where if we use and we envision law as something with fairly impermeable boundaries and we can argue about what's inside the boundary but it's very much about drawing a circle that puts something inside and that's law and then out of that is society and what I thought was really interesting in Norm's paper but then it makes me sort of ask an interesting question about Kunal's paper is that Norm's paper explicitly invites this idea of the permeability of where law stops and something else starts as you said right now through the after judgment and then you can't understand even what law is if you don't think a lot about what happens after the judgment the person who wins the judgment often wins nothing and winds up being the loser for it as any lawyer who's represented for example a plaintiff in employment discrimination case could tell you you might be worse off than before you started and then this idea of resistance therefore it's kind of necessary to understand what the law is because it's sort of what it does Mary Ann says but we don't even always know what it does particularly as historians because it's so hard and the big project of legal history at least as the way that I sort of learned it is and what a law society inspired kind of legal history is is to try and get it reach that barrier between what we think the law is and what it really winds up doing or wound up doing in the past and so Kunal's paper seems to be very interesting in this way in that the common law is the it in the paper and the paper envisions the common law as being less permeable than it is sometimes described as being and that's precisely what makes your paper sort of interesting is that everybody who reads it is asked to envision we know what the common law is and I can read in the paper saying I've never really known what the common law is and it's the slipperiness of that that makes the it's the slipperiness of what the common law was in a way that accounts for its surprising persistence through time in the U.S. and so I'm just sure it's about this idea of the permeability that we get when we think about as as opposed to the ampersand I want to say that when you talk about what law is as what law does that it's important to distinguish thinking of what law is as a noun versus what law does as an activity versus what law does as an effect and in part when people think about what law does simply in terms of its effects that's going back to that instrumental conception of law and that what's interesting about legal history is that it's able to recognize what law does in its activity as distinct from its effects and also what law does in its activity which is still a watch in some sense and a noun in some sense but different from the propositional rules or the objects that I think that either professional legal academy or some kinds of philosophers of law make law be right so the interesting about legal history is it can hit all three of those sorry I just wanted to add perhaps personally about the formulation means to me are meant to me as a way of both creating law and as a problem by imagining something else another standpoint from which to examine it but also that law as in my view or in my mind as stated sort of boldly is intended to call into question our constructions of phenomena as relational that is as conjunctive or disjunctive and hence I think when we begin to talk of agency and resistance in such concepts become problematic too because far and away the most common ways of thinking about agency resistance and so forth popular, very popular terms for historians for quite a long time is precisely that they are relational they reconstruct the relational we think of them relationally in terms of one thing in terms of the other one thing in relation to the other as requires me to think if I want to think about agency I need to think about it differently than relationally that is part of as it were the project I mean it's horrible to say let's have a conference and the conference is going to have a project and the end of it will be somewhere different than we were before and really the objective is to bring an audience into contact with a bunch of interesting papers and see what happens so you kind of put a label on it but the label does have some it does have some resonance I think it does have some purchase and that is the resonance it has to me I just wanted to say one little thing which is that in response to Catherine's question that if you think of the pragmatic moment as being the moment of the triumph of relational thinking so it's Herbert Spencer that really sort of creates modern relational thinking for social sciences certainly in the Anglo-American world at this point in time it's interesting that it's only after Spencer that in the 1930s there's a conference held at Alba Law School on the future of the common law and Bown's paper is actually called what is the common law which in fact is not a question that anyone is really asking at least in that way in the 19th century so I think that would be one way of thinking that it is now quarter of am I supposed to be policing time it depends on how hungry everybody is it would be better not to continue indefinitely obviously it would be let's go for the I'm looking at an audience that wants to sorry, that's Sean no, no, no, I'm hungry okay, I'm hungry