Friday, July 11, 2008

Toward a critical analysis of "time" in legal history

An understanding of "time" is a basic feature structuring our understanding of American legal history. But time’s role is assumed and not examined, as if it is a natural and essential phenomenon.

One of my summer projects, building on my work this year at the Institute for Advanced Study, is to work on a critical analysis of time in legal history. Understanding the role and nature of time can help with something more specific: the impact of our understanding of war’s temporality on American law, or the way "wartime" and "peacetime" are understood. Ultimately, this may help with a problem in the contemporary context (is this a "wartime" and how does that matter to law?). But my principal objective as a historian is to draw upon a critical analysis of time to inform an understanding of the course of law, politics and democracy in the 20th century United States.

In the scholarship on law and war, time is seen as episodic. It is sometimes seen as linear and progressive, but the most common feature is that time is episodic. There are two different kinds of time: wartime and peacetime. Historical progression consists of moving from one kind of time to another. Law is thought to vary depending on what time it is. The relationship between citizen and state, the scope of rights, the extent of government power are thought to depend on whether it is wartime or peacetime.

A central metaphor is the swinging pendulum – swinging from strong protection of rights and weaker government power to weaker protection of rights and stronger government power. Moving from one time zone to the next is thought to cause the pendulum to begin swinging in a new direction.

This conceptualization is embedded in scholarship in law and legal history; it is written into judicial opinions, it is part of popular culture. But this understanding of time is at odds with the experience of war in the 20th century. The experience of war bleeds across time zones. The problem of time, in essence, clouds an understanding of the problem of law and war.

Time has been an important topic of study in many fields, but historians, Lynn Hunt recently argued, have paid little attention to it. "Like everyone else," she writes, "historians assume that time exists, yet despite its obvious importance to historical writing – what is history but the account of how things change over time? – writers of history do not often inquire into the meaning of time itself." One of the difficulties in talking about time is that the words we use to describe it seem to presuppose an understanding of time. Hunt continues: "Time feels like an essential and defining feature of human life, yet when pressed to define it, we inevitably fall back upon duration, change, and ultimately, the tenses of our languages, past, present, and future."

Time has been central to other fields, especially physics, philosophy, and anthropology. Within fields, ideas about time have been highly contested. "Temporality enters our conceptual framework both as a descriptive component of our immediate experience and as a component of our theoretical description of the world," writes Lawrence Sklar.

My objective today is simply to put an analysis of time on the agenda. More will follow later in the summer. For those interesting in thinking about time, places to begin include Lynn Hunt’s new book Measuring Time, Making History; Carol Greenhouse, A Moment’s Notice: Time Politics Across Cultures; Stephen Kern, The Culture of Time and Space; and Reinhart Koselleck, The Practice of Conceptual History: Timing History, Spacing Concepts.

Cross-posted at Balkinization.

Update: Malla Pollock adds a helpful comment at Balkinization:
Time is critical to constitutional theory as well. Originalism (In the Scalia not Balkin sense) requires seeing a "nation" as existing over time in a way that is more important than the time limits of individual human lives. I know of two works dealing centrally with this problem and reaching very disparate conclusions: Jeb Rubenfeld, Freedom and Time (2001), and Malla Pollack, Dampening the Illegitimacy of the US Government, 42 Idaho L. Rev. 123 (2005).

2 comments:

Alfred Brophy said...

This is great, Mary. Time's obviously central to property and estates as well (in helping us define when someone "owns" something). Time has the magical power to confer legitimacy, for there is a natural tendency to respect that which is old and has tradition behind it.

Mary L. Dudziak said...

Thanks, Al, for your helpful comment.

There's more at Balkinization, where a reader asks whether historians frequently deal with time in discussions of periodization. Here's my reply on that:

Yes periodization is important to historians and is a way that temporality is engaged. But most debates about periodization start with an assumption that time itself is a natural feature with an essential nature. The challenge is how to divide linear components up into the right segments. But the way we understand time (its linearity and supposed universality) is historically contingent and culturally constructed.

For example, Carol Greenhouse puts aside arguments about time in science (e.g. Einstein on relativity), and focuses in her book on what she calls "social time": "the ways people talk about and use representations of time in social life, ideas that develop independently of whatever 'real time' might be." (p. 1)

Whether a more deeply critical understanding of time is needed for understanding the way the concept of "wartime" affects our analysis of law and war in history -- or whether what's needed is a more complicated rendering of periodization -- is something I'm still trying to figure out. Acknowleging that time does not have an essential character, and that there are different ways of representing it culturally, helps us to see that time can do important cultural work. For this reason, I think going beyond an analysis of periodization is important.

The rest of the comments on Balkinization can be found here: http://balkin.blogspot.com/2008/07/toward-critical-analysis-of-time-in.html