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).