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| Christopher Tomlins |
This paper conjoins three texts – the “Confessions of Nat Turner,” Walter Benjamin’s “Capitalism as Religion,” and Max Weber’s “Science as a Vocation.” Benjamin and Weber provide interpretive prisms through which to examine Turner’s confession. Though quite unlike each other, each glances at the demonic – a matter of some significance when one considers the meaning of the “full faith and credit” held due the decision of the Southampton (Virginia) County Court to hang Turner for his attempted 1831 slave rebellion. Like guilt/debt, the dual meanings of Schuld that, for Benjamin, confirmed the existence of a religious – specifically a Christian – structure in capitalism, the conjunction of faith and credit has its own demonic ambiguity, simultaneously sacralizing (faith) and secularizing (credit) the authority of the law. In capitalism as religion and as law, these demonic ambiguities fuse together in an overwhelming simultaneity that is at once economic and juridical, moral and psychological, profane and sacral. This simultaneity – and Turner’s attempt to disrupt it – is the paper’s chief concern.The recently published articles are:
Necessities of State: Police, Sovereignty, and the Constitution, Journal of Policy History 20 (2008)
Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police. In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition. I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.”
Review Essay: The Consumption of History in the Legal Academy: Science and Synthesis, Perils and Prospects, Journal of Legal Education 61 (2011): 139-165
History these days has become a major presence in the U.S. law school world. Marked growth of interest began in the late 1960s. It has continued ever since. But what is the relationship between history as taught and practiced in U.S. law schools and the scholarly history produced by professional historians? This essay addresses that relationship by asking whether or not legal “consumers” of history should be paying attention to four grand narratives of nineteenth century American history recently written by U.S. historians. Collectively these books allow one to evaluate the capacity of academic history to fashion a product of use to non-specialist consumers in disciplines such as law while remaining true to their own specialist knowledge base. Should the legal consumer be reading these new grand syntheses?Revolutionary Justice in Brecht, Conrad, and Blake, Law and Literature 21 (2009): 185-213
For many years, history has furnished a conceptual and methodological standpoint, historicism, which scholars have employed to enter into engagements with law. But how do the exponents of historicism – whether conventional or critical – define that standpoint, and what is the nature of the object (the past) that their definitions isolate for contemplation? This essay seeks illumination through counterpoint – an exposition of Walter Benjamin’s philosophy of history and its key components: recollection, actualization and constellation. I propose that history can and should be a dangerous form of knowledge, and that Benjamin worked hard to show us how. To make it so, however, requires that one abandon what most forms of contemporary historical inquiry take for granted, history-as-science. To show why, I develop an examination and critique of historicist sense-making in the domain of law, both conventional and critical. I also engage with two recent scholarly attempts to move beyond historicism: how they succeed, where they fail, and what we learn from them.The Strait Gate: The Past, History, and Legal Scholarship, Law, Culture and the Humanities 4 (2009): 11-42
For many years, history has furnished a conceptual and methodological standpoint, historicism, which scholars have employed to enter into engagements with law. But how do the exponents of historicism – whether conventional or critical – define that standpoint, and what is the nature of the object (the past) that their definitions isolate for contemplation? This essay seeks illumination through counterpoint – an exposition of Walter Benjamin’s philosophy of history and its key components: recollection, actualization and constellation. I propose that history can and should be a dangerous form of knowledge, and that Benjamin worked hard to show us how. To make it so, however, requires that one abandon what most forms of contemporary historical inquiry take for granted, history-as-science. To show why, I develop an examination and critique of historicist sense-making in the domain of law, both conventional and critical. I also engage with two recent scholarly attempts to move beyond historicism: how they succeed, where they fail, and what we learn from them.Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
Theoretical Inquiries in Law 10 (2009):389-422
This Article applies the concept of "legal transplant" to the slavery regimes that sprang up in all regions of settlement during the first two centuries of English colonization of mainland America. Using a distinction between "extrastructure" and "intrastructure," we can divide the Anglo-American law of slavery into discourses of explanation/justification and technologies of implementation. The two components were produced from distinct sources. English law possessed few intellectual resources that could be mobilized to justify and explain slavery as an institution. Here we find the law of nature and nations uppermost. English law offered many resources, however, for the management, distribution and control of movements of people. Thus, the Anglo-American law of slavery combined two transplanted resources within itself As colonial settlements turned into slave societies, local innovations increasingly supplemented original transplants, compensating for their deficiencies and limitations and becoming, in turn, a third species of transplant. Assembly laws moved from colony to colony, creating commonalities within regions of settlement, and also - more interestingly - among regions usually thought quite distinct. Together the three species of transplants created densely instrumental slave regimes that enumerated all the ways in which summary mutilations and executions defined the slave's life on the edge of death.What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon’s "Critical Legal Histories," Law and Social Inquiry 37 (Winter 2012): 155
For more than twenty-five years, Robert Gordon’s “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon’s essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon’s articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal-historical analysis of the resultant stress on the contingency and complexity of social life.
