Of Origin: Toward a History of Contemporary Legal Thought, forthcoming in In Search of Contemporary Legal Thought, ed. Justin Desautels-Stein and Christopher Tomlins:
A conventional conception of “contemporary legal thought” would have it stand for the universe of expressions of legal consciousness, plural and contradictory, that abound in our present and compete to determine the trajectory of the future. Contemporary legal thought might, however, stand for something more – a conceptual vocabulary, organizational scheme, or mode of reasoning and arguing that the preponderance of current expressions of legal consciousness share. In the first case, “contemporary” carries no significance other than “current,” and contemporary legal thought stands for nothing more than the aggregation of legal discourses that are “contemporaneous” with each other – existing at the same time. In the second, it becomes (in Duncan Kennedy’s semiotic formulation) a langue – a structure of categories, concepts, conventionally understood procedures and typical legal arguments – within which the present’s plural parole expressions of legal consciousness occur. My objective in this essay is to determine whether or not, in order to write a history of “contemporary legal thought,” it is sensible, or even possible, to posit its existence in the second sense; and, if not, what (if any) historical meaning lies in the aggregate of the first sense. I undertake this exercise not by surveying the field of current legal discourse in search of commonalities that might be restated as structural generalizations. Instead I consider whether something we can call “contemporary legal thought” can be conceived of as such by resorting to a historical concept of origin."Be Operational, or Disappear": Thoughts on a Present Discontent, forthcoming in Annual Review of Law and Social Science:
We are fated to live historically because we are fettered to memory. But we live in an epoch that, in the name of history, prefers our forgetfulness, imprinting on each the ephemerality of what it knows of itself and its life, subordinating that knowledge to another, more timely, more efficacious, more stirring: the knowledge of a people and its continuity in time. Which is to say that history is at war with itself. Law too is at war with itself. We attempt to live lawfully because we are fettered to justice. But the epoch (every epoch) calls us to a different mode of lawfulness, one, like history, to be lived in the name of a people, its interests and ideals. To live lawfully, it seems, is like living historically, to be condemned to a state of cross-purposes, of cruci-fictions. Legal history exists at the intersection of history and law, and has a responsibility to resolve, or at least reveal, their cross-purposes. As regimes of interpellation, history and law jointly observe and insist upon realities often antagonistic to those that arise from their alternate being as memory and right. Legal history fulfills its responsibility by undertaking a dual task, of recovery and rejection – the recovery of memory and right, the rejection of regimes of interpellation. If undertaken, the task will serve life, and it will do so by acting untimely – “that is to say, acting counter to our time, and thereby acting on our time and, let us hope, for the benefit of a time to come.”Why Law's Objects Do Not Disappear: On History as Remainder, forthcoming in Routledge Research Handbook on Law & Theory, ed. Andreas Philippopoulos-Mihalopoulos:
One of law’s more supple conceits is its ontology of equivalence. The equivalent stands for, it purports to takes the place of, all that exists in life’s discordant realm in a state of spatial, temporal, material, corporeal, sensorial difference. Equivalence commensurates the inhabitants of that realm (people, things, relations) as completely as may be necessary for the induction of each into another immanent reality – the transactional universe of legal recognitions and nonrecognitions – where they are contained within an imaginary dimension of perfect exchange. The containment is temporal, predicated on the proposition that at the moment of its apprehension, which is necessarily the present, that which differentiates the particular object of attention from law’s equivalent has simply ceased to be. The object is created anew, in law, “like a number without any awkward fraction left over.” But the transubstantiation can never quite be complete. There is always an uncontained remnant, the agio or excess, the “awkward fraction left over,” the obstinate remainder that defies the symmetry of its exchange. We know it is there because it expresses itself to us as the object’s past – its revenant once-was. This essay calls this surviving remnant the object’s soul; not just its once-was, but also its living-on. It considers that history is the means by which the soul communicates its living-on. The essay explores three propositions, or ways of thinking, that elaborate on these propositions: of law as a dimension of not-quite-perfect exchange; of objects’ surviving traces as souls; and of history as the means by which those surviving traces live on either with or against (but always separate from) law’s transactional transubstantiations. In a fourth part, which spills over into a concluding fifth, the essay offers a gloss on what may happen when the three propositions combine.Looking for Law in “The Confessions of Nat Turner,” forthcoming in Looking for Law in All the Wrong Places, ed. Marianne Constable and Leti Volpp:
From Harriet Beecher Stowe to William Styron and Sharon Ewell Foster, from Kyle Baker to Nate Parker, and others, American popular culture has found Nat Turner’s "Confessions" endlessly fascinating. The fascination of course extends to historians. Particularly in recent years, scholars have dug deeply into the local history of what came to be called The Turner Rebellion. The result is a greatly enriched archive. Still, much of what is known of the event and particularly of its eponymous leader – and hence the manner of their portrayal – remains dependent on Thomas Ruffin Gray’s pamphlet "Confessions." Naturally one must ask whether a hastily-written twenty page pamphlet rushed into print by an opportunistic white lawyer, down on his luck and hoping to cash in on Turner’s notoriety, actually deserves to be treated as empirically reliable access to the mentalités of those engaged in planning and executing an “insurrectory movement.” Should the pamphlet survive that test, a second question immediately surfaces: precisely what is it that the pamphlet evidences? This essay seeks an answer through consideration of a number of recent literary analyses of Gray’s pamphlet."The Guilt of Fragile Sovereigns": Tyranny, Intrigue, and Martyrdom in an Unchanging Regime (Virginia, 1829-32)
“Regime change” has been called “a trendy new term for an old and special kind of intervention,” the toppling of those who displease or worry the United States Government. In an attempt to stretch “regime change” beyond simple coercive removal to encompass an ethics of accountability, and hence a measure of justification, the anthropologist John Borneman has proposed a tri-partite analsis of what regime change entails: government overthrow; military occupation and colonization; and caring for the enemy. The question arises whether the term can be stretched even further, or defined differently, to encompass instances of intervention against tyrannical rule beyond the sphere of interstate relations where it is currently lodged. To do so I turn here to a particular event – the Turner Rebellion, a slave rebellion that took place in Virginia in 1831 – and to recent work in political theory that dwells on the politics of counter-sovereignty. Rather than debate the ethics of one state’s decision to seek violent ascendancy over the leadership and population of another, therefore, here I attempt to stretch regime change to encompass a failed rebellion of slaves against a tyrannical slaveholding regime, an attempt to confront and lay low a guilty and fragile sovereignty by deploying a revolutionary politics of countersovereignty realized in conspiracy and self-sacrifice. I attempt also to analyze how this failed effort at regime change affected the regime itself, how it led fragile sovereigns to war with each other over changing their regime themselves, and how they too failed. Finally, we encounter decisive and successful change, although not in the nature of the regime in question but in the prevailing means of explaining it – epistemological rather than ontological change, in short, seeking to secure the regime from change by placing it in a realm beyond sovereignty and guilt, beyond politics and law, altogether. This episode of concatenated regime change is presented here to inform our own understanding of the phenomenon known as a regime, and our own attempts to construct schemata of change.