Oedipus Lex: Psychoanalysis, History, Law

Oedipus Lex

Philosophy, Social Theory, and the Rule of Law

General Editors

Andrew Arato, Seyla Benhabib, Ferenc Fehér, William Forbath,

Agnes Heller, Arthur Jacobson, and Michel Rosenfeld

1. William Rehg, Insight and Solidarity: A Study in the Discourse Ethics of Jurgen Habermas

2. Alan Brudner, The Unity of the Common Law: Studies in Hegelian Jurisprudence

3. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law

Oedipus Lex

Psychoanalysis, History, Law

Peter Goodrich

UNIVERSITY OF CALIFORNIA PRESS

Berkeley Los Angeles London

University of California Press

Berkeley and Los Angeles, California

University of California Press

London, England

Copyright© 1995 by

The Regents of the University of California

Library of Congress Cataloging-in-Publication Data

Goodrich, Peter, 1954-

Oedipus lex: psychoanalysis, history, law / Peter Goodrich.

p. cm. — (Philosophy, social theory, and the rule of law) Includes bibliographical references and index.

ISBN 0-520-08990-1 (alk. paper)

1. Law—Psychology—History. 2. Jurisprudence—Psychological aspects—History. 3. Lawyers—Psychology—History. I. Title.

II. Series.

K487.P75G66 1995

34o’.oi'9—dc2o 95-10026

CIP

Printed in the United States of America

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The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materials,

ANSI Z39.48-1984©

CONTENTS

CONTENTS

PREFACE

ONE Introduction Melancholia Juridica

TWO History Becomes the Law Mourning, Genealogy, and Legal Historiography

HISTORY AS CURE

GENEALOGY

IMAGE AND UNCONSCIOUS

REWRITING LAW

THREE Apology and Antirrhetic Icon, Idol, Image, and the Forms of Law

APOLOGIA, ANTIRRHESIS, AND THE FOUNDATIONS OF LAW

IMAGE, ICON, AND IDOL

CAPTIVES OF THE SOUL

FOUR Law Against Images Antirrhetic and Polemic in Common Law

LAW AND DISSIMULATION

DENUNCIATIONS

ANTITHETON: STRANGERS, FOREIGNERS, NOMADS, AND OTHERS

PARADOXON: PUBLIC LAWS AND PRIVATE REASONS

APORIA: CONTINGENCY AND THE GOVERNMENT OF WOMEN

CONCLUSION: PENITUS AMPUTARE, INNER INCISIONS

FIVE Haec Imago This Mask, This Man, This Law

SOURCES OF LAW AND STATUSES OF WOMEN IN THE ANCIENT CONSTITUTION

OF FATE, FORTUNE JUSTICE, AND OTHER ILLUSTRIOUS WOMEN

YCONOMIA AND DOMESTIC SUBJECTION

VIRTUE AND EXCESS

SIX Gynaetopia Feminine Genealogies of Common Law

JANUS, OR THE BACKFACE OF COMMON LAW

WOEMEN’S LAW

GYNAETOPIA, OR THE LEGAL PLACE OF THE FEMININE

CONCLUSION: THE JURISPRUDENCE OF DIFFERENCE

SEVEN Oedipus Lex Interpretation and the Unconscious of Law

ANTONOMASIA: PSYCHIATRIC HARM AND THE ENGLISHMAN’S HOME

ALLEGORIA, OR THE ERASED FACE OF THE OFFEREE

SYNECDOCHE: EGYPTIANS, ALIENS, OTHERS, AND THE CROWN

ENVOI

EIGHT Conclusion A Legality of the Contingent

THE MAN WHO MISTOOK THE LAW FOR A HAT

GHOSTLY POWERS

AN ENGLISH UNCONSCIOUS

CRITICAL LEGAL STUDIES, OR IUS INTERRUPTUS

BIBLIOGRAPHY

INDEX

PREFACE

The most ancient of the Western mythologies of the foundation of law, that of the decalogue, tells the story of an order of legal writing established against the disorder of images. The writing and rewriting of the law took place around the destruction of an idol. The idol in question, the golden calf or Osiris, has been variously interpreted as representing Egypt, plurality, or feminine deities and cults of creativity. The foundational story of the writing of law is predicated upon destroying or outlawing idols, the images of other laws, of different forms of representation and of gender. The story of foundation establishes an iconic order of legality as writing, speech, or text whose letters or literae will banish both the use and the meaning of images and the other idols or figures of thought. This study will pursue this narrative or trauma of social foundation primarily through the example of early modern discourses of foundation of common law. It will be argued that the inaugural doctrinal discourses or treatises of common law inherit or replicate the structures of classical Western patristic writings and their theological and latterly secular narratives of legality. The common law too can be studied in terms of an originary trauma or misrecognition of identity. The Anglican legal tradition was born of the Reformation and of the new form of letters, the printed text. In doctrinal terms it developed initially as an aspect of the protest against images and established itself through discourses against the distraction of images and the idols of the mind. It built its doctrine and identity against the ornaments of Rome and the sophistries of the Continentals. It also wrote itself against women, the living images which threatened to confuse the spirit or truth of law through mere appearance and carnal pretence.

The following study will thus interpret the foundation of common law primarily through a historical analysis of Renaissance and Reformation debates on the history, uses, and laws governing images. In that respect it offers an analysis of those foundational debates within ecclesiastical and secular law that first spelled out the terms of the modern governance of perception, the direction of thought through control of the visual, the figures of law both internal and external to its subjects and its texts. The argument builds upon the historical enfolding of spiritual and temporal discourses concerned with the governance of the soul, with spiritual laws variously directed at idolatry and iconoclasm, image and figure, statue and law. The development of secular doctrines concerned with governance of text, interpretation and ethos in the reformed age of print established both the form and the meaning of law. The analysis thus suggests both a displacement and an incorporation of one law in the other: the secular law inherited or otherwise annexed or absorbed the earlier powers, techniques, and jurisdictions of the spiritual law and its Courts of Conscience. The laws against images became protocols of reading or hermeneutic rules prohibiting images, figures or, in strict terms, harlots, loose women, the whore of Babel in the lawful text. The argument uses history as a means of thinking the terms of a critical jurisprudence and may be addressed synoptically: the regulation of the visible was always in essence a determination of the licit forms and the proper references to the invisible or unseen. The regulation of exterior images was directed at control of interior images, mental idols, or unseen signs. In short, the visible was a spectacle of things invisible, and the governance of visibility was in consequence a direction of things heard, remembered, desired, or imagined as the customs or precedents of common law.

The discourses against rhetoric, against images, and against women that this work traces and expounds are discourses of the foundation of law in the definition and capture of subjectivity. They spell out the laws or constraints of thought in the inaugural discourses of social being and its constitutive texts. It remains to be added that while law is always a governance of thought and so can perhaps be most radically rethought as such, it also constitutes itself upon an unthought—upon custom, repetition, and repression. Law, for Aristotle, was wisdom without desire. In a literal sense that reference could be taken as meaning that law is a truth that represses desire, a text that negates its images and denies the figurations or fluidity of its texts. In a sense which will to many seem extreme, the analysis also suggests a logic of the supplement or return of the repressed. In this aspect this work seeks to represent some of the more obscure texts of the tradition, some of the forgotten themes and works of early legal doctrine, the other faces or other scenes of the institution. The critical analytic suggestion embodied in this text thus concerns a politics of recupera- tion, of recovery of the traumas that law cannot consider, of recollection of the repressed and failed images, figures, texts, and thoughts prohibited by the prose of doctrine, by the language of judgment, by the protocols of a wisdom without desire.

Some time after imagining the title Oedipus Lex, I was alerted to the existence of another use of the neologism in a jurisprudential context by the Canadian jurist Professor J. C. Smith in a book titled The Psychoanalytic Roots of Patriarchy: The Neurotic Foundations of Social Order (New York: New York University Press, 1990). My use of the term is, I believe, sufficiently incidental and certainly adequately displaced to excuse the unconscious borrowing. The signifier floats. So too I should apologize for my neologism gynaetopia. It should, of course, be the phonetically more complex genitive, gynaecotopia. I have simply preferred the bastard form. So also, for reasons that are self-evident, ius interruptus is preferred to the grammatical ius interruptum.

My thanks to the usual causes, women, men, and institutions. The British Academy, the Nuffield Foundation, and Birkbeck College all provided small research grants which greatly facilitated comparative and archival research. My thanks to those at Cardozo Law School, New York, who collectively tolerated my presence and sharpened my thought over a semester as visiting professor. Arthur Jacobson, David Carlson, Chuck Yablon, Marty Slaughter, Michel Rosenfeld, Jeanne Schroeder, and Richard Weisberg all politely and perspicuously challenged my cultural prejudices and my theoretical preconceptions. I hope to repeat the experience. At Lancaster University my thanks to my colleagues in opposition, to Peter Rush, Alison Young, Les Moran, and Piyel Haidar for their extremism and their scholarship. My disparate thanks to Renata Saleci, Peter Fitzpatrick, Neil Duxbury, Matthew Weait, and Tim Murphy, all of whom were at times either sufficiently direct or simply rude enough to say what they thought. For their peripatetic style of scholarship, for their voice, and for their imagination, my thanks to Tony Carty, Patrick Durkin, Linda Mills, Ronnie Warrington, David Walliker, and Costas Douzinas. For glimpses of an authentic augury of thought and for lessons in the sorcery of history and of writing, my thanks to Yifat Hachamovitch and to the birds.

ONE

Introduction

Melancholia Juridica

The study of law has always traveled under the sign of Saturn, and the sages both of common and civil law have seldom paused to doubt the depressing character of legal study. The humanist reformer Hotman referred to the abyss of this study being such as to steal every waking hour, leaving no time either for scripture or other pursuits. The only fault greater than the irritating and futile flaws, the impostures or injustices of the interior matter or substance of the discipline was the vice which he perceived to be natural to its form: "What man of sense and judgment can read a single page of this word play [badinage] without suffering weariness of heart as at a foul smell."1 Hotman also referred to the study of law as an endless, disputatious, and damaging pursuit of fragments, pieces, and patches (lopins) representing uncertain conjectures and tenuous divinations.2 The lawyer compulsively sought to reconstruct a law lost in antiquity, particularity, and incoherence. Even Baldus, the most learned of fourteenth-century Continental jurists, is reported to have remarked on his forty-seventh birthday that he was still an apprentice in the law, that he still knew only a little of the law and was dazzled by the authorities, so much so that he was forced to judge as often by chance as by reference to assured, certain, or written rules.3 Nor were the common lawyers more reticent in their condemnation of the discipline. Dr. John Cowell, the second holder of the chair of common law at Cambridge University, remarked in 1607 that the study of common law had yet to be embellished by systematic or serious learning, that it had yet to acquire scholarship and a knowledge of Continental learning, that it had yet to gain some comfortable lights and prospects toward the beautifying of this ancient palace, that has hitherto been but dark and melancholy.4 His contemporary Sir John Doderidge referred to the study of law as being "multorum annorum opus, the work of many years, the attaining whereof will waste the greatest part of the verdour and vigour of our youth, and requiring not only constancy and endless hours but also the continence or chastity of an unrelenting discipline.5 So too, even Sir Edward Coke, most usually an eulogist of the tradition and its perfections, was forced to admit that the student in the laws of the realm, having sedentańam vitam, is not commonly long- lived; the study [is] abstruse and difficult, the occasion sudden, the practice dangerous."6

The examples of law’s melancholia could easily be multiplied. The directions or preparatives for legal study required both physical and mental preparation for the dangers of the discipline. The demands of law were numerous and life-long, the discipline required the training of the body and the capture of the soul. Sir John Fortescue referred to law as a forbidding discipline, as a sacral pursuit which was to engender a filial fear in its students.7 William Fulbecke talked of the pernicious and addictive character of legal study, and of the obscure, dull, and coldly prosaic style of its texts: The books of law … are not pleasant to read, the words or terms are harsh and obscure, the style no whit delightful, the method none at all.8 Abraham Fraunce similarly considered legal study to be hard, harsh, unsavoury, unpleasant, rude and barbarous and as if that were not enough he concluded with an olfactory reference to its loathsome savour.9 The discipline of law demanded everything of its student and sought, in the emblematic community of the Inns of Court, to regu late every detail of gesture, dress, diet, lifestyle, company, and behavior. The early legislation of the Inns explicitly required reverent behavior, a minimum of noise and forbade beards and long hair as well as colorful clothing, alcohol, tobacco, and games of shoffe-grotte. Lawyers should wear sad colours, appear downcast, and generally be quiet in the limited sphere of their life outside of court.10 In terms of principle Fulbecke, in the course of elaborating the proper regimen of the law student, stated the next thing I require in a student is temperance … a restraint of mind from all voluptuousness and lust, as namely from covetousness, excess of diet, wantonness and all other unlawful delights.11 Other authors agreed fully that the study of law, which required as its first art that of memory, necessitated that the student keep a diet, and eschew surfeits, to sleep moderately, to accompany with women rarely, and last of all to exercise the wit with cunning of many things without book.12 Other more pedantic and curious manuals of advice dictated that the student should rarely eat red meat, since its vapours and fumes do cloud the mind and overshadow the clearness of the brain,13 and should rise early and not study too late. The need to begin study at dawn was in part a reflection of the demands of an unending pursuit, but it was also metaphysical: dawn was the friend of the muses (aurora musis amica), the air in the morning was subtilized, and made thin, pure and free from all gross vapours but in the night time it is thickened, and corrupted with all contagious exhalations, which possessing the senses, do pierce into the brain.14 The night, in a sense to which this study will frequently return, was the time of fantasy or imaginings, of images and women, and all were perceived as threats to the capacity, probity, and reason of law, for night always comes on with the mind disturbed.15

It is tempting to conclude that the study of law either attracts or produces unhappiness. It is tempting to surmise that wealth, status, and political influence, the rewards of law, can never be a full compensation for the risks of looking too long upon ink and black buckram.16 The fate of the law student is that of studying a discipline that Sir Roger North depicted not only as dangerous, difficult, and less pleasant than other disciplines but also as demanding the "whole man … [who] must not only read and talk, but eat, drink and sleep law … nulla die sine linea" 17 In Fulbecke’s view, lawyers were eventually consumed by law. They became "so full of law points that when they sweat it is nothing but law, when they breathe it is pure law, when they sneeze it is perfect law, when they dream it is profound law. The book of Littleton’s Tenures is their breakfast, their dinner, their tea, their boier [supper] and their rare banquet.18 Law, or legal addiction, consumes the subject from within until nothing but law is left— a façade, a face, a winding cause," the melancholy of exploitation and nothing more. And, according to Burton’s Anatomie of Melancholy, it was not simply the individual who would need to be saved from law’s inevitable melancholic effects but equally the state or commonwealth which was prone to succumb to the same humor or condition of melancholy. In diagnosing the mental health of a population, in analyzing the unconscious of the institution, Burton does not hesitate to offer law and lawyers as a symptom of collective mental illness: I undertook at first that Kingdoms, Provinces, Families, were melancholy as well as private men, and thus he adds where [a population] be generally … contentious, where there be many discords, many laws, many law suits, many lawyers … it is a manifest sign of a distempered melancholy state.19 For much of the first book of the Anatomie, law is virtually synonymous with the diagnosis of melancholy. The topic or theme is a common one in commentaries upon the state of the commonwealth. For Burton, law "is a general mischief in our times, an unsensible plague, and never so many of them … and for the most part a supercilious, bad, covetous, litigious generation of men. … A purse milking nation, a clamorous company, gowned vultures, qui ex ini- uriam vivunt et sanguine civium, thieves and seminaries of discord … irreligious Harpies, griping catchpoles… without art, without judgment."20

The nation, according to Thomas Wilson in 1601, was being consumed by common lawyers, a profession that had gained an unwarranted and uncivilized monopoly on disputing since the practise of civil law has been as it were wholly banished and abrogated, and since the clergy has been trodden down by the taking away of Church livings.21 The profession had expanded beyond reason and conscience, and some more compendious means of composing disputes had to be possible. As if the condition of seizure, addiction, or apprenticeship to law was not deterrence enough, the lawyer thus had also to face a constant stream of criticism precisely directed at the obscurity, superabundance, immorality, and greed of, and delays promulgated by, his profession. Early political commentators on the growth of the modern legal profession constantly talked of swarms of lawyers infecting the commonwealth like the plague.22 Dramatists satirized the lawyer as a pettifogging fraud, as a hanger-on and parasite: Without the least taste of university learning, they advance, swelled with presumption, and full of ignorance and impudence to the Bar.23 They were brave and ludicrous magnificoes who hid their ignorance of both law and custom behind the use of inkhorn terms, a nonsensical jargon composed of Greek, Latin, French, Dutch, Danish, and double Dutch—if all men spoke such gibberish, ’twere a happiness to be deaf.24 The lawyer was more popularly perceived as a wheedler and wrangler, a scrivener without a soul, an advocate of venal motive whose only cause was a barbarous self-interest in dirty lucre. The law was expensive and time-consuming, delay was piled upon delay, while incompetence or simple confusion would eventually ensure that the litigation almost always outlived the litigants. The melancholy engendered by the internal difficulty of legal study was thus frequently complemented by an extreme external lack of appreciation. To cap it all the lawyer was perceived as socially incompetent, emotionally inept and, more generally, as impatient, sour … morose and incapable of conversation.25

The external condemnation of the profession of law no doubt contributed considerably to the unhappiness of the lawyer. More than that, however, it indelibly marked the character of the legal institution. In one sense it made the lawyer defensive and protective of his calling and its homosocial professional environment. In response to criticism the common law tradition was stated to be the most ancient and best of all systems of law, it was unique and connatural to the nation: it was uninterrupted tradition, age-old usage, immemorial practice.26 In the extravagant words of one eulogist, the law of England is really to us who live under it, the Foundation of all our happiness; it secures to us our Estates, our liberties, and our lives, and all that is dear to us in this life, and not only so, but by securing our religion, it secures to us the means of attaining everlasting happiness too. By this law, we not only enjoy the pleasures of this world, but even God.27 The law, according to Roger Coke, is embodied in the Crown, which has the role of a nursing father and is bound to care for its subjects in both their temporal and their ghostly or spiritual form.28 In addition, extensive popular criticism forced the lawyer to reinvent and to rely heavily upon the architecture, theater, and other symbols of justice to identify the profession and to protect the tradition. Lawyers had to restate that this law was English law, that its ancient practice was both custom and constitution, and its rule the law of nature habituated to the manners of England. The essence of common law became the fantasm of its Englishness. It was a tradition that existed to protect those things that the English value and had always valued. Its constitution was domestic, its law unwritten, its creed a matter of good manners and of doing things as they had always been done.²⁹ At one level, I will suggest that if the legal tradition seems melancholic, if it appears historically as insular, slow, and obscure, this is no more than an expression of the fact that such is the character of the English. The legal tradition embodies the melancholic soul of a private nation afraid not simply of others but, in analytic terms, primarily of itself and of its emptiness, its stupidity or lack of thought.

It would be easy to suppose that in consequence of such existential and emotional inadequacy, thinly veiled by the façade of legal reason, some inner compensation would be needed as a palliative for those that risk studying a discipline so dangerous to both individual and collective wellbeing or institutional health. The first and recurrent theme of the present study is thus the analysis of legal melancholia in terms of that which is mourned or has been lost in the course of a monastic legal training. This aspect of study was constantly remarked by the wives of lawyers and by early feminists as leaving the law student unfitted for ordinary conversation and the legal husband emotionally incompetent to deal with the demands of an extralegal or nonadversarial life. In Freud’s terms, melancholia is the morbid internalization of the loss either of a loved person or of some abstraction which has taken the place of one, such as a fatherland, liberty, an ideal, and so on.30 Melancholia is distinguished from mourning by the unconscious character of the lost love-object, and it is thus the first task of a jurisprudence of melancholia to reconstruct the lost objects of legal life: for the individual these would probably be youth, vigor, manners, emotions, the English tongue, and the various bodily hedonisms associated with a life beyond the library and its dusty aura of the texts of law. For the institution the losses are more complicated but would undoubtedly include the loss of its authentic sources, the pristine immemorial law which preceded the inventions of statute, the native common law in the Celtic and later Anglo-Saxon tongues that existed prior to the Danish, Roman, and Norman invasions, the true unwritten constitution which represented an honest England that preexisted Europe and its increasingly vocal call to a written law. The Oedipus myth should also, however, alert us to the fact that the negative dimension of loss inevitably has a positive representation. Oedipus marries his mother as part of a search to evoke, to restore, or to become the dead or lost father—the king, an imaginary patriarch whom Oedipus had never known.31 In more technical language Freud termed this process that of a hallucinatory wish-psychosis with which the melancholic replaces a reality that has caused pain and grief: every dream, for Freud, fulfills a wish. Is it possible, in other words, that the positive imagery of law, the dreams of order, science, reason, and justice, are simply the melancholic lawyer’s projection to cover the lack of reason, system, and justice in a common law composed of infinite particulars, of precedents, customs, statutes, and other contingent and specific rules?

I do not suppose that a psychoanalytic diagnosis of the institutional condition of law will make either lawyers or law happy enterprises—after all they have their dinners, costumes, words, (emotional) distance, and money for that—but it does suggest that it might be intelligible to treat the study of law as both more and less than the systematizing analysis of a technical order and practice of rules. The corollary of the argument for a study of law’s melancholia, of its unconscious losses and fictive gains, is an assertion of the value of a critical legal theory or of a jurisprudence that understands and analyzes the law not simply for professional ends but also as a specific genre of human relationship and as an activity or form of life. The agon and the agony of learning legal rules is to the legal mind only one aspect of law’s dominion. The apparent evil hides a deeper good, the conscious delay and disorder of law an unconscious order and grace, the visible spectacle an invisible reference. The apparent world of the law, like the ecclesiastical order of images from which it devolved, is only ever an indicium, a symptom or sign of the value of law and of that metaphysical or invisible order that extends beyond or underpins the tangible surface realm of legal instruments and judgments. One simple illustration from an early fourteenth-century legal ruling on contempt of court should suffice to illustrate the point.

In the case of William de Thorp v Mackerel and another, the plaintiff, the king’s sworn clerk, was walking from the Inns of Court to the Court at Westminster in the company of sundry other men of law.32 While proceeding along Fleet Street, William was attacked by Thomas Mackerel and others, who assaulted William with "force and arms and beat, wounded and ill-treated him and inflicted other outrages on him, that is to say pissed on him [urinam super ipsum] and trampled him underfoot." The writ of trespass later issued by the plaintiff, a venire facias, stated that the defendant was in contempt of the King and his court and further that this contempt had been committed in presencia curie or in the presence of the court. Judgment was for the plaintiff, and the court simply accepted as un problematic that although the contempt had been committed some two miles from the Court at Westminster, it was nonetheless committed in the presence of the court. It was, in short, a contempt or scandalizing of the court which was to be treated by the common law according to the geographical fiction that what took place some two miles from the court occurred in the court, in the presence of, or in contemporary terms, in the face of the court. William de Thorp was awarded 100 shillings in damages and later became Lord Chief Justice.33

Aside from its immediate expression of animosity toward a scandalous irreverence to a particular officer of the court, the decision in Thorp v Mackerel can be interpreted most directly as indicating, if only momentarily, the dependence of the visible order of law upon an unseen and unconscious mapping of a nonphysical legal territory. The relationship can be posed in many different ways. In medieval terms the visible and natural body of law was subordinate to the mystic body or corpus mysticum of the realm. Just as the canon law held that the church did not inhabit a territory (ecclesia non habet territorium), the law of the land was also conceived as extending from the realm of appearance and of corporeal presence to a territory and space of the mind. When William de Thorp was attacked it was only coincidentally a natural person who was injured. The real subject of the contempt was the dignity, the imaginary peripatetic place, symbolic presence, or office of law. What was attacked was not a simple body but rather an image or sign of law’s other body, the other scene of its presence and place. Historically the law always traveled with the person of the King,34 and by the time and extension, the court and the judges, the itinerant delegates of the King’s justice, were similarly to be deemed as traveling by simulation or as if they were part of the law or of the Crown’s mystic presence or other scene. And thus, according to William Lambard, it must be true, that the king and his council are not to be tyed to any one place, seeing that the place itself neither addeth nor derogateth to, or from their authoritie.35

The institution, in short, constantly spills from the court and the text into life, and to trace that quiet and imperceptible crossing of boundaries requires a jurisprudence that is attentive to the little slips, repetitions and compulsions, melancholic moods or hysterical outbursts, that hint at the transgressive movement from one order to another, from conscious to unconscious law. More than that, the law depends upon a geography of mental spaces, which cannot be reduced to its physical presences, its texts (lex scripta), or its apparent rules. The appearance of law is only ever an index or sign, a vestige or relic of anterior and hidden causes. A structural principle is operative in legal dogmatics, which attributes causes strictly to an invisible or unconscious order, to the imagination of the senses (formae imaginarias) and in doctrinal terms to the spirit of law. The order of this spirit or meaning, text or truth, is a positive unconscious within which are stored the originary and repeated themes of institutional life. They constitute a historical a priori, the patterns and forms of an itinerant law, those memories of the tradition which by virtue of their foundational or structural quality are no longer represented but simply are lived without the need for further representation: The mask is the true subject of repetition. Such is the case because the nature of repetition differs from that of representation, because the repeated cannot be represented, but must always be signified, while masking at the same time that it signifies.36 A canonic geography or mapping of law institutes a cartography of those structures, those forms of terror or manipulation that bind invisibly and from within, for they are the measure of that most complex and mixed of spiritual and temporal constructions, namely the presence of an unwritten law. In one recent and intriguing depiction of the architecture of the Inns of Court the same point is made by reference to their topology: "Common law is revealed: … accordingly, the Inns function as a ‘threshold’ between the physical world and the invisible principles of law. If the body claims truth from metaphor, then the Inns hide behind the face of the city, the street, creating an insubstantiality out of an imposing gaze, the expression of law that, having once appeared, always struggles against the hazard of chance which would erase it. Hence, the mask of the Inns is articulated less with architectural ornament than with the slipping away of what is deflected by the mask … the final and ultimate teleology of law; an authentic source."37

The second theme of the present study is to pursue the deflections or screenings instituted by the mask, façade, or image of law. The law is in psychoanalytic terms a symbolic permutation or point of passage between one order and another and it is variously depicted as hinge, pleat, or gate, Mercury or Janus, name or text. It is the point of splitting or moving from one order to another, an intangible folding or exchange between differ ent realms, a changing of places.38 The specific strategy of this study is that of thinking historically of psychoanalytic jurisprudence. Using the earliest theoretical discipline associated with law, namely rhetoric, the study progresses to a genealogy of the image in law through an analysis of Reformation and Renaissance discourses on images and their destruction, on idolatry and iconoclasm both as forms of thought and as expressions of law. The result of that analysis is, broadly, to trace the law’s relation to the image and specifically to reconstruct the genealogy of law’s laws of interpretation, its laws of thought and their exclusion of figuration within the evidential and expository traditions of legal dogmatics. Contemporary jurisprudence is thus here challenged through the practice of comparative history and through the reconstruction of a series of discourses of and upon law from the Renaissance and the Baroque, from the sixteenth and seventeenth centuries. The allusion to those specific historical periods is in part a reflection of a postmodern sense of the contemporary, namely, that things are not going well, and in part an attempt to rethink the institution and to rewrite the law in the terms of its failures, in the terms of the traditions and texts—the emotions, the lives—that have been suppressed or excluded from doctrine and its representations of institutional history.

In positive terms the analysis of early legal treatises examines two formative or constitutional repressions, namely those of the image and of woman. Common law jurisprudence adopted to varying degrees the Continental doctrines of iconomachy (of hostility toward images) and of the inferior condition of woman through the influence of the Reformation and the Renaissance, respectively. The present work traces that dual inheritance and endeavors to elaborate the influence and continuing, although displaced, effects of those two repressions. The discourse against images, technically the antirrhetic, it will be argued, became in the aftermath of print culture a discourse against textual figures, painted words, and imaginary signs. It was a discourse of denunciation, against the heresy or heterodoxy of what Tyndale terms image-service,39 and subsequently a discourse against words, against the materiality or rhetoricity of language.

The antirrhetic was continuously presented in terms of the image as a woman or a harlot and the service or worship of images as fornication or adultery. Because it was law, one might say, the antirrhetic thought in terms of analogy, of metaphor or substitution, and so outlawed images because they did not seek to substitute but rather relied on contiguity or metonymy, upon a free association, a mobility that passed through the law but always also exceeded it. In short, the antirrhetic was also a means of establishing a law of gender division. The antirrhetic instituted a prose that was if not always resistant to the images of femininity, was nonetheless unremittingly hostile to the other sex. Where the antirrhetic operated to institute a specific and singular order of iconic or real images, the displaced discourse of the antirrhetic, that which propelled the law against the political right or law and suffrage of women, operated to institute a particular order and law of thought consonant with the antique requirement of the Decretals that law be served with chaste eyes, oculos castos servare.40 The denunciation of woman in the early doctrinal and constitutional writings of common law was the repression of a figure of femininity, of a metaphor or face which represented the plurality or creativity of thought, an other scene of reason, a genealogy of myths or histories of difference.

The final theme, although I am uncertain of its success, is that of the return of the repressed within the discourse of law. In strict Freudian theory the repressed constantly presses against the barrier of consciousness, in order to impose its contents on consciousness. Yet the resistance offered by consciousness, on the one hand, and the pressure of desire, on the other, leads to a displacement and deformation of that which could otherwise be reconstituted unaltered. The dynamic of delirium recalls the constitution of the dream or the phantasm.41 The repressed returns, in other words, and is repeated in displaced forms. I am less concerned, however, with the point of principle than with the politics of theory that it implies. The historical and rhetorical reconstruction of textual imagery and of feminine genealogies or gynaetopias, of the forms of repressed discourse within the jurisprudential tradition, suggests a specific and rigorous strategy of institutional politics, a strategy of legal difference. Repression is a positive and internal act, it lays out a space within the institution; in the case of law the space is one of images, of flowers, ornaments, aesthetic judgments, tastes, emotions, lifestyles, and fantasies, a space consonant with all of those disciplines and discourses that doctrine and law conceived to be incidental, accessory, merely rhetorical, contingent or other to the tradition (ius non scriptum) or established practice of law. The recollection of institutional repression offers a positive politics, a wealth of resources, of fragments and contaminations of the science of doctrine, the purity of reason or the ideality of law. It offers the possibility of a criticism or critical legal studies that rereads and rewrites doctrinal scholarship and, by implication, the future of professional practice through the epistemological other of legal knowledge. In one sense, different forms of reading are aligned to different rhetorics of writing, and the challenge to the law or rhetoric of genre is a radical challenge because it threatens the founding principle of institutional transmission, its custody of meaning and text. In a more complex sense, the accepted literary or, more properly, grammatological forms of doctrinal scholarship are closely tied to appeals to laws of reason and reference, clarity and iteration, which necessarily deny—not least through visual metaphors of reason—the very existence of the object of critical scholarship, an unconscious or repressed tradition within the legal institution.

The threat of the repressed within the institution is in one significant sense the threat of the unknown or, more precisely, the intimation of that which has not yet been determined, which is not mapped in advance by law’s regula or calculus in the institutional form of knowledge as recognition.42 The positivized jurisprudence of common law, the epistemology of doctrine, is tied by precedent to a knowledge that is known in advance, to a prior determination of the forms, classifications, languages, and similitudes through which judgment will be repeated. The critical method of the present study aligns itself with the suspension of such prior judgment, with the bracketing of the established positivities of legal method, and in so doing it suspends also the preexistent audience of law’s literary practice. Critical legal studies has as one of its goals that of rewriting the arts of law, that of writing differently and so also thinking the difference of law.43

It addresses an audience that is either unknown or that does not yet exist, one that has yet to come into being. It is in that perhaps limited respect both institutionally creative and theoretically radical. Certainly it is the rhetorical character and experimental style of critique, rather than any substantive content, that occasions the greatest degree of institutional hostility and doctrinal denunciation. The academic institution is quite simply lost in the face of a literature whose audience is unknown, either long passed on or not yet in existence in institutional terms. It cannot police the disciplinary boundaries nor assert the institutional propriety of a rhetoric that displaces its audience. Nor can it legislate a politics of style in which poetry is law.

The recourse to rhetoric, aesthetics, and psychoanalysis as providing methodologies and terminologies for critical analyses of law is not simply an obscurantist or an elitist strategy. These disciplines are those that even liberal versions of doctrine would exclude and philosophy of law pronounce improper or in error. Without directly addressing the substantive implications of the opposition between dogmatic jurisprudence and its margins, the peripheries against which it defines its own sanctity and truth, it is possible to observe that law carries with it a history of advocacy, polemic, and denunciation. Even at the level of doctrine it cannot be denied that the dogmatic function has always been political in the sense of being gauged to institutional and didactic goals. It teaches the exemplary forms of citizenship, it fabricates or institutes subjectivity, it demarcates the principles and boundaries of social thought. The law as model, image, or icon of social presence is the site of social reproduction, of political love and collective desire. To offer an analysis of the law’s relation to images it is necessary to retrace the relationships, the judgments or forms of living that the image masks, internalizes, or hides. The real image or icon is the point of attachment to law, and the analysis of the image therefore puts into play the stake of legality as such, the capture of subjectivity, the apprehension or seizure of thought in the institutions, texts, or judgments of law. The law, Coke’s nursing father,⁴⁴ takes hold, it institutes subjectiv- ity through and across the imagery of