17 September 2014


We suggest two interesting articles from the new issue of Legal History eJournal

"Historicism and Materiality in Legal Theory" 
Forthcoming in Maksimilian Del Mar and Michael Lobban, editors, Law, Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing)
CHRISTOPHER TOMLINS, University of California, Berkeley - Jurisprudence and Social Policy Program
Email: ctomlins@law.berkeley.edu

Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry that emphasizes the tempero-spatial locatedness of its objects of attention, and examines the multiplicity of relations existing between object and context. Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. Given the stranglehold that historicism has achieved in legal history, it is not surprising that its core contentions should be the drivers of revisionism in legal theory. However, alternatives should be considered. This paper undertakes a critique of historicism, and examines a rival philosophy of history that I will call “materiality.” A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices. Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation. Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010). My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located. If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.

MARY L. DUDZIAK, Emory University School of Law, Center for Advanced Study in the Behavioral Sciences
Email: mary.l.dudziak@emory.edu
With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested.

If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a "next attack," and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law.

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