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Zitiervorschlag: Rechtsgeschichte Rg 3 (2003)

http://dx.doi.org/10.12946/rg03/023-032

Rg32003 23 – 32

Peter Goodrich

Retrolution

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Abstract

Das Verhältnis des common law zur Geschichte ist schon immer ein schwieriges gewesen. Die Ge-lehrten des common law in der Frühmoderne gaben – nach dem Vorbild ihrer Kollegen in der Theologie – der Hierarchie den Vorzug vor der Geschichte, der Tradition vor den Texten und der zeitlosen Erinnerung vor den Zeugnissen der Ver-gangenheit. Am Beispiel des Fotos einer Juristin will dieser Artikel das Marketingkonzept der Re-trolution – eine Retro-Fiktion – entwickeln und damit zeigen, auf welche Weise Juristen des com-mon law die Vergangenheit so manipulieren, dass das Publikum der Gegenwart überzeugt werden kann.

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Retrolution

In a recent and extremely popular book ofphoto portraits of women, the artist AnnieLeibovitz includes a highly stylized photographof a law professor.1 Martha Nussbaum, a publicintellectual and professor of law and ethics atChicago University, is pictured in an emblemati-cally legal pose. It is a complex and semioticallyladen image and so deserves a detailed descrip-tion.

The picture is interesting for its marginaliaand for the framing of its subject but the eye isdrawn initially toward the striking blonde sub-ject of the portrait at the center of the image.Martha Nussbaum is staged judiciously. Doublyso. She is seated with a book on her lap, herhands hidden. In front of her, on a low table, aweighty reference tome lies open, in use. Thereare various other texts strewn around, theirprint out of focus and maybe airbrushed outso as to give the impression of a white andalmost blank space. Moving up from this fore-ground of texts the immediate subject of theportrait has stopped reading and directs hergaze towards the camera and the viewer.Dressed in the academic equivalent of courtdress, all in black, she sits not with the down-cast eyes that traditionally marked the femininesubject of law but rather she looks up and out.2

She sits as a judge within an equitable frame.She is somber yet accessible, learned yet enga-ged, reverent yet candid. Unusually for a port-rait either of a lawyer or an academic she is notframed against a wall lined with books, she isnot at a desk, nor is she in a library, classroom,or office. It is this displacement of the formalityof texts that lends the necessary contrast be-tween masculine and feminine and metaphori-

cally between equity and law. She is at home andat ease with her textual authority, she is in theworld, in life. She is the bearer or inhabitant ofher knowledge rather than its subject or func-tionary.

If Nussbaum seems in a formal sense com-fortable it is because she is pictured in a livingspace, at home, in an emblematically domesticenvironment – there is a dining room table vi-sible through an open doorway to her left – but

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1 Annie Leibovitz and SusanSontag, Women, New York 1999at 194.

2 Sir John Fortescue, De legisnatura naturae et de eius censurain successione regnorum suprema(1466), in: The Works of Sir JohnFortescue, Knight, London: Pri-vate Distribution 1869, at 321depicting a justice and judgmentthat speaks »vultu ad yma dis-misso« (with downcast eyes).

The usual depiction of the femi-nine in educational and instruct-ional manuals was as ›shame-fast‹ or shame-faced, lookingaway. See Jan Luis Vives, Deinstitutione foeminae Christianae[1523], London: Wakes 1557 atfol. K.1a-b. Justitia herself, ofcourse, was also shamefaced –namely blindfold.

her dress, occupation and gaze all suggest she isin the home rather than being of it. It is in such acontext of subtle displacements that the eyemoves from the pose of the immediate subjectof the portrait to the wall behind her. Therehangs a painting, though only the lower portionof the picture is within the frame of the photo, asif it somehow exceeds the montage and links thepresent subject to an outside, a past or beyond.The incomplete painting is a jointure betweenthe inside and the outside of the portrait, be-tween past and future, and potentially betweensubject and law.

Immediately above Martha Nussbaum, eccemulier, is a portrait of her mother.3 It is a primalscene of transmission and on inspection hermother transpires indeed to be depicted properlyin an identical pose to that of her daughter. Shetoo is seated, looking out, though as if to markthe difference of generations, she looks to theleft, where Martha below her looks out to theright. What is significant is that as in a mirror themother is emblematically framed in the sameposition, and even more strikingly she is sur-rounded by comparable tones, and by similarobjects in similar places. The singular and ex-plicit substantive difference, the one eye catchingcontrast between the two subjects is that whereMartha is portrayed reading, her mother ispainted knitting. Here then is seemingly therepresentation of a dramatic shift as also of analternative lineage, a new law. The juxtapositionof mother and daughter, framed in the same way,one under the other, would appear to imply amatrilineal descent, a transmission from womanto woman, a feminine law. At the same time,however, that the subject is feminine, the frameand the form are classically juridical. The play-fulness or parody of the portrait, the novelty ofthe public intellectual and lawyer in the same

position as her mother has to be contrasted tothe genre of the representation and the structuralmessage that it conveys.

Mother and daughter are portrayed as themirror image of each other. The mother looks toher left, the daughter to her right, the daughterthus appearing as the inverse of the archetype,her reflection necessarily differing from the ori-ginal that it reproduces. The difference, however,is superficial: the photo reflects back the sameimage in inverted form. As if to mark that verypoint, to Nussbaum’s left, on a green chair whosehue matches the color and tone of the portraithanging above her, a woolen shawl or throwblanket is draped, discarded but present, unnee-ded but available. It is significant, of course, thatwhere the mother knits the daughter reads, thattextile is replaced by text, but the overwhelmingfunction of the portrait is that of portraying thedaughter as a daughter, under her mother, car-rying on the tradition, taking up her place in theinstitutional mirror of the present. In what fol-lows I will argue somewhat wistfully that farfrom being a radical or subversive image theopposite is true. The portrait simply applies theprinciple of lineage to a novel form, the femalelaw professor, and by association it repeats theexisting pattern of juridical representation butthis time in relation to the feminine gender. Theapparent reversal is best viewed as a ruse. Thephoto interpellates its subject and while it does soin the inverted form of a feminine genealogy itnonetheless marks a juridical place and emble-matizes the role of its current occupant in ahighly conventional mode.

Portraiture has a tremendous significance incommon law. The genre is one of the most visibleand accessible forms of law’s public presence.The portraits of past judges that mark the formalspaces of the Inns of Court, the courthouses, and

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3 The image is overwhelmingly ofher mother, whether or not it isactually a portrait of her mother itis staged as such and performs thatfunction.

so too the pictures of judges, former deans, anddistinguished professors that line the corridorsand the other communal spaces of the law schoolare the emblems of the lineage and legitimacy ofits current custodians. What is done is done anddone well because it fits within an inheritance, agenealogical line and legitimacy, a family thatstretches back beyond the time of memory to theimmemorial, to nature, to God.4 The past asunderstood in common law is a prototype, ameasure, a precedent that dictates contemporaryforms. The genre of the portrait offers oneparticular species of emblem or dramatizationof the past. It links the subject to her place androle within the family and thence the institutionand law. It establishes provenance, the status andthe priority of the source over its current andtransient representation. In classical form theportrait is the imago, the death mask of theancestor that rules over the family and representsthe inheritance of law.5

The novelty and parody of the portrait ofNussbaum is undermined by its juridical form. Ittakes its place in the tradition of legal portraitureand not only follows precedent but also re-enactsit in relation to a novel subject, the law of themother and the role of the daughter. The portraitwould not stand out, in other words, in the lawlibrary or the courthouse corridor, it would takeits place, it would hang with the rest, and if itelicited comment it would only be because it wasa photograph of a woman in the place and garbof the law. Here then we witness what I will terma retrolutionary moment, the incorporation of anovelty in the form of the past, a significantmetalepsis whereby the novum is rendered safethrough insertion into the fictive pattern orestablished genre of its legally designated repre-sentation and place. The power of the portraitlies in its creation of a new emblem, the advent of

an additional fiction or precedent, in which thefeminine too can take up its place in history andlaw. For all that such an image is exciting andpolitically remarkable, however, it repeats andindeed is overwhelmed by its retrospective as-pect, by the formal elements of its homage toparent, filiation and law.

Attachment

It may seem curious to address the relation oflaw to history through the portrait of a womanphotographed by an avowedly feminist artist.The curiosity of the juxtaposition and the novelmedium of its representation, however, consti-tute a telling instance of transition, and a pecu-liarly explicit moment of transmission. It is in therepresentation of a rupture that the passage ofthe subject into her legal place, the instance ofcreation of a juristic fiction of the self, is renderedwith a power that has been lost or is at least lessobviously visible in the more familiar arsenal ofdecenal and judicial pictures.6 The retrolutionfunctions in law to renew the prior fiction, toassert the prototype again, and in doing so itgenerates a new object of affection, a new way ofloving the order and hierarchy of the past.

The photograph is not a painting and itsrealism in many ways makes it a better mode ofembalming or emblematizing the past for thepresent age. The photo portrait is the equivalentof a heraldic device, it is a heroic symbol, anaesthetic form whose function exceeds its sub-stance. The portrait legitimates by passing titleon: line and authority are transmitted throughthe portrait from ancestor to heir. Equally im-portantly, the photo portrait, like precedent, isboth with and without authorship: what is sig-nificant is what is there, and the art of thecomposer lies thus in taking the real and colla-

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4 My favorite example is J. Fortes-cue-Aland, ›Preface‹, in: J. Fort-escue, The Difference between anAbsolute and a Limited Monar-chy, London [1475] private distri-bution, 1714, at IV, arguing thatcommon law »secures the meansof everlasting happiness«. BishopAylmer, An Harborowe forFaithful and Trewe Subjectsagainst the late blowne blaste,Strasborowe: n.p., 1559 at 39

even declares that God is English.These and related texts are dis-cussed in Peter Goodrich, PoorIlliterate Reason: History, Natio-nalism and Common Law, in: So-cial and Legal Studies 1 (1992) 7.

5 The most interesting discussion ofthis thematic is to be found inFlorence Dupont, The EmperorGod’s Other Body, in: Fehrer(ed.), Fragments for a History ofthe Human Body, New York

1989. See also T. G. Watkin, Ta-bula Picta: Images and Icons, in:Studia et Documenta Historiae etIuris 383 (1984) 50.

6 It is an instance, I suspect, of thetearing, rending, or rupture thatfocuses Georges Didi Huber-man, Devant l’image: Questionposée aux fins d’une histoire del’art, Paris: Minuit 1990.

ting, juxtaposing, glossing and interpreting itselements. The photo deals in other words withthe combination and interlinking of the elementsof the real in precisely the same manner that thelaw collates and juxtaposes the prior case law. Itis a nice motif in this respect that Nussbaum’shands are hidden behind the book on her lap. Itis well known that the hands are one of the keymarkers of the authenticity of a painting – beingincidental the forger pays them less mind and sobetrays the act of copying.7 The photo is un-signed and at least at one level it is withoutostensible authorship in the same sense thatprecedent is the manner in which common lawcan claim to pre-exist the act that is judged. It isaccording to the traditional fiction of methodfound and declared rather than authored ormade anew.

What is important is the staging, the com-position and performance of the image or prece-dent. If the portrait shows the feminine taking itsplace in the roll call of law then what is signifi-cant is that the novelty of this transition beglossed over, that its fictive status be obscured.The portrait of Nussbaum is in this regard, in theform of its presentation, extraordinarily familiarand deeply conventional. She is taking up herplace, assuming a given role, at ease, and with-out dissonance in her reverent colors and formaldress. She is seated under the portrait of hermother and that attests a thoroughly conventio-nal relation to parent and law. The portrait of themother is in classical terms the imago, andrepresents Joyce’s passage from »the only be-getter to the only begotten«8 even better than themasculine principle. The father is always uncer-tain – pater semper incertus est – whereas themother cannot be contested. That Nussbaum isportrayed so definitively as the daughter of hermother, juristically portio est viscerum muterua-

rum,9 offers a near perfect illustration of thelegal principle of transmission from history tolaw. Adapting the theological maxim she sub-stitutes ego in matre et mater in me est for themore traditional ego in patre. More than that,however, this matrilineal image expresses thepriority of amor matris over an amor fati thatcomes much later and is at most an exteriorcoming to terms with what the mother tonguehas already inscribed.

What is visible in the portrait and obscuredin precedent is the affect that binds the contem-porary legal subject to the past as the source ofnormative legitimacy. Whether it is a mother orfather or some more distant relative, the mode ofrelation to the past is most immediately that ofattachment and of loss. The portrait functions asan image, as a visible presence or spectacle of aninvisible and prior law.10 It represents whatcannot be present, the imaginary source or pro-totype, of which the subject is the representation.The lawful image is never simply an image. It hasto represent a principle, it has to be an emblem,and in Legendre’s useful phrase, it has to getunder the skin.11 The key to the Western dog-matic tradition is quite possibly the link betweendogma and dream: the licit image is the exteriorsign of an interior attachment. The portraitfunctions in a very visible way to illustrate asubjectivity. It stages an interior affect or shows alawful subject, a potential author of laws, some-one who writes, and someone to whom thecitizen or student can attach and feel comfortin that attachment or belonging.

While lawyers tend to view the text as theprimary site of attachment to law, it is importantto recollect that historically and functionally, thetext is no more than a final instance and is itself asign or complex image. The text, in other words,is in many respects the least visible moment of

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7 The so called »Morellian method«is discussed in Carlo Ginzburg,Myths, Emblems, Clues, London1990.

8 James Joyce, Ulysses, London1965 at 207.

9 Fortescue, De natura legis natu-rae, at 240.

10 On the theology of the image as»a spectacle of things invisible«see James Calfhill, An Answereto the Treatise of the Cross, Lon-

don: Denham 1565 at 169v. Fordiscussion, see Peter Goodrich,Oedipus Lex: History, Psycho-analysis, Law, Berkeley 1995.

11 For elaboration of this theme, seePierre Legendre, L’Inestimableobjet de la transmission, Paris:Fayard 1984.

legal regulation. It inhabits a domain of anteriorfictions or takes its place by virtue of a precedentlexicon of symbols that manifest the order andhierarchy of law. What the baroque termed thetheatre of justice and truth is the staging of law,the rites of solemnity and ceremony that markwhat is spoken or written as something morethan ordinary speech or bare text. Such fictionsor visible forms do not take the place of writtenlaw but rather provide it with its place, its auraand figures of authority, it sites of enunciation asalso the modes of transmission from writing toprecedent, to the book or code of laws.

A first hypothesis: history is the material oflegal affect. It seems strange in the context of adiscipline as dry and dogmatic, as disciplined anddoctrinaire as law to speak of affect or feelingsfor law. That peculiarity is symptomatic. Dogmais an affect and doctrine an aesthetic, a drive toorder and to transmission of a tradition andtextual form. Law institutes, as Legendre fondlyrepeats, a structure of love – an Augustinianstructura caritatis. To be effective, law must beaffective. Its primary responsibility is to tell thesocial story of how we are who we are and thatmeans beginning with genealogy, with the signsof the most immediate order, that of the family.The subject is a child and has to be taught: this isthe father, this is the mother, love them andrespect his word – now their word – as law.12

It is no accident, in other words, that commonlaw was explicitly deemed »a nursing father«,13

and that such a parent was implicitly bothmasculine and feminine or in Selden’s version,Janus faced.14 In a sense it was already implicitin Sir Edward Coke’s notion of law as inheri-tance that it was not simply the past or merehistory that law represented, it was flesh andblood, love and death, it was more even than life,a principle, an institution, a code.

Hostility to History

The English are ambivalent about their emo-tions. They prefer not to show them. Certainlythe common lawyers have felt it better to maskemotions than to express them directly. Prece-dent is precisely such a mask, the fiction of anhistorical order or more precisely of a trans-historical structure that constitutes the eternalhabitus of our emotions. If, according to myinitial hypothesis, history is the material of legalaffect, the source of the fiction of attachment toan undying tradition and cause, then it makessense that such profound affect would bemasked, which is to say treated ambivalently,hidden or disguised as private. There is no regis-ter of attachment to law, there is simply itsinverse, a tabulation of penalties for transgres-sion or for failures to love, respect, or care. In thesame vein, the lawyer as a disciplinarian hastended to express hostility to history rather thanaffection or desire. They have covered over theiraffections, their amorous feelings for their inhe-ritance, precisely so as to institute a deeper affect,an unquestioned or unconscious love.

In moments of crisis or threat, commonlawyers have needed to fall back upon an un-conscious or default mode of political advocacy.The early modern period is exemplary of this.Common law had to assert its independence, itsnational distinction, its place and role within apolity that was extremely hostile to the Latintradition – to the ›tincture of Normanism‹ or theRomanist ways – of the law; and also stronglycritical of an expanding and expansionary pro-fession.15 Church and law had to assert a coun-ter-intuitive and non-historical account of anAnglican theology and law and they had to doso in a manner that would escape the moreobvious criticisms of contemporaries and speci-

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12 Digest of Justinian, ed. by AlanWatson, Philadelphia 1984 1.1.2.For lengthy and illuminating ex-pansion on this theme, see Des-mond Manderson, FromHunger to Love: Myths of theSource, Interpretation, and Con-stitution of Law in Children’s Li-terature, in: Law and Literature 15(2003) at 87.

13 Roger Coke, Justice Vindicatedfrom the false fucus put on it by

Thomas White Gent, Mr Hobbes,and Hugo Grotius, London: New-comb 1660 at 43. For discussion,see Peter Goodrich, OedipusLex: Psychoanalysis, History, Law,Berkeley and L. A. 1996, 6–15.

14 John Selden, Janus Anglorumfacies altera [1610], London: Bas-sett 1683.

15 There is a wealth of literature onthe unpopularity of the rabulaeforenses; the wheedlers, vipers,

and pettifoggers; the ›grand littlemootmen‹. See, for example,C. W. Brooks, Pettyfoggers andVipers of the Commonwealth,Cambridge 1986.

fically of fellow scholars. The outcome was amixture of apologetic populism and explicitmythology. In each case, common lawyers usedAnglican theology as their primary resource andfollowed the same Trinitarian path. Father, sonand Holy Ghost, became in both religion andlaw the trinity of the book, the face, and tradi-tion or the spirit of law.

The greatest resource and the most obviousweakness of law’s claims to eternity lay in thehistoricity of the text. The Christians at least hadthe Bible, and the continentals had the CorpusIuris Civilis, but the poor common lawyers hadan unwritten tradition. Unlike Hotman’s con-temporaries on the continent, the English lawyercould not travel to Italy and examine the sacredtexts of Justinian by the dim light of candles in awindowless room.16 It is true that Coke was ableto eulogize Domesday Book and Magna Cartabut he had also to rely upon a book of naturethat preceded and underpinned any merely posi-tive writing. Coke famously warned the histo-rians »that they meddle not with any point orsecret … [of] the laws of this realm, before theyconfer with one learned in the profession«, andfurther dictated that the laws of the realm were»of that authority that they need not the aid ofany historian«.17 The texts of law, in Coke’srepresentation, preceded history: law madehistory possible rather than history making ouraccess to law possible.

If the ground of law was nature, or in thejargon of common lawyers »time immemorial«or »beyond the memory or register of any be-ginning«,18 its presence depended upon the skillof sages and judges who could overcome theimpediments or transience of the merely histori-cal. History did not help because history studiedthe ephemeral, what had happened, as opposedto what survived its happening and happened

again, and remained yet to happen in the mannerof law. If the concept of the books of an unwrit-ten law borrowed from the theology of a scrip-ture without author, the face of the law, thecommon lawyers equivalent of the face of Christ,came in the curious form of a great judge. It wasLittleton and specifically Littleton’s Tenures thatCoke turned to as the prosopopoeia or face ofcommon law. Littleton was the ›English Justi-nian‹, and his tenures the equivalent of theCorpus of the civil law. Littleton was Leviathanas figured in the famous frontispiece to Hobbes’eponymous book: Littleton was not the name ofa man but of the law itself, he embodied thetradition, he carried the laws in his breast.19

Other judges and sages followed Littleton (andBracton, and Glanvil, and Fleta) as bearers of anear perfect form, and certainly one that re-quired custody and reproduction more than itneeded interpretation or supplement. The bearerof the text, the name of Littleton, shone, as itwere, with the reflected glow of the naturanaturae or law of nature that it bore.

As the principle of portraiture evinces, thenecessity of the face of Christ lies in the require-ment of subjective attachment. Anyone who isunlike their parents, is in law defined as mon-strous and cannot be loved.20 The face of thelaw thus establishes its human form and so toothe possibility of the subject identifying with itand belonging to it. Ironically the face itself isemblematic, it is an icon of subjectivity, a prin-ciple of lawgiving, and a sign of attachmentrather than a person or thing. The face is amask and through that mask passes the livingtradition or spoken form – quite literally themyth – of tradition and law. Again it deservesreiteration that in these terms the face does notrepresent a person, either a living or historicalentity, but rather it marks a site of enunciation

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16 Francois Hotman, Anti-Tribo-nian ou discours d’un grand etrenommé jurisconsulte de nostretemps sur l’estude des loix, Paris:Perrier 1603 at 110–111.

17 Sir Edward Coke, Reports,London: Rivington 1777 at vol. II,Pt iii, fol. B5a.

18 Coke, Reports, vol. IV, Pt. viii,fol. Liiia. For discussion, see PeterGoodrich, Languages of Law,London 1990, ch. 3.

19 authore Edw. Coke milite, TheFirst Part of the Institutes of theLawes of England. Or, a Com-mentarie upon Littleton, not thename of a Lawyer onely, but of theLaw it selfe, London: Soc. of Sta-tioners 1628.

20 John Selden, Titles of Honour,London: Stansby 1614 at b 4 a:»one not like his parents is, insome sort monstrous, that is, notlike him that got him, nor any

other of the ascending or trans-verse line.«

and authorizes a certain kind of speech or moreprecisely a speaking through.

A second hypothesis: where law is in crisisor facing the exigencies of novel technologiesand the epistemic threat of public exposure of itsarchaic forms, it resorts to its earlier theologicalprinciples, and specifically to the Trinitarianscheme outlined above. The hostility to historythat was most explicit in Coke and other foun-ders of the modern tradition finds new expres-sion in a disciplinary mysticism or a renewedtheatre of justice and law. It is necessary to beclear upon the point: it is not the past that ishated, the past is the greatest of law’s resources,it is rather the constraint of the discipline ofhistory and its potential threat to fictions of thepast that lawyers need to circulate. As the Ca-tholic theologian John Favour puts it, in a worktitled Antiquitie Triumphing over Noveltie, thereis a past that exceeds temporality and historyalike: »antiquity has no bounds, no limits, itsignifies the age of indefinite time«, to whichhe adds that antiquity is not that which is old»but that which is oldest, that is first and pri-mitive without any mixture or derivation, ormingling, or meddling with following ages …Truth must be searched in the original, before ithath been strained through the multitude ofmen’s wits«.21 In the words of another theolo-gian, an earlier defender of the Anglican faith,the authority of religion depends not upon timeor history »but rather upon Gods and clouds«(sed numine).22

A final hypothesis in relation to law’s hosti-lity to history is a commonplace psychologicalobservation: law’s enmity is predicated upondesire for the terrain that history occupies. Wehate most what is closest to us and in that spirit itis the similarity of law and history, the fact thatthey share the same territory, that generates their

competition or sibling rivalry. A more expansiveelaboration of such a point would take us backto the humanist lawyers and to the commonterritory of philology and law. Law and historywere friends up until the early modern period.Then they fell out because law needed a historyof its own, an internal history, a history ofjuristic fictions that exceeded the bounds of thepast and the disciplinary methods of those whoactually studied the past. Precedent, in otherwords, was not history but rather it was legalhistory, a way of presenting or more accuratelyof passing off and so passing on a past of thejurist’s own invention.

Retrolution

The specific form of the lawyer’s hostility tohistory is not that of either contesting or deba-ting the shared terrain of legal and historicalknowledge. That would be much too open anddangerous a species of litigation. Lawyers aretrained differently: where historians are bydiscipline motivated to disinter, to unravel, toevidence, prove or demonstrate, the lawyer istrained to advocate, to persuade and especiallyto win. Whatever Aristotle may have said aboutforensic rhetorician’s making the best case in theavailable circumstances, the early modern curri-cular rhetorical manuals were very clear that thefunction of the legal orator was to fight, topersuade, to conquer. The orator was an advo-cate, a Christian soldier trained to fight and towin at trial.23 Precedent rather than history wastheir principal tool of persuasion: it was easiestto win by showing that this had been donebefore. Thus the past is dressed up to winarguments and to annoy or displace historiansin the process. There is a marketing term thatironically describes the procedure and can be

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21 John Favour, Antiquitie Trium-phing Over Noveltie: Whereby itis proved that Antiquitie is a trueand Certaine Note of the ChristianCatholicke Church, London: Field1619 at 33 and 35.

22 John Jewel, A Defence of theApologie of the Churche of Eng-land, London: Fleetstreet 1567 at491.

23 Aristotle, Rhetoric, London:Macmillan 1886 ed.; Bernard

Lamy, The Art of Speaking, Lon-don: M. Pitt 1676.

brought into play in assessing the antinomy ofhistory and law.

In discussing the priority of the formal attri-butes of the photo portrait of Nussbaum over theapparent parodic intent, it was described asretrolutionary. The contemporary market deve-loped the concept of the »retrolutionary« todepict the paradox of the new in the form ofthe old. The word is a neologism from the mid-1990s and was used first by Jaguar’s designerswhen they introduced their latest creation at theParis Motor Show in 1994.24 The retrolutionaryproduct in question was the new XJ series luxurycar. Recognizably modeled after the 1960s Mark10, this apparently classical car boasted not onlythe rounded shape but also the leather uphols-tery and wooden trim of the original. Behind theclassical façade, however, lurked the most mo-dern computerized technology, a state of the artengine, and the gamut of postmodern auto trim-mings. The new was packaged as old so as to sellit: the surface was comfortingly familiar andenticing but underneath it lay the very latest ormost modern of devices and desires.

The market uses the retro in the same way aslaw uses precedent. It is a mechanism for smugg-ling in novelties that would otherwise be rejec-ted. It is a way of selling products or in law it is anight under cover of which to pretend that theauthority to determine or regulate novel formsalready exists. The retrolutionary allows the carmanufacturer to disguise or dissimulate the no-velty of the newest product: its plastics are madeto look like wood; its radar contact with othercars (it warns the driver of proximity to othervehicles) is signaled by a warning bell; its moni-toring of the environment and road conditions ismostly silent; its automatic transmission is madeto look like a stick shift; the self-referentialcomputer monitoring of the car’s functions is

invisible. In adopting a retrolutionary stancetowards history, the contemporary antinomy oflaw and history gains expression in the manipu-lation of history for the purposes of law. Thesmooth operations of marketing allow novelty totake on a comfortingly familiar or retro form.When hard pressed, common law reasoningtends towards similar marketing devices. Themost obvious and contemporary of illustrationscan be taken from the current attempt by com-mon lawyers to develop a framework for regu-lating cyberspace or web contracting.

In a recent case involving a Korean compu-ter company and a Delaware corporation theCalifornia Court of Appeals was forced to ven-ture into the difficult issue of cyberspace auctio-ning of Internet domain names.25 The questionto be resolved was that of the legal effect ofposting the name »Golf.tv« on the defendant’swebsite for auction to the highest bidder. Despitethe novel technological form of this cyber dispu-te, the decision revolved around a fiction as oldas common law itself. The judgment handeddown was predicated upon an analogy drawnfrom an illustration to Restatement (Second) ofContracts 28 in the following words: »A adver-tises that he offers his farm Blackacre for sale tothe highest cash bidder and undertakes to conveythe property to the person submitting the highestbid … This is an offer …«26 The example ofthe sale of the fictitious pre-modern propertyBlackacre was held to be »closest to the pleadedarrangement in this case«, and this despite theacknowledgement that the instant facts »did notinvolve a live auction with an auctioneer«.27

In another recent case that on appeal hasrapidly acquired significance as a precedent onthe contractual status of clickwrap license agree-ments, the issue was whether the simple act ofdownloading free software from a Netscape

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24 For discussion of the retrolutio-nary, see Andrew Blake, The Ir-resistible Rise of Harry Potter,London 2002, 16–17 (arguingthat the Harry Potter stories are astriking example of the retrolutio-nary, of an old story being used asthe form in which to address newissues).

25 Je Ho Lim v The .TV CorporationInternational, 99 Cal. App. 4th

684; 121 Cal.Rptr 2d. 333; Lexis4315 (2002).

26 Je Ho Lim at 338. Restatement2d. Contracts, s. 28, illus. 1 & 2,pp. 80–81; resting on Zuhak vRose, 264 Wisc. 286, 58 n.W. 2d693 (1953).

27 Je Ho Lim at 338.

website created a binding obligation.28 Facedwith the necessity of adumbrating the legal dif-ferences between »shrink-wrap«, »click-wrap«,and »browser-wrap« agreements, the judgmentbegins with a resounding retrospective: »Promi-ses become binding when there is a meeting ofthe minds and consideration is exchanged. So itwas at King’s Bench in common law England; soit was under the common law in the Americancolonies; so it was through more than twocenturies of jurisprudence in this country; andso it is today … across the invisible ether of theinternet.«29 Making a seemingly paradoxicalanalogy between the click of a computer mouseand a signature or a handshake, the judgmentproceeded to invoke the antique concept of theofferor being »master of the offer« to determinethat as in face to face contracts for sale of goods,so too in the digital download of software codesoff the web, caveat emptor or buyer must be-ware.30

The fiction of ›Blacke-acre‹ dates back atleast to Coke’s Institutes of 1628. Those were intheir turn a commentary on Littleton and repor-ted a customary law within which the fiction ofBlackacre was well enough established to requireno explanation in Coke’s discussion of rents ormore precisely of conditions placed upon enfeof-fement.31 The concept of animus obligandi andlater of aggregatio mentum is equally antiqueand involves reference at least to medieval con-ceptions of inner intent combined with the dutyto tell the truth and keep one’s word.32 Thepoint is that this history, or more accuratelythese archaisms do not occur in the normal runof judgments. They are used in moments ofaberrance or of divagation where existing lawclearly does not address let alone cover the topicto be judged. History, and specifically the retro-spect, the recourse to medieval fictions or Lati-

nate concepts are rhetorical devices gauged toobscure, to comfort or mislead.33 Of the casesbriefly excised above one can note that bothinvolve liberal use of the figure of syncresis:Blackacre, a fictive parcel of medieval propertydistinguished from Whiteacre, has not got anysignificant connection to domain names, nor hasthe inner intent of a computer program anyobvious link to the notion of agreement betweenco-present legal subjects or what is termed incommon law, a meeting of minds. In both casesthe antique terms are manipulated – and withoutany further discussion – to close down reasoningas to the novelty or logic of the new form. Intheological rather than any more deliberativemanner, antiquity triumphs over novelty andthe foreign or historic term acts as a talismanicmode of occluding discussion of the source – theinvention – that motivates the judgment.

The use of the retrolutionary in law consti-tutes a novel departure and a radical misuse ofhistory in the sense that the motive of recollec-tion or linguistic archaism is more panegyricthan legal. It aims to persuade through manipu-lation rather than argument, it intersperses themedieval or foreign terms less to reveal a causethan to conceal confusion. Legal fictions have avenerable role in law but the fiction was predi-cated at its best upon an understanding of histo-ry and its measured extension. That has becomeless evident in contemporary law. History isincreasingly a threat to law because of its poten-tial to expose the bowdlerized character of legalretrolutions, because it reminds us of the dis-tance between lawyers and scholarship, andbecause the catachresis or misuse that the con-temporary fiction employs is less intentionalthan the expression of an arbitrary default.

And of Nussbaum’s portrait, might it notbe argued that it offers a highly visible expres-

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28 Christopher Specht, John Gibson,Michael Fagan, and Sean Kelly vNetscape Communications Corp.and America Online Inc., 150 F.Supp. 2d 585; 2001 U.S. Dist. Le-xis 9073l 45 U.C.C. Rep. Serv. 2d1 (2001); appealed in Specht et al.v Netscape Communications Cor-poration, 306 F.2d. 761 (2002).

29 Specht v Netscape at 587.30 Specht v Netscape at 592. The

legal connotations of mastery of

the offer are indelibly antique –they derive from master and slave,master and servant, and latterlymaster and mistress – but gainedtheir contemporary currency fromcase law dating back to the end ofthe 18th century.

31 Coke, The First Part of the Insti-tutes of the Lawes of England,supra n. 19, Lib. 2 Cap. 12. Sect.222, 148b.

32 Christopher St Germain, Doc-tor and Student, London: SeldenSociety 1528/1974 ch. 23.

33 On the misuse of Latin, see PeterGoodrich, Distrust Quotationsin Latin, in: Critical Inquiry 29(2003) 193.

sion of the retrolutionary principle?34 Derivedetymologically from lucescit, the break of day,and mediately from lugeo, to mourn, the portraitcan be interpreted as a failure to break a mourn-ful pattern toward the retro or past. Morespecifically it re-inscribes a genealogical and sohighly legalistic relation to a past or more preci-sely a form of lineage that is European ratherthan American and masculine rather than femi-nine. The reassertion of this formal genealogicalrepresentation of the subject hides the potentialnovelty of Nussbaum’s role in the strict confinesof the past form. She may appear to be staringout, but inwardly her gaze is fixated on the past,upon traditional structures and their reassertion.Rather than challenging the hierarchy of law’slineage, we see here the pleasure and ease of atwenty first century female lawyer joining thattradition. Her portrait emblematizes a new law

of transmission from imago to mater, from an-cestor to daughter in a modified version of aclassical figure of law. The daughter will take herplace dutifully in the genealogy of law. She willfit fine in the serried array of gloomy legalportraits. Nussbaum accommodates herself tothe form, and in doing so she hides the noveltyof her success behind the dark colors and con-fining form of a structure. The paradox that theportrait portrays is legally one of accession.What was seized politically by struggle, throughpain and sacrifice, appears as an inheritance.History is here quietly rendered invisible, thepast is erased, and if Nussbaum stares withequanimity toward the future it is seemingly onlyproper, her birthright, her entitlement as a newlyaccommodated fiction of law.

Peter Goodrich*

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34 Portraits of women in Law Schoolsare still frighteningly rare. The firstwomen deans are now coming tothe walls and I might proffer thesuggestion that their images arehighly conformist, they have beenabsorbed with remarkable ease.

* Cardozo School of Law, NewYork. Thanks to Anton Schütz,Pierre Schlag, Mariana Valverde,David Walliker and Piyel Haldarfor valuable comments on thisdivagation.