3° CHAPTER ONE
the existing order is partial. It shows the socially constructed charac-
ter of the legal norms and institutions; it partially illuminates the val-
ues that are realized in that order. But its reconstructive ambitions
determine the point at which it takes up the descriptive enterprise.
T h e radical scholar pursues the norms ofjustice, the understand-
ing of gender, or the idea of democracy operative in the legal order
as the focus of her critique and reconstructive agenda. These are cer-
tainly valuable subjects of study, yet the legal order creates a world
far more basic that slips from view—a world of subjects moving in
time and space, oriented toward claims of authority, and understand-
ing themselves as members of particular communities.
We must accept the proposition that there is nothing natural about
the legal order, that it is a constructed social world that could be
constructed differently. Nevertheless, we must put off the impulse to
re-create that world on our own blueprint. We must first bring the
legal world to light^by raising to self-conscious examination the social
and psychological meanings of a world understood as the rule of law.
Who are we and what does our world look like when we find our-
selves in this culture of law's rule? Both the mainstream and the radi-
cal scholar are too much of this world to ask this question. We need
a form of scholarship that gives up the project of reform, not because
it is satisfied with things as they are, but because it wants better to
understand who and what we are.
The legal academic is the captive of law. If a discipline of law is to
emerge that actually studies law as an object for theoretical descrip-
tion and elaboration, the scholar must first free herself from the law.
Truth has a debt to freedom that has not yet been paid.
TWO
Imagining the Rule of Law
Where can we find a place for a free study of law within a culture
wholly permeated by law's rule? If law's rule claims both reason and
will as its foundation, what place is left for a form of scholarship that
insists on a neutral stance toward law? Must such a discipline of law
set itself against reason? Against the popular will? Does that place it
with an irrational, dictatorial authority? To think that these are the
only alternatives is to remain within the worldview of law, in which
the law has already claimed for itself all of the reason and consent
available, and in which the only question addressed to the scholar is
"What reforms are you proposing?" If the forms of reason and will
are multiple, then there is no need to fear that a scholarly distance
from law's rule dooms us to irrational forms of arbitrary authority.
The task ahead is both prescriptive and descriptive. Scholarship
must be stripped of its normative commitment to the rule of law if it
is to disentangle itself from the practice of law. In the next chapter,
I set forth a series of methodological rules that would support and
guide such a study. In this chapter, I take up the descriptive task
of setting forth the possibility and the general subject matter of such
a legal discipline. In order to avoid too much abstraction, I offer
a sketch of the most basic areas of inquiry of the new discipline.
T h e details of this sketch, which are inevitably controversial, should
be distinguished from the larger project of studying the culture of
law's rule.
THE C R I T I C A L TURN
What I am after as a mode of inquiry is hardly a new invention. We
have an enduring image in the West of free inquiry within a culture
of legal practice. Plato portrays Socrates as a committed Athenian
citizen, living and dying under the laws of Athens. Yet Socrates is also
a philosopher, subjecting the values and practices of the Athenian
31
 p-
32 CHAPTER TWO
legal order to free inquiry The problem Socrates represents for
Plato—and has represented ever since—is how to understand the
relationship between the citizen and the philosopher, between living
under the law and pursuing a free inquiry into the moral, political,
and epistemic dimensions of legal authority.
Already in Plato's works, we find three different answers to the
problem of reconciling free inquiry and legal practice, meaning by
"practice" a way of living within the polity. First, a pessimistic answer:
citizenship under law and philosophy are essentially incompatible.
On this view, the city kills the philosopher despite his best efforts to
comply with law while sharing with his fellow citizens the insights of
philosophy. This is Socrates' fate; it is the fate Plato predicts, in his
famous myth of the cave, for any philosopher who returns to his na-
tive city.' Political authority, even democratic authority, cannot tol-
erate a free inquiry that_ declines to commit itself in advance to sup-
port not just the specific commands of law—as Socrates does—but
also to support the spirit of legal authority as a culture of belief in the
virtues of the city's political order. Socrates, we remember, is indicted
for failing to believe in the city's gods. Second, an optimistic answer:
the city can be remade to embody the truth that is revealed in the
course of philosophical inquiry. If law can be re-formed, then it is
possible to bring about a coincidence of philosophical insight and
political authority. This would be rule by the philosopher-king of the
Republic. Plato claims no more for this answer than that it is possible,
even if extremely unlikely 2 If it is possible, then the philosopher's
political task can be understood as the attempt to bring it about, de-
spite the risk that he will meet Socrates' fate.3
The first two answers—-albeit contradictory—are Plato's; the third
is Socrates'. On this view, philosophy is actively carried on within the
state but not as a political activity. Socrates does not claim that the
insights he gains by way of philosophy entitle him to any form of rule.
Indeed, in the Apology he tells us just the opposite, saying that he has
stayed away from offering any political advice. He suggests that a
philosophical program must abandon political ambition if it is to sur-
vive as a form of life. Thus, after the verdict against him, Socrates
announces that there was no inevitability in that outcome—a few
votes the other way would have changed the decision.4 Philosophy
may be risky, but it is not always deadly.
If we strip philosophy of its Platonic ambitions, we can find in
Socrates a model of free inquiry within a life that remains embedded
in law. Socratic dialogue is a temporary suspension of belief in order
to subject the ordinary norms and activities of the political order to
IMAGINING THE RULE OF LAW 33
critical examination. It always begins abruptly, erupting without rea-
son in the everyday course of experience. It begins with a chance
encounter. We cannot predict which encounter will take off in this
direction. Most people, most of the time, are too busy. But the philo-
sophical engagement remains a possibility in every encounter. It is
built into the nature of speech that every discursive act can itself
become the object of a further discourse. Every encounter provides
a possible occasion for a self-transcending, critical deployment of
speech in which the object of examination is the ordinary speech
of the speakers themselves. If the problem of legal scholarship has
been the collapse of the distinction between the inquiring subject and
legal practice, then the Socratic encounter offers a possible antidote.
The Socratic discourse begins only with the erection of just such a
distinction.
The Socratic question with which a dialogue begins—for ex-
ample, is a proposed act just?—is designed to create a shock that is
experienced as speechlessness. The interlocutor cannot provide an
account of his ordinary practice or belief. This shock establishes the
distance between inquiry and practice, subject and object. The in-
quiry, then, moves in a direction tangential to the discursive practice
that is subjected to questioning. Practice is suspended while the in-
quiry occurs.
Because the dialogue occurs within a space in which practice is tem-
porarily suspended, its aim is not reform. Socrates will talk through
the night to the point of exhaustion-—his own or his interlocutors'.
But in the morning, life in the city goes on. Suspending belief, we
realize a new form of practice that is the activity of philosophy itself.
The practice rests upon the capacity of the individual to transcend
every context, and so to examine the conditions of belief that make
possible our ordinary activities and norms. 5 At the end of the inquiry,
the interlocutors may suspect that their ordinary beliefs are without
a solid foundation. Yet they do not emerge with a new set of moral
and political values to substitute for the beliefs with which they
started. If they were to try directly to translate philosophical insight
into political practice, they would have no grounds for believing that
the substitute values would be acceptable to anyone outside of the
discourse. Socrates is in Athens; Athens is not in him.
The Socratic dialogue is without end because it is without a polit-
ical product. It is not the progressive realization of a single truth, but
a critical mode of being in the world. It is not an effort to reconstruct
the political order on the basis of a philosophically perceived truth.
It operates within the political order not as a revolutionary truth
34 CHAPTER TWO
brought to the state from outside, but as an attitude toward ordinary
practice.
The first step toward a new discipline of legal study is the brack-
eting of any truth claims for or about law. This is the equivalent of
the shock of Socrates' first question, which always reveals ignorance.
Acknowledging ignorance, the interlocutor temporarily withdraws
his commitment to existing norms and practices. This withdrawal
permits the inquiry to proceed under its own direction. The self-
directed inquiry becomes a new model of freedom, relying on its own
norms of reason and will. Reason is no longer a form of deduction
from first principles, but rather an open-ended inquiry in which every
proposition becomes the subject of yet another question.6 Will is no
longer consent to authoritative institutions, but the commitment to
sustain the suspension of belief. We understand this mode of inquiry
when it is pursued by the cultural anthropologist. She suspends her
ordinary beliefs andaiormative commitments; she does not judge the
object of her inquiry— r she does not offer reforms—-but pursues each
proposition offered byiier informants with yet another question. The
interpretive task of such an inquiry has no natural stopping point:
meanings always exceed the revelatory capacity of the particular
question. A Socratic inquiry into the rule of law would deploy the
same form of free inquiry, directed now at our own cultural practice.
This conception of Socratic discourse connects our earliest, and
still most powerful, model of philosophy with the modern enterprise
of critical thought that begins with Immanuel Kant. For Kant, the
task of philosophy was to determine the limits of reason, by which he
meant the boundaries within which knowledge, action, and hope can
be legitimately pursued. To understand those limits required an ex-
ploration of the conceptual conditions within which knowledge, ac-
tion, and hope are possible. He argued that the way in which we
perceive our world, i.e., how its meanings appear to us, is determined
by the categories of our own understanding. We can know only that
which falls within-—-or, more accurately, is a product of—this con-
ceptual apparatus. The role of critical inquiry is not to add to our
knowledge or to reinvent the moral norms of our experience, but to
set forth the a priori conditions of our own experience, both epistemic
and moral. What are the conceptual conditions and imaginative
structures that we bring to experience and that make possible a world
of meaningful events?
Modern inquiry extends this goal of Kantian critique to diverse
systems of symbolic forms or culture practices.7 Where Kant believed
L
IMAGINING THE RULE OF LAW 35
that there was only a single, universal form of understanding, his con-
temporary successors see claims to knowledge as the products of di-
verse social practices. They perceive multiple social practices within
a single culture, as well as across cultures. The goal of critical thought
is to examine the conceptual conditions of these multiple social prac-
tices: how does each structure a world of meaning?
This modern enterprise of critical thought is not limited to philoso-
phy. A modern, critical discipline of law needs to draw equally from
work in anthropology and cultural theory. Scholars such as Clifford
Geertz and Michel Foucault emphasize that social practices are his-
torically specific and that each such practice must be approached
through a process of thick description. These scholars turn away from
claims of a truth independent of the knowing subject; they seek in-
stead to elaborate the structure of the imaginative possibilities within
which a world of social meanings appears. These social practices are
somewhat like games, in that they have rules and expected customs
of behavior that are the product of a community's history. We can
argue about what these rules and practice are, as well as what they
require in any given set of circumstances. To take up these questions
is to adopt a particular interpretation of their meaning. This requires
an "internal" point of view, but it does not require participation in
the practice.
From the outside, social practices look like sequences of events that
may be explained without reference to the meanings they bear for
the participating individuals. We might, for example, explain politi-
cal practices in terms of geography or economic laws of supply and
demand, without any reference to the participants' own beliefs. But
as with other games, we do not have to be players to try to under-
stand the rules. We can elaborate the rules of chess, pursuing them
far beyond the formal definitions of the possibilities for each piece,
without ever moving a piece on the board. We have the capacity to
stand within the social practice in order to understand it, but to with-
hold any commitment to the practice while we pursue the inquiry.
Because no single social practice claims us wholly and exclusively, it
is always possible to distance oneself from a particular practice and
take it as an object of thought. Cultural inquiry is itself a social prac-
tice that cultivates the practice of simultaneously standing within and
without, of articulating beliefs in order to subject them to critical
examination. 8
In this critical interpretive inquiry we do not measure beliefs
against a separate truth. Rather, we ask how truth is constituted
36 CHAPTER TWO
through beliefs. Philosophy and anthropology become overlapping
inquiries. Kant's a priori becomes a contingent, historically deter-
mined set of meanings. Foucault speaks of the "historical a priori—-
a contradiction for Kant, but a fair description of our lives in a less
certain, more diverse, time.
The rule of law is a social practice: it is a way of being in the world.
To five under the rule of law is to maintain a set of beliefs about the
self and community, time and space, authority and representation. It
is to understand the actions of others and the possible actions of the
self as expressions of these beliefs. Without these beliefs, the rule of
law appears as just another form of coercive governmental authority.
This is the way law appears to the alien who happens to find himself
temporarily within the jurisdiction. He must negotiate around a set
of rules, under a threat of coercion, without understanding the signifi-
cance of the rules to those who see them as "ours." Law is something
done to him, rather than something we do. Within the beliefs of the
citizen, however, law appears as the legitimate and even "natural"
arrangement of our collective life.
To couple the method of philosophical critique—i.e., exposing the
conceptual conditions of the practice—to that of thick, anthropo-
logical description—-i.e., investigating instances of practice in their
layered character of multiple, juxtaposed meanings—is both the end
and the technique of a cultural study of law's rule. The philosophical
and anthropological aspects of the inquiry point in slightly different
directions. The former maintains the philosophical ambition of co-
herence, unity, and system. It seeks an interpretation that would pre-
sent the rule of law as a unified conceptual order. The latter is open
to the possibility, and indeed suspects, that the elements of such a
"system" are not well-ordered, that they do not all point in a single
direction, and that, indeed, there are tensions-—if not contradic-
tions—within the beliefs that support the cultural practice of law's
rule. In this aspect of the discipline, coherence has no priority over
contradiction. The urge toward systemic unity can usefully push the
inquiry to investigate further the deep structure of law's conceptual
universe. But that inquiry is always conditioned by the acknowledg-
ment that all need not be well-ordered in the end. A cultural practice
is not a philosophical system.
Accordingly, the question that defines a cultural discipline of law
is: What are the conceptual conditions that make possible that prac-
tice that we understand as the rule of law? We approach that ques-
tion by first offering a thick description of the event as it appears in
the world of law's rule and then by offering an interpretation of the
IMAGINING THE RULE OF LAW 37
conceptual and imaginative structure of that world. When we under-
stand ourselves as citizens of a state committed to the rule of law, how
do we imagine the self and the community? When we make legal
arguments, respond to legal demands, or criticize actions as unlawful,
how do we understand authority? These are the conceptual condi-
tions that make possible the diverse disagreements that we have
within the practice of law's rule. They are not a set of answers to
controverted legal questions, but the conditions of belief within which
it becomes possible for those questions to arise. In short, we seek to
comprehend the forms of understanding that make possible the range
of behaviors that we characterize as living under the rule of law.
A social practice is not merely a set of prescribed actions. More
importandy, it is the way of understanding self and others that makes
these actions meaningful. We cannot separate action and belief when
describing a social practice. Every action rests on some set of beliefs;
every belief makes possible a range of actions. Disputes may rage
over the meaning of an action and over the action required by a
belief, but they remain disputes within the practice. These disputes
may be the subject of inquiry for a cultural study of law, but the end
of that inquiry is not the "correct" resolution of these arguments. The
scholar, bracketing the questions of truth that animate the practice,
is simply not speaking to the issue of what the law should be. Neither
should she expect to be heard by those who are listening for an an-
swer to this question.
A study of law's rule as a cultural practice can proceed at various
levels of generality. A plan of inquiry should, however, begin at the
most general, moving to the specific only as the general terrain of the
conceptual order of legal practice and belief is filled in. We need to
investigate the shape of legal space and time generally before we in-
quire into particular kinds of space and time—for example, the mu-
nicipal border or the operation of stare decisis.9 An inquiry into the
general conceptual features is not, however, an abstract inquiry. The
inquiry must stay bound to particular examples of the social-practice
because there is no general truth apart from the ongoing practice it-
self, and there is no practice- apart from particular acts and events.
Generalizations may appear within the practice, but not as first prin-
ciples from which legal meanings are deductively derived.' 0 The
inquiry may pose general questions such as "who is the subject of
legal obligations?" but its answer must examine the multiple concep-
tions of the subject that operate in legal practice.
To this general path of inquiry, one might object: if a cultural study
investigates the conceptual conditions of living in a political world
38 CHAPTER TWO
that appears as the rule of law, is there not a reflexive movement by
which this study itself appears as a particular play of the imagination?
Do we not have to ask about the conceptual conditions of this disci-
pline? Are we not bound to the structures of the imagination even as
we pursue this inquiry? If so, are we doing anything more than sub-
stituting one contestable social construction for another? Free inquiry
looks no more free than the practice from which it attempts to dis-
tance itself. The choice between a cultural study of law and ordinary
legal theory is not between a free inquiry and an inquiry captured by
legal practice, but merely a choice between two forms of p r a c t i c e -
only one of which promises to do something constructive in the world
as we know it. This is a powerful argument and I suspect that many
legal scholars would use it to reaffirm their own practice of inquiry.
This 'question arises not just from an epistemic perspective, but
also from a normative one. Just as we cannot escape the conditions
of our own thought,-we 'cannot escape our own moral judgments.
How can we possibly avoid a normative evaluation of the results of
an interpretive inquiry*into -law's rule, when the object interpreted
involves our own deepest commitments? Perhaps we cannot. Never-
theless, we can push that evaluation off into the future a bit. The
mistake is to believe that we live in a single coherent world in which
morality, politics, and knowledge coincide. Plato believed that the
good, the beautiful, and the true must coincide. Arguably, this belief
was a condition for the philosophical activity in which he engaged.
Kant made a similar mistake of universalizing the historically contin-
gent. Our political, moral, and epistemic lives are not single, but mul-
tiple. They overlap, but they are not identical.
From a moral perspective, we will never justify our political lives.
Politics begins with a distinction between citizen and alien, which
quickly becomes that of friend and enemy. This distinction is outside
of our ordinary moral discourse, which begins from a premise of in-
dividual, universal equality. Even within the polity, the inequalities of
wealth, power, and resources are too great to survive a moral cri-
tique. We are committed to both of these worlds—the moral and the
political. We cannot make them one. If we try, morality becomes a
form of political apologetics or politics becomes a form of moral uto-
pianism. Neither have much to do with our actual experience of po-
litical and moral demands. We want our politicians to be moral, but
not to the point of lacking political realism. We want our moral
leaders to support our political enterprises, but not to the point of
failing to identify those inequalities that we must still overcome.
Just as we can suspend the moral in pursuit of the political, we can
IMAGINING THE RULE OF LAW 39
suspend both the moral and the political in pursuit of understanding.
The discipline of anthropology does not normatively evaluate a for-
eign culture, comparing its practices to our own practices and values.
Similarly, a cultural discipline of legal study does not seek to tell any-
one how to live a life under the rule of law or whether one should
lead such a life at all. Such a suspension does not mean that individu-
als do not face choices and have to make normative evaluations. At
best, this form of inquiry can make clear a set of practices and the
beliefs they entail. Individuals must still apply moral and political
norms. A free discipline is not an excuse for failing to exercise free
choice in the way in which one's own normative beliefs require.
A cultural inquiry into law's rule cannot make any claims to an
unconditioned truth, either empirical or normative. Nor can it lay
claim to a wholly unconditioned freedom of thought. The inquiry is
not a step in a progression toward truth. Rather, it is a product of the
imagination that stands slightly apart from other products of the
imagination. Geertz and Foucault both describe their work as fic-
tion.11 A similar fiction must be brought to law. The ambition is to
achieve a re-presentation of the meanings at play in the social prac-
tice. The study takes the social construction of reality as a given, in
order to explore the conceptual and historical conditions of these
constructions. To pursue this inquiry is like moving from three di-
mensional to four dimensional space: we get no closer to a world
outside our imaginings. We do, however, reframe our experience.
Understanding the constructed character of the rule of law allows
us to see its contingent character and to understand that law's claim
upon us is not a product of law's truth but of our own imagination—
our imagining its meanings and our failure to imagine alternatives.
We can understand that other societies have constructed the charac-
ter of the political community and the meaning of political events in
different ways and that even in our own society a constant batde is
fought over the terms of this construction. We can clarify the tensions
among the possibilities that we confront and see how each makes a
world for itself that cannot be subsumed within the others. Even if we
try to move in one direction, rather than another, we cannot resolve
the tensions. There is no original foundation from which we can
begin a project of free construction, unbounded by a past that estab-
lishes the conditions of our own understanding. What we instead dis-
cover is that freedom is itself a contested term and that each form of
political perception makes a claim to the truth of freedom.
All of this testifies to critical inquiry as the practice of a kind of
freedom: not a political freedom to do anything, but the freedom to
4o CHAPTER TWO
construct a distance from the self. This is the freedom to observe and
understand the self. Nevertheless, there is no alternative, when the
book is done, to stepping back into the very world that one has just
exposed as historically contingent. Like every constructed world, the
critical world exists only as long as we imagine it. It is one possibility
within life, not a better one. It is as incommensurate with the rest of
our experience as love is incommensurate with law. The critical turn,
then, is a different practice of freedom brought to the study of law.
But law too can claim to be a practice of freedom. If we lived our
lives wholly within an academy of critical thought, then perhaps we
would find law's claim to freedom to be more compelling than that
of critique.
A cultural study of law is precisely not a part of the practice of law.
It should not, therefore, be asked to reform law. It has nothing to say
in this respect. It is, however, a necessary supplement to our current
practice of legal s,tuclies. The critical turn is a turn away from the
professional school .and back to the disciplines of philosophy, psy-
chology, anthropology, and history. We can know more about our-
selves. This is all that a cultural study of law can promise. What we
do once we have that knowledge is a question for practice, not theory.
T H E A E S T H E T I C OF LAW
A new discipline of law should begin where Kant began his original
effort at critical philosophy—with time and space. He labeled this
branch of his study "aesthetic." We need a legal aesthetic, i.e., a study
of the time and space within which legal experience—both belief
and practice—becomes possible. The rule of law is an organization
of institutions, practices, persons, and objects within the ongoing
historical and spatial project that is the state. The state occupies time
and space not as an object in the natural world, but as an imagina-
tive construction of temporal and spatial meanings. The state's time
is history; its space is territory. These are the subjects of a legal
aesthetic.
What we mean by "politics" entails a commitment to both history
and territory. Political life differs from moral life in both of these di-
mensions. Morality can appear to be timeless and universal. Politics
does not. A dream of a universal empire—world government—may
also be a dream of a moral Utopia. It is only when actual political
differences among communities disappear that we can imagine a co-
incidence of the political and the moral.
IMAGINING THE RULE OF LAW 41
Different political communities imagine time and space in differ-
ent ways. A multinational empire has a different conception of ter-
ritory than a nation-state; a theocracy, a different sense of history.
Before any particular legal artifact or practice appears, a field of
possible experience has already been constituted by the understand-
ings of history and territory that operate within the community. I2
Even within the modern nation-state, the rule of law does not exhaust
the possibilities of historical and territorial meaning. The rule of law
is one way of imagining the political; it is not the sole form in which
we experience our political practices.
T h e state does not simply appear at a particular moment in
chronological time, as if it were an evolutionary mutation or a natu-
ral event like the arrival of a meteorite. It appears only with a recon-
ception of past and future. It locates itself within an historical project
that is both source and product of the state. Political communities
construct the past of which they conceive themselves to be the prod-
uct.13 The same is true of the territory of the state. The state invests
and maintains meaning in a bounded space. It creates the boundary
that is then perceived as constitutive of its existence.14
A cultural discipline of law, accordingly, starts with a description
of the shape of time and space under the rule of law. When we take
up this study, we see the twofold character of the descriptive and criti-
cal inquiries required by this discipline. There is both a vertical and
a horizontal dimension of study. The former traces the history of
concepts; the latter maps the present structure of belief. Following
Foucault, I will call the former "genealogy." T h e latter I will call
"architecture."
The ambition of legal genealogy is to show how the nature of belief
in the rule of law emerges from longer traditions within Western cul-
ture and particularly within the experience of the state. Modern un-
derstandings of the rule of law are a product of two fundamental
cultural transitions: from a religious to a secular understanding of
political order, and from a monarchical to a popular understanding
of sovereignty. All of the conceptions that we use to understand the
general character of political order pass through this double transi-
tion.15 This transition, however, is not a complete transformation; it
is a process of adaptation. The concepts continue to bear meanings
derived from their past; they carry "remnants" of this past. Legal
genealogy seeks to excavate these remnants. To do that, we need to
trace the contingent, historical course by which these beliefs be-
came ours.
42 CHAPTER TWO
Thus, law's time and space have their own history. For Americans
that history does not begin with our nation's founding or even with
the colonial charters. It is not the history of the state, but the history
of the belief that concerns us. The founding, as an act of constitu-
tional law-making, was itself already a product of a set of beliefs about
the character of the state. These beliefs included contemporary polit-
ical theory; the Founders knew their Locke and Harrington. But the
appropriation of those texts rested on more fundamental ideas about
political history and the territory of the state. Why, we should ask,
would anyone conceive of the state as a project for new construction?
How did they conceive of the relationship between the founding act
and the future of law's rule? How must time appear to those who
think that a new beginning is possible?
These patterns of thought, within which the Framers thought that
a project of state creation could be informed by modern political sci-
ence, were a product, o£ a legal culture that extends back to the Old
Testament narrative of.God giving the law to Moses. We still cannot
speak of new beginnings without hearing religious resonances. We
cannot think of such a beginning without borrowing from larger
traditions of struggle and redemption. A secular conception of the
state does not invent a new politics stripped of any taint of the reli-
gious tradition. Rather, it appropriates concepts that are already
present and gives them a secular cast. Remnants of their past con-
tinue to inform the character of the political world the concepts make
possible. Genealogy is not separate from the project of thick descrip-
tion. Indeed, if we fail to see the manner in which our conceptions
bear remnants of their past, we are likely to substitute an ideal con-
ception of the secular legal order for the experience itself.
Genealogy is only one half of a cultural approach to the rule of
law. History provides the materials for the imagination, but these
conceptions must still be arranged in relation to each other and to
other contemporary beliefs. We find ourselves in possession of mul-
tiple beliefs that are potential resources for the imaginative construc-
tion of political meaning. Nevertheless, we are not bound to endless
repetition. We try to make the best of them. We reason within and
upon these resources, finding new connections and supplementing
distinctively political conceptions with other contemporary beliefs.
This manipulation and deployment of our conceptual inheritance is
subject to no test of logical coherence; we are not striving to perfect
the logic of our political practices.16 The genealogical perspective
must, therefore, be supplemented with a description of the shape
IMAGINING THE RULE OF LAW 43
of experience within the contemporary social practice of law's rule.
This is the task of legal architecture, which describes the way in
which distinctively legal conceptions draw upon, and distinguish
themselves, from other beliefs and practices operating in the polity.
My exploration in chapter 1 of the way in which contemporary legal
theory maps onto the psychological distinction of reason and will is
an example of such an architectural inquiry.
Each aspect of the discipline sets limits on the other. Architecture
is bound by genealogy—we cannot make something out of nothing.
Our endowments are conceptual as much as they are physical. Ge-
nealogy is bound by architecture; the historical resources must fit
within a contemporary structure of belief. Genealogy and architec-
ture together constitute the branches of inquiry of a new discipline
of law.
Law's Time
We intuitively know that law carries forward the past as an authori-
tative source of substantive norms. We see this constantly—in the
maintenance of a written constitution intended to be permanent, the
role of stare decisis in judicial decision-making, and the temporally
unbounded character of most legislation. Some administrative laws
may include "sunset" provisions, but we do not expect to see judicial
decisions announcing that they will serve as valid precedents for only
ten years nor a legislature enacting the demise of its work product.
Once made, law generally remains until a new act of law-making
displaces it. At any given moment, the law appears as the sum total
of all that has been done and not yet undone. Indeed, undoing law is
usually disfavored, as if it entails the admission of a mistake. Consti-
tutional amendments are notoriously difficult to pass, stare decisis
makes exceptional any overruling of a prior holding, and the legisla-
tive process always favors the status quo. It is as if the rule of law
operates on the edge of a huge wedge creeping forward in time.
This historicity of law is its single most prominent feature. Legal
decision-making differs from other kinds of policy formation in just
this way: it always begins from a set of sources that already have au-
thority within the community's past. Legal arguments do not begin
by asking about "the best outcome, all things considered." They be-
gin from a commitment to the past. This is true not just of arguments
in court, but wherever law is the ground of authority. Lincoln did not
ask whether he should free the slaves until he resolved whether he
already had the legal authority to do so. Only when he concluded
44 CHAPTER TWO
that he had that authority under the presidential war powers—i.e.,
under existing law—was he willing to do that which, from a moral
point of view, he never doubted should be done. 17
In its insistence on linking the present to the past, law differs from
other forms of authoritative command. Legal coercion never appears
to those under law's rule as simply the force of the stronger, the will
of the majority, or the practical conclusion of a moral argument. It
may appear this way to those outside of the political community, who
nevertheless find themselves subject to the state's coercive powers. 18
To be sure, those "outside" the community may be permanently lo-
cated within the territory of the state. Consider, for example, how
Jim Crow laws appeared to black Americans. For those fully within
the community of law's rule, however, the authority of law rests on a
set of beliefs about the past.
Not until we place an, authoritative command within an historical
narrative of the community of which we are a part do we begin to
reach the distinctive character of legal rule.19 Of course, we can ar-
gue— or even hope—that the public interest of the community un-
der law will prove to be stronger than any factional interests, that the
majority will support legal constraints on their own actions, and that
law's rules will have a defendable moral content. Each of these claims
usually appears in what can be called its "privative" mode, that is, as
a basis for criticizing particular laws. It will be said that a law is the
product of a powerful minority interests—e.g., corporate wealth; or
that it is a product of an unconstrained majority acting in ignorance
of, or out of prejudice against, minority interests; or that it is the
product of abstract beliefs—usually those of judges—in moral rules
that are only matters of subjective preference. Nevertheless, it is
wrong to assume that meeting the criticism would in fact satisfy our
understanding of law's rule, just as a failure to meet the criticism does
not negate a claim to legal authority. It is not enough that the ma-
jority rules morally and with sympathy to minority groups. These
may be the ends of a program of reform, but reform occurs within a
world already perceived as one of law.
In a short-hand fashion, we can say that the rule of law is for us
the manner in which the authoritative character of the past appears.
Coercive authority cut free of the past appears to law as "illegiti-
mate," regardless of its popular support or moral insight. At the very
core of law's rule is the distinction between applying the law and mak-
ing new law, or between interpreting and creating law. No matter
how much scholars question the distinction, the rule of law as a social
IMAGINING THE RULE OF LAW
practice is bound to it. We can imagine a policy science that is wholly
unbounded by the past, but it is not law's rule.20
We will not grasp the distinctive character of law's past if we focus
only on particular rules-—statutes, judicial decisions, or constitu-
tional provisions—and the distinctive manipulations, both logical
and rhetorical, that legal argument deploys upon these resources. If
approached in this way, law's rule looks like a rather complex game,
distinguished only by the fact that its rules are enforced by violence,
if necessary. Such an approach misses what is most significant about
law. Law's rule carries forward a past that makes a meaningful claim
upon us. That claim is internal to our beliefs. It is also deadly serious,
extending to life itself. We must approach law's rule from the per-
spective of the subject who finds herself already within the practice,
rather than from the perspective of the rules operating on a collection
of individuals. "*==1
When we focus on the source of that claim of law's meaning, the 1
first thing we notice about the authoritative past of law is that it ap-
pears to us as the experience of a unitary actor of which each citizen
is a part. 21 We easily use a language of first-person plural that speaks
of "our" past: the past is a common possession of each of us because
we all share in a collective identity in and through a political order
that is the rule of law. Thus, if we ask why we are bound by past legal
acts, we are likely to answer that we are bound because they were
our acts. The people ratified the Constitution; the people were rep-
resented in Congress, which passed the laws. And we are the people.
When we express our experience of law in this way, we are reifying
under the image of a communal, transtemporal subject a present ex-
perience of the meaning of the past. We attribute causal and norma-
tive significance to this appearance of the people as subject.
These are not statements of fact against which we can measure
particular claims of law. There is not first a transhistorical, communal
subject who decides to maintain a common past. There is only the
experience of law's rule that shows itself "as if" it were the extended
temporal experience of a single subject. We come to this communal
subject through the law, not- vice versa. Scholarship goes wrong,
therefore, when it looks for this subject or makes claims about what
this subject has done, as if it were a particular actor in the world.22
This historical subject doesn't exist apart from the social practices-—
the rule of law—within which it appears. It cannot do anything apart
from what it has already done, for it is only by its acts that we know
it. Conversely, our knowledge is the limit of its actions. There are no
46 CHAPTER TWO
other acts that the people accomplished that have somehow been lost
to us or that we may still discover. Finding new historical sources may
tell us a good deal about particular historical actors, but it cannot tell
us that we were "wrong" in our beliefs about the people or that "we"
are actually something other than what we thought we were. This
does not mean that nothing new will ever appear to have been done
by "the people." Law, however, is a matter of interpreting what the
people have always already done; it is not the doing itself.
Law is not the product of a single, collective subject. Rather, that
subject is the product of a social practice of law's rule. Indeed, if we
were to find ourselves in a situation in which the people actually ap-
peared to be acting in the present, we would be outside of law's rule.
We often call that situation "revolution."
A genealogical approach must look for the historical confluence of
these different ideas: the-unitary actor that appears in and through
the legal order of the st&te, the authority of law as the maintenance
of the community's past, and the past as the source of an ultimate
meaning in the present! We do not have to look very far for the ori-
gins of this conception of law. The shape of time under the rule
of law has its origins in the Old Testament idea of the linear history
of the nation of Israel.23 That history has a beginning in God's reve-
lation to Abram; it also has an eschatological vision. History will end
with a second, divine revelation. The history of the nation is the time
in between these two moments of revelation. Law is the unifying or-
der of the community that exists suspended between these epiphanic
moments. Law carries forward the authority of the origin. Without
adherence to law, some other point of origin might come to define
the community. This is the biblical problem of worshiping false gods.
The divine enters the community through an act of law giving.
Through maintenance of law, the order of the community becomes
a continuing representation of the divine. Law marks the passage in
both directions, the point of transit between the sacred and the pro-
fane. Thus, following the law links the present moment back to a
divine beginning. That linkage is the historical life of the commu-
nity. The linking of law to the origin makes every point of political
time a continuation of a narrative of ultimate—i.e., sacred—signifi-
cance. This is not just time travel in the individual imagination. The
lived experience of a community carries this meaning through time
and space, while suffering personal sacrifices to insure that this his-
tory continues to its imagined end. This imaginative construction be-
comes a fact as real and objective as our language, our families, and
our communities. For it, individuals live and die.
IMAGINING THE RULE OF LAW 47
Moses descends with the law as a new gift from God that will se-
cure the nation in what would otherwise be the chaotic time—and
space—of the Exodus. This law is simultaneously a product and a
continuing representation of the divine origins of the community.
Keeping the law maintains the meaning—and thus the presence—
of the divine intervention. For this reason, the authority of the legal
decision is always located outside of the decision maker. To claim for
the self an authority to make law is blasphemous. We see remnants of
this idea in the passion with which critics accuse the Court of making,
rather than maintaining, law; we see it again in the always reaffirmed
belief that a legal order subjects the legal decision makers to the same
rules of law as everyone else. Apart from the sovereign source of law,
everyone stands equally under the legal rules.
Every legal decision ultimately traces its authority back to this ap-
pearance of the sacred. The fact of a beginning makes history deter-
minate, rather than an endless inquiry into a deeper and deeper past.
T h e meaning of the nation of Israel, to those who understand
themselves as a part of that community, is its continuing representa-
tion, in ordinary time, of the divine intervention. Law creates a single
identity in what would otherwise be a changing community, or com-
munities, through time. History now stands against mere time as a
meaningful order with a unitary theme; it has a beginning and it will
have an end. Because the end is imagined from the beginning, history
is unified and linear. The time of law carries forward a representation
of the origins, but only a representation. Participation in law is not a
return to origins. Law's time, unlike the sacred time of archaic man,
is not circular.24 The second coming is not a return to origins in order
to. repeat the whole process, but rather the end of a single, unique
temporal progression. Law thus points backwards and forwards at
once; it carries the beginning forward toward an end that it has al-
ready imagined. That end is not just another event within the pro-
fane history of the state, but a new intervention of the sacred into
ordinary time. If time continues after that point, it will be as a new
history.
In this religious tradition, law makes history possible, but historical
time is bounded on both sides by an experience of revelation that is
beyond law and outside of history. There is no "accounting for" the
beginning or the end. Law has no control over these moments be-
yond law that define its temporal domain. They are causally and nor-
matively inexplicable. In this tradition, a prelegal state of nature, as
secular political philosophers have developed the idea, makes no ap-
pearance. Law succeeds revelation, not nature. A failure to maintain
CHAPTER TWO
law appears not as a return to nature, but as a loss of divine meaning
and thus a state of sin. Our modern, secular idea of law maintains
this remnant, even as it takes up a parallel conception of law's origin
out of a state of nature.
Genealogy explores our conception of law's time as a remnant of
this deep tradition. We maintain a secularized version of this concep-
tion of legal time which continues this relationship of the sacred to
the profane. For us, every legal decision traces its authority back
to the sovereign people who have usurped the power of God in the
modern political world. It is often said that law is our civic religion.23
We can be more precise in understanding how law takes up and re-
deploys a religious conception of history. In a post-Enlightenment
world, revolution replaces revelation, just as the popular sovereign
replaces the divine sovereign. The new popular sovereign displays
itself and intervenes in^ history through an act of revolution. Law
remains an order of "history bound at its beginning and its end by
extraordinary acts that are beyond law and yet produce law.
Revolution has the1 dual meaning of ending and beginning. A
revolution terminates one political order and begins another. Both
objectives are accomplished through an extraordinary act of revela-
tion by the popular sovereign. For us, revolution and constitution
making are inseparable: what is it that the people do in and through
revolution? They write a constitution. 26 We understand that act as
the "origin" or "founding" of the state. It is conceptually, if not liter-
ally (as in French and Cambodian revolutions), year "zero" in the
state's calendar. Without a successful constitutional product, revolu-
tion is unsuccessful. Indeed, without a constitution, what looked like
revolution was not really revolution at all. T h e states that joined the
Confederacy did not have a revolution. Rather, they engaged in an
illegal act of rebellion. We know this because their project of consti-
tutional creation failed.
Thus, the rule of law continues to appear as the maintenance of
the extraordinary, revelatory act of the sovereign through ordinary
time. The history of the state is the maintenance of law, which means
that through law we create an order of daily life that gains its unity
through the memory of the truth revealed by the sovereign people.
Again, this does not mean that this truth exists independendy of
memory as if it were something that we could objectively discover
and measure. That truth is simply not available to those outside of
the political community. They may see rebellion or merely violence
in place of revolution; they may see illusion in place of law's represen-
tation of the sovereign act. The experience of that truth is only
IMAGINING THE RULE OF LAW 49
through the memory— or more exactly, what appears as if it were a
memory— of a prior act. As with a dream, we may inquire into the
past acts that are the objective source or cause of the appearance. Yet
identifying those particular events will not tell us the meaning of the
appearance, but at best only the occasions that brought it forth. We
cannot get to the meaning of the dream or of the remembered ap-
pearance of the people except by interpreting the appearance itself.
For Americans, law's origin is characterized by a radical otherness.
In contrast, for a common-law tradition, law appears to emerge from
a deep past that is fundamentally the same as the present. In the
classic common law, law emerges from more law: it is law all the way
down. 27 This is a "monist" view of history in which the present is
the same as the past and the future will be more of the same. This
common-law conception of law results in a reciprocal conception of
the sovereign. In the British tradition, law precedes any particular act
of the sovereign, which can always intervene to change law—the
doctrine of Parliamentary sovereignty. Law is the context against
which the sovereign acts. For Americans, on the other hand, the sov-
ereign action always occurred prior to law. Law is the consequence
of sovereign action. Parliamentary sovereignty here would look like a
congressional abuse of power, even when supported by popular opin-
ion and a contemporary majority.
Thus, the American conception of law's rule always locates the
origin of law in acts beyond law. At the most general level, this is
the relationship of law to revolution. We continue to privilege this
distinction in the supreme authority we vest in the Constitution. At
the level of ordinary affairs, we insist on the distinction between poli-
tics and law. The process of law-making is political; politics ends,
however, once law begins. This distinction separates judges—i.e.,
those who apply the law—from political representatives—those who
make new law. Even about these "political" acts of law-making,
however, we can ask whether they are lawful. When we do this, we
shift perspective from the particular statutory or regulatory output
to the process itself. That process must be authorized by law. When
we trace that law, we tell a story that eventually takes us back to the
origin of all law in the sovereign act of the people: the revolutionary
construction of a constitution. Thus, a particular regulatory decision
may be authorized by a prior judicial decision, which may have in-
terpreted a regulation, which was authorized by a statute, which in
turn was authorized by the Constitution, the authority of which
comes from the people. This story of origins must be attachable to
every event within the polity. This is the core narrative of judicial
50 CHAPTER TWO
review, and why the Supreme Court has the ultimate authority to say
what the law is. At stake is the identity of the community as an his-
torically continuous expression of the sovereign people.
How do we conceive of this "sacred" act of self-revelation by the
sovereign people, which is both beginning and end of law? It does not
appear to us as an inexplicable mysterium tremendum, although it surely
still carries remnants of mystery. Secularizing the mystery of the sa-
cred, we lack words to describe the attachment of the community to
its own foundation. We turn to the language of the Enlightenment
and to secular political philosophers—we turn, in short, to the virtues
of reason and will, because this is the only political language we know.
Although thought of as an expression of the sovereign will, the found-
ing act is equally imagined as a kind of pure reason focused on the
public good. Thomas Jefferson, although not at Philadelphia, cap-
tures this spirit of ^will expressing itself in pure reason, when he
imagines enactment "of codes "adopted to our republican form of
g o v e r n m e n t . . . with a single eye to reason, and the good of those for
whose governmenrit was framed." 28 This is will unsullied by private
passions or factional interests. When the people truly act, they deploy
pure reason in the pursuit of justice. This is the ideal, even as we
recognize that any particular expression of popular sovereignty may
not be pure; it may be mingled with factional interests. The threat of
these factional interests makes a new appearance now as the state
of nature. T h e constitutional project appears simultaneously as the
overcoming of nature and of the injustice of a prior political order.
That the people might act irrationally—or even rationally pursue
unjust ends—is an idea with which we are familiar; take for example,
the Constitution's protection of slavery. But to the degree that people
act unjustly, they are never quite the popular sovereign itself. Slavery
was protected by the Constitution because factional interests de-
manded it as a political matter, not because the sovereign people
willed it. At least, this is the way the legal imagination remembers the
event.29 Having purged the evil of slavery, we are now more confident
in imagining a convergence of reason and will in the revolutionary
act of the popular sovereign.
Placing reason in the mind of the popular sovereign has had a
destabilizing effect on belief in the sovereign in the modern period.
Arguably, we see a similar effect with respect to God. Insofar as mod-
ern science seeks to understand the fundamental elements and laws
of the universe, from which all else follows, it seeks to replicate the
mind of God. Success within such an epistemic project would mean
IMAGINING THE RULE OF LAW 51
that there is nothing left over for God to know. Predestination is secu-
larized and put within the reach of man's mind now enlarged and
projected in the supercomputer. Any surplus knowledge God might
possess would have to be of the miraculous—i.e., that which is with-
out reasonable explanation—but this possibility is excluded in ad-
vance by the scientific mind. If God's unique knowledge can only be
of the miraculous, then we can do without divine knowledge.
The same eclipse of the sovereign may be happening politically. If
the mind of the popular sovereign is pure reason, then the traditional
temporal structure of law will inevitably be threatened by the rise of
an administrative state guided by a number of policy sciences. In-
deed, the legal realists made just this challenge to the structure of
legal belief. Law's knowledge, if not the same as that of the social
sciences, had to be a false claim to knowledge. The surplus to which
law could lay claim was only the irrational, which has the same status
for the policy scientist as the miraculous has for the natural scientist.
Law's myth of the people acting on the basis of reason at the moment
of origins is undermined by new forms of reason that are operation-
alized by experts administering the mundane operations of the wel-
fare state. The modern science of governance may look more like the
policy decisions of the Federal Reserve than the republicanism of the
Founders. The state as law's rule may be undermined, over the long
term, by its own claim to the virtue of reason.
Revolutionary beginnings and endings are not the only temporal
structures that are important to law's rule. Turning from genealogy
to architecture, we turn from the extraordinary, sacred past to the
ordinary, profane present. The architectural inquiry starts by noting
a curious kind of temporal flatness in the relationship of legal texts
and resources to each other. This flatness is just the opposite of the
sharp contrast between revolution and law that genealogy traces.
All law exists in a condition of simultaneity. This is not, however,
the simultaneity of a mathematical proof. Legal argument moves
through authoritative sources neither by tracing a process of chrono-
logical development nor by formal logic. Instead, it constructs analo-
gies. Through analogy the present moment can be linked to any
other moment. 30 We cannot know in advance what point in law's past
will suddenly become the resource for an analogical construction. We
can think of the time of legal texts as rather like the time of a work of
fiction. The work is read sequentially, but it all exists from the begin-
ning. We can open it up at any place. Law too may show itself to us
sequentially, but that time of learning or discovery is not law's time.
52 CHAPTER TWO
To identify a proposition as a statement of law is to recognize its
current authority. Statutes or judicial decisions are not more authori-
tative the more recent they are. There are, of course, procedures for
overruling a decision or repealing a statute, but as long as the past
act has not been negated, its place in the chronology of decision-
making does not matter. 31 Thus, within the rule of law the past does
not always cause the present. It is common to find the sequence run-
ning the other way: a present decision determines the meaning of a
past one. For example, in Planned Parenthood v. Casey, the Court upheld
a right to an abortion in the period before fetal viability, but allowed
the state to impose conditions upon this right. 32 It asserted that its
decision was required by the principle of stare decisis as applied to
the holding of Roe v. Wade. In fact Roe does not account for Casey.
Rather, Casey determines the meaning of Roe by substantially narrow-
ing what we might have thought the case held.
Judicial opinions -do not operate in the same temporal succession
within which we experience natural phenomena or even other polit-
ical phenomena. O n e political act disappears in the face of another.
For law, the past is still present—or it is not law. Thus, judicial opin-
ions exist side-by-side in the volumes of judicial reporters, just as
statutes are arranged in a code organized by topic rather than by
chronological order of passage. 33 Every judicial opinion can serve as
a precedent; each can become the point of origin for a new legal
holding. Progress in law cannot be marked in any simple way by the
addition of new volumes to the series of reporters or by additional
volumes of the United States Code Annotated or the Code of Federal
Regulations.
This uniform presence of law is not limited to the volumes record-
ing judicial, statutory, and regulatory output. It is deeply imbedded
in all of our public law. We see it, for example, in the Court's easy use
of an atemporal "we" to speak about past decisions. The same judi-
cial subject, acting across all time, decided the past cases and must
decide the present ones. This subject, who authoritatively announces
the law, exists in the same extended temporal present as the law itself.
The subject and the object share a temporal symmetry: a timeless
subject views a timeless law.
To the degree that our public law appears as an interpretation of
the Constitution, it too fails to fit within an ordinary conception of
temporal progression. T h e point of legal interpretation is always to
recover, i.e., to make present, something that appears already to ex-
ist. Of course, this does not mean it actually exists, as if interpreta-
tion were the discovery of an object hidden in another room. Nor is
IMAGINING THE RULE OF LAW 53
this a normative claim about legitimate methods of interpretation un-
der law—although it does suggest the conceptual framework within
which various theories of interpretation contest against each other. It
is, rather, an observation of the place of the distinction between in-
terpretation and invention in the legal imagination. An interpretation
that fails to appear as a rediscovery will appear as an illegitimate
construction of new law. New law is not law at all; it is only a false
appearance of law. For that reason, the Court will expunge whatever
it sees in this way, simultaneously identifying a past act—whether its
own or that of a political institution of government—as novel and
I eliminating it from the timeless present of the real law. T h e best ex-
ample of this is the "myth of recovery" by which the post-Lochner
Court expunged the novel acts of the Lochner Court and returned to
the timeless law of John Marshall. 34 This same myth of recovery op-
erates in every overruling of a precedent: without a conceptual space
for novelty, every new act must be made to seem a recovery.35 This
same temporal intuition is behind the judicial concern that a failure
to make rulings retroactive violates the rule of law. Prospectivity can
appear as convenient policy, yet seem lawless.36 To interpret the law
is to make explicit what has been there all along.
This description of law's present best fits the internal temporality
of the judicial opinion. It is not a description of the way in which
policy-making appears to legislatures or regulatory agencies. But if
we look at those institutions from the perspective of law, we find the
same temporal characteristics that are evident in the judicial opinion.
We can ask whether any particular legislative act is lawful, in which
case we understand the legislature not from the perspective of policy-
making but rather from that of realizing a possibility that has always
been there. We answer this question by arguing from existing legal
resources, and we advance that argument through analogical reason-
ing. Policy judgments are, from a legal point of view, exercises of an
already authorized discretion. If we have to ask whether any particu-
lar regulatory act is lawful, the argument will move through a series
of legal resources that ultimately extends to the Constitution itself.
We understand the entire. universe of possible actions within the
polity as already structured by law. There is no further domain to
which law does not extend. It used to be said that law was silent in
time of war: Inter arma silent leges. But the explicit extension of legal
norms to combat, as well as to decisions whether to deploy forces, has
been one of the most prominent features of twentieth-century politi-
cal developments. 37
The temporal structure of scientific inquiry does not apply to the

54 CHAPTER TWO
rule of law. The history of scientific inquiry is a narrative of progress
in which the present constantly supersedes the past. The history of
law's rule, on the other hand, is a collection of interpretive commen-
taries. The judicial opinion takes the form of "commentary," a writ-
ing that gains its authority from a prior writing. There is a tradition
of legal scholarship that views the legislative act in the same way,
describing every bill as a commentary by Congress on its consti-
tutional responsibilities.36 One commentary cannot definitively dis-
place another, because each locates its authority in the same source
outside of itself. None can claim to be final, because no commentary
has the power to declare itself the last word. Commentary, more-
over, does not necessarily "improve" with time. Indeed, the argu-
ment can always be made that it gets worse: commentary may be
more reliable the closer it is to the original text. We see such argu-
ments made, for example, about the privileged position of the First
Congress or the insights of The Federalist Papers. To this claim, others
will always respond that commentary does indeed improve over time.
It grows more "sophisticated" by building on the insights of earlier
commentaries.
This is the structure of debate within a field of commentary: a con-
stant dialectic between the claim for scholarly erudition and a coun-
terclaim for return to the original text. This is as true of law as it is of
biblical hermeneutics. This is not a debate that can be resolved by
choosing one side or by achieving a final synthesis because both in-
terpretive positions appeal to an essential aspect of commentary.
Thus, under the rule of law we are not moving unambiguously
toward a better future. The truth of law can appear at any point in
the history of the nation. All law remains available at every moment.
Indeed, even law that has been overruled and seems dead can return
to life. What had been taken for true can come to appear as error,
just as error can come to be seen as truth. 39 That which seems per-
manently past—for example, Dred Scott—is excluded by the limits of
the present imagination, not by some unalterable character of the
legal sources or some fact of legal progress. Bruce Ackerman has re-
cently shown the questionable "legal" validity of the passage of the
Thirteenth and Fourteenth Amendments. 40 Such arguments could be
used to recover the "true" Constitution, of which Dred Scott was the
"correct" interpretation. We can confidently predict that this will not
happen, but not because the law does not permit it. Rather, our con-
fidence rests on the place of slavery in the total constellation of con-
temporary beliefs.
The past of law's rule is not necessarily worse than the present or
IMAGINING THE RULE OF LAW 55
the future. It is difficult even to make sense of a claim that our law is
getting better. What would be the appropriate measure? No one
would choose nineteenth-century medicine over that of the twentieth
century, but is it the case that no one would prefer the Marshall Court
to that of Rehnquist? Indeed, the idea of a "golden age" from which
we have declined seems a recurring aspect of the constellation of be-
liefs attached to law's rule. Those most attached to law—the law
professors—are most likely to long for that golden age.41 Again, this
is a function of the conceptual shape of commentary in which the
future is always bound to authoritative origins.
This may seem a strange claim given the focus on "reform" that
I attributed to contemporary legal practice in chapter 1, since reform
suggests a belief in progress. There is a tension, but not a contradic-
tion, here. The tension is just that built into the structure of commen-
tary, between claims for erudition and claims for a return to origins.
Not even "reform" is a stable temporal norm. Thus, for those law
professors who long for the golden age of law, reform is identified
with recovery. Reform and interpretation are one and the same pro-
cess under the rule of law. Reform in law is a process of realizing
meanings we take to be already present. The lawyer or judge who
works toward reform of law believes she is telling us what the law
already is. Of law's rule, we can say with the ancient philosopher
Heraclitus, "the way up and the way down are one and the same."
Law's Space
This sketch of law's time only sets forth the major elements that a
cultural approach to law's rule would have to pursue in detail. A simi-
lar study must be made of the character of space within the practice
of law's rule. Again, there must be a genealogy and an architecture.
The genealogy of space focuses on the concept of the border—yet
another concept redolent with remnants from the larger tradition of
Western religious and political experience.
The rule of law is always rule over a defined territory. Morality
may be without borders, but law's rule begins only with the imagi-
nation of jurisdiction. We have moral, but not legal, obligations to
those beyond our borders. No matter how reasonable the law, reason
alone does not authorize the extension of law's rule over the popula-
tion of a foreign territory.42 We cannot rule others under law simply
because it would be "good" for them. We might be doing the morally
correct thing in coercing others to comply with our legal standards,
but those who experience such coercion, as well as those who do the
coercing, do not perceive it as the rule of law. Americans know this
56 CHAPTER TWO
intuitively as an aspect of their collective memory of the origins of
law's rule in the Revolution against British rule in colonial America.
No country had, at that time, a stronger claim to the rule of law than
Great Britain. Moreover, the law that Parliament attempted to ex-
tend to the Colonies was arg- " 'y reasonable. A main point of con-
tention concerned the British effort to tax the Colonies in order to
force them to pay part of the cost of their own defense.43 The problem
was not the absence of law, or even the unreasonableness of the ap-
plicable law, but the separation of territorial jurisdiction. British law
was perceived as foreign law within the colonial jurisdiction. And rule
by foreign law is not the rule of law at all.
Just as the reason of law alone is not the ground of a jurisdictional
claim, neither is consent an adequate account of the reach of law's
space. The problem of law's geographical locus is not a technical
question of the breadth of electoral participation in the choice of rep-
resentatives^—-althougfi -jurisdictional unease may be expressed in
this form at the revolutionary moment. The imagination of political
space, however, exists-prior to efforts to justify the geographical reach
of law. Representation, even as the eighteenth-century arguments
demonstrated, is a plastic concept. 44 There are multiple forms of rep-
resentation, not all of which involve voting or sending one's "own"
representative to a legislative body. Representation, for example, can
include those who do not participate in the political process because
they are too young, do not yet exist, or have already died. Similarly,
consent can take multiple forms, both explicit and implicit. Noncon-
sensual forms of government are not necessarily "unrepresentative."
Arguments about representation and consent come up too late to
capture the fundamental intuition that a government's rule appears
as an illegitimate extension of power from one bordered space to an-
other. The modern process of decolonization could not have been
stopped by an extension of the system of representation. There can
be multiple systems of representation in a single space, but there is
only one state.45
Law's space is always bordered space. The genealogy of this con-
cept takes us quickly back to an image of sacred space. The border is
a kind of historical marker, representing the intersection of a geog-
raphy of place with a narrative of events.46 The border distinguishes
a particular territory that has become a representation of sacred
meaning. Bordered space is a gift—first from the gods, but then from
one's predecessors. 47 The narrative of the gift's origin establishes a
locus of responsibility: the community is responsible for this land.
IMAGINING THE RULE OF LAW 57
Space appears first as a representation of meaning derived from out-
side of the self. Only later does territory become property, i.e., the
possession of particular subjects. Social contract theorists imagine
property before the state, as if man in the state of nature is a property
holder. They imagine the state's territory as the aggregation of these
property interests, brought about by the consent of the owners. But
territory appears as property only to those already within an imag-
ined political space.48 The myth of a propertied state of nature is a
justification of law's rule, not a genealogical account of law's origin.
From an external perspective, one claim to possession may be no
better than another. Possession often has its origin in dispossession.
Yet the community does not imagine its link to territory as founded
upon a great act of injustice. It accepts instead a narrative of the gift
that privileges one claim to territory over competing claims. To those
outside that narrative, law's rule may begin with an act of theft and
remain a form of external coercion. This spatial conception of law's
origins is reflected in the idea of "domestic dependent nations," al-
ready applied by the Marshall Court to Native Americans. 49 The
narrative of borders, accordingly, establishes insiders and outsiders.
It necessarily excludes in order to preserve the identity of those
within.
The genealogy of legal space also explores the unstable relation-
ship between the idea of the state as one among m a n y — a commu-
nity of states—and the idea of empire. Again, this is an idea with
deep religious roots. The nation of Israel is simultaneously a unique
community among many—marked by its covenant with God and
the gift of a particular territory—and destined to be the source of a
single community on earth. When the messiah comes, it will be for
all men, not just for the Jews. Overcoming space is linked to over-
coming time: the end of history also marks the end of spatial limits.
In both respects, divine presence overcomes representational dis-
tance. Thus, the Jewish split with the early Christian community rests
not only on a disagreement over the character of the nation's time—
is the age of law over?—but also over the character of its space. Saint
Paul, who believed the Second Coming was at hand, undermined
distinctions of space, spreading the Christian truth to gentile com-
munities. He is a person without place and thus a person of all places.
The very idea of his proselytizing wanderings suggests a new concep-
tion of space in which the border now appears as that which is to be
overcome. Paul symbolizes this on the micro-level by insisting upon
eating with gentiles: he will enter their space—their households—
58 CHAPTER TWO
and be a part of their communities as he tries to overcome all distinc-
tions.50 The Jewish community would remain within its own jurisdic-
tion, separate and unique from others.51
Ideas of limits and of transcending the limits continue to operate
simultaneously in our conception of the border. We live with this am-
biguity when we take law's rule as our own unique practice but be-
lieve it to be the only possible "correct" form of government. The
rule of law needs the border to mark, and thus make possible, its own
community of self-government. But it cannot rest within any limits.
We proselytize law's rule as a rule of multiple nations each under law's
rule. Simultaneously, we envision a single world order under law. We
do not know whether law's rule points to one community or to many,
to empire or to nations. In either case, we imagine the other—those
outside our space—as fundamentally like ourselves. The rule of law
steps into the place of the sacred, and as such we cannot imagine a
competing meaning that Could stand up to it. Law is both uniquely
ours and our message'to the world. Such ambiguities cannot be re-
solved; they rest on the structure of thought that is constitutive of the
world of law.52
Law's apparent origin in reason and will cannot help to resolve
this spatial ambiguity. If the order of law is the expression of reason,
there would seem to be an inevitable momentum toward empire, i.e.,
a single world under reason's law. If, on the other hand, law is the
expression of will, then movement would be toward multiple states,
each with its own rule of law. As with all such arguments, however,
the terms can be reversed. If reason is a matter of experience and
experiments, multiple states may be more likely to achieve reason in
law.53 Or, reason may be specific to context: what is reasonable for a
Third World state may not be reasonable for an industrialized wel-
fare state. If the will of the community precedes law, then the bounda-
ries of the state may be established through a conception of the nation
that pushes well beyond traditional borders—e.g., Germans or Rus-
sians living abroad or Jews in Diaspora. If there is no appeal to a
prelegal nation, then consent may take a radically individual form:
adding one's will to that of the group makes one a citizen. If so, there
are no borders that cannot be overcome by the appeal to consent.
Indeed, for this reason, liberal political theory, which assumes indi-
vidual consent as its first principle, has never been able to stabilize a
conception of borders. Liberal theory seems to move inexorably to-
ward world government.
American history is bound up with these particular spatial ambi-
guities of empire versus federation. Law's space was at the heart of
IMAGINING THE RULE OF LAW 59
the nineteenth-century struggle over the proper conception of the
federal state—was it a confederation of separate states, each under
their own rule of law, or the singular source of law's rule for the entire
nation? 54 The victory of the national state on the battlefield did not
translate into a similar defeat of the state-centered view of the nature
of the legal order. Very soon after the Civil War, we find the Supreme
Court recovering the old ambiguity, protecting states from the na-
tional government because ours is an "indestructible Union, com-
posed of indestructible states." 55 The idea of confederation remains
a continually attractive counterpoint to the tendency toward empire.
American constitutional law has a kind of cyclical relationship to
these two ideas, moving back and forth between a nationalist and a
state-centered view.56
We see this same spatial ambiguity reflected in the introductory
remarks to The Federalist Papers. The question, we are told by Publius,
involves "the fate of an empire in many respects the most interesting
in the world." Here will be decided the issue of whether law can be
the product of the people's deliberate, democratic design. This proj-
ect can only begin within a space that has secured its borders against
competing claims. Nevertheless, the rule of law that the border makes
possible inevitably overflows those borders: at stake is not just one
nation, but the world. The border, accordingly, makes law possible
at the same time that law seems to transcend its own limits.
We see here, in earliest form, the problem of the colony for the
practice of law's rule. This problem would plague the West for the
next two hundred years. There were two patterns of thought about
the long-term relationship of colony to colonizer. One believed that
the end of the process would be incorporation of the colony into the
metropolis such that the territory expanded into one extended na-
tion. With some exceptions, this was the American pattern. 57 Law
overcame existing borders in the direction of empire. The other pat-
tern understood colonization as a kind of trusteeship, which would
end when the colony was capable of independent statehood under its
own rule of law. This was the British pattern, which envisioned mul-
tiple states under law's rule, joined loosely in the Commonwealth. 58
The one thing that was not compatible with the rule of law was the
fact of the situation: subordination of the colonial territory to the
colonizing power as a permanent, structural relationship. This re-
quired an ideology of racism, not law. There has, for this reason,
always been an air of lawlessness about the law with regard to Native
Americans. 59 When this view of permanent subordination was actu-
ally given formal recognition, the territory of the colony appeared as
 6o CHAPTER TWO
a possession, not as a national gift.60 This reduces the political con-
ception ofjurisdictional space to a private claim of ownership. It cor-
respondingly reduces the populace from citizens to objects. To, the
colonized, there was little distinction between the metropolis's claims
of possession or of gift. The act of dispossession set the modern
agenda of revolution as decolonization.
The genealogy of law's space examines not only the place of the
border, but also the forms of representation of bordered space. Here,
there has been a fundamental transformation from premodern to
modern Western thought. Briefly stated, the map has replaced the
king's body. For us, the territory of the state is represented by a
m a p — a deliberately constructed, artificial representation. A repre-
sentation is a sign that can be replaced by another equally functional
representation. Thus, the marks on the map are wholly arbitrary.
The king's body represented nothing; it was the corpus of the state.
At the heart of the imagination of the pre-modern state was the
mystery of instantiation: not the quantitative experience of spatial
extension, but a qualitative experience of otherness.61
By projecting political territory onto a representation of geogra-
phy, the map suggests the divisible and thus contingent character of
the state. Borders are subject to divisions and redirection. The map-
pable state can always be remade. T h e king's body, on the other
hand, was indivisible. The whole of the state was present in the king
as a form of mystical instantiation. The geography of state was as
much that of the king's court as the territory of the domain. 62 Prox-
imity to the king was a more important spatial relationship than ter-
ritorial possession. The state experienced in the king's body was not
only an indivisible spatial whole, but also an indivisible temporal
whole. T h e body of the king, as the mystery of the state, never died.
Here too political order drew upon religious antecedents.
Christ's body is the corpus of the Church. Through the Church—
and particularly the sacrament of the Eucharist— one is "born again"
in Christ. This is a sacred geography in which the physical body
transcends its own finitude. The Church is in space but without geo-
graphical borders that can be represented on a map; it is in time, but
not as a temporally divisible set of chronologically ordered events.
Christ is always; He has always been everywhere at once. Similarly,
the king's body, as the mysterious corpus of the state, was constitutive
of a sacred geography. It too was timeless and complete. As a part of
the state, the individual was a part of the king's body, just as he was
a part of Christ through the Church. King and Christ did not just
!
il
IMAGINING THE RULE OF LAW 6l
happen to share a set of symbolic forms. The power of the king was
thought to flow from Christ. The king remained a visible presence of
Christ on earth. The separation of the political from the religious
remained for the future.
A genealogy of law's rule must investigate the transition from the
mystery of instantiation in the kingly corpus to the representation
of political geography on the map. 63 This transformation of political
space was a product of many changes: the general displacement of
instantiation by representation in the Reformation, the rise of com-
petitive nation-states in place of an ideal political/religious empire as
the political norm, the growth of civil society, and the rise of political
theory that attempted to build the state out of a conception of indi-
vidual rights. Here, I want to emphasize only one aspect of the tran-
sition: its problematic link to the identification of the sovereign voice
with the voice of reason. Were the law to be wholly a product of
reason, it could be mapped onto any geographical space. The space
of the state would be wholly arbitrary, since its organization would
be disconnected from the particularities of any narrative concerning
that space. An extreme version of this is the market, which as a sys-
tem of exchange knows no borders. The same could be said of a
Rawlsian idea of the rule of law in a liberal state: behind the veil of
ignorance one is nowhere, and so, potentially, everywhere. T h e king's
body, however, had no prior commitment to reason. Coke claimed
reason for law and opposed both law and reason to the king's claim
that he is the state as sovereign will and mystical corpus. 64
This concept of the mystical body of the king was traditionally
linked with faith healing, practiced by both King James and King
Louis XVI. 65 The mappable state has no power to heal the body,
yet the executive retains the power to pardon—an idea wholly at
variance with the norms of legal rule and accountability. Similarly,
we remain attached to ideas of sovereign immunity. This suggests
that map and reason will not give us an adequate understanding
of the space of the state even under the rule of law. Law's space has
not entirely shed its sacred origins. It has, however, shed ideas of
qualitative difference within the jurisdiction. The rule of law applies
equally within all of the state's space.66 Modern law's space has about
it the equality of popular sovereignty, rather than the inequality of
the monarch.
Legal genealogy must therefore investigate the remnants of the
mystical corpus of the state in the contemporary imagination. The
king's body had a kind of infinite or incomparable value. This remains
62 CHAPTER TWO
true of the body of the state under law's rule. This is the lesson of
mutual assured destruction as the ultimate modern strategy of mili-
tary defense. Rather than lose political identity, the state announces
its willingness to destroy itself entirely. This is hardly the state as a
product of reason. 67 We have divided up the mysterious corpus of the
king's body and distributed it equally among all citizens. Yet, what
each possesses is still a mystery of infinite value. Everyone is king,
because no one is. Each citizen can become a focal point through
which the whole of the state appears. T h e monument to the king is
replaced by the tomb of the unknown soldier.
Lincoln captures this inversion in his Gettysburg Address, when
he places the power to consecrate space in the common soldiers who
have died rather than in a political leader's words. Yet we will not
capture the power of the image of Lincoln himself in our political
imagination if we take his address as a complete description of the
sources of sacred space in a democratic polity under law. If the Civil
War begins from a ^vision of the divisibility of the mappable state,
Lincoln's life and nfartyrdom come to symbolize, now in a secular
form, the unity of the state in the king's body. Lincoln symbolizes
every man as king—the poor farmboy who becomes president—as
well as the symbolic confluence of the king's body and the rule of law
in the martyr to the Constitution.
We find another remnant—although one that points in a different
direction-—in law's insistence that all property is fungible, i.e., there
is a monetized value of every property interest. Money is the contem-
porary, universal solvent.615 No individual can so invest himself in any
particular property interest such that his claim must be distinguished
from, and privileged above, all others. Law flattens all such claims,
transforming them not through the solvent of the king's body but
through the mystery of monetary value. The mystical corpus of the
modern state under law's rule may be money. Money functions as a
kind of material expression of the power of analogy under law's rule.
Just as analogy can connect any proposition of law with any other,
money connects any interest with every other interest. Monetary
valuation is simply the expression of analogical equivalents. Both
should be contrasted to the infinite value of the king and the king's
claim to make law through his word. To consider money as only a
reasonable means of exchange fails to capture the full value of money
in its relationship to the meaning of the state. The British resistance
to the Eurodollar is not wholly answered in terms of markets and
efficiency.69
Law's space, then, has the double character of extension—the
IMAGINING THE RULE OF LAW 63
problem of borders—and contraction—the problem of seeing the
whole in the part. Genealogy must take up both aspects to show us
the imaginative materials out of which law's space is built.
The architectural study of legal space focuses on the conceptions
of property and jurisdiction. Space does not appear to the legal
imagination as either abstract location or natural terrain. Over the
geographic world of location, law spreads a complete conceptual
grid. Within the ongoing practice of law's rule, any particular space
appears first of all as property. T h e rule of law begins its modern life
with the idea of property. Before he or she is anything else, the citizen
under law is a property holder. Reflecting on the centrality of the
concept of property to early-nineteenth-century American jurispru-
dence, Perry Miller writes: "there can be no question that the legalists
of unification had, ever since the Revolution, done a thoroughjob of
making the reign of law in the country one with the inviolability of
property." 70 Law makes possible a regime of property by securing the
property holder against the possessive or predatory interests of oth-
ers, including those who wield the coercive power of the state. Be-
yond protecting possession against the immediate threats of theft and
trespass, law creates a stable and predictable future, which in turn
allows for property dispositions of indefinite duration. Legal property
interests can be without temporal limits just in the way that every
legal rule is without limit. This is exactly the difference between prop-
erty and possession.
There is no space to which legal claims of ownership cannot be
made: all of the state's territory is property. Indeed, modern govern-
ment under law's rule comes to be seen as another owner of property.
It is often the first property owner—-the originator of particular
claims to property—and the last owner—the owner by default when
other property claims fail. In between, it appears as a property owner
like everyone else, owning discrete parcels of property that exist
alongside others. If it chooses to increase its property ownership, it
must pay for its acquisitions the same as anyone else. There is no
power of eminent domain apart from "just compensation." 7 '
Spatial relations under law appear, therefore, as relations among
property holders. This is a relationship that makes no appearance
to those outside of the state's law. They see only the political terri-
tory of the nation, not an aggregation of particular property inter-
ests.72 Under law, however, the question of where is always a predicate
to the question of who: who owns it? Property claims need not be
absolute; there may be multiple claims of ownership centered on the
same object or place. Other legal relationships to property are built
64 CHAPTER TWO
out of this conception of ownership—e.g., questions of responsibility
and use.
The metaphor of a grid suggests the mappable character of prop-
erty. All property can be located in relationship to all other property.
r
This is not, however, a relationship of one geographic space to an-
other. Law's space is not discoverable in the world; it is rather a
particular form of discourse among those who share a common set of
beliefs relating space to persons. Property claims rest on an historical
narrative that traces ownership. Thus, to describe space under law
we trace title. Titles move simultaneously across a horizontal and ver-
tical dimension. The deed describes one property in terms of its re-
lationship to surrounding properties. The transfer of title sets this syn-
chronous narrative of place in relationship to a diachronic narrative
of personal succession.
As with law's time, these shared beliefs about property can sup-
port competing a n d contradictory claims. Just as there is always
more than one available precedent, there are often multiple stories
of ownership. Any particular narrative is always exhausted before it
reaches an uncontrovertible foundation. It simply recedes into the
past where, eventually, explanations fail. Law's space is not a just dis-
tribution from first principles. A property regime is an ongoing pro-
ject in which the distribution has always already occurred. T h e cul-
tural approach to law seeks to expose the structures of thought that
make this project possible. It is not concerned with the justice or in-
justice of property, nor with correct beliefs about particular property
claims.
A regime of property requires a regime of jurisdiction because
property claims are always in potential conflict. Jurisdiction speci-
fies who or what institution decides among those conflicting claims.
Thus, for every space that appears within the rule of law, we can ask
who has the authority to regulate that space. Property and jurisdic-
tion are linked perspectives describing the character of space as it
appears to those within law's rule. We decide the question of juris-
diction in the same way that we decide the question of property own-
ership: we trace back through time allocations of decision-making
authority. As with property, we may face competing claims, because
more than one narrative is available describing that history. In that
case, we reach no final resting point, no foundation, for our conclu-
sion. We stop from exhaustion and the need to act, not from a logical
completeness.
Jurisdiction and property regimes intersect at many points, not just
in the obvious sense that property and jurisdiction are coterminous
IMAGINING THE RULE OF LAW 65
and complete. For example, jurisdiction may be conceived of as a
kind of first-order property claim: all territory belongs to the state
before it belongs to particular parties. Jurisdiction then appears as a
kind of nondelegable right of ownership with priority over all other
ownership claims.73 We see a modern remnant of this traditional idea
linking ownership and jurisdiction in the constitutional law of pri-
vacy. Here, an idea of property in the body (it is exclusively my body)
is linked to jurisdiction (I alone have authority to decide about its
disposition). We are each king, if not exacdy in our homes, then at
least in the limited principality of the body.
We can see another example of the interpenetration of property
and jurisdiction in the conceptual world of the p r e - N e w Deal Court.
That Court's defense of a property regime as a matter of substantive
due process is well known. Also well known is its defense of state ju-
risdiction against federal regulatory efforts.74 These are linked not
just as mutual supports of a free market order, 75 but conceptually as
well. The Court approached jurisdictional issues from a perspective
of property. It analogized the state and national governments to com-
peting property owners. It thought of federal regulation as a form of
"trespass" upon state property interests. It worried about "invasion"
of state interests by the federal government. It deployed common-law
categories of spatial relationships to understand the constitutional
relationship of state and federal government. It appealed, for ex-
ample, to spatial metaphors of causation across distance—proximate
cause—in order to maintain an allocation of jurisdiction. 76 When we
try to understand why the relationship ofjurisdiction to property ap-
peared in this way, the study of architecture points back to the study
of genealogy. To understand this Court, we need to study the histori-
cal linkage of state authority and the control of space. This is a study
that will move us quickly from law to war. We need to remember that
the Civil War was still a part of the living memory of these Justices
and that for them invasion by the national government was more
than a metaphor.
Again, the point of this inquiry is not somehow to get it right, i.e.,
to decide on the correct regime of property and/or jurisdiction.
Rather, the ambition is to make explicit those structures of thought
by which we organize space when we live our lives under the rule of
law. What we will discover is not a single truth of property or juris-
diction. Law's space is not a thing in the world about which we can
be right or wrong. It is a set of meanings displayed and maintained
in an historically specific discourse that is deployed to defend particu-
lar claims to property and jurisdiction.
66 CHAPTER TWO
THE L E G A L E V E N T
Time and space make the event possible as an object of legal percep-
tion. But describing only the temporal and spatial frame of the event,
fails to capture the struggle involved in the imaginative construction
of the legal event. A cultural study of law's rule must follow the
aesthetic of law with an inquiry into the event that occupies this tem-
poral and spatial structure. The study turns now to the jmagjnfltJYP
process itself-—i.e., to die process ]vywhiqht,ll^ lfg ql e"£"t '" •"'""Ir
structed as one among a number of possihleAvavs^ofjuj^er
ourexperience. At^Te^em^yofTrnTmiafflnatlve process, we find the _
'us'rVnl m r r J p W , -
Kant believed that there was a single shape of time and space and
a single causal pattern to events. There was, he thought, one com-
mon world within which.events occurred—that of Newtonian sci-
ence. The cultural study of law begins with the recognition thatjjaejx,.
are competing worlds of e^pexkjice. This is not a challenge to scien-
tific objectivity, but a recognition that meanings are not exhausted
by scientific descriptions. Science does not tell us anything about
the appearance of events under the rule of law. Experience is not
constituted by things, but by the meanings through which we under-
stand events, communities, and ourselves. There are multiple pos-
sibilities not just across distant societies, but also within a single so-
ciety. The meanings of events, as well as the appropriate course of
future actions, are contested not just in their particular features—
e.g., arguments over whether an act is or is not legal—but also in the
large-scale frames of reference through which we construct their
meanings. Do we, for example, come to the event prepared to under-
stand it aesthetically, politically, or religiously?
Because of this competitive diversity in the forms of understand-
ing, every cultural form must be analyzed from a perspective of
power. Power here is not a function of violence, coercion, and ex-
clusion—although all are elements of a legal regime. Rather, power
is the capacity to exclude or dominate competing ways of under-
standing the event. A cultural study of law surely should include com-
parison of the imaginative construction of the legal event to "exotic"
possibilities-—e.g., the perception of events by archaic cultures or
non-Western societies.77 Nevertheless, the more pressing need is to
examine the competition between alternative constructions of polit-
ical events in our own society. The power of law's rule is not mea-
sured by the actions of the courts but by the citizens' disposition to
understand events, actions, and subjects as instances of law.
IMAGINING THE RULE OF LAW 67
Law is not the only form that our political life takes. JTherule of
law is just one way of perceiving the meaning of political events. To
"see" the event as an instance of law's rule is to suppress alternative
.perceptions of the same event. Those alternatives do not disappear.
Rather, we respond to and construct multiple dimensions of meaning
within our common political life. This^ompetition among political
perceptions will not appear unless we focus attention on that which
law places outside of itself. We only suppress that which we have al-
ready perceived. Recognition, suppression, and co-optation are all at
issue in the relationships among symbolic forms. Plotting the rela-
tionship among these strategies of law is the task of an architectural
study. Instead of attempting to measure legal meanings against an
independent or objective truth, we need to measure legal meanings
against alternative forms of organizing and understanding political
experience. These alternatives are no more true than law's world:
each is an historically contingent product of the imagination.
This contest among forms of political perception jis.rarrje.rl ont, in
the political rhetoric of the community, as well as in the imagination
ofearh g t j ^ n , Jn part, the contest is a matter of normative devalua-
tion of competing understandings. For example, law's rule is always
paired with a negative nltpmarivp _Wf* ririrribfi. tihrtumln nf-lmrihy.
^saving "it is not the rule of m e n / ' Alternatives to law are thereby
.dismissed as an ^legitimate—?nd nVnErrnnnly .tyrannical—-ju\$ _o£
men. If this is the only alternative seen, then outside of law's rule,
there can be nothing of any political value at all. The legal imagina-
tion leaves a place for just one extraordinary situation outside of law:
revolution. Revolution, however, is always a possibility projected into
the distant past or distant future.
The rule of law versus the rule of men is not the delimitation of
two distinct places or times. Rather, the contrast is itself constitutive
of meanings within a legal culture. Law is not the rule of men. The
contrast is first of all a means of legjtimatin^ law by excluding alter-
native forms of politics from making any positive appearance. But the
same contrast migrates from the justification of law's rule to argu-
ments over the content of law. The contrast works within doctrinal
legal argument as a means of attacking the opposing side in a legal
dispute. Alternative positions are not merely disagreements within
the overall practice of law's rule. Quickly the rhetoric escalates to
accusations that those with whom one disagrees would lead the state
into an illegitimate rule of men. Judges are constantly accusing each
other of failing to apply the law and instead imposing their own
rule—the rule of m e n — o n the polity.78 This fracture between the
68 CHAPTER TWO
rule of law and of men is not a stabkjaorrj^er^but an argumentative
resourceavaTtaHe™toeacK side of a controversy. The line of separa-
tion cannot be permanent because, once the Court rules, the. law is
what it has said and the "legal" obligation is to follow the precedent. 79
Before the fact of the decision, the proposed outcome may be de-
scribed as the "rule of men." Even at the moment of decision, the
dissenting voice accuses the Court of straying from law's rule. Yet,
after the decision, to fail to follow that precedent itself becomes the
rule of men.
What law dismisses and devalues as "the rule of men" can be seen
in a completely different manner. It can appear, for example, as po-
litical leadership exercised by distinguished individuals meeting the
unique political demands of the moment in an innovative fashion.
Political argument need not be on law's terms, i.e., an argument
among conflicting claims of what the law is. There is a broader ar-
gument over the value-of law's rule in our political life. If we listen
only to the voice of law, we will not see this conflict. Thus, we regu-
larly find political actors directing a rhetorical counter-devaluation at
law. Courts, we are told, are counter-majoritarian; our political cul-
ture suffers from a dangerous disposition toward juridification that
undermines the exercise of political responsibility by leadership and
citizens alike.80 Lawyers may be our leading political persons, but
they are also the object of an intense popular distrust.
In part, maintaining law's rule in this competition of political
perceptions is a matter of co-opting that which law cannot wholly
devalue. For example, the rule of law presents itself as an order of
political meaning opposite to revolution. When revolution "breaks
out," law ends. Yet this opposition is not by any means a devaluation
or complete exclusion. Law and revolution are bound together as
competing accounts of the deepest truth of the American political
community. Each tries to co-opt, not to dismiss, the other. We see an
early example of this competitive co-optation in the opposing views
of Jefferson and Madison.
Jefferson thought that no generation could rule another and, there-
fore, every generation had to carry out its own revolution. To lapse
into permanent law would be to fail in one's political and moral re-
sponsibilities for self-government.,fl Law had to be harnessed and
subordinated to revolution; it had to be seen from the perspective of
self-government as revolutionary self-formation. Madison, otherwise
his political ally, responded that law should appear as a secular reli-
gion carried forward in a continuous and unbroken chain of genera-
tions that begins at the Revolution. 82 Self-government was, on his
IMAGINING THE RULE OF LAW
view, maintenance of the existing legal order, not the making of a
new constitution. Thus, revolution had to be harnessed and subordi-
nated to law. For Madison, the revolution was over; for Jefferson,
revolution was a continuing obligation of each generation. Is our
model of self-government revolutionary self-expression or mainte-
nance of law? This is not a debate with which we are done or can
ever be done. 83
Both law and revolution claim a truth that the other misses; yet
each claims to be the underlying truth of the other. Without revolu-
tion, law does not begin, yet without law, the memory of revolution
would disappear from our political life. We do not celebrate the Glo-
rious Revolution, even if historians can trace its effect on American
political life. Our revolution remains ours by virtue of the law that
purports to carry forward its truth. This revolution belongs to those
who fall within the rule of law that places its origin in that moment
of political action by the popular sovereign.
Accordingly, we cannot say of revolution that it is merely the rule
of men. Law must take up into itself the value of revolution in a way
that respects revolution—both as fact and possibility—but simulta-
neously postpones any new revolution into an indefinite future. The
Constitution succeeds the Revolution not as night follows day, but as
a work of art follows upon and completes a momentary inspiration.
Thus, the rule of law claims to memorialize and maintain the revo-
lutionary truth. If so, there is no need for a people under law to pur-
sue revolution, i.e., action outside of law. Or, so the legal mind would
have us believe. Again, this is not the only mind with which we un-
derstand political meanings. Even the Court has had to express its
respect for revolution—as a theoretical possibility—on the rare oc-
casions that it has found a need to address the issue.84
Affirming revolution as an ideal form, the Court can label every
actual transgression of law criminal, regardless of its political intent.
Ironically, the more explosive political action becomes, the more the
Court is willing to allow its suppression. Consider, for example, the
"clear and present danger" test as a limit on freedom of speech.85
The Court must defend law against revolution at the same time that
it recognizes law's debt to revolution. The latter is a strategy of co-
optation to accomplish the former.
Law's rule devalues the rule of men and co-opts revolution. It has
a more complex relationship of suppression to what, borrowing from
Hannah Arendt, I have called "political action." 86 Law understands
the meaning of an event as an instance of a rule that already exists.
As a matter of law, that rule creates the possibility of the event. Legal
 70 CHAPTER TWO
perception sees the event in the light of its possibility, locating what is
important about the event in the rule. Legal inquiry always asks
whether an event or proposal realizes a possibility that has already
been established. Legal argument seeks to show that the event or pro-
posed course of action has been "authorized" by an existing rule or
rules. This is formalized in criminal law as the prohibition on ex post
facto legislation.87 Law is indifferent to the unique character of the
acting subject or the unique circumstances of the act. For a legal de-
cision maker to be swayed by either appears unfair and prejudicial.
This is true even if that outcome appears otherwise morally compel-
ling. Under the rule of law, the morally good do not necessarily win
their cases over the morally evil. Justice under law, we say, is blind. It
need not see what actually happens, because law's meaning is already
exhausted by what can happen. Only in law is blindness a good thing;
in a complete inversion of our ordinary experience, sight appears to
lead to arbitrary ancfcapricious behavior by the legal decision maker.
Political action understands the event in just the opposite way. It
locates the meaning o£the event in the fact of its happening, not in
its realization of a possibility already established by a rule. Its con-
cern is the unique subject and the particular historical circumstances.
Action sees the event as the product of particular choices made by
particular subjects at unique moments. It is a matter of seizing op-
portunities, not maintaining the past. Political action emphasizes the
subject's responsibility for the choice made: what matters is what we
do, not what it is possible for us to do. Action is seen as a test of
character: it tells us—and others—-who we actually are. Possibilities
I'
I are always indefinite and indeterminate. They cannot determine
the actual course of events. For law, possibility precedes and limits
I actuality. For action, it is the actual choice that constructs future
possibilities.
To perceive politics through the frame of action is to see the past
as dead, that is, without any normative force of its own. Indeed, often
the perception is just the opposite—the past is viewed with suspi-
cion.88 Justice appears to the political actor as an ideal measure
that is equally applicable to the law we have and the law we might
create. Of course, there can be strong disagreement about what jus-
tice requires, but a political actor believes it to be his or her respon-
sibility to remake the present to realize a more just future. An open
future owes no more to existing legal conventions than to any other
possibility.
Arendt understood political action as the domain of great men
IMAGINING THE RULE OF LAW 71
achieving, or failing to achieve, fame through their unique contribu-
tions to the future of the polity. Her perspective, however, was too
narrow. It led her to devalue law because it is not action. This de-
valuation is only a reverse image of law's devaluation of action. Our
political world, however, is constituted by the contest between both
forms of perception, i.e., between the perception of law and that of
action. There is no reason to make a choice, as if one perception were
right and the other wrong.
The celebration of newness is a recurrent aspect of our political
life. Every political leader promises to be different and to be bring
forward new policies that are more just. We have had the New Deal,
the New Covenant, and the New Frontier. We constantly have ap-
peals to a New America that lies before us. For those who approach
politics from the perspective of action, we always live in, or are about
to enter, the "new age." All of this is quite at variance with the legal
perception of those same events. Judges are not appointed on the
basis of a promise to bring forth the new. When judges speak of a new
jurisprudence, they inevitably defend their claims as "really" a return
to the correct legal rules.89
An event is legal when it appears as an instance of an already estab-
lished rule. As far as law is concerned, whether any particular event
happens or not is a matter of indifference. Legal perception is a series
of hierarchically arranged possibilities. The particular event we are
concerned with may fall within a rule established by a precedent; the
precedent may be the realization of a possibility established by a
regulation; the regulation, by a statute; and the statute, by the Con-
stitution. In such a world, nothing new ever happens, because the
measure of the event's meaning is limited to its realization of a pos-
sibility. The only genuinely new event was the revolutionary founding
itself.
I do not mean to suggest that placing an event under a legal rule
is a simple matter. The possibilities within law are never exclusive;
they are often contradictory. Possibilities may not even exist until
they are constructed by the imagination responding to the event. We
often do not know, for example, which past opinions will serve as
compelling precedents for a particular event until after the decision
has been announced. We may think we know what an event means,
but find that we have been mistaken. A court may overrule a prece-
dent upon which we had relied. The argument between the contend-
ing parties is over which precedents and rules best explain the legal
meaning of the contested event. There is no list of legal rules or cases