'Be Operational, or Disappear': Thoughts on a Present Discontent

Forthcoming in Annual Review of Law and Social Science

UC Berkeley Public Law Research Paper No. 2760635

42 Pages Posted: 9 Apr 2016

See all articles by Christopher Tomlins

Christopher Tomlins

University of California, Berkeley - Jurisprudence and Social Policy Program

Date Written: April 2, 2016

Abstract

We are fated to live historically because we are fettered to memory. But we live in an epoch that, in the name of history, prefers our forgetfulness, imprinting on each the ephemerality of what it knows of itself and its life, subordinating that knowledge to another, more timely, more efficacious, more stirring: the knowledge of a people and its continuity in time. Which is to say that history is at war with itself. Law too is at war with itself. We attempt to live lawfully because we are fettered to justice. But the epoch (every epoch) calls us to a different mode of lawfulness, one, like history, to be lived in the name of a people, its interests and ideals. To live lawfully, it seems, is like living historically, to be condemned to a state of cross-purposes, of cruci-fictions. Legal history exists at the intersection of history and law, and has a responsibility to resolve, or at least reveal, their cross-purposes. As regimes of interpellation, history and law jointly observe and insist upon realities often antagonistic to those that arise from their alternate being as memory and right. Legal history fulfills its responsibility by undertaking a dual task, of recovery and rejection – the recovery of memory and right, the rejection of regimes of interpellation. If undertaken, the task will serve life, and it will do so by acting untimely – “that is to say, acting counter to our time, and thereby acting on our time and, let us hope, for the benefit of a time to come.”

Keywords: law, history, legal history, Mabo, Yorta Yorta, Native Title, Benjamin, Nietzsche

Suggested Citation

Tomlins, Christopher, 'Be Operational, or Disappear': Thoughts on a Present Discontent (April 2, 2016). Forthcoming in Annual Review of Law and Social Science; UC Berkeley Public Law Research Paper No. 2760635. Available at SSRN: https://ssrn.com/abstract=2760635

Christopher Tomlins (Contact Author)

University of California, Berkeley - Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720-7200
United States

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