Why Law's Objects Do Not Disappear: On History as Remainder

Forthcoming in Andreas Philippopoulos-Mihalopoulos (editor), Routledge Research Handbook on Law & Theory

UC Berkeley Public Law Research Paper No. 2760641

34 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

One of law’s more supple conceits is its ontology of equivalence. The equivalent stands for, it purports to takes the place of, all that exists in life’s discordant realm in a state of spatial, temporal, material, corporeal, sensorial difference. Equivalence commensurates the inhabitants of that realm (people, things, relations) as completely as may be necessary for the induction of each into another immanent reality – the transactional universe of legal recognitions and nonrecognitions – where they are contained within an imaginary dimension of perfect exchange. The containment is temporal, predicated on the proposition that at the moment of its apprehension, which is necessarily the present, that which differentiates the particular object of attention from law’s equivalent has simply ceased to be. The object is created anew, in law, “like a number without any awkward fraction left over.” But the transubstantiation can never quite be complete. There is always an uncontained remnant, the agio or excess, the “awkward fraction left over,” the obstinate remainder that defies the symmetry of its exchange. We know it is there because it expresses itself to us as the object’s past – its revenant once-was. This essay calls this surviving remnant the object’s soul; not just its once-was, but also its living-on. It considers that history is the means by which the soul communicates its living-on. The essay explores three propositions, or ways of thinking, that elaborate on these propositions: of law as a dimension of not-quite-perfect exchange; of objects’ surviving traces as souls; and of history as the means by which those surviving traces live on either with or against (but always separate from) law’s transactional transubstantiations. In a fourth part, which spills over into a concluding fifth, the essay offers a gloss on what may happen when the three propositions combine.

Keywords: Legal History, Historiography, Legal Theory, Materiality, Alchemy

Suggested Citation

Tomlins, Christopher, Why Law's Objects Do Not Disappear: On History as Remainder (April 2, 2016). Forthcoming in Andreas Philippopoulos-Mihalopoulos (editor), Routledge Research Handbook on Law & Theory; UC Berkeley Public Law Research Paper No. 2760641. Available at SSRN: https://ssrn.com/abstract=2760641

Christopher Tomlins (Contact Author)

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

Berkeley, CA 94720-7200
United States

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