This is a preview of subscription content, log in via an institution to check access.
References
A. Alciatus,De Notitia Dignitatem (Paris: Cramoisy, 1651 ed.), 190 [What is an image? A false truth]. The definition is attributed to Epictetus.
The first citation is from Ovid,Metamorphosis, III v. 415 [likeness in flight ... shadow of a reflected image]. That from Alciatus is fromop. cit. at p. 192 [incarnate mind, visibility (image) of time, observer of life]. For an excellent commentary on this point, using Ovid, see P. Legendre,L'Inestimable Objet de la Transmission (Paris: Fayard, 1985), 54–56.
As, for example, in Coke,Reports (London: Rivington, 1777 ed.) at IX. fol A 3a.
See Thomas Wilson,The Arte of Rhetorique (London: Garland, 1553/1982 ed.). The art of memory requires learning to have places (rooms) and to ‘digest images’ in them accordingly (423). He adds later the general scholastic precept that “those things we keep best in our minds which we know by sight and have marked with our eyes — the sight printeth things in a man's memory, as a seal doth print a man's name in wax”. (430) For an account of the Renaissance development of conceptions of image and imaginary, see D. Summers,The Judgment of Sense: Renaissance Naturalism and the Rise of Aesthetics (Cambridge: Cambridge University Press, 1987), 39–40: “The principle of the memorability of the inner visual was extended beyond the art of memory proper to become one of the most basic principles of rhetoric itself, that the first appeal of speech was to the inner eye of the beholder, and that conviction was achieved, or could be achieved, when the matter being argued stood as if real before the inner eye of the listener”.
For general elaboration of this point, see David Freedberg,The Power of Images: Studies in the History and Theory of Response (Chicago: Chicago University Press, 1989). On the philosophical history of images see M. Le Doeuff,The Philosophical Imaginary (Stanford: Stanford University Press, 1989), “now that the notion of thinking in images has come to acquire a degree of cultural respectability it is no longer feasible to go on ignoring the importance of imagery in philosophy”. (2) See also the excellent G. Didi-Huberman,Devant L'Image (Paris: Minuit, 1990), for a powerful account of a psychoanalytic reading of the image, its conditions of possibility and its unconscious labour. See further G. Deleuze,Logic of Sense (London: Athlone, 1990).
The literature discussing theimago is extensive. See particularly, L. Dupont, “The Emperor God's Other Body”, inZone: Fragments for a History of the Human Body, ed. M. Feher (New York Zone Books, Part 3, 1989), 397; also, T. G. Watkin, “Tabula Picta: Images and Icons”,Studia et Documenta Historiae et Iuris 50 (1984), 383. In classical Roman law the image was an exception to the principle ofaccessio, it was an icon and as such was to be understood as a reality in itself, as both sign and referent rather than as substitution for an absent presence: “theimago is not an image consisting of a signifying medium and a signified form. Bothossa andimago were parts of the emperor's body, and in the ceremonies they functioned in similar ways as figures for the whole body” (Dupont, at p. 403). The image was a real presence. The glossatorial revolution in interpretation deprived the image of its reality. See also P. Legendre,Le Desir Politique de Dieu: Etude sur les Montages de l'Etat et du Droit (Paris: Fayard, 1988), 228–40.
Novels 146 [one should not adhere only to the letters of the law]. Coke,Reports, supra n.3, at III E 7b, states the principle asin lectione non verba sed veritas est amanda [in reading it is not the words but the truth that is to be loved].
Thus, for example, F. Hotman,Anti-Tribonian ou discours d'un Grand et Renomme Iurisconsulte de nostre Temps sur l'Estude des Loix, (Paris: Perrier, 1567), 110–111, commenting upon the glossatorial tradition, remarks that “in the following 300 years [since the publication of theCorpus Iuris] such a vast literature grows up in the books that Baldus, at forty seven years of age, comments that he is still an apprentice; even the Judges admit to being dazzled by the authorities and to judging more by chance than by reference to assured and certain law.” For the English tradition and its reception of the text, see M. T. Clanchy,From Memory to Written Record (London: Arnold, 1979), and also P. Goodrich, “Literacy and the Languages of the Early Common Law”,Journal of Law and Society 14 (1987), 422.
Quintilian,Institutio Oratoria, trans. H. Butler (London: Loeb, 1921–22), in particular, emphasises the importance of visual figures grouped under the label ofenergeia orillustratio. The later tradition concurs with that emphasis as, for example, we find in Susenbroto,Epitome Troporum et Grammaticorum Rhetorum, 1563, n.p. at fol G 6 b [Icon, Imago] “est cum vel rerum vel personarum imago exprimitur. Vel est formae cum forma ex quadam similitudine collatio. Vel est oratio demonstrans corporum aut naturarum similitudinem.” In more juristic contexts see: Thomas Farnaby,Index Rhetoricus. Scholis et Institutioni Tenerioiris Aetatis Accomdatus. Cui Adjiciuntur Formulae Oratoriae (London: Robert Allot, 1633), especially 9–14, 59 ff. (onimagines andallegoriae); H. Peacham,The Garden of Eloquence (London: Jackson, 1593), at fol X i a [icon]; G. Puttenham,The Arte of English Poesie. Contrived into Three Books: the first part of poets and poesie, the second of proportion, the third of ornament (London: Field, 1589), at 201 [icon]; R. Sherry,A Treatise on Schemes and Tropes, very profytable for the better understanding of good authors, gathered out of the best Grammarians and Orators (London: Day, 1550), at fol F vi b [Icon andImago].
The visual or heliotropic character of the tradition is well discussed in J. Derrida,Margins of Philosophy (Brighton: Harvester, 1982). A rather more complex discussion can be found in G. Deleuze,Différence et Répétition (Paris: Presses Universitaires de France, 1968). For a discussion of the relation of knowledge to image in the theological tradition, see M. Aston,England's Iconoclasts (Oxford: Oxford University Press, 1988).
Coke,Reports, L iia, defines a record as “a monument or act judicial before a judge ... it hath this sovereign privilege, that it is proved by no other but by itself —monumenta (quae nos Recorda vocamus) sunt vetustatis et veritatis vestigia — a record is perpetual evidence.”
Anon, “Of the Variety and Antiquity of Tombes and Monuments of Persons deceased in Englande” (1598), inA Collection of Curious Discourses written by Eminent Antiquaries upon Several Heads of our English Antiquities, ed. T. Hearne (London: Richardson, 1771), 225.
ibid., “Of the Variety and Antiquity of Tombes and Monuments of Persons deceased in Englande” (1598) in at 224.
Though it may be noted that the legal tradition had early realised the importance of such dissimulation in the maximqui nescit dissimulare nescit regnare, cited by the lawyer Puttenham,supra n.9, at 155 [he who knows how to dissimulate knows how to rule]. The most significant legal figures of speech are thus grouped under the heading of allegory, the figure of false semblance (“we speak of one thing and mean another”).
Thus proving that not all that is pissed upon is flushed away. See Dugdale,Origines Juridicales (London: Newcomb, 1666/1671 ed.), at fol 99a. On the question of why the decision was made in the manner described, some further light can be extracted from the earlier case ofHenry of Naburn v.Walter le Flemyng, Richard of Duffield and others (1316) 74Selden Society, 72, where it was held that the defendants, who arrested the plaintiffs as they returned from Parliament to York, were in contempt of the King and in prejudice of his crown (in regis contemptum et corone regie preiudicium). In a sense well analysed in E. Kantorowicz,The King's Two Bodies (Princeton: Princeton University Press, 1957), any interference with the passage of the King's subjects was an offence against the crown, that is, against the mystical body of the Crown (corpus mysticum) and is to be interpreted as a breach (vi et armis) of his personal peace and will.
For an analysis of presence along these lines, see L. Marin,La Parole Mangée et autres essais theologico-politiques (Paris: Meridiens Klinckseick, 1986), 210–215. See also E. Benveniste,Le Vocabulaire des Institutions Indo-Européennes (Paris: Minuit, 1969).
For commentary on this principle, see P. Legendre,Ecrits Jurisdiques du Moyen Age Occidental (London: Variorum, 1988), ch XI, at p 530. In later usage we may note thatecclesia or Church is precisely that spiritual congregation inaugurated through the collective mass, through the eucharistic displacement of the physical world whereby the communicants are transported to the realm of the spirit. See, for discussion of this point, P. Goodrich,Languages of Law: From Logics of Memory to Nomadic Masks (London: Weidenfeld and Nicolson, 1990), ch 3.
The importance of this hierarchy of the places and forms of inscription of law gains one of its most striking expressions in Sir Henry Spelman,Of the Original of the Four Law Terms of the Year (London: D. Browne, 1614/1723 ed.), 102: “we find among the Saxons, the example and reason why our common law was an unwritten law. They were originally a Grecian colony coming out of Lacedaemon and the territory of Sparta; where Lycurgus ... among other of his decrees ... ordained that for one, that their laws should not be written, because he would have every man to fix them in his memory, and for that purpose made them short and summary, after the manner of maxims”. It is interesting to note further that the continual struggle within the history of the western Church over the status and legitimacy of images revolves around their role as vestiges or marks of God's presence: for the reformers, the image, like writing, served to obstruct memory, to engender forgetfulness of that to which the image referred. See, for example, W. Perkins,A Warning Against Idolatrie of the last times (Cambridge: J. Legat, 1601), “the right way to conceive god, is not to conceive any form; but to conceive in mind his properties and proper effects. So soon as the mind frames unto itself any form of God an idol is set up in the mind.” (107–108). For a legal version of this view, see J. Selden,Table Talk (London: E. Smith, 1589), 23.
Lambard,Archeion or Discourse upon the High Courts of Justice in England (London: Seile, 1591/1635 ed.), 148.
The key reference here is G. Deleuze,Différence et Répétition (Paris: Presses Universitaires de France, 1968), 29: “The mask is the true subject of repetition. Such is the case because the nature of repetition differs from that of representation, because the repeated cannot be represented, but must always be signified, while masking at the same time that which it signifies ... I do not repeat because I repress. I repress because I repeat, I forget because I repeat. I repress because, at first, I cannot live certain things or certain experiences except in the mode of repetition.” For an excellent analysis of the relation between image and repeated act, see A. Lingis,Deathbound Subjectivity (Bloomington: Indiana University Press, 1989), 158f.
SeeWillion v.Berkley, Plowden Reports, 3 Eliz, 177 a. It is thecorpus morale et politicum of the people. For further discussion, see Kantorowicz,supra n.16, at 320–345.
Digest 1.3.2 (Marcian). Pierre Legendre,L'Inestimable Objet de la Transmission (Paris: Fayard, 1985), 139–41, 349–51. In Legendre's admirable analysis, this fragment is to be understood in an immediate and direct way: the law, as the discourse of foundations, of all things divine and human (lex est omnium divinarum et humanarum rerum regina), quite literally institutes subjectivity: “one should not forget that institutions, in their juridical and most violent sense (that ofvitam instituere), touch the most fundamental aspect of human reproduction: differentiation by means of speech (la parole).”
Legendre,Transmission, supra n.26 at 354. The analysis offered by Legendre owes much to the philosophical reworking of Freud by Lacan and specifically to the notion of an unconscious which is structured as a language. See J. Lacan,Ecrits (London: Tavistock, 1977).
Legendre,Transmission,
For an excellent analysis of this relation of writing to idolatry, see A. Jacobson, “The Idolatry of Rules: Writing Law According to Moses, With Reference to Other Jurisprudences”,Cardozo Law Review 11 (1990), 1079. The biblical reference is toExodus, ch. 32.
Hale,The History of the Common Laws of England (Chicago: Chicago University Press, 1656/1971 ed.), 16. For detailed discussion of this relation between text and orality in early common law, see M.T. Clanchy,From Memory to Written Record (London: Arnold, 1979); also P. Goodrich, “Literacy and the Languages of the Early Common Law”,Journal of Law and Society 14 (1987), 422.
On the implications of this etymology see G. Rose,Dialectic of Nihilism: Post-Structuralism and Law (Oxford: Blackwell, 1984), 102–108.
For a more detailed account of the mnemonic role of precedent within the oratorical tradition, see P. Goodrich, “We Orators”,Modern Law Review 53 (1990), 410.
Sir John Doderidge,The English Lawyer (London: More, 1600/1631 ed.), 15–16.
See J.H. Baker, ed.,The Reports of John Spelman (London: Selden Society, 1978), vol. II at 151–161. On the opinions of the commons, see P. Goodrich, “Eating Law” (1991, forthcoming).
William Lambard,Archeion or Discourse upon the High Courts of Justice in England (London: Seile, 1591/1635 ed.), 70–73.
Ibid., at 72.
For various arguments to this effect, see Richard Sherry,supra n.9, especially at fol. Dviib-Fvib [pistis or ‘proves’]; G. Puttenham,supra n.9, at 148–167. Thomas Farnaby,supra n.9, at 40–58.
That inaugural revolution of legal method is the principal object of the historical work of Pierre Legendre, and is best approached through hisEmpire de la Vérité (Paris: Fayard, 1983), andLe Désir Politique de Dieu: Etudes sur les Montages de l'Etat et du Droit (Paris: Fayard, 1988). See also, H.J. Berman,Law and Revolution. The Formation of the Western Legal Tradition (Cambridge Mass.: Harvard University Press, 1983), especially 99ff.
I have spelled out this aspect of common law discourse in a preliminary manner inLanguages of Law, supra n.19, at 140–141. On the legal concept offascinum and the associated theories of magnetism, discussed in theDe Arte Magnetica, see P. Legendre,L'Empire de la Vérité, supra n.38, at 110–113.
F. Hotman,supra n.8, at 120–121, describes the procedure for consultation of the manuscript of theCorpus Iuris in terms of the “original being guarded like a sacred and precious relic, only being very rarely shown accompanied by candles and torches”, in a barred and otherwise unlit room. For descriptions of the common law library, see Sir Edward Coke,Reports, supra n.3, at III at fol L iii a; Sir John Davies,A Discourse on Law and Lawyers (Private Circulation, 1615), 262–267.
As far as I am aware, the only extended contemporary discussion of this theme is to be found in Pierre Legendre,Le Crime de Caporal Lortie: Traite sur le Père (Paris: Fayard, 1989), especially 27–33. For interesting comments on the Greek tradition, see E. Levinas,Totality and Infinity (Pittsburg: Duquesne University Press, 1969), 226ff.
[1990] 1 All E.R. 616. The appeal is from the decision of Hoffmann J. inRe Goodwin [1990] 1 All E.R. 608.
Re Goodwin, op. cit., at 611: Hoffmann J.: “I suggested that, following the procedure commonly used against unidentified sellers of counterfeit merchandise, I might make an order against the respondent as representative of the class of persons who had received the confidential information without the plaintiff's authority ... this was admittedly a doubtful expedient ...”
X Ltd v.Morgan Grampian, at [1990] 1 All E.R. 622h: (Lord Donaldson M.R.): “if any secular relationship is analogous to that between priest and penitent, it is that between lawyer and client. That is sanctioned both expressly and impliedly by Parliament ...”.
Ibid. at 622e-f (emphasis added).
Additional information
Department of Law, University of Lancaster. Versions of this paper have been presented at Cardozo Law School, New York; at the Conference of the International Association for the Semiotics of Law at Oñati, Spain; at the Faculty of Law, Sheffield University; at the Faculty of Law, New York University, and at the Faculty of Law, University of Warwick. My thanks to participants for their comments and suggestions, and particularly to Christine Harrington, John Brigham, Drucilla Cornell, Yifat Hachamovitch and Alan Norrie for detailed readings and criticisms.
Rights and permissions
About this article
Cite this article
Goodrich, P. Specula laws: Image, aesthetic and common law. Law Critique 2, 233–254 (1991). https://doi.org/10.1007/BF01128679
Issue Date:
DOI: https://doi.org/10.1007/BF01128679