Friday, July 11, 2008

Toward a critical analysis of "time" in legal history

Mary L. Dudziak

An understanding of "time" is a basic feature structuring our understanding of American legal history. But time’s role is assumed and not examined, as if it is a natural and essential phenomenon.
One of my summer projects, building on my work this year at the Institute for Advanced Study, is to work on a critical analysis of time in legal history. Understanding the role and nature of time can help with something more specific: the impact of our understanding of war’s temporality on American law, or the way "wartime" and "peacetime" are understood. Ultimately, this may help with a problem in the contemporary context (is this a "wartime" and how does that matter to law?). But my principal objective as a historian is to draw upon a critical analysis of time to inform an understanding of the course of law, politics and democracy in the 20th century United States.
In the scholarship on law and war, time is seen as episodic. It is sometimes seen as linear and progressive, but the most common feature is that time is episodic. There are two different kinds of time: wartime and peacetime. Historical progression consists of moving from one kind of time to another. Law is thought to vary depending on what time it is. The relationship between citizen and state, the scope of rights, the extent of government power are thought to depend on whether it is wartime or peacetime.
A central metaphor is the swinging pendulum – swinging from strong protection of rights and weaker government power to weaker protection of rights and stronger government power. Moving from one time zone to the next is thought to cause the pendulum to begin swinging in a new direction.
This conceptualization is embedded in scholarship in law and legal history; it is written into judicial opinions, it is part of popular culture. But this understanding of time is at odds with the experience of war in the 20th century. The experience of war bleeds across time zones. The problem of time, in essence, clouds an understanding of the problem of law and war.

Time has been an important topic of study in many fields, but historians, Lynn Hunt recently argued, have paid little attention to it. "Like everyone else," she writes, "historians assume that time exists, yet despite its obvious importance to historical writing – what is history but the account of how things change over time? – writers of history do not often inquire into the meaning of time itself." One of the difficulties in talking about time is that the words we use to describe it seem to presuppose an understanding of time. Hunt continues: "Time feels like an essential and defining feature of human life, yet when pressed to define it, we inevitably fall back upon duration, change, and ultimately, the tenses of our languages, past, present, and future."
Time has been central to other fields, especially physics, philosophy, and anthropology. Within fields, ideas about time have been highly contested. "Temporality enters our conceptual framework both as a descriptive component of our immediate experience and as a component of our theoretical description of the world," writes Lawrence Sklar.
My objective today is simply to put an analysis of time on the agenda. More will follow later in the summer. For those interesting in thinking about time, places to begin include Lynn Hunt’s new book Measuring Time, Making History; Carol Greenhouse, A Moment’s Notice: Time Politics Across Cultures; Stephen Kern, The Culture of Time and Space; and Reinhart Koselleck, The Practice of Conceptual History: Timing History, Spacing Concepts.


Time is critical to constitutional theory as well. Originalism (In the Scalia not Balkin sense) requires seeing a "nation" as existing over time in a way that is more important than the time limits of individual human lives. I know of two works dealing centrally with this problem and reaching very disparate conclusions: Jeb Rubenfeld, Freedom and Time (2001), and Malla Pollack, Dampening the Illegitimacy of the US Government, 42 Idaho L. Rev. 123 (2005).

Originalism (In the Scalia not Balkin sense) requires seeing a "nation" as existing over time in a way that is more important than the time limits of individual human lives.

I obviously haven't read your article, but this strikes me as odd. To me, Scalia's originalism sees the nation as frozen at a particular moment in time. Kind of like a vampire.

I think Mark and I agree, but are using words differently. Scalia sees the USA as an eternal entity whose time is the only "real" one. Like the Deity, the USA "is, was, and ever will be" the same. The nature of the essential USA is "frozen", but it does exist now -- or Scalia would not have Supreme Court from which to issue decrees.

What is time, and what is "permanent"? I am wondering what people with legal knowledge have to say about making laws "permanent"--such as permanent tax cuts.

I think Mark and I agree, but are using words differently. Scalia sees the USA as an eternal entity whose time is the only "real" one. Like the Deity, the USA "is, was, and ever will be" the same. The nature of the essential USA is "frozen", but it does exist now -- or Scalia would not have Supreme Court from which to issue decrees.

Got it. Yes, I think we do agree.

I'm not a historian, but don't historians have debates about periodization all the time? Oftentimes, as you note, the periods are defined by wars (e.g., the Inter-war Period in Europe), and other areas may themselves constitute wars (World War I, WWII, the Civil War, etc.) but other are defined without reference to wart (the Jacksonian era, the Renaissance). Such a debate is pretty clearly about time, in a sense.

For Andrew:

Yes periodization is important to historians and is a way that temporality is engaged. But most debates about periodization start with an assumption that time itself is a natural feature with an essential nature. The challenge is how to divide linear components up into the right segments. But the way we understand time (its linearity and supposed universality) is historically contingent and culturally constructed.

For example, Carol Greenhouse puts aside arguments about time in science (e.g. Einstein on relativity), and focuses in her book on what she calls "social time": "the ways people talk about and use representations of time in social life, ideas that develop independently of whatever 'real time' might be." (p. 1)

Whether a more deeply critical understanding of time is needed for understanding the way the concept of "wartime" affects our analysis of law and war in history -- or whether what's needed is a more complicated rendering of periodization -- is something I'm still trying to figure out. Acknowleging that time does not have an essential character, and that there are different ways of representing it culturally, helps us to see that time can do important cultural work. For this reason, I think going beyond an analysis of periodization is important.

"Like the Deity, the USA "is, was, and ever will be" the same."

So, where's Article V come into this?

Originalists think the Constitution remains unchanged except when it's changed. They merely demand that it be changed via the formal process the Constitution itself calls for, rather than informally.

I like this, it keeps the courts' "meaning" of the Constitution in synch with what the text actually says, and requires people who want changes to write them out, defend them, and win widespread public approval for them.

This is a very interesting project. Do you have anything posted on this (e.g., at SSRN)? The concept of temporality, as you say, is central to our understanding of the 'war on terror' and the scope of executive power in a time of crisis. For example, I've long been intrigued by Justice Davis' language of 'before and after' in his opinion in Ex parte Milligan. Also, the very notion of a 'state of exception' is informed by undertheorized temporal assumptions, with the exception marking a temporal space between the before and after of wartime (or other) emergencies.

Bill, thanks for your comment. I agree with your point about temporality and states of exception. And thanks especially for pointing me to the language in Justice Davis' opinion. I will post an essay on this on SSRN as soon as it's ready -- hopefully early fall -- and I'll have an article to circulate sometime during the next year. Ultimately this will result in a book on law and war in the 20th century U.S. The starting point of the book will be an effort to undo our assumptions about wartime's temporality, arguing that our conception of time interferes with our ability to see war's persistent impact on American democracy.

The idea that there are two different kinds of historical time: wartime and peacetime, becomes quite interesting when compared to the period since WW II.

Because of the cold War, this period has been viewed as one of wartime, and the conservatives have adapted their political offerings to that view. That would be the basis for the anti-Communism that elected Nixon and which he thought justified his trashing of the Constitution, for example.

It can also be seen in the desperate search by conservatives to find a new enemy to replace Communism, but they are finding it difficult to find a political ideology that presents an existential danger to the American nation. That's why the actions of a few bandits, crazies and terrorists are exaggerated into some strange idea called Islamo-Fascism.

The idea of the Unitary Executive is justified by the President as Commander in Chief, meaning wartime time. It appears that Cheney has specifically manipulated events to justify that the wartime view of time so that he can recreate the Presidency as a monarch (an earlier form of wartime leader.) Did Cheney really anticipate a terrorist attack on the United States to create his preferred wartime Presidency? Bush, of course, would never have had to know what was going on if he even cared. He certainly had no desire to control the operations of government. He attempted to delegate that drudgery. If that's the case, it is reasonable to assume that the unpredictable wild success of 9/11 was far beyond what they expected. But it certainly made it unnecessary to continue demonizing China as they were previously attempting.

Perhaps a clear understanding of the nature of time in the historical and legal sense will put this idiocy to rest by making it an ineffective form of political propaganda.


As a student of the I Ching, (Chinese Book of changes)I would strongly suggest that nothing is permanent. It only that some changes are slower than others.


Your project sounds fascinating. I look forward to hearing more.

There are significant discussions in the history of international law [specifically just war theory for the most part beginning in the late middle ages] about what it means to be in a “state of war” that center on trying to determine whether the political organization (not always called “state”) is by nature always at war, or is pacifist and either 1) enters/leaves the condition (state) of being at war, or 2) is never in a condition (state) of war (as mutual belligerency), rather from time to time commits an act of war perhaps as law enforcement, e.g. It also seems there are many definitional issues in the problem you address. I am thinking, e.g., of Clausewitz’s “war is politics by other means,” and otherwise about the murky relationships between international law and international relations, and between law and science (esp. regarding posititivism); and about the widely misunderstood "just war theory."

"Wartime" implies that the state of war exists.
That requires a definition of war.
Are these wars?
Korea Police Action
Cold War
Vietnam War
War on Terror
Crypts vs. Bloods

Wittgenstein or Proust may be useful. Very interesting stuff.

I organized a conference once on The Need for Speed in International Commercial Arbitration (it is the Liber Amirocum Michel Gaudet published by the ICC) and Me. Samir Saleh made a wonderful presentation about different notions of time. He pointed out the idea of the watch as ornamental in the East as opposed to the watch as a utilitarian tool in the West as an example of the relationship to time.

I think I see the argument, which is fascinating, but my initial reaction was that the entire notion that historians have neglected different forms of time, or treated it as a kind of Euclidean grid, is dubious. (I look forward to reading Hunt's new book, but her previous work on revolutionary time is a case in point.) There is the (famous?) tripartite breakdown of modes of time in Braudel's trilogy. For that matter, there is Lewis Mumford's analysis of the rise of clock temporality in Technics and Civilization. Perhaps neither are the hippest of references.

Professor Duziak, you seem to be talking about time as explanation and time as it is experienced, and then maybe time as it is experienced as an explanation (or justification) -- "it's because this is war time." As an explanation, there is some interesting work in historical political science. Stephen Skowronek talks a lot about "political time" in his work on the presidency, which seems to potentially parallel what you are talking about.

Don't forget Jacque Le Goff on merchant time vs. clerical time:

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