an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This post is part of a project that seeks to unpack the concept of "wartime," and to illuminate the impact of assumptions about war’s temporality on our thinking about law and war. I began this thread last summer. Here are some additional thoughts about war, time, and law.
"Wartime" is important to American law, but as with other ways of categorizing time, we don’t tend to inquire about it. Wartime is treated as if it were a natural feature of our world. The impact of this way of categorizing time on our thinking goes unexamined.
In scholarship on law and war, time is seen as linear and episodic. There are two different kinds of time: wartime and peacetime. Historical progression consists of moving from one kind of time to another (from wartime to peacetime to wartime, etc.). 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 depend on whether it is wartime or peacetime.
The idea that time is linear is often thought to be a natural and inevitable feature of time. Anthropologist Carol Greenhouse suggests that scholars tend to think of non-linear time as embedded in other cultures. Forms of time that are thought to flow from particular cultural contexts are often referred to as "social time." Social time is thought to be culturally constructed, as compared with linear time that is thought to exist in nature.
But even the linear time we think of as "natural" time has a history, and is understood within a cultural context. Linear time is also social time, Greenhouse argues. "The idea of time that has dominated public life in the West since the thirteenth century...came to Europe with Christianity," she writes. It included two ideas that "had long roots in Jewish and...Christian tradition: first, the origin of time in creation and, second, the end of time in a day of judgment. The linearity of time derives from the geometric connection between these two end points." Modern, secular understandings of time are often hazy about the nature of origins and endpoint, but retain this linearity. Once time is thought of as a progression from one point to another, other assumptions follow. "To speak of ‘linear time’ is to refer to the image of time as an irreversible progression of moments, yielding ordinal conceptions of past, present, and future as well as duration."
Emile Durkheim noted the difficulty in seeing the cultural nature of time. "We cannot conceive of time," he wrote, "except on condition of distinguishing its different moments." If we "try to represent what the notion of time would be without the processes by which we divide it, measure it or express it with objective signs, a time which is not a succession of years, months, weeks, days and hours! This is something nearly unthinkable." Yet, for Durkheim, Greenhouse explains, these "categories of thought are born in social, or collective, experience."
If linear time, like cyclical time, is social time, it does not follow that particular constructions of time have an absolute hold in discreet cultures. Instead, Greenhouse argues, competing conceptions of time overlap and compete for ascendancy. Initially, in the West, a linear understanding of time competed with indigenous European ideas that time was a pendulum, moving between binary oppositions (day/night, summer/winter). "If linear time dominates public life in the West, then, it is because its primary efficacy is in the construction and management of dominant social institutions, not because it is the only ‘kind’ of time that is culturally available. The meanings of linear time are inseparable from its cultural history of use." The expansion of "clock time" and the introduction of the telegraph have been thought to introduce simultaneity. Benedict Anderson argues that once time was viewed as uniform and governed by the clock, time helped knit together a common sense of national identity. As Thomas M. Allen describes Anderson’s intervention, clock time "created a shared ‘simultaneity’ of experience that linked individuals together in an ‘imagined community’ moving together through time." The clock’s rationality drove other conceptions of time.
A newer literature on the history of time, however, comports with Greenhouse’s argument that the experience of time is heterogeneous. In new scholarship, as Allen describes it, social historians "have demonstrated empirically that changes in time consciousness cannot be explained as a story of progress from a more primitive to a more rational organization of time." This literature shows that
the homogeneity of time that supposedly results from the centrality of such instruments as clocks, watches, and calendars to modern life is only possible if technologies produce time by themselves....Once we begin to ask what people did with technologies of time, and why they wanted such technologies, the homogeneity of modern national time begins to shatter into myriad fragments of heterogeneous, local, and transient temporal cultures.
Heterogeneous temporalities do not drive people apart, Allen argues, but instead "are themselves the threads out of which the fabric of national belonging has long been woven."
The heterogeneity of time helps us to see that, in Allen’s words, time is not "a transhistorical phenomenon, an aspect of nature or product of technology existing outside of human society," but is "an historical artifact produced by human beings acting within specific historical circumstances." Allen argues for new scholarship on the relationship between time and the nation that "attend[s] to the recursive and dynamic interactions between these two terms."
Similarly, the relationship between war and time is complex. A more satisfactory understanding of war, time, and law must bring a cultural history of time into the history of law and war. This is the aim of my new project.
The only time of concern to the law is billable hours. "Wartime" and "peacetime" have nothing to do with time, but whether the country is in a state of emergency which enhances executive power. It should be noted that the state of emergency may be related to natural disasters (hurricanes, epidemics) as well as manmade ones. Also there have been economic emergencies, such as the one we are now in, in which price controls or force majeur interventions in the market are authorized. But the important thing about states of emergency are the enhancement of executive powers. It is for this reason that the Korean War state of emergency was maintained so long; not until the end of trust in the executive that accompanied the ending of the Vietnam War was the Korean state of emergency lifted. And it was this enhanced power that the Cheney-Bush administration sought to reestablish even before the events of 9/11 brought the justifying emergency.
I've added a link to my first post on this, which is largely an intro and list of useful readings. More to come as I work things out in the paper I'm writing, though it may be a while between posts on this. I'll have an SSRN paper at some point.
Needless to say, I disagree with r.friedman., although I share his/her interest in the conditions for expansion of executive power. I have tentative plans for a panel on time at a history meeting with other historians doing critical work on war and its impact. Another paper would be on "emergency" as a form of time.
I would reframe Bart's question this way: since the experience of time is heterogeneous (see post), what role does the state play in constructions of time, and how do nations compare on that question? This is a great comparative history question. My focus in on the U.S., and I will have more to say on the state's role in framing American "wartimes." Works on the history of time draw upon world history. But as to a transnational comparison of state constructions of time, I would be most interested to know of other work.
Mary, if you're willing to entertain such things, you might consider looking at the Inca state (in particular, the ceque system) to see how notions of time and space--both linear and cyclical--intersected in the political project. To get started, there's a fairly accessible article by Tom Zuidema--a great guy to talk with, by the way--available here.
Thank you to PMS Chicago. From the download, I can't tell where the essay appeared (and so what the citation would be). If you have that, I would be greatful for it. Many thanks for the reference.
For those interested, on time and the state in literature on the U.S., I've found Thomas Allen's new book, A Republic in Time: Temporality and Social Imagination in Nineteenth Century America, linked to in the post, to be of great interest.
Some of the satellite astronomy news and other recent terrestrial observatory reports, always include a puzzling moment concerning what precisely it could be that provides ever closer glimpses at the dawn of the universe when new technologies enable some distant galactic event to come into focus.
Out of the celestial, and looking at earth contemporary a moment, reading the article posted also produced an image of the reported seagoing prisons a nation has utilized in strife for the past six years in a country far from the US; similarly, the experiments in sensory deprivation utilized in interrogation have an aspect of abstraction.
In all, time as a factor in shaping history seems worthwhile.
Also I would add, extrinsically conceptualizing a moment with known historical variables, technology has influenced outcomes, if one disregards the development of unique civilizations. Sometimes new genetic science produces the same impression, that there are only atoms, cells, organizations; and there is a way to match the patterns from various epochs.
Ah, Mourad -- Do I contradict myself? Sometimes the law appears as solely a power game, sometimes it appears as a platonic ideal, even approaching justice. Sometimes it appears as a business, sometimes as an intellectual endeavor. Sometimes it appears as something with which God has blessed America, sometimes as something to which She has damned us. Sometimes its practitioners are noble, sometimes they are sleazeballs. No, I do not contradict myself, I express the contradictions of the law.
I too am looking forward to reading more about this project. I have found Greenhouse's work particularly valuable for my own work, which looks at the links between notions of community and notions of time, particularly how time concepts are used in processions of social inclusion/exclusion. Greenhouse's discussion of time systems as 'methods of managing difference' is particularly interesting in this regard and could also be relevant to the question of wartime - particularly how might notions of time be used to stifle disagreement within the national community - for examples sentiments suggesting that now (i.e. wartime) is not the right time to be critical, we have to pull together and leave questions to the future (i.e. peacetime). Her suggestion that shifts in time concepts are used to help legitimise new state structures is also interesting and might be of relevance.