Everything Is Contingent: A Comment on Bob Gordon's 'Taming the Past'.

Author:Parker, Kunal M.
Position:Symposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

In the introduction to Taming the Past, Bob Gordon invokes a well-known passage in Oliver Wendell Holmes's 1897 essay The Path of the Law in which Holmes, likening law to a dragon, argues that history serves either to kill law or to tame it. (1) But how exactly does history do this?

Holmes's was a very specific understanding of history, one that was increasingly gripping the imagination of late nineteenth and early twentieth century Euro-American modernist thinkers and that was sharply different from the foundational and teleological historical models that had hitherto dominated the nineteenth century imagination. All these earlier models--whether the Scottish Enlightenment's feudalism-to-commerce model; the Whiggish model about the progress of liberty; Hegelian, Comtean, or Marxist models; or the models of Henry Maine and Herbert Spencer--had linked past, present and future according to some particular logic. In all these models, history pointed somewhere. By contrast, the Holmesian modernist historical model offered neither meaning nor direction: It served principally to tear down the pretended suprahistorical foundations of phenomena by showing that such phenomena had arisen in historical time. As Holmes showed in The Common Law, (2) modernist history could kill or tame the dragon that was law by showing that law was "merely" historical and, hence, that the pretended suprahistorical foundations of law, whether rationality, morality, logic, or unchanging tradition, were spurious. (3) Once law's foundations were dismantled, ground was cleared. Present and future could be rethought and remade.

In Taming the Past, Gordon strikes a distinctly Holmesian modernist note:

Now that I see all these essays collected together, it occurs to me that in one way or another they almost all make some version of the same point: that the historicized past poses a perpetual threat to the legal rationalizations of the present. Brought back to life, the past unsettles and destabilizes the stories we tell about the law to make us feel comfortable with the way things are. (4) Thus, for Gordon, what he calls "the historicized past" serves to undermine our reassuring accounts about law. This is done by showing that law is (to use Gordon's preferred adjective) "contingent." (5) For Gordon, contingency entails the following: It shows that a particular law (or institution or practice or idea) is the product of a momentary confluence of factors that have come together in historical time; that matters could well have transpired differently at the putative moment of that law's origin; that that law's meanings have changed in and over historical time; and that that law therefore has no necessary hold over us and leaves us free to plot alternative futures. (6)

Thus far, it would appear, history for Gordon serves mainly to tame the dragon of law. But the book's title is Taming the Past. As it turns out, history in Gordon's oeuvre also serves to tame the dragon of the past, to render the past itself contingent. In this regard, the dragon Gordon would tame is not the past in itself, the res gestae of history, but rather the past that presents itself to us in the form of foundational histories. Once again following the path charted by Holmes...

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