Unleashing the Past.

AuthorKreitner, Roy
PositionSymposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

As John Witt and Sarah Gordon tell us in their foreword to Taming the Past, Bob Gordon's lifetime of work offers "a sharp and uncompromising theoretical apparatus." (1) The chapters in the third part of Taming the Past in particular live up to this promise: They point to legal history's potential and lay out a plan of research and, while it might have been difficult to discern in the 1980s, by now we might say that they laid out a history of the future--our future as legal historians.

So where are we now? Is the future these chapters outline still our future, or are we faced with a moment of change, another generational shift that will have to rework the potential of legal history? What kind of sway does Gordon's articulation of that potential hold over us?

As an introduction to that questioning, I'll offer these lines that Gordon might be speaking to frame our endeavor here, now. They come from The Tempest, when Prospero is about to release the play's characters from his spell:

I have bedimmed The noontide sun, called forth the mutinous winds, And 'twixt the green sea and the azured vault Set roaring war; to the dread-rattling thunder Have I given fire and rifted Jove's stout oak With his own bolt: the strong-based promontory Have I made shake, and by the spurs plucked up The pine and cedar; graves at my command Have waked their sleepers, ope'd, and let 'em forth By my so potent art. But this rough magic I here abjure; and when I have required Some heavenly music (which even now I do) To work mine end upon their senses that This airy charm is for, I'll break my staff, Bury it certain fathoms in the earth, And deeper than did ever plummet sound I'll drown my book. (2) As a magician, Prospero has performed the historian's task of bringing the past to life; his potent art has opened graves and wakened the sleeping dead, giving them new voice. But what motivates this magic, and what can we make of the gesture of breaking the spell?

Theorizing Legal History's Potential

It is obviously impossible to do justice to Gordon's theory of history in a few paragraphs, so what follows will be scandalously selective and skewed to what made these articles so powerful and valuable for me. I have a feeling I am not alone, but I cannot be sure of that; at any rate, while it will certainly be personal, I am hoping it will not be too idiosyncratic.

For me, Gordon's theoretical interventions were never about taming the past, but actually about unleashing it. Sometimes, this unleashing seems to be subsumed under what has become something of a magic word: contingency. That makes some sense, when we pit contingency against necessity. But for me, an additional set of images always seemed central: enlivening the imagination, (3) shaking off old habits, (4) unfreezing reality, (5) disrupting tradition, (6) shocking out of complacency or jolting out of resignation, (7) getting unstuck. (8) Looking back now I am prone to believe that some of the attraction to these phrases was their physicality, the way they alluded to throwing off a garment tied too tight. A straightjacket would be overdramatic; loosening a tie, too routine. Perhaps the right image is taking off a corset.

The general point was overwhelmingly Nietzschean: History had to be used, and its role was to undermine complacency or resignation. In a moment, I'll return to the special relevance of this for legal history, but first I will crudely array a few major elements of this amalgam, a...

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