The Cabinet of Imaginary Laws

Peter Goodrich, Thanos Zartaloudis, Peter Goodrich, Thanos Zartaloudis

• Editorial: Routledge
• Año: 2021
• ISBN:
  9781000396904
• Edición: 1
• Categoría: Droit
• Categoría: Théorie et pratique du droit

Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Progressive legal and political thinking has for long lacked a positive, let alone a bold imaginary project, an account of what improved institutions and an ameliorated environment would look like. And where better to start than with the non-laws or imaginary legislations of a realm yet to come.

The Cabinet of Imaginary Laws is a collection of fictive contributions to the theme of conceiving imaginary laws in the vivid vein of jurisliterary invention. Disparate in style and diverse in genres of writing and performative expression, the celebrated and unknown, venerable and youthful authors write new laws. Thirty-five dissolute scholars, impecunious authors and dyspeptic artists from a variety of fields including law, film, science, history, philosophy, political science, aesthetics, architecture and the classics become, for a brief and inspiring instance, legislators of impossible norms. The collection provides an extra-ordinary range of inspired imaginings of other laws. This momentary community of radial thought conceives of a wild variety of novel critical perspectives. The contributions aim to inspire reflection on the role of imagination in the study and writing of law. Verse, collage, artworks, short stories, harangues, lists, and other pleas, reports and pronouncements revivify the sense of law as the vehicle of poetic justice and as an art that instructs and constructs life.

Aimed at an intellectual audience disgruntled with the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system.

1

The imaginary origins of the common law

Piyel Haldar

As the most universal, the most objectively exhibited element given to us, the earth itself is what furnishes the first matter of every sensible object.

Jacques Derrida¹

1 Jacques Derrida, Introduction to Edmund Husserl’s Origins of Geometry transl. John P. Leavey Jr (London: University Nebraska Press, 1989), p. 81.

These rocks, these bones, these fossil ferns and shells,

Shall yet … reveal

The secrets of the book of earth to man.

Alfred Noyes²

2 Alfred Noyes, The Book of the Earth; the Torch Bearers II (New York: Frederick A. Stokes 1925), p. 4.

I.

The building and furnishing of an imaginary cabinet of laws, with which this volume is concerned, might well produce suggestive novelties and satirical points. It might well discover holes in legal discourse through which legal rationality disappears. It might provide a heuristic that enables us to solve particular knots in legal thinking; or, it might simply give the semblance of solid form to an orthodox sense of legality (perhaps as an escape from the delirium that attaches to our wilder imaginations). The story that follows, however, does not posit a made-up, fantastic law. Rather, it re-imagines another history of common law as one that emerges from the deep layers of the earth.

The story was initially told by Alfred Watkins who developed his theory of ley lines from a loose and suggestive set of evidence. His accounts are well known. They have been variously mythologised and given iconic status among new-age mystics, hobbyists and psychogeographers. For them, ley lines expose the earth’s inexorable pulsations and motor energies that (apparently) were once known to a remote ancestry. Buried within his books, however, is a resourceful account of law’s beginnings that seems to imagine the very jurisdiction of the common law emerging not from the mists of time immemorial but by permission of the earth itself. The place of law has largely been clouded over by the various communities of ley hunters (hardly surprising given the counter-cultural bent of these communities). Similarly, serious legal scholarship has ignored the thematic for slightly different reasons (hardly surprising given the square cultural bent of common lawyers). A volume such as this gives opportunity to pursue Watkins’s imaginary claims in order to throw some light on the beginnings of the common law.

Watkins poses these beginnings as a question of geology rather than temporality and, in doing so, he re-materialises law’s relations to the material strata of the earth itself. Imaginary it might be, but so are all speculations about foundations and, in its obedience to the drama of the earth, it inadvertently succeeds in doing something that legal historians have failed to do. When all is said and done, the theory of ley lines reminds us that there exists a formal connection between the institutions of law and what lies below the land itself. The pastoral tradition, to which common law imagines it belongs, originates from what geology permits. Watkins’s account, it might be stressed, is not therefore a theory of natural law. Law is not nature waiting to be discovered by the hunter of forms. What emerges does so from the way in which geology shapes the terrain, from alluvial erosions, from Silurian and Devonian shifts, from the hard matter that lies below the surface of nature. And, the earth, as the philosopher Edmund Husserl reminds us, is always imaginary insofar as it is beyond comprehension, always beneath the sandal, never fully visible and always hidden from the hunter of forms.³

3 Edmund Husserl, ‘Foundational Investigations of the Phenomenological Origin of the Spatiality of Nature” trans. F. Kersten in Edmund Husserl, Shorter Works ed. P. McCormick and F. A. Elliston (Notre Dame, Indiana: Notre Dame Press, 1991), at pp. 222–233; and Edmund Husserl, Crisis of European Sciences and Transcendental Philosophy trans D. Carr (Evanston: Northwestern University Press, 1970).

II.

I will take up my slender reed and practise the music of the countryside

Virgil⁴

4 Virgil, ‘The Song of Silenus’ Eclogues, (London, Harmondsworth: Penguin, 1953), at p. 53.

Few can claim to have had an epiphany during the height of an English summer while wearing a 14-pocket Harris Tweed suit lined with grey flannel. Fewer still, can claim it while pursuing their avocations in the Herefordshire countryside. But then the revelations of forgotten, ill-remembered or indeed, non-existent, jurisdictions can strike wherever, whenever and whoever regardless of their sartorial eccentricities.

At the time of his epiphany, Watkins was already an established photographer, an inventor of some fame and author of, inter alia, A Survey of Pigeon Homes in Herefordshire.⁵ On June 30, 1920, driving his Wolseley Stellite through the hamlet of Blackwardine, ten miles north of Hereford, he stopped to visit the remains of a Roman camp. Taking in the view, he noticed that a number of significant ancient landmarks (tumps, megaliths, churches, crosses) were connected to each other by straight and uninterrupted routes (50 or 60 miles in length).⁶ Consulting his Ordinance Survey map proved his theory. Straight paths, “natural alignments”, ran through the “same class of objects” like electric cables running “a chain of fairy lights [...] laid out in much the same way that a marksman gets the back and fore sights of his rifle in line with his subject.”⁷ His vision was, by the standards of other more celebrated epiphanies, prosaic, simple and supported by, what he imagined to be, hard fact and brute observation. He had discovered … paths. Bear in mind that these were not just any old paths, not even any old medieval paths. These were straight paths that must have been laid before the Roman invasion. He surmised that these paths could be dated back to the Neolithic era and provided evidence of a complete pre-civilised navigational and traffic system consisting of sighting points on elevated ground (mounds, tumps, twts, knobs, cairns, etc.), sighting lines (alignments, paths) and secondary sighting points situated along these paths (stone crosses, trees, sacred wells, marking stones).

5 I’ll admit with bare reluctance that Watkins’s survey of pigeon homes is fascinating in tracing what was then the fast-disappearing architectural style of pigeon homes to the Norman columbarium. His survey might be read as an attempt to join the bucolic to the funerary, the avian to the archival. See Alfred Watkins (1891) ‘Pigeon Houses in Herefordshire and Gower’, Archaeological Journal, 48:1, 29–44.

6 Alfred Watkins, Early British Trackways; Moats, Mounds, Camps and Sites (Hereford: The Watkins Meter Co.; London: Simpkin, Marshall and Co., Ltd., 1922), p. 8. Early British Trackways is based on a lecture given in September 1921 to the Woolhope Naturalists Field Club in Hereford. The first ley identified by Watkins was of the straight line running from Croft Ambury over hill points, through Blackwardine and onward through to Stretton Grandison.

7 Alfred Watkins, op. cit. 6, at p. 8.

Watkins claimed that at the time of epiphany his mind was clear of theories, his minstrel harp not yet tuned to the task of theory.⁸ Only then, little by little, could the innocent appearance of countryside turn to any semblance of apparition strengthening eventually into the associative network of ley lines that would “amaze” him and establish his fame beyond the pigeon fanciers of Herefordshire. A “flood of ancestral memory”, a “rush of revelations”, came to Watkins because, empty of mind, he knew how to look. He could break the horizon and see beneath and beyond the picturesque. An analogy seems obvious. Watkins, the photographer-magus living outside the system of the legal flock, had begun mechanically to develop a latent image. In so doing he brought to form the pattern of scars in the countryside. The surviving manifestations of an older social system where morphemes had always lain dormant in plain sight, intestinal trails rotting away beneath our feet.

8 As Watkins put it: “I knew nothing on June 30 of what I now communicate, and had no theories”, op. cit. 6, at p. 6.

As is so often the case in our lives, the sight of one small line fed the desire to see more. “Once started” he states excitedly, “I found no halt in the sequence of new facts.”⁹ Oblivious to all but his lust for the rectilinear, Watkins saw lines crosscutting the whole of the English countryside. Using the sites of ancient monuments as “practical sighting points” the linear connections between beacons and points could be observed throughout the countryside. Topography had given way to the chiasma of geometry; paths had given way to pathology. The derriere-garde of Herefordian life had exposed a modernist geometry printed upon the country, transmitted from point to point.¹⁰ This was geometry from which to reflect on a fantasy of an aboriginal jurisdiction and to extract a sense of enchantment with the history of the English countryside and what he terms, “the genio terrae Britannicae.”¹¹

9 ibid., at p. 10.

10 Epiphanies are not exempt from context and some might be of relevance. There seems to be some coincidence of pattern between the system of ley lines and the self-enfolding trench system of the First World War. Moreover, Britain was in the grip of a peculiar post-war iteration of pastoralism that was given wide cultural expression in the uncanny landscape portraits of Paul Nash or the abstractions of Ceri Richards, in the poetry of David Jones or in the music of Elgar, Vaughan Williams, Arnold Bax and Arthur Bliss. British modernism might be regarded as an attempt to address what the poet David Jones (roughly contemporaneous to Watkins, and who lived in the Ewyas valley neighbouring Blackwardine) called “the break”. For Jones, the technicity and utility of modern life dislodges man from the density of connections to ancient forms of life. But since man is homo faber, poetry and imagination are ways of repairing the road. See David Jones, In Parenthesis (London: Faber and Faber, 1955).

11 Alfred Watkins The Old Straight Track (London: Abacus, 1970) at p. v.

From the tenebrous melancholy of the Hereford countryside, Watkins may well have held a desire to map a nationalist identity for England built on more open ground, before primitivism had been warped by civilisation and well before landlords, enclosures and market protectionism. Indeed, these straight leys provided evidence of a social system that existed prior to the civilising machinery of Roman conquest, prior to the servitutes of the straight Roman roads.¹² In his Harris Tweed suit with 14 pockets (which, apparently, he wore throughout the year), he envisaged England before any Roman invasion as a paradise of journeymen, knappers and drovers all plying these straight paths, furthering what amounted to an ideology of free trade. In the words of George Gomme, whose work on primitive folk-moots Watkins refers, this was the evidence that “cleared the ground of the theory of the exclusive Roman origin of English history.”¹³

12 As Watkins puts it: “During a long period, the limits of which remain to be discovered, but apparently from the Neolithic (later flint) age on past the Roman occupation into a period of decay, all trackways were in straight lines marked out by experts on a sighting system.” op. cit. 6, a...