The chronology of the legal.

• Author: Melissaris, Emmanuel
• Position: United Kingdom

The most influential legal philosophies--notably legal positivism--tend to draw a sharp epistemological distinction between the concept of time and the concept of law. The author provides a legal pluralist account of law, understanding it to consist in a shared idea of justice and the shared normative experience of participants in a legal discourse. A common assumption by participants of their ability to grasp and control time--what the author terms "chronos"--forms one aspect of their shared experience of the legal. A normative understanding of time is thus fundamental to a normative understanding of law.

Les philosophies du droit les plus influentes, notamment le positivisme juridique, ont tendance a etablir une distinction epistemologique importante entre les concepts de temps et de droit. L'auteur propose une vision du droit propre au pluraliste, concevant le droit comme consistant en une idee partagee de ce qu'est la justice et une experience normative commune a ceux qui participent au discours juridique. Une supposition communement partagee des participants quant a leur capacite a saisir et controler le temps--ce que l'auteur nomme >--reflete un aspect de leur experience commune de ce qu'est le juridique. Une conception normative du droit necessite des lors une conception normative du temps.

Introduction I. The Need for a Richer Understanding of the Law/Time Relationship II. Three Specific Accounts of Law's Temporality A. Time and Law Intertwined but Fragmented B. Ost and the Contrat Temporel C. The Need for a Unifying Theme III. The Conception of Time as Part of the Legal A. The Context: On Shared Normative Experience as Constitutive of the Legal B. Chronos C. A Brief Note on the Temporal Imperialism of State Law Conclusion Introduction: A Methodological Aporia

The philosophical study of time must face up to a methodological aporia from the outset, the very aporia that made St. Augustine famously concede his inability to define time explicitly, although he felt he knew what it was. (1) Just as famously, Wittgenstein explained Augustine's failure to grasp the meaning of time in terms of the use of the wrong language game. Augustine, Wittgenstein tells us, was mistakenly looking for an object the dimensions of which he was trying to define. (2) Similarly, Waismann felt that reference to time as a noun can be rather misleading:

It is true, we can make a person understand the word "time" by producing examples of its use: but what we cannot do is to present a fixed formula comprising as in a magic crystal the whole often so infinitely complicated and elusive meaning of the word. (3) But the task I set for myself in this paper is simpler and more modest than trying to grasp the essence of time. What I shall try to do is examine whether and how time is built in the concept of law. Major legal philosophies tend to avoid discussing the law's temporality explicitly, although they inevitably raise claims concerning the law's historicity. In the first part of this article, I shall argue that those legal philosophies tend to treat the law as ontologically autonomous and belonging exclusively in the realm of practical reasoning, thus making questions of speculative reasoning, such as that of time, external and largely irrelevant in the discussion of the essence of the legal. The few specific theories of law and its connection with time come closer to grasping the law's temporality rather than merely its historicity. I shall argue that, valuable as that approach may be, it remains incomplete to the extent that it does not provide an account of what it is that lends coherence to these manifestations of time in the law.

In the second part of this article, I shall put forward an argument concerning the connection of law with time. First, I shall place that argument in the context of a more general project and argue that the distinctness of the legal should be understood in terms of the tacit commitment of the participants to their shared normative experience, that is, the way they perceive themselves collectively in the world and their ability to transform it through their normative commitments. The perception of time or, more precisely, making sense of the ability to grasp and control time normatively, which I shall term as the chronos of the law, constitutes part of that shared normative experience. Chronos is built in the normative content of the law and is inextricably linked to it. Thus the legal pluralistic extension of my argument will become apparent. If the law and its institutional distinctness are understood in that light, it will be possible to recognize sources of legality outwith and beyond the state or similar political formations that the concept of the law has been consistently identified with by legal theory. We shall also be able to discern the ways in which state law, with the corroboration of centralist legal philosophy, silences and does violence to those other legal orders partly by extending its imperium over alternative ways of perceiving normativity in time.

1. The Need for a Richer Understanding of the Law/Time Relationship

   The law is prima facie fraught with temporal expressions that seem inextricably linked with their normative content. Examples can be drawn from various areas of law and, indeed, various legal systems: imminence in criminal law; the statute of limitations; usurpation over time; sentencing in time units. What exactly is revealed in all of those instances?

   Perhaps under the influence of the Humean thesis from the disjunction of the is and the ought, the major and most influential contemporary legal philosophies, namely legal positivism and theories advocating the necessary connection between law and morality, tend to draw a sharp divide between conceptions of time, and indeed other epistemological assumptions too, and the concept of law. They locate the latter firmly in the realm of practical reasoning and they reserve a place for the former in theoretical, speculative reasoning. As a system of ought statements, the law gives statements of fact their normative meaning but does not depend on them for its existence. When legal norms regulate time, as in the examples I mentioned above, it merely ascribes normative texture to reality, as it is authoritatively described by theoretical, scientific discourses. So according to those theories, the concept of law can be grasped independently of the epistemological assumptions existing in parallel with the normative ones incorporated in the law.

   To be sure, all these theories have something to say about the historicity of the law, that is, how the law exists in time, depending on which historical moment they promote as the relevant one for the emergence of the law. For positivists situated in the Hartian tradition, that instant would be the moment at which the social practice embodied in the Rule of Recognition was consolidated, and for legal rules specifically, the moment of their formal enactment. (4) For epistemic positivism, such as that put forward by Kelsen, the validity--that is, the mode of existence--of legal norms has a historical aspect in the sense that it has a specific duration, which is determined intrasystemically. (5) Natural law theories as well as other legal philosophies that see the law in a continuum with morality do not offer a clear ontological way to distinguish the law from its normative environment. Their concern is to emphasize the necessary connection of law with morality, but in concentrating on this they do not enlighten us as to why it is specific sets of norms and institutions that we call "law" instead of others. While they draw some distinction, albeit a loose one, between "human" or "positive" law on the one hand and "natural" or "divine" law or morality on the other, we are none the wiser as to what the former may be. Thus it is more difficult to infer how exactly they place the law in history. The least that can be said is that legal normativity is not temporally co-extant with the convention that a society may call positive "law", whatever that may be. (6)

   Despite the fact that it is peripheral to their overall project, a useful conclusion can be drawn from this treatment of the law's historicity by major legal philosophies. It appears that both positivistic and substantive legal theories adopt a very specific conception of time. (7) They understand it as an entity observable in an objective way, as an object the ontology of which can be grasped definitively. As far as the form and structure of time are concerned, time seems to be understood in terms of the distinction between past, present, and future. History is the flow of events and facts through these three points in time. (8) This flow is linear and forward-facing. (9) The movement is from the past to the future in the way of the movement of an arrow. What was the future becomes the present and is finally stored in the infinite database of the past. The future, the present, and the past are experienced respectively as a bundle of aspirations, plans or hopes, current experience through our senses and, finally, as memories, (10) It is against this background that the law develops as an historical event.

   More importantly, this conception of time is objectified and incorporated as an assumption in the law. Returning to my previous point, the law emerges as a normative order, which comes from above to regulate the objective world as described by the natural sciences. Thus, the concept of law can be described independently of any epistemological statements. Even when it is grasped with reference to a social practice, as is the case in Hartian jurisprudence, this social practice refers to what the relevant community of people perceive as obligatory and that alone, and we get no account of the conditions that give rise to that practice (I return to this later on in this paper).

   But this still leaves unexplained the numerous instances in...