© The Author 2013. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected]
The Political Theology of
Private Law
Peter Goodrich*
The political theology of law has historically been treated as a facet of public law. The character angelicus of the sovereign and the mystic body of the realm bespeak the dual character of
the polity rather than of the person. This paper argues that these public facets of legality are
but a secondary effect of a private ‘oeconomy’, of the ghostly powers that invisibly govern the
regimen animarum, the rule of the soul.
honor omnes tangit1
The distinction between public and private law tends to be referred to Roman law. The
sources are well known and accounted, and the citation is usually to the Digest and
to Ulpian, who distinguishes the categories in terms of those things that look to the
state and those that, by contrast, concern the relation between citizens. This apparent
root is not unhelpful but it is only a small part of the story and if treated as sufficient
is philologically and juridically misleading. This is obvious if one considers that the
definition of public law—quod ad statum rei Romanae spectat—immediately goes on to
specify that the scope of the public covers religious affairs, the priesthood, and the
sacred quality of anything that concerns the collective interest, such as, for example,
the walls of the city.2 Nor are private law obligations free of this religious provenance,
the Digest immediately pointing out, citing Pomponius, that the paramount duty of
reverence and obedience to the parents and fatherland, private and then public, and
so distinct though these seem, are at root both religious obligations.
The Stoics termed the two aspects of law two figures of a doctrine that devolved
from an understanding of all things, knowledge divine and human—hoc est orbem
doctrinae.3 While lawyers were not themselves encyclopedists, they were expressly to
be learned in both the ancient modes of jurisprudence: utriusque iuris prisci prudentes
*
1
2
3
Professor of Law and Director of the Program in Law and Humanities, Cardozo School of Law, New York.
Email: [email protected]
Barthelemy Chasseneuz, Catalogus Gloriae Mundi (1572), at fol. A(1v) col. 2 (“honor touches all”).
Ulpian, Digest 1.1.2. For discussion, see Pierre Legendre, Les enfants du texte. Étude sur la fonction parentale des
états [Children of the Text. A Study of Parental Function of the State] 382–384 (1992), and Alain Supiot,
The public-private relation in the context of today’s refeudalization, 11 Int’l J. Const. L. (I•CON) 129–145 (2012).
I am using the intriguing gloss of 1610 by Johannes Borcholten, In Quatuor institutionem iuris civilis,
commentarii 8 (Geneva, 1610).
I•CON (2013), Vol. 11 No. 1, 146–161doi:10.1093/icon/mos039
The Political Theology of Private Law
147
periti errant.4 Both public and private law belong within a common genealogy, in which
the difference between one and the other is as much numerical, between the many
and the singular, as it is qualitative, and distinguishes the outward and the interior,
iconomus and oeconomus in the classical texts. The legal emblematists were thus fond of
representing the two faces of law as the dual aspects of the divinity Janus. Legality in
both its facets devolves in origin, from the beginning, from the divinity and is expressly,
in its deepest, let us say longest inherited forms, a ceremonial enterprise, ad gratiam
and in expression of the greater glory that it reflects. The common lawyers were in
no way immune from this mystery and invisibility of the source. The dual aspects of
common law gain precisely such a figurative expression in John Selden who indeed
titles his history of common law, Jani Anglorum, the two faces of English law and offers
some version of the Latin maxim haec facies Populum spectat at illa Larem as the motto
for the treatise. One face, in the vernacular, looks to the populace and the other to the
household gods, to what Selden elsewhere terms “Oeconomique rule.”5 The face that
looks back, to the image and to the past, is in many emblems darker and portrayed as
in shadow, while the face looking forward, to the populace and to the future, is more
diurnal and lighter. For all the minor variations in depiction, however, the figure of a
two-faced divinity watching over the dual visages of the realm allows me to introduce
my thesis. Briefly put, the distinction between public and private derives from the early
modern political theology of government, from the distinction between sovereignty
and rule, and specifically from the doctrine of oeconomique rule that Giorgio Agamben
has worked tirelessly to recover in the latter volumes of his multi-part Homo sacer.6
My example will be by way of analogy with the concept of the intimate public
sphere, as Lauren Berlant has coined it, meaning the sphere of the personal archive,
of the affectively interpersonal within the institution, of the meeting of desire and
duty, private and public, in the supposed haven of volitional obligations and freedom
of contract.7 If all aspects of intimate life are publicly mediated, if the Blackberry and
the iPhone are as at home in the bedroom as they are in the boardroom, then it probably makes no great sense to maintain the notion, modernist and erroneous as it now
seems, of a separation, an inexorable divide, be it of good taste or of proper manners,
between the responsibilities of the one and the freedoms of the other. My concern is to
address the norms and the passage between the spheres, the disciplinary comingling
and conceptual confusion that accompanies the trauma of this transmission of a virtually augmented and vividly mediated life. And then, when it comes to law, the zone
of repetitions, I will argue that it is when lawyers face novel situations, internet and
4
5
6
7
Id. at 8.
John Selden, Jani Anglorum facies altera np. title page (1610). For Selden’s discussion of oeconomique rule,
see John Selden, Titles of Honor 2 (1614).
See specifically, Giorgio Agamben, The Kingdom and the Glory. For a Theological Genealogy of Economy and
Government (Homo Sacer II.2) (2011); and Giorgio Agamben, Opus Dei. Archéologie de l’office (Homo Sacer
II.5) [Opus Dei: An Archeology of Office] (2012).
Lauren Berlant & Michael Warner, Sex in Public, 24 Critical Inquiry 547 (1998); see also Lauren Berlant,
The Queen of America Goes to Washington City ch. 1 (1997).
148
I•CON 11 (2013), 146–161
cyberspace, augmented life for example, that we are most likely to see, to glimpse more
like, the structural trajectories and foundational suppositions of legal doctrine.
1. The Janus face of law
The reason that the “backface” of Janus is often somewhat hidden, an umbrageous
effigy, a tenebrous mask, relates as much as anything else to the sense that the
oeconomique, the realm of domestic disposition, is less visible than the public realm
of iconomus and the more recognizable religious and political signs that are diversely
posted so as to bind the spaces of the public sphere. There is a certain irony or, better,
paradox to this in that the domestic realm is that of images, of the classical ius imaginum whereby nobility were entitled to live on through their images, their death masks,
often portrayed in figures of Janus by a backface that looks at an image, a mask, while
the forward looking face is addressed to a key, clavis regnum, an opaque and esoteric
indicator of the secrets of the government and the obscurities of power (see Figure 1).8
The politics of the public sphere are thus visible but hieroglyphic, whereas the politics of the private realm are invisible, at least cast in shadows, but when seen are
much more transparent, the symbolic investments and figurative role of the parents,
single and several, being the more obvious, because quieter and often more insidious
inheritance.
If the ceremonial and sacerdotal, the higher law, is to be traced in its obvious forms
in the realm of private law, then the beginning point is the constitutive one whereby
a contract founds and shapes the oeconomique realm. Selden in his Titles of Honor is
express and instructive on this, beginning his treatise, first line: “Communitie of life,
and Civill Societie, beginning first in particular Families, under Oeconomique rule
(representing what is now a common-welth) had, in its state, the Husband, Father
and Master, as King.”9 Kingship is a title of honor, a place of precedence and, in its
ultimate designation, a donation from the divinity; and the sovereign’s oeconomy,
the suite and following of the sovereign, is the originary law. Private law is law made
vicariously by lesser figures in imitatio imperii, in imitation of the sovereign. In similar
fashion, the compact between donor and sovereign, expressed in the Digest, as Domini
nostri, finds its parallel in the sanctity of the marriage contract upon which all other
agreements are modeled. Every contract is like a marriage, as was famously stated in
the case of Hochester v. De la Tour, and it is quite correct that the contract of spousals
de futuro does provide the theoretical template for the modern concept of contract as
a regime of election and agreement.10 This may seem old law, the spousals de futuro,
known in the vernacular as the contract of engagement to be married, may no longer
8
9
10
The Janus I am describing is from a legally authored emblem book, Guillaume Perrière, Thëatre des bons
engins 1 (1540).
Selden, Titles of Honor, supra note 5, at 2.
Hochester v. De la Tour 2 E & B 678 (1872) on spousals de futuro; see also Henry Swinburne, A Treatise of
Spousals or Marriage Contracts (Society of Stationers, 1686).
The Political Theology of Private Law
149
Figure 1. Reproduced courtesy of the University of Glasgow Library, Special Collections.
be enforceable in law, but the primacy of oeconomy remains constant. One example,
from 2001, will suffice.
In Waite v. Waite, a temporary injunction was sought to stay a “no-fault” divorce
on the grounds that this violated the “rights of conscience.”11 At issue, in part, was
whether the marriage continued to be productive of any benefit to society. In discussing the “legitimate ends of marriage” under the relevant statute, the religious roots of
the marriage contract are traced through a plethora of jurisprudence that since time
beyond memory defines the relation in terms variously of its holy, God-given status,
and its origin in “Divine Providence.”12 Reiterating at numerous points the history
11
12
Waite v. Waite 64 S.W. 2d 217 (2001), at 1.
Id. at 15.
150
I•CON 11 (2013), 146–161
that marriage is a sacred institution, in whose “purity the public is deeply interested,
for it is the foundation of the family and of society,” even the secular definition of
divorce adopted by the Court recognized that behind the utility of easy divorce still
lies the interest of justice and the public good.13 The public is expressly a party to each
divorce case and “a fortress” is built around the marriage institution as a sacred and
inviolable contract that will persist until such point as the state defines the grounds of
its legitimate dissolution.
Waite is of interest primarily for the review of precedent that offers an overview of
the religious roots of the marriage contract and the image both of Divine Providence
and of the fortress that surround the most private of institutions. It may be that the
individual, in the wake of the emergence of Human Rights law, now takes on the
greater weight of legal inviolability, and the fortress protects the person of the subject as often as that of the marital subject, but such displacement of the imaginary
of sanctity and inviolability, of Providence and purity continues unabated. Only its
object shifts while its lexicon adapts to meet that change. What I wish to draw from
the language of the no-fault divorce case is the recourse and slippage into questions of
the public good, justice, and universality. No-fault defines dissolution by reference to
the negation of fault, by the absence of culpability and so by direct appellation it connects the new regime to the prior and greater history. The amoral implies the moral,
a conjunction that becomes increasingly evident when the residual canons of public good and justice, legitimate legislative interest and social foundations get invoked.
The sacred cannot even be kept out of divorce because the marriage contract and its
breach or novation remains within the ambit of a little understood duality of law
which, while it may not always signal its religious roots and bonds, tends to repeat
them in the displaced form of an equitable compass, the line of justice and the rod of
conscience and the public good.
Agamben formulates a point that is similar to this by focusing on the otiose, the
very impracticability of sovereign right and rule. The formal ordinance, the rights of
legal domination belong theologically within a realm of inactivity, of an otiose and leisured divinity whose temporal representative exists primarily to signal in ordered and
ceremonially defined forms the lexical character of priority and precedence, as also
the mystery of the absent source, the invisible principle of authority.14 While the sovereign’s rule belongs for Agamben within a domain of inactivity, the symbolic value
of the rituals of rule, the choral forms of acclamation and laudation play the crucial
function of masking and so legitimating the extant and continuing practices of administration, governance as the brute fact of what gets done. The domain of administration, defined theologically as oeconomique disposition, is that of what the common law
terms establishment, of place and precedence as practiced. What needs legitimation,
13
14
Id. at 3.
Agamben, The Kingdom and the Glory, supra note 6, at 201–204, on the figure of light and the disappearance of the divinity in a crescendo of optical metaphors—abscondita in lucem, according to the relevant
emblematic motto. This “invisible politics,” as Bacon refers to it, connotes the mystery and at an administrative level the secrecy of government.
The Political Theology of Private Law
151
on the occasions that it is glimpsed, is the structure of precedent practices, the order
into which the administration falls and so, to borrow again from Agamben’s recuperation of the relevant theology, the principle of effectivity.15 At a certain point, by dint of
chance, perhaps because of the crisis of novelty, administration becomes visible, the
power exercised in quotidian practices is made manifest, and a rite, the liturgy of trial,
a mysterious ceremony is needed to restore the order of the things and the invisibility
of structures. Here, in the revolutionary moment, law grasps for its oldest protections
and best established routines and specifically for the fictions that have worked best
before.
If asked how a court would deal with the novelty of the internet and purchase and
sale over the virtualities of cyberspace, one could do worse than look to the theology
of the virtual. It is the greater, because invisible, source and cause. The medieval Latin
virtualiter has its roots in the Latin vis meaning power, and virtus meaning angel, from
which we derive virtue. The virtual is the imaginary domain, the realm most populous with legal fictions. As for the term itself, from virtualiter, it means legitimated by,
and authorized from its origin, as in offices held virtualiter, which translates as held
from an originary donation.16 Thus, to take an example, when a court had to face the
question of whether it was possible to buy and sell virtual space, a domain name, the
answer was relatively easy at common law. The virtual domain purchased was the
same as that nominated by the legal fiction of Blackacre, a virtual property that in
medieval law denoted an imaginary parcel of land for purposes of specifying hypothetical rights or for allowing pleadings.17
By the same token and method, when the possibility of contracting on the internet
came to be litigated, the Court faced the problem of how two computer terminals connected only in cyberspace could be deemed to have arrived at a contract on a website
invisibly coordinated by a webmaster. The answer, resplendent in its retrolutionary
rhetoric, was:
Promises become binding when there is a meeting of minds and consideration is exchanged.
So it was at King’s Bench in common law England; so it was under the common law in the
American colonies; so it was through more than two centuries of jurisprudence in this country; and so it is today. Assent may be registered by a signature, a handshake, or a click of a
mouse transmitted across the invisible ether of the Internet.18
Two features of the statement are striking. The first is the opening fiction of the
meeting of minds. If the issue is that of the provision of services, here a program for
facilitating downloading of a browser, online, then the initially intuitive observation
15
16
17
18
Agamben, Opus Dei, supra note 6, at 66, discussing the art of painting as belonging to the order of the effectus, “where the operation becomes effective, consistent and real in an opus considered not as something
in itself but above all as the effectus of an operatio.”
My example is Thomas Pierce, A Vindication of the King’s Sovereign Rights 85 (1683) (“not any One of
them ever took any thing from the Deans, because Originally the Deans of their Royal Chapel, and
Virtualiter ever since.”)
As, e.g., Je Ho Lim v. The TV Corporation International 121 Cal. Rep. 2d 333 (2002).
Specht v. Netscape Communications Corp. 150 F. Supp. 2d 585 (2001) per Alvin Hellerstein, US DJ.
152
I•CON 11 (2013), 146–161
would surely be that this is an agreement in absentia and the meeting of minds must
be a fiction upon a fiction. A download from a website, even one with an “agree” icon
that has to be clicked prior to service, is hardly a striking meeting of the minds, as
opposed to an undertaking, transmitted “across the invisible ether of the Internet.”
The reference to the meeting of minds, however, seemingly offers the comfort of recognition and the security of precedent. On closer inspection, it transpires that this
comfort is likely misleading. The serial order of the prior precedents, from the King’s
Bench in common law England, to the American colonies, and on, suggests that the
origin of this meeting of minds, congregatio mentium, as some courts like to phrase it,
so as to provide the patina and majesty of Latin, together with the suggestion of classical roots, returns to the seventeenth century, if not before. But such is not historic­
ally the case, and for common lawyers, the dawn of the bilateral contract as we now
understand it, of a two party agreement—as opposed to the more civilian concept
of indebitatus assumpsit or undertaking—is the early nineteenth century, the case of
Adams v. Lindsell, frequently being the case chosen to mark the beginning of the new
theory as originating circa 1818.19
The return to Blackacre, as also to congregatio mentium, to Latin, to the fiction of
a meeting of the minds, to wit the clicking of a mouse in cyberspace, on a hyperlink to virtual texts, in augmented life, presents a striking instance of retrolutionary advance. The oldest of juridical concepts, and the power of the dead language,
are wielded to address and define the most contemporary of technologies and an
interaction that does not in any obvious way resemble the face to face encounter
and shaking of hands that define the image of bona fides as being face to face, facie
ad faciem. On the web indeed, faces are less at play than webmasters and site specific
codes and relays, masks of masks, images, vanishing signs. Here the subject meets
through a glass darkly or in the Pauline dictum, nunc videmus per speculum in aenigmate.20 For lawyers in particular, novelty is not to be trusted, the norm must move
slowly and according to established rhythms, and so the prior and unquestioned
forms must dictate the priority of precedence over the factuality of invention and
change. Cave omne novum, being one early modern motto that lawyers used, is itself
not a novelty but rather an extrapolation from the role and function of legal maxims and the modes of common law custom and use that preclude any attempt to go
beyond the maxims, the regulae iuris predicated upon regulae vitae. It is precisely as
a principle, as a universal, that the maxims provide a glimpse of the apparatus of
governance, the vanishing point of judgment represented in the enigmatic moment
of recourse to ritual invocation of a formula, a dead language, a last instance of
rule. At a certain point, there has to be judgment, the occasion of no return where
the law must sing, where rules run out and a species of incantation, of imagery and
rhythm take hold.
19
20
A.W.B. Simpson, Innovation in Nineteenth Century Contract Law, 91 Law Q.R. 246 (1975); David Ibbetson,
A Historical Introduction to the Law of Obligations (1999).
1 Corinthians 13; and for discussion of enigmas, see Peter Goodrich, Legal Enigmas: Antonio de Nebrija,
The Da Vinci Code, and the Emendation of Law, 30 Oxford J. Legal Stud. 71 (2010).
The Political Theology of Private Law
153
The maxim in its early modern common law definition was precisely a mystery, an
inheritance from the fathers whom Whitehouse calls Praesidentes, the authors of the
fingerpost, the scribes of the prior law. They set down the gubernative path, the narrative of law, the effluxions and imprint of the ancients, as imprimere effigiem, the cast
of the face, the living effigy, whose honorific and majestic status, variously depicted
as illustrious, superillustrious, brilliant, and bearer of the catalogue of dignities that
make up the bedrocks and foundations of law. The maxims have “no pre-existency
to be imagined to them,” they are the ultra quod non, the points of no return, beyond
which no human thought but only imagination, meaning faith, can venture.21 One
more instance, a formulation again from the ever inventive Whitehouse commenting
on Fortescue: “Let then Principles, remain Mysteries, not to be dived into, but adored
because of their coparceny with the Divinity.”22 These maxims, these majestic and
universal norms of law, are explicitly articles of faith, elements of creed and aspects
of the mystery that maintains the law. Legendre talks of dogmas as visions, and this
observation can help us trace the manner in which the earlier dogmatics, the prior
praesidentes and principles, the earlier symbolic forms either annex or cover over the
more extreme novelties generated by new technologies. Digital programs become
goods, live streaming, digital apps, YouTube videos that use images taken from copyrighted works are treated as being the equivalent of literary borrowings and so the set
forms and formulae continue in their fictively accustomed and traditional manner.23
The choral categories of the antique law, prisca iurisprudentia, provide the necessary
mask of laudation and authority, of ceremony and ritual, which allow for both the
distraction of attention from the oeconomy of legal practice and at a more pervasive
level from the activity of administration. What is necessary is persuasion, the manipulation, and promulgation of an image that will comfort, a rite that will decide, the
liturgy, to borrow from Agamben, of a trial that will place the subjects of law in their
proper position of reverence towards, or at least attentive to and focused upon the
rites that transmit the image of justice as a matter of faith, a thing of beauty and of
institutions that operate ad gloriam, collectively, for the future health of the populace.
2. Maxims and mysteries
The feminine face of law, in Selden’s depiction, and in the general parlance of common lawyers is that of its hidden origin, its nocturnal transmission, its escape into
the universality of the maxim. Private law depends just as much as public law upon
the explicit supremacy of the maxim, salus populi suprema lex esto being established
as early as the Twelve Tables of Roman law and continuing unabated through the
early modern sages of common law, fondly retailed by Hobbes and as prevalent today
21
22
23
Edward Whitehouse Esquire, Fortescutus Illustratus, or A Commentary On that Nervous Treatise De Laudibus
Legum Angliae 121–122 (1663), citing Plowden: “Quia maximus est, &c. Because great is its authority and
dignity, as that reason which is indisputable, and not to be contradicted.”
Id. at 122.
Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright, 125 Harv. L. Rev. 683 (2012).
154
I•CON 11 (2013), 146–161
in invocations of executive powers, appeals to national security and in public policy
arguments that generally suffuse both the public and the private spheres.24 Justice,
which has always exceeded law, is historically a matter both of faith and of mystery.
For Agamben, this is spelled out in the form of the liturgy, and in our context the
trial, as a mode of effectivity, of faith being made operative and accomplishing what
it says.25 This goes back to the earliest law, to the legis actio being defined by Gaius
as sacramentum, as the sacralization of the word, and specifically as the word, the
human bond, being made active and substantive. The sacramentum was procedural,
animals were deposited in court as a guarantee of judgment debt, and legal action
from thenceforth, if not before, my history not being that complete, was a matter of
the coincidence of symbol and act, figure and practice. The image effectuates faith. It
is what does justice.
Doing justice requires escaping the rule for the principle, the apparently certain for
the figuratively indefinite, the symbolic for the imaginary. As said, this will be nowhere
more obvious than in moments of transition where current rules face radical changes
in technology and the media of transmission. Here the shift from calculus to faith,
from rule to belief is signaled by the recourse to the dogmatic lexicon of images, and
specifically to the enigma of maxims, the elegantly mysterious formulae that should
be adored rather than questioned. These provide the instances of mystery, the liturgical moments, the ceremonial occasions of a practice that makes justice, the mystery
of anima legis, present and effective. Within the Christian tradition this means that the
word becomes visible—in mysterio, in sacramento—and in this very visibility it escapes,
and in escaping it effectuates what it figures, it achieves the paradoxical actuality of
instantiating the mystery, of making the invisible evanescently apparent. The maxim,
as we know, manifests the absconded source of law, the great beyond of the theology
of common law, denizen of the indefinite time of dogma. The word has to be made
effective, logos must be turned into practice so that the figures of law can take their ritual hold upon the subjects of instruction: “In its origin ‘mystery’ designates a praxis,
dromena, gestures and acts by means of which a divine action is realized in time and in
the world for the salvation of humanity.”26
Take an example, it is what common lawyers do. Register.com v. Verio involves a series
of technological novelties, at least as far as law is concerned.27 The plaintiff, Register.
com, is a company appointed by the Internet Corporation for Assigned Names and
Numbers (ICANN), a government agency, to register domain names. In their contract
with ICANN, Register.com was to collect, at a minimum, the name, postal address,
telephone number, and email address of applicants. This information, termed WHOIS
information, was to be publicly available with free internet access via an independent
port. By section II.F.5 of the ICANN agreement, the registrar may “not impose terms
24
25
26
27
On which see Michel Senellart, Les arts de gouverner. Du “regimen” médiéval au concept de gouvernement [The
Art of Governing. From the Medieval “Regimen” to the Concept of Government] (1995).
Agamben, Opus Dei, supra note 6, at 60–62.
Id. at 53, citing Odo Casel.
Register.com v. Verio, Inc. 356 F.3d 393 (2004).
The Political Theology of Private Law
155
and conditions” on the use made by others of the WHOIS data. Register.com complied
with the agreement and provided WHOIS data on a daily basis available for free public
inquiry via Register’s internet site or by means of port 43, the independent access
required by the ICANN agreement. Each time a query is made on Register.com’s site,
the requested information would be supplied and together with the information would
be a caption, devised by Register.com, stating in pertinent part that “under no circumstances will you use this data to . . . support the transmission of mass unsolicited,
commercial advertising or solicitation via email.”28
Register.com not only acted as a registrar of domain names but also sold webrelated services facilitating maintenance and development of web sites. Entities
that registered with Register.com would be solicited for such services. This brought
Register.com into competition with Verio, a company that also sold web design and
development services. In pursuit of customers, Verio developed a robot that would
obtain daily updates of WHOIS information from, amongst others, Register.com’s
website. Register.com brought this action for an injunction prohibiting Verio from
using WHOIS data obtained from their site for mass email and other solicitations. The
US Court of Appeals for the Second Circuit affirmed the district court’s order enjoining
the defendant, inter alia, from mass solicitation of internet domain name registrants.
To explain how the defendant was bound not to use the WHOIS data freely available
for mass solicitation, Leval J. had to address the relation between a robot trawling for
information on an open website and the law of contract that was developed to govern
bargained for exchanges modeled upon face to face encounters.
Under the extant law of contract, it is hard to find a bargained for exchange in the
provision of open access to the WHOIS data. If a contract is predicated upon a manifestation of mutual intent, upon a promise for a promise, as our early case insisted,
then it is impossible to find such manifestation in the extraction that is described. Verio
had obtained the WHOIS information prior to receipt of any notice of terms, and even
if the terms were to be deemed sufficient notice, Verio never manifested assent to these
terms. Nor, under accepted principles, can repeated use impose a contract when none
previously existed. A series of non-bargains do not make a contract.29 Faced with such
obdurate principles, the judge had to resort to something more than law, an invocation of justice, a mystery of government in the form of a Biblical figure. The legal issue
presented was so fundamental that it required a return to the Garden of Eden.
Laval J. veers half way through his judgment into an elaborate, though familiar,
narrative of the acquisition of knowledge: “The situation might be compared to
one in which plaintiff P maintains a roadside fruit stand displaying bins of apples.
A visitor, defendant D, takes an apple and bites into it. As D turns to leave, D sees a
sign, visible only as one turns to exit, which says ‘Apples—50 cents apiece.’30 D does
not pay and returns to the stand several times every day, takes an apple and eats it. He
28
29
30
Id. at 396–397.
Textile Unlimited v. A. BMH and Company, Inc. 240 F.3d 781 (2001); McCutcheon v. MacBrayne 1 All.
E.R. 430 (1964).
Register.com, supra note 27, at 403 col. 2.
156
I•CON 11 (2013), 146–161
never leaves any money. P sues D in contract for the price of the apples taken.” The
answer, of course, to such a claim is simply “move your sign,” provide notice that the
apples are there for sale, not as windfalls, and notify D prior to acquisition and partial
consumption that a price is expected. And one could also note that provision of free
WHOIS data under a government ICANN scheme is a very different matter from private exchange or sale of goods, for such is how apples are classified under contemporary legislation although Laval J. unfortunately fails to recognize this and deals with
the exchange of apples exclusively as a service, thereby further complicating the logic
of the decision.31
The immediate subject matter of the case is not, however, the primary issue. The
return to the parable of the apple, and with it the mystery of knowledge is the more
engaging feature of the decision. Here, self-evidently, we are at the origin, catapulted into the indefinite time of custom and use as sources of common law which,
to borrow from Sir John Fortescue, are so old as to go back beyond the law of the
Greeks, the Venetians, and the Romans, to nature and to divinity itself. Here we
encounter, as directly as is feasible in private law decision, the most public of enigmas, the foundational bond of subjectivity, in which the taking and eating of the
apple defies the leges terrae or more accurately hortorum in that removing the veil of
ignorance catapults the subject from innocence to knowledge, and from the Garden
of Eden to the world. So too the analogy suggests, D, who takes and “bites into” the
apple at that moment loses her innocence and uncovers a world, and ironically in
this context her nakedness. She suddenly sees Adam and herself as nudum pactum
rather than as pacta vestita and soon thereafter is informed of her expulsion from
Eden and innocence. From now on, Laval J. might say, she has to pay for her sin and
for her apples.
It is a teasing metaphor and certainly transports the reasoning of the case from
the apparently inconsequential to that graviora legis associated with the foundational
mysteries, the arcana, and other sovereign secrets that make up the vanishing point,
the quoad non ultra of the rule of law. Such is indeed the first point to make about the
analogy. Biting into the apple, entry into knowledge, is subject to a singular prohibition, a most public, indeed celestial, decree that rules the Garden of Eden and indeed
constitutes it as such. The sovereign here surveys omnivoyantly and it is the relation
between the subject and the divinity that is at issue, not or at least not so directly
that between Adam and Eve. The context is inexorably public and quintessentially
intimate, entirely visible and utterly naked and so in analogizing to Eden our judge
is treating the most private of acts with the most public of norms and interdictions.
Biting into the apple is the original sin, the occasion of the fall, the cause of the expulsion from paradise, where everyone is naked and everything is free. It transpires, in
other words, that figuratively Verio, the defendant, has apparently committed the
most terrible of sins.
31
Id. at 9, col. 2, where one sale of goods case (purchase of hats) is mentioned but from long before the
promulgation of the Uniform Commercial Code which now governs such transactions.
The Political Theology of Private Law
157
Figure 2. Reproduced courtesy of the University of Glasgow Library Special Collections.
An early emblem can help illustrate the point. Georgette de Montenay’s
Emblematum, proffers the appropriate image of guilt and lust that the Biblical story
purveys (see Figure 2).32 Here it is Adam who is shown suffering, grief stricken, hiding ineffectively from the maiestas of Latin—ubi es (where are you)?—and the omnivoyant eye that lurks invisibly behind it. The fig leaf that covers his genitalia indicates
that this is Adam after the fall, after the apple has been bitten into by Eve, his missing
rib, and hence the tears. More than that, and as nakedness suggests to modern eyes,
the image is of lust, of excessive, prohibited desire, conjured, if you look closely, by
32
Georgette de Montenay, Emblematum Christianorum Centuria 65 (Froschover, 1584).
158
I•CON 11 (2013), 146–161
the image of a face, replete with mouth and seemingly protruding tongue, which the
engraver has depicted on Adam’s stomach. Here, despite the cover, Adam is exposed,
his guilt is evident and his corruption apparent for all to see. It is a didactic image,
in the manner of the legal emblem tradition and it is precisely what Legendre terms
the dogma as vision, as an image of the normative force of the absconded yet ever
present sovereign source of law. It is equally a visual and didactic marker of the mystery of the maxim as the mode of invocation of a normativity, variously represented
as scripture, canons, natural laws, that precede and dictate what used to be termed
“humane law.”
3. Envoi
It is no doubt obvious enough that if you press against the surface of the judgment,
you rapidly encounter a structure and here, in the metaphor of the apple being bitten into, a figure of foundation. The image of the apple in fact serves a triple purpose: it authorizes, it ordains, and it teaches. In the old language of common law it
mixes conusances, it is interdisciplinary and it is effective: symbolum, id est quod figurat,
meaning that it does what it says, it is its effect. Hence the secrecy of the ius imaginum,
its need to dissemble and to hide the powers that it portrays while never fully evidencing. Recapitulating the earlier analysis, I will thus conclude by considering the effects
of the image, and specifically those of the fictive figures of private law covered here, in
the distribution and privatization of power that are signaled by the emblematic tropes
of virtual property, consensus, and the consumption of apples.
First the order of authorization, which is to say the instantiation of authority. The
emblematists figure authorization differently, but most often in some symbolization of
the divine, the originary sovereign whose donation is the pinnacle of power. Janus, to
take our first example, is of course a lesser god, an intermediate sovereign but nonetheless a classical symbol of an impossible unity that is the very definition of the Christian
divinity as both Father and Son. The symbols that Janus carries, the mask (imago) and
key (clavis) evidence clearly enough a fulcrum, a point of transition and transmission
that allows the ineffable and invisible, the divine, to be glimpsed in impress and mark,
as a device and then later as a literary figure. Here is established the order and hierarchy of authority by means of the vanishing point of the mystery, the ultra quod non,
just to vary the formulation a bit, which the image represents enigmat­ically, by encoding and veiling. What is visible is not substance but sign, not the subject but its insignia and hence also its place within the escalating order of honor. It is no coincidence
that lawyers are graded and ranked, ordered and coifed so to speak, from very early
on. Bartolus in his treatise on signs notes that lawyers are the equivalent of Knights,
and Selden in his Titles of Honor repeats this, while Chasseneuz, as should be evident
from his title, views scientia iuris as one of the trinity of knowledges, defined in terms
of dignity and reverence of office, which are Ideologia, Scientia Canonica, Scientia Iuris,
in that order.
The subdivisions of scientia iuris are less important here than the place that law
occupies within the order of knowledges and the descent of places of their interpreters.
The Political Theology of Private Law
159
So long as the hieros is invisible or, more accurately too visible to be seen, too blinding
a light for observation then the lesser emanations, which bear some of those rays and
some of that eminence have adequate authority by virtue of sharing in the unknowable authorization. Whitehouse discusses Praesidentes, and talks of the honor of the
office of advocate as being a mark of their relation to the point of absolute authorization, in mystery, in what the ordinary people cannot know. The apple in Register.com
is perhaps the easiest instance of such authorization because of the subtle yet radical
manner in which it shifts discourses and imposes authorization while seemingly simply observing an everyday interaction. Whatever. . . . I am not much moved by Genesis.
The point is that an order of law is predicated upon a concept of destination, a model
of transmission from and to, and this requires the vanishing point of the image that
conceals the Deus absconditus of monotheism, and thence all the lesser orders of law
that will act as a guide for the perplexed.
The second consequence of the Edenic scene is thus logically that of institution
and ordination. Justice is the garment of Kings, and it is precisely garments that dear
Adam is lacking in the depiction provided by Montenay’s Emblematum. Authorization
enables ordination, and the order of honor that follows upon the establishment of
such authorization, the point whence the speaker came. The signs of ordination, of
parsonification in Maitland’s humorous devising, are the notes of dignity (notitia dignitatum) that allow, amongst other things, for the honorific character of legal speech.
The order of honor introduces the frame within which administration occurs ad gloriam, by way of all the distracting symbols of sovereignty and institution that allow for
administration, the effectivity of the gubernative to pass unnoticed and unchallenged.
This is in many ways especially the case in private law where Agamben’s reclaimed
notion of oeconomy, he uses the Greek oikonomia, of unquestioned disposition continues uninterrupted. It is indeed the second lesson of the decision in Register.com that the
defendant has sinned and that a greater force requires their submission to a volitional
obligation that they did not agree to, and to terms that they were not notified of prior
to the transaction via their robot.
Far from the private looking to the individual and the relational, just to return to the
starting point, it is constantly and increasingly directed to the public and the sacral.
There could be no better emblem of the singular universal, the surveillance of the
subject by the ultimate form of the public realm, by Latin and by the divinity or the
delegates who speak it. The modern form of virtuality, the internet, as also the metaphor of the web—the alliterative www—offers a new site for the universality, for an
indivisible totality within which the subject, the portal, the interface are individual
extremities, outer points, but nonetheless inexorably linked to, bound by and a part
of the whole. The individual cannot but look to the state and the sacred, cannot but
exist in the end ad gloriam, in relation to the choral and acclamatory modes of social
being and collective bonding that exist virtually, first in the fictive figures of truth,
then in the myriad relays of the internet as the complex combination of the audiovisual and the verbal. The metaphor of Eden, the image of the King’s bench, the idea
of the contractual bond exiting via a search robot to bind an unwitting Verio is simply
the slippage through which the dissimulation of power, the fiction of the subject being
160
I•CON 11 (2013), 146–161
the equivalent of an institution is glimpsed in the practices of law. It is in becoming a
person, a legal actor, indeed that the subject is drawn into and towards the collective
subject, the public face, of law. No-one, as Legendre aphoristically puts it, can escape
the institution.
This ordination of sites and institutions is not unusual, though it is seldom as
unwittingly vivid as in Register.com’s manipulation of the forbidden apple. It is really
but one more instance of a growing trend to replace the concept of volitional contract
with the invention of the rolling contract and more accurately the steam-rolling contract. The party that controls the website is, to adapt a phrase, the webmaster of the
contract. The oeconomique order becomes the economic order, and the fiction of choice,
the imaginary of consent, is replaced by terms that arrive virtually, by originary ordination, shrinkwrapped, boxwrapped, hyperwrapped, robotwrapped, but in any case
wrapped around whatever it is, services, data, goods that are being ordained, which
is to say handed down. The greater the party, the more superillustrious, splendid, brilliant, and effective, the more likely that whatever the normative pronunciation of rule,
the administrative practice, the actual outcome will favor that party. The sovereign
rules but does not govern. Law, which is the manifestation of rule, tends to be otiosely
normative, symbolic but not real, a matter of generality and not of specifics. That is
Agamben’s wager in his study of oikonomia of governance, and he persuasively shows,
though he is not original in this, that it is not the declared law but the administrative
practice, the secret governance that likely dictates what happens to the subject and
what are taken to constitute their “volitional” obligations. Thus the rolling contract of
recent devising, whereby the corporation simply sends terms, declares conditions and
binds end users long after and far distant from any manifestation of agreement at the
time of exchange.33 And one could add the reservations of power to change terms that
are routinely agreed to “by continued use of the website” that are also upheld without
difficulty as being volitional obligations, manifestations of consensus, by the majority
of courts.34
The antique notion that Rex dat dignitates, fondly espoused by Bracton, continues to
this day, although it is no longer the King but rather the sovereign order and the dispositions of economic rule that mark the places from where law speaks. Mystery may
be about effectivity, the operation and accomplishment of an administrative order, but
it is not focused upon substance but rather upon attitude, direction, and inculcation.
This takes us to the final point, the third in my trinity, which is that the honorific vestiture of law, the garments of justice, teach obedience, observance, and even a degree
of reverence. The images are for looking at, the symbols for interpreting and admiring,
but the action continues unimpeded and according to its own mandates and generally
hidden distribution of powers. Here ius dare, dicere, and docere, to give, to declare and to
33
34
The most obvious and humorously formulated instance is that of Easterbrook J. in Hill v. Gateway 2000
Inc. 105 F.3d 1147 (1997) and the cases that followed therefrom.
In re Halliburton 80 S.W. 3d 566 (2002); Morrison and others v. Amway Corp. 517 F.3d 248 (2008)
and then the very partial exception provided by Cathryn Harris v. Blockbuster Inc. 622 F. Supp. 2d 396
(2009).
The Political Theology of Private Law
161
teach the law become homonyms. The calculator becomes the inculcator. I will make
this last point in the classical manner of serio-ludere which inspired the legal emblematists and so is not entirely inappropriate. My theme will be nominalist.
Register.com succeeds in restraining the defendant Verio. The Court imposes the
terms that Register.com sent robotwrapped with the WHOIS data. There are two points
of nominalist interest that confirm the thesis that this is in effect an invisible politics,
a hidden or secret law. The agon is between Register and Verio. They both want to
monetize the WHOIS data and so the question for disposition is which of the two, the
ICANN authorized Register or the stranger Verio should gain this benefit of monetization. My suggestion is that it is nominally self-evident. Register has roots in the Latin
Rex, and mediately in regimen, the Latin term for governance as such, as in the regimen
animarum that St. Augustine was fond of terming the science of sciences and the art
of arts. The Registrar, tabularius, is the one who tables and inscribes the law, and is the
delegate of the sovereign, the vicarious and amanuensis of the ruler. The defendant is
Verio. Verio is a truncation of veriloquium, true speech, and mediately is cognate with
verro meaning really. The stranger in this case, is thus the truth. The lesson is that the
truth does not necessarily get inscribed as law, indeed the truth has here to be made
to conform to law. The romantic notion of law conforming to truth is not part of the
equation that constitutes actuality and practice. The truth is precisely what escapes
while reality remains the secret pathway of prior disposition, of the oeconomique and
honorific dictate of the administration.