Research Handbooks in Comparative Law series
Edited by Pier Giuseppe Monateri
Chapter 10: Interstitium and Non-law
Peter Goodrich* Modern law is understood overwhelmingly as a structure. The English jurist Blackstone nicely coined the term establishment to describe not simply the legal status quo ante, institute and institutions, but also the implicit desirability of observing and obeying our directors, priests, professors, judges and lawyers. Legal structure connotes hierarchy and the accompanying beneﬁcence of the invisible, of sources both absent and above. The sovereign (super-anus), after all, is one who sits above and it is that feature of distance and overlooking, of detachment and supervision that best captures the innately modernist legal drive to abstraction and universality, to a law in nubibus, which aerial and absconded being so troubles and exercises the comparative lawyer. The longue durée of nomos is paradoxically the narrative of a trajectory towards virtuality. The paradox lies in the fact that, as Vico observed, nomos was originally of the earth and catalogued appropriation, division, locality and difference rather than the extraterritoriality and angelology that Roman jurisprudence cunningly ﬂung to the Western mob. Law as corpus, the Latin body, norm as institution and personality – aetas, scientia, mores et ordo in the Anglican ecclesiastical vocabulary – signiﬁes geometrical measure and general rule, doctrine and universality, axiom and order rather than corporeality, place and comparison. If there is a modus, a method and melody to the angst of comparative law, a theme that conjoins the grand and merry men of situated difference, it is that of the singular universal, the unhappy consciousness of the particular...
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