Melody and Law's Mindfulness of Time

0952-1917(200406)17:2;1-K

This journal is available online. Please contact your librarian or visit www.blackwell-synergy.com

Law and MoralityVIRGINA HELD argues for an ethics of care in international relations.

Law and PhilosophyROBERT ALEXY discusses three problems concerning the nature oflegal philosophy.JOHN GARDNER compares and contrasts different senses of “law” and“legal.”

Legal ReasoningLARS LINDAHL analyses the inferential role of legal terms.GERALD J. POSTEMA explores the role of a melody model of time inlegal reasoning.

Law, Decisions, and InstitutionsEERIK LAGERSPETZ links Hegel’s and Hobbes’ views of society tomodern theories of institutions and collective actions.LUC BOVENS and WLODEK RABINOWICZ evaluate two differentvoting procedures for complex collective decisions.

Notes • Discussion • Book ReviewsCARLA FARALLI reviews Losano on system and structure in law.STANLEY L. PAULSON reviews Merkl’s collected writings.

BLACKWELL PUBLISHING

Volume 17 Number 2 June 2004ISSN 0952–1917

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Melody and Law’s Mindfulness of Time*

GERALD J. POSTEMA

Abstract. A structured awareness of time lies at the core of the law’s distinctive nor-mativity. Melody is offered as a rough model of this mindfulness of time, since someimportant features of this awareness are also present in a hearer’s grasp of melody.The model of melody is used, first, to identify some temporal dimensions of inten-tional action and then to highlight law’s mindfulness of time. Its role in the struc-ture of legal thinking, and especially in precedent-sensitive legal reasoning, isexplored. This article argues further that melody-modeled mindfulness of time isevident also at a deeper and more pervasive level, giving structure to the distinctivemode of law’s normative guidance. The article draws one important theoretical con-sequence from this exploration, namely, that the normative coherence of momentarylegal systems depends conceptually on their coherence over time.

1. Introduction

When it comes to law, “historic continuity with the past is not a duty, it isonly a necessity”—so spoke Oliver Wendell Holmes in 1885 (Holmes 1920,139). The studied irony of the honorable Justice’s words is a burr under themind’s saddle. We want to ask: What necessity does he have in mind? Andwhat duty? Indeed, why is it not a duty and why is it necessary if not aduty? A clue to what Justice Holmes had in mind, itself carrying a load ofirony, may lie in the fact that Holmes gave the speech to the Harvard LawSchool Association at a dinner honoring Christopher Columbus Langdell,notorious legal formalist and creator of the case law method of legal edu-cation at Harvard, and the major target of Holmes’s critique of formalismin The Path of Law delivered two years later (Holmes 1920, 167–202).

Ratio Juris. Vol. 17 No. 2 June 2004 (203–26)

© Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

* This is a substantially revised and expanded version of Law’s Melody: Time and the Normativ-ity of Law presented to 21st IVR World Congress in Lund, Sweden. I am grateful to the Congressorganizers, and especially Professor Aleksander Peczenik, for inviting me to address the Congress and to participants whose thoughtful comments and suggestions helped me improvethe text.

Holmes entitled his 1885 address Learning and Science, but it might havebeen more accurately entitled Learning vs Science, for his thesis was that law,insofar as it depends on learning, is just a matter of “the government of theliving by the dead,” while the “ideal system of law” looks not to the past butto science. Holmes, it appears, engaged in the time-honored practice of honoring his subject by publicly repudiating everything he stood for. Yet, Iimagine Langdell might well have applauded his former colleague’s senti-ments. After all, Langdell’s pedagogical reforms were driven by his aim ofsubjecting the chaos of the common law to the rigors of “science,” regi-menting it to a system of simple principles emerging from “leading cases.”His method was fundamentally ahistorical. The leading cases served asexemplars of deep legal principles. Thus, if anything divided Holmes andLangdell at this point, it was their views of what a “science” of law involved,not any disagreement over fidelity to that law’s past.

In his address, Holmes argued that the lawyer seeking to plot the trajec-tory of law into the future should employ the tools of science and ignore therepository of the past in Yearbooks and court reports. Yet, he conceded,history still holds us—lawyers and citizens alike—in its grip. It is inevitablethat the living should be governed by the dead: “The past gives us ourvocabulary and fixes the limits of our imagination.” There is, he admits, “apeculiar logical pleasure in making manifest the continuity between whatwe are doing and what has been done before.” But, he hastened to add, itis a pleasure, not a duty, for “the present has a right to govern itself so faras it can” (Holmes 1920, 139). Thus, emerging from this after dinner con-fection is a common thought, common at least in modern American think-ing. The past is the province of the learned, that is, the useless, and itspleasures are the pleasures of indolent leisure, not of robust, progress-pro-ducing activity. Law will always be weighed down by its past, and society,so long as it must use the tool of law to govern, will be equally so weigheddown. But the life of free and progressive activity cuts free from the past,and to the extent that law can wiggle out its bonds it can join the happythrong.

However, even Holmes entertained in other work a more sober and maturethought. The necessity of “learning,” he owned, was not merely an inciden-tal feature of law. Law could not be understood if it is represented as a time-less system of general principles and norms, no matter how well thoseprinciples hang together. Law exists in and persists through time, subject toforces, both rational and irrational, that operate in and through time. Lawinevitably—by “necessity”—treads a path through the history of a nation,and a grasp of that path is essential to understanding the law at any point intime. “In order to know what [law] is,” Holmes wrote, “we must know whatit has been, and what it tends to become” (1963, 5). Tracing this historic con-tinuity is “necessary” in two respects at least. Law exists just insofar as it is

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© Blackwell Publishing Ltd 2004.

practiced in some historic society, a society with a history in which law nec-essarily participates. And for this reason, if we wish to know how the lawbears now on our practical affairs, it is necessary to know what it has been.Knowledge of the law’s past and of law’s path through time to the presentis pragmatically, practically necessary, at least for those who profess law andadvise those who seek their counsel. This is the primary theme of the openingpages of Holmes’s classic, The Common Law (1963, 5–6).

But there may be more to this claim of law’s necessary temporality. Notonly is law inevitably in time and inevitably affected by time’s passing,caught up in the flow of a nation’s vital activity. It also profoundly affectsthat nation’s life weaving temporal parts of its activity into practically mean-ingful wholes. This is not just one task among many that law may under-take; rather, it lies at the vital center of law, at the core of its distinctive formof normative guidance. This suggests a more profound sense of the “neces-sity” of law’s historic continuity. To paraphrase Holmes: To understandwhat law is, we must understand how the nation’s past, cast in law’s mold,shapes and is shaped by what law becomes.

It is likely that Holmes did not have this further sense in mind when hepenned his bon mot. The portrait of the historical process he was inclined topaint was distinctively Darwinian in shape and hue. In his view, the besthistorical explanation was one that traced the natural selection of this or thatlegal norm through the deadly competition among socially embedded inter-ests. In this historical process, law was not an active and constructive par-ticipant, but only a by-product of the process, if perhaps also occasionally acheck on it. Yet, intended or not, his words suggest a thesis worthy of ourattention: the thesis that time—or better, a certain way of thinking abouttime—is intrinsic to law’s ordinary mode of operating, to its distinctivemode of normative guidance, and this fact shapes how we conceive of law.This is the thesis I propose to explore and to an extent defend here.

I do not mean to say that this mindfulness of time is unique to law andlegal reasoning. Indeed, once we identify its profile, we will recognize itsinfluence in much of our practical lives. For example, it shapes our aestheticexperiences, especially dance and music, and in such experiences we mayfind its profile most immediately evident — at least, I find this to be so.Accordingly, I propose to use melody as a metaphor and model. With thismodel in mind, I believe, we will be able to understand the role of time inlaw’s characteristic normativity. Still, I hasten to say that my aims in thisessay are modest. I will try to articulate a kind of mindfulness of time andexplore its role in practical reasoning generally, and I will argue that it playsan essential role in law, but my argument will be very general and I can onlybegin to explore this thesis. I will offer a few examples of the essential tem-porality of legal reasoning, but systematic analysis is a task for another andmore leisurely time.

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2. Models of Normativity

To begin, I need to say a few words about normativity. Law is a distinctivekind of normative order. To say this is to say that by its nature law seeks toguide the practical reasoning and the actions of self-directing, intelligentagents, and it provides these agents with a framework within which theycan publicly justify their actions and demand justification from others, espe-cially from those who exercise political power over them. This is not just aninteresting and perhaps salient feature of law; it is a deep truth about lawwherever it is found. From its very beginning, philosophical reflection onlaw has been preoccupied with deepening our understanding of this essen-tial feature of law, law’s normativity.

We can distinguish three fundamental (sets of) questions about law’s nor-mativity. The most basic is: What makes something a norm and on what arenorms grounded? This concerns the foundations of normativity in general. Incontemporary philosophical circles this is often taken to be a metaphysicalquestion. I worry that thinking of it in this way may mistake the nature of this question, but I will not pursue the matter here. The second, morespecifically jurisprudential, question is: On what does and must the allegednormativity of law rest? This concerns the foundations of law’s normativity.It assumes that some account of normativity in general can be given,although it may not rest heavily on any particular such account. Undeni-ably, this is itself a normative, practical question, rather than metaphysicalone. The third question is: What form does law’s characteristic normativitytake? That is, how does law’s normativity express itself and how does itrelate to or differ from other forms of normativity? In this essay, I will skippast the first two questions, important as they are, and focus exclusively onthe third question. We should not assume that these questions are at bottomindependent, but I think that we can make a good deal of progress towardsan answer to the third question without having fully worked out answersto the first two. At any rate, for the preliminary, exploratory purposes of thisessay, there is no need to start all the way at the beginning, or even settleon where the beginning is.

The question about the kind of normativity that characterizes law’s ordi-nary and proper functioning is ancient. Throughout history, philosophershave deployed a variety of images to model law’s characteristic normativ-ity. This fact might be troubling to readers of Wittgenstein, who taught usthat philosophers, even more perhaps than folks on the street, are often inthe grip of pictures, powerful images that drive their thought in directionsthat are at minimum unprofitable, and more often deeply confused. The firsttask of philosophy, he argued, was to free our thought from the grip of suchpictures. Yet, images and analogies are indispensable to thought, and evenin philosophy they have their uses. They call attention to important featuresof the phenomena under study, and help us bring our thoughts about them



into some meaningful order. They help model it. Models, of course, can bemisleading if the features modeled are not really important, or highlightingthem distorts more than it illuminates, or if the model leads one to drawinferences that only someone “in the grip of the picture” would be inclinedto draw. On the other hand, denying ourselves models leaves our thoughtinarticulate. Picture-thinking, Hegel reminds us, is indispensable for humanthought; our only hope is to discipline it.

In the history of jurisprudence, two models of law’s normativity have pre-dominated: nomos and thesmos, reason and command. Roughly speaking,nomos models law on (and roots law in) the supposed rational ordering ofreality—law is a normative ordering of society, and offers agents reasons toact. Thesmos models law on a system of commands—law is a normativeordering for subjects, which purports to guide their deliberations and actionsby pre-empting other reasons they may have to act (Postema 2001). Withoutchallenging these models here, I wish to suggest a third model, melody(melos), because it highlights the temporal dimensions of law’s normativitythat the other models leave in the shadows. I have time enough only tosketch this model and some implications for our understanding of law. Thetask of reconciling or adjudicating among these three models must be left toanother occasion.

3. Melody and Mindfulness of Time

Music takes time, but not just in the way healing or sleeping take time; musicexists in time, but not just in the way paintings and sculpture exist in time.Music, melody in particular, is an ordering of time. While Michelangelo’sPietà exists in time, and it takes time to appreciate it, space is intrinsic to thesculpture; sculpture is a meaningful ordering of space. A performance ofBach’s Erbarme dich must be located in time and in space (as must every actof human beings), but time is intrinsic to it; music is a meaningful orderingof time. Both space and time in their own ways order our aesthetic experi-ence and often our affect. I saw a newspaper ad for an upcoming ballet per-formance that read “Emotion in Motion.” Dance, like sculpture and music,orders our affect, but it seems to do so by ordering both space and time. Butthis model is too complex for our purposes, so let us return to music.

A performance of Bach’s Erbarme dich is a temporal sequence of pitcheseach of a specific duration. The pitches in their respective durations areheard not just in sequence, nor merely as a sequence, but as a melodicsequence, a temporally unfolding, musically meaningful whole. Themelodic pattern relates the notes sounding over time according to a senseof musical significance. For this meaningful musical pattern to take shape,it must sound over time—the notes represented in the score or played all atonce do not constitute a melody—yet the object of the hearer’s awareness isthe melodic whole, not just the individual notes.

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This awareness unites past, present, and future. But it is an awareness oftime occurring in time, not from some point outside the temporal process,as Spinoza supposed. It is tempting to think that to grasp a melody is to takein retrospectively and all at once the musical path that has already beentaken. How else, one might argue, is the whole to be grasped, if it unfoldsover time and we cannot hear it sub specie aeternitatis? But this is a mistake;not a mistake about the metaphysics or even the phenomenology of time,but a mistake about the kind of thinking involved in grasping a melody(Husserl 1991; Carr 1986, 21–30).

To grasp a melody the hearer needs attention, memory, and anticipation.William James argued that this is true of experience generally. Our repre-sentations of objects always involve “the echo of the objects just past, and [ . . . ] the foretaste of those just to arrive [ . . . ] These lingerings of oldobjects, these incomings of new, are the germs of memory and expectation,the retrospective and the prospective sense of time” (James 1981, 571). Butgrasping a melody is a special case of, and hence more than merely having,a sense of the specious present. Melody has direction. “Only by the form, thepattern,” Eliot wrote, “Can [ . . . ] music reach/The stillness,” i. e., the com-pleteness and repose of a meaningful whole (1943, ll. 140–1). Musical think-ing is a kind of rule-following: To grasp a melody in medias res is to projectthe direction of musical movement on the basis of what is sounding and hasalready sounded. Melody-thinking is holistic thinking, that is, thinking intemporal sound patterns and melodic lines as the notes are sounding,keeping in mind the path already marked out and anticipating where it willgo next.

In music, the past, present, and future are related internally by the emerg-ing melodic pattern. Grasping a melody, especially hearing it for the firstfew times, can be flexible or revisable on both ends of the melodic line. Inthe middle of its unfolding, the hearer projects the line on the basis of hermemory of the partial sequence already fading into the past. If the projec-tion matches the direction, her grasp of the meaning of the past is confirmed.If it goes in a surprising direction, not only is she forced to rethink its antici-pated future, but equally she must give altered significance to the sequencealready heard. She now hears a different melody from what she thought shewas hearing—the pattern is different, hence the musical significance of themelodic moments already sounded is different. The present and anticipatedfuture of the melody alters its past. In literature, Eliot once wrote, the presentalters the past as much as the past directs the present (Eliot 1950, 5). Thesame is true also of music.

My suggestion, then, is that melody, or rather the kind of mindfulnessinvolved in grasping a melody, offers a model that promises to illuminatelaw’s characteristic normativity. Compared with other images frequentlydeployed in the history of jurisprudence to illuminate law’s normativity,melody has one signal advantage: No one will be inclined to take it literally.



No one will be tempted to look for music coming from courtrooms, solici-tors’ offices, parliament chambers, or police precincts. Still, with melody’smodel we will be able to shed new light on familiar but often overlookedfeatures of practical reasoning structured by law.

4. The Temporal Texture of Intentional Action

Before we explore this image of law’s melody, we can gain further insightby exploring briefly the role of this distinctive mindfulness of time in ordi-nary practical experience. The form of mindfulness modeled by grasping amelody is a pervasive feature of human experience, especially intentionalaction. Aquinas maintained that “memory of the past, understanding of thepresent, and foresight of the future” are all “integral parts” of prudence “aswall, roof, and foundations are parts of a house” (Aquinas 1981, IaIIae Q57,a6, IIaIIae Q48, a1). Few will deny that intelligent intentional action can onlybe action undertaken over time, projected into a temporally extended world.To lose hope for the future is to empty the present of significance for it is tolose the field on which meaningful projects can be played out. Likewise asense of the past is essential to intentional action. Memory is the medium oftransmission of the lessons of the past.

These points are familiar and important, but I want to call attention to aless obvious dependence of intentional action on a sense of what Eliot called“the enchainment of past and future” (1943, I, 79). For this purpose I willfocus on deliberately intended action, a subset of purposeful actions. Includedin this wider class are self-disclosing actions, actions the aims of which are dis-closed in the doing. The case for the role of melody-modeled mindfulnessof time in self-disclosing actions is equally strong, I believe, but I will notdiscuss this important kind of purposeful action here.

Some philosophers have been tempted to conceive of intended action inthe way a Deist conceives of creation: God gave the great engine a push andthe rest is a matter of metaphysical inertia. Likewise, intention might be con-ceived as a kind of psychic push to get the action-engine going, which thenproceeds to fulfillment by a kind of practical-causal inertia. But, of course,intentions are not like this. Intended action is an undertaking, governed bya project. To form an intention is to organize a portion of one’s time, to givemovement or direction to one’s involvement in that span of time.

Bratman (1999) helpfully suggests that we view intentions as relativelystable, partial plans for present and future action. They are partial in thesense of being indeterminate, needing to be filled out as time goes by. Withthis in mind, we can look at the role of mindfulness of time in intendedaction from two points in the process: ex ante and in medias res. The place forus to start is in medias res. The agent in mid-course typically faces new prob-lems for deliberation. This deliberation is framed by three parameters: the intention-plan, current circumstances, and the initial installments in the

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execution of the plan. Deliberation with respect to these parameters is gov-erned by norms of coherence (taking this term in a very broad sense).Among these are norms of instrumental rationality, but they are not the onlyapplicable norms of coherence. Actions can also “make sense,” for example,as appropriate expressions of sentiments like gratitude or respect, as affir-mations of relationships like friendship, or as instances of intrinsicallyvalued types like grace or dignity. Norms like these often fund judgmentsof coherence or normative meaningfulness.

Rational execution of one’s intention depends on integrating these threeparameters into deliberation. So, the agent in medias res cannot limit her attention to the past installments and current circumstances, ignoring theintention-plan, for, as she sees it, the practical deliberative problem she facesnow is shaped by her intention, and not merely by the causal antecedentsof her situation and the current state of play in the world. Her past conductis related to present options not primarily as cause to effect but as constitu-tive parts of a temporally extended project—the already sounded notes ofthe melody, as it were. The practical, normative significance of the relevantrange of past conduct for the present depends directly on this fact.

Similarly, the agent must not focus exclusively on the intention-plan, orthe plan plus past installments in its execution. The intention-plan need notbe (and typically should not be) rigidly fixed. Present circumstances mayforce her to adjust, or even abandon, the plan. An intelligent agent seekingcoherence in action must be able to form coherent sub-plans in execution ofher intention, but she must also assess the progress of this plan and adjustcourse accordingly. By the same token, past installments may also forceadjustment, because partial determination of the general plan up to thepresent will close certain options for the agent and open others. It may alsoforce adjustment if past actions were ill-considered or ineptly executed andso may fail to fit with the agent’s original sense of her plan. Finally, the agentmust project her current decisions along a line extending from her past intothe future, and anticipate future determinations even before she has madethem. Thus, the agent cannot achieve coherence without a keen sense of herpast conduct and the intention-forged chains that bind it to her present andfuture. When it comes to intentional action, we might say, continuity withthe past is not a duty, but it is a necessity.

This mindfulness of time is equally essential ex ante, at the point of delib-eratively forming one’s intention. Of course, we live much of our liveswithout explicitly and deliberately forming intentions ex ante. Purposefulintentional action need not be deliberate and the aims of much of what we do purposely may be disclosed as we act. (Earlier, I called this “self-disclosing action.”) We might even picture ourselves living a life largelywithout such intentions and aims, free from the burdens they inevitablybring with them. Nietzsche thought this fantasy to be as irresistible tohuman beings as it is unattainable.



Consider the herd grazing before you. These animals do not know what yesterdayand today are but leap about, eat, rest, digest, and leap again; and so from morningto night and from day to day, only briefly concerned with their pleasure and dis-pleasure, enthralled by the moment and for that reason neither melancholy norbored. (Nietzsche 1980, 8)

We envy the happiness of the animal which “immediately forgets and seeseach moment really die” (1980, 9) but does not experience it as dying, hethought. We want to live like the animal, neither bored nor sad, experienc-ing neither regret nor shame. But we want it in vain, because we do not“want it like the animal” (1980, 8). Indeed, he argued, it is precisely becausethe animal is incapable of wanting such a life that it is capable of living it.Paradoxically, our wanting it already puts it beyond our grasp.1 The veryyoung child, “playing between the fences of past and future in blissful blind-ness,” is inevitably “called out of its forgetfulness” (1980, 9). The enchain-ment of past and future is part of the structure of human experience andintelligent human action.

One need not accept Nietzsche’s reading of this fantasy to recognize thatto think coherently and effectively about one’s action one cannot live justfrom the present moment, denying past or future. Neil MacCormick unin-tentionally echoed Nietzsche (but equally Kant and Hegel) when he wrote,“[o]ur capacity to do anything, as distinct from our simply being a part ofsome ongoing and undifferentiated process, depends on our seeing howparticular acts belong in larger activities or projects” (MacCormick 1995,111). We must view our actions and our involvement in our actions holisti-cally over time, fitting the parts together into a meaningful whole, wherethe plan formed ex ante and successive attempts to formulate partial sub-plans in medias res are essential components of this meaningful whole. Tolive every day thinking that it is the first day of the rest of one’s life is not tolive a radically free life, but an empty and radically disconnected one.

It is possible, of course, to view one’s life as the revolutionary views thelife of the political community he strives to transform, resolutely turning hisback on the past in order to build a radically new future. However, tosucceed, the revolutionary must ardently hope, and resolutely struggle tomake sure that his innovations take hold and so live on in the future, suchthat for his post-revolutionary descendents what was done now (that is, inthe their past) will be treated as meaningful in shaping what is then (in theirpresent) to be done (Rubenfeld 2001, 37). He cannot allow that his strictlyforward-looking perspective be adopted by those in the future who will

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1 I believe the paradox according to Nietzsche lies in the difference between wanting as ahuman being and wanting as a non-human animal. We want humanly to want as an animal,but to want as a human is to be motivated to act in the world such that one sees one’s actionas fulfilling the want, and that is precisely what is not available if one succeeds in wanting (asan animal). So, one can succeed perhaps in putting oneself in a condition such that one’s wantsare only those of an animal, but that could be seen (by oneself at least) as fulfilling one’s desire.

implement his innovations, for then his efforts will be entirely in vain. Hislegacy will be utterly negative and destructive, as in Hegel’s paradox of“absolute freedom” enacted in the Terror following on the French Revolu-tion (1977, pars. 582–95).

Thus, the revolutionary’s attitude is striking for its explicit exceptional-ism. Such exceptionalism is not necessarily or always unjustified, but justi-fication will be rare and will always call for a specific and powerfulargument that takes into account the past as well as the future, an argumentthat views the need for localized amnesia as an essential stage in a largerproject that unites the society’s past and future into a principled trajectory.Again, we are forced to recognize the necessity of continuity with the past.

The lesson to be learned by the individual agent from the revolutionary’splight is that even deliberately forming an intention ex ante is likely to takeplace in the context of other intentions, plans, or commitments relative towhich deliberation here and now is in medias res, even if at first it appearsto be entirely ex ante. It is likely that there is a practical context in which thepoint or reasonableness of the intention deliberated now depends in part onits coherence with the agent’s past as well as future.

We might note one further feature of intelligent human action: It is typi-cally performed in thick social contexts. We live in close social proximity toeach other and find ourselves enmeshed in complex networks of interactionwith each other. These interactions are valuable to us either instrumentally—because they enable us to achieve other individual or collective goals—orintrinsically—because we value being and acting together for its own sake—and often both. Our interactions, and the practices that shape them, providemuch of the texture of meaningful human lives. Aristotle (1985, 1170b, 11–4)reminds us that, for interdependent beings like us, shared experience is notlike that of cows sharing a pasture, but more like friends sharing a meal. Ityields common experience because it arises from common perception andcommon discourse rooted in a common mindfulness of time. This commonexperience also makes possible common or joint action, when parties havecommon goals, and coordinated or cooperative action, when their goals aredifferent or even in conflict.

Planning and executing joint projects is possible in part because peoplehave learned how to think holistically over the spans of time in which theirprojected joint plans unfold, and can determine specific sub-plans in mediasres by meshing their actions with the actions of others, integrating not onlytheir own past actions but also the contributions of the other parties to thejoint project into the larger picture and anticipating their responses to thestory as it is unfolding. Likewise, when they face problems of coordinationin pursuit of private and potentially conflicting aims, their shared past ex-perience, their need to make their actions intelligible over time, and thetechniques and strategies they have developed together to accomplish this,offer them a kind of commons from which they can draw to coordinate their



interactions. Thus, mindfulness of the temporal dimensions of our practicallives is an absolutely essential condition of intelligent human action in sociallife as well as in our private lives.

5. Legal Tales

It is time to turn to our main subject, the temporal dimensions of law. Mythesis is that the kind of mindfulness of time on the model of melody isessential to the nature of law. But before we consider the argument for thatvery general and abstract thesis we might do well to consider some rela-tively more concrete examples of the operation of time-mindfulness in law.I will mention just two. They are meant to be illustrative only, suggestive ofthe role of melody-modeled temporal thinking in law. With more leisure todevelop the thesis of this essay, these examples might be developed morefully and other, perhaps equally important, contexts for temporal thinkingexplored as well.

The temporal dimension of ordinary legal practice is obvious. Considerlitigation. Litigated cases are stories, lawyers’ stories, or rather people’sstories told in the special language of the law (MacCormick 1995, 116–8;Twining 2002, 381–423). The narrative character of litigation has long beena part of our understanding of law. In thirteenth century English legal doc-uments, the advocate was called a narrator (or conteur in Anglo-Norman),and the pleading was called a “tale” (narratio or conte). The advocate wasregarded as “a professional teller of tales in the vernacular” (Clanchy 1993,274).

A major task of lawyers to this day is to convert “the raw material of life[ . . . ] into a story that will claim to tell the truth in legal terms” (White 1973,859). Law regiments the stories told, and the regimentation can sometimesobliterate the original tale or twist it into something its characters cannotrecognize, but this makes them no less tales. Tales told in court are formu-laic, but that is to some degree true of all tales. Typically, the legal tale willstill have to offer, in Twining’s words, “a narrative of particular eventsarranged in a time sequence and forming a meaningful totality” (Twining2002, 385), where the law sets the standard of meaningfulness which willoften seem artificial and distorting to lay hearers. Indeed, fact-finding inadjudication relies heavily on the techniques and template of telling “tales.”Litigated cases not only take (often too much) time, but their subject matterhas an essentially temporal structure and are governed by norms of narra-tive coherence—they must be good stories and true, good as stories with a substantial and credible claim to truth (Twining 2002, 425–44). One indispensable mark of the “goodness” of the tale is that it makes temporalsense.

Moreover, this narrative is enacted at trial; the tale told is according to thespecial protocol of litigation. The trial not only tells a story, it is itself a story,

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often a gripping one, as dramatists from Sophocles to television screen-writers have understood. The fact that the litigation unfolds over time,according to theatrical as well as legal logic, may be merely incidental tolaw, as temporality is only incidental to sculpture. But it may also signal adeeper temporality of law and of practical reasoning carried on within theprecincts of law. We have already briefly noticed one such role of time inlegal reasoning: Facts found at trial must be structured according to a coher-ent temporal narrative. Mindfulness of time is also essential to reasoningfrom precedent.

6. Janus, Patron of Precedent

Janus was the Roman god of beginnings. The first month of the year, likethe first hour of the day and the first day of the month, were sacred to him.Janus was also god of gates and thresholds. Guarding the domicile, andover-seeing the comings and goings of domestic life, he faced forward andoutward and he faced back and inward. Janus gets my vote as the patron ofprecedent-sensitive legal reasoning. In most legal systems even the most“novel” cases are only relatively novel, and there is a large amount of prece-dent or precedent-like material bearing on particular cases that come to thecourt for decision. Precedent-sensitive judicial reasoning is always, likeJanus, on the threshold of past and future, seeking to integrate them into anormatively meaningful whole. Melody models this kind of integration.

Deciding cases governed by precedent is like grasping a melody as it isbeing played, or carrying out an intention in media res. It involves attentionto present circumstances, memory of past decisions, and anticipation of the direction in which the rule or ratio is moving. The past is essential toprecedent-sensitive reasoning, but it is not simply backward-looking. Somefabrics and metals have “memory”: After being stretched or bent they returnto their original shape. Law’s memory is not metallic memory. Law’smemory is always bent to the present in anticipation of the future. Equally,its focus on the future is from the threshold of past and present. At any pointin the arc traced by the ratio decision-makers interact with decision-makersgoing before them and coming after them.

Thus, fidelity to precedent is rarely simply a matter of applying a rule laiddown in the past to present circumstances, as if the precedent-setting courthas laid the rails and the present court need only hop on the train as it movesinexorably forward. Precedent-sensitive reasoning is never as unilaterallydetermined as that. Contemporary jurists attracted to “pragmatism,” forexample, Posner (1995), see judicial reasoning as a matter of consideringwhat the best rule for the present case is, giving full consideration to theimpact of past decisions on those circumstances (for example, the way inwhich they shape expectations of litigants or others). But this misrepresentsthe dynamics and the normative constraints of precedent-sensitive reason-



ing. The problem is not so much that pragmatists ignore the past—theysurely would deny the charge. Nor is the problem that they fail to see thatprecedent reasoning is forward-looking; after all they are bred-in-the-boneconsequentialists. They can admit, with Schauer, that

[i]f the future must treat what we do now as presumptively binding, then our currentdecision[maker] must judge not only what is best for now, but also how the currentdecision will affect the decision of other and future assimilable [relevantly similar]cases. Thus, the current decisionmaker must also take into account what would bebest for some different but assimilable events yet to occur (Schauer 1987, 589).

The problem, I say, is not that the past and future are not considered, butthat they are not considered in the right way, as temporal parts of a norma-tively meaningful whole played out over time by different but intimatelyrelated decision-makers.

The best decision now depends in part on how the decision fits with pastdecisions in similar cases such that the pattern projected from precedent topresent case has what Dworkin (1986) called normative “integrity.” But itdepends also on how the decision will be taken up in future by other judgesand that is not something the deciding court controls. It is not, to useDworkin’s image, simply a matter of the judge completing the chain novelmaking it the best it can be, given the chapters already written. In a livinglegal system, precedent-sensitive decision-making is always in the middleof the novel, or, as I prefer, in the middle of the melody. The rule establishedby a court depends not merely on what that court says or does, but also in part on how future courts (and other decision-makers) understand what earlier courts said and did. It depends on what they take its rationaleto be and the extent to which they regard the cases they now face to be relevantly similar to the precedent case. These are not matters the first courtcan determine unilaterally. Properly deciding the instant case alwaysinvolves anticipation of how the decision will play in future deliberationsand decisions in the legal community and beyond. Deciding precedentalways to some degree involves anticipation of the direction of the decisionalmelody.

This feature of ordinary adjudicative reasoning is, I believe, pervasive. Itmay not always be immediately evident, but one can readily find judicialopinions in which it is near the surface. Take, for example, Tobin v Grossman([1969] 24 N.Y. 2d 609) decided by the Court of Appeals of the State of NewYork in 1969. Mrs. Tobin sued to recover for emotional injuries caused byGrossman’s negligent driving. Grossman struck Mrs. Tobin’s two-year-oldson, Gregory, who sustained serious injuries. Mrs. Tobin sought to recoverfor mental and physical injuries caused by shock and fear for her son.Although she did not witness the accident, she was nearby and camerunning when she heard the screech of automobile brakes. To her horror, shesaw her severely injured child lying on the ground (ibid., 611–12).

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There were at least three degrees of separation between standard autonegligence cases and Tobin: Plaintiff claimed not (just) physical injury orfinancial loss, but emotional injury, which was not the direct effect of theinjury, but rather the indirect effect of the injury to another party, and plain-tiff was not present at and did not witness the accident itself but only itsaftermath. The court had no doubt that a cause of action would lie fordirectly caused emotional injuries, but regarded as entirely novel the claimfor recovery for such injuries to a third party (in this case the direct victim’sparent) who was not an eyewitness (ibid., 613). The court refused to recog-nize a new duty of care and cause of action, holding that “no cause of actionlies for unintended harm sustained by one, solely as a result of injuriesinflicted directly upon another, regardless of the relationship and whetherthe one was an eyewitness to the incident which resulted in the directinjuries” (ibid., 611).

In view of general judicial reluctance to create new duties from the bench,this result is not surprising, but the Tobin court’s decision cannot be attrib-uted solely to natural judicial conservatism. The court acknowledged thatespecially in the area of tort law, courts have expanded established conceptsand have created new causes of action, for example, the development of thelaw of products liability (ibid., 613–14). Moreover, the court seemed clearlymoved by the mother’s suffering and sympathetic to her claim, which ledit to explore a number of eligible policy grounds to support her claim. Thedifficulty, they discovered, was finding a rule that carved out a stable middleway between recovery for meritorious claims of plaintiffs like Mrs. Tobinand excessive and unfair liability of defendants. They summed up theirproblems in the following passage.

The final and most difficult factor is any reasonable circumscription, within tolera-ble limits required by public policy, of a rule creating liability. Every parent who losesa child or whose child of any age suffers an injury is likely to sustain grievous psy-chological trauma, with the added risk of consequential physical harm. Any rulebased solely on eyewitnessing the accident could stand only until the first case comesalong in which the parent is in the immediate vicinity but did not see the accident.Moreover, the instant advice that one’s child has been killed or injured, by telephone,word of mouth, or by whatever means, even if delayed, will have in most cases thesame impact. The sight of gore and exposed bones is not necessary to provide specialimpact on a parent. Again, the logical difficulty of excluding the grandparent, therelatives, or others in loco parentis, and even the conscientious and sensitive caretaker,from a right to recover, if in fact the accident had the grave consequences claimed,raises subtle and elusive hazards in devising a sound rule in this field. [ . . . ] Indeed,whichever way one turns in permitting a theory of recovery one is entangled in theinevitable ramifications which will not stay defined or limited. There are too manyfactors and each too relative to permit creation of only a limited scope of liability orduty. (Tobin v Grossman [1969] 24 N.Y. 2d 617, 619)

This may not strike you as a compelling argument in this case, but I inviteyou to look beyond the question of its cogency in this context to the nature



of that argument, and more specifically to the constraints operating on thecourt’s deliberations as evidenced in the opinion. The majority considered,in one sense, “the consequences” of alternative formulations of a rule thatwould authorize recovery for Mrs. Tobin’s injuries. But they were not antici-pating the consequences of putting in place this or that rule (or formulationof it) on the behavior of drivers, or insurers, or the economy, and the like.Rather, they were trying to anticipate the impact of their adopting a formu-lation of a rule on the adjudication of future “assimilable” cases. That is, theywere thinking about the place their decision would take in the reasoningand deliberations of future courts. They clearly believed that if they weresimply to declare that the cause of action for emotional injuries is extendedto third parties but strictly limited the class of third parties to parents in theimmediate vicinity of the accident, the rule would appear arbitrary to latercourts in light of the kinds of background concerns that underlay the ruleand the court’s recognition of a cause of action in Mrs. Tobin’s case. Because,apparently, they accepted that their merely saying so could not make it so,they were forced to consider how later courts would handle cases in lightof their decision. And future courts, they anticipated, would not merelyfollow the rule as if laid down, but would try to fit it into a framework ofbroader considerations to grasp its reasonableness and its force for the casesthey face. They concluded that there was no way they could consistentlyand reasonably recognize a cause of action in Mrs. Tobin’s case withoutrisking a much wider liability for future defendants than could be justifiedon grounds of fairness.

The task envisioned by the Tobin court was not merely to fashion a generalrule that would in their best judgment meet conditions of reasonablenessand fairness, and whose consequences would on balance be good as judgedby some common standard. The task as the court saw it was, rather, tofashion a rule that met those conditions and that would stick, that is, one thatwould be seen as a reasonable solution to the kind of problem the instantcourt faced and be applied to cases that future courts would come to see asrelevantly similar. When they despaired of finding such a rule, they aban-doned the search and rejected plaintiff’s alleged cause of action. In its deliberations, the court evidenced its awareness of an important problem ofcross-temporal coordination. What a court expects future courts (and citizens, and lawyers advising citizens) to do, and in particular how theywill reason, is an important, if not always decisive, component in the presentcourt’s deliberation, perhaps just as important as the previous court’s deci-sion and reasoning on future courts’ deliberations. But this simultaneouslyforward- and backward-looking, time-integrating mode of thinking is justwhat Janus ordered. It is modeled nicely by melody-grasping mindfulnessof time. This mindfulness of time is an important, even indispensable, component of adjudicative reasoning in any jurisdiction that recognizes thenormative force of precedent.

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7. A Note on the Role of Mindfulness of Time in ConstitutionalInterpretation

I have called attention to the role of this kind of mindfulness of time in adju-dicative reasoning with precedents. We might ask about its role in statutoryor constitutional interpretation. This issue deserves more serious thoughtthan I can give it here. I will only offer a few remarks to block a natural, but I think mistaken, association of respect for the past with originalistapproaches to interpretation.

The gap between the view I have sketched above and originalism as Iunderstand it is easy to expose. Originalism seeks to anchor constitutionalinterpretation either in the framers’ intent or in original meanings of language in use at the time of the framing of the constitution. The aimusually is to put certain framework principles, concepts, or rules in a formthat is widely accessible and beyond or outside the rough and tumble ofpolitical debate and to give arguments deploying them the semblance ofrationality lacking in political debate. The historical, that is, temporallylocated, nature of the constitutional materials is thought to be irrelevant tothis purpose and way of conceiving of their practical significance. Theframers’ intent or original meanings are supposed to function asArchimedean points anchoring the rational structure of political life, but notas temporal points within that political life. No attempt is made to locate thematerials in a coherent account of the political life of the polity over 200years. Indeed, I suspect that originalists would regard the thought of doingso with great skepticism. Their skepticism may be justified, but it would beskepticism about the rational credentials of the mindfulness of time modeledby melody, not a form of such mindfulness.

Moreover, the kind of time-integrating thinking that I have tried to modeldoes not offer anything like an Archimedean point outside politics. It is politics pursued by other means, in a way, although I think the differenceof the means may make a great difference. If we take this mode of thinkingseriously, we are called on responsibly to make sense of our common activ-ities over time. Sometimes that will involve following the familiar melodyto its expected if uninspired conclusion. At other times, it will involverethinking the direction of the melody, shifting it in a new direction, explor-ing new possibilities or, as often, making something better out of a line ofdecisions that had begun to go badly wrong. This dimension of “regret” isan essential feature of the imperative of integrity as I understand it. That isto say, maintaining the normative coherence of this legal melody, theintegrity of law as it develops over time, is never just a matter of showingit, as it was and is, in its best light, but rather it involves acknowledging theerrors and false directions of the past and taking steps to repair the rupturesand reorient the trajectory of whole into the future (Postema 1997, 829–31).



Thus, it seems to me that the kind of mindfulness of time I have illus-trated in this essay is very different from originalism both in basic techniqueand in underlying aim. And, if I am right that such mindfulness is at theroot of law’s claim to normativity, then originalism, which seems to reject it,will be difficult to integrate into a plausible general jurisprudence.

8. Law’s Distinctive Mode of Guidance

Law’s essential temporality is not limited to the narrative character of casesin litigation and argument from precedent, important as these surely are. Itlies in the very nature of law and its distinctive mode of normativity. Myargument for this thesis begins from the proposition that law is a device forthe normative guidance of human action—it is essential to the nature of lawthat it seeks to guide human action normatively. In the history of jurispru-dence, no serious theory of law of which I am aware denies this proposi-tion, although debates have raged from the beginning about how tounderstand it. We may want law to do many different things, but it will dothem (for the most part) in its distinctive modus operandi, by normativelyguiding human action.2

Law is a normative enterprise. Thus, it regards those subject to its guid-ance as rational self-directing agents with two distinctive capacities: (1) Theycan grasp legal norms and apply them to the specific circumstances of theirdaily lives without further assistance, and (2) they can appreciate reasonsfor walking the path described by the self-articulated norm. The bulk of legalnorms, then, must be general. This is not just because this is a cheaper andmore efficient mode of social control than case-by-case micro-managementof behavior, but also because law’s task is to guide people engaged incomplex patterns of social interaction over time. “With posterity the despot,as such, has no means whatever of communication,” Bentham wrote. “Hehas no names to call them by; he has no language in which to converse withthem. But to the power of the legislator, time has no barrier to oppose”(Bentham 1970, 91).

Two key features of rational self-directing human agents influence thelaw’s distinctive mode of guidance. First, we live our lives, plan, and carryout our activities, in rich networks of social interaction. So, if law is to guidehuman action, it must undertake to guide human social interaction. Given the

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2 Law typically guides, or at least purposefully influences, social behavior and interaction inother ways as well. For example, it can structure the equities market in such a way that onlycertain kinds of trades and exchanges of information will be reasonable for a trader to con-sider—not because other kinds are sanctioned, but because the patterns of behavior of othertraders shaped by the law will make those other kinds unavailable or too costly. It can alsoguide by so shaping social options and opportunities that after a while they will rarely occurto ordinary people, they will fall outside the horizon of their ordinary experience. I am grate-ful to Matthew Smith for bringing to my attention ways in which laws and other social normscan guide intelligent social behavior that do not fit my model of normative guidance.

nature of social life, to guide rational self-directing human agents inevitablyinvolves guiding their interactions. Hence, law must not only be general,but it must have distinctive public shape. The public shape of law makes itpossible for individuals (and groups of individuals) to orient their actionstowards the actions of others in the community.

Second, rational self-directing agents not only can follow norms, but theycan also take (at least some of) these norms as standards for evaluation andvindication of their actions and the actions of others. It is important to us tobe able to judge conformity to the norms as reasonable and worthy (at leastto some minimal degree), and we judge ourselves as reflected in theseactions. And because we live a large part of our lives in public, we use thenorms to judge the lives and (to a degree the persons) of others as well. Weuse them to legitimate our actions in our own eyes, and in the eyes of others.This is not just an accidental by-product of our rational self-direction; rather,it is one important mode in which we exercise and express it (Postema 1995).Of course, we do not view everything we do intentionally in this way. Some-times we seek to distance ourselves from our actions, or refuse to take fullresponsibility for them; we attribute them or their consequences to othersor to Nature. But we cannot do this for any large portion of our actionswithout suffering serious alienation and displacement. For to live a life ofany depth and extension I must be able to see what is done by me as whatI do. Thus, it is very important for our social lives that we have standardswith which we can guide our actions in public, legitimate them publicly, and hold others accountable to them. This is an important aspect of law’snormative modus operandi.

From here it is only a small step to grant the essential temporal dimen-sion of law’s normativity. We already have seen that intended action notonly occurs in time, but that time is essentially implicated in it. Our actionsrealize purposes over time according to temporal patterns governed bynorms of practical coherence. Like melody, action is essentially temporal.This is as true of our interactions with others as it is true of purely privateactions. To pursue purposes in our social lives is to pursue them in thecompany of and in complex interaction with others. The patterns of inter-action must provide us with the resources for achieving coherence in ouractions and interactions over time. Rational self-directing human agents findcross-temporal meaning in their actions in part as a function of the devicesand structures made available in the community for this purpose.

Law is one such device. It is not the only device available to us in a decentand properly functioning society, but it is one of the most important, and ittakes on increasing importance as the distance (in space and time) increasesbetween those who interact. Law, John Finnis observed, offers “a presentguide, and always the action and decisions so guided will be in the future;but what is wanted is a guided response to a situation which has beenbrought about, often by men who were then relying on ‘the law’ to guide



them” (1973, 65). Law is a very important device for orienting rational self-directing agents to their communities and to time, guiding and enablingsocial action and its public legitimation.

This is possible because law is, by its nature, a temporally extended socialform. It is temporally extended, not in the way that sculpture is, but ratherin the way a melody and friendship are temporally extended. It is a systemof norms, or as I prefer, a framework of reasons, and an associated practiceor discipline of public deliberation with these reasons (Postema 2002b) thatenables rational self-directing agents to achieve a degree of coherence intheir temporally extended social lives, precisely because it anchors deliber-ation and decisions about present actions, and projections with respect tofuture actions, in past decisions and actions of citizens and officials. This isnot merely an accidental side-benefit of law; it is central to its task of guidingintelligent human action. Law’s “most general and basic function,” Finnisobserved (1973, 65), is “to relate the past to the present, by providing apresent guide to actions which take place and have effect in the future (whenthis present will be in the past).” Law’s distinctive normativity is pathdependent, not accidentally but by design, as it were.

9. Normative Coherence and the Idea of a Momentary Legal System

If we accept the essential temporal dimension of law’s normativity, we havereason to reconsider two views current in contemporary Anglo-Americanjurisprudence. One such view is that the identity of a legal system over timeis a function of identity-maintaining links among momentary segments ofthat legal system. The second is that this link is supplied by a fundamentalformal principle of validity (rule of recognition) practiced by law-applyingofficials. I shall argue that, if the above account of the temporality of law iscorrect, then the idea of a momentary legal system presupposes the idea ofa legal system with identity over time. I shall also suggest, albeit more ten-tatively, that the identity of a legal system cannot be accounted for simplyin terms of single rule of recognition rooted in the practice of courts.

I begin with MacCormick’s (1995) discussion of the temporal character oflaw. MacCormick insists that “appreciation of the temporal character of lawand of legal activity is essential to our understanding of the juridical” (1995,124). He argues that law cases must be structured with cross-temporal, nar-rative coherence in mind (1995, 115–18). However, he insists that a differentnotion of coherence is more fundamental to law than cross-temporal coher-ence (1995, 119–24). This “normative coherence” has three essential features:systematicity, purposiveness, and synchronicity. Consider first systematicity.Modern legal rationality depends on locating legal norms in a larger nor-mative system, he argues. Such norms are members of the same givensystem in virtue of being traceable to a common source or origin. System-aticity, he argues, is essential, if not sufficient, for law’s normativity

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(“modern legal rationality”). The normative coherence of a set of norms isa function of this ideal formal validity: “A system of law is to be understoodas an interrelated set of norms all having a common ground of formal valid-ity” (1995, 119). Another necessary condition is purposiveness: Normativecoherence stipulates that the norms “should [ . . . ] hang together purpo-sively [ . . . ] [such that] norms belonging to a system can be envisaged asdeterminations of particular values or principles” (1995, 120). They, pre-sumably, must also fit together meaningfully.

Finally, MacCormick argues that normative coherence, unlike its “narra-tive” cousin, has “an essentially synchronic character” (1995, 119). Norma-tive coherence is an ideal property of a legal system at a given moment in time,of a momentary legal system. It is rooted, he maintains, in a principle offormal justice, demanding “that everybody [in a community] be treated thesame according to the same rules under the same interpretation, and in away that makes some overall sense, rather than being capricious and arbi-trary” (1995, 121). MacCormick also acknowledges a notion, akin toDworkin’s notion of integrity (Dworkin 1986, Postema 1997), which “callsfor a certain coherence over time in the development of legal norms andtheir interpretation” (MacCormick 1995, 124). But he argues that integrity-coherence supplements and is subordinate to the more fundamental, syn-chronic normative coherence: “Ideally, at least, the diachronic normativecoherence that integrity demands is coherence across a system which at eachmoment in its development ought [ . . . ] to exhibit synchronic coherence asa momentary system” (ibid.). In its primary form, normative coherence is aproperty of momentary systems; diachronic normative coherence (integrity)is derived from and dependent on it.

If my argument earlier is sound, this view of law’s normativity is mis-taken. The notion of a normatively coherent momentary legal system,viewed in isolation from the system over time, itself lacks coherence. Prob-lems arise immediately, if we take the purposiveness of the system seriously.To say that law is a purposive enterprise could mean that it has its own distinctive purposes, or that it enacts or promotes various purposes, values,and principles that people or their governments endorse. Taken either way,a normatively coherent legal system cannot be momentary, because pur-poses unfold over time and can meaningfully structure intentional actiononly if it is possible for the agent to project the action into the future. Pur-poses are temporally extended, not momentary. Legal norms are likeintended actions: We cannot coherently enact them unless we recognize howlaw subjects and officials in medias res will connect momentary componentsinto a purposively coherent whole.

Problems get worse if we consider systematicity. For there to be a momen-tary legal system, it must be possible to identify it and distinguish it fromother systems of norms (including other legal systems). At this point, MacCormick’s account of the systematic character of law follows Hart’s. On



this view, the identity of a given legal system is strictly a function of its fun-damental norm, its formal criterion of validity. Although legal systems areconstantly changing, a sequence of time-indexed sets of norms counts asparticular and unified a legal system, on this view, because it is rooted inthe rule of recognition of that legal system. According to Hart, the rule ofrecognition “remedies” a problem bedeviling pre-legal societies, the normsor social rules of which are merely aggregated, individually acceptedperhaps, but not systematically interrelated. The rule of recognition is theprinciple of systemic unity (Hart 1994, 94–5, 116, 236). The rule of recogni-tion, in turn, is rooted in the practice of officials who regularly interpret,apply, and enforce the norms of the system. On this view, the identity of a“momentary legal system” is guaranteed by the fact that it is rooted in thepractice of official recognition.

However, a legal system is not a sequence of sets of valid norms, any morethan a melody is merely a sequence of pitches. Law’s modus operandi is tooffer guidance and a framework for the interaction of rational self-directingagents. This requires at a minimum a kind of normative coherence over time.Whatever coherence it has at a time is and must be conceived of only as afunction of its coherence over time. Hart regarded the practice of law-apply-ing officials as strictly a present matter of fact, a fact that itself is constantlychanging (Finnis 1973, 55, 68). So, the rule of recognition, so conceived,cannot confer systemic unity on the any set of legal norms, since the ques-tion of the relation across time of the fact of official acceptance of legal normsat a time leaves everything precisely where it was. The question of the identity of the legal system returns in full force. This present matter of factcannot explain the identity of a legal system over time and the identity of a momentary system can only be determined by reference to other momen-tary systems of the same legal system (Raz 1980, 189). Thus, contrary to MacCormick we must conclude that the normative coherence of momentarylegal systems is derivative, depending entirely on their coherence over time.

Moreover, as Finnis (1973, 68) observed, we have no reason to assume thatthis coherence over time will be guaranteed by any single, formal elementexisting unchanged through the many other, even fundamental, changes inofficial practice. What, then, can account for the persistence and unity oflegal systems over time and through vast changes in substance and struc-ture? According to Finnis, “the continuity and identity of a legal system isa function of the continuity and identity of the society in whose ordered exis-tence in time the legal system participates” (Finnis 1973, 69). Raz offered avery similar proposal: “The identity of legal systems depends on the iden-tity of the social forms to which they belong” (1980, 189). Finnis and Raz areright, I think, to the extent that no account of the unity and persistence of alegal system can be maintained without linking it to the continuity of thesociety in which it participates and the informal norms that structure itsordinary daily activities.

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Classical common law theorists have something to offer us at this point.From the early part of the seventeenth century on there was a vigorousdebate over the antiquity of the common law (Postema 2002a, 169–76).Edward Coke claimed extravagantly that the essentials of common lawcould be traced back to Anglo-Saxon and even Roman-Britain times. AgainstCoke, Matthew Hale argued more modestly that the origin and identity oflaws over a long stretch of time was not the important ground of its forceor, as we might put it, validity. What was essential was the continuity oflegal practice and common life through vast changes. The recurring imageof this continuity was the ship of Theseus which returned after its longvoyage the same ship as had left port years before, although every plank ofit had been replaced (Hale 1971, 40). Although the terms of this debate weredifferent from those we used above, the underlying concern is similar. Whatdoes the unity and persistence, and thereby the validity and normative claimof law rest on?

Hale’s answer is that it is rooted in the law’s continuity over time, but thisappears to beg the question. However, appearances may deceive at thispoint. Continuity, for Hale, was thought to be a function of acceptance orlong usage. By “acceptance” he meant not merely compliance or even activeconsent, or endorsement, whether by court or community, but rather incor-poration of the norms into the common law and common life of the society“by long Usage and the many Resolutions grounded upon them” (1971, 45).Legal norms fit together and made sense as a substantive whole and as aframework of` the community’s life and interaction over time. This entailedmaking use of the past norms or decisions as bases for projection of nor-mative guidance across time. Thus, the identity, unity, and persistence of lawover time was not thought to be a matter of all the norms in a set meetingsome formal conditions, but rather a matter of their fitting together into apractically coherent set of norms that was at least broadly congruent withand gave shape to public life and social interaction in the society.

The criteria of integration, on this view, were substantive rather thanformal, and pragmatic in the sense that they were congruent with the life ofpeople in the society. “Acceptance” was not a matter of assent but of use,not something declared, but rather something evidenced in ordinary activ-ities and the sense of the reasonableness of doing so that accompanies thatuse. The use or “usage” was that of ordering their lives coherently over time.Continuity was something grasped at each point in time by officials, and(many) citizens, mindful of law’s temporality. What persisted through all thechanges, on this view, was the special mindfulness of time and its practicalsignificance. This mindfulness, modeled by melody and lying at the heartof law’s claim to guide social interaction, united the norms into a system.

Thus, law’s persistence over time ultimately is not a matter of empiricalfact, either that determined by the persistence of the society of which it is apart or by the (contingent) fact of acceptance of a norm by judges. Rather, it



is a practical, normative matter. That is, whether law persists over time andthe nature of this persistence is what has to be determined practically, delib-eratively within a judicial and social frame of thinking that is mindful oftime in the manner modeled by melody.

Time is essential to law’s distinctive normativity. Law is capable of offer-ing effective normative guidance to rational self-directing and socially inter-acting agents only if it is sufficiently congruent with their social lives andthe activities and practices that structure them through time. Modern legalsystems, no less than “pre-legal societies,” ultimately rest on the integrationof norms into the complex interactions and intersecting lives of people livingtogether in communities. Thus, we have some reason to think that the sys-tematic nature of modern law cannot be conceived simply in terms of someformal norm of validity realized in the law-applying practices of officials.On the picture Hart and MacCormick offer, modern legal systems, likeinverted pyramids, are complex sets of norms balancing on the point of therule of recognition. But, if we take the temporal dimension of law’s distinc-tive normativity seriously, we must put the pyramid back on its social, andtemporally extended, base.

Cary C. Boshamer Professor of Philosophy and Professor of LawThe University of North Carolina at Chapel Hill

CB# 3125, Caldwell HallChapel Hill, NC 27599-3125

919-962-3310E-mail: [email protected]

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Melody and Law's Mindfulness of Time