A Poetics for Spatial Justice: Gaston Bachelard, Walter Benjamin, and the Return to Historical Materialism

Home , Gaston Bachelard

LAW & LITERATURE A Poetics for Spatial Justice: Gaston Bachelard, Walter Benjamin, and the Return to Historical Materialism

Christopher Tomlins

Abstract, With the ebb of the last half century’s linguistic/cultural turn, Keywords, Gaston Bachelard, socio-legal and legal-humanist scholarship has begun to return to Walter Benjamin, Materialism, materiality. This article addresses the “new materialisms” and “vibrant Material Imagination, Historical matter” of recent years, and asks how they might be embodied in a Materialism, Law, Time, philosophy of law that can address the forms, notably “spatial justice,” Spatial Justice that materiality is assuming in contemporary legal studies. To attempt answers, the article turns to two figures from the middle decades of the twentieth century: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued a trajectory of inquiry that braided two putatively distinct elements: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of classical antiquity’s four physical elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The article argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law with the humanities, new materialism can be reminded that it has a potent history from which a poetics can be fashioned for the material forms in which law appears to us today.

Who amongst us reads Gaston Bachelard? Why should we – legal humanists and historians – acquaint ourselves with the work of a long-dead philosopher of science? We should read Bachelard because, slowly but perceptibly, the humanities, hence history, hence the interdisciplines of law & history and law & literature, have begun to bend away from the linguistic (cultural) turn of the past ﬁfty years, and its dictatorship of the indeterminate. They have begun to curve back

1 LAW & LITERATURE

toward materialism. This is not a return to the epistemology of a century ago, to – for example – Lenin’sdefinition of matter as “a philosophical category denoting the objective reality which is given to man by his sensations, and which is copied, photographed and reflected by our sensations, while existing independently of them.”1 It is a materialism antagonistic to objective Cartesian dualities, a materialism that renders porous the boundaries between human and non-human, between animal, vegetable, and mineral. It is a materialism that grants all matter its own liveliness.2 The inanimate “outside” that awaits transformative mental activity is gone. Things, like people, are protagonists, actants, participants in the assemblages or networks of activity that produce and reproduce sociality. Our world is hybrid. We have ceased our attempts to “purify” it.3 Bachelard helps us because his encounters with matter personify its hybrid- ity. This is the subject of Part One of this essay. In writing the history of science’s engagements with matter, Bachelard was one of the very first to grapple with the impact of the late nineteenth and early twentieth century’s revolution in physics and mathematics – relativity, quantum mechanics, the uncertainty principle – that overthrew the rational mechanics of Newton’s universe.4 To Pierre Duhem’s “simple logical analysis of the method by which physical science makes progress,” his representation of the historical development of scientific theories and concepts as “smooth and continuous,” Bachelard counterposed a non-Cartesian dialectic that re-wrote the history and philosophy of science as “discontinuous [and] successively ruptured,” littered with epistemological obstacles overcome in decisive “epistemological breaks,” a history not of majestic- ally unfolding discovery but of “dispersion” in an endless succession of “problematics.”5 Simultaneously, the “wave and rhythmic characteristics”6 of matter disclosed by the new subatomic sciences led Bachelard into sustained engagement with the poetics as well as the science of materiality. “If a particle ceased to vibrate, it would cease to be,” he writes in The Dialectic of Duration. “Our houses are built with an anarchy of vibrations. We walk on an anarchy of vibrations. We sit down on an anarchy of vibrations. The pyramids of Egypt, whose function is to contemplate the unchanging centuries, are endless cacoph- onies.”7 Science was a mode of active inquiry that sought access to this world of vibrating matter, but so was aesthetics. The study of poetic creation revealed not just images of form but images of matter, “images that stem directly from matter.” Poetics became, no less than “the scientific mind,” Bachelard’s preoccupation. Both expressed the material imagination at work.8 If Bachelard leads us to matter’s vibrations, his vibrant matter necessarily leads us further, to what should be the first preoccupation of the legal historian – time. This is the subject of Part Two. Matter persists because it vibrates at a particular frequency, which means it exists “in and only in a time that vibrates.”9 To the extent legal historians have – all too rarely – taken a philosophical

2 TOMLINS • A POETICS FOR SPATIAL JUSTICE interest in time, however, they have gravitated toward an expression of time that does not vibrate, time as duration, Henri Bergson’s formulation (duree)of time “as an experience of ceaseless becoming that forms the basis of all human and nonhuman life.”10 But does time have only one aspect – lived, horizontal, transitive – such that even change is “indivisible continuity”?11 Bachelard thought not. It would not do “to take time to be a principle of uniformity.We must ascribe fundamental duality to time since the duality inherent in vibration is its operative attribute.”12 Orthogonal to duration was “the instant,”13 time held together only by the rhythms of repetition,14 its poetics “discontinuous and disruptive,” an explosion out of the continuum of historical time.15 “Every instant is at once a giver and a plunderer,” illustrating “the essential discontinuity of time.”16 To elevate the instant’s actual temporal ruptures over the metaphorically con- solidated continuities of duree leads us further yet, to the second preoccupation of the legal historian, which is law, and justice. How? This is the subject of Part Three. Here we encounter Walter Benjamin, whom – these days – no one needs to be persuaded to read. We will find that he has accompanied us, sotto voce, throughout Parts One and Two.17 In Part Three he will help us understand the possibilities inherent in the relationship between the material imagination, which is Bachelard’s preoccupation, and law and justice, which is ours. Constantin Fasolt has argued forcefully that it is impossible to write the history of law without also writing the history of justice. The categories cannot be separated. “Law and justice are thoroughly intertwined.”18 This is not to argue that law and justice are the same, or that one can be derived from the other. Law and justice “differ as deeply from each other as having rules differs from following rules, meaning from understanding, and thinking from acting … Law embodies our agreement in definitions of what we ought to do, and justice embodies our agreement in judgments of what that is.” But they are, in effect, codependent. “[W]ithout justice we cannot make the law stick to reality. There would be nothing for law to say. And without law, justice would be random. That is, there would be no justice at all. That constitutes their intertwinement. It gives us the language we need in order to refer to practical reality: the reality that we intend to turn into actual reality because we judge it to be good.”19 Against the tendency of historicist critique to treat invocations of justice as ahistorical moves beyond history to timelessness, Fasolt establishes that law and justice “consist of agreements in judgments and definitions of what is right and wrong that are specific to specific communities of human beings at specific times and places.”20 That is, law and justice intertwine in instants that are historically specifiable. This does not commit us to relativism. Instead, it aligns us with theories of the materialization of law in specific spaces, and the consequent location of justice in space and time. The subject of those theories is “the struggle of

3 LAW & LITERATURE

various bodies – human, natural, non-organic, technological – to occupy a certain space at a certain time,” a struggle that creates the ruptures, “cracks of the continuum,” or in other words instants, in which the dissimulating “lawscapes” upon which struggles occur are rendered materially legible, and spatial justice becomes momentarily conceivable in the renegotiation of position to which struggle leads.21 The lawscape returns us to the ubiquity of vibration. Lawscaping is an activity at once material and temporal, “an act of repetition of the here/now and the way the past passes through it, that aims at capturing the future. This is the function of the law, which … stabilises societal expectations over time.”22 But as one would expect of a temporality of instants, the lawscape “is full of internal splits, ruptures, events of distancing, pausing, revolting.”23 Such immanent vibration offers chance but not direction, hope but – as Kafka put it –“not for us,”24 or in words of a softer humor that Bachelard would undoubtedly have rec- ognized, “there is another world, but it is in this one.”25 Materialism is not a philosophy of transcendence but one that seeks reality.26 But reality is shapeless, at least in a Cartesian sense.27 Our job is not simply to ﬁnd reality, but to fashion it (this much Lenin has in common with Jane Bennett).28 To this task, materialisms old and new can both contribute. That is the subject of Part IV.

1. THE NEW SCIENTIFIC SPIRIT

Walter Benjamin might be forgiven for having other things on his mind in the winter of 1939 than French literature. Interned by French authorities as an enemy alien for the better part of three months following the German invasion of Poland in September 1939, Benjamin had to eke out the winter in deteriorating health, and with few resources. Still, on March 23rd he sent his “1940 Survey of French Literature” to Max Horkheimer at the Institute of Social Research in New York.29 Prominent among the works surveyed was a short book by Gaston Bachelard, Lautreamont, on the surrealist poetry of Isidore Lucien Ducasse.30 Benjamin chided Bachelard for failing to read Ducasse’s poetry in constellation with the world of 1939/1940: “no elucidation of Lautreamont ’s poetry can succeed outside of a historical analysis.” Ducasse’s preoccupation with images of “animal aggressivity,” of vindictive violence, of action, and of menace revealed “the physi- ognomy of Hitlerite domination.” Bachelard’s resort, via Jung, to metaphysical concepts of “spirit” and “Platonic violence” had denied him the necessary critical penetration to see this. By undertaking a psychoanalysis of Ducasse’s imagery Bachelard sought to reveal the imagination’s Lautreamont complex, but he was at best a “psychoanalytic sniper,” whose book “might be compared with drawings that certain analysands provide to help explain their dreams. Psychoanalysts treat the drawings as puzzles (Vexierbilder) and manage to ﬁnd in them images

4 TOMLINS • A POETICS FOR SPATIAL JUSTICE that correspond to the subject’s latent preoccupations.” Lautreamont had assembled Ducasse’s Vexierbild from the latent content of his poetry, of which Bachelard “allows himself to be the dreamer.” But he had failed to discern “the figure hidden in the puzzle.”31 Two aspects of Lautreamont nevertheless intrigued Benjamin. The first was Bachelard’s description of time in Ducasse’s Les Chants de Maldoror, which was what prompted the observation that Bachelard had allowed himself to be the dreamer of the poetry’s latent content. “It is in the dream of action that the truly human joys of action reside” Bachelard had written. “To act without acting, to leave … the heavy continuous time of practice for the shimmering momentary time of projects”–here, Benjamin commented, was “the first distinctive feature of his conception. From this it follows that violence demands a ‘suspended time’, to which Lautreamont ‘knew how to give the temporal essence of menace,of deferred aggression,’” an observation Benjamin supplemented with a second quotation from Bachelard: “At the level of this violence, we always discover a gra- tuitous beginning, a pure beginning, an instant of aggression, a Ducassian instant.”32 The second aspect Benjamin thought comic: the poet had died so young that Bachelard thought the cruelties of which his work spoke were likely born in school. “In a conclusion he connects Lautreamont ’s famous ‘Hymn to Mathematics’ (model for Aragon’s ‘Hymn to Philately’) to the very essence of this cruelty”:

Severity is a psychosis; in particular, it is the professional psychosis of the teacher. It is more serious in the case of the mathematics teacher than any other, for in mathematics severity is coherent; its necessity can be demonstrated; it is the psychological face of a theorem.

Benjamin wondered whether Bachelard meant this to be taken seriously. “I confess that I find highly seductive the idea that this book, full of outrageous assertions, emerged from a classroom.”33 One cannot be certain whether Benjamin was familiar with Bachelard’s oeu- vre, which in 1940 was already extensive, but it seems doubtful.34 Had he been, it is perhaps less likely he would have thought Bachelard’s observations on the teaching of mathematics were intended to amuse. Lautreamont was the twelfth book Gaston Bachelard had written since com- pleting his doctorate at the Sorbonne in 1927. Another twelve would follow between 1940, when he became the inaugural chair in history and philosophy of the sciences at the Sorbonne, and his death in 1962, the last unfinished. During the first phase, his attention was given primarily to science as an activity. During the second, he turned more fully to poetics. But throughout he was

5 LAW & LITERATURE

engaged by aesthetics no less than science.35 And in both phases the material imagination was uppermost. Bachelard took the non-Cartesian position that “we are not outside of the material world we know, but a natural part of it.”36 Bachelard’s most accessible statement of the meaning of material imagination in contemporary scientific investigation can be found in The New Scientific Spirit (1934). As Mary Tiles argues, Bachelard’s position was that “objectivity was located in the activity of science rather than in objects themselves.”37 In his own words “the epistemological ‘vector’…points from the rational to the real” not “from the real to the general.”38 An immediate ‘reality’ was no more than the pro- visional beginning for scientific activity, whose task was not to test its conformity with given a priori categories but to construct statements about reality through experimentation designed to realize the rational, the supreme statement of which was to be found in the totality and internal coherence of mathematics.39 Hence Bachelard’s dialectic – the movement from mathematics to experiment and back, “mathematics projecting a structure of entities to be looked for, experiment exhibiting these entities as found through phenomeno-technology.”40 Hence, too, science’s structure of inquiry, marked by epistemological ruptures and disconti- nuities. “Science invents its own objects, it constructs its own world, subject only to eventual confirmation of its constructs by experimentation.”41 It sits in judgment, “condemns its historic past. Its structure is its awareness of its historical errors.”42

Scientific observation is always polemical; it either confirms or denies a prior thesis, a preexisting model, an observational protocol. It shows as it demonstrates; it establishes a hierarchy of appearances; it transcends the immediate; it reconstructs first its own models and then reality. And once the step is taken from observation to experimentation, the polemical character of knowledge stands out even more sharply. Now phenomena must be selected, filtered, purified, shaped by instruments; indeed, it may well be the instruments that produce the phenomenon in the first place. And instruments are nothing but theories materialized. The phenomena they produce bear the stamp of theory throughout.43

From the historical and material character of scientiﬁc investigation and imagination, The New Scientiﬁc Spirit moved to the character of the material world newly produced by Einstein’s non-Newtonian physics, the epitome of Bachelard’s theory of science’s radical discontinuity. “There is no transition from the system of Newton to the system of Einstein,” Bachelard wrote. “The only way out was by force.”44 In his survey of the new physics’ non-Newtonian mechanics,

6 TOMLINS • A POETICS FOR SPATIAL JUSTICE its theories of matter and energy, and of waves and particles, one encounters a wholesale fragmentation of space, matter, and time. “[M]atter … to the naïve observer, seems localized, compact, and confined within a definite volume.” But matter is “a source and transformer of energy.”45 Reconceived as energy, matter occupies a “middle ground between the potential and the actual, between space and time. In its energetic unfolding the atom is becoming as much as it is being, motion as much as it is object.”46 Matter, says Roch Smith, “is not consistent and inert; rather it is based on the rhythmical time of frequencies … Vibrating frequencies are at the core of existence so that time in its most fundamental aspect is not uniform continuity but vibration. ‘Matter exists in a vibrated time and only in a vibrated time’…continuity is a metaphor.”47 In 1938, Bachelard published The Psychoanalysis of Fire, the first of what would become a series of books on the material elements (Bachelard called them “hormones of the imagination”48) – earth, water, fire, and air –“undertaken to show the fundamental influence on the life of the mind of certain meditations aroused by objects.”49 The Psychoanalysis of Fire proposed a “psychoanalysis of objective knowledge” that would detect “how unconscious values affect the very basis of empirical and scientific knowledge.”50 Science professed to treat the material world as inactive; “scientific objectivity is possible only if one has broken first with the immediate object.” But this ignored “the fascination exerted by the object.”51 Turning to Jung’s theory of primal archetypes, Bachelard’s psychoanalysis zeroed in on the poetics of reverie –“the psychological problem posed by our convictions,” unconscious “fallacies from the past” that informed human subjectivity –“autochthonous, autogenous … the true source of psychic production” – and undid induction.52 Studies of water (1942),53 air (1943),54 and earth (1943 and 1948)55 followed at regular intervals. Zbigniew Kotowicz has argued that Bachelard’s goal in The Psychoanalysis of Fire was to underline the necessity that the scientific mind rid itself of pre-scientific intuitions in order to attain objective knowledge.56 But this sits oddly with a philosophy of science that had already cast doubt on austere epistemological objectivity, and with Bachelard’s professed interest in “the mind at work.”57 Claims for objective knowledge of reality came at the considerable cost of a vibrant material world rendered “inert.”58 In The Psychoanalysis of Fire Bachelard announces he will test the opposition between “[t]he axes of poetry and science,” between “the enthusiastic, poetic mind” and “the taciturn scientific mind,” and that he will adopt an attitude of “preliminary antipathy” in favor of the latter. But the philosophical target he announces “is to make poetry and science complementary, to unite them as two well-defined opposites.” Bachelard, that is, advertises his expectation of a dialectical relationship between the scientific and the poetic expressions of the material imagination.59 By the end of the book, as Kotowicz acknowledges, preliminary antipathy has given way to the

7 LAW & LITERATURE

embrace of poetics as “a route of discovery,” a means to mediate between subject and object “the better to set free the lively dialectics which bestow on reverie its true liberty and its true function as a creative mental process.”60 Collectively, Bachelard’s studies of the material elements are marked by three broad tendencies. The first is relaxation of any purposeful attempt at (Freudian) psychoanalysis in favor of a technique of inquiry that Bachelard called “dynamic oneirism,”61 the goal of which was to locate the material imagination through identification of the “primordial, magisterial” archetypes of matter –“entirely material images of substance”62 – that precede the mind’s perceptions of reality63 and answer “imagination’s all-consuming desire to go deep into matter.”64 The second is the association of the oneiric with a deliberately naïve realism in dis- cerning the literary images from which archetypal image complexes – the poetics of matter – might be constructed.65 The third is constant attention to “the double perspectives that might be attached to all problems connected with the knowledge of any particular reality” resulting from the dialectical relationship between the axes of subjectivity and “objectivization” that Bachelard had first explored in The Psychoanalysis of Fire.66 There, Bachelard had noted that “the application of psychoanalytic methods to the activity of objective knowledge” resulted in the conclusion that “[t]here can be no scientific thought without repression.”67 But the relation between matter and the material imagination was not one of simple repression but of “dialectical sublimation.”68 The dialectic expressed not only the double perspective of the material imagination but also the ever-presence of dynamic reverberation in the image itself. “The image has a double reality: a psychological reality and a physical reality. It is through the image that the one who imagines and the thing imagined are most closely uni- ted.”69 In other words, the rhythms of matter registered in the images of poetics.70 As Joanne Stroud puts it, “an active image vibrates.”71 In Bachelard’s words, “all images emerge somewhere on a continuum … They exist dialectically, balancing the seductions of the external universe against the certitudes of the inner self.”72 In Einstein’s science, matter occupied a middle ground between the actual and the potential, between time and space; so it did in the poetics of the material imagination.

2. A MATTER OF TIME

Some years before his shift in emphasis from the material imagination’s scientiﬁc to its poetic expression, Bachelard had offered a substantial hint of what was to come in Intuition of the Instant (1932) and The Dialectic of Duration (1936).73 Inspired by his friend Gaston Roupnel’s Silo€e (1927),74 both books engaged critic- ally with Henri Bergson’s philosophy of time from a post-Newtonian perspective. Rejecting Bergson’s emphasis on duration, Roupnel had proposed that “[t]ime

8 TOMLINS • A POETICS FOR SPATIAL JUSTICE has but one reality, the reality of the instant.”75 One’s immediate experience of time was not duration but “the instant, apprehended in its immobility.”76 The proposition accorded well with Bachelard’s general theory of discontinuity in scientific investigation. It was also supported, decisively, by relativity theory – “Einstein’s critique of objective duration”–which rendered the lapse of time relative to the method of its measurement while maintaining “the well-specified instant … [as] an absolute.”77 Bachelard described the instant as a convergence point for consciousness as well as being,78 a “fusion of spatial atomism and temporal atomism” in a “space-time-consciousness complex.”79 Not even perception was a function of time. Reduce duration to its smallest fragment, one never encountered simple endurance, homogenous time. “[I]t was alive! No matter how small the fragment we considered, a microscopic examination sufficed to reveal a multiplicity of events teeming within it.”80 If, then, “it is the present instant that bears the full weight of temporality,” if “[t]he past is as empty as the future” and the future ‘as dead as the past,” if [t]he instant has no duration at its core … does not thrust a force in one direction or another … does not have two faces” but is “whole and alone,” how do human beings “build in time, as we build in space”?81 How, without duration, imagine a past (memory) and a future (anticipation)? Bachelard’s answer was – habit. Habit was the association of origination with repetition. It was “the will to begin to repeat oneself”:

The individual being, insofar as it is complex, corresponds ﬁrst of all to a simultaneity of instantaneous actions. It rediscovers itself only to the degree that it resumes these simultaneous actions … [C]onsidered as the sum of its qualities and of its becoming [the individual being] corresponds to a harmony of temporal rhythms. It is indeed through rhythm that the continuity of the discontinuous will best be understood.82

Real time existed only in the instant, “wholly in the act.” But the rhythm of instants granted being resonance.83 “Every time Bergson speaks of continuity that prolongs itself … we can translate his claim by saying that it is a matter of a discontinuous form reconstituting itself. Every effective prolongation is an addition. All identity is a resemblance.”84 Duration, like habit, was no more than a grouping of instants. “We are … free to read their correction in both directions, to traverse the circle that relinks them in either way.”85 Four years later The Dialectic of Duration resumed and reﬁned the argument. Declaring, “of Bergsonism we accept everything but continuity,”86 Bachelard’s title underlined the precision of his dissent: as Christina Chimisso notes, “dialectic cannot but destroy Bergson’s duration, which is continuous and devoid

9 LAW & LITERATURE

of contradictions.”87 Duration, Bachelard argued, was metaphor not reality. “Sensations are not connected; it is our soul that connects them.”88 The mental time of the instant was always orthogonal – vertical – to duration’s representation of lived time as horizontal continuity. As in Intuition of the Instant the key to the observation was rhythm. “From the moment we refuse to allow ourselves any reference to an absolute duration we have to accept fully that rhythms are overlaid and interdependent.”89 The metaphorical continuities of duree could be accepted on this basis, for as rhythm duration became “dialectical in every direction”; which is to say, not continuous in any sequential sense at all.90 Bachelard, says Roch Smith, “deftly accounts for continuity by underscoring the dialectical nature of temporal rhythms,”91 and so removes the rug from beneath duree. Rhythm provides “the real metaphors of a dialectical philosophy of duration.”92 From here it was but a short step to wave and particle vibration, and so back to matter:

Like radiation, matter [has] wave and rhythmic characteristics. Matter is not spread out in space and indifferent to time; it does not remain totally constant and totally inert in a uniform duration. Nor indeed does it live there like something that wears away and is dispersed. It is not just sensitive to rhythms but it exists, in the fullest sense of the term, on the level of rhythm.93

Space-time and matter were chronotropic phenomena. “It should not be said that substance develops and reveals itself in the form of rhythm, but rather that it is regular rhythm which appears in the form of a speciﬁc material attribute.”94 Materially, biologically, psychologically, everything was oscillation:

Life is strictly contemporaneous with material transformations and impossible without their unceasing help … It is only when it is dealt with statistically and globally that life seems to have temporal continuity and uniformity. From the standpoint of the elementary transformations that give rise to it, life is waves. In this respect, life is therefore directly dependent on rhythmanalysis.95

So much for elan vital’s energetic transformation of brute matter. Alain Badiou has identiﬁed Gaston Bachelard as one in a pantheon of twentieth century French philosophers who worked in a diversity of undertakings to refashion the relationship between “the philosophical concept” (mind) and “the external environment” (matter).96 Badiou points to an early twentieth century

10 TOMLINS • A POETICS FOR SPATIAL JUSTICE cleavage defined on the one hand by Henri Bergson’s “philosophy of vital interiority … [of] the identity of being and becoming: a philosophy of life and change,” and on the other by Leon Brunschvicg’s “philosophy of the mathematically based concept: the possibility of a philosophical formalism of thought and the symbolic.”97 The influence of both persisted, and their opposition created the debate between life and concept that persisted throughout the century. Bachelard was taught by Brunschvicg and named mathematics “the wellspring of contemporary experimental thought.”98 As we have seen, he also accepted of Bergsonism “everything but continuity.”99 In other words, Bachelard was the first in the pantheon to go to work on Badiou’s problematic – the first to attempt the transformation, or displacement, of the “relation between concept and existence”; the first to claim science “as a practice of creative thought, comparable to artistic activity, rather than as the organization of revealed phenomena”; the first to seek “a new relation between the concept and the production of forms – artistic, social, or forms of life”; even – very much in his own way – the first to seek “a new relation between concept and action.”100 In all this, it is Bachelard’s philosophy of time that does most to undermine the opposition of concept and existence –“to demonstrate that the concept is a living thing, a creation, a process, an event.”101 Bachelard’s instant is an intuition; his duration is a metaphor for repetition; his conception of time is a dialectic. Real time is an oscillation in that all material phenomena are rhythmic. But it is the soul that connects the instants that the mind apprehends.102 It is remarkable that time is historians’ stock-in-trade, yet rarely the object of their curiosity. “Too often,” Renisa Mawani has observed, time “is assumed rather than problematized, conceived as a natural backdrop … When time is the basis of inquiry, it is commonly perceived through historicity and in the visible and palpable effects on the exteriority of surfaces (the body, objects, and spaces).”103 Time’s allotted role in history, one might say, is to march on – objective, implacable, mechanical. Bachelard’s philosophy of time refutes its onward march. As a material phenomenon time is not Bergson’s duree –“ceaseless becoming”–but vibration. Experienced (organized) by the human subject, however, a temporality of ceaseless becoming is entirely imaginable, for vibrant time is susceptible to all manner of experiential temporalizations: acceleration, decel- eration, innovation, repetition, ever-presence, recurrence, return, progress, regress, stasis, chronos, kairos. For the material imagination, “[f]rom the moment we begin to dream … time itself takes on a material reality. There exists a temporality of granite, just as, in the Hegelian philosophy of Nature, there exists a ‘pyrochronos,’ or temporality of fire. This lithochronos, or temporality based on a stone’s hardness, can only be defined as the active time of work.”104 Elsewhere, Bachelard writes of slowing time down, of “‘mixtures of porcelain left fermenting for decades in order to attain an extraordinary translucence.’ How … could one

11 LAW & LITERATURE

not discover in this legend-permeated industry the ancient reveries of mineral life, life more sluggish than any other, life that desires slowness, which cannot be hurried if we would beneﬁt from its full fecundity?”105 Reinhart Koselleck is one of a comparative few historians who have written, and brilliantly, of the temporal structures within which human experience becomes coherent, in his case in medieval Europe, and on a macrocosmic scale:

Until well into the sixteenth century, the history of Christianity is a history of expectation, or more exactly, the constant anticipation of the End of the World on the one hand and the continual deferment of the End on the other. While the materiality of such expectations varied from one situation to another, the basic ﬁgure of the End remained constant. The mythical investment of the Apocalypse could be adapted to a given situation … [But h]owever the image of the End of the World was varied, the role of the Holy Roman Empire remained a permanent feature: as long as it existed the ﬁnal fall was deferred. The Emperor was the katechon of the Antichrist.

“For Luther,” Koselleck adds, “the compression of time is a visible sign that, according to God’s will, the Final Judgment is imminent, that the world is about to end.” Three centuries later, for Robespierre, “the acceleration of time is a human task, presaging an epoch of freedom and happiness, the golden future.”106 Drawn by the work of Kunal Parker and Elizabeth Grosz, Mawani has written eloquently of the multiple temporalities of law: of the common law’s imme- moriality, its eternal presence, its claim to continuity, its admission only of insensible change; of the “coarse and resistant encounters between an unfolding and overarching [legal] telos and the multiple and unforeseeable temporalities of speciﬁc subjects, objects, and events that continually exceed and escape legal order and arrangement”; of western law’s chronologizing of the world, its “imposition of a single, Western, secular, and overarching time.”107 Parker himself structures his Legal Thought before Modernism around Anglo-American law’s serial self-representations, as immemorial and insensible ever-presence, as consent, as spirit, as life, as itself; each a distinct species of temporality, each (at least before modernism’s anti-foundational grasp found law’s throat) an evasion of historicist fetters.108 Koselleck, too, writes of mitteleuropaisch€ law’s distinct temporality – different from political, or for that matter social or economic, rhythms. The temporality of law, for Koselleck, thematizes structures rather than events. “Narrative texts or documents refer to singular processes to which they testify. Texts that constitute laws … interrupt the preceding chain of events in

12 TOMLINS • A POETICS FOR SPATIAL JUSTICE order to install a new kind of duration.”109 But the duration Koselleck’s interruption installs is an illusion. What makes the interruption (caesura, rupture, cou- page, cut) anything other than itself an event? What makes repetition a signiﬁer of duree rather than of habit, or frequency?110

Bergson takes eventful time at the very level of the consciousness of events, and gradually obliterates those events, or the consciousness of events, until he reaches what he believes to be event-free time – namely the consciousness of pure duration. By contrast, the only way we ourselves can feel time is by multiplying conscious instants … Consciousness of time is always, for us, an awareness of the utilization of instants.111

Event lends itself to “time’s primordial element”–the orthogonal instant.112 This is why duree can never be more than metaphor. If there are “different veloc- ities of change at work in political, social, economic, linguistic, and legal history,” if “the history of the law proceeds more slowly and has a different speed of transformation than the sequence of events that is characteristic at least of political history,” these are subjective choices in how to imagine the organization of instants, however unconscious the choice may be. They are relativities of material imagination.113

3. “WE CANNOT DRAW CLOSED THE NET IN WHICH WE STAND”

Walter Benjamin’s gnomic observation on nets, says Samuel Weber, speaks to his interest in earthly no less than cosmological phenomena – the “knots and nodes, links and interstices that make up ‘the net in which we stand.’”114 To stand in a net is not merely to exist in a context or, necessarily, to be enmeshed by that context. It is to stand, unsteadily, in that which materially supports, constricts, destabilizes, and simultaneously stretches one’s capacities for thought and action; in that which one has made oneself – or at least assisted in the making – and on which one is reliant, to which one is vulnerable, over which one cannot gain any real control (draw closed); and which is also, in the sense of air held together by string, difﬁcult to detect, imperceptible, evanescent.115 The image is at once profoundly spatial, dynamic, and unstable. In all these characteristics, it is also profoundly legal.116 Benjamin’s net appears in a text-fragment, “Capitalism as Religion,” written in 1921, unpublished during his lifetime. The fragment addresses capitalism as a cult of guilt, permanent and all-pervasive, its objective “endurance right to the end.”117 In the Selected Works it is immediately preceded by another unpublished fragment, “The Meaning of Time in the Moral Universe,” also written in 1921.118

13 LAW & LITERATURE

Here we encounter law explicitly, as “the tendency to retribution,” or in other words as clear complement to a cult of endless guilt, but also a world apart (sharply set off) from the moral universe of the fragment’s title. “Retribution is fundamentally indifferent to the passage of time, since it remains in force for centuries without dilution.” Retribution even imposes, in a profoundly heathen way, on the Last Judgment, which it takes to be “the date when all postpone- ments are ended and all retribution is allowed free rein.” But in the moral universe forgiveness battles retribution, with time its ally. For time in the moral universe “is not the lonely calm of fear but the tempestuous storm of forgiveness which precedes the onrush of the Last Judgment”:

This storm is not only the voice in which the evildoer’s cry of terror is drowned; it is also the hand that obliterates the traces of his misdeeds, even if it must lay waste to the world in the process. As the purifying hurricane speeds ahead of the thunder and lightning, God’s fury roars through history in the storm of forgiveness, in order to sweep away everything that would be consumed forever in the lightning bolts of divine wrath.119

The duality of Benjamin’s times, the one tempestuous the other indifferent, counterposes the orthogonal instant of justice – the storm of forgiveness – to law’s duree, the lonely net in which profane humanity stands, without completion, “and paws the ground in place.”120 Constantin Fasolt tells us these times are in fact entwined; for “without justice we cannot make the law stick to reality. There would be nothing for law to say. And without law, justice would be random. That is, there would be no justice at all.”121 Entwined, each lends the other its unique temporality, and thus creates a chance for history where otherwise there could be none. It is true that, as estranged isolates – silent interminable law on the one hand, random vertiginous justice on the other – their separation undoubtedly resonates with the here of our contemporary now. But for Fasolt that only makes their entanglement more important. His reason is to defend. “Law and justice may lose their normal meaning when times change.” In such times an account of their entanglement “helps to protect their meaning from van- ishing completely.”122 An extended and distinct account – of law, of justice, of their relations and temporalities, and as well of their materiality, their spatiality – comes from Andreas Philippopoulos-Mihalopoulos. Here too we ﬁnd “we cannot draw closed the net in which we stand,” or in Philippopoulos-Mihalopoulos’s words “there is no outside.”123 But, like Benjamin, Philippopoulos-Mihalopoulos holds out some hope that “later … this will be seen through [uberblickt€ ].”124 What will be seen through? In Philippopoulos-Mihalopoulos’s case it is the atmosphere, “the comfort

14 TOMLINS • A POETICS FOR SPATIAL JUSTICE offered by supposedly free choices, power structures, or even by fate … an enclosure of desire” that brims with illusions, a dissimulation that can be seen through only by withdrawal from its deep embrace.125 Withdrawal renders visible the lawscape, the ordering of space by implicit or explicit injunctions that makes bodies –“human, nonhuman, technological, natural, immaterial, material, elemental, systemic”126 – move in pre-speciﬁed ways.127 Law is “an embodied process of orchestrating space.”128 Justice is therefore spatial justice, “the emergence of a negotiation” amongst bodies or assemblages desirous of occupying “the same space at the same time,” that, through the ruptures created in the act of withdrawal, creates occasions for adjustment. “Spatial justice … is not a prescribed avenue but merely the possible reorientation of the lawscape according to the bodies that have withdrawn”:129

Withdrawal is not a moral indictment, nor does it refer to withdrawing from the claims of the other body, just as spatial justice is not a retreat … spatial justice is not a solution but a question that tries to address the problem of the impossibility of simultaneous emplacement of more than one body in the same space … Spatial justice emerges when a withdrawing body passes into a differently oriented space in which the register of conﬂict might change. There is no guarantee and no prescription that spatial justice will emerge, even if the lawscape is reoriented. Spatial justice is entirely contingent upon the violence of space, brimming with unequally strong bodies vying for the same spatial emplacement, same resources, same privileges, same temporalities.130

The lawscape necessarily has a temporality. “Only one body can occupy a specific space at a specific time.” Its time “is one of constantly renegotiated now.”131 But this is a dual time, for the lawscape is a continuum. “Each lawscaping is an event … But since the lawscape is both a fractal and a continuum, at any point there are two temporalities: that of the specific lawscape and that of the lawscape as continuum.”132 We can imagine these temporalities as distinct – the horizontal duree of the continuum, the orthogonal instant of the rupture that opens the lawscape to lawscaping and thus to the emergent possibility of spatial justice – or as the instant in two manifestations – the one sole and discontinuous (event), the other reconstituting itself, repeating itself, prolonging itself, the continuum an assemblage of instants (habit). In either case, what is clear is the central importance of time to spatial justice. It is precisely extension in time and space, repetition “in a frenetic closure of self-perpetuation,” that enables lawscape to transfigure itself, become atmosphere.133 And it is the discontinuous time of the

15 LAW & LITERATURE

instant that signifies rupture, returning atmosphere to the materiality of the lawscape, to sight. The evanescent lawscape, the net that cannot be drawn closed, are both material images of the world. They appear to possess different valences, the one “a repeating, constantly reconfigured and contingent fight, not in order to find an outside but in order to reorient the inside in a way that bodies can fit in better with each other,” the other seemingly remorseless in its denial of escape from “the passage of the planet ‘Human’ through the house of despair.”134 Can they be reconciled? Benjamin’s unremitting text finds no resolution to the ever-intensifying agony of despair that the cult of capitalism produces. It cannot be reformed from within. In the most trenchant argument for capitalism’s “reform” available – Marx’s claim for the transfiguration of its most advanced stage into socialism – “the capitalism that refuses to change course becomes socialism by means of the simple and compound interest that are functions of Schuld [debt].”135 Nor, in its universality, can there exist a position outside the cult from which to renounce the cult.136 Werner Hamacher has argued that in the completeness of the despair it creates, in the completeness of its destruction of all existence, the cult annihi- lates itself. “[T]he law of retribution does not rule, but that of guilt’s annihilation. Out of the Christianity of capital, in its self-devastation emerges the Messianism of forgiveness.”137 The orthogonal instant of justice overwhelms capitalism’s duree of despair. “It comes about not as reform or reformation, but as the true revolution eliminating at every moment the traces of [capitalism’s] guilt-system. The nothing of this counter-history is time itself as the time to come.”138 Samuel Weber offers a different interpretation, less cathartic, less hopeful. As all-pervasive cult, capitalism replaces the pre-Reformation phenomenological and theo- logical world with a new mode of knowledge, knowledge of die Bilanz (the bottom line), that is, knowledge only of itself. It seizes upon a specific material practice – commerce’s mode of calculus – and renders it utterly ubiquitous. “All that is conceivable is continuation of the cult itself.”139 Bilanz is the knot that ties the faith of the individual worshipper to the cult’s “salient trait,” the interest-bearing function of money. (This, the capacity of money to price itself, hence endlessly gener- ate more of itself from itself, rather than the production of surplus value, is what identifies capitalism in Benjamin’s text.)140 “It is possible, indeed inevitable,” says Weber, “to ‘hold out until the end’ once that ‘end’ is determined as the bottom line, for each bottom line ends one balance sheet and begins another. The process is in principle infinite and yet immanent.”141 Yet Weber is unwilling to leave us entirely entangled in the duree of despair. “Later … this will be seen through.” This became Benjamin’s mission in Passagenwerk (The Arcades Project), yielding in a riot of material images an outcome not unlike that for which Spatial Justice agitates, the visibilization of “the

16 TOMLINS • A POETICS FOR SPATIAL JUSTICE hidden framework [die Armature] that allows things to be seen, displayed, exhib- ited, desired, purchased, and consumed – but which itself remains generally unnoticed,” affording “a medium through which an alternative to the cult of capitalism becomes thinkable.”142 Weber describes this medium as “a notion of space that is quite different from the traditional concept of extension … not just space as abstract extension but a very distinctive form of ‘stretching’ related to situated bodies.”143 Visibilizing the net, the framework, renders the space it delimits (the space of “the living” [die Lebendige]) liable to alteration, its “layout” (Lage) and that which is “laid-out” (Die Gelegenen) appearing in “the unstable dynamics of an ongoing relation: the lay of the land.”144 The lay of the land can of course be stabilized, but there is nothing in it (as opposed to in the penetrable armature surrounding it) that imposes a particular stability:

The layout that has been laid out cannot be put in its place, because its “identity” consists in the outreach of place itself, the Erstreckung des Raumes. Nothing can simply be put in its place when the place itself is being stretched and laid out – nothing except what Benjamin here calls “imagistic dissonance” (Bilddissonanz), which, like that of rhyme, which it echoes, involves sameness without self, repetition without equality. In this sense, opportunity, “Gelegenheit,” can be said to signify “the spiritual-temporal identity (the truth) of the layout.” It is an event and as such cannot be made an object of cognition or appropriation. It is the event of a net-without-work: a netting without net proﬁt or loss.145

The living remain in the net – there is no escaping the passages.146 But the work of Passagenwerk alerts one not just to standing but instead to going on – to ﬁnding opportunities in the layout not to net proﬁt but to tie different knots, knots of solidarity, events that will rearrange bodies and stretch the net.

4. “WAIT DOGGY, I HAVEN’T PAID YET”

We do not begin with reality, we receive it. But Bilddissonanz vibrates the received order, and so renders it perceptible.147 The atmosphere, the armature, the lawscape, the net: they project our realities for us. But they are not givens, they are the material imagination at work and so they are also vulnerable to its muse. “Science invents its own objects, it constructs its own world, subject only to eventual conﬁrmation of its constructs by experimentation.”148 And experiments need not conﬁrm, they can also deny. Experiments are events that rupture

17 LAW & LITERATURE

received understandings and so expose them. They are moments of uncertainty, epistemological breaks, ontological instants.149 In her 2010 essay on “Elusive Material,” Rey Chow argues that the “signature intervention” of new materialism in its relation to the old materialism of Marxism is its “transformation of the classic Marxist opposition between ‘head’ and ‘hand’ (or superstructure and base, or thoughts and actions) into what may be called the determinacy of the signifier,”150 a “paradigm shift from the (time- honored and still prevalent) conflation of materialism with economism,” in which materialism’s agency is that of “preexisting concrete ground,” or in other words “economic base,” to “a revamped materialism” that positions the human subject not as consciousness determined by social being, but rather as always incomplete effect of “chain[s] of signification.”151 To illuminate her contention, Chow draws to our attention a striking allegory employed by the German Marxist Alfred Sohn-Rethel in his analysis of exchange. “Take your dog with you to the butcher and watch how much he understands of the goings on when you purchase your meat. It is a great deal and even includes a keen sense of property which will make him snap at a stranger’s hand daring to come near the meat his master has obtained … But when you have to tell him ‘Wait, doggy, I haven’t paid yet!’ his understanding is at an end.”152 Sohn-Rethel’s story, says Chow, signifies the extent to which consciousness is abstracted from social being. Human beings “participate in … exchange spontaneously and unconsciously, without knowing or thinking much about it.”153 Suppose we treat Sohn-Rethel’s story not as an allegory but as an experiment that tests, and ruptures, a received reality. His dog’s failure to understand the routines of monetized exchange is an ontological instant. By paying attention to a dog’s incomprehension, the duree of exchange is ruptured.154 It is a moment of awakening. “The reform of consciousness consists entirely in making the world aware of its own consciousness, in arousing it from its dream of itself.”155 Sohn-Rethel’s point is that exchange is a social interaction “not related to our natural or physical being, but comprehensible only in our interrelations as human beings,” hence inaccessible to a dog living exclusively in a world of natural realities. Unlike dogs, human beings live in two spatio-temporal complexes, “side by side.” But these two complexes are “mutually exclusive and of sharply contrasting description.”156 They comprise the material world of use, and the purely social, entirely abstract world of exchange. Sohn-Rethel understands the world of use “as the entire sphere of man’s inter-exchange with nature” in which “time and space are inseparably linked with the events of nature and the material activities of man.”157 In contrast, exchange “empties time and space of their material [and natural] contents and gives them contents of purely human significance connected with the social status of people and things.” Exchange renders time and space homogenous and continuous. “The exchange abstraction excludes

18 TOMLINS • A POETICS FOR SPATIAL JUSTICE everything that makes up history, human and even natural history. The entire empirical reality of facts, events and description by which one moment and locality of time and space is distinguishable from another is wiped out. Time and space assume thereby that character of absolute historical timelessness and universality which must mark the exchange abstraction as a whole and each of its features.”158 Chow’s claim that classic Marxism conﬂates materialism with economic base notwithstanding, Marx himself, as is well known, begins Capital not with base but superstructure, not with mode of production but with exchange – the “accumulation of commodities.”159 Commodities “come into the world in the shape of use-values, articles, or goods … This is their plain, homely, bodily form.”160 As such, they are easily understood, not at all mysterious: “To discover the various uses of things is the work of history.”161 But in fact commodities are “very queer things,” a character originating not in their utility but in the “commodity form”–the attribution of exchangeability that renders commensurate in quanti- ties of value all the different sorts of human labor expended on different products.162 And exchange requires something else in addition, a homologous legal form that places each commodity’s guardian in relation to the other’s as persons who will “not appropriate the commodity of the other … except by means of an act done by mutual consent.”163 The legal form recognizes in each guardian the right of a private proprietor, and expresses their juridical relation in a contract. Here, then, we pass from one space-time-consciousness complex to another, from the world of use, in which “time and space are inseparably linked with the events of nature and the material activities of man,” in which “to discover the various uses of things is the work of history,” to the world of exchange, in which time and space assumes the character “of absolute historical timelessness and universality.” In the world of use, matter and history are both lively: things are “assemblage[s] of many properties.” In the world of exchange, the liveliness of matter and of history –“the entire empirical reality of facts, events and description by which one moment and locality of time and space is distinguishable from another”–is wiped out by abstraction, “the constant repetition of exchange” which “makes it a normal social act.”164 As Sohn-Rethel puts it, “[w]herever commodity exchange takes place, it does so in effective ‘abstraction’ from use. This is an abstraction not in mind, but in fact.”165 For Marx, it is true, human history is a succession of modes of production – ancient, feudal, and bourgeois – in which materialism’s agency appears econo- mistic. In each, the social relations of production are characterized by an antagonism that arises from the material conditions of existence experienced by individual human beings. But Marx’s materialism is not philosophically econo- mistic. After all, Marx calls this succession of modes of production the prehistory of human society. For, he says, the bourgeois mode of production is the last to be

19 LAW & LITERATURE

characterized by antagonism. “The productive forces developing within bourgeois society create … the material conditions for a solution.” The ﬂowering of those forces, the breach of their fetters, heralds the beginning of true human history – the history of authentic human self-realization, of self-discovery as a species- being.166 Then begins the possibility of completion. Opposition between head and hand, superstructure and base, thought and action, has no necessity.

5. CONCLUSION: “THE SPACE OF SOMEONE WAKING UP”

To escape from “exchange” into “use” is to escape from inertia into liveliness – from unfulfilled to fulfilled time. Benjamin called this “find[ing] the constellation of awakening” and it was central to his conception of historical materialism.167 “Awakening” meant not the sober intellection of convention, purposeful and dis- criminating, but involuntariness, sudden and unbidden, an instant of material imagination – a smell, a touch, a taste, a sight.168 Benjamin called it “actualization,” which was his way of describing how Marcel Proust tried to free himself from the reflective intellection of purposeful remembering and lay himself open to the stir to the mind of involuntary recollection.169 Actualization is alien to our modern reflective intellect, so we repress it. Indeed, so completely does actualization contrast with reflection that, Benjamin says, it seems closer to what we think of as forgetting than memory:

[I]s not this work of spontaneous recollection, in which remembrance is the woof and forgetting the warp, a counterpart to Penelope’s work rather than its likeness? For here the day unravels what the night has woven. When we awake each morning, we hold in our hands, usually weakly and loosely, but a few fringes of the carpet of lived existence, as woven into us by forgetting. However, with our purposeful activity and, even more, our purposive remembering, each day unravels the web, the ornaments of forgetting. This is why Proust ﬁnally turned his days into nights, devoting all his hours to undisturbed work in his darkened room with artiﬁcial illumination, so that none of those intricate arabesques might escape him.170

Under reﬂective intellection’s relentless submersive assault on cognition we surrender involuntary recollection to the realm of dream and fantasy, so easily dis- carded –“forgotten”–in the light of day. Reﬂective intellection is the soma in our atmosphere. It induces us to forget. To it Benjamin opposed what comes to us when caught unawares, at the margin of consciousness – at the edges, on the fringe, out of the corner of one’seye,inthe“trash” of life. This was not to rename

20 TOMLINS • A POETICS FOR SPATIAL JUSTICE dream as reality, prefer the unconscious to consciousness, but rather to hold on to what was known at moments of awakening, before it was swamped by the endless requirements of day. “There is no telling what encounters would be in store for us if we were less inclined to give in to sleep. Proust did not give in to sleep.”171 Awakening was the fragile instant of escape from “bourgeois habits of thought.”172

Is awakening perhaps the synthesis of dream consciousness (as thesis) and waking consciousness (as antithesis)? Then the moment of awakening would be identical with the “now of recognizability,” in which things put on their true – surrealist – face? Thus, in Proust, the importance of staking an entire life on life’s supremely dialectical point of rupture: awakening. Proust begins with the evocation of the space of someone waking up.173

Awakening was escape from the relentless duree of bourgeois exchange and progress into an instant of recognition, of actuality.174 It was integral to Benjamin’s materialist philosophy of history and of temporality, in which history is not the product of conscious reflection but of constellation,175 recognition of a phenomenon that “flashes up” without warning, an image or a memory that presents itself at a precise conjuncture –“the moment of its recognizability”–to be seized at that instant, and by that instant, or lost.176 It was to understand time not as historicism’s endless sequence of things in place, nor as an irredeemable eternal present, but as a “fold”177 which, by conjoining past and now, would “blast open the continuum of history,”178 producing “the birth of authentic historical time, the time of truth.”179 Like Walter Benjamin, Gaston Bachelard thought a great deal about images.180 Like Benjamin, he thought the image the means to encounter, per- ceive, know the material (spatio-temporal) world. Like Benjamin, he worked out a method to plumb the image, in his case reverie, that removed its observer from the duree of reflective intellection to the instant of awakening.181 “Bachelardian reverie, far from being a complacent drifting of the self, is a discipline acquired through long hours of reading and writing, and through a constant practice of ‘surveillance de soi.’ Images reveal nothing to the lazy dreamer.”182 Though Bachelard appears to have irritated Benjamin on the one clear occasion their paths crossed – Lautreamont had assembled the latent content of Ducasse’s poetry, of which Bachelard “allows himself to be the dreamer,” but he had failed to discern “the figure hidden in the puzzle”183 – Bachelard would not have dis- agreed that the image was the medium and not just the outcome of processes whereby “appearances – phenomena – become readable.”184 He claimed as a “Copernican revolution” that imagination preceded perception but not that it also preceded the image.185

21 LAW & LITERATURE

Bachelard was hardly a stranger to dialectics, but he was no Marxist; his dialectics were not Hegelian. In his history and philosophy of science, dialectics described a movement through juxtaposed systems – realism, positivism, rationalism – toward what Bachelard called “surrationalism,” a term which bore the same relationship to rationalism as surrealism did to realism, and which he used to describe the scientific mind engaged in “anagogical” thought –“the illumination of thought by thought,” a reverie for science.186 Nevertheless, his philosophy of time was in important respects highly resonant with Benjamin’s, and his theory of dialectical movement in the history of science through ruptures and problematics underpinned an approach to the relationship between the scientific and the material imagination that emphasized “raising the past to consciousness,” even though he called that approach psychoanalysis rather than a philosophy of history.187 One might, therefore, think him attuned to what Benjamin described as his Copernican revolution in (historical) perception – that “the historical index of the images not only says that they belong to a particular time; it says above all that they attain to legibility only at a particular time.”188 Bachelard’s lack of a developed philosophy of history rendered him more open than Benjamin to an understanding of images in terms of Jung’s essentially ahistorical archetypes, but although Benjamin professed to deplore Jung he nonetheless drew upon Jung in his own analyses of archaic images.189 Chronologically, both overlapped with Jacques Lacan, especially Bachelard of course, but no interaction is apparent, which is a pity. Both might have found Lacanian psychoanalysis instructive.190 Together, Gaston Bachelard and Walter Benjamin allow us a productively- coupled point of entry on the current interest in “new materialism,” formulated at a time (1920–1950) when new materialism supposedly did not exist. Some may find this coupling odd. Its merit lies in its demonstration of the suppleness of materialism both as a philosophy of reality and as a philosophy for law, and history, and literature. More simply put, “new” materialism is not so new. Nor (as I have tried to show in Part IV) is “old” materialism something summarily to discard. The suppleness of materialism lies in realizing these conjoined poten- tials. We should rejoice at their discovery. They encourage the negotiation of a materialism for the 21st century amongst friends, without the dreary sectarian specter of defensive bloodletting.191 Walter Benjamin’s description of “the moment of awakening” in terms of a dialectics of consciousness, as “identical with the ‘now of recognizability,’ in which things put on their true – surrealist – face,” could as easily be expressed in Gaston Bachelard’s idiom of surrationalism .192 A century before both of them, Marx had identified “arousing [the world] from its dream of itself” as the fundamental objective for the reform of consciousness.193 The world continues to dream, but the material turn in legal studies has afforded us the opportunity to recognize “the space of someone waking up” as the emergent possibility of justice.

22 TOMLINS • A POETICS FOR SPATIAL JUSTICE

Between them, Bachelard and Benjamin offer us a materialist poetics for that spatial-temporal-consciousness complex, for that moment of possibility.

ACKNOWLEDGMENTS

This article began life as a chapter on “Materialism and Legal Historiography, from Bachelard to Benjamin” written for the Oxford Handbook of Law and Humanities (Oxford, Oxford University Press, 2020). It appears here in considerably revised and extended form. I am grateful to the Oxford Handbook’s editors – Maksymilian Del Mar, Bernadette Meyler, and Simon Stern – for their willingness to see me continue to develop the chapter into this much longer essay, and to Marco Wan and Peter Goodrich for their willingness to consider the results for publication in Law & Literature. I am also grateful for the comments of Law & Literature’s reviewer.

DISCLOSURE STATEMENT

No potential conﬂict of interest was reported by the author(s).

1. Vladimir Ilyich Ulyanov [Lenin], Materialism Princeton University Press, 1986); Bruno Latour, and Empirio-Criticism: Critical Comments on a We Have Never Been Modern (Cambridge MA: Reactionary Philosophy, in V.I. Lenin, Collected Harvard University Press, 1993); Bruno Latour, Works, 14 [1908] (Moscow: Progress ReassemblingtheSocial:AnIntroductiontoActor- Publishers, 1962), 130. Network Theory (Oxford: Oxford University Press, 2. See, for example, Jane Bennett, Vibrant Matter: 2007); Bruno Latour, On the Modern Cult of the A Political Ecology of Things (Durham: Duke Factish Gods (Durham: Duke University Press, University Press, 2010); Tony Bennett and 2010). On “protagonism,” see Michelle McKinley, Patrick Joyce (eds.), Material Powers: Cultural Fractional Freedoms: Slavery, Intimacy, and Legal Studies, History, and the Material Turn Mobilization in Colonial Lima, 1600-1700 (Abingdon: Routledge, 2010); Irus Braverman (Cambridge and New York: Cambridge University (ed.), Animals, Biopolitics, Law: Lively Legalities Press, 2016), 5. (Abingdon: Routledge, 2016); Diana Coole and 4. Roch C. Smith, Gaston Bachelard: Philosopher of Samantha Frost (eds.), New Materialisms: Science and Imagination (Albany: State Ontology, Agency, and Politics (Durham: Duke University of New York Press, 2016), 1–21. University Press, 2010); Amiria Henare et al. Eagleton reminds us that Newton thought (eds.), Thinking Through Things: Theorising matter “stupid.” Materialism,3. Artefacts Ethnographically (Abingdon: Routledge, 5. Pierre Duhem, The Aim and Structure of Physical 2007); Daniel Miller (ed.), Materiality Theory [1906] (New York: Athaneum, 1962), 3; (Durham: Duke University Press, 2005); Mary Tiles, Bachelard: Science and Objectivity Christopher Breu, “Why Materialisms Matter,” (Cambridge: Cambridge University Press, Symploke, 24, 1-2 (2016), 9–26. But cf. Terry 1984), 2, 12, 57. Gaston Bachelard, The Eagleton, Materialism (New Haven: Yale Philosophy of No: A Philosophy of the New University Press, 2016). Scientiﬁc Mind [1940], trans. C. K. Waterston 3. See Bruno Latour and Steve Woolgar, Laboratory (New York, Orion Press, 1968). Duhem’s Life: The Construction of ScientiﬁcFacts(Princeton: representation of science is what Latour has

23 LAW & LITERATURE

called “Science No. 1, “the conception of 11. Henri Bergson, The Creative Mind: An science as delivering, by deployment of its Introduction to Metaphysics [1934] (New York: rational methods of evidence collection and Dover, 2007), 124; Mawani, “Times of Law,” hypothesis testing, an ever-expanding 257; Bachelard, Dialectic of Duration,19–20. knowledge of facts about an external (material, 12. Bachelard, Dialectic of Duration, 125. non-human) world.” See Mary Tiles, “Is 13. Ibid., 33–4; Gaston Bachelard, Intuition of the Historical Epistemology Part of the ‘Modernist Instant [1932], trans. Eileen Rizo-Patron Settlement’?” Erkenntnis, 75, 3 (November (Evanston, IL: Northwestern University 2011), 527, referencing Bruno Latour, Pandora’s Press, 2013). Hope: Essays on the Reality of Science Studies 14. Bachelard, Dialectic of Duration, 29; Bachelard, (Cambridge, MA: Harvard University Press, Intuition of the Instant, 27. 1999), 258–61. On Bachelard’s invention of the 15. Richard Kearney, “Bachelard and the Epiphanic interwoven conceptual vocabulary of Instant,” Philosophy Today, 52, Supplement epistemological obstacle, epistemological (2008): 38–45, at 38. break, and problematic, and its widespread 16. Bachelard, Intuition of the Instant,8 fl in uence (Althusser, Foucault, Deleuze) see (emphasis added). “ ” Patrice Maniglier, What Is a Problematic? 17. For example, Bachelard’s description of the – Radical Philosophy, 173 (May/June 2012), 21 3, instant as at once giver and plunderer parallels available at https://www.radicalphilosophy. Benjamin’s philosophy of history as Werner com/article/what-is-a-problematic (accessed 6 Hamacher describes it: “whatever is prior has May 2019). On the particular relationship had something taken from it by that which between the development of that vocabulary in follows; or, whatever is prior has withheld Bachelard’s work and in the work of Louis something from that which follows it. Every Althusser, see R. D. Boyne, “Breaks and ‘having’ is thus declared as a having from Problematics,” Philosophy & Social Criticism,6, something else that previously had it – as in no. 2 (July 1979): 204–25. the debere, the de habere of debt … Whatever 6. Gaston Bachelard, The Dialectic of Duration happens, it happens from another and toward [1936], trans. Mary McAllester Jones (London: yet another, and is therefore indebted to these Rowman & Littlefield, 2016), 124; Smith, other occurrences. It is, however, also indebted Bachelard, 62. [Note that Bachelard uses the in the sense that whatever happens in the line word rhythm and its derivatives as a synonym of descent occurs as a theft in which for frequency.] something is torn away, leaving a lack in the ” 7. Bachelard, Dialectic of Duration, 124, 125. place of its origin. See Werner Hamacher, “Guilt History: Benjamin’s Fragment ‘Capitalism 8. Gaston Bachelard, Water and Dreams: An Essay as Religion,’” Cardozo Law Review, 26, no. 3 on the Imagination of Matter [1942], trans. (2005): 889–90. Edith R. Farrell (Dallas: Dallas Institute of 18. Constantin Fasolt, “History, Law, and Justice: Humanities and Culture, 1983), 1 (emphasis in Empirical Method and Conceptual Confusion in original); Gaston Bachelard, Air and Dreams: An the History of Law,” UC Irvine Law Review,5, Essay on the Imagination of Movement [1943], no. 2 (2015): 417. trans. Edith R. Farrell and C. Frederick Farrell 19. Ibid., 443. Compare Tiles: “practices that bring (Dallas: Dallas Institute of Humanities and rational order to the material and mental world Culture, 1988), 7. Bachelard, The Philosophy of are at the same time cultural (‘corrational’) not – – “ No, viii, xi xii, 3 33. Both scientists and poets individual and have both abstract and concrete are prime examples of a mind creating lives. The double character of scientific ” domains that surpass reality. Zbigniew thought, on which Bachelard repeatedly insists, Kotowicz, Gaston Bachelard: A Philosophy of the is that it is a requirement of scientific Surreal (Edinburgh: Edinburgh University Press, understanding that one have a critical 2018), 12, and see also 19. consciousness of the measurement practices 9. Bachelard, Dialectic of Duration, 125. one uses, such that one can, should the need 10. Renisa Mawani, “The Times of Law,” Law & arise, put some of the assumptions behind Social Inquiry, 40, no. 1 (Winter 2015), 255. aspects of those practices in question and be

24 TOMLINS • A POETICS FOR SPATIAL JUSTICE

able to argue the case for a change. That Law with Things,” Northern Ireland Legal critical consciousness will be informed by Quarterly 63, 3 (2017); Alain Pottage, “The knowledge of the history of a measurement Materiality of What?” Journal of Law and practice and of the reasons why current Society, 39, 1 (March 2012); Christopher standards are as they are, as well as of the Tomlins, “Toward a Materialist Jurisprudence,” problems that were overcome as successive in Alfred Brophy and Daniel Hamilton (eds.), refinements (rectifications) were made … At Transformations in American Legal History: Law, least some of the practices and techniques Ideology, and Methods – Essays in Honor of used to bring (rational) order to a particular Morton J. Horwitz, Volume II (Cambridge MA: domain of scientific study are likely to be Harvard University Press, 2010), and specific to the object of the investigation (the “Historicism and Materiality in Legal Theory,” object of knowledge) … It is noteworthy that in Law in Theory and History: New Essays on a at a time when others were writing about the Neglected Dialogue, ed. Maksymilian Del Mar unity of science and of the scientific method, and Michael Lobban (Oxford: Hart Publishing, Bachelard was talking about the plurality of 2016); Cornelia Vismann, Files: Law and Media ” “ regional rationalisms. Mary Tiles, What Does Technology (Stanford: Stanford University Press, ” Bachelard Mean by Rationalisme Applique? 2008). See also the essays in Law Text Culture Radical Philosophy, 173 (May/June 2012), 26, 21 (2017), issue entitled “Law As … IV”: Minor available at https://www.radicalphilosophy. Jurisprudence in Historical Key. com/web/dossier-bachelard-and-the-concept- 22. Philippopoulos-Mihalopoulos, Spatial Justice,89. of-problematic (accessed 6 May 2019). And 23. Ibid., 93. see also Tiles at 24: “Applied rationalism is … 24. Walter Benjamin, “Franz Kafka: On the Tenth an account of empirically (materially) engaged Anniversary of his Death,” in Walter Benjamin: reasoning, not of theoretical reasoning Selected Writings Volume 2, Part 2, 1931-1934, subsequently applied.” ed. Michael W. Jennings et al. (Cambridge, 20. Fasolt, “History, Law, and Justice,” 449; MA: Harvard University Press, 2005), 798. Christopher Tomlins, “Foreword: “Law As …” And see James R. Martel, Textual Conspiracies: III—Glossolalia: Toward a Minor (Historical) Walter Benjamin, Idolatry, and Political Theory Jurisprudence,” UC Irvine Law Review, 5, no. 2 (Ann Arbor: University of Michigan Press, (2015), 256. 2011), xi–xii. 21. Andreas Philippopoulos-Mihalopoulos, Spatial 25. Paul Eluard, in Philippopoulos-Mihalopoulos, Justice: Body, Lawscape, Atmosphere (Abingdon: Spatial Justice, 94. Routledge, 2015), i, 2. Work at the theoretical “ intersection of materialism and law/legal 26. Everything I love, everything I think and feel history remains relatively rare. In addition to inclines me toward a particular philosophy of Spatial Justice, see, for example, Margaret immanence, according to which surreality Davies, Law Unlimited: Materialism, Pluralism, would be contained in reality itself, and would ” and Legal Theory (Abingdon: Routledge, 2017); be neither superior nor exterior to it. Paul David Delaney, The Spatial, the Legal, and the Eluard in John Llewelyn, Margins of Religion: Pragmatics of World-Making: Nomospheric Between Kierkegaard and Derrida, (Indiana Investigations (Abingdon: Routledge, 2010); University Press, 2009), 307. Tom Johnson, “Medieval Law and Materiality: 27. Descartes defined matter as that which has Shipwrecks, Finders, and Property on the spatial extension. Suffolk Coast, ca. 1380–1410,” American 28. See above, notes 1 and 2, and accompanying Historical Review, 120, 2 (April 2015), and text. As Lenin wrote in Materialism and Empirio- “Legal History and the Material Turn,” in The Criticism, 261, “dialectical materialism insists on Oxford Handbook of Historical Legal Research, the approximate, relative character of every eds. Markus Dubber and Christopher Tomlins scientific theory of the structure of matter and (New York: Oxford University Press, 2018); its properties; it insists on the absence of Bruno Latour, The Making of Law: An absolute boundaries in nature, on the Ethnography of the Conseil d’Etat (Cambridge: transformation of moving matter from one Polity Press, 2010); Genevieve Renard Painter, state into another, that from our point of view “When is a Haida Sphinx: Thinking about the is apparently irreconcilable with it, and so

25 LAW & LITERATURE

forth.” See also Friedrich Engels, Dialectics of But the point was not to find Maldoror in the Nature (New York: International Publishers, life. A common explanation of Maldoror, for 1940), 24. example, was that Ducasse was insane. But he 29. Walter Benjamin, “1940 Survey of French was not. “Nothing in his life is strange” (48, Literature,” New Left Review, 51 (May/June emphasis in the original). Ducasse’s classroom 2008), 30, 31–45. experience of mathematics was mental 30. Isidore Lucien Ducasse (1846–1870), pseud. discipline, not torture. “[P]ersonal Comte de Lautreamont, is known principally mathematical training, a poetry sure of itself, a for Les Chants de Maldoror “a series of prose language with precise sonorities, a power of poems in the style of Baudelaire’s Le Spleen De poetic induction tested by the extensive Paris, organized into six cantos of between 5 to authority of the work, is this not a set of 16 stanzas each, first published in 1868, to proofs that guarantees us the integrity of his almost universal neglect and uninterest.” See mind?” (54). Instead, Bachelard seeks the Murr, “‘Les Chants de Maldoror’ Comte de Lautreamont complex in “the oneiric and Lautreamont,” (Sunday, June 22, 2014) at poetic activities of numerous generations” http://thelectern.blogspot.com/2014/06/les- (49), which is to say in the internalities of the chants-de-maldoror-comte-de.html (accessed human imagination and its shared image 3 May 2019). Born in Montevideo to French complexes (archetypes), not in “the artificial parents, Ducasse died November 24, 1870, in nature of external biography” (50). See Paris, during the Prussian siege. Surrealist Hillman, “Bachelard’s Lautreamont,” admirers made “Les Chants de Maldoror” 107–08, 116–19. famous during the 1920s. 34. Outside the 1940 Survey, Bachelard’s name 31. Benjamin, “1940 Survey,” 35–8. See Gaston does not appear anywhere in the Select Bachelard, Lautreamont [1939], trans. Robert S. Writings, which cover the span 1913–1940, or Dupree (Dallas: Dallas Institute Publications, in The Arcades Project, or in Howard Eiland and 1986). Essays by James Hillman, “Bachelard’s Michael W. Jennings’ authoritative biography, Lautreamont: Or, Psychoanalysis without a Walter Benjamin: A Critical Life (Cambridge Patient,” and Robert S. Dupree, “Bachelard as MA: Harvard University Press, 2014). In his Literary Critic,” in Bachelard, Lautreamont,at “Bachelard and the Epiphanic Instant,” 45 103–23, and 125–44, respectively, suggest (n.18) Richard Kearney compares Bachelard’s there was rather more to Lautreamont than met “poetic instant” to Benjamin’s “dialectical Benjamin’s eye. image” but finds no evidence of influence in 32. Ibid., 37–8. See Bachelard, Lautreamont, 85, 90. either direction. From the outset, Bachelard draws attention to 35. Smith, Gaston Bachelard, 28. “the astonishing unity and the overwhelming 36. Patrick A. Heelan, “Foreword,” to Gaston energy with which things meet in time Bachelard, The New Scientific Spirit [1934], throughout Maldoror … words find action trans. Arthur Goldhammer (Boston: Beacon immediately … Lautreamont is one of the Press, 1984), ix. In his Gaston Bachelard, greatest devourers of time, and that, as I shall Kotowicz argues that Bachelard’s commitment show, is the secret of his insatiable violence” to poetics succeeded his investigation and (2). Lautreamont’s speed “gives the ineffable analysis of scientific rationality, the “turn” sensation of a litheness felt in every joint, an occurring at the end of the 1930s. But even in angular litheness opposed to Bergson’s Kotowicz’s account the idea of a “turn” to graceful evolution, that utterly spiral, utterly poetics at the end of the 1930s does not really vegetal evolution. With Lautreamont comes a work, given Bachelard’s completion much participation in the discontinuity of acts, in the earlier in the 1930s of Intuition of the Instant explosive joy of the moment of decision” (10). (1932) and The Dialectic of Duration (1936), 33. Ibid., 37. Bachelard indeed devotes parts of both of which Kotowicz acknowledges as two chapters (Lautreamont,33–58) to a canvas works constructing a poetics of time. Far more of the little that was known of Ducasse’s brief fecund is Kotowicz’s overall description of life, notably his adolescent experience of a Bachelard’s concern “to make philosophically Pyrenean lycee, and his talent for mathematics. understandable a mind that is at work” (148,

26 TOMLINS • A POETICS FOR SPATIAL JUSTICE

and see 11–12) for “a mind at work” precipitates such crises on its own. The encapsulates his approach to both the revolutionary impulse comes from elsewhere, scientific and the poetic imagination in action, from the realm of the abstract. Mathematics is and encompasses the product of both the wellspring of contemporary experimental endeavors. Kotowicz writes, “To see [scientific thought.” Smith comments (Bachelard, 11): rationalism] as merely engaged in exploring “While Bachelard maintains that science reality is to deny it the fundamental drive that eventually refers back to reality, it is his propels it – rationalism does not explore reality insistence on the new ‘constructive’ role of but constructs it … the scientific mind is not mathematics that especially marks his satisfied with mere knowledge of the objective epistemology … Mathematics is not a science world but has an insatiable need to create new of objects but of abstract relations. As such it realities.” (51) But this is no less true of the is nonempirical and what it constructs poetic imagination. In both cases, “[a] mind at rationally can have a degree of arbitrariness work is defined by the way it is in time; it is a with respect to empirical reality.” mind that is drawn by the future, tempted by 40. Heelan, “Foreword,” x. By “phenomeno- the new. This is a theme that runs through his technology” Bachelard means “the writings on [scientific] rationality, [poetic] experimental praxis … of the scientific imagination, and … time” (148). See also Mary community.” Tiles comments that Bachelard’s McAllester Jones, Gaston Bachelard, Subversive characterization of the empirical aspect of Humanist: Texts and Readings (Madison: twentieth century science as a realm of University of Wisconsin Press, 1991), 9–11. phenomeno-technique rendered it “very far 37. This is Roch Smith’s summary. See Smith, from passive observation or the reception of Gaston Bachelard, xx. Tiles quotes Bachelard sense data. This is a firm refusal of empiricist “Tell me how you are sought, I will tell you foundationalism.” Tiles, “Historical what you are.” Tiles, Bachelard, 18. See also Epistemology,” 531. Likewise Boyne: “the Tiles, “Historical Epistemology,” 530–33. theory of phenomenotechnics … asserts that 38. Bachelard, New ScientificSpirit,4.“Ascientific the technical armature of rational science is problem is posed by starting from correlations ontologically creative. ‘Phenomenotechnics expressed as laws. Lacking a preliminary protocol stretches phenomenology. A concept becomes of laws, a fact limited by direct empirical scientific as it becomes technical, as it is establishment risks being poorly understood.” coupled with a technics of realization’…the Gaston Bachelard, “Corrationalism and the external world is a function of the internal ” “ Problematic,” extracted from Le Rationalisme potentiality of the problematic. Boyne, Breaks ” Applique [1949] (Paris: Presses Universitaires de and Problematics, 209, quoting Gaston ’ fi France,1975),50–60,trans.MaryTiles,Radical Bachelard, La Formation de l Esprit Scienti que Philosophy, 173 (May/June 2012), 27, available at (Vrin: Paris, 1938), 61. See also Kotowicz, – https://www.radicalphilosophy.com/web/ Gaston Bachelard,556, 71. dossier-bachelard-and-the-concept-of- 41. Smith, Bachelard,24–5. problematic (accessed 6 May 2019). See also 42. Bachelard, New Scientific Spirit, 172; Kotowicz, Bachelard, The Philosophy of No,15–43. “Science Gaston Bachelard,43–8, 73–6. actually creates reality by realizing the 43. Bachelard, New Scientific Spirit,12–13, and see possibilities opened by rational discourse.” also 108 (emphasis in original): “Nature’s true Boyne, “Breaks and Problematics,” 209. order is the order that we put into it with the 39. Bachelard, New Scientific Spirit, 4. (Hence his technical means at our disposal.” Compare observations in Lautreamont on the severity of Latour and Woolgar, Laboratory Life; Tiles, mathematics. See above, text at note 33.) And “Historical Epistemology.” See also Dominique see New Scientific Spirit at 134: “It does not Lecourt, Marxism and Epistemology: Bachelard, matter how long realism affords the mind the Canguilhem, Foucault (London: New Left luxury of intellectual repose; the striking fact is Books, 1975). that every fruitful scientific revolution has 44. Bachelard, New Scientific Spirit, 44. forced a profound revision of the categories of 45. Ibid., 64, 69. the real. What is more, realism never 46. Ibid., 70.

27 LAW & LITERATURE

pensive man whom we wish to study here” (3, 47. Smith, Bachelard, 62; Kotowicz, Gaston emphasis added). Bachelard, 60, 71. 58. Bachelard, The Psychoanalysis of Fire, 3. See 48. Bachelard, Air and Dreams, 11. Kotowicz, Gaston Bachelard, 84 (noting 49. Gaston Bachelard, The Psychoanalysis of Fire Bachelard’s discomfort at the notion of a [1938], trans. Alan C.M. Ross (Boston: Beacon “pasteurized [purified] universe”). Press, 1964), 102. 59. Bachelard, The Psychoanalysis of Fire,2. 50. Ibid., 10. 60. Ibid., 112. See also Jones, Gaston Bachelard, 92, – 51. Ibid., 1 2 5 (emphasis added). 93–4. Lautreamont follows The Psychoanalysis of 52. Ibid., 3, 5, 21–41, 110. “Reverie” was not the Fire in 1939, with its inquiry into the poetic epistemology of “common sense” with whose imagination and its shared emphasis on surface perceptions of a given reality science definition of Imagination in terms of complexes had broken. Reverie was the deeper well of rather than biography. The Philosophy of No intuition, of “unquestioned values” buried (1940) then turns the same mode of within the scientific mind itself (5–6). “Even investigation upon the development of the scientist, when not practicing his specialty, scientific thought. Roots of the whole approach returns to the primitive scale of values … are to be found in Bachelard’s concept of reverie takes up the same primitive themes epistemological obstacles: see above note 5 time and again and always operates as it and accompanying text. would in primitive minds, and this in spite of 61. Bachelard, Air and Dreams, 3, 14. There is no the success of systematic thought and even in meaningful distinction between dynamic face of the findings of scientific oneirism and the “creative mental process” experiments” (4). that reverie had become in the course of The 53. Bachelard, Water and Dreams. Psychoanalysis of Fire. In Bachelard’s practice 54. Bachelard, Air and Dreams. they become synonymous. On reverie, see Gaudin, On Poetic Imagination, 26, 36–7; 55. Earth and Reveries of Will: An Essay on the Imagination of Matter [1943], trans. Mary Gaston Bachelard, The Poetics of Reverie: Childhood, Language, and the Cosmos [1960], McAllester Jones (Dallas: Dallas Institute of trans. Daniel Russell (Boston: Beacon Humanities and Culture, 2002); Gaston Press, 1971). Bachelard, Earth and Reveries of Repose: An 62. Bachelard, Earth and Reveries of Will, 141; Earth Essay on Images of Interiority [1948], trans. and Reveries of Repose, 242. Kenneth Haltman (Dallas: Dallas Institute of 63. Bachelard, Earth and Reveries of Will,2,3 Humanities and Culture, 2011). (“Imagined images are sublimated archetypes 56. Kotowicz, Gaston Bachelard,82–3. For rather than reproductions of reality”); Joanne Kotowicz, this goal manifests the influence of H. Stroud, “Foreword: Earth and Reveries of Bachelard’s La Formation de l’Esprit Scientifique: Will,” xiii-xiv; Joanne H. Stroud, “Translating Contribution a une Psychanalyse de la Bachelard’s Material Imagination: An Connaissance Objective (Paris: Vrin, 1938). Overview,” in Earth and Reveries of Repose, vii- – 57. See above, notes 36 47 and accompanying xiv, at xii. See also Colette Gaudin, Gaston fi text. The rst words in The Psychoanalysis of Bachelard: On Poetic Imagination and Reverie Fire are a quotation from the surrealist, Paul (Putnam CT: Spring Publications, 2014), 36. “ Eluard, I must not look on reality as being like See generally Joanne H. Stroud, Gaston myself” (1). In his introduction to the book, Bachelard, An Elemental Reverie on the World’s Bachelard identifies the axis of subjectivity as Stuff (Dallas: Dallas Institute his topic. “If we were correct in our theorizing Publications, 2015). about the real implication of subject and object 64. Bachelard, Earth and Reveries of Repose,2;Air then we should attempt to make a clearer and Dreams,7.InThe Psychoanalysis of Fire, distinction between the pensive man and the 13–14, Bachelard observes that “classic [scientific] thinker, without, however, any real psychoanalysis has long studied dreams about hope of being able to make an absolute fire,” but “we are limiting ourselves to distinction between them. In any case, it is the psychoanalyzing a psychic layer that is less

28 TOMLINS • A POETICS FOR SPATIAL JUSTICE

deep, more intellectualized,” and so “we must images, the kind of images that renew replace the study of dreams by the study of archetypes of the unconscious.” Stroud reverie.” Boyne stresses that in his explicitly comments that Bachelard’s concern “is not for scientific works Bachelard’s “psychoanalysis” is the whole poem but for isolated images.” unrelated to Freudian practice. “Bachelard gives Joanne H. Stroud, “Foreword” to Water and the name psychoanalysis … to the explication Dreams, ix. of the closures and reifications wrought in 66. Bachelard, The Psychoanalysis of Fire,3. science by its connection with culture”–the 67. Ibid., 100. “We can easily recognize that very “tenacity” imposed on science’s problematics familiar scientific ideas are psychologically by culture. Boyne, “Breaks and Problematics,” loaded, and oppressively so. They gather 210. Similarly, in his poetic works, Bachelard’s analogies, graphic representations and interest is not in biography but in the work of metaphors. Excessive familiarization gradually psychoanalysis that identifies the image in its produces a separation of the ideas from their relation to culture complexes and as the rational abstract contexts.” Boyne, “Breaks and imagination's means of expression. Dupree, Problematics,” 210, quoting Bachelard, La “Bachelard as Literary Critic,” 133. Formation de l’Esprit Scientifique, 15. 65. Smith, Gaston Bachelard,83–4. In Earth and 68. Bachelard, The Psychoanalysis of Fire,99–100. Reveries of Will, at 4, Bachelard describes a And see Boyne, “Breaks and reading technique not unlike that one Problematics,” 210. associates with Benjamin’s literary criticism. 69. Bachelard, Earth and Reveries of Will,3. The Benjaminian critic loosens from a text the 70. “The rhythms are mutually supporting. They meanings contained within it not by evaluating are mutually induced and continue through or interpreting it as a thing in itself but by self-induction.” Bachelard, The Psychoanalysis of – corroding or mortifying it rendering it a Fire, 28. rubble of fragments such that its fragments of 71. Stroud, “Translating Bachelard’s Material truth might be extracted from amid the Imagination,” x. content in which that truth is imprisoned and 72. Bachelard, Earth and Reveries of Will,7. by which it is obscured. Out of the fragments 73. For the connection made explicitly, see Gaston amassed from the subjection of phenomena to Bachelard, “Poetic Instant and Metaphysical the critical process, the critic constructs Instant,” in Bachelard, Intuition of the Instant, constellations—that is, new historical objects Appendix A (58–63). or “dialectical images” that assemble what 74. Gaston Roupnel, Silo€e (Paris: Librairie may be quite distinct phenomena, whose Stock, 1927). significance can emerge only posthumously or 75. Bachelard, Intuition of the Instant,6. retrospectively in a relationship with the now that has apprehended their significance. The 76. Ibid., 19. objective is not to seek an improved 77. Ibid., 16, 17 (emphasis in original). understanding of the past. It is, by conjoining 78. Ibid., 17, 21. moments, to create an explosively heightened 79. Ibid., 21. Bachelard calls this space-time- awareness of the nature of the present. See consciousness complex (at 21) “the monad Christopher Tomlins, “After Critical Legal affirmed in its triple solitude – without History: Scope, Scale, Structure,” Annual Review communication with other things, other times, of Law and Social Science, 8 (2012), 42–3, and or other souls.” For commentary on Leibniz see generally Michael W. Jennings, Dialectical Intuition of the Instant, 35. For temporal Images: Walter Benjamin’s Theory of Literary discontinuity and quantum theory, see 31. Criticism (Ithaca, NY: Cornell University Press, 80. Ibid., 18. Note Benjamin’s comment: “If, let us 1987), 164–211. Bachelard describes his method say, we were to live vis-a-vis some things thus: “I spend hours, whole days, slowly poring more calmly and vis-a-vis others more rapidly, over books, one line at a time, resisting to the according to a different rhythm, there would best of my ability being carried along by story be nothing ‘subsistent’ for us, but instead lines (which is to say, the most clearly everything would happen right before our eyes; conscious level of books) in order that I may everything would strike us.” Walter Benjamin, be sure to sojourn long enough with novel The Arcades Project (Cambridge MA: Harvard

29 LAW & LITERATURE

University Press), 205–06 [H1a,5]. Note that 87. Cristina Chimisso, “Introduction,” in Dialectic of Bachelard also seems to echo Benjaminian Duration, 1; see also 3 on the same provocation ideas of unfulfilled and fulfilled time. See in the title of Intuition of the Instant. Intuition of the Instant, 8, 28, and compare 88. Bachelard, Dialectic of Duration, 110. Walter Benjamin, “Trauerspiel and Tragedy,” In Walter Benjamin, Early Writings: 1910–1917 89. Ibid., 117, 130. (Cambridge MA: Harvard University Press, 90. Ibid., 117. 2011), 241–45. See also Kearney, “Bachelard 91. Smith, Gaston Bachelard, 62. and the Epiphanic Instant,” 45. 92. Bachelard, Dialectic of Duration, 121 81. Bachelard, Intuition of the Instant, 28, 31. (emphasis added). 82. Ibid., 39 (emphasis in original), 44 (emphasis 93. Ibid., 124. Ever practical, Bachelard added, in original). “[M]atter is the most uniformly “[w]e pay for electricity by the kilowatt-hour realized habit of being, for it is formed at the and for coal by the hundred-weight, yet we are very level of the succession of instants.” 40 nonetheless both lit and heated by vibrations.” (emphasis in original). Compare Benjamin: 94. Ibid., 125. repetition is “the transformation of a shattering 95. Ibid., 130. “Rhythmanalysis” referred to work of experience into habit.” Walter Benjamin, “Toys the same name (Ritmanalise) by the and Play: Marginal Notes on a Monumental Portuguese philosopher Lucio Alberto Pinheiro Work,” in Selected Writings Volume 2, Part 1, dos Santos. Santos’ work was not published 1927-1930, ed. Michael W. Jennings et al. commercially, but he was a friend of (Cambridge MA: Harvard University Press, Bachelard’s and appears to have provided him 2005), 120. with a copy. The concept was later taken up 83. Ibid., 39–43. by Henri Lefebvre, Rhythmanalysis: Space, Time 84. Ibid., 46. and Everyday Life (London: Continuum, 2004). 85. Bachelard Intuition of the Instant, 51. Compare 96. The others are Maurice Merleau-Ponty, Jean- Benjamin’s discourse on “origin”: “Origin, Paul Sartre, Claude Levi-Strauss, Louis although a historical category through and Althusser, Michel Foucault, Jacques Derrida, “ ” through, has nevertheless nothing in common Jacques Lacan, Gilles Deleuze, and, perhaps, “ with emergence [Entstehen]. In origin what is Badiou himself. See Alain Badiou, The ” meant is not the becoming of something that Adventure of French Philosophy, New Left – has sprung forth [das Werden des Review, 35 (September/October 2005), 67 77. Entsprungenen], but rather the springing-forth 97. Ibid., 68. that emerges out of coming-to-be and passing 98. See above, note 39. away [dem Werden und Vergehen 99. See above, text at note 86. In the immediate Entspringendes]. Origin stands in the flow of context of The Dialectic of Duration this may becoming as a maelstrom [Strudel] that have been meant mischievously, but in the irresistibly tears [reißt] the stuff of emergence larger context described by Badiou there is no into its rhythm. In the bare manifestation of reason to doubt its sincerity. the factual, the original is never discernible, 100. Badiou, “French Philosophy,” 70, 71. and its rhythm is accessible only to a dual 101. Ibid., 75. insight. It is recognizable on the one hand as 102. “Conscious life is a new emergence taking restoration, as reinstatement, and on the other, place in the conditions of rarity, isolation, and precisely therein as incomplete, unfinished.” unbinding that favour wave forms … It is a From Walter Benjamin, Ursprung des Deutschen kind of energy in which continuity and Trauerspiels [1924] as translated by Samuel uniformity are highly exceptional and artificial, Weber, in Samuel Weber, Benjamin’s –abilities the products of much work.” Bachelard, Dialectic (Cambridge MA: Harvard University Press, of Duration, 131 (emphasis added). 2008), 88–9. See also Walter Benjamin, Origin 103. Mawani, “Times of Law,” 254. of the German Trauerspiel [1925] trans. 104. Bachelard, Earth and Reveries of Will, 16. On the Howard Eiland (Cambridge, MA: Harvard time of work, see also 38–9, 108. University Press, 2019), xii, xiv–xv. 105. Ibid., 67. Benjamin’s “On The Concept of 86. Bachelard, Dialectic of Duration, 20. History” famously contains several

30 TOMLINS • A POETICS FOR SPATIAL JUSTICE

observations on slowing time down or bringing ‘perceivable’ local appearance … A time to a halt – incidents of shooting at disappearance may leave no trace.” Alain clocktowers during the July Revolution (1830) Badiou, Logics of Worlds: Being and Event, 2, “to make the day stand still”; the idea of “a trans. Alberto Toscano (London: Bloomsbury present which is not a transition, but in which Academic, 2013), 363, 369, 371. Oliver time takes a stand [einsteht] and has come to Feltham comments, “[T]he and of being and a standstill”; revolution as “a messianic arrest event … names the space of the subject, the of happening.” In the “Paralipomena” to the subject of the work of change, fragment of a essay, Benjamin comments “Marx says that truth procedure—the one who unfolds new revolutions are the locomotive of world history. structures of being and thus writes the event But perhaps it is quite otherwise. Perhaps into being.” Oliver Feltham, “Translator’s revolutions are an attempt by the passengers Preface,” in Alain Badiou, Being and Event on this train – namely the human race – to (London: Bloomsbury, 2013), xxxii. On the activate the emergency brake.” See Walter conjuncture between Kierkegaard’s philosophy Benjamin “On the Concept of History” and of “the leap” of faith and Badiou’s philosophy “Paralipomena to ‘On the Concept of History,’” of the event, see Armen Avanessian and both in Walter Benjamin: Selected Writings Sophie Wennerscheid, “Introduction: Volume 4, 1938-1940, ed. Howard Eiland and Kierkegaard’s Intervention of the Single Michael W. Jennings (Cambridge MA: Harvard Individual as Model for Political Theory and University Press, 2006), 395, 396, 402. Practice Today?” in Kierkegaard and Political 106. Reinhart Koselleck, Futures Past: On the Theory: Religion, Aesthetics, Politics, and the Semantics of Historical Time (New York: Intervention of the Single Individual, ed. Armen Columbia University Press, 2004), 11, 12–13. Avanessian and Sophie Wennerscheid See also Francois Hartog, Regimes of Historicity: (Copenhagen: Museum Tusculanum Press, Presentism and Experiences of Time, Saskia 2014), 10. Brown transl. (New York: Columbia University 111. Bachelard, Intuition of the Instant, 50. Press, 2017), 60–3, and generally; Frank 112. Ibid., 8. See Badiou, Logics of Worlds, 363–80. Kermode, The Sense of an Ending: Studies in the 113. Koselleck, Sediments of Time, 136. Compare Theory of Fiction (Oxford: Oxford University Bachelard, Lautreamont,1–12. It is important to Press, 2000). note that in its rejection of linearity and 107. Mawani, “Times of Law,” 253–63; Renisa periodicity, in its curiosity about singularity, Mawani, “Law As Temporality: Colonial Politics repetition, and persistence, Koselleck’s and Indian Settlers,” UC Irvine Law Review,4, Sediments of Time at least proposes a no. 1 (March 2014), 72, 75. theorization of history that recognizes the 108. Kunal M. Parker, Common Law, History, and necessity to engage with post-Newtonian Democracy in America, 1790–1900: Legal Thought philosophies of time. before Modernism (Cambridge: Cambridge 114. Weber, Benjamin’s –Abilities, 250. University Press). 115. See, generally, Weber, Benjamin’s 109. Reinhart Koselleck, Sediments of Time: On –Abilities, 250–80. Possible Histories, trans. and ed. Sean Franzel 116. See, generally, Philippopoulos-Mihalopoulos, and Stefan-Ludwig Hoffmann (Stanford, CA: Spatial Justice,1–41; Ekaterina Yahyaoui Stanford University Press, 2018), 130–2. Krivenko, “Space, Law, and Justice in Leibniz: 110. Mawani, “Law as Temporality,” 72. Alain Leibniz as a Theorist of Spatial Justice,” Law Badiou names such a rupture an “evental site,” and History Review, 36, no. 4 (2018). an upsurge in “the intensity of existence,” Benjamin’s net suggests Latour’s network, which he defines as “the ontological support of which (in the case of law) is “nothing but its own appearance … It makes itself, in the surface, nothing but filaments, nothing but world, the being-there of its own being.” An laces” and simultaneously possessed of evental site “is an ontological figure of the enormous tensile strength. See Latour, The instant: it appears only to disappear.” Nothing Making of Law, 266. in the site’s ontology “prescribes its value of 117. Walter Benjamin, “Capitalism as Religion,” in existence. An upsurge can be a barely Walter Benjamin: Selected Writings Volume 1,

31 LAW & LITERATURE

1913-1926, ed. Marcus Bullock and Michael W. 138. Ibid., 916. See also Benjamin, Origin of the Jennings (Cambridge MA: Harvard University German Trauerspiel, xviii-xix, 252–58. Press, 2004), 289–91. Weber’s translation in 139. Samuel Weber, Targets of Opportunity: On the Benjamin’s –abilities, at 262, differs: “hold out Militarization of Thinking (New York: Fordham until the end.” University Press, 2005), 115. 118. Walter Benjamin, “The Meaning of Time in the 140. Ibid., 120. Moral Universe,” in Selected Writings Volume 1, ed. Bullock and Jennings, 286–7. 141. Ibid., 123. ’ – 119. Ibid., 287. 142. Weber, Benjamin s abilities, 270, 277. On Benjamin’s very similar concept of 120. Walter Benjamin, “Paris, Capital of the “phantasmagoria” see, in addition to his Textual Nineteenth Century” (1939), in Benjamin, The Conspiracies, James R. Martel, Divine Violence: Arcades Project, 26 (citing Louis Auguste Walter Benjamin and the Eschatology of Blanqui, L’Eternite par les Astres: Hypothese Sovereignty (Abingdon: Routledge, 2012), and Astronomique (Paris: Librairie Germer Bailliere, The One and Only Law: Walter Benjamin and the 1872), 76. Second Commandment (Ann Arbor: University 121. Fasolt, “History, Law, and Justice,” 443. of Michigan Press, 2014). 122. Ibid., 443. 143. Weber, Benjamin's -abilities, 277. 123. Philippopoulos-Mihalopoulos, Spatial Justice,1. 144. Ibid., 278. 124. Weber, Benjamin’s –abilities, 252. (In Selected 145. Ibid., 279, citing Walter Benjamin, “Two Poems Writings Volume 1 the translation is “Later on by Friedrich Holderin,€ ” in Selected Writings … we shall be able to gain an overview of it.”) Volume 1, ed. Bullock and Jennings, 30. 125. Philippopoulos-Mihalopoulos, Spatial Justice,2. 146. See Delaney, The Spatial, 17. 126. Ibid., 5. 147. Monad Rrenban, Wild, Unforgettable Philosophy: 127. Ibid., 129; Dylan Trigg, “Atmospheres, Inside In Early Works of Walter Benjamin (Lanham, and Out,” Environment and Planning D: Society MD: Lexington Books, 2005), 140. and Space, 34, no. 4 (2016): 767. 148. Smith, Bachelard,24–5. 128. Luigi Russi, “‘a Legge d’‘o Munno – Three 149. “The scientific vision is defined dialectically Sketches on Spatial Justice,” Global Jurist, 16, through the continuous re-living of the history no. 1 (2016): 2. Compare Krivenko, “Space, of science and its relation to the social world; Law, and Justice,” 909–14. the road to progress in science is the raising to 129. Philippopoulos-Mihalopoulos, Spatial Justice,6. consciousness of that re-living and its social 130. Ibid., 198. location in order that it might be cast aside.” 131. Ibid., 87. Boyne, “Breaks and Problematics,” 220. We 132. Ibid., 87. should not annex “progress” here to the 133. Ibid., 91. “Atmosphere is the lawscape’s wet enlightenment idiom. As Tiles points out, “the dream” (4). progress Bachelard … [talks] about is simply 134. Ibid., 1; Benjamin, “Capitalism as Religion,” 289. progress toward the goals that science (or a 135. Benjamin, “Capitalism as Religion,” 289. In scientific endeavor) has set for itself. Whether “Guilt History,” at 906, Werner Hamacher progress in this respect can contribute to any notes that Benjamin “interprets the historical further, socially ‘progressive’ movement process that transforms the one mode of depends on the movement from theory to production into the other as a debt-progression practice.” Tiles, “Historical Epistemology,” 533. according to the metaphors of interest and As Boyne confirms (223), and as we have compound interest … The socialism projected already seen (see above notes 48–72 and by Marx can only become a more advanced accompanying text), the articulation between state in the debt history of capital.” science and its social (cultural) locale was 136. Hamacher, “Guilt History,” 907. As prominent among Bachelard’s concerns. Philippopoulos-Mihalopoulos remarks, “There is 150. “[B]roadly understood as language, action, no outside.” Spatial Justice,1. practice, ritual, or gendered orientation and 137. Hamacher, “Guilt History,” 915. behavior.” Rey Chow, “The Elusive Material:

32 TOMLINS • A POETICS FOR SPATIAL JUSTICE

What the Dog Doesn’t Understand,” in Coole 164. Ibid., 35, 88; Sohn-Rethel, Intellectual and and Frost (eds.), New Materialisms, 226. Manual Labour, 48, 49. On abstraction and 151. Ibid., 226. property, see Brenna Bhandar, “Property, Law, 152. Alfred Sohn-Rethel, Intellectual and Manual and Race: Modes of Abstraction,” UC Irvine Labour: A Critique of Epistemology (Atlantic Law Review, 4, no. 1 (March 2014): 203–18, Highlands NJ: Humanities Press, 1978), 45. and, generally, Colonial Lives of Property: Law, “ ” 153. Chow, The Elusive Material, 222. Land, and Racial Regimes of Ownership (Durham: 154. On the importance of paying attention to dogs, Duke University Press, 2018). see Colin Dayan, The Law is a White Dog: How 165. Sohn-Rethel, Intellectual and Manual Labour,25 Legal Rituals Make and Unmake Persons (emphasis added). “When looking at use and (Princeton: Princeton University Press, 2011), exchange as kinds of human practice it 15–17, 209. becomes plain to see in what manner they 155. Karl Marx to Arnold Ruge (September 1843), exclude each other. Either can take place only in Letters from the Deutsche-Franz€osische while the other does not. The practice of ‘use’ Jahrb€ucher (Progress Press translation) covers a well-nigh unlimited ﬁeld of human available at https://www.marxists.org/archive/ activities; in fact it embraces all the material marx/works/1843/letters/43_09-alt.htm. processes by which we live as bodily beings on 156. Sohn-Rethel, Intellectual and Manual Labour, 28. the bosom of mother earth, so to speak, 157. Ibid., 48. comprising the entirety of what Marx terms 158. Ibid., 48–9. One might think Sohn-Rethel ‘man’s interchange with nature’ in his labour of engaged here in excessive nature-versus- production and his enjoyment of consumption. society “puriﬁcation” (See Latour, We Have This material practice of man is at a standstill, Never been Modern, 10), but in fact it seems or assumed to be at a standstill, while the clear that the object of distinguishing other practice, that of exchange, holds sway. “exchange” from the indubitably hybrid and This practice has no meaning in terms of relational human/natural world that Sohn- nature: it is purely social by its constitution ‘ Rethel describes as “use” is to recognize it as and scope. Not an atom of matter enters into abstraction and, in the act of recognition, begin the objectivity of commodities as values; in to overcome it. Alternatively, or in addition, we this it is the direct opposite of the coarsely sensuous objectivity of commodities as might think of that which populates the physical bodies’” (27). abstracted world of exchange –“queer” 166. Karl Marx, “Preface” to A Contribution to the commodities, legal persons – as in breach of Critique of Political Economy, Progress Latour’s injunction against fetishism (Latour, Publishers, Moscow, 1977, available at https:// Modern Cult,7–66), but as we are about to see www.marxists.org/archive/marx/works/1859/ (text at notes 159–66 below) neither Marx nor critique-pol-economy/preface.htm. Sohn-Rethel denies these inhabitants facticity, 167. Benjamin, The Arcades Project, 458 [N1,9]. This within the world of exchange. “Fetishism” is a essay’s concluding section is indebted in part means of labeling what happens within the to Christopher Tomlins, “The Strait Gate: The exchange abstraction. Labeling is a step toward Past, History, and Legal Scholarship,” Law, recognition, and recognition, once again, is a Culture and the Humanities, 5, 1 (2009). step to overcoming the abstraction – or, in the 168. By drawing on Reviel Netz, Barbed Wire: An words of this essay’s conclusion, “waking up.” Ecology of Modernity (Middletown CT: (I am grateful to Anat Rosenberg for Wesleyan University Press, 2004), David encouraging me to address these points.) Delaney (The Spatial, 22) offers us an 159. Karl Marx, Capital: A Critique of Political opportunity to enlist pain in the morphology of Economy (New York: International Publishers, awakening in a fashion that underlines how 1967), Vol. 1, 35. recoil from awakening instantiates the material 160. Ibid., 47. conventions of the lawscape. Barbed wire 161. Ibid., 35. enrolls “[t]he body, the skin, the nerves, and 162. Ibid., 71, 83. the nervous system … in regimes of spatial 163. Ibid., 84. prohibition. The body is turned against the

33 LAW & LITERATURE

experiencing ‘self’ that would escape or irretrievableimageofthepastwhichthreatensto trespass. I suggest that it is useful to think of disappear in any present that does not recognize barbed-wire fences as instances of the itself as intended in that image” (391). materialization of the legal, the incorporation of 177. On which see Gilles Deleuze, The Fold: Leibniz the ‘right to exclude’ or confine. They are and the Baroque (Minneapolis, University of material artifacts that are enrolled in specific Minnesota Press, 1993). performances of the legal. They constitute 178. Benjamin, “On the Concept of History,” 396. particular legal relationships and events; legal 179. Benjamin, The Arcades Project, 463 [N3,1]. ” cause and effect become neurological events. 180. Arguably, says Weber, “no writer of critical Repetition teaches convention, and taught essays in the twentieth century … made more convention becomes atmosphere. Still, one thought-provoking use of what are commonly cannot assume the awakened body will always called ‘images’ or ‘figures’…than Walter recoil. (I am grateful to Tom Johnson for Benjamin. And no writer reflected more on this this reference.) use, explicitly and implicitly.” Weber, 169. “[W]hen from a long-distant past nothing Benjamin’s –Abilities, 313. Gaston Bachelard was subsists, after the people are dead, after the not a “writer of critical essays” in the sense things are broken and scattered, still alone, that Weber invokes here, but as we have seen more fragile, but with more vitality, more he too reflected deeply on the use of the unsubstantial, more persistent, more faithful, image. “Ours is the century of the image” he the smell and taste of things remain poised a writes in Earth and Reveries of Will,at5.“For long time like souls ready to remind us, better or worse, we are subjected more than waiting and hoping for their moment, amid the ever before to the power of imagery.” ruins of all the rest; and bear unfaltering in the 181. Bachelard, says Richard Kearney, “made a tiny and almost impalpable drop of their sustained effort to … focus[ ] on the micro- ” essence, the vast structure of recollection. phenomenon of the poetic image ‘at the Marcel Proust, Remembrance of Things Past, moment of its emergence’ in the reader’s ’ Volume 1: Swann s Way, trans. C. K. Scott- waking consciousness.” Richard Kearney Moncrieff (New York: Random House, “Introduction,” to Gaston Bachelard, The Poetics – 1934), 57 8. of Space [1958], trans. Maria Jolas (New York: “ ” 170. Walter Benjamin, On the Image of Proust, in Penguin Books, 2014), xxi–xxii. Bachelard’s Selected Writings Volume 2, Part 1, ed. Jennings description of images also showed keen et al., 238. appreciation for their qualities of rupture and 171. Ibid., 238–9. convulsion in space and time as language. 172. Benjamin, The Arcades Project, 458 [N2,2]. “Certain areas of contemporary literature seem 173. Ibid., 463–4 [N3a,3]. As Weber notes, marked by a virtual explosion of language. awakening is “distinguished both from Chemists see an explosion coming when the consciousness and unconsciousness.” Weber, probability of a reaction’s spread becomes Benjamin’s –Abilities, 168, and see greater than that of its containment. In the generally 164–75. brilliance and fire of literary images the 174. “The dialectical image is an image that consequences of images multiply; words are no emerges suddenly, in a flash. What has been is longer simple signifiers. They no longer merely to be held fast – as an image flashing up in the complete thoughts; they are the future of now of its recognizability.” Ibid., 473 [N9,7]; imagery. ” Bachelard, Earth and Reveries of Will, “The dialectical image is that form of the 5 (emphasis added). See also Constantin historical object which satisfies Goethe’s Fasolt, “Respect for the Word: What Calvin requirements for the object of analysis: to and Wittgenstein Had against Images,” in John exhibit a genuine synthesis. It is the primal Calvin: Myth and Reality: Images and Impact of phenomenon of history.” Ibid., 474 [N9a,4]. Geneva’s Reformer, ed. Amy Nelson Burnett 175. Benjamin, “On the Concept of History,” 397. (Eugene OR: Cascade Books, 2011), 165–90. 176. Ibid., 390, 391. Benjamin’sawarenessofthe 182. Gaudin, On Poetic Imagination, 26; and fragility of the moment of conjunction that is see 36–7. “historical knowledge” is overwhelming. “[i]t is an 183. See above, text at note 31.

34 TOMLINS • A POETICS FOR SPATIAL JUSTICE

represented … There is always a gap, 184. Weber, Benjamin’s –Abilities, 314. therefore, between reality, which the subject – 185. Smith, Gaston Bachelard,915. can try to know and represent, and the Real, 186. Bachelard, The Philosophy of No,15–33, 32, 117. which … stuns, transforms, and indeed Compare Paul Eluard, above note 26. destroys the subject.” Maria Aristodemou, Law, 187. Boyne, “Breaks and Problematics,” 220. Psychoanalysis, Society: Taking the Unconscious 188. Benjamin, The Arcades Project, 462 [N3,1]; see Seriously (Abingdon, Oxon: Routledge, 2014), also 388–9 [K1,2], [K1,3]. 51. See also Teresa Brennan, History After Lacan 189. See http://tryingtoseereality.blogspot.com/ (Abingdon, Oxon: Routledge, 1993), 49–50. 2012/07/walter-benjamin-and-carl-jung.html. 191. By this measure, Terry Eagleton’s Materialism, 190. As Maria Aristodemou summarizes, “reality, for all its wit and learning, fails. knowledge, and existence dwell in the realm of 192. See above, text at note 173; Kotowicz, Gaston the symbolic, that is, in the register of Bachelard, 12. language, of what is said and sayable. Our 193. See above, text at note 155. emphasis on reality, therefore, rather than affording us access to truth, functions as a defense against the truth of what cannot be

Christopher Tomlins is the Elizabeth Josselyn Boalt Professor of Law at the University of California, Berkeley, and an Afﬁliated Research Professor of the American Bar Foundation, Chicago. His research concentrates on Anglo- American legal history from the sixteenth to the twentieth centuries, and on the philosophy of (legal) history. His most recent books are In The Matter of Nat Turner: A Speculative History (Princeton University Press, 2020), and Searching for Contemporary Legal Thought (Cambridge University Press, 2017), co-edited with Justin Desautels-Stein.