Leslie J Moran'

This paper begins an exploration of the complex interface

between law and the Gothic imagination. The Gothic imagination
is a system for making sense of experience, as a semantic field
of force. By way of two extended examples, the paper explores
the ways in which legal discourse generates and is generated by
the Gothic imaginary. It open with a preliminary exploration of law
themes within Gothic literature. Gothic interest has ranged from
the domestic legal tradition in general, the English common law,
to a more specific focus on a wide range of locations within law's
institutional topography. It then offers an overview of the
attributes ascribed to law and its various institutions and
practices associated with the Gothic in legal scholarship. The
Gothic offers representations of law's corruption as well as law's
wisdom. Having set out a preliminary preliminary catalogue of
associations between law and the Gothic imagination, the paper
then offers two extended reflections of the place of Gothic
imaginery within law. By way of an analysis of the jurisprudence
of buggery, the paper examines law's role in the production of the
Gothic imaginary. Turning then to contemporary jurisprudence,
the paper plots the resort to familiar gothic tropes within
postmodern jurisprudence.

Introduction
Law appears to b e a regular theme within Gothic literature'. Gothic interest has
ranged from the domestic legal tradition in general, the English common law,
to a more specific focus on a wide range of locations within law's institutional
topography. In these various contexts, the law appears as the archaic and the
dark, a vestigial shadow that haunts the legal and social order of the
enlightenment and of modernity characterised by rationalism and neo-
classicism. More specifically, it appears as the ad Iioc, unreason, the
outmoded, the judicial in contrast to the parliamentary, the law as unwritten in
contrast to the written law. Bleak ~ o u s e *is one of the best known and most
extensive examples of resort to these themes. The particular context is Equity,
a distinct institution, jurisdiction and jurisprudence that emerged within
English law in the sixteenth century. Equity and its court, the Court of

*
Reader and Head of School, School of Law, Birkbeck College, London.
Punter (1998) traces the significance of law in proto Gothic literature. He suggests
that, within true Gothic, the themes of law gain in intensity and shift somewhat in
focus.
Dickens (1853)
Chancery, are made the quintessence of law as an archaic past that haunts and
corrupts the straight path of rule and reason, rendering it labyrinthine. In
William Beckford's Vatheck, the particular focus of attention is the
constitutional institutions of monarchy and sovereignty. In Vathek, they appear
as corruption and evil, institutionalised and anthropomorphised in the character
'Vatheck ninth In contrast to the monarch and the sovereign as divine
reason and ruled order, in Beckford's novel the institution of sovereign power
is corruption. This takes the form of passion, sensuality, pleasure:
'Notwithstanding the sensuality . . . his people . . . thought that a sovereign
giving himself u to pleasure, was able to govern, as one who declared himself
an enemy to it."The court room, the trial, the dungeon, the prison and guilt
(Godwin's Caleb Williams) are other important legal sites within the Gothic.
Each stands metonymically as a sign of law's ruin, law's impenetrable
darkness, law as labyrinth. Crime has a particular place in the ~ o t h i c . ' In
Maturin's Melmoth the Wanderer, crime is unreason (madness) to law's
reason6. T h e wrongful act is the mark through which man's corruption is given
form - understood as evil made manifest in particular acts. By way of the
criminal act, the body is made monstrous - a living sign of corruption. Great
Expectations is a rich example of this theme.' Murder is the gothic act par
excellence. Mary Shelle 's Frankenstein: The Modern ~rometheus,'Maturin's
a,
Melmoth the Wanderer and Stevenson's The Strange Case of Dr Jekyll and
Mr ~ ~ d e ,to" name a few, draw attention to the particular frequency with
which murder takes serial form in the Gothic tradition." Lawyers, as solicitors,
barristers and judges, appear as characters in Gothic texts as the embodiment
of a certain ambivalence of good and evil: between law as order and right
reason and law as corruption. Dodson, Fogg, Sampson Brass, Uriah Heep and

Beckford (1786). Beckford's choice of Caliph as a manifestation of the attributes

of sovereignty is particularly interesting. The explanatory footnotes that
accompany this edition of the text explain that 'caliph' implies 'three characters of
Prophet, Priest, and King': Beckford (1786), pp Iff. The conflation of the secular
and sacred is a characteristic of English monarchy and sovereignty and more
generally of those concepts within a wider European tradition: see Kantorowicz
(1957).
Beckford (1786), p 3. MacNeil offers another instance of the theme of sovereignty
and state institutions in the Gothic in his reading of Mary Shelley's Frankenstein.
He suggests that Shelley's text offers an exploration romantic origins of the
bourgeois rights tradition that emerged out the French Revolution: MacNeil
(1999a).
Private (civil) law is less commonly found. Bleak House is an exception to this,
though Hutchings notes that murder and the criminal law are intimately connected
with the civil law in Dickens' novel: see Hutchings (1999), p 46.
Maturin (1820), p 64.
Collins (1994); Hutchings (1999); MacNeil (1999b).
Shelley .(l831).
Maturin (1820).
Stevenson (1886).
MacNeil (l999a).
Collins (1994), p 174.
Collins (1860).
Walpole (1764).
Stoker (1897).
Collins (1860), p 9.
Formal devices have been developed within legal practice to bring this potential
for deferral and thereby the impossibility of truth in law to an end. They include
the burden of proof, beyond a reasonable doubt (in criminal law) and on a balance
of probabilities (in civil disputes) and in the institution of the jury.
Haggerty (1989), p 21; Haltunnen (1998), p 4.
Botting (1996), p 49.
reform." Contemporary law is characterised as unreason, madness, an archaic
and a haunting presence that threatens to destroy or delay the new bureaucratic
order of modernity that demands rational institutional hierarchy, deductive
reason and exhaustive expression according to the logic of codification. Here
the English common law is the labyrinth and the ruin of the will to juridical
modernity.
A different Gothic of law appears in the context of reflections on the
particular temporality and geography of the English common law. Here the
common law, as unwritten law, is represented as a nascent wisdom revealed in
precedent. It is a repetition and a return that locates the wisdom and truth of
the legal order in an archaic past, a time immemorial, a mediaeval time made
present. It makes law a celebration of Gothic.
This celebratory Gothic appears in various contexts. It is apparent in the
various examples of redaction, where the disparate, the a d hoc and the
unwritten of law's past and present are collected, systematised and organised
into a single text. Taking the form of a commentary on law, Coke's
seventeenth century four-volume Institutes of the Lnws of ~ n ~ l a n d and "
Blackstone's four-volume Commentaries on the Laws of ~ n ~ l a n are d ~ the
l
most celebrated examples. Victorian scholars such as ~ a i t l a n dengaged
~~ in
similar projects. Each writes the present as a realisation and perfection of a
Mediaeval past. Here the archaic is not so much an impenetrable shadow and a
convoluted journey, with many wrong turns and dead ends, as a slow, ordered
progression, in which the long and winding path is a geography of wisdom
rather than folly. Its end point is not so much monstrosity but a particular
beauty where nature and nurture, the divine and the secular achieve a unity. In
different ways and at different times, these jurisprudential reflections celebrate
the idiosyncrasies of an island tradition in contrast to a mainland European
tradition, of civil law. They are a celebration of the northern - and as such a
Gothic - in contrast to a Roman, Mediterranean, (neo)classicaVrationalist
juridical tradition.24This Gothic celebrates law as a certain wisdom, truth and
justice.25 At the same time, in the redaction of the unwritten law according to
the logic of the code to produce the a d hoc and the idiosyncratic as an
underlying logic and an supra-rationality, they demand a repression of the
scholasticism and the rigour of the civilian logic of the code in the production

2u
Hutchings (1999) and (2000). Its perhaps ironic that the aesthetics of the new
courts of justice in the Strand, London was the Gothic, albeit a 'muscular Gothic':
Brownlee (1984).
21 Coke (1628).
22 Blackstone (1769).
21 Maitland (1911).
'' Berman (1983); Goodrich (1981).
'' David Brownlee's study, The Law Courts: The Architecture of George Edmund
Street, illustrates the ways in which these factors informed the decisions relating to
the design of the new High Court buildings on the Strand. Gothic appears as the
'natural' architectural aesthetic of law in High Victorian monumentalism:
Brownlee (1984).
of the common law as ~ o t h i c . 'In
~ the juxtaposition of these legal writings,
scholars have produced law's Gothic as a certain ambivalence, both
foundational good and fundamental evil, the quintessence of civilisation and a
threatening barbarity.
Finally, crime is an important legal context for the production of Gothic
themes in law and related disciplines. Criminal law, criminal justice and
criminology are locations par excellence of production of ideas of evil,
particularly in the context of violence and sexual acts. There is a long juridical
tradition of associations between criminality, particular bodies, the monstrous
and the grotesque.27 Criminology has translated these juridical concerns and
produced them according the epistemological requirements of a social science.
In turn, this criminological truth of crime has informed criminal law and the
processes of criminal justice.28
This preliminary catalogue of associations between law and the Gothic
imagination draws attention to an important issue: the nature of the relation
between the law and the Gothic. In part, other scholars offer an answer to this
question in their explanations of the nature of the Gothic. While many point to
the relation between the Gothic and particular literary modes of production,
most scholars who engage with the Gothic would not want to reduce it to a
literary genre. This parallels Brooks' approach to melodrama, which he
describes as 'less a genre, more an imaginative mode'.29 He goes on to explain
that the melodramatic imagination is a 'fictional system for making sense of
experience, as a semantic field of force'.30 Here Brooks brings together ideas
about origins (literature) and effects that point to the wider cultural
significance of melodrama - or, for the purposes of this essay, the Gothic.
Others add flesh to these bones. For example, Bayer-Berenbaum describes the
Gothic as a particular 'philosophy'." Halttunen explains the Gothic in terms of
a 'mental and emotional strateg[y] employed within a given historical
culture'.32
Gothic scholars have suggested that, as an imaginative mode and
philosophical schema, the Gothic is an effect of and response to modernity that
is experienced as the loss of tradition, the loss of the divine and the sacred, as
organising principles of moral truth and order. In the Gothic, the sacredtthe

2 V o ~ d r i(1995).
~ h
2' Hart (1994); Hutchings (2000).
28 Young (1996).
2 V r ~(1995), ~ kp vii.
~
"' Brooks (1995), p xii. Judith Walkowitz's City of Dreadjcl Delight provides an
example of an attempt to realise Brooks' idea of the melodramatic imagination as
a more general cultural intelligibility through an analysis of English V~ctorian
campaigns relating to female sexuality: Walkowitz (1992). A few asides are made
referring to the significance of the Goth~cfairytale that informed the politics
relating to the enactment of the Criminal Luw Amendment Act 1885, but these are
undeveloped here.
'' Bayer-Barenbaum (1982), p 12.
l2 Halttunen (1998), p 2.
divine returns in a secular form - nature. Gothic scholars have also drawn
attention to the importance of taking account of the ways in which the Gothic
offers a reaction and response to the totalising aspects of the Renaissance's
recuperation of a Greco-Roman classicism and the Enlightenment's focus on
the scientific and the rational. The unreason and the irrational that are banished
return to haunt and disturb. While their return threatens to destroy, the terror of
that which returns offers the possibility of new sensations, new insights, new
social orders.
The particular historical context of its emergence (consolidation?) is
eighteenth century English modernity. Its persistence through the nineteenth
century and revival in the late twentieth century are explained in part by
reference to the persistence of the concerns that it seeks to address: 'it speaks
to the 20th century'.33 Others have noted the ways in which new technologies
of communication have given new life to the Gothic - first film, then
television and more recently digital t e c h n ~ l o g i e s . ~ ~
In these terms, it is no surprise that a Gothic intelligibility and law are
intimately connected institutions and sets of practices through which the sense
and non-sense of past and present, stability and change, tradition and
modernity are made and unmade on a day-to-day basis. T h e Gothic offers a
'philosophy' through which these terrains might b e rendered intelligible and
unintelligible. T h e remainder of this paper explores two aspects o f i h e relation
between law and the Gothic. In the first instance, I want to consider law as a
site of production of a Gothic intelligibility. Second, I want to explore the
potential of the Gothic as a critical and analytical tool to offer insights into
some recent jurisprudential scholarly reflections.

Enter Law's Ghost

In this section I want to analyse one context in which the law might b e said to
be a 'source of' a Gothic intelligibility. The particular focus is a study of the
offence of buggery.35 This wrongful act provides a n opportunity to examine

33 Bayer-Barenbaum (1982), p 12

35
While buggery - and in the United States sodomy - are not reducible to anal
penetration between men, my analysis will focus on this aspect of the offence. See
Robson (1992) and Robson (1998). It is the act that has long dominated the
jurisprudence and legal practice of buggerylsodomy. While the spectral body has
long been imagined in this particular krm for homogenital relations, it would be
wrong to conclude that the juxtaposition of the body's corruption and the spectral
body is unique to this act. Lord Sumner, R v Tho?npson [I9181 AC 221 at 235
provides an excellent example of this juxtaposition in the context of a dispute
relating to a question of evidence of identity:
'The evidence [photographs of naked boys and powder and powder puffs] tends to
attach to the accused a peculiarity which, though not purely physical, I think may
be recognised as properly bearing that name. Experience tends to show that these
offences against nature connote an inversion of normal characteristics which while
demanding punishment as offending against social morality, always partake of the
nature of an abnormal physical property . . . Persons . . . who commit the offences
 now under consideration [gross indecency is an offence that may only be
performed by men] seek the habitual gratification of a particular perverted lust,
which not only takes them out of the class of ordinary men gone wrong, but
stamps them with the hall-mark of a specialised and extraordinary class as much
as if they carried on their bod~essome physical peculiarity.'
It is also to be found in the offence of gross indecency, introduced in the
Criminal Law Amendment Act 1885. The details of the offence are undefined in
the Act. The terror and writing techniques that I will examine in the context of
buggery were applied to the offence of gross indecency. In part, this might be
explained by the fact that gross indecency involves genital relations between men.
which has traditionally dominated the definition of buggery. In part it m~ghcbe
explained by the fact that the 'new' offence of gross indecency merely renamed
what was already effectively criminal under the offence of buggery. On the lesbian
body as the monstrous in law, see Hart (1994). In the context of lesbian and the
Gothic see Palmer (1999).
36 Queer scholars have noted that such a configuration is associated with
homogenital relations.See Fuss (1991); De Laurentis (1991); Castle (1993) They
have noted the way the homogenital body (a body whose sense, and non sense, is
made by way of that body's genital relations with other bodies of the same sex) is
lived and represented as a haunting and ghostly phenomenon.
"
Goodrich (1999) and Goodrich (1995).
Bray (1982) p.23.
'' Bray (1982) p.25.
part of the Institutes of the Laws of ~ i z ~ l a n done
, 4 ~of the first detailed secular
expositions on buggery. For Coke, buggery is a sign of the alien, understood as
a sort of invasion - a practice brought to these shores by ~ o m b a r d i a n s ~Here
'.
buggery and Englishness are closely aligned. Buggery is the outside that is
always already (via invasion) inside (England's corruption) and that which has
to b e expelled.42
Coke writes the particular form of violence of buggery through his
taxonomy of 'Offences against the Crown'. In its close proximity to treason,
buggery is an act that threatens sovereignty and state institutions. It is also an
act akin to murder, being proximate to the offence of deodands which is
defined in the following terms:

when any moveable thing inanimate or beast animate, doe move to, or
cause the untimely death of any reasonable creature by mischance . ..
without will offence or fault of himself, or of any person.

In this particular proximity, it is made sense of as a violence that has a capacity

to blur otherwise clear distinctions: between animate and inanimate, reason
and unreason.43 It is here associated with a form of murder performed by a
thing already dead (an inanimate thing). In Coke's text, buggery is also
affiliated with rape. In this conjunction, buggery is to be understood in terms
of a violence against the carnal order and the patriarchal order of the
circulation of women. The tradition of buggery as a 'sign of corruption' and
extreme violence is written in subsequent taxonomies as a threat to the social
order in various ways - be it as a threat to the sacral order, or the secular
order of the state (public order), the order of the person (an offence against the
person) or, more recently (in the Se.~ualOffences Act 1956), the sexual order.44
In writing the detail of the wrongful act, the eye of the law slides across
the surface of the body, from the penis to the anus, from active to passive,
from penetration to emission and so on. Through writing the meaning of the
wrongful act through successive taxonomies of 'Offences against the Crown',
the hand of law writes this tradition of buggery as an extreme violence that
shifts from the natural body to the artificial body; the human body to the social
body, to the body of the King (the juridical body of law).

40 Coke (1628).
41
The Lombards were a Germanic people that settled in northern Italy. They are also
associated with banking, money-lending and pawn-broking.
42 Goodrich (1992)
43
The theme of buggery's capacity to blur distinctions is further developed in
Coke's commentary. Buggery as genital relations between humans and animals
renders that distinction-problematic.Coke cites a case in which, as a result of such
encounters, a woman gave birth to a baboon. In Lord Audley's case, one of the
manifestations of buggery is in its capacity to blur distinctions between Anglicism
and Catholicism. See Lord Audley, Earl of Castlehaven (1631) 3 State Trials 401.
Moran (1996).
 The persistence of the associations between the act of buggery, corruption
and terror was subject to detailed governmental scrutiny in a review
undertaken by the Wolfenden Committee, spanning the years 1954-57.45
During the course of a debate to abolish the offence of buggery, having
concluded that there was no substance in the reality of the apparition, the
committee decided to retain the legal term 'buggery' and proposed its re-
enactment in the law. They offered the following explanation:

Although we (or a majority of us) see no reason to distinguish, from the

point of view of the law, between buggery per se and other homosexual
acts, there is no doubt that the very thought of buggery causes many
people to get hot under the collar. We cannot overlook the fact that
there are a great many people who believe (however much we may
disagree with them) that buggery, as distinct from other forms of
homosexual behaviour, has demoralising effects not only on individuals
but on nations and empires.46

The sensation under the collar is a corporeal mark of a lingering disturbance, a

terror institutionalised by way of buggery. The phrase 'demoralising effects'
points to the persistence of the relations between buggery and corruption. That
corruption still knows no bounds. It haunts the individual, the nation and the
Empire. The particular dangers attributed to the act should be preserved by
way of the name 'buggery'.
In the final report of the Wolfenden Committee, the retention of buggery
as a device through which an experience of corruption and terror might be
reinstitutionalised is explained on the basis that it represents tradition and the
wisdom of our forefathers. What is interesting in the demand that the name of
buggery be retained is the needdesire for the terror that lingers in the name. In
the extract from the Wolfenden review, the proposal to retain the name of the
prohibition suggests that it takes the form of a desire for the particular violence
of law.
In 1967, the terror of buggery was formally transposed into a new
juridical context when buggery was renamed as an act of homosexuality. The
retention of the archaic term, buggery, and its connection to 'homosexual'
represents the formal translation of the mark of the apparitional body from
buggery as an act of evil to the act as a mark of flawed identity (homosexual).
More recently this particular Gothic tradition was given new life in
the litigation that is known in law as R v ~ r o w nbut, ~ which
~ most people know

Wolfenden (1957).
46
Public Records Office. HO 345110, CHPIMISCI2.
47
Other examples should be noted. Parliamentary debates which led to the
enactment of section 28 of the Local Government Act 1988 provided a vehicle for
the production of the male homogenital body as terror in the 1980s. This
legislative intervention also coincided with the homogenital body as terror
produced through the emergence of the AIDS pandemic: see Smith (1994) and
Watney (1987). In the late 1990s, the Labour government's attempts to reform the
'age of consent' for sexual relations between men and attempts to repeal s 28 were
 - -

84 LAw REVIEW
GRIFFITH (200 1) VOL 10 NO 2

as 'Operation Spanner'. One o f the interesting features o f this case is the

appearance, disappearance and reappearance o f the 'homo'. It appears in the
naming o f the men as homosexual throughout the investigations and the
litigation; it disappears when the men themselves attempt to claim that acts o f
homosexual sado masochism are homosexual acts and thereby lawful. It
reappears in the final determination to name the sado-masochism o f men
'wrongful acts'.
In the final instance, homosexuality and sado-masochism have a
metonymic/metaphoric relation. They are thereby one and the same body and a
very particular body at that.49Here the signs o f pleasure are read as the marks
o f corruption. The bodies o f the defendants appear as ruined bodies - scarred,
bleeding, weeping, broken, open. In the various judgments, these bodies stand
as a sign o f escalating violence; they are unruly, bodies without the possibility
o f a referee (without orderlwithout a father). These bodies are understood in
law as delirium, as bodies that destroy order and as bodies that call for order.
That this is a body o f sadomasochism as homogenital and not just the
sadomasochistic body is confirmed in a subsequent decision o f the Court o f
Appeal in February 1996, R v ~ i l s o n , " which concerned an act (similar to that 1
found in the Brown case) o f branding. The accused, a man, had branded his
initials on the buttocks o f his female partner. The judgment o f the Court o f
Appeal emphasises the matrimonial nature o f the act. In the context o f cross-
sex relations, branding is not so much a sign o f loss o f social order and loss o f
control - the potential for scarred and broken bodies - but an adornment, a
token o f affection, a bond o f love. Here the violence to the woman's body is a
sentimental romantic inscription. The violence against the women in this case
is displaced and denied, and reappears as a terror and fear that slips from the
homo body to the 'sado-masochist' to the juridical body and back again.
Buggery appears to provide a rich site for the production o f the Gothic
imagination. Law as a practice o f repetition and citation is a practice that might
ensure their durability. Law is a living archive through which the present might
be haunted by a specific past that is a logic o f evil acts, corruption,
monstrosity, dread and terror.

Writing the Ghost

I now want to shift the focus o f analysis to the textual practices o f law that
produce the body o f buggery as a spectral body. What are its terms and
conditions? Where do we look for these terms and conditions? It is not to be

recent examples of the continuation of the tradition of the homogenital body as

terror.
48
R v Brown (1992) Cr App R 302; R v Brown [I9921 1 QB 491 and R v Brown
[I9941 AC 212. This case proceeded to the European Court of Human Rights in
Strasbourg as Laskey, Jaggard and Brown v The United Kingdom, Lasky (1997) 2
European Court o f Human Rights Reports 39. The court upheld the decision of the
English court: see Moran (1998).
49 Moran (1995).
R v Wilson (1996) 3 WLR 125.
found in the public declaration of the law; statute law. The act of Henry VIII
invokes the name of buggery but invokes it as a name that is always already in
existence and presupposes the terms and conditions of its operation. As such,
its terms and conditions are not to b e found in public law (the law articulated
in public discourse) but in what we might call 'the obscene "nightly" law' that
necessarily redoubles and accompanies, as its shadow, the 'public' law of the
statute." This 'obscene "nightly" law' is the 'law' between lawyers -
scholarly commentary and procedural law, the practices that write the voice of
law rather than the (disembodied) letter of the law.
Various legal scholars and commentators have documented the practices
and rituals through which writing the ghost in law must b e performed. Sir
Edward Coke's 'Of Buggery o r ~ o d o m y 'documents ~~ the contemporary
procedural requirements. If buggery is to appear in the law then, he explains, it
must be produced not by way of the term 'buggery' but according to the
following formula: 'not to b e named amongst Christians' (inter christianos
non nominandum). It must b e produced according the requirements of an
injunction to silence.
T h e impact of this injunction to silence can b e seen in the writings of Sir
William Blackstone, one of the most noted, respected and influential
commentators o n the common law.53 H e makes reference to the offence of
buggery in Chapter 15 (Offences Against the Person), section IV, Volume 4,
'Of Public Wrongs', in his Commentaries on the Law of ~ n ~ l a n dH. 'e ~refers
to the wrong of buggery not by resort to the word 'buggery', but by means of
the title 'the infamous crime against nature'. Having explained the need for the
offence to be strictly and impartially proved, he continues:

I will not act so disagreeable a part, to my readers as well as myself, as

to dwell any longer upon a subject, the very mention of which is a
disgrace to human nature.55

j' Zizek (1994), p 54.

j2
Coke (1628). It first appeared in Coke's A Booke of Entries: Containing Perfect
and Approved Presidents: Coke (1614). The text includes a precedent for an
indictment, a formal written accusation required in order to initiate a trial for
sodomy. As a precedent, the indictment suggests that the 'abominable sin of
Sodom, called in English Buggarie ... ought not to be named among Christians
. . . ' While the edition referred to here was published in 1628 the materials upon
which it is based may have been circulated previously, reflecting an earlier
practice of silence. The conjunction of buggery and sodomy in the title of Coke's
meditation is of particular significance. It draws attention to a point of connection
between the sodomitical legal tradition of the United States and the English legal
tradition of buggery. The remainder of his meditation privileges the term used
within the English legal system, 'buggery'. In Scotland, the term used is
'sodomy': see Hume (1986).
" Alshuler (1994).
lackst stone (1769), p 215.
jS Blackstone (1769), p 215.
 Coke and Blackstone both draw attention to the practices of writing in
law that phantomise the male homogenital body. It is produced through the
absence of the word 'buggery' from the text of law. Blackstone's obedience to
the command to be silent inscribes this marked body in law as an absence (as a
hole in the real), as the impossibility of representation which might be
understood as a form of death. At the same time, he demonstrates the way this
injunction to silence sets the signifier in motion.56 The injunction to silence
appears to operate more as a prerequisite for its representation in the law; a
demand that we write this body as the shadow of this absence. Thereby the text
of law (the body of law) is haunted by an absent presence that is the name
'buggery'.
The marked body is also phantomised in the mode of annunciation as
performed in Blackstone's modesty and restraint: 'I will not act so
disagreeable a part ...' The body as shadow is performed in the rituals of
sanitised public speech. Through these rituals, this genital body is produced as
reticence and hesitation. It is performed as that which is barely utterable. It is
barely decipherable. It is barely audible - an oraVaura1 paleness. It is
performed as an outline of a body that is elsewhere, a terrible force on the
threshold of appearance that must be kept at bay.
That these rituals produce this body as dread and terror is evidenced in
Blackstone's observation that 'the very mention of which [buggery] is a
disgrace to human n a t ~ r e ' . ~Here
' silence is the icon of terror rehearsed again
in the description of the potential effects of that terror unleashed, 'a disgrace to
human nature'. The ritual of hesitation memorialises the danger of the
corrupting power of buggery explained in terms of a fall from grace - a fall
into silence. Thereby the juridical protocols produce this body as the diabolical
body, a body beyond representation, an exorbitant power.58
The textual incorporation of the incorporeal is one locus of danger that
produces its own problems. Some of the problems of dealing with the dangers
associated with use of the word buggery are found in R v Rowed and
noth her.^^ The indictment against Rowed contained several counts which
purported to describe a series of similar illegal acts performed by the accused
in Kensington Gardens. The first count of the indictment read as follows:

. . . being persons of nasty, wicked, filthy, lewd, beastly and unnatural

dispositions, and wholly lost to all sense of decency and good manners,
heretofore, to wit on, . .. with force and arms ....in a certain open and
public place there, called Kensington Gardens, frequented by divers of
the liege subjects of our lady the Queen, unlawfully and wickedly did
meet together for the purpose and with the intent of committing and
perpetrating with each other, openly lewdly and indecently, in the said
public place, divers nasty, wicked, filthy, lewd, beastly, unnatural and
sodomitical practices; and then and there unlawfully, wickedly, openly,

j V a c a n (1977), p 38.
j7 Blackstone (1769), p 215.
j8
Kristeva (1982). See also Fuss (1991); Butler (1990) and (1991).
j9
R v Rowed and Another (1842) 3 QB 180.
 lewdly and indecently did commit and perpetrate with each other, in the
sight and view of divers of the liege subjects of our said lady the Queen,
in the said public place there passing and being, divers such practices as
aforesaid to the great scandal and disgrace of mankind in contempt . . .
to the evil example . . . and against the peace.

In the context of the legal injunction to silence (which the judges noted
was still a requirement of the law), the absence of any particular criticism of
the immense verbosity of the representation of the body of the unrepresentable
per se is of particular interest. In the appeal court, the judicial criticism of the
indictments was not that too much was said, but that too little was said. It is
interesting that this verbosity makes the forbidden act (and thereby the
forbidden body) vivid - one might say comic - but at the same time
insubstantial, too pale, too shadowy. As such, it threatens to undermine the
legal process. The problem is the inadequacy of the signifying elements. Their
adequacy is to be recuperated by the inscription of the sign of the founding
injunction: buggery. But it should not be thought that the juridical writing of
this shadowy body would demand the removal of the manifold epithets. The
appeal court merely concluded that they must be conjoined with the juridical
term 'buggery' which, it was said, had the capacity of 'shewing the intention
implied by the epithets'.60 Only by way of the archaic term of law might this
shadowy body appear in the law. The manifold epithets can only make judicial
sense if sutured to the hole in the real. The ghost that is to haunt the legal body
must appear by way of particular rituals. Thereby the excess of representation
that threatens to make the spectral too substantial renders the most vivid a
sufficiently pale shadow.
The danger associated with representation is also the site of a demand for
vigilance. The legal rituals and lexicon have a compulsory quality. To be in the
law as a speaking subject, a legal subject must fulfil particular requirements.
The legal subject does not have the right to say everything and comes into
being according to a particular (restricted) economy of speech.61It is according
to these rituals and requirements of a legal practice that the apparition might be
produced as the truth in law.62This is the point at which fantasy is installed in
subjectivity - legal subjectivity.63In the juxtaposition of the injunction to
silence and a command to speak, the ritual invocation of the injunction to
silence in the law appears not only to call forth the horrors that are associated
with buggery but it also appears to protect those who speak of such things in
the law.
While the injunction to silence is no longer a formal requirement of legal
practice, silence continues to be intimately connected to the acts of the male
homogenital body. It is enacted in the 1967 Sexual Offeerices Act in the
requirement that decriminalisation would only relate to homosexual acts in

"' R v Rowed (1842) 3 QB 187

61 Foucault (l98l),p 61.
62 Foucault (l98l),p 60.
63 Cf Hachamovitzh (1994).
private - that is, where no more than two persons were present. In turn, the
private has been central to subsequent key developments in the field of human
rights litigation that have further advanced decriminalisation, in Dudgeon v
United ~ i n g d o m in ~ United Kingdom's recent Human Rights Act, and
, ~ the
more generally in scholarship on gay rights as human rights.65. However, as
Roland Barthes comments:

The 'private life' is nothing but a zone of space, of time, where I arn not
an image, an object.66

In being consigned to the private, the male homogenital body is to b e lived as

an image that is not an image, an object that is not a subject, a subject that is
not a legal subject.

Law's Double: The Doppleganger Effect

One trope of the Gothic is the double or doppleganger. An examination of the
doppleganger effect in law provides an opportunity for further insights into the
nature of the violence associated with the forbidden acts and in turn the nature
of law's violence. A series of eighteenth century cases dealing with the
common law offence of robbery are one instance where these matters have
arisen in law. Robbery is:

the stealing or taking from a person, or in the presence of another,

property of any amount, with such a degree of force or terror, as to
induce the party unwillingly to part with the property.

In these cases, 'the force and terror' that led to property being given up was a
present and future violence generated by language, through the invocation of
the term ' s ~ d o m y ' . ~ '

Dudgeon v United Kingdom (1982) 4 EHRR 149 and Moran (1996a).

Wintermute (1995).
Barthes (1977), p 15.
The recognition of the buggerylviolence conjunction and the monopoly over its
deployment is not peculiar to the opinion of certain judges. It has also been
recognised and formalised in legislation. This legislation is of particular
importance, as it brings buggery within the ambit of the law that we now refer to
as blackmail. In 1825, an Act was introduced to amend the law relating to the
offence of sending threatening letters and the offence of assault with intent to
commit robbery. In order that the writing contained in the letter, or the words
spoken, be interpreted as a threat, the law required that the words used had to take
the form of an accusation relating to a crime punishable by death, transportation or
pillory, or be an accusation relating to an infamous crime. The Act of 1825
provided a list of offences that were, for the purpose of this offence, always to be
taken to be infamous crimes. The category was to include not only every crime
already deemed infamous but henceforth:
'every Assault with Intent to commit any Rape, or the abominable Crimes of
Sodomy or Buggery, or either of those Crimes, and every Attempt or Endeavour to
 In King v Tlzowlas ~ o t z e s the
, ~ ~judges concluded that the imputation of
sodomy was so alarming that it was sufficient to satisfy the requirement of
force or terror. Jones, who had utilised this terror in order to gain property, was
duly sentenced to death. A second case, R v ~ i c k r n a noffers
, ~ ~ further insight
into the nature of this terror and violence. Again the prosecutor, acting under
the threat of sodomy, paid money - this time to the accused Hickman. The
victim explained that he 'parted with his money under an idea of preserving his
character from reproach, and not from fear of personal violence'. The jury
found the prisoner guilty. First, the decision draws attention to the nature of the
terror associated with buggerylsodomy. It is a violence that destroys the
character. It is such a corrosive force that to merely invoke the name is to be
understood as an attack that might destroy rank, status, moral qualities and the
personal. This conclusion is graphically followed in R v Knewlatzd and
where Ashurst J observes:

The bare idea of being thought addicted to so odious and detestable a

crime, is of itself sufficient to deprive the injured person of all the
comforts and advantages of society: a punishment more terrible, both in
apprehension and reality, than even death itself. The law, therefore,
considers the fear of losing character by such an imputation as e ual to
4
the fear of losing life itself, or of sustaining other personal injury.

Second, in the Hickman proceedings, a special court of twelve judges

went on to explain this force as a reflection. The question of the thing reflected
in that apparition was considered by way of the issue of access to that terror:
who has the capacity in a social order to resort to the name 'sodomy' and its
silences, to invoke terror and call that silence truth? The offence of robbery
performed by way of the invocation of the name buggerylsodomy is not about
a total prohibition of the use of the name and the use of the terror associated
with it, but about access to that namelterror. In reaching the conclusion that the
use of silence and the naming of buggerylsodomy for the purpose of obtaining
money or property may be an act of robbery, the judges d o not seek to deny the

commit any Rape, or the said abominable Crimes or either of them, and also every
Solicitation, Persuasion, Threat or Menace, offered or made to any Person,
whereby to move or induce such Person to commit or to permit the said
abominable Crimes or either of them, shall be deemed and taken to be an infamous
Crime within the Meaning of the said recited Act'.
The provision was consolidated in the Larceny Act 1861. At that moment in
time, it was also rewritten so that the category of 'infamous crime' was reduced to
the 'abominable Crime of Buggery' (s 46). Its conti.lued viability was recognised
in its re-enactment in 1916 in the Larceny Act. Finally, it was transformed and its
viability modernised in English law in the creation of a new offence, blackmail, in
the 1968 Theft Act.
" R v Jones (1775) 1 Leach 139.
" R v Hickman (1783) 1 Leach 227.
'' R v Knewland (1796) 2 Leach 72.
'' R v Knewland (1796) 2 Leach 72 at 78.
 90 GR~FF~TH
LAWREVIEW
(200 1) VOL 10 NO 2

buggerylviolencelterror conjunction, but demonstrate a determination to limit

access to that ~ i o i e n c e . 'Hickman's
~ case suggests that the lexical economy
and textual practice of juridical ghost writing are intimately connected with
access to the power to name and thereby access to violence and terror. T h e
command to silence is not only concerned with the specific ways in which the
male genital body may be spoken in the law; it is also a reference to the
distribution of those authorised to speak this body and thereby produce the
violenceltruth of the genital male body in its genital relations with other male
bodies. T h e terror of the specter in the name 'buggery' is the mirror image of
the terror and violence of law.
Another instance of law meeting its reflection in the context of buggery is I

to be found in the defence of provocation offered by those who kill in response

to a 'homosexual advance'. Here an act of violence that is the subject of
prosecution and is thereby in the first instance characterised as an act of
violence outside the law is recognised as a reflection of the law. In the United
~
States, the relation between these brutal acts of violence and the law is found
in the name given to the defence against homosexual advance. It has been
called the 'unwritten law'.73 Another example of the doppleganger effect is to
be found in the first action brought by Oscar Wilde against the Marquis of
Queensbury. Queensbury, charged with criminal libel, pleaded the defence of
justification. At the time, for Wilde's action to be successful, the libel the
defendant was accused of had to b e such as to threaten a breach of the peace.
Wilde's charge worked with the idea that an accusation of sodomy was such a
force and terror as to b e a direct threat to the Queen's peace. As such, the
invocation of sodomy was against good order and thereby against the criminal
law. Queensbury's successful response draws attention to the force and terror
produced by way of an accusation of sodomy not so much as a threat to social
order, and thereby as something outsider the social order and the legal order of
the Queen's peace, but as a reflection of it. In the success of the defence, the
force and terror outside the law is made the law's ~ i o l e n c e . ~ ~ .

A Gothic Jurisprudence

You hide your face, and they are terrified;

you take away their breath
and they die and return to their dust

'' See Lindgren (1984), p 702; Katz (1993), p 1567. It is interesting to note that, at
the time, both buggery and robbery were capital offences. However, unlike
buggery, when the accused was found guilty of robbery the sentence of death was
rarely carried out. In The King v Hickman, the accused was found guilty and
sentenced to death. However, the sentence was never carried out. Hickman was
reprieved and at the end of the April Session 1784 received His Majesty's pardon
on condition of being transported to Africa for fourteen years.
Merrill Umphries (2000). In Australia it is known as the homosexual panic
defence.
j4 Moran (1996).

~
 You send forth your Spirit, and they are created;
and so you renew the face of the earth.
(Psalm 104 verses 30-3 1)

In my second reflection on the relation between law and the Gothic, I want to
look at some recent debates within jurisprudence - in particular, what I want
to call postmodern jurisprudence. I wish to argue that, at the end of the last
millennium, a Gothic jurisprudence emerged in anglophone legal scholarship.
What are the signs of the Gothic in recent jurisprudential writings?
They are to be found in a return to the sacred and in a re-evaluation and a
recuperation of the iconography of the religious in law. Instances are to be
found in Peter Goodrich's work that draws parallels between the rituals of the
Eucharist and legal rituals.75They are also present in his more recent work that
poses the problem of representation of law by way of the struggle over
representation in the emergence of the Protestant church in northern Europe:
iconoclasm.76
A particular influence here has been the work of the continental
jurisprudential scholar Pierre Legendre. Legendre's work explores the relation
between the sacred and the secular through a study of the emergence of the
civilian legal tradition in the context of a culture dominated by the Catholic
Church. The blurb on the inside of Goodrich's collection and translation of
Legendre's work suggests that Legendre's work on law has a particular
significance; his work will introduce us to the law as 'delirium' and
'passion'.77.These terms resonate with the Gothic's focus on sensation, on that
which is repressed (and returns) on attributes associated with the sublime.
The references to Legendre in jurisprudential scholarship also point to
another aspect of the turn to the Gothic: psychoanalysis. Lacan, in particular,
has come to achieve a certain prominence in Anglo American legal
scholarship. Evidence of this is to be found in the writings of Goodrich,
Douzinas and ~ a u d i l l . ~As
' recent critical scholars of both melodrama79 and
the ~ o t h i c " have noted, psychoanalysis takes on cultural and historically
specific forms - in particular, those of melodrama and the Gothic. Brooks
notes that there is a 'convergence in the concerns of melodrama and
psychoanalysis'8' which he suggests requires that we think of psychoanalysis
as 'a kind of modern m e l ~ d r a m a ' In
. ~ ~the context of the Gothic, Mighall -
reflecting on the resort to psychoanalysis in order to read Gothic texts - notes
the way in which 'a psychological model . . . actually mirrors many of the basic

Goodrich ( 1990); Douzinas, Warrington and McVeigh ( 1991)

Goodrich (1999); Douzinas ( 1999).
Legendre (1997).
Caudi11 (1991), (1992), (1993).
Brooks (1995).
Migha11 (1999).
Brookes (1995), p xi.
Brookes (19 9 3 , p x.
rhetorical and ideational properties of [the ~ o t h i c ] ' In
. ~ contrast
~ to Mighall,
whose object of analysis is the canon of scholarship on Gothic fiction, my
argument is not so much that critical jurisprudential scholarship presupposes
the very thing that it seeks to explain, but more that, through psychoanalysis,
scholars of jurisprudence are producing a very specific image of law. Through
psychoanalysis, resort is being made to a Gothic imaginary already naturalised
in the tropes of psychoanalysis and thereby contributing to the rise to a Gothic
jurisprudence.
These various themes come together in some of the work of Peter
Goodrich. In both Oedipus ex^^ and Law in the Courts of the object of
analysis is the power of the image. For Goodrich, the image is important as it
is the means whereby 'the memory of Law - as custom and tradition, as
precedent and antiquity'86 is (re)produced. Goodrich's object of analysis and
critique is the celebratory Gothic of English scholarship and legal practice. In
juxtaposition to this he offers the repressed:

The critical analytic suggestion embodied in this text thus concerns the
politics of recuperation, of recovery of the traumas that law cannot
consider, of recollection of the repressed and failed images, figures,
texts, and thoughts prohibited by the prose of doctrine, b the language
4;7
of judgment, by the protocols of a wisdom without desire.

The return of the repressed for Goodrich has to be located in the context of -
and is for him a prerequisite to - Justice. In this scheme of things, 'Justice' is
'both blindness and insight, both rage and r e c o n ~ i l i a t i o n ' His
. ~ ~ descriptions of
justice offer a sensationalist jurisprudence and, I would suggest, an idea of
justice closely associated with the sublime.
Another important source of Gothic themes on recent jurisprudential
scholarship is to be found in the impact of the writings of Kafka and Derrida
on legal scholarship. Others have noted the mediaeval Gothic iconography
(particularly that of the Last Judgment) in Kafka's two texts that are most
pertinent to law; The Trial and The Kafka's influence has been
promoted in legal scholarship by way of Derrida's essay on his short story,
'Before the ~ a w ' . ~ Derrida's
'. analysis of Kafka's short story that, 'condenses

Mighall(1999), p 249
Goodrich (1995).
Goodrich (1996).
Goodrich (1996), p 96.
Goodrich (1995), p x.
Goodrich (1998)
Hyde (1974).
Derrida (1992a). Derrida's other major text on law, Force of Law: The Mystical
Fo~cndationof Authority (Derrida 1992b), also tells a tale of law according to
various Gothic tropes of ruins and spectres. Here the law as sublime takes the form
of an originary violence.
the whole of "The Trial" in the scene of "Before the ~ a w " ' ~offers ' a Gothic
jurisprudence. Central to this conclusion is Derrida's reading of the theme of
the nature of law found in Kafka's text. I want to argue that Derrida produces
law according to the logic of the sublime. It is to the logic of the sublime and
its relation to law that I now turn.
Derrida's starting point is the relation between the gatekeeper/door/castle
and the one at the door, before the castle, in front of and facing the gatekeeper
the countryman. By way of these two characters and their different positions, a
series of binary oppositions is set in motion - of city and country; of nurture
and nature; of dark and light.92 These oppositions conjoin with other binaries
that have a more obvious juridical focus; in the relation between positive law
and the natural or moral law. At the same time, these binaries appear to be
internal to positive law. They are given expression in the countryman's
expectations that 'the Law, he thinks, should surely be accessible at all times
and to e ~ e r ~ o n eHere
' . ~ law
~ is clear, transparent, the fullness of meaning and
the transparency of meaning in contrast to another side of law; of opacity,
confusion, unknowability, knowable only to specialists - lawyers,
gatekeepers.
In Kafka's tale, the opacity of the law is that which returns to confound
the countryman's assumption and expectation of transparency. The tale tells of
his experience of the return of this repressed image. I want to argue that
Kafka's tale and Derrida's reading of it go beyond this. The nature of that
beyond might be examined by way of a return to the gatekeeper. As the one
who represents the law, the gatekeeper might be expected to know the law.
However, Kafka's tale suggests otherwise. The gatekeeper only knows of other
gatekeepers who regress endlessly into the distance and who at each portal are
more powerful. The law remains unknown to them. The succession of
gatekeepers provides an anthropomorphised form of the law as labyrinth. At
the same time as the law is that which is lost or deferred in the ex~erienceof
the labyrinth, the law is also that which lies beyond both the anthropomorphic
figures of gatekeeper and countryman. Here Law is a third term to the binary
structure.
I want to argue that this offers an image of Law as the sublime.94Derrida
explains Law in this form as that which 'exclude[s] all historicity and
e~npiricaln a r r a t i ~ i t ~'it' ; ~must
~ be without history, genesis, or any possible
privation'.96 It is invisibility, silence, discontinuity, the inaccessible, the
impossible an absolute. It is 'obscene and ~ n ~ r e s e n t a b l e ' ,an
~ ' infinity and an
excess that violates all boundaries, puzzles and paralyses98 a locus that is a

" Derrida (1992a), p 209.

92 Derrida (1992a), p 195.
y3 Derrida (1992a), p 183.
' Y f Derrida (1992a),p 190.
95 Derrida (1992a), p 190.
96 Derrida(1992a),p191.
97 Derrida (1992a),p 205.
non-locus of terror.99 As such, it doesn't merely mirror attributes of the evil
Other to the countryman's expectations of knowledge, knowability,
transparency that is the good; rather, Law as the third term is a founding supra-
evil, an evil beyond good and evil, out of which all other binaries, narratives,
histories flow. Through these various themes Derrida, following Kafka, tells
the story of the nature of Law as a diabolical or dark romance.
Agamben has developed some of these themes in Homer Sacer.'OOThey
appear in a particular topographical context of sovereignty and its institutions.
In Homo Sacer, Agamben locates characteristics that Derrida associates with
law as the sublime in the practices and metaphor of the concentration camp.
For example, law institutionalised in the camp is law without (human) origin.
He explains this by reference to a quote from Deils, the head of the Gestapo:
'Neither an order nor an instruction exists from the origin of the camps: they
were not instituted; one day they were there . . ."O1 This law as sublime is
reinforced and reinscribed in Agamben's repeated assertion that the law of the
camp is law as exception. It is characterised in his description of this law as a
'zone of indistinction', which he describes as 'totalitarian'.lo2 Its particular
force is described in various ways. It is supremely destructive; this is law as a
force that destroys the sense of 'subjective right and juridical protection'.103It
collapses the distinction between law and fact, rule and exception; between
law-making and the administration of law; between law's production and its
application;'04 between legality and illegality, inside and outside; between
exception and rule; between licit and illicit. Under this law, right and wrong
become impossible distinctions: 'no act committed against them could appear
any longer as a crime'.lo5 This Law is also to be understood as a supremely
creative force. It makes, 'everything . . . truly . . . possible'.'06
The institutionalisation of this logic of law as the sublime in the
Nationalist Socialist concentration camp is, for Agamben, closely associated
with Schmitt's jurisprudence. Agamben suggests that Schmitt's jurisprudence
is 'unwittingly ~ a f a e s ~ u e ' . "He
' illustrates the point by reference to an extract
from Schmitt's essay, 'State Movement, People'. Here the Kafkaesque is in
Schmitt's association between law and unreason. Law's corruption is to be
found in the 'indeterminate' nature of juridical concepts that in turn give rise to
'juridical uncertainty'. The opacity of the law and the loss of direction are, in
the extract from Schmitt offered by Agamben, not characterised by way of the
structure of the labyrinth, but explained by way of an aqueous metaphor; we

Derrida (1992a), p 203.

Agarnben (1998).
Agarnben (1998), quoted at p 169.
Agarnben (1998), p 170.
Agarnben (1998), p 170.
Agarnben (1998), p 173.
Agarnben (1998), p 171.
Agarnben (1998), p 171.
Agarnben (1998), p 172.
'08 Agamben (1998), p 172.
Agamben (1998), p 170.
Agamben (1998), p 174.
"I Agamben (1998), p 175.
]I2 Agamben (1998), p 175.
 The examination of the recent Gothic turn in jurisprudential writing draws
attention to a contemporary manifestation of the Gothic imagination. It has
emerged in the context of an encounter with poststructural theory and the
politics of postmodernity.1'3 It appears as a response to the jurisprudential
incorporation of poststructural theories of textuality that explain the text and its
relation to truth by way of the loss of essence, a focus on surface rather than
depth and the suspension of truth by way of the endless deferral of meaning in
differance. When applied to the legal text, the text of law is rendered
intelligible and unintelligible by way of metaphors of the labyrinth and the
ruin. The socio-political context of this resort to Gothic themes, the
postmodern, might be characterised as a response to 'an escalating anxiety
regardin modernity'l14 to be found in the writings of Anthony id dens''^ and
BaumanR6 and work on risk analysis."' What juridical sensations, juridical
insights and new juridical orders are opened up through the diabolical romance
of this late twentieth century Gothic sensationalist jurisprudence?
Resort to the themes of the Gothic imagination as a critical and analytical
tool raises some interesting questions about the terms of this late twentieth
century jurisprudence. A return to the themes examined in the first section of
the essay suggests that in many respects this contemporary jurisprudence
offers a series of sensations and insights that are already 'unwittingly'
saturated with an archaic juridical sensibility. At best, their novelty and insight
perhaps draw our attention to some of the recurring themes through which
law's intelligibility of the social order is produced. At worst, the new juridical
orders they open up are all too familiar and deeply implicated in a long
tradition of reactionary socio-cultural projects of social order. In many
respects, the resort to the themes of law's Gothic imagination appears to be
'unwitting'.
One interesting silence in the recent resort to the Gothic imagination in
jurisprudential writing relates to the will to salvation through law. Within the
Gothic imagination of law, the subject is made legal subject as the hero who
might use law's violence against evil to create new worlds and in the final
instance appear untainted by the terror associated with such violence, saved
from the chilling presence of a proximate death, having returned the undead to
the garden of death. The experience of legal subjectivity is made an experience
of terror and salvation. The legal body, the King's body, provides protection
and a promise of salvation from the horrors that it invokes. Perhaps
Agamben's anxiety about encounters with the law as sublime violence is
connected to the silence in his analysis of his will to salvation through the law.
Had he not been so 'unwittingly Kafkaesque', he might not have produced
such a silence.

Douzinas and Warrington (199 1).

Botting (19961, p 169.
Giddens (1990).
'I6 Bauman (1991).
)I7 Beck (1992).
 A recognition of the growing importance of the Gothic imagination
within contemporary jurisprudence might ease the return of the repressed
promise of salvation through law and draw attention to its limits. The
encounter between law and the Gothic imagination offered in this paper might
help to facilitate a more critical reflection on the relationship between law,
jurisprudential scholarship and the diabolical romance tradition, and save the
encounter from an 'unwitting' engagement with a set of reactionary
consequences.

References

Secondary Sources
G Agamben (1998) Homo Sacer: Souerelgn Power and Bare Llfe trans Daniel Heller-Roazen,
Stanford University Press.
AW Alshuler (1994) 'Sir Wdham Blackstone and the Shaping of American Law' 144 New
Law Journal 896.
R Barthes (1977) Camera Luanda trans R Howard, Noonday Press.
Z Bauman (1991) Modernzty and Amblualence, Polity Press.
L Bayer Barenbaum (1982) The Gothic Imaglnatlon, Associated University Press.
U Beck (1992) Rlsk Society, Sage.
W Beckford (1983 [1786]) Vatheck, ed R Lonsdale, Oxford University Press.
L Berlant (19971 The Queen of Amerzca Goes to Washlntogn DC: Essays on Sex and Citlzenshlp,
Duke University Press.
H Berman (1983) Law and Revolution, Harvard University Press.
W Blackstone (1769, reprint 1979) Commentaries on the Laws of England, University of
Chicago Press.
F Botting (1996) Gothzc, Routledge.
A Bray (1982) Homosexuality In Renaissance England, Gay Men's Press.
P Brooks (1995) The Melodramatic Imaglnatlon, Yale University Press.
DB Brownlee (1984) The Law Courts: The Architecture of George Edmund Street, MIT Press.
J Butler (1990) Gender Trouble: Feminism and the Subversion of Identity, Routledge.
J Butler (1994) 'Imitation and Gender Insubordination' in D. Fuss (ed) Ins~delOut,
Routledge.
D Caudill (1991) 'Freud and Critical Legal Studies: Countour of a Radical Socio-Legal
Psychoanalysis' 66 Indiana Law Review 651.
D Caudill (1992) 'Lacan and Legal Language: Meanings in Gaps, Gaps in the Meaning' 3 Law
and Critique 165.
D Caudill(1993) 'Name of the Father and the Logic of Psychosis: Lacan's Law and Ours' 4 Legal
Studies Forurn 421.
T Castle (1993) The Apparitional Lesbian, Columbia University Press.
Sir E Coke (1614) A Booke of Entries: Containing Perfect and Approved Presidents, Garland.
Sir E Coke (1979 [1628]) Institutes of the Laws of England, Garland.
P Collins (1994) Dickens and Crime, 3rd edn, Macmillan.
W Collins (2000 [1860]) The Wornan in White, ed Matthew Street, Penguin.
T De Laurentis (1991) 'Queer Theory: Lesbian andGay Sexualitles' 3 Differences 3.
J Demda (1992a) 'Before the Law' in D Attridge (ed) Acts of Literature, Routledge.
J Derrida (1992b) 'Force of Law: The Mystical Foundations of Authority' in D Cornell et al (eds)
Deconstruction and the Possibility of Justice, Routledge.
C Dickens (1985 [1853]) Bleak House, ed Norman Page, Penguin.
C Douzinas (1999) 'Prosopon and Antiprosopon: Prolegomena for a Legal Iconology' in
C Douzinas and L Nead (eds) Law and tile Ittlage: Tile Authority of Art and the Aesthetics of
Law, University of Chicago Press.
C Douzinas and R Warrington (1991) Posttt~odemJurisprudence, Routledge.
M Foucault (1981) 'The Order of Discourse' in R Young (ed) Untying the Text, Routledge Kegan
Paul.
D Fuss (1991) 'InsideIOut' in D Fuss (ed) Inside/Out, Routledge.
A Giddens (1990) Tlze Consequences of Modernity, Polity Press.
P Goodrich (1981) Reading tlze Law, Blackwell.
P Goodrich (1990) Languages of Law, Weidenfeld.
P Goodrich (1992) 'Poor Illiterate Reason: History, Nationalism and Common Law' 1 Social and
Legal Studies 7.
P Goodrich (1995) Oedipus Lex: Psycl~oanalysis,History, Law, University of California Press.
P Goodrich (1996) Law in dze Courts of Love: Literature and Otller Minor Jurisprudences,
Routledge.
P Goodrich (1998) 'Justice and the Trauma of Law: A Response to George Pavlich' 18 Studies in
Law, Politics and Society 278.
P Goodrich (1999) 'The Iconography of Nothing; Blank Spaces and the Representation of Law in
Edward VI and the Pope' in C Douzinas and L Nead (eds) Law and tlze Image: The Autl~orityof
Art and tlze Aestl~eticsofLaw, University of Chicago Press.
Y Hachamovitch (1994) 'In Emulation of the Clouds: An Essay on the Obscure Object of
Judgment', in C Douzinas, D Goodrich and Y Hachamovitch (eds) Politics, Postmodernity and
tile Critical Legal Studies Movement, Routledge.
GF Haggerty (1989) Gothic FictiodGothic Forttl, The Pennsylvania State University Press.
L Hart (1994) Fatal Women, Princeton University Press.
K Halttunen (1998) Murder Most Foul: Tlze Killer and the American Gotlzic Imagination, Harvard
University Press.
D Hume (1986) Commentaries on the Law ofScotland, Vol. I : Respecting Crimes, Law Society of
Scotland.
PJ Hutchings (1999) 'Spectacularizing Crime: Ghost Writing the Law', 10 Law and Critique 27.
PJ Hutchings (2000) Tlze Criminal Spectre in Law, Literature and Aestl~etics: Incrinlinating
Subjects, Routledge.
VM Hyde (1974) 'From the "Last Judgment" to Kafka's World: A Study of Gothic Iconography'
in in GR Thompson (ed) Tile Gotlzic Imagination: Essays in Dark Romanticisnl, Washington
State University Press.
EH Kantorowicz (1957) T l ~ eKing's Two Bodies: A Study in Mediaeval Political Theology,
Princeton University Press.
J Katz (1993) 'Blackmail and Other Forms of Arm Twisting' 141 University of Pennsylvania Law
Review 1567.
J Kristeva (1982) Powers of Horror, trans Leon S Roudiez, Columbia University Press.
P Legendre (1997) Law and t l ~ e Unconscious: A k g m d r e Reader, trans Peter Goodrich,
Macmillan.
J Lacan, J Alain Miller and J Hulbert (1977) 'The Practice of Reading: Psychoanalysis with
Literature - Desire and the Interpretation of Desire in Hamlet' 55/56 Yale French Studies 11.
J Lindgren (1984) 'Unraveling the Paradox of Blackmail' 84 Colun~biaLaw Review 670.
W MacNeil (1999a) 'The Monstrous Body of the Law: Wollstonecraft v Shelly', 12 Australian
Fen~inistLaw Journal 21.
W MacNeil (1999b) 'Beyond Governmentality: Retribution, Distributive and Deconstructive
Justice in Great E,rpectations', 13 Australian Fe~ninistLaw Journal 98.
W Maitland (191 1) Collected Works, Cambridge University Press.
CR Maturin (2000 [1820]) Mebnotl~the Wanderer, Penguin.
M Merill Umphries (2000) 'Passions of the Masculine', paper presented at the American Law and
Society Association Conference, Miami.
R Mighall (1999) A Geograplty of Victorian Gotllic Fiction. Mapping H i s t o v ' ~ Nightmares,
Oxford University Press.
LJ Moran (1995) 'Violence and the Law: The Case of Sado-Masochism' 4 Social and Legal
Studies 225
LJ Moran(1996) The Hon~osexual(ity)of Law, Routledge.
LJ Moran (1996a) 'The Homosexualisation of Human Rights' in C Gearty and A Tompkins (eds)
Understanding H u ~ n a nRigltts, Cassell.
LJ Moran (1998) 'Laskey v the United Kingdor,~:Learning the Limits of Privacy' 61 Modern Law
Review 77.
LJ Moran (forthcoming) "'Enter the Ghost": Law and the Spectral' in Murray Pratt (ed) In a
Queer Place, Ashgate.
P Palmer (1999) Lesbian Gotl~ic:Trasgressive Fictions, Cassell.
Public Records Office, H0/345/10 CHP/MISC/2, note by the chairman.
D Punter (1998) Gotllic Patl~ologies:Tlte Text, tlte Body artd tlte Law, Macmillan.
R Robson (1992) Lesbian (Outjlaw, Firebrand.
R Robson (1998) Sappho Goes to Law School, Columbia University Press.
M Shelley (1969 [1831]) Frankenstein or, tlte Modern Prontetlleus, ed MK Joseph, Oxford
University Press.
AM Smith (1994) New Right Discourse on Race and Sexuality, Cambridge Un~versityPress.
B Stoker (1993 [1897]) Dracula, ed Maurice Hindle, Penguin.
RL Stevenson (1979 [1886]) Tlte Strange Ca.se of Dr Jekyll artd Mr Hyde, ed Jenni Calder,
Penguin.
H Walpole (1982 [1764]) The Castle of Otranto: A Gotl~icS t o v , ed WS Lewis, Oxford University
Press.
S Watney (1987) Policing Desire: Pornography, Aids and the Media, Methuen.
R Wintermute (1995) Sexual Orientation artd Hunuzn Rights, Clarendon Press.
JR Walkowitz (1992) City of Dreadful Delight: Narrative., of Danger in Late Victorian England,
Virago.
J Wolfenden (1957) Report of the Departmental Con~n~ittee on Homosexual Offences and
Prostitution, HMSO Cmnd 247.
A Young (1996) Imagining Crinle, Sage.
S Zizeck (1994) The Metastases of Enjoy~nent,Verso.
Cases
Dudgeon v Un~tedKlngdom (1982) 4 EHRR 149.
Lasky, laggard and Brown v The Unlted Klngdom (1992) 2 European Court of Human R~ghts
Reports 39.
Lord Audley, Earl of Castlehaven (1631) 3 State Trials 401
R v Brown (1992) Cr App R 302.
R u Brown 119921 1 QB 491.
R u Brown [I9941 AC 212.
R v Hlckman (1783) 1 Leach 277.
R v ]ones (1775) 1 Leach 139.
R v Knewland (1796) 2 Leach 721.
R v Rowed (1842) 3 Q.B. 180.
R u Wllson [I9961 3 Weekly Law Reports 125.
R v W~seman(1718) Fortes Rep 91.