Bentham's Fictions: Canon and Idolatry in the Genealogy of Law

Abstract

Positivists contend that law is separate from other domains of culture, including especially morals and religion. The canon of the law is supposed to be self-contained. Whatever exists outside its margins is not law. The authority of this canon consists, in significant part, of the impossibility of confusion or commingling with other, lesser norms. Already in its exclusiveness, however, law betrays a kinship with other domains of culture, especially religion, which shares a predilection for canon. The historian of religion Jonathan Z. Smith argues that "the radical and arbitrary reduction represented by the notion of canon and the ingenuity represented by the rule-governed exegetical enterprise of applying the canon to every dimension of human life is that most characteristic, persistent, and obsessive religious activity." Recognizing that the impulse toward canon is also distinctive of many legal traditions, Smith suggests that in the future, "students of religion might find as their most congenial colleagues those concerned with ...legal studies." In modernity, the most common form of legal canon is the "code" - the reduction of the law to a set of written statutes that is, ideally, complete, concise, and unambiguous. This poses a paradox: If law and religion coincide precisely at the point at which each claims to be most distinctive - namely, in its embodiment in a clearly delimited canon - then perhaps they are more alike than legal positivists care to admit?