Aesthetics of Law and Culture: Texts, Images, Screens: Volume 34

The contours of the question of transmission or jurisdiction receive a particularly sharp delineation in a recent judgment from the annals of contempt of court. How can the solicitor scandalise the court, without destroying the law? Consider Anissa v Parsons. It involves the doctrine of contempt by scandalising – the most feudal of the three legally recognised types of contempt used to keep “the streams of justice clear and pure.”⁵ And the question that the judgment confronts is the technical and representational ordering of law, and specifically the articulation and disarticulation of two orders – that of the court and that of law.

The feminist critique of rape has been a vast and impressive exercise of interpretative activity: it has gripped existing concepts, practices and discourses and subjected them to reinterpretation and transformation. It has been trenchant, assiduous and generative. It has created new legal definitions of rape and modified the evidentiary requirements that define its borders; it has developed new procedural mechanisms and codes of speech during trials; it has multiplied ethico-political interpretations of sexual violence and excavated previously unauthorised forms of social knowledge. Most specifically, it has created new evaluations of rape in the service of a particular form of life; that is, one which cultivates the capacity of women to maximise their own powers of speech and desire.

In this paper I want to look at just one of the many contemporary legal narratives of homophobia – the phenomenon of the “Homosexual Advance Defence” (H.A.D.). While I agree with the analysis of one American commentator, who indicts the H.A.D. as a “judicial institutionalization of homophobia” (Mison, 1992, p. 136), I maintain that it is important to extend analyses which take as their main target the entrenchment of bigoted judicial views or which employ as their main critical tool a liberal framework of equality and discrimination (for example, see Potter, 2001). Just as Eve Kosofsky Sedgwick urges us not to view homophobia as simple ignorance or bigotry (see Howe, 2000, pp. 85–87), I argue that there is much more at stake with the H.A.D., and consequently much more required of us, than mere questions of ignorance, discrimination and (re-)education. While it is important to identify and condemn at every turn the various legal and social manifestations of homophobia, of which the H.A.D. is clearly one, it is just as important (if not more so) to interrogate the discursive and epistemological foundations, or legitimations, of these very beliefs.

Evergon’s Manscapes, accompanied by titles that do not provide exact locations of the places he photographs, accord respect to these spaces and in doing so preserve their status as commonplace images. In documenting those locales where gay desire is enacted on a daily basis, the Manscapes speak to the theme of “the everyday.” These everyday photographs provide testimony, not, obviously, in the formal and legal sense of the term, but rather in fidelity to the archaic meaning of the word as indicating: “a solemn protest or declaration.”⁶ To gaze at these images is to be drawn into spaces of gay resistance, to vicariously inhabit beat and cruising ground space, to behold signs of resistance. For the Manscapes are profoundly allegorical. Upon viewing these images for the first time they appear unremarkable, almost mundane in their depiction of common scenes (parks, foreshores, secluded hinterlands and other public spaces). As the clues in the photographs are identified, the viewer imbues the photographs with an aura of desire.⁷ In their totality, the Manscapes testify to the existence of those everyday places that are subject to processions of desiring male bodies.

If it has become possible in recent times to talk of a jurisprudence of Franz Kafka,¹ it should be realised firstly that two things dear or indispensable to the writer will have long been disfigured in the study of law: desire and its assemblage. “For spiritual nourishment,” he writes of his legal education I have nothing but sawdust, which, to crown it all, has been chewed over already by thousands of mouths before me (Kafka, 1966, p. 94, as cited in Legendre, 1997, p. 101).Jurisprudence, after all, would be a very specialised field in which one must speak a very specialised and sober language; a particular form of expression inseparable from a particular investment of desire. But Kafka’s problem with legal studies, if it can be viewed as a problem of sawdust, would not be for example what else one can chew, but simply this: how else to put one’s mouth to use? In other words, how to invent a mode of expression as the only real way to desire, or alternatively how to desire as the only real way to express oneself. For this, one always finds a machine – literature, letters, childhood or animal machines perhaps, as Kafka discovers for himself. And of course the various juridical machines through which desire is assembled and organised according to strict formalisations of content and enunciation. Jurisprudence would still not have come close to laying its hands (or its mouth) upon this assemblage in which it, as a small or even marginal component, discovers its functionality: a legal assemblage of desire.

In the drama of the evidentiary process, it would hardly be thought exceptional that the judge’s intuition of the formal order of things – which is to say, their sufficient standing-to-reason – should falter when confronted with the sprawling and confused immediacy of stubborn matter-of-fact. The circumstantial given is a bewildering Gordian Knot of data; the analytic legerdemain of localising our attention and following one of its threads cannot reduce the tangle into which it soon recedes. And in comparison to the knot’s multiplicity, our scope for unifying abstraction, or “large-scale” comprehension, is limited and flickering. We possess fragments of intuition, and fragments of formal connection between these fragments. But the panorama is merely agglutinative – the fragments do not congeal into one perfect, self-evident totality. And an offhand remark amongst the lectures of Alfred North Whitehead suggests that this defect is of more than methodological significance – even when one takes one’s example from arithmetic: “the snippet of knowledge that the addition of 1 and 4 produces the same multiplicity as the addition of 2 and 3, seems to me self-evident” (Whitehead, 1968, p. 47). And yet we would disclaim any such self-evidence were larger numbers involved – only skeptically could we hazard a guess. So, he continues, we have recourse to “the indignity of proof,” securing our opinion through the rationality of calculation. Nor is it so much that proof and method are chastening of themselves – the nemesis, the sting of the creatural condition is rather having to prove, the imperfection of finite judgment and the infinite possibility of perfecting it. This predicament was already known to Sophocles; if humanity “holds out” against the overwhelming by its inventiveness, by finding a means in to mêchanoen technas, the machinations of technique, it is because our ultimate condition with regard to the overwhelming is amêchanôs, aporos, resourceless and without means.

Our legal system has a well-established set of laws and procedures for injured people to seek redress for their injuries. Over the years universalised legal injury narratives have developed. In other words, repeated applications of the law have generated standard, abstract, generalised versions of individual injury narratives. Accordingly, from any particular injury narrative, there can be distilled an “essential or abstract” legal injury narrative which is the same universal narrative that can be distilled from other like cases (Klinck, 1992). It seems likely that there are different versions of the legal injury narrative that have developed due to an accumulation of a large number of similar cases. For example, there is likely to be a version of the legal injury narrative for injuries arising out of each of motor vehicle accidents, workplace incidents, occupier’s liability, medical malpractice or defective products. However, this paper will demonstrate that underlying all of these versions is the generic legal injury narrative with particular and common characteristics. This paper develops the idea of the universal “legal injury narrative” – that is, a legally idealised narrative about injury, based on a number of implicit rules about the way injuries occur and their consequences. The legal injury narrative is the framework by which other injury narratives are judged.

When historical visibility has faded, when the present tense of testimony loses its power to arrest, then the displacements of memory and the indirections of art offer us the image of our psychic survival. To live in the unhomely world, to find its ambivalencies and ambiguities enacted in the house of fiction, or its sundering and splitting performed in the work of art, is also to affirm a profound desire for social solidarity: ‘I am looking for the join…I want to join…I want to join’ (Bhabha, 1994, p. 18).This chapter follows points and practices of cultural and legal suture. My aim is to trace a thematic excursion into the unremarked or culturally unseen spaces that repeatedly inter dead bodies. This task is rewarded by aesthetic practice excavating a site of repression, a site that confesses our flight from, but necessary management of, dead bodies within cultural spaces. To achieve this, my attention turns to a State-owned graveyard on Hart Island, located in Long Island Sound, New York. Hart Island is a graveyard for New York’s poor, unclaimed or unknown dead – what is commonly known as a “potter’s field.”¹ It is a place where law and art intersect in remarkable absence of any significant cultural claim on the island, and it is a landscape where the failings of forensic conclusion are now mingling with an aesthetic revelation.

What is this tide of history that washes over the continent of Australia after 1788 destroying in its wake much of the indigenous people’s relationship with land and waters? Now only remnants, fragments of a former aboriginal inscription of law/lore remain evident in the Australian physical and metaphoric landscape.¹ In Law, the “tide of history” has been extended from its original voicing in Mabo v. Queensland [No. 2] (1992) to become a justificatory strategy for the limitation of responsibility and a concurrent apologia that simultaneously acknowledges a previous aboriginal connection with land but denies its current legitimacy.²

New and converging technologies in administration and mapping have enabled property rights to become disconnected from the facts of occupation and possession of land. By the time native title was recognised in the Mabo decision (1992) the primary representation of land tenure was in digital cadastres¹ created and controlled by Federal and State bureaucracies. Native title was immediately cast as a spatial question. The location of native title rights was determined within the confines of a map of existing legal interests in the land. In this paper, I consider how the spatial orientation of property has affected the nature and expression of native title rights in Australia.

In order to mark the beginning of the fifteenth century, a group of prominent Muslim theologians and jurists assembled to draft a document that systematically laid out the rights and duties of all human beings according to the dictates of Islam. The year of Christ was 1981, and the occasion was formally the International Islamic Conference, held that year in Paris. The document that these jurist produced seems at first an odd one, titled The Universal Islamic Declaration of Human Rights (Universal Islamic Declaration, 1988). Odd as the document so pointedly invokes the famed 1948 United Nations Universal Declaration of Human Rights (Universal Declaration, 1999). But perhaps such an invocation is not odd at all, for the document is first of all a symptom of and a response to two massive contemporary facts. The first is the ubiquity of human rights talk. It is certainly proof of the success of this discourse as a normative and normalizing force that no-one can speak of universality or ethics or even the most drab topic in international relations without paying homage, only sometimes qualified, to the idea that all humans have rights. The second fact to which the Islamic declaration responds is the suspicion if not outright insistence that the religion of Islam in unsuited to this new order of civilization. Amongst the jurists themselves there is a sense that clarification is needed of the relation of Islam to the global (to say nothing of globalizing) discourse of human rights. This much is readily conceded by the drafters, who felt impelled by the forces of the contemporary world scene to formulate the Islamic position in relation to human rights (Weeramantry, 1988, p. 122).Not surprisingly, such a position involves dethroning the sovereign subject (entirely different from its deconstruction) and proclaiming victory once again for God and his absolute sovereignty, even as it involves extending a governmental interest in the life of the individual, from the conditions of his cultural life (article 14) to the legislation of his leisure time (article17). However, in contrast to the Universal Declaration that never once mentions God or Creator, the Islamic Declaration insists that only God to be “the creator the sustainer, the sovereign the sole guide of mankind and the Source of all Law” (Universal Islamic Declaration, 1988, p. 176). A hasty reading would take this as a response not just to the Universal Declaration, which here is named and renamed, but the entire western tradition of rights and secular power after the death of God. This, however, would be a mistake, for it would overlook both the distinctly modern project of power that the Islamic Declaration articulates, and the peculiar construction of the U.N Declaration itself, the way it refers to and refracts the idiom of the famous eighteenth century revolutionary documents – the American Declaration of Independence and the French Declaration of the Rights of Man and Citizen. Thus in the Universal Declaration the repetition of the American phrase, “endowed by their creator,” becomes simply “endowed with reason and conscience,” with no one doing the endowing. In short, the omission of God from the Universal Declaration is an over determined decision and not one of a casual or inevitable secularism.

What may be another kinship of law and death? To suggest that death is a work may allow us (I hope misleadingly) to suggest, by way of something more than coincidence – but less than perfect parallel – that law is the very definition of absolute limit. In this sense law would be death’s shadow, a shadow cast by the sun of life as it shines on death, a sun toward which Giorgio Agamben seems to have been moving in his recent writing. (1998) And yet, as if in presumptive rebuttal, Michel Foucault convincingly suggested years before Agamben’s intervention, in a meditation on Maurice Blanchot, that “The law is the shadow toward which every gesture necessarily advances; it is itself the shadow of the advancing gesture” (Foucault, 1987, p. 35). Every gesture directs our attention away from the sun’s light and toward the cave of the everyday, where the fire may come, when it comes and if it comes, from places otherwise.

The Siege opens with news footage of the bombing of military dormitory barracks in Dhahran, Saudi Arabia (on June 25, 1996). Whatever the genesis of the screenplay may have been, the release of a film some two years after the actual event which inspired some of its story is remarkably quick by Hollywood standards (where the average development time of any project is three years). An interesting film on its initial release, it now screens like a premonition, or a blueprint. The fictional alleged perpetrator of the bombing – which was actually the work of Al Qaeda – Ahmed bin Talal is secretly kidnapped by U.S. forces, and taken to the U.S. The drama which then unfolds involves the operations of a network of terrorist cells – all trained by the CIA to destabilize Saddam Hussein – demanding bin Talal’s release through an escalating series of bombings in New York City culminating in the destruction of One Federal Plaza, the imposition of martial law in Brooklyn, and the detention of all Arab-American adult males in makeshift camps set up in sports stadiums.

This article¹ is offered up in the spirit of what the High Kings of Gondor might call a weregild.² That is, I hope, in this article, to clear a debt: a debt, long overdue, much like that owed by the Armies of the Dead to Isildur’s heir, Aragorn son of Arathorn. I reference The Lord of the Rings: The Return of the King (Tolkien, 1994) because this article is, in the main, about Tolkien and his oeuvre as an astonishing instance of what might be called lex populi. But this article attempts more than just another cultural legal reading of a popular literary and cinematic phenomenon.³ What, in fact, it proposes is nothing less than a practical demonstration of what it means to read jurisprudentially. In so doing, I hope to repay some of the theoretical debt that jurisprudence (and law-and-literature) has incurred, and owes so clearly to literary criticism, cultural studies and Continental philosophy. For far too long jurisprudence has been content to absorb the lessons of these other disciplines’ versions of textual theory – of the play of the sign, the dissemination of meaning, the deconstruction of logos – without propounding its own topoi let alone interpretive paradigms. Such topoi, of course, jurisprudence has in abundance: in notions of a “higher justice”; in concepts of law’s connection with morality; and, especially, the law’s role in inaugurating “the social.”