Danse Macabre: Temporalities of Law in the Visual Arts 9781107158665, 1107158664

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Danse Macabre Temporalities of Law in the Visual Arts Desmond Manderson

danse macabre The visual arts offer refreshing and novel resources through which to understand the representation, power, ideology, and critique of law. This vibrantly interdisciplinary book brings the burgeoning field to a new maturity through extended close readings of major works by artists from Pieter Bruegel and Gustav Klimt to Gordon Bennett and Rafael Cauduro. At each point, the author puts these works of art into a complex dance with legal and social history, and with recent developments in legal and art theory. Manderson uses the idea of time and temporality as a focal point through which to explore how the work of art engages with and constitutes law and human lives. In the symmetries and asymmetries caused by the vibrating harmonic resonances of these triple forces – time, law, art – lies a way of not only understanding the world, but also transforming it. Desmond Manderson is a Fellow of the Royal Society of Canada and Fellow of the Australian Academy of Law, Professor in the ANU College of Law and the ANU College of Arts and Social Sciences at the Australian National University. He is the author of several books including Songs without Music (2000), Kangaroo Courts and the Rule of Law (2012), and Law and the Visual: Representations, Technologies and Critique (2018).

Danse Macabre temporalities of law in the visual arts DESMOND MANDERSON Australian National University

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107158665 doi: 10.1017/9781316665985 © Desmond Manderson 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2019 Printed in the United Kingdom by TJ International Ltd. Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Manderson, Desmond, author. title: Danse macabre : temporalities of law in the visual arts / Desmond Manderson, Australian National University. description: New York : Cambridge University Press, 2018. | Includes bibliographical references and index. identifiers: lccn 2018041013 | isbn 9781107158665 subjects: lcsh: Law in art. | Law and art. | Time in art. | Time and art. | Time (Law) – Social aspects. classification: lcc n8219.l3 m36 2018 | ddc 344/.097–dc23 LC record available at https://lccn.loc.gov/2018041013 isbn 978-1-107-15866-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Laurence Grace Adcock Manderson and to Jackie

‘Images, not stories, are the ruins of history’ Walter Benjamin

Contents

page viii

List of Plates List of Illustrations

x

Acknowledgements

xv

Foreword

1

1

Bruegel’s Justice: Anachronic Time

20

2

Reynolds’s Justice, Blackstone’s Laws: Diachronic Time

50

3

Governor Arthur’s Proclamation: Utopian Time

82

4

Turner’s Slave Ship: Now Time

105

5

Klimt’s Jurisprudence: Suspended Time

126

6

Bennett’s Laws: Colonial Time

157

7

Cauduro’s Crimes: Ghostly Time

195

Afterword

239

Bibliography

246

Index

277

The colour plate section can be found between pp. 142 and 143.

vii

Plates

Cover: Gordon Bennett, Valley of the Ghost Gums (detail of right panel) 1989. Mixed media on hardboard, 40 cm × 122 cm, State Art Collection, Art Gallery of Western Australia. (Image courtesy of Art Gallery of Western Australia and © Estate of Gordon Bennett) 1.1 Pieter Bruegel the Elder, Justicia, engraved by Philips Galle, in Hieronymous Cock, The Virtues, 1560. Engraving, 26 cm × 33.5 cm, Metropolitan Museum of Art, New York. (Image courtesy of Harris Brisbane Dick Fund, 1928 and Metropolitan Museum of Art) 4.1 J. M. W. Turner, The Slave Ship (Slavers Throwing Overboard the Dead and Dying – Typhoon Coming On), 1840. Oil on canvas, 90.8 cm × 122.6 cm, Museum of Fine Arts, Boston. (Photograph © 2018; Museum of Fine Arts, Boston) 2.1 Joshua Reynolds, Justice, 1777. Oil on canvas, 223.5 cm × 83.8 cm, Somerley Estate, Hampshire. (Image courtesy Lord Normanton; photocredit © Somerley Estate) 3.1 Governor Arthur’s Proclamation to the Aboriginal People, c. 1830. Oil on Huon pine board, 35.5 cm × 22.6 cm, State Library of NSW, Sydney. (Courtesy of Mitchell Library, State Library of NSW) 5.1 Gustav Klimt, Jurisprudenz, 1903–7. Oil on canvas, 430 cm × 300 cm, Leopold Museum, Vienna. (© Fotografie Archiv Leopold Museum, Wien) 6.1 Gordon Bennett, Possession Island, 1991. Oil and synthetic polymer paint on canvas, 162 cm × 260 cm. (Collection: Museum of Sydney on the site of first Government House, Historic Houses Trust of New South Wales, Sydney; © Estate of Gordon Bennett) 6.9 Jackson Pollock, Blue Poles, 1952. Oil, enamel, aluminium paint, glass on canvas, 212.1 cm × 488.9 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia; © Pollock–Krasner Foundation/ ARS, licensed by Viscopy, 2017)

viii

List of Plates

ix

Frederick McCubbin, Violet and Gold, 1911. Oil on canvas, 72 cm × 130 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia) 6.11 Frederick McCubbin, Violet and Gold, 1911 (detail) 7.1 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 7.13 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9 (detail) 7.11 Rafael Cauduro, Violacion from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

6.10

The colour plate section can be found between pp. 142 and 143.

Illustrations

0.1 0.2

0.3

0.4

0.5 1.1

1.2

1.3 1.4

1.5

1.6

Artus Quellinus I, sculpture in the Vierschaar (‘Weeping Angel’), c. 1660. White marble, Paleis op de Dam, Amsterdam. page 3 Michelangelo Buonarroti, Pieta`, 1498–9. Carrara marble, 174 cm × 195 cm, St Peter’s Basilica, Vatican City. (Photo credit: Manuel Cohen/Art Resource, NY) 6 Gordon Bennett, Valley of the Ghost Gums, 1989. Mixed media on hardboard, 40 cm × 122 cm, State Art Collection, Art Gallery of Western Australia. (Image courtesy of Art Gallery of Western Australia; © Estate of Gordon Bennett) 10 Mark Tansey, Action Painting II, 1984. Oil on canvas, 193 cm × 279.4 cm, Muse´e des Beaux-Arts, Montreal. (Courtesy of Gagosian; © Mark Tansey) 13 Giuseppe Arcimboldo, The Jurist, 1566. Oil on canvas, 64 cm × 51 cm, Nationalmuseum, Stockholm. (Photo credit: Nationalmuseum) 18 Pieter Bruegel the Elder, Justicia, engraved by Philips Galle, in Hieronymous Cock, The Virtues, 1560. Engraving, 26 cm × 33.5 cm, Metropolitan Museum of Art, New York. (Image courtesy of Harris Brisbane Dick Fund, 1928 and Metropolitan Museum of Art) 23 Pieter Bruegel the Elder, Justicia (original version, 1559). Charcoal on paper, 26 cm × 33.5 cm, Bibliothe`que Royale de Belgique, Brussels. (Credit: Bibliothe`que Royale de Belgique, Brussels/Bridgeman Images) 24 Pieter Bruegel, Justicia, 1559 (detail) 26 Joost Damhoude`re, Enchiridion Rerum Criminalium (Louvain: Ex officina typographica Stephani Gualtheri and Ioannis Bathenii) 1554, 1st edn. Antwerp, 1534, p. 103. (Courtesy of Rare Book Collection, Lillian Goldman Law Library, Yale Law School) 27 Ambrogio Lorenzetti, Effects of Good Government in the City, c. 1337–8. Fresco, Palazzo Pubblico, Siena (detail). (Photo credit: De Agostini Picture Library/G. Nimatallah/Bridgeman Images) 31 Albrecht Du¨rer, Sol Justitiae, c. 1499. Engraving, 10.7 cm × 7.7 cm, National Gallery of Victoria, Melbourne. (Image courtesy of National Gallery of Victoria, Melbourne, Felton Bequest, 1956 (3493–4) 38 x

List of Illustrations

1.7 2.1

2.2

2.3

2.4

2.5

3.1

3.2

4.1

4.2 4.3 4.4

5.1

5.2

xi

From the Frankfurt Calendar, 1547. (Photo credit: © Claire Atteia 2017 and Australian National University) 40 Joshua Reynolds, Justice, 1777. Oil on canvas, 223.5 cm × 83.8 cm, Somerley Estate, Hampshire. (Image courtesy Lord Normanton; photocredit © Somerley Estate) 57 Joshua Reynolds, The Seven Cardinal Virtues, stained glass by Thomas Jervais, West Window, New College Oxford, 1779. (Courtesy of the Warden and Scholars of New College, Oxford/Bridgeman Images) 58 Joshua Reynolds, Self-Portrait Shading the Eyes, c. 1747–9. Oil on canvas, 63.5 cm × 74.3 cm, National Portrait Gallery, London (© National Portrait Gallery, London) 59 Joshua Reynolds, Theory, 1779–80. Oil on canvas (ceiling painting), 178 cm × 179 cm, Somerset House, London. (© Royal Academy of Arts, London) 67 Joshua Reynolds, Augustus Keppel, 1752–3. Oil on Canvas, 239 cm × 147.5 cm, Greenwich, London. (© National Maritime Museum, Greenwich, London) 74 Governor Arthur’s Proclamation to the Aboriginal People, c. 1830. Oil on Huon pine board, 35.5 cm × 22.6 cm, State Library of NSW, Sydney. (Courtesy of Mitchell Library, State Library of NSW) 85 Benjamin Duterrau, The Conciliation, 1840. Oil on canvas, 121 cm × 170.5 cm, Tasmanian Museum and Art Gallery, Hobart. (Courtesy of Friends of the Museum Fund and the Murray Fund, 1945, and Tasmanian Museum and Art Gallery) 102 J. M. W. Turner, The Slave Ship (Slavers Throwing Overboard the Dead and Dying – Typhoon Coming On), 1840. Oil on canvas, 90.8 cm × 122.6 cm, Museum of Fine Arts, Boston. (Photograph © 2018; Museum of Fine Arts, Boston) 109 Massimo Sestini, Mare nostrum, Immigrants Shipwreck Rescued by the Italian Navy, 2015. (© Massimo Sestini, all rights reserved) 118 ‘No Way’, information page for refugees, Australian Government Department of Immigration and Border Protection, 2014 119 ‘If You Come Here by Boat without a Visa’, information page for refugees, Australian Government Department of Immigration and Citizenship, 2013 120 Gustav Klimt, Jurisprudenz, 1903–7. Oil on canvas, 430 cm × 300 cm, Leopold Museum, Vienna. (© Fotografie Archiv Leopold Museum, Wien) 127 Gustav Klimt, Jurisprudenz, Kompositionsentwurf, 1897–8. Charcoal on paper, Galerie Welz, Salzburg. (Courtesy of Galerie Welz; photo credit © Claire Atteia and Australian National University 2017) 133

xii

5.3

6.1

6.2

6.3

6.4

6.5

6.6

6.7

6.8

6.9

6.10

6.11

List of Illustrations

Isaac Oliver (attrib.), Queen Elizabeth I, ‘The Rainbow Portrait’, 1600–2. Oil on panel, 128 cm × 102 cm, Hatfield House, Hertfordshire. (Courtesy of Hatfield House, Hertfordshire, UK/Bridgeman Images) 143 Gordon Bennett, Possession Island, 1991. Oil and synthetic polymer paint on canvas, 162 cm × 260 cm. (Collection: Museum of Sydney on the site of first Government House, Historic Houses Trust of New South Wales, Sydney. © Estate of Gordon Bennett 158 Samuel Calvert [after J. A. Gilfillan], Captain Cook Taking Possession of the Australian Continent on Behalf of the British Crown, ad 1770, under the Name of New South Wales, Illustrated Sydney News, December 1865. Wood engraving, hand-coloured, 43 cm × 57 cm, National Library of Australia (Reproduced courtesy of the National Library of Australia) 163 Gordon Bennett, The Coming of the Light, 1987. Synthetic polymer paint on canvas, 152 cm × 274 cm. (Collection: Queensland Art Gallery, gift of Leanne and Caitlin Bennett in memory of and admiration for Gordon Bennett through the Queensland Art Gallery/Gallery of Modern Art Foundation 2016. Donated through the Australian Government’s Cultural Gifts Program; © Estate of Gordon Bennett) 168 Gordon Bennett, Notes to Basquiat (The Coming of the Light), 2001. Synthetic polymer paint on linen, 152 cm × 152 cm. (Collection: Estate of Gordon Bennett, Brisbane; © Estate of Gordon Bennett) 169 Jan van Brussel, Dual Justice, 1477 or 1499. Oil on panel, 211.5 cm × 158 cm, Town of Maastricht. (Image courtesy of Gemeente Maastricht) 170 Marlene Gilson, Standing by Tunnerminnerwait and Maulboyheenner, 2015. Acrylic on linen, 142.5 cm × 198.5 cm. City Gallery at Melbourne Town Hall. (Image courtesy City of Melbourne Art and Heritage Collection; © Marlene Gilson) 173 Geoff Parr, Place II, 1983. Silver gelatine photo, Plimsoll Gallery, University of Tasmania, Hobart. (Photo credit: Geoff Parr; © Estate of Geoff Parr) 174 Gordon Bennett, Triptych: Requiem, 1989. Oil on canvas, 120 cm × 120 cm. (Collection: Queensland Art Gallery, Purchased 1989 under the Contemporary Art Acquisition Program with funds from Hill & Taylor, solicitors through the Queensland Art Gallery Foundation, Brisbane; © Estate of Gordon Bennett) 184 Jackson Pollock, Blue Poles, 1952. Oil, enamel, aluminium paint, glass on canvas, 212.1 cm × 488.9 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia; © Pollock– Krasner Foundation/ARS, licensed by Viscopy, 2017) 188 Frederick McCubbin, Violet and Gold, 1911. Oil on canvas, 72 cm × 130 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia) 191 Frederick McCubbin, Violet and Gold, 1911 (detail) 192

List of Illustrations

7.1

7.2

7.3

7.4

7.5

7.6

7.7

7.8

7.9

Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) Diego Rivera, Mexico Today and Tomorrow, 1935. Mural, 749 cm × 885 cm, Staircase, South Wall, Palacio Nacional, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) Rafael Cauduro, staircase including Proceso Viciados and Violacion from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) Rafael Cauduro, Tzompantli from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) Rafael Cauduro, Tortura from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) Rafael Cauduro, Ca´rcel from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) Diego Rivera, Mexico Today and Tomorrow (From the Conquest to 1930), 1929–35. Mural, 859 cm × 1287 cm, West Wall, Palacio Nacional, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) Diego Rivera, From Porfirianism to the Revolution, 1957–67. Mural, acrylic on glass fabric on celotex and plywood, Museo Nacional de Historia en la Ciudad de Me´xico, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) David Siqueiros, La Nueva Democracia, 1944–5. Pyroxaline on canvas and celotex, c. 1200 cm × 600 cm, Palacio de Bellas Artes, Mexico City (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

xiii

196

199

202

203

204

205

206

207

209

xiv

7.10

7.11

7.12

7.13 7.14

7.15

7.16

7.17

7.18

7.19

List of Illustrations

Rafael Cauduro, Procesos Viados from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 210 Rafael Cauduro, Violacion from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 211 Rafael Cauduro, Homocidio from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 214 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9 (detail) 215 Diego Rivera, The Aztec World, 1929. Mural, 749 cm × 885 cm, Staircase, North Wall, Palacio Nacional, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) 219 Jose´ Orozco, The Trench, 1926. Mural, Escuela Nacional Preparatoria, Colegio San Ildefonso, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) 221 Jose´ Orozco, Father Miguel Hidalgo and National Independence, 1937–8. Mural, Palacio de Gobierno, Guadalajara. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) 222 Diego Rivera, The Conquest or Arrival of Hernan Corte´s, 1951. Mural, Palacio Nacional, Mexico City. (Photo credit: Palacio Nacional, Mexico City, Mexico/Bridgeman Images. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City) 223 Rafael Cauduro, Ca´rcel (detail) from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 225 Rafael Cauduro, Secuestro from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City) 234

Acknowledgements

Time flies. It seems only recently that I became an ex-ex-pat, returning to Australia in order to take up an Australian Research Council Future Fellowship at Australian National University. For four years, that fellowship allowed me to pursue this work with single-minded dedication and patience. I am immensely grateful to the ARC for providing me with this invaluable opportunity. The gift of time is exceedingly rare in the modern university. It does not translate simply into increased productivity as measured in the conventional ways. But it does translate into the ability to follow new leads and multiple lines of inquiry, and to reflect on and deepen one’s understanding. For the current book I had to digest a great deal about western art and artists from 1500 up to the present day, areas of knowledge and of scholarship of which, up to that point, I had no more than a glancing familiarity. I think it fair to say that for the first couple of years of my research, I felt little but ignorance and uncertainty. But patience is a virtue; eventually something inside me shifted, and new perspectives came into focus. The wonder these changes excited in me propelled the current project forward. I say all this not in any boasting spirit, but simply because patience and time are often the victims of current academic life. Their importance transcends any purely quantifiable indicators. Over the course of the fellowship that funded this research, and after it came to an end, I have been grateful for the support of the Humanities Research Centre, the ANU College of Humanities and Social Sciences, and above all the ANU College of Law, all of which have been and continue, to different degrees, to be my institutional homes. I continue to depend on the Australian National University’s professional staff, its many high-quality students, and above all my many dear friends and colleagues, without whose practical and moral support I would soon founder. I am also grateful for the innumerable opportunities that were given to me to present early stages of this work around the world. The occasions are too many and various to list here, but the conversations, responses, and suggestions that these presentations stimulated have been utterly invaluable in the development of this research. It would be remiss of me, however, not to single out the Law and xv

xvi

Acknowledgements

Humanities programme at Dipartimento di Giurisprudenza, Roma Tre under Professor Emanuele Conte; Paolo Napoli and his colleagues at the Centre d’Etudes des Normes Juridiques Yan Thomas at l’Ecole des Hautes Etudes en Sciences Sociales (EHESS) in Paris; Paolo Heritier at Universita degli Studi di Torino; Shaun McVeigh and all my good friends and colleagues at the Institute for International Law and the Humanities at the University of Melbourne; Nan Seuffert and the Legal Intersections Research Centre at the University of Wollongong; Peter Goodrich, Director of the Law and Humanities Program at Benjamin N. Cardozo School of Law in New York City. To each of these places I have been welcomed, often on many occasions, formed close friendships and collaborative relationships, and been provided with intellectual insights that have changed my thinking. Every year, the annual conference of the Law Literature and Humanities Association of Australasia provided me with an indispensable forum in which to elaborate my findings and expose my ideas to a remarkably diverse and generous community of like-minded scholars. In the course of developing this book, various aspects have appeared in other guises. An early version of Chapter 1 was published as ‘Blindness Visible’, in Desmond Manderson, ed., Law and the Visual: Representations, Technologies and Critique (Toronto: University of Toronto Press, 2018). An aspect of Chapter 2 was published in a different form as Desmond Manderson and Cristina Martinez, ‘Justice and Art – Face to Face’ (2016) 28 Yale Journal of Law and the Humanities 241; in this book I have omitted those aspects which rightly reflect our collaborative work, and substantially changed the rest. Earlier versions of Chapter 3 have appeared as ‘Not Yet: Aboriginal People and the Rule of Law’ (2008) 29 Arena 219, and following a conference on law and the visual held at New York Law School, as ‘The Law of the Image and the Image of the Law’ (2012–13) 57 New York Law School Law Review 153. An earlier version of Chapter 4 was published as ‘Bodies in the Water’ (2015) 27 Law and Literature 279. A different version of Chapter 5 was published as ‘Klimt’s Jurisprudence – Sovereign Violence and the Rule of Law’ (2015) 35 Oxford Journal of Legal Studies 515. Of course, for this book, all work has been rewritten, revised, and expanded. The feedback I received as a result of these publications is gratefully appreciated. A book such as this is a long and winding process and it is no exaggeration to speak of it as a team effort. Many readers have read chapters from this work and provided me with helpful suggestions. I mention in particular Professor Tim Bonyhady, a wonderful reader, a wonderful writer, and a great friend; Mieke Bal whose scholarship has profoundly shaped my own; Peter Goodrich, a shining light in the field of law and the humanities and a man who has helped me in countless ways over the years; Ian McLean, an Australian art historian of the highest distinction; Luis Gomez Romero, a brilliant jurisprudent and dear friend who helped shape and inspire this book; and many others. Organizing reproductions and copyright permissions for over fifty images is a daunting task and, at just the right moment, I was fortunate to be able to rely on

Acknowledgements

xvii

the diligent and kindly research assistance of Zelie Appel, thanks to additional funding provided by the ANU College of Law. Leanne Bennett has been exceptionally generous with her time and expertise in helping me assemble the images of Gordon’s work that form the spine of Chapter 6. I regret the fact that I never met him before his death in 2014. In the publication process, the support of John Berger, commissioning editor for law at Cambridge University Press New York, was indispensable. Catherine Smith has helped steer the path to publication with care, respect, and competence, and provided assistance that at times went above and beyond the call of duty. I am immensely grateful to them all. Last but not least, over many years my family has provided me with just the right balance of interest and patience. They have always been interested in the stages this book has gone through; their confidence in my ability to see it through to completion has not wavered, or at least they have had the good grace never to mention it to me. I came back to Australia in December 2011 not only to take up the fellowship which led to this book, but to spend time with my mother, Mardi Manderson, who was in her late eighties. From that time until her death in June 2015 at the age of 92, I had a coffee with her almost every morning. It came to feel like a necessary part of my work routine, a necessary entre´e into the day. I miss her company still, especially on Canberra mornings when the air is crisp and clear and the sky is bright and loud with the screeching birds. I will always have her voice in my head, not so loud, not so screeching, but insistent. Mardi, my mother, has passed from before death to afterlife, and her gentle force is not diminished. I’m sorry she never had the chance to read this book. I hope that the constants in my life, Jackie Adcock and our daughter, Laurence Grace Adcock Manderson, will take the time, someday, to do so. I rely on their love and joy and laughter every single day. They are to be found on every page. This is not an adequate acknowledgement of the role they played in this small, fragile object but it will have to do for now. A small sincere tribute – just in time.

Foreword

before death It is not customary, I know, to write one’s own foreword. Perhaps it suggests a control freak, or just a sad lack of friends. I hope that neither is true in this case. It is rather that the idea of a before-word, a temporal marker that sits both outside the text proper yet propels it into the future, moving with and shaping its momentum, captures so well the productive tensions at the heart of this book. Danse Macabre: Temporalities of Law in the Visual Arts is about time, and how it manifests and governs our experience of art and law alike. It performs a delicate dance that intertwines three distinct parameters, three distinct points of view: a legal subject, a visual object, and a temporal predicate. As we will see, for every foreword there is an afterword, for every ‘before’ an ‘after’ that likewise embodies complex temporal ambiguities, voices that haunt and shadow us from beyond the grave. We are always beforehand: before death, before God, before the law. We are always after, ‘always late’, as Levinas said, ‘for the rendezvous with the neighbour’.1 And we are always perched between two voids, like a book between bookends, held in place and framed by other times, other lives. Georges Didi-Huberman provides an excellent point of departure, an excellent way forward: Whenever we are before the image, we are before time. Like the poor illiterate in Kafka’s story, we are before the image as before the law: as before an open doorway.2

There is a complex doubleness at play in Kafka’s story ‘Before the Law’, and in Derrida’s reading of it; they evoke a relationship which is both temporally prior to its object and yet already spatially subject to it. Janus-faced, to be ‘before the law’ looks in two directions at once: towards a state of nature and a state of subjection, an 1

2

Emmanuel Levinas, ‘Language and Proximity’, in Collected Philosophical Papers, trans. Alphonso Lingis (Dordrecht: Martinus Nijhoff, 1987), pp. 119–26, at p. 119. Georges Didi-Huberman, ‘Before the Image, Before Time: The Sovereignty of Anachronism’, trans. Peter Mason, in Claire Farago and Robert Zwijnenberg, eds., Compelling Visuality: The Work of Art in and out of History (Minneapolis: University of Minnesota Press, 2003) pp. 31–45, at p. 34.

1

2

Foreword

innocent freedom and a guilty prohibition.3 With time as with law, we are in the presence of something that exerts a force over us while – indeed, by – eluding our grasp. Noli me tangere, warned Christ when he appeared before Mary Magdalene in the Garden of Gethsemane, a scene that likewise explores the difference between seeing and believing, withholding as a form of desire, and absence as a magnified form of presence. But this is certainly not the end of it. On closer inspection, the author posits a complex triangulation. To begin with, ‘[if] we are before the image, [then] we are before time’. The relationship is not so much causal as inherent, a question of definition or essence. To be before the one, he seems to imply, is inevitably to be before the other. But this temporal subjection, he straightaway goes on, is itself a mode of law: ‘like the poor illiterate in Kafka’s story, we are before the image as before the law’. Is the comparison just an analogy? He does not say that time’s relation to the image works ‘like’ a law, but that in both cases, before the image and before time, we are positioned ‘like’ the man from the country – before the law. The relationship is not analogical but structural. Law, the text seems to suggest, is a form that structures time – and vice versa – and we experience both ‘before the image’. The image already summons us before the bench of time, to be subject to its cross-examination, force, and judgement, like ‘the poor illiterate in Kafka’s story’, which is to say, implicitly, necessarily, and against our will. In short, the image is a mode that manifests time as a law, and law as time. Time, art, and law are the partners of this interdisciplinary dance. But what kind of dance are we talking about? What is its genre, its character? – waltz? polka? tango? No; the answer is surely something stranger and more gruesome – a danse macabre. Death will be our constant companion throughout this book. Consider Artus Quellinus’s mid-seventeenth-century Vierschaar (or tribunal chamber) in the old Town Hall of Amsterdam (Figure 0.1). This is where sentences of death were passed. It is both lofty and claustrophobic, small yet cavernous. Weeping, distraught children ornament its podium. Double height, and carved entirely out of cold, pallid marble, the walls of the chamber are decorated with images of deaths-heads and serpents, and supported by carved caryatids, their heads bowed and their eyes covered. This blindness has nothing to do with the ‘blind justices’ of Brant or Bruegel or Reynolds. If anything, Oedipus or Lear or Equus might come to mind. The law is not shown in the pose of a just authority, but neither does it signify corruption or ignorance or disregard or distance or pride or arrogance or neutrality or faith or reason. This is not blind justice but blind grief, staggering under the shocking blow of law’s 3

Franz Kafka, ‘Before the Law’, in Collected Stories, trans. Willa and Edwin Muir (New York: Knopf, 1993), pp. 173–4; Jacques Derrida, ‘Before the Law’, in Acts of Literature, trans. and ed. Derek Attridge (London: Routledge, 1992), pp. 181–220; Panu Minkkinen, ‘The Radiance of Justice: On the Minor Jurisprudence of Franz Kafka’ (1994) 3 Social & Legal Studies 349–63.

Before Death

3

figure 0.1 Artus Quellinus I, sculpture in the Vierschaar (‘Weeping Angel’), c. 1660. White marble, Paleis op de Dam, Amsterdam (Photocredit © D. Manderson, 2014)

fateful decisions. We are at a funeral, where mourners weep inconsolably and bury their heads in their hands. Here the tribunal pronounced its decisions as if from beyond the grave, as if the voice of the law was emanating from inside a tomb. Executions took place immediately afterward, in the room next door that opened onto Dam Square, centre of public life in the city. Like some chamber of horrors, the dead summon the dead. Discussions of this extraordinary space have not fully absorbed its aesthetic implications.4 The caryatids, who literally carry the burden of the legal institution on their heads, are pall-bearers. 4

See the discussion in Judith Resnik and Dennis Curtis, Representing Justice (New Haven, CT: Yale University Press, 2012), pp. 48–61, esp. pp. 54–6.

4

Foreword

Law is a place of mourning.5 We are not in a courtroom; we are in a mausoleum. The Vierschaar does not represent or illustrate or ‘signify’ the court’s function, but actually embodies it, constituting, as the source of its violent authority, the temporal tithe which the dead extort from the living, dragging its victims into its gaping maw. In this partage du sensible, to speak the law is to speak of death. Artists have always seen the law through a veil of blood. Recall the Judgement of Cambyses (1498), Gerard David’s lovingly detailed image of a judge being flayed alive – the dreadful phylactery, literally flesh transformed into the body of the law as if by some gruesome alchemy, clearly visible in the background. In this book, I focus on other images, but they share David’s morbid fascination. A danse macabre runs like a threnody through the images discussed in this book. Pieter Bruegel’s Justice is crammed with the dead, so many scenes of execution and torture piled one on top of the other that, as one commentator put it, we seem to have stumbled onto a ‘festival of sadism’. In nineteenth-century Tasmania, Governor Arthur’s Proclamation is a celebration of British legal principles that comes from the same time and place as the annihilation of its Indigenous inhabitants. It visualizes the rule of law by means of a spearing, a shooting, and a hanging or two. This equation of law and gallows, like its conflation of justice and genocide, has haunted colonial art and law in the Antipodes ever since, as the work of the modern Australian painter Gordon Bennett makes clear. J. M. W. Turner’s Slave Ship, which commemorates a famous legal case and famous piece of legislation, features dismembered body parts being devoured by fish. In Gustav Klimt’s Jurisprudence, an abject man is being embraced by a monstrous octopus. Here, perhaps, is a festival of masochism. In Chapter 7, the disturbing murals of Rafael Cauduro in the Supreme Court of Mexico bring this litany of violence to a gruesome climax – law as a ghost story or a horror movie. In the three sections that follow, I propose to sketch in broad outline the particular questions and scholarly constellations which animate this book, asking in turn why we might be interested in the relation between visual images and time, between time and law, and between law and images. These three axes form the sides of the triangle that comes together for the first time in this book, and whose distinctive features will I hope be of interest to readers. As we will see, along each of these axes the shadow of death is never far away. We are always walking in its valley.6 Law’s bloody undertow of violence underpins the representations that give affective life to its structures, and justify its acts. Death makes law matter. As Robert Cover famously puts it, law ‘takes place in a field of pain and death . . . A legal world is built only to the extent that there are commitments that place bodies on the line.’7 The shadow of death dramatically raises the stakes and focuses the mind for the methods and theories articulated and practised here. 5

6 7

Robert Cover, ‘Violence and the Word’ (1985) 95 Yale Law Journal 1601; Austin Sarat, ed., Law, Violence, and the Possibility of Justice (Princeton, NJ: Princeton University Press, 2001). Psalm 23:4. This footnote insults the intelligence of my readers. Apologies. Cover, ‘Violence and the Word’, 1601–5.

Before the Image, Before Time

5

before the image, before time So it is no surprise that the focal point for the representation of time in the visual arts is so often death. Death, as Elisabeth Bronfen puts it so forcefully, is ‘the navel of the image’, the ‘knotted scar’ that records ‘the mutual implication of representation, mortality and maternity’; which is to say, an ever-present physical mark that ‘reminds us of the loss of the mother and prophetically warns of our own death’.8 Michelangelo’s Pieta` shows the body of Christ in the arms of his mother (Figure 0.2). But his mother is still clearly the young woman who gave birth to him; she has not aged a whit. This is not simply an aesthetic choice or a bit of poetic licence or a conventional trope.9 No; Michelangelo’s temporal compression profoundly alters the meaning of the work as a whole. The sculpture speaks to the doom of predestination that hangs over the whole Christian tradition: Christ’s death was already immanent in his birth. These two embraces, the first and the last, are inextricably linked to one another, theologically speaking. Christ’s whole life, one might say, was played out ‘before the cross’, prior to and in the shadow of death. But quite aside from the religious significance of the sculpture, Michelangelo taps into a universal emotional truth. Mary cradles Jesus, dead, just as she did when he was a baby. There is nothing fanciful about this. The relationship of parenthood, once initiated, never goes away. To parents, a child is always their baby. To a child, their mother arouses the tender associations of that first caress and bond. And at the moment of any child’s death, be they ever so old, I think we find ourselves transported back to that primal scene, summoned to its recollection by the utter dependence and passivity to which their baby has been so dreadfully returned. Birth inaugurates a responsibility and a vulnerability that never leaves us, even in death – never goes away, never gets old, never dies.10 In our birth our death is already foretold; in our death is our birth recalled. There is something frozen in time about the parent–child relationship, or perhaps, better yet, something forever trapped in amber. Michelangelo gives us access to this terrible truth as it cuts across the orthodox logic of time, like the topology of a ‘crumpled handkerchief’ that brings together distant corners – or the crumpled skin of a navel. ‘Two distant points suddenly are close, even superimposed.’11 8

9

10

11

Elisabeth Bronfen, ‘Death: The Navel of the Image’, in Mieke Bal and Inge Boers, eds., The Point of Theory (Amsterdam: Amsterdam University Press, 1994), pp. 79–90, at pp. 80, 85–6. Neil MacGregor and Erika Langmuir, Seeing Salvation: Images of Christ in Art (London: BBC, 2000); Joanna Ziegler, ‘Michelangelo and the Medieval Pieta`: The Sculpture of Devotion or the Art of Sculpture?’ (1995) 34 Gesta 28–36; John Pope-Hennessy, Italian High Renaissance and Baroque Sculpture (London: Phaidon, 1996), p. 304; William Wallace, Michelangelo: The Artist, the Man, and His Times (Cambridge: Cambridge University Press, 2009). See Tina Chanter, Time, Death and the Feminine: Levinas with Heidegger (Stanford, CA: Stanford University Press, 2002); Robert Manning, ‘Thinking the Other without Violence’ (1991) 5 Journal of Speculative Philosophy 132–43; Lisa Baraitser, Maternal Encounters: The Ethics of Interruption (New York: Routledge, 2009). Michel Serres in Michel Serres with Bruno Latour, Conversations on Science, Culture and Time, trans. Roxanne Lapidus (Ann Arbor, MI: University of Michigan Press, 1995).

6

Foreword

figure 0.2 Michelangelo Buonarroti, Pieta`, 1498–9. Carrara marble, 174 cm × 195 cm,

St Peter’s Basilica, Vatican City. (Manuel Cohen Art Resource, NY)

Michelangelo achieves this strange but faithful juxtaposition using the materials of his art. The paradox of marble is that it looks so soft but feels so hard; looks so warm but feels so cold. The Pieta`, with its cold white skin and the organic, luminous orange light that suffuses the grotto around it, gives shape to a temporal experience

Before the Image, Before Time

7

that is paradoxical yet true. Madonna and child are caught in the amber of time. Aren’t we all? Michelangelo shows us how deep and complex, and how human, is the representation of time in the visual arts. It is a line of inquiry pursued by many contemporary writers on art and art history: Georges Didi-Huberman, Christopher Nagel, and Alexander Wood certainly, their work strongly influenced by the pioneering contributions of Mieke Bal and Hubert Damisch; but also Chiara Bottici, W. J. T. Mitchell, and others. Indeed, one could well conclude that temporality is one of art’s central concerns precisely because, as opposed to music or dance for example, the frozen tableau of a painting or sculpture already constitutes, in its unnatural stillness, a crisis for representation. Supposing that art might be defined as the struggle to interrogate and transcend the limits of genre, then time is surely a compelling aspect of that struggle and those limits.12 Within the confines of a single frame, time is not frozen at all; it is distilled. To clarify: temporality is not just a synonym for time. If time is habitually conceived to be something external and objective, temporality attempts to capture our experience of it; if the former can be measured by an instrument, the latter is indicative of a culture.13 Temporality is to time as mentality is to mind – it denotes habits of thought and feeling.14 Temporality focuses on the particular representations that structure how groups and discourses frame the passing of time, how they situate themselves in relation to it, and with what social, conceptual, and normative consequences. It is not an ever-fixed mark, a single star in the night sky, a thing. It is a constellation, or a zodiac: on the one hand, a set of relations that allow us to chart the infinite expanses of the cosmos, and on the other hand a cultural framework for instilling the mythologies, values, and memories that matter to us. Temporality in this sense is not the oceans of time so much as the barks we build to set sail on it.15 ‘But how are we to be equal to all the temporalities that this image, before us, conjugates on so many levels? . . . What plasticities and fractures, what rhythms and jolts of time, can be at stake in this opening of the image?’16 Didi-Huberman asks. Good questions, yet too often brushed aside as ‘non-existent’ or ‘meaningless’ in favour of a reductive obsession with the historical conditions surrounding the creation of the artwork, or to parsing iconographic details within it. Attribution, explanation, description, historicism. This limited terrain fails to do justice to the 12 13

14

15 16

See Jacques Derrida, ‘The Law of Genre’, trans. Avital Ronell, in (1980) 7 Critical Inquiry 55–81. See, among a broad literature, esp. Norbert Elias, Time: An Essay, trans. Edmund Jephcott (Oxford: Blackwell, 1993); Niklas Luhmann, The Differentiation of Society, trans. S. Holmes and C. Larmore (New York: Columbia University Press, 1982), particularly ‘The Future Cannot Begin’, pp. 271–89, and ‘World Time and System History’, pp. 289–324; Barbara Adams, Time and Social Theory (Oxford: Blackwell, 1990). Peter Burke, ‘Strengths and Weaknesses in the History of Mentalities’, in Varieties of Cultural History (Cambridge: Polity, 1997), pp. 162–82; Roger Chartier, Cultural History: Between Practices and Representations (Ithaca, NY: Cornell University Press, 1988). The analogy draws on Elias, Time: An Essay, pp. 11–12. Didi-Huberman, ‘Before the Image, Before Time’, pp. 31–45, at pp. 33–4.

8

Foreword

many complex ways we actually experience the relationship to time in art. Neither, and just as importantly, does it account for the mysterious power that emanates from an artwork, generating something like an electric current that jumps across the synaptic gap from its time to ours. Mieke Bal, for one, has pioneered similar themes. She seeks to radically incorporate the afterlife of an image – its reception, quotation, citation, evocation, and transformation by viewers – into our understanding of art’s meaning, force, and normativity. She invites us to ‘take the image not as an illustration of a narrative that is already around, but as the production of a narrative that would necessarily be new or different, as a result of the pictorial gesture folded into the viewer’s compulsion to read’.17 Such an approach to history is ‘preposterous’,18 she concedes (for reasons that I develop in Chapter 6, I prefer the word ‘fabulous’) but nonetheless ‘necessary’. Perhaps originally coined by its enemies as an insult, and lately reclaimed by its friends as a compliment, the term ‘anachronism’19 has in this context a long history going back to the pioneering work of Aby Warburg.20 He never tired of drawing our attention to the Nachleben – afterlife, again – of images across time. Ditto Walter Benjamin, who saw in the montage a visual embodiment of the unconscious, images piling up, colliding, and overlapping without regard to any temporal sequence.21 This creative spark was somewhat repressed or at the very least disciplined by the next generation, led by Erwin Panofsky who was keen to secure for his chosen field the legitimacy afforded to a positivist science.22 But more recent writers—first Damisch and Bal, then Didi-Huberman and Nagel and Wood—have embarked on a revisionist project. On one level, they have reminded us that so-called ‘anachronistic’ or ‘anachronic’ representations of time were in fact part and parcel of the orthodox conception and practice of art in the Renaissance. That is to say that the bringing together of different temporal moments, for example by introducing images of patrons or mentors into historical or biblical scenes, was not evidence of some kind of temporal muddle but on the contrary captured the ways that past and present were seen, particularly in religious experience, as being contemporary, mutually implicated, or continuous. Time is topological not linear.23 On another level, a similar insight can likewise be seen to have influenced Renaissance ideas 17

18 19

20

21

22

23

Mieke Bal, Travelling Concepts in the Humanities: A Rough Guide (Toronto: University of Toronto Press, 2002), p. 267; see also her, Quoting Caravaggio: Contemporary Art, Preposterous History (Chicago, IL: University of Chicago Press, 1999). Bal, Quoting Caravaggio, pp. 1–7. See Didi-Huberman, ‘Before the Image, Before Time’; Alexander Nagel and Christopher Wood, Anachronic Renaissance (New York: Zone Books, 2010); Bal, Quoting Caravaggio. See Georges Didi-Huberman, L’image survivante: histoire de l’art et temps des fantoˆmes selon Aby Warburg (Paris: Minuit, 2002). Walter Benjamin, The Arcades Project, trans. Howard Eiland and Kevin McLaughlin (Cambridge, MA: Belknap Press, 1999), Convolute N. Didi-Huberman, Confronting Images, pp. 50–5. The contrast between Panofksy and Warburg is drawn strongly throughout Confronting Images, as well as in L’image survivante. See Serres with Latour, Conversations.

Before the Image, Before Time

9

about the impact and legacy of art. In other words, time bleeds not just across the pages of the past but seeps into the future. The old masters, no less than the young theorists, understood perfectly well that art transcends the moment of its creation, radiating power and relevance like a force field.24 Summing up the work of many scholars, Didi-Huberman insists: ‘You cannot acknowledge the memorial dimension of history without accepting at the same time both its anchoring in the unconscious and its anachronic dimension.’25 Fra Angelico’s Annunciation, to take a famous example, does not simply portray a historical episode, situating it in the distant past, like a document or archive.26 The delicate tonal colouration that suffuses the background of the fresco creates a connection between the light as it is represented in the picture and the light experienced by the viewer in the very space on which they stand to look at it. The light that bathes the fresco is inseparable from the light that pours in from the convent windows, uniting spectator and spectacle in a single field, a single experience incapable of being reduced to one temporal moment or another. The presence of God is an event that takes place both in the historical past that Fra Angelico describes, and in the present, in the viewer’s own experience of it. He creates a visual space which reaches beyond the narrative confines of the artwork, in the prayerful hope that God might again put in an appearance – not just then, in the presence of the Virgin Mary, but now, in the presence of the viewer.27 The Annunciation, an announcement or presence, was that moment when the angel of God became present to the Virgin Mary, and moreover, the moment when God took on the physical form of a child in her womb. It is thus the instant that the holy spirit – word, symbol, referent, image, idea – ‘came down to earth’ – was incarnated, embodied, made real, made flesh. The figure of annunciation, then might even be thought to embody something essential about artistic creativity more broadly. Almost sixty years ago, Hans Gadamer made a remarkably similar point in the course of his magisterial Truth and Method. For Gadamer, the task of an artwork – its work so to speak – is to clear a space . . . in which an unseen or overlooked transformative possibility concerning this world can appear. Primacy is given to aesthetic appearance as a means of transforming our understanding of the real . . . Recollection is not repetition but annunciation. Inverting the standard interpretation of Plato, Gadamer insists that ‘imitation and representation are not merely a second version or copy but 24 25 26 27

Didi-Huberman, Confronting Images, p. 27. Ibid., p. 37. Fra Angelico, Annunciation (fresco, Convent of San Marco, Florence, 1437–6). See Georges Didi-Huberman, Fra Angelico: Dissemblance and Figuration, trans. Jane Marie Todd (Chicago, IL: University of Chicago Press, 1995); Hubert Damisch, The´orie de la peinture. Pour une histoire de la peinture (Paris: Seuil, 1972); Louis Marin, On Representation (Stanford, CA: Stanford University Press, 2001).

10

Foreword

figure 0.3 Gordon Bennett, Valley of the Ghost Gums, 1989. Mixed media on hardboard, 40 cm × 122 cm, State Art Collection, Art Gallery of Western Australia. (Image courtesy of Art Gallery of Western Australia; © Estate of Gordon Bennett)

a recognition of the essence . . . they are not merely repetition but a bringing forth’.28

The actual material – the physical stuff, the clay, dye, stone, or fibre – that was used to incarnate the artist’s image or idea, to bring it to life or annunciate it, comes into direct contact with the viewer, notwithstanding the passage of hundreds of years. As Louis Marin writes concerning another Annunciation, this time by Piero della Francesca, ‘the voice of saying comes to meet the seeing of the gaze . . . [and] the voice conquers the virtuality of its presence’.29 He means by this rather Levinasian formulation that what is ‘conquered’ by the signifier (the author, the ‘voice’ which is ‘saying’) understood as separate from, yet wholly embodied in the signified (the object they made) is the gap that separates that voice from later spectators, whose ‘gaze’ is doing the ‘seeing’. In other words, what art conquers is time. In this important respect, an act of artistic creation is itself a species of divine annunciation: word made flesh, then and now. At stake is not a mode of representation but transubstantiation. Before the image, we are before time – before God, before death. This, Fra Angelico surely knew.

before time, before the law A contemporary Annunciation (as I see it) graces the cover of this book. It is part of Valley of the Ghost Gums (Figure 0.3), a triptych by the Australian artist Gordon Bennett, whose work is discussed in detail in Chapter 6. The painting as a whole tells a complex story around the work and life of Albert Namatjira, an Indigenous artist whose westernised paintings gained national recognition in the middle years of the 28

29

Nicholas Davey, ‘Gadamer and the Ambiguity of Appearance’, in Francis Halsall, Julia Jansen, and Tony O’Connor, eds., Rediscovering Aesthetics (Stanford, CA: Stanford University Press, 2009), pp. 147–62, at 150–2. Marin, On Representation, p. 350; see Piero della Francesca, Annunciation (fresco, Basilica of San Francesco, Arezzo, 1464).

Before Time, Before the Law

11

twentieth century. Bennett’s images reference themes of cultural appropriation, ownership, and power; tensions and ambivalences which ultimately led Namatjira to be imprisoned, not long before his death in 1959, after he was charged under colonial legislation making it an offence to supply alcohol to an Aboriginal person. The vertical bars that rhyme across the three sections of the painting link together in multiple ways ideas of property and commodification, the tools of the artist’s trade, and imprisonment. Valley of the Ghost Gums argues strongly for a relationship between a kind of cultural recognition and a kind of cultural hypocrisy, a dynamic that Australian attitudes towards Indigenous people and Indigenous artists have by no means outgrown. But in the right-hand panel, Bennett’s image of an angelic visitation surely exceeds the specific narrative history it recounts. Its dark and oppressive intensity explicitly connects the suffering figure to the redemptive potential of light and art; and to an uncanny temporal destabilization. Along the lines we have just seen, the angel in Bennett’s painting seems to position art as a form of annunciation; as the instrument of salvation – or a ghost. Before The Valley of the Ghost Gums, as if before a Fra Angelico, we do not just witness the power of art, but find ourselves drawn into its charmed circle. Bennett’s misty evanescent angel does not just appear to Namatjira, but to us. But Bennett goes further. He completes the triangulation that binds image and time to the law, and in this respect the story that motivated Bennett’s painting is the occasion to address far bigger issues. His Annunciation shows a man who is not just before the image and before time, but likewise ‘before the law’, in precisely the dual sense of being simultaneously excluded from it yet oppressed by it. Those who are familiar with the terrible history of the incarceration of Indigenous Australians will note here a political and historical context that goes far beyond the story of one man.30 And how does this ‘countryman’, like the ‘poor illiterate in Kafka’s story’, experience the law? Bennett shows a prisoner doing time. The phrase is suggestive. The incarcerated are condemned to the weight and burden of this emptiness, consigned to a period of forlorn and hopeless waiting. The power of law is most assuredly a power over time, whether it chooses to cut it short with a noose or an axe, or to drag it out behind bars. Either way, the time of law is a dead loss. So time is a common horizon shared by art and law; it matters deeply and paradoxically to both. But with this difference: when theorists of art write in praise of anachronism and rail against the linear logic of time, they sound like heretics; theorists of law, on the other hand, have been making similar claims for a long time. To be before the law is always to be before time – waiting for it, confronted by it, subject to it.31 Gordon Bennett’s painting alludes to only the most obvious aspects of that relationship: imprisonment and execution. Acts Interpretation Acts 30

31

Commonwealth of Australia, Royal Commission into Aboriginal Deaths in Custody (Elliott Johnston, Commissioner), 5 vols. (Canberra: AGPS, 1991). See Didi-Huberman, ‘Before the Image’; Derrida, ‘Before the Law’; Panu Minkkinen, ‘The Radiance of Justice: On the Minor Jurisprudence of Franz Kafka’ (1994) 3 Social & Legal Studies 349–63.

12

Foreword

around the world, for example, drawing on an English model, declare that ‘the written law shall be considered as always speaking’.32 Hardly a word in this sentence is not peculiar. Why ‘shall be’? Why ‘considered as’? Why is it ‘written law’ if it is ‘always speaking’? Yet leaving aside its oddly gothic construction, the overall impression we are left with is terrifying and macabre. Law is written and therefore mute, yet here it finds its voice, like a mummy come alive. Indeed the power of that voice apparently extends not just to the moment of its enactment but now and into the future, not at any one moment but always and for all time. Does this not make clear exactly what Marin had in mind? ‘The voice of [law’s] saying comes to meet the seeing of the [legal subject’s] gaze and [thereby] conquers the virtuality of its presence.’ Or, in other words, law ‘shall be considered as always speaking’. It is to take up residence in our head for eternity. We must not – cannot – shut it up. It wanders the corridors of time, like some demented patriarchal ghost, haunting and tormenting us. Was it not the voices in his head that drove Hamlet mad – voices ‘always considered as speaking’, voices that would not die?33 The spectre of the law is a shadowy figure. It hides behind the arras – but it lurks within earshot. We can close our eyes, but we cannot stop our ears. Law pours its commands into them like poison from a bottomless jug. So the notion of anachronism, for art history considered an anomaly (a-nomic – against the law), is not against the law at all. On the contrary, if the law were not capable of staving off its own death, it could not last a day. Law is always in a dialogue with the past, reinterpreting and rereading prior texts whose temporal distance is a stamp of their authority and their authenticity – texts which ‘shall be considered as always speaking’, and without whose support and apparatus the law would find itself struck dumb. And law at the same time harbours ambitions for a future it cannot foresee. English Acts of Parliament traditionally require the assent of the ‘lords spiritual and temporal’. An eternal jurisdiction is partnered with a jurisdiction condemned to death. Like Michelangelo, temporality and mortality commingle. Nonetheless, the ‘lords temporal’ are not just imprisoned in time. They are obliged to consider it. Law’s ‘temporal jurisdiction’ is both a warning – remember you must die – and an exercise in speculative fiction – imagine the future. The one thing that legislators, and judges for that matter, cannot fix – meaning to repair, but also to define, or fasten securely in place – is the present instant. Time is never at a standstill. Mark Tansey, whose parents were art historians and who often draws on contemporary philosophical debates for inspiration,34 captures this circumstance in Action Painting II (Figure 0.4). Norman Rockwell, Jackson Pollock, and others are depicted satisfying the more or less conventional desire that art 32 33 34

For example, see Interpretation Act (WA), s. 8; Interpretation Act (RSC, 1985, c. I-21), s. 10. William Shakespeare, Macbeth, V.5, 18–23. See Mark Tansey, Derrida Queries De Man (oil on canvas, 212 cm × 139 cm, Montreal Muse´e des Beaux-Arts, 1990).

Before Time, Before the Law

13

figure 0.4 Mark Tansey, Action Painting II, 1984. Oil on canvas, 193 cm × 279.4 cm,

Muse´e des Beaux-Arts, Montreal. (Courtesy of Gagosian; © Mark Tansey)

represent the world realistically.35 Tansey parades the comforting common sense of this mimetic delusion. Then, a second later, the painting’s joke, a visual reductio ad absurdum, kicks in. What seems natural is in fact impossible. Time is as fleeting as a space ship. It rises into the wide blue yonder and is already nothing but a vapour trail. So the onrush of time means that perfect accuracy in art or law is not an option.36 We cannot paint the present; neither can we write the present law. On the one hand, painting and lawmaking are always behind the times, late for their rendezvous with a world that has turned without them. On the other hand, they strive to shape a future that they will never live to see. Anachronism, in short, the complicated temporal topology of law, is its very condition of possibility. Art and law share the same obsession with time, the same paradox, the same predicament. It’s the fixation they share; it’s the fix they’re in.

35 36

I will return to Jackson Pollock and his ‘action paintings’ in Chapter 6 (on Gordon Bennett). In just the same way, the short story by Jorge Borges, ‘On Exactitude in Science’ imagines that the only perfect map of the Empire must be as large as the Empire, ‘which coincided point by point with it’. Jorge Luis Borges, ‘On Exactitude in Science’, in Collected Fictions (New York: Viking, 1998), p. 325.

14

Foreword

Building on pioneering work, for example by Carol Greenhouse and Franc¸ois Ost,37 the relationship between law and time has recently attracted new interest.38 While this literature is dwarfed by the work done on space, place, and legal geography, the imbalance is gradually being corrected. It is not enough simply to observe that ‘legal time’ is sometimes measured in seconds and sometimes in years, sometimes determined by the exact moment when documents are filed and sometimes by the operation of legal fictions ranging from deeming provisions and the rule against perpetuities to the ‘time immemorial’ of English custom. Law unfolds through a series of complex accommodations that involve dialogues and judgements about and in time. A legal system expecting the Messiah will think, speak, and act very differently from a legal system mourning the passing of its golden age. Utopian justice has a different flavour from nostalgic justice. Ghosts and ancestors express very different relationships between the dead and the living.39 The doctrine of precedent is the product of a different temporality – a different mentality of time, as it were – than the civil code. Take Mikhail Bakhtin.40 He retraces the whole history and development of literary forms, and through them aspects of the wider culture, by means of their distinctive approaches to the treatment of time.41 Bakhtin’s term ‘chronotope’, a portmanteau of chronos and topos along the lines of Einstein’s ‘spacetime’,42 has formed the starting point for a variety of legal texts, most notably Mariana Valverde’s Chronotopes of Law.43 Valverde argues that the so-called ‘spatial turn’, certainly in the field of legal geography but more broadly than that, has led to a marginalization 37

38

39

40

41

42 43

Carol Greenhouse, ‘Just in time: Temporality and the Cultural Legitimation of Law’ (1989) 98 Yale Law Journal 1631–51; Franc¸ois Ost, Le temps du droit (Paris: Odile Jacob, 1999). See Jon May and Nigel Thrift, eds., Timespace: Geographies of Temporality (London: Routledge, 2003); Jose´ Brunner, ‘Modern Times: Law, Temporality and Happiness in Hobbes, Locke and Bentham’ (2007) 8 Theoretical Inquiries in Law 277–310; The New Legal Temporalities?: Discipline and Resistance across Domains of Time, Kent Law School, Sept. 2016; Rita Birla, ‘Performativity between Logos and Nomos: Law, Temporality and the Non-Economic Analysis of Power’ (2011) 21 Columbia Journal of Gender and Law 90; Liaquat Ali Khan, ‘Temporality of Law’ (2009) 40 McGeorge Law Review 55; Renisa Mawani, ‘Law As Temporality: Colonial Politics and Indian Settlers’ (2014) 4 UC Irvine Law Review 65; Pierre Legendre, ‘The Lost Temporality of Law’ (1990) 1 Law and Critique 3–20; Irus Braverman et al., eds., The Expanding Spaces of Law: A Timely Legal Geography (Stanford, CA: Stanford University Press, 2014). Bruce Springsteen, Born to Run (New York: Simon & Schuster, 2016), in John Lahr, ‘Greasers and Rah-Rahs’, 39 London Review of Books, 2 February 2017, 27–9, at 29. Mikhail Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, in The Dialogic Imagination: Four Essays by M. M. Bakhtin, ed. and trans. Caryl Emerson and Michael Holquist (Austin, TX: University of Texas Press, 1981 [1937–8, 1973]), pp. 84–258. Mikhail Bakhtin, The Dialogic Imagination, ed. and trans. Michael Holquist and Caryl Emerson (Austin, TX: University of Texas Press, 1981). Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, p. 84. See Jennifer Haselberger, ‘The chronotope of the courtroom: Bakhtinian dialogics and actions for breach of promise of marriage in mid-nineteenth century legal literature and fiction’ (Ph.D. dissertation, London, Birkbeck College, 2005); Desmond Manderson, ‘Mikhail Bakhtin and the Field of Law and Literature’ (2012) 8 Law, Culture and the Humanities; Mariana Valverde,Chronotopes of Law (London: Routledge, 2014).

Before Time, Before the Law

15

of thinking about time in law.44 In an argument parallel to Didi-Huberman’s critique of art history, she claims that this has been accompanied by the ‘reduction of time to history’, a move that forecloses any more complicated discussion of the temporal dimensions of law.45 Talking about legal history all too often smuggles in a treatment of time that is reductive, objective, and linear. In line with Bakhtin’s neologism, Valverde calls for the fusion of spatial and temporal analysis.46 But I make no apology for singling out temporality in this book. Indeed, Bakhtin did the same: It can even be said that it is precisely the chronotope that defines genre and generic distinction, for in literature the primary character in the chronotope is time . . . In the analyses that follow we will devote our entire attention to the problem of time (the dominant principle in the chronotope) and to those things and only those things that have a direct and unmediated relationship to time.47

Even his analysis of spatial tropes in literature – the path, the castle, the city, or the provincial town – demonstrates how they embody a certain form of ‘viscous, sticky time’; the notion of progress embodied in the path, for example, the cobweb of tradition in the castle, or the stultifying stillness of Flaubert’s Tostes.48 ‘Chronotope’ is not so much Bakhtin’s term for the importance of time and space, as for ‘the materializing of time in space’.49 Inasmuch as Valverde’s book reads as a prospectus, a manifesto, and an invitation,50 Temporalities of Law in the Visual Arts answers the call. But with an important difference. Valverde connects time to law more or less directly. Bakhtin explicitly relates experiences of temporality to cultural representations. Complicated temporal structures of thought, action, and feeling are at work in, and indeed define, aesthetic genres. But only implicitly or ad hoc does he connect these forms of cultural representation to the wider social discourses at play.51 So too in this book, I focus on specific works in the visual arts in order to make visible the relationships between temporal and legal discourses. Artworks do not simply represent changing concepts of time and discourses of legal justification; these cultural forms form the bridge between them.

44

45 46 47 48 49 50 51

Valverde, Chronotopes of Law, p. 39; compare Frederic Jameson, ‘The End of Temporality’ (2003) 29 Critical inquiry 695–718. See also Martin Jay, ‘Cultural Relativism and the Visual Turn’ (2003) 1 Journal of Visual Culture 267–78. Valverde, Chronotopes, p. 39. Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, p. 84. Ibid., pp. 85–6. Ibid., pp. 248–9. Ibid., p. 250 (italics added). Ibid., p. 181. See the discussion of Rabelais in Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, pp. 167–206; and Bakhtin, Rabelais and His World (Indianapolis, IN: Indiana University Press, 1984 [1965]).

16

Foreword

before the law, before the image Despite being a relatively new field, law and visual studies is flourishing.52 We live in a world of ‘ocular epistemology’.53 The visual and spectacular are indispensable elements of how we come to know and are known by politics, law, and regulation – from social media and biometric surveillance to the image-making central to political power in modern elections, modern war, or modern terror.54 There could be no world and no subject without images; no public, no imagined community,55 no state or nation or law or sovereign without the representations that bring them into existence, like the condensed steam of our breath on a wintry morning.56 The ineffability and evanescence of the relationship between representation, myth, and norm is not just part of its subliminal power but part of its meaning. Once again we find ourselves, like Mary Magdalene, faced with a dead body and an empty tomb. Noli me tangere, says the image of the law – do as I say, but keep your distance.57 Affective and enigmatic, visual elements are crucial to the constitution, not to mention the seduction, of the law. Images are prime sites of law’s theory and law’s praxis. They are also, on occasion, prime sites for the critique of law, too. Temporalities of Law in the Visual Arts mounts a distinctive foray in two respects. First, law and image are not just concepts. To play around with Bruno Latour’s term, this book asks what is woven out of the fabric of law and the fabric of art, the warp of one as it rubs up against the weft of the other.58 How they are materialized in the world makes a difference. In the pages that follow, image is not just a synonym for concept, imago, or mental picture. Chiara Bottici distinguishes images, sensu stricto, 52

53 54

55 56 57 58

Robert Jacob, Images de la Justice (Paris: Le´opard d’Or, 1994); Otto Kissel, Die Justitia (Munich: Beck, 1984); Costas Douzinas and Lynda Nead, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago, IL: University of Chicago Press, 1999); Judith Resnik and Dennis Curtis, Representing Justice (New Haven, CT: Yale University Press, 2011); Richard Sherwin, Visualizing Law in the Age of the Digital Baroque (London: Routledge, 2011); Peter Goodrich and Vale´rie Hayaert, eds., Genealogies of Legal Vision (London: Routledge, 2015); Peter Goodrich, Legal Emblems and the Art of Law (New York: Cambridge University Press, 2014); Desmond Manderson, ed., Law and the Visual: Representations, Technologies, Critique (Toronto: University of Toronto Press, 2018); Alison Young, Judging the Image: Art, Value, Law (London: Routledge, 2005); Jose´ Marı´a Gonza´lez Garcı´a, The Eyes of Justice: Blindfolds and Farsightedness, Vision and Blindness in the Aesthetics of the Law, trans. Lawrence Schimel (Frankfurt: Vittorio Klostermann, 2017). Wendy Hesford, Spectacular Rhetorics (Durham, NC: Duke University Press, 2011), p. 29. Chiara Bottici, Imaginal Politics: Images beyond Imagination and the Imaginary (New York: Columbia University Press, 2014); Peter Goodrich and Vale´rie Hayaert, eds., Genealogies of Legal Vision; Desmond Manderson, ed., Law and the Visual, esp. part II; Walter Benjamin, ‘The Work of Art in the Age of Its Technological Reproducibility’, in Howard Eiland and Michael Jennings, eds., Walter Benjamin, Selected Writings, Vol. 3, 1935–38 (Cambridge, MA: Belknap Press, 2006), pp. 101–33. Benedict Anderson, Imagined Communities (London: Verso, 2006). See Bottici, Imaginal Politics. Goodrich, Legal Emblems, p. 253. Bruno Latour, La fabrique du droit (Paris: La De´couverte, 2002). Translated as The Making of Law, trans. Alain Pottage and Marina Brilman (Cambridge: Polity, 2010). I am of course aware that I am making a bilingual pun not necessarily present in the original.

Before the Law, Before the Image

17

from related terms such as imagination or the imaginary. Images are representations that, at the same time that they are unquestionably reminders of an absence – both the absence of the representing subject and of the represented object – are also unmistakeably present to viewers. They have a physical and observable form.59 My interest lies in specific paintings, etchings, sculptures, and photographs, and in the sensory, visual forms of their embodiment.60 Faced with a painting or a sculpture we are not just responding to an idea, but to a thing. So, too, while it is far broader than the mere sum of statutes, codes, and cases, law is not just a synonym for norm.61 It relates to discourses that frame our thinking about structure and authority, governance, regulation, sovereignty, rights, control, and punishment. In their titles and on their face, the artworks in this book are quite specifically focused in this way: they are images of Justice, Jurisprudence, Proclamation, Law, Crime. In recent times, exceptional contributions to this new field have undertaken a synopsis, overview, and catalogue of a large number of images.62 This work has been indispensable. It has set the stage for research, including my own, for years to come. But it is only the first step. And this is the second area in which this book attempts to forge a distinctive path. Joseph Slaughter writes, ‘How often do we show a film or read a testimonial in human rights classes where only the plot and themes are discussed? What are we missing when such texts are taught with little or no attention to the forms of their expression?’ The project of law and art might benefit from similar reflections. We must go further than a mere semiotics of images or sculptures. Explanation or description are not enough. We must inhabit them, engage with them: think and see the world with them both in their own time and ours. Only then will we really be taking these visual resources seriously. The school of New Criticism spoke of the ‘heresy of paraphrase’.63 But what was deemed heretical in literary criticism is an occupational hazard for lawyers, whose job necessarily involves the violence of reduction and translation – from specialist knowledge to the sort of information a court can use; from human experience to legally cognizable categories; from poetic truths to Latin maxims; from the complex shading of human behaviour to yes/no questions. Everything is grist to the mill of legal translation, and law ultimately prides itself on the power to set the terms and decide the result. As Arcimboldo’s portrait of a jurist (Figure 0.5) might be thought to 59 60

61

62

63

Bottici, Imaginal Politics, ch. 1. I use the word sensory here rather than material because I do not want to engage in a debate as to the material existence of digital images, which to my mind are nonetheless present to the senses in the way I am using this distinction here. See e.g. Pierre Legendre, Dieu au miroir (Paris: Fayard, 1994), and several of the chapters in Douzinas and Nead, Law and the Image. I am far from suggesting that image or law cannot or should not have these metaphorical, metaphysical, or psychoanalytic dimensions. I only wish to assert the materiality of the present study in both these dimensions. The two most important recent contributions are Gonza´lez Garcı´a, Eyes of Justice; Resnik and Curtis, Representing Justice. Preceding them of course was the remarkable and visionary Jacob, Images de la Justice. Cleanth Brooks, The Well Wrought Urn (New York: Harcourt Brace, 1947), ch. 11.

18

Foreword

figure 0.5 Giuseppe Arcimboldo, The Jurist, 1566. Oil on canvas, 64 cm × 51 cm, Nationalmuseum, Stockholm. (Photo credit: Nationalmuseum)

imply, law ultimately risks a kind of reverse alchemy – an inverse Midas touch: it turns art (along with everything else it touches) into dust, and confirms yet again that the jurist is nothing but a dry old fish. With Arcimboldo’s salutary counter-example in mind, this book endeavours to engage with specific works of art as fully as possible, bringing to bear not only their legal and social contexts, but the generic, visual, and aesthetic resources of other disciplines, including crucial work, as I have indicated, in art theory and criticism. Each of the chapters that follow have at their heart a single image or set of images. They are arranged chronologically from the sixteenth to the twenty-first centuries. But my approach is not teleological. Diverse threads of thought and feeling are woven too densely for any one, schematic thesis to capture how the relationship between law, time, and the visual arts changed from the sixteenth to the twenty-first centuries. Indeed, the idea of anachronism itself suggests that images and temporalities of law do not disappear or evolve in any straightforward way, but continue to influence or illuminate our understanding of law and justice for a long time and in surprising ways.

Before the Law, Before the Image

19

What follows is a danse macabre, an interdisciplinary pas de trois. Before time, before law, before the image. This book is about what it means to be before all these things. Ultimately, they are all just ways of being before death, again in that double sense that we can only ever be prior to our death and are yet already its loyal subject, directed towards it, driven, governed, and haunted by it. We all move to the rhythms of a danse macabre, transfixed by death as before the light that streams from an open doorway, barred from ever entering it and yet bathed in it, all at once.

1 Bruegel’s Justice Anachronic Time

I don’t think we did go blind, I think we are blind, Blind but seeing, Blind people who can see, but do not see. (Jose´ Saramago, Blindness)1

introduction Art is often thought to be about the representation of space. Alexander Nagel and Christopher Wood argue that it is no less about the representation of time.2 They identify two divergent temporalities of representation, the first a mode of absence in which art recalls and echoes earlier and originary forms; the second, a mode of presence embedded in linear time. The first shows art as a figure of transcendence, framed in terms of continuity. The second shows art as a figure of immanence, framed in terms of change. In Panofsky’s evolutionary narrative, the art of the Renaissance exceeded that of the Middle Ages in situating its subjects within the consciousness of on-rushing time, a climb towards the phenomenal peaks. In Didi-Huberman’s revisionist narrative, this marked a corresponding loss of the experience of time’s eternity, a descent from the noumenal clouds. But Nagel and Wood argue that these different temporalities are not mutually exclusive. They can and do exist in the same work of art, in dialogue, sometimes even in downright opposition, to one another.3 it succeeds some reality that it re-presents, and then late again when that re-presentation is repeated for successive recipients . . . The work of art when it is late, when it repeats, when it hesitates, when it remembers, but also when it projects a future or an ideal is ‘anachronic’.4 1 2

3

4

Jose´ Saramago, Blindness, trans. Giovanni Pontiero (New York: Harcourt Brace, 1997), p. 326. Alexander Nagel and Christopher Wood, Anachronic Renaissance (New York: Zone Books, 2010), p. 10. See Erwin Panofsky, Renaissance and Renascences in Western Art (New York: Harper & Row, 1972); Georges Didi-Huberman, Confronting Images: Questioning the Ends of a Certain History of Art (Reading, PA: Penn State University Press, 2005); see Nagel and Wood, Anachronic Renaissance, ch. 1. Nagel and Wood, Anachronic Renaissance, p. 13.

20

Introduction

21

Nagel and Wood’s arguments concerning Renaissance art strikingly echo those made by Mikhail Bakhtin concerning late medieval literature, and Dante in particular. Dante’s project, he argues, is precisely ‘to synchronize diachrony’. Everything that on earth is divided by time, here, in this verticality, coalesces into eternity, into pure simultaneous coexistence. Such divisions as time introduces – ‘earlier’ and ‘later’ have no substance here; they must be ignored in order to understand this vertical world; everything must be perceived as being within a single time, that is, in the synchrony of a single moment.5

The point is almost identical. The ‘anachronic’ structure of Renaissance art and literature juxtaposes, within one visual frame, past and present, different values or ideals, insisting not on ‘horizontal’ temporal differentiation but on a ‘vertical’ structure that sees the continuation of normative and hierarchical relationships through time. This encounter between different modes of temporal experience was and still is one of fine art’s great themes. So, too, the encounter between different legal temporalities, different ways of understanding law’s relationship to time, is one of law’s great themes and problems. Indeed, the representation of time in both is part of what makes the relationship between law and the visual arts so fruitful an intersection. Law’s eternal voice is anachronic, already present in the future, the future’s past, and the past’s future. The appeal to the past, the appeal to the future, the appeal to the present; the law which was, the law which will be, the law which must be; the image of memory, the image of destiny, the image of reality: is it not immediately obvious that these temporal discourses facilitate different discourses of justification and equally of critique? Law sits perched like a gibbet at the crossroads of time. A sense of the anachronic, of time out of joint, was a preoccupation in the work of Pieter Bruegel (the Elder), one of the great artists of the Northern Renaissance.6 So it’s about time we took a good look at his Justicia, first printed in 1559. At first glance it appears to be a spatial representation of law – a snapshot, a mis en sce`ne, or perhaps, as with some of his other works, like Children’s Games or Netherlandish Proverbs, a visual digest. But it is essentially about time. Bruegel’s image sits on the crossroads between three different views on the relationship between time, responsibility, and legal authority, revealing the hidden anachronism of law, and responding, not without criticism, to the shifting nature of the image of justice in his own time. But Bruegel was an artist not a jurist. In addition to his constant interest in the puzzles of legal time, his works convey a remarkably vivid sense of human bodies and embodiment. Law is shown not to be a mere idea or a symbolic form, but a physical practice engraved into the flesh of those who carry it out and suffer it. Justicia takes as its method art’s anachronic discourse and embodied power; and 5

6

M. M. Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, in Michael Holquist, ed., The Dialogic Imagination: Four Essays by Mikhail Bakhtin, Caryl Emerson and Michael Holquist, trans. (Austin, TX: University of Texas Press, 1981), pp. 84–259, at pp. 157–8. Pieter Bruegel (the Elder), 1525–69. Spelling varies, but from 1559, he dropped the ‘h’ from his name.

22

Bruegel’s Justice

presents as its thesis the role of both anachronic discourse and embodied practice in the law.

the three temporalities of law Towards the beginning of his career, Pieter Bruegel composed two sets of sketches for the publisher Hieronymous Cock. These were engraved by Philips Galle and published as The Seven Deadly Sins (1558) and The Virtues (1559).7 In each case, an allegorical figure is set against an archive of illustrative incidents drawn from daily life. Neither series is comparable to the masterworks of the next ten years of Bruegel’s life, before his untimely death at the age of 44. But a case can be made for the importance of Justicia, in particular, and for its interpretation in reference to those paintings.8 The scrupulous detail included in the picture provides important evidence about legal practice in the sixteenth century. This is the sense in which we might characterize it as a digest or compendium. But, more than this, Bruegel’s highly original treatment creates a complicated argument within the image about the relationship between law and justice, society, bodies, and the flux of time. Three axes organize Bruegel’s image: an x-axis, mainly horizontal; a y-axis, vertical; and a z-axis, diagonal. These organize pictorial space in different ways, but more to the point they trace three different ways of thinking about the temporality of law: the present law, the future law, and the law of the past.9 Bruegel lived during a period of radical change in the concepts of law, on the very cusp of its transformation from medieval to modern. He turns this transformation from a mere fact about legal change to a set of potential arguments about it. The anachronic and embodied sensibility central to his art was fundamental to these insights. In the following discussion, I take as my point of departure the original pen and ink drawing (Figure 1.2) rather than the Galle engraving (Figure 1.1) that was published.10 7

8

9

10

See Manfred Sellink, Bruegel: The Complete Paintings, Drawings, and Prints (Ghent: Ludion Press, 2007), pp. 134–51. For previous discussion, in addition to sources to be cited, see Arthur Klein, Graphic Worlds of Pieter Bruegel the Elder (New York: Dover, 1963); Pierre Francastel, Bruegel (Paris: Editions Hazan, 1995); Christine Hartmann, ‘Unruhe in der Stadt, De gerechtigheid von Pieter Bruegel dem A¨lteren’, in Hans-Peter Meier-Dallach, ed., 900 Jahre Zukunft (Lindenberg: Kunstverlag Fink, 1999), pp. 114–22; L. Huygenbaert, ‘La justice vue par Bruegel’, La Metropole (Antwerp, 11 June 1933), p. 1. For a recent analysis that provides a good overview of various readings, particularly drawing on Karl Heinz Burmeister, see Jose´ Marı´a Gonza´lez Garcı´a, The Eyes of Justice: Blindfolds and Farsightedness, Vision and Blindness in the Aesthetics of the Law, trans. Lawrence Schimel (Frankfurt: Vittorio Klostermann, 2017), pp. 118–24. See the discussion of temporality in art, in Louis Marin, On Representation (Stanford, CA: Stanford University Press, 2001), pp. 290–4. See also Kristeva’s description of temporal orientations: teleological time, repetitive time, and monumental or eternal time: Julia Kristeva, Alice Jardine, and Harry Blake, ‘Women’s Time’ (1981) Signs 13–35. This was also the method of the scholarly analysis by Karl Heinz Burmeister, originally in German and regrettably not yet translated into English. I have done my best to work with a Spanish translation which was done for a conference in Colombia. See ‘La Justicia de 1559 de Pieter Brueghel el Viejo’, trans. Camila Bordamalo y Jesu´s Gualdro´n (online html last accessed 2 February 2014: http://scholar

Three temporalities of law

23

figure 1.1 Pieter Bruegel the Elder, Justicia, engraved by Philips Galle, in Hieronymous

Cock, The Virtues, 1560. Engraving, 26 cm × 33.5 cm, Metropolitan Museum of Art, New York. (Image courtesy of Harris Brisbane Dick Fund, 1928 and Metropolitan Museum of Art). For an additional reproduction of this figure, please refer to the plate section.

Galle’s work heightens the monumentality of the series and enhances its sense of three-dimensional space. But the engraving process did not exactly replicate Bruegel’s drawing: it produced a mirror image of it. Turning back to the original drawing helps to clarify its narrative intentions, particularly in light of Meyer Schapiro’s observations concerning the culturally engrained practice of reading left to right.11 The x-axis maps a legal geography and records a procedural history. Bruegel’s attention to detail in the realization of the space and the distinctive features of the many people in it, generate a powerful sense of realism. Starting from the left-hand side and then running horizontally across the foreground, Bruegel

11

.googleusercontent.com/scholar?q=cache:vSbgXzLWMkkJ:scholar.google.com/&hl=e n&as_sdt=0,5), originally published in Bernd Marquardt, Bernd and Alois Niedersta¨tter, eds., Das Recht im kulturgeschichtlichen Wandel, Festschrift fu¨r Karl Heinz Burmeister zur Emeritierung (Constanza, 2002), pp. 553–601. It could be argued that Bruegel had already compensated for this inversion in the sketch he provided to Galle, but I don’t think so. One possible piece of evidence for this is the fact that his original drawing includes the label ‘Iustitia’ on the central figure, not reversed.

24

Bruegel’s Justice

figure 1.2 Pieter Bruegel the Elder, Justicia (original version, 1559). Charcoal on paper, 26 cm × 33.5 cm, Bibliothe`que Royale de Belgique, Brussels. (Credit: Bibliothe`que Royale de Belgique, Brussels/Bridgeman Images)

depicts various aspects of routine legal and administrative work. Lawyers are depicted essentially as traffickers in texts – reading, writing, exchanging, and notarizing. Bruno Latour came to the same conclusion in his ethnography of the Conseil d’Etat in 2002. He observed that paper is the raw material of the law; legal processes, by and large, move people only as an after-effect of the movement of papers.12 The most dramatic illustration of this is presented in the scene of torture at far right. This shows the forcible ingestion of large amounts of water, a practice known as ‘the water cure’. It was commonly used in France and the Low Countries until the seventeenth century. Bruegel’s depiction was probably based on a woodcut in Joost Damhoude`re’s Praxis Rerum Criminalium. Bruegel was certainly familiar with Damhoude`re’s book. It had been published only five years earlier, in Antwerp, where Bruegel lived,13 and the publisher included a quotation from it as a caption 12 13

Bruno Latour, La fabrique du droit (Paris: La De´couverte, 2002). Joost Damhoude`re, Praxis Rerum Criminalium, first edition entitled Enchiridion Rerum Criminalium (Louvain, 1534), p. 103. Online facsimile available, last accessed 2 February 2014: www.flickr.com/ photos/yalelawlibrary/sets/72157625330407523

Three temporalities of law

25

to the printed version of Justicia.14 Indeed, it seems likely that Bruegel’s image is set in Antwerp: symbols of imperial sovereignty are conspicuously absent, replaced by shields over the town hall reflecting the corporate governance of the city, and other signs of oligarchic privileges.15 The Praxis Rerum Criminalium describes the water cure in some detail: You must undress the patient, tie both hands . . . with back down and the stomach up (only shameful parts should be covered with a handkerchief or linen trousers) . . . so that the body can be stretched with instruments similar to a pinion, a wheel or a rod; place a small bridle in the mouth [here, a funnel] and pour cold water on the face and body until the body is swollen, and this with the frequency and duration that the judge and jury believe the body can withstand without great danger.16

Bruegel’s scene (Figure 1.3) scrupulously conforms to this procedure. But Damhoude`re’s text was far from original; he probably plagiarized most of it from an earlier textbook by Philip Wielant. What made Damhoude`re’s version famous were the fifty-odd woodcuts which accompanied it. In that form, it became a classic of early modern law, staying in print for well over 100 years and translated into several languages. In Damhoude`re’s illustration (Figure 1.4), a judge is on hand to observe, record, and validate the exercise of legal violence – to ‘authorize’ it and to ‘modalize’ it, as Marin says; that is, both to give it legitimacy and to ensure it is carried out.17 Comparing the two images, we can see that the lawyers buried in their books on the far right of Bruegel’s picture likewise authorize the scene. A judge, holding a hazel rod as a sign of his authority, has – of course – his face buried in a book. He consults with a clerk as to what questions should be put to the accused, while beside him two jurors or assessors argue about the validity or efficacy of the procedure.18 The same tiled floor orders both images – possibly an allusion to the parquet or parket, a level wooden floor that was already the term used to denote both the courtroom and the office of the prosecutor.19 14

15

16

17 18 19

The text reads: ‘Scopus legis est, au tut ev que punit emendet, aut poena eius caeteros meliores reddet aut sublatis malis caeteri securiores vivat’: ‘The aim of the law is either to correct him who is punished, or to improve the others by his example, or to provide that the population live more securely by removing wrongdoers.’ It is written in a different hand and a different ink than the original drawing, and seems almost certainly to have been added by Cock. Burmeister, ‘La Justicia de 1559 de Pieter Brueghel el Viejo’, pp. 8–9. Dogs and antlers both reflect patrician rights to hunting. Damhoude`re, quoted in Burmeister, and in Michael Stolleis, ed., Juristen. Ein biographisches Lexikon: Von der Antike bis zum 20. Jahrhundert (Munich: Beck, 2001), p. 152. Louis Marin, Le Portrait du Roi (Paris: Editions de Minuit, 1981), p. 3. Burmeister, ‘La Justicia de 1559 de Pieter Brueghel el Viejo’, p. 6. The evolution of the term is discussed at considerable length in Robert Jacob, Images de la Justice (Paris: Le´opold d’Or, 1994). For etymology, see Le Petit Robert (Paris: Socie´te´ du Nouveau Littre, 1967), p. 1237, which gives 1366 for the space in a salle de justice, and 1549 for the office of le ministe`re public. Other sources provide similar dates: Edmond Huguet, Dictionnaire de la langue franc¸aise du seizie`me sie`cle (Paris: Didier, 1925–73).

26

Bruegel’s Justice

figure 1.3 Pieter Bruegel, Justicia, 1559 (detail)

But for our purposes, the differences between the two images are more significant than their parallels. Bruegel has brought the scene to life in quite a different way. As opposed to Damhoude`re, he depicts not just the preparations for torture but their lived reality – he shows us the distended belly of the victim, and positions a candle to remind us that torture takes place in secret and at night.20 Yet while Damhoude`re insists on connecting lawyers’ actions to these consequences, Bruegel severs them. Damhoude`re’s woodcut emphasizes the importance of judicial authorization and oversight of the process. The magistrate is poised to write, but his attention, and those of all the legal officials around him, remains focused on the man being tortured. Damhoude`re calls this man not a victim or a prisoner or the accused, but ‘the patient’. The word implies the extent to which he is seen to be held under the auspices of the legal system. The process is conceived to be therapeutic, and lawyers are its doctors. Praxis Rerum Criminalium is thus a strange hymn to judicial responsibility for the bodies that suffer under their supervision and before their eyes. Preceding Latour by four centuries and more, Bruegel on the other hand draws our attention to the pitiless logic of legal textuality, according to which suffering bodies are collateral damage created as the by-product of signatures in documents. Bruegel 20

Some, including Burmeister, have suggested that the candle was used to heat up burning fat sometimes used in the torture. I do not find the explanation convincing both because the technique is not legitimated by Damhoude`re and for various reasons endogenous to the image.

Three temporalities of law

27

figure 1.4 Joost Damhoude`re, Enchiridion Rerum Criminalium (Louvain: Ex officina

typographica Stephani Gualtheri and Ioannis Bathenii) 1554, 1st edn. Antwerp, 1534, p. 103. (Courtesy of Rare Book Collection, Lillian Goldman Law Library, Yale Law School)

28

Bruegel’s Justice

portrays the water cure as a bureaucratic enterprise quite divorced from any legal – still less any medical – teleology. He draws out its routine administrative nature: one man is ready to deliver the next bucket of water right on cue, held back only by another officer swaggering like a bored security guard, while the two who actually carry out the torture do their job not so much with zeal as with due diligence. Law operates as a kind of mechanism or clockwork that once set in motion, continues by itself. The lawyers that populate Justicia don’t appear to be paying much attention to what is going on around them. They have eyes only for their papers, for the ‘written, imperial law’ that tells them what to do. When it comes to the physical implications of those laws, they sedulously avert their gaze. In fact, the picture unfolds its narrative sequentially in a manner akin to a comic book. Starting in the middle of the picture, moving down the left-hand side, across the bottom, and then up the right-hand edge again, Bruegel traces a praxis rerum criminalium of his own – from (1) the initial taking into custody, to (2) affidavits and (3) a preliminary legal hearing, via (4) interrogation under torture, before (5) arriving at a scene of execution. The same figures recur across these scenes. The main figure is a fair-haired young man, bare-headed, a sign of abjection that sets him apart from the officials that surround him. In Damhoude`re, too, the accused is shown bare-headed while lawyers, jurors, and judges wear hats befitting their rank.21 Take the complex courtroom scene in the bottom left corner of the drawing. Six noble jurors sit on benches around the judicial table. The judge, recognizable by his hazel staff, reads out his judgement while a clerk writes it down. Facing him, the accused is bound and downcast, holding a crucifix (a symbol of the death sentence); next to him a character witness, perhaps, pleads for mercy on his behalf. Behind the jurors, five members of the public look on, listening, arguing, scanning the court lists, motivated by their own problems and concerns.22 At lower right, the scene of torture confirms the guilt of the accused, the jurors, and the judge with his hazel staff reappearing. Finally, we travel from crime to punishment. The accused, once more clearly recognizable by the crucifix he still holds, is about to be executed. Head bowed, he awaits the blow of the executioner’s sword, while a priest, a surgeon, and again the judge, look on. From one step to another Bruegel shows us the inexorable logic of the law. The young man can do nothing about any of this. He is ushered from moment to moment, from stage to stage, caught up in its unstoppable performative machinery. Thus Bruegel traces a criminal’s progress along the assembly line of modern criminal procedure. The modernity of this process was both a reality in Bruegel’s day, and a novelty. If ‘assembly line’ seems too industrial a term, we should remember Harold Berman’s claim that legal science was the first science of the West.23 Ironically, it was the papacy that set it in motion. In 1075, Pope Gregory VII 21 22 23

E.g. Appello, in Damhoude`re, Praxis Rerum Criminalium, p. 516. Burmeister, ‘La Justicia de 1559 de Pieter Brueghel el Viejo’, pp. 5–6. Harold Berman, Law and Revolution: The Foundation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), pp. 151–64.

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29

unilaterally declared the independence of the church from all secular authority. But at the same time, he announced a strikingly positivist set of reforms and arrogated to himself a structurally independent and hierarchical legal structure invested the authority to create new laws – jus novum.24 This was a momentous departure from the idea of law as divine, eternal, customary, or traditional. The great Norman kings of the twelfth century – Roger of Sicily, Frederick Barbarossa, and in England, Henry II – were quick to seize on its potential to produce a radical new base for the expansion of monarchical power: a structure of legal regulation conceived as centralizing, autonomous, posited, and written.25 Thus was introduced the concept of ‘rule by law’, if not the rule of law. Increasingly, monarchies came to depend on a professional legal and judicial caste to write and enforce their will.26 And this was just the beginning. From the thirteenth through the fifteenth centuries, the Reception of Roman law, first in universities and then across the Holy Roman Empire, set in train a further round of centralization, textualization, bureaucratization, and regulation that touched every corner of the realm.27 Well before what happened to the church, these changes were termed Reformations. They enlarged administrative and regulatory control, and profoundly altered the relationship between monarchical authority and justice. As Gerald Strauss put it, princes began to think of themselves not as guardians of legal principles of justice, but as their authors.28 By 1553, the German jurist Justin Go¨bler could note that ‘when we say ‘law’ without adding any other word we always mean the common, written, imperial law’.29 And yet many people were troubled by the rise and rise of the legal profession. The fifteenth century saw increasing resistance, particularly in Germany, to the adoption of imperial written law at the expense of local customary law.30 A host of tracts, diatribes, and pamphlets were in circulation. They displayed a deep anxiety concerning the growing power of ‘written’ or ‘learned’ lawyers, whose essentially technical facility made them biddable allies of the centralizing ambitions of the state; ‘a guild of sovereignty-mongers’, Jacob Moser called them.31 Bruegel’s x-axis is dominated by this wholly institutional, textual, human, and procedural vision of law. The contrast with earlier representations of justice is stark. Justice is 24

25 26

27

28

29 30

31

See Dictatus Papae (1075); Brian Tierney, ed., The Middle Ages, Vol. I: Sources of Medieval History (4th edn, New York: Knopf, 1983), pp. 142–3. See Uta-Renate Blumenthal, ‘History and Tradition in Eleventh-Century Rome’ (1993) 79(2) Catholic Historical Review 185–196. Berman, Law and Revolution, pp. 19–22, 80–96, 202–3. Ibid., pp. 405–57, 440–4; see Desmond Manderson, ‘Statuta and Acts: Interpretation, Music, and Early English Legislation’ (1995) 7 Yale Journal of Law and the Humanities 317–66. See Kenneth Pennington, The Prince and the Law (Berkeley, CA: University of California Press); Emanuele Conte, ‘Roman law vs custom: Italy in the 12th and 13th centuries’, pp. 33–49. Gerald Strauss, Law, Resistance and the State: The Opposition to Roman Law in Reformation Germany (Princeton, NJ: Princeton University Press, 1986), pp. 150–1. Ibid., p. 90. See ibid.; Paul Vinogradoff, Roman Law in Medieval Europe (Oxford: Oxford University Press, 1929, 1961), pp. 139–42. In Strauss, Law, Resistance and the State, p. 142.

30

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equated, at least on an initial reading, with lawyers, and with paper, and with machinery. Torture was not, in this context, a relic of premodern superstition. On the contrary, as Bruegel shows, it was central to the modern logic of criminal procedure; according to Damhoude`re, it took place after the initial court appearance not beforehand. In 1215, the Fourth Lateran Council abolished trial by ordeal and replaced it with the ordo iudiciarius.32 From that moment on, the legal system was no longer interested in trying to summon up a manifestation of divine will. Instead, the critical problem became how to provide legally persuasive proof in the absence of the voice of God; and in that absence, the malefactor’s confession became the gold standard. Damhoude`re treats torture not as an aspect of penal law but as part of the law of evidence, ‘putting the question’, as the ‘cure’ was called, to the ‘patient’, a form of words implying both its benign purpose and its claims to empirical legitimacy.33 Within a secularizing and institutionalizing approach to law, torture was not a means of exacting divine or even sovereign retribution. It was an early version of the science of evidence.34 In contrast, the y-axis of Bruegel’s composition draws us from foreground to background, extending its temporal perspective far beyond the narrative of a single trial. What the image loses in specificity as it recedes, it gains in intensity. Across the middle of the picture Bruegel depicts several instances of corporal punishment. In a darkened cell, a man suffers the amputation of his hand with a butcher’s knife and club; then a local variant of strappado; finally, a flogging. Far into the background, the crowds of on-lookers become merely faces and finally faceless, corralled by a tide of soldiers, in a sea of executed bodies – gallows, pyres, and wheels. The single drama that unfolds in the foreground is endlessly repeated in the background. One could read the distant spectacle of violence as a memory, leading from the past up to the present day. Perhaps such a reading would suggest how little progress we have made in quelling our violent urges. But I think it is better to read the arc of the original drawing as propelling us forward in time as our eyes move across the canvas and then into the background. The soldiers and citizens are shown with their backs to us. They are moving into the distance, not coming out of it. As we approach the vanishing point of Bruegel’s image, then, we are looking into the future, where hecatombs of the dead conjure up the spectre of law as an evergrowing charnel-house. The foreground describes a formal, organized, paper trail 32

33 34

Although the Council’s decree applied directly to canon law, it had far wider implications; since trial by ordeal required the participation of a priest, the prohibition had the effect of rendering the process equally incapable of performance within civil jurisdictions. See Pennington, Prince and the Law, pp. 47, 134–5. Laurentius, also c. 1215 is already articulating law in these terms, already emphasizing law’s attributes in terms of its form not its source. Damhoude`re, Praxis Rerum Criminalium. A similar argument has been made in relation to witchcraft laws as an effort to marry old theology with new empirical science: Walter Stephens, Demon Lovers (Chicago, IL: University of Chicago Press, 2002).

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figure 1.5 Ambrogio Lorenzetti, Effects of Good Government in the City, c. 1337–8. Fresco, Palazzo Pubblico, Siena (detail). (Photo credit: De Agostini Picture Library/G. Nimatallah/Bridgeman Images)

that traces a single case and a single death. The distant view reveals a wasteland – dead bodies and carrion crows. As always in Bruegel, this futuristic scene is given a heightened reality through synaesthesia. Bruegel’s image stinks – his smoke conjures up the stench of burning flesh, his circling birds conjure up the fragrance of decomposition. Perhaps like Bruegel’s similarly grim and futuristic Triumph of Death (1562),35 the y-axis of Justicia suggests a vision of the future unclouded by Christian love or mercy. The contrast with another great image of law and order, Ambrogio Lorenzetti’s visual constitution for the city of Siena (1338–9), is instructive. Lorenzetti justifies legal power by reference to ‘The Effects of Good Government’36 – prosperity and harmony and dancing in the streets (Figure 1.5). His future is utopian. Bruegel’s, on the other hand, is dystopian. Law by law, paper upon paper, he seems to be saying, we are busily constructing a machine of unremitting violence that is driven by its own blind momentum. Klein calls the image a ‘festival of sadism’, but if so it lacks the artist’s usual droll touch; no one appears to be taking their pleasure.37 Neither does the image strike a satirical tone; no one appears to be laughing. Bruegel puts the question to the legal system, sounding a warning note about the logic – and the victims – that hide beneath its skirts. But a third or z-axis slices right across the picture, following the line of Justicia’s sword to the topmost corner. This diagonal line connects two figures that cut 35 36 37

Pieter Bruegel, Triumph of Death, oil on canvas (Madrid: Museo del Prado, 1562). Ambrogio Lorenzetti, The Effects of Good Government, fresco (Siena: Palazzo Pubblico, 1338–9). Burmeister, ‘La Justicia de 1559 de Pieter Brueghel el Viejo’.

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through the legal business going on all around them: Justicia at one end, and Golgotha at the other, recognizable by the two tiny female figures gazing up at the crucified Jesus from the foot of the cross. The figure of Christ had always been torn between Christ the source of justice, and Christ the victim of injustice; between the suffering Christ and Christ the redeemer.38 Barnouw, among others, argues that the sword of Justice, by pointing to the Cross, bestows God’s seal of approval to the legal practices documented in the drawing. This is not convincing. The Cross is situated on a high promontory. Christ’s gaze is not directed to the scene of legal violence and military order in the foreground, as if in approval. Rather he is looking the other way, at the multiple executions and endless deaths in the background, as if in pity. As opposed to the realism of the rest of Bruegel’s image, the wheels in the background (on which would have been broken, with a terrible violence, the bodies of the condemned) are planted on the end of exaggerated poles. Not only does this intensify the surreal desolation of the scene; it establishes a visual rhyme that places the instruments of torture at the same height, from the viewers’ perspective, as the cross. Christ’s gaze and position establish his affinity not with the executioners but with the executed.39 The y-axis introduces an orgy of violence that presages a terrible future; the z-axis is backward-looking. Its anachronic cut interrupts the temporal march of the picture. Above all, the central figure, pointing as she does to an historic moment that took place over a millennium earlier, reminds us of an earlier, more personal, and less systematic notion of the meaning of justice. Caught at the crossroads between past and future, Justicia triggers the memory of a legal framework that is being superseded. Her costume is telling. Resnik and Curtis describe it as ‘an odd two-pointed cap evoking fools, courtesans, or dunces’.40 This misses the point. Justice wears a heart-shaped or horned headdress of a type often worn by gentlewomen – 100 years previously.41 In 1559 – just when the idea of fashion, with its awareness of time’s transience, was starting to infect European consciousness – her clothing would have seemed quaintly or ridiculously out of date. Erasmus, writing in 1528, proves the point: Nosoponus: Just look at pictures that aren’t all that old, painted, say, sixty years ago, and see what was being worn by those of the fair sex belonging to prominent families or living at court. If a woman went out in public dressed like that now, the village idiots and street-urchins would pelt her with rotten fruit.

38 39 40

41

Jacob, Images de la Justice, pp. 59–62. ‘And Jesus said unto him, Verily I say unto thee, Today shalt thou be with me in paradise’ (Luke 23:43). Judith Resnik and Dennis Curtis, Representations of Justice (New Haven, CT: Yale University Press, 2011), p. 72. For excellent examples in French and Flemish art 1400–50, see online gallery: http://en.wikipedia.org/ wiki/1400%E2%80%931500_in_European_fashion#Style_gallery_.E2.80.93_Northern_Europe_1400s .E2.80.931440s (last accessed 2 February 2014).

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Hypologus: Only too true. Who would put up now with a decent married woman wearing those huge horns and pyramids and cones sticking out from the top of the head . . . ?42

There we have it. Justicia stands for an antique ideology of law surrounded by trappings of the modern law that was superseding it – a statement both about and against legal fashion. Bruegel’s Justice is avowedly anachronistic. The representations of the cross and the outmoded figure of justice, both alien to the world around them, contest the temporality and trajectory of modern legal ideas. The background, meanwhile, creates a landscape of ghoulish horror that contrasts with the objective neutrality of the foreground. Bruegel sees law as the site of a tension and dialogue between these three distinct temporal modes: the present in terms of institutional logic, the future in terms of the consequences of our practices, and the past in terms of Christian ideals and principles. He presents law at the crossroads of these active but incommensurable temporalities. As Peter Goodrich discusses, the representation of law as Janus-faced, looking both back into the past and forwards into the future, was a powerful theme in the iconology of legal emblems.43 In many of these images, law comes across as selfsatisfied, as if it was not in any way paradoxical to look both ways. But Bruegel does not see law’s temporal ambivalence as merely an anodyne way of legitimizing law’s power by costuming it in the borrowed robes of the past. On the contrary, he sees these elements of legal justification and reflection as a highly problematic site of discursive struggle. That law occupies a temporally ambivalent position is not in any way an abstruse notion. We experience this awkward tension between temporal registers every day of our lives.44 Of course, we live from day to day, like the lawyers in Bruegel’s illustration. But we plan for the future, too. And, equally, a picture or photograph or a fragment of an old song can transport us back in time, recalling for us a friend we had forgotten, a promise made or broken, a hope or a regret. We suddenly remember who we were, or who we wanted to become. Contemporary social media seems in some ways to have intensified this melancholy feeling that the present has already slipped away from us, experienced only in memory. We continually negotiate between these different temporal perspectives as we strive on a daily basis to justify, adjust, or refashion our existence. Bruegel shows that law is no less dependent on all three tenses in order to sustain arguments capable of grounding its legitimacy, its efficacy, and its very existence. Same-sex 42

43

44

Desiderius Erasmus, The Ciceronian (1528) in A. H. T. Levi, ed., Collected Works of Erasmus, Vol. 6: Literary and Educational Writings (Toronto: University of Toronto Press, 1986), p. 381. See also Nagel and Wood, Anachronic Renaissance, p. 92, and generally, pp. 88–92. Peter Goodrich, Legal Emblems and the Art of Law (New York: Cambridge University Press, 2014), pp. xix–xxi. See Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, pp. 84–258.

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marriage, immigration, human rights, security – arguments about law are always arguments about our relationship to time: about who we are, what we are becoming, and where we came from. Law is always at the crossroads between the machine, the charnel house, and the voice of conscience.

metastases of sight The work of Damhoude`re betrays some of this anachronistic quality. The text itself is, of course, highly technical, derived from the Constitutio Criminalis Carolina Germanica of 1532. But the woodcuts speak a different language. By and large they offer lurid depictions of substantive crimes – fornication, incest, gambling, and the like. Damhoude`re’s images hearken back to the illustrated manuscripts of the Sachsenspiegel, two or three hundred years earlier.45 Damhoude`re, like Bruegel, finds himself caught between two worlds. His legal material is thoroughly modern but his images return to a much earlier folkloric legal vernacular in which the legitimation of law took pre-literate and populist forms. Damhoude`re transmits modern law but dresses it in an older and more familiar aesthetic rhetoric. New wine in old bottles – or perhaps, like D. W. (Donald) Winnicott’s46 teddy bears, a ‘transitional object’ that alleviates the child’s anxiety about the flux of time by allowing him or her to invest their emotions in a reassuring presence.47 The possibility of applying the notion of transitional objects to the broader field of culture has not gone unremarked.48 Indeed, Winnicott and his followers recognized more astutely than Freud the role of aesthetics in the constitution of the social world. This intermediate area of experience, unchallenged in respect of its belonging to inner or external (shared) reality, constitutes the greater part of the infant’s experience, and throughout life is retained in the intense experiencing that belongs to the arts and to religion and to imaginative living, and to creative scientific work.49

Is that the function of Bruegel’s image, too? Does the figure of Justicia, in short, recollect the past in order to condemn or conversely to accommodate the modernity of 45 46

47 48

49

Illuminated manuscripts exist in Heidelberg, Oldenburg, Dresden, and Wolfenbu¨ttel (c. 1290–1360). D. W. Winnicott, ‘Transitional Objects and Transitional Phenomena – A Study of the First Not-Me Possession’ (153) 34 International Journal of Psycho-Analysis 89–97; Donald Woods Winnicott, Playing and Reality (London: Routledge, 1971), ch. 1. For further discussion, see also F. Busch, ‘Dimensions of the First Transitional Object’ (1974) 29 Psychoanalytic Study of the Child 215–22; Donald Woods Winnicott, Reading Winnicott, Lesley Caldwell and Angela Joyce, eds. (Abingdon, UK: Routledge, 2011), ch. 5, pp. 99–125 (containing the slightly revised 1971 version of the original 1951 paper). Winnicott, Reading Winnicott, pp. 101–5. Arnold Modell, ‘The Transitional Object and the Creative Act’ (1970) 39(2) Psychoanalytic Quarterly 240; Peter L. Rudnytsky, ed., Transitional Objects and Potential Spaces: Literary Uses of D. W. Winnicott (New York: Columbia University Press, 1993). Winnicott, Reading Winnicott, p. 115.

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law? To answer this question, we need to consider in greater detail the puzzle of the blindfold worn by the figure of Justice. There is nothing antique or old-fashioned about it. On the contrary, the blindfold is the most modern aspect of her clothing – an anachronism within a figure that is already anachronistic. The blindfold had only very recently entered the iconography of western law. In 1494, the noted jurist Sebastian Brant50 published a collection of satirical poems called Das Narrenschiff or The Ship of Fools, and commissioned several artists to illustrate it with a series of woodcuts.51 Verse 71 is a crude satire, excoriating the corruption and cynicism of the legal profession – a popular subject at the time, as I have already noted, which on this occasion appeared in print only a few months before the establishment of the Rechtskammergericht as a central court of legal appeal across the Holy Roman Empire. It concludes: He’ll get much raillery uncouth, Who fights like children tooth for tooth And thinks that he can blind the truth.52

But the illustration, which Panofsky attributed to Albrecht Du¨rer, shows not truth but justice being blindfolded by a fool in a three-cornered hat. The artist emphasizes the bad faith of lawyers, actively disabling justice the better to achieve their own ends. Through the window an urban vista recalls Lorenzetti’s Siena.53 On this occasion, however, the city is empty of humanity, and the law does its business behind closed doors. The fool prepares Justice in a private room, like an actor being dressed up for opening night. If Justice is acquiescent, it looks like a seduction; if she is not, it’s an abduction. The appearance of this trope is not surprising. What is astounding is the rapidity with which it lost its satirical edge. During the sixteenth century, official statues of 50

51 52

53

See Sebastian Brant, Das Narrenschiff (Basel, 1494) in Edwin Zeydel, ed. and trans., The Ship of Fools (New York: Columbia University Press, 1944), pp. 6–7. The identification of this image as the earliest representation of blindfolded justice in western art is attributed to Ernst von Moeller, ‘Die Augenbinde der Justitia’ (1905) 4 Zeitschrift fur christliche Kunst 108–22; 5 Zeitschrift fur christliche Kunst 142–52. See the discussion in Gonza´lez Garcı´a, Eyes of Justice, pp. 106–14. See also Sebastian Brant, The Ship of Fools, trans. William Gillis (London: Folio Society, 1971). ‘Quarrelling and Going to Court’, in Brant, Ship of Fools, p. 236. An alternative translation: ‘Very often he feels the heckler’s barbs / Who always quarrels like a child / And wants to make the truth blind’ (Leo Unglaub). Ambrogio Lorenzetti, Allegory of Good Government, Allegory of Bad Government, Effects of Bad Government in the City, Effects of Good Government in the City and Effects of Good Government in the Country (Siena: Palazzo Pubblico), 1338–9. See Richard Mohr, ‘The Christian Origins of Secularism and the Rule of Law’, in Nassein Hosen and Richard Mohr, eds., Law and Religion in Public Life (Abingdon, UK: Ashgate, 2011), pp. 44–61; Quentin Skinner, ‘Ambrogio Lorenzetti’s Buon Governo Frescoes: Two Old Questions, Two New Answers’ (1999) 62 Journal of the Warburg and Courtauld Institutes 1–28; Quentin Skinner, ‘Ambrogio Lorenzetti: The Artist As Political Philosopher’ (1986) 72 Proceedings of the British Academy 1–56; Nicolai Rubinstein, ‘Political Ideas in Sienese Art: The Frescoes by Ambrogio Lorenzetti and Taddeo di Bartolo in the Palazzo Pubblico’ (1958) 21 Journal of the Warburg and Courtauld Institutes 179–207; Cary Nederman, ‘The Meaning of “Aristotelianism” in Medieval Moral and Political Thought’ (1996) 57 Journal of the History of Ideas 563–85; Maria Luisa Meoni, Utopia and Reality in Ambrogio Lorenzetti’s Good Government (Florence: Edizioni IFI, 2005).

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blind justice – played straight, as it were – start to pop up, although in other contexts blindness continues to operate as a critique.54 Peter Goodrich provides a parallel instance drawn from the great book of emblems by Barthelemy Aneau (1554), in which Justice is shown sighted, and the lawyers are blind.55 The first edition of Ce´sare Ripa’s Iconologia (1593) notes that ‘in the opinion of Plato, nothing escapes the eyes of Justice . . . and by the force of her gaze she penetrates to the base of all things’.56 Ten years later, the earliest illustrated editions represent several aspects of justice, but only one of them, called ‘worldly’ or ‘strict’ justice, was depicted blindfolded.57 But within a very short time the madonna bandita had become a ubiquitous symbol of abstraction and neutrality, and a generic statement of the judiciary’s commitment to maintain a formal ignorance of personal circumstances. Indeed the earliest instances of this ethical transvaluation can be found only a few years after Brant.58 As the inscription on Tu¨bingen Town Hall explains, ‘My eyes are bound so that rich and poor appear the same’.59 In little more than a century, something astonishing seems to have befallen the legal imaginary.60 The history of the image of blind justice draws our attention to a complete inversion of established ideas, and pinpoints it in time. As Martin Jay notes, images of blind justice first emerge and proliferate in the public spaces of northern Europe, where Protestantism bit hardest and where the processes of modernization in law and the public sphere were most advanced.61 Protestantism’s distrust of the power of emotion, feeling, and vision, proved to be thoroughly compatible with the arid and analytic sensibilities of modern law. Indeed, the notion of justice as blind was ideally placed to affirm Protestantism’s intense distrust of the seductive power of images.62 Blind justice most strongly recalls medieval statues of Synagoga. Aged and blindfolded, she signified Judaism’s stubborn refusal to open its eyes to the revelation of the New Testament.63 Synagoga is old where Ecclesia, the Church, is young, stooped where she is upright, blind where she sees all, pedantic where she is compassionate, law to her equity.64 But in the years following the Reformation, blind synagogue – shorn of its anti-Semitic overtones – found a second life. With the 54

55 56

57 58 59 60 61

62 63 64

Surveys of this historical moment are to be found in Resnik and Curtis, Representing Justice, pp. 62–75, and – with a truly impressive exhaustiveness – in Gonza´lez Garcı´a, Eyes of Justice, pp. 101–93. Barthelemy Aneau 1554 in Goodrich, Legal Emblems, p. 125. Cesare Ripa, Iconologia, 2 vols. (New York: Dover, 1976) [Padua, 1611 and Paris 1644; first published Rome, 1593 and first illustrated edition Rome, 1603]. Ripa, Iconologia. Gonza´lez Garcı´a, Eyes of Justice, pp. 124–31ff. Resnik and Curtis, Representations of Justice, p. 75. Jacques De Ville, ‘Mythology and the Images of Justice’ (2011) 23 Law and Literature 324. Martin Jay, ‘Must Justice Be Blind?’ in Costas Douzinas and Lynda Nead, eds., Law and the Image (Chicago, IL: University of Chicago Press, 1999), ch. 1, p. 24. See Hans Belting, Likeness and Presence (Chicago, IL: University of Chicago Press, 1997). Jacob, Images de la Justice, pp. 223–7. Wolfgang Seiferth, Synagogue and Church in the Middle Ages: Two Symbols in Art and Literature, trans. L. Chadeayne and P. Gottwald (New York: Ungar, 1970).

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separation of church and state, the abstraction, the book-bound dogmatism, the pedantic legalism of Synagoga – in earlier times thought to be atavistic – came instead to constitute a secular legal value. The blindfold articulated a new relationship between law and church. Previously, it had been governed by a logic of progress and reconciliation (the Christian Gospel completing the Jewish law), or by a logic of opposition and substitution (the Christian Gospel defeating the Jewish law). Now it was governed by a logic of separation. In 1529 Lucas Cranach painted Law and Gospel in consultation with none other than Martin Luther himself. It clearly illustrates this logic; law and gospel are each represented as supreme within their separate realms. And in that context, the blindfold came to represent not a defect to be cured, but a temptation (towards visual sensuality) to be resisted.65 As Goodrich puts it, in the post-Reformation world, the blindfold primarily ‘functions to separate and exclude’.66 Synagoga, that medieval dinosaur, did not become extinct at all. It evolved into a modern bird, and took to the skies. At the same time, the transcendent authority traditionally accorded to the discourse of sight and light did not simply disappear. It too, metastasized, and nothing better captures the profound legal transition that Bruegel was living through, than this visual journey.67 Here, in miniature, it is possible to see how the instrumental approach to law which Bruegel documents was implicated in a dramatic shift in the whole exercise of power, and specifically corresponded to a changing understanding in the relationship between law and justice. Albrecht Du¨rer’s Sol Justiciae (Figure 1.6) condenses the whole premodern legal tradition into a single image, represented here through tropes of light and sun that prefigure a divine and transcendent visibility.68 The peculiar posture, seated and with legs crossed, his gaze directed down and away, is a familiar figure of judgement,69 whose origins go back to Roman times; the bare knees a sign of humility and mercy. Panofsky notes that a similar image of a figure seated cross-legged on a lion can be found in the Doge’s Palace in Venice.70 Du¨rer’s sol unites Christ and Apollo, sun, god, and judge, in 65

66 67 68 69 70

Jacob, Images de la Justice, concludes as follows: ‘Le Moyen Age sentait la justice proche, familie`re. Il ne la voyait inquie´tante qu’en ce qu’elle incorporait la proximite´ du chaˆtiment et du salut, dont chacun devait se pe´ne´trer. L’aˆge classique e´difie une justice distante, inspirant la crainte parce qu’elle se veut autre . . . Le Moyen Age cherchait les fondements symboliques de la justice dans l’e´change des regards croises de tous ses acteurs, les images leur donnant l’impulsion et le relais. L’aˆge classique les e´teint au profit d’une justice impe´ne´trable’ (p. 245) (author’s translation: ‘The Middle Ages felt justice close, familiar. It only saw it as disturbing in that it incorporated the proximity of punishment and salvation, each of which penetrated the other. The classical age builds a distant justice, inspiring fear because it wants itself to be otherwise. The Middle Ages sought the symbolic foundations of justice in an exchange of glances amongst all its actors, images providing them with their impetus and growth. This, the classical age extinguishes in favour of an impenetrable justice’). Goodrich, Legal Emblems, p. 140. Ibid., pp. 89–124. See Gonza´lez Garcı´a, Eyes of Justice, pp. 262–9. ‘The Omnipresent Eye of the Judge – Juridical Evidence in Albrecht Du¨rer’ (2008) 14 Parallax 42–54. Erwin Panofsky, Meaning in the Visual Arts, Irving Lavin, ed. (Princeton, NJ: Princeton University Press, 1995), p. 262.

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figure 1.6 Albrecht Du¨rer, Sol Justitiae, c. 1499. Engraving, 10.7 cm × 7.7 cm, National Gallery of Victoria, Melbourne. (Courtesy of National Gallery of Victoria, Melbourne, Felton Bequest, 1956 (3493–4)

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one persona. This nuclear fusion had been accomplished as early as the third century AD, the sun’s cosmological centrality to the ancient world transformed into a moral significance.71 The lion indicates the sun, the summer solstice by reference to the zodiacal sign of Leo, while the circlet around the head combines Christ’s halo and Apollo’s corona.72 The blazing fire that emanates from him emits a fierce light that exposes the truth. It illuminates, sears, and burns. But his gaze is profoundly melancholy. In the Stanza della Signatura in the Vatican apartments, Raphael’s Justice (1511) holds a similar pose. She too is seated in judgement, eyes looking down and away, sword held high in her right hand, scales low in her left. But her mood is contemplative, otherworldly. Here, the sun of justice is wide-eyed and haunted. In the familiar language of the Bible, ‘And said to the judges, Take heed what ye do: for ye judge not for man, but for the Lord, who is with you in the judgment’ (II Chronicles 19:6). The judge’s principal obligation is not to the king or the law but to God, whose justice he does and to whose judgement he was in turn subject. The message Du¨rer conveys is that judgement is a duty, a burden – perhaps even a curse. The lion, with all its coiled power, looks straight at us, but the sun of justice averts his gaze in sadness or disappointment. Sol Justiciae discloses the intimate and affective bond between the act of judgement and the weight of justice, between the judge’s earthly office and his accountability to the divine. It encapsulates centuries of iconography just as The Ship of Fools ushers in, albeit unwittingly, a radically opposed modern image – the former wide-eyed, emotional, allseeing; the latter blind, clinical, unfeeling. Under the pressures of legal modernity noted above, the all-seeing light of judgement, together with its emotional power and its cosmic resonances, did not disappear. As Michael Stolleis puts it, it ‘migrated to the prince as the secular governor of God. His “omniscience”, as fictitious as it was, became the crucial basis of legitimation of the just content of laws.’73 The sovereign prince now laid claim to the all-seeing eye and the divine rays that illuminate the world.74 These reforged symbols were rendered immeasurably more powerful by the reflected light of their divine predecessors. Gilt by association. The afterlife of Sol Justiciae itself presents a perfect example of the efficacy of visual metastasis to evidence the work of time in law. The 1547 Frankfurt Calendar (Figure 1.7) shows one of many sixteenth-century copies. Its indebtedness to Bruegel’s original is obvious. But Panofsky’s dismissal of it as a mere copy of ‘a sun god deprived of his judicial significance’ radically underestimates the iconological shift it reveals.75 Far more telling than the similarities between the two illustrations 71 72 73 74

75

Ibid., pp. 259–60. See also Du¨rer’s Apollo (1502); and Resurrection (1497). Michael Stolleis, The Eye of the Law (Abingdon, UK: Birkbeck Law Press, 2004), p. 36. Examples discussed in Goodrich, Legal Emblems, include emblems by Wither 1635, Bateman 1569, Presyler, and others. See also Zincgreff 1635, Bruck 1618, Sebastian de Covorrubius Orozco, 1613, Aneau 1565, all in Arthur Henkel and Albrecht Scho¨ne, Emblemata (Nachdruck: Metzler Verlag, 1967). Panofsky, Meaning in the Visual Arts, p. 265 alludes to it in a footnote (n. 84), but does not appear to fully appreciate its implications.

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figure 1.7 From the Frankfurt Calendar, 1547. (Photo credit: © Claire Atteia 2017 and Australian National University)

are the differences. Fifty years after Du¨rer’s original, the sun of justice has metamorphosed into the sovereign – instead of a sword, a sceptre; instead of scales of justice, an orb. In Du¨rer’s Salvator Mundi, Christ holds the orb of the earth; fifty years later it has been stolen by the sovereign. Sovereignty appropriated and embodied the totalitarian potential of the discourse of sunlight, just as it seized the whole theological

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structure of the Middle Ages.76 Now the sovereign interpellates us with his gaze, while the lion looks the other way. The figure of sovereignty literally makes a spectacle of himself, his legs wide apart, his eyes confronting ours. The naked crosslegged humility of the Sol has been replaced by an aggressively phallic arrogance. The sun too, or at least a star, has gravitated from head to groin, from mind to will. The right to decide has ceased to be a burden and become instead a pleasure. Solar power has turned from a righteous agent of the divine into a rightful possession of the state; the difference between righteous and rightful is the difference between an action which is substantively just and an action which is formally, procedurally, institutionally irreproachable. The Frankfurt Calendar takes an image that captures the irresistible force of transcendent justice, and transforms it into an image that manifests the irresistible force of immanent laws. The blindfold which covers the eyes of justice prevents it from competing with the magisterial visibility of the state.

bruegel’s blindfold Yet this only highlights the ambiguity of Bruegel’s blindfold. Fifty years earlier and it would undoubtedly have been a critique. Fifty years later and it would undoubtedly have been a virtue. In 1559, Bruegel’s image hovers right on the cusp of this revolution in thinking about law, justice, and the state. Many previous commentators have treated Bruegel’s portrayal of the virtues as thoroughly conventional. Torture and punishment, according to Walter Gibson, were simply ‘accepted by Bruegel’s contemporaries as necessary to maintain public law and order’.77 Stridbeck and Barnouw likewise see as unproblematic the legal violence that infuses Bruegel’s portrayal.78 They emphasize Bruegel’s largely conventional depictions of the other virtues. These readings miss the point. In 1559, justice’s blindfold was neither conventional nor unproblematic. Equally, the emergence of modern law had not gone unchallenged. Indeed, the expansion of imperial and formal law into the area of criminal responsibility was a major site of social resistance during the sixteenth century.79 So the connection Bruegel draws between the figure of justice and the machinery of criminal law dramatizes a highly contested space. The very excess of violent legal punishment in the image can hardly be said to record ‘everyday life’. With the outbreak of widespread resistance in Flanders to Spanish rule, not to mention the violent struggle between Protestantism and Catholicism across 76

77 78

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See Ernst Kantorowicz, The King’s Two Bodies (Princeton, NJ: Princeton University Press, 1958); Panofsky, Meaning in the Visual Arts, pp. 157ff., 382ff. Perhaps it is worth noting that, after the Copernican revolution, the status and meaning of the sun itself had changed in important ways. Walter Gibson, Bruegel (New York: Oxford University Press, 1977), p. 62. See Edward Snow, Inside Brueghel: The Play of Images in Children’s Games (New York: North Point Press, 1997), pp. 60–4; Adriaan Jacob Barnouw, The Fantasy of Pieter Brueghel (New York: Lear, 1947); C. G. Stridbeck, ‘“Combat between Carnival and Lent” by Pieter Bruegel the Elder: An Allegorical Picture of the Sixteenth Century’ (1956) 19(1–2) Journal of the Warburg and Courtauld Institutes 96–109. Strauss, Law, Resistance, and the State, pp. 124–6.

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Europe, the political character of some of Bruegel’s interventions over the last ten years of his life were necessarily veiled.80 But in Justicia, the prominent position of soldiers as enforcers of the law is surely a pointed allusion to the politics of occupation. To fully appreciate the meaning of Bruegel’s blindfold, we need to consider two general features of his work. The first is his treatment of crowds. His paintings reflect the steadily urbanizing life of northern Europe, lived increasingly in close proximity to many strangers. He captures the noise, density, and diversity of social life, not one story but one hundred jostling for recognition on the canvas.81 Several of his works form a kind of illustrated ethnography of contemporary social life.82 Children’s Games (1560) is so precise that historians have identified no less than eighty specific games in it; for many of them, Bruegel is our only evidence. In Proverbs, and in some of the peasant pictures, the canvas teems with catalogues of folk practices.83 Justicia, too, provides a scrupulous compilation of contemporary forms of legal violence. This accumulation of social details, particularly about the lives of peasants and the poor, bears comparison with Bruegel’s close contemporary, Franc¸ois Rabelais.84 Rabelais was also a devotee of the list, piling up instance upon instance, particular upon particular – children’s games, anatomical metaphors, cooks, fools, bodily insults, and so on. As Mikhail Bakhtin argues, this observational extravagance demystifies the socially hegemonic sentimentality of earlier literary genres.85 Rabelais constantly contrasts myth and real life, both by paying attention to the lives of common folk, and in his commitment to empiricism. To the romantic ideal of love, Rabelais juxtaposes copulation and farting. To the romantic ideal of religion, Rabelais juxtaposes corrupt and gluttonous friars. To the romantic ideal of war, Rabelais juxtaposes detailed descriptions of death, pain, and mutilation. At each point, Rabelais’s scatological humour and forensic irony unmasks false idealizations and discloses the real experiences hidden by them.86 Many an epic might say, ‘And 80

81

82 83

84

85 86

For the orthodox position, see Gibson, Bruegel, e.g. pp. 85–6; for the political position, see e.g. Ethan Matt Kavaler, Pieter Bruegel – Parables of Order and Enterprise (Cambridge: Cambridge University Press, 1999). See e.g. Pieter Bruegel, Massacre of the Innocents, oil on canvas (Vienna: Kunsthistorisches Museum, 1565–7). Pieter Bruegel, The Procession to Calvary, oil on canvas (Vienna: Kunsthistorisches Museum, 1564); Conversion of Paul, oil on canvas (Vienna: Kunsthistorisches Museum, 1567); Suicide of Saul, oil on canvas (Vienna: Kunsthistorisches Museum, 1562); Battle between Carnival and Lent, oil on canvas (Vienna: Kunsthistorisches Museum, 1559); The Peasant Wedding, oil on canvas (Vienna: Kunsthistorisches Museum); The Peasant Dance, oil on canvas (Vienna: Kunsthistorisches Museum, 1568). Svetlana Alpers, ‘Bruegel’s Festive Peasants’ (1972–3) 6 Simiolus 163–76. Pieter Bruegel, Children’s Games, oil on canvas (Vienna: Kunsthistorisches Museum, 1560); Netherlandish Proverbs, oil on canvas (Berlin: Gema¨ldegalerie, 1559). Franc¸ois Rabelais, 1494–1553. Alpers also compares Bruegel to Rabelais, but understates the moral implications of this social realism. M. M. Bakhtin, Rabelais and His World (Bloomington, IN: Indiana University Press [1965] 1984). Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, pp. 168–72. See also Bakhtin, Rabelais. There is something to be said for connecting Rabelais’s potty mouth with that of Martin Luther, and

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I deliver thee, said the monk, to all the devils in hell; then at one stroke he cut off his head.’ But Rabelais, doctor of medical science, makes sure we understand what that really looks like: [C]utting his cranium above the petrous bone, removing both the bones of the sinciput as well as the sagittal suture, together with the greater part of the coronal bone; by doing so he sliced through both meninges and opened up deeply the two posterior ventricle-cavities of the brain: and so his cranium remained hanging down over his shoulders at the back from the membranes of the pericranium in the form of a doctoral bonnet, black above, red within.87

Rabelais was a very early prosecutor of the ‘disenchantment of the world’.88 By observation and juxtaposition he opens up a gap between our beliefs about the world, and what actually happens in it. At this point, Bakhtin insists, Rabelais’s empiricism takes on an ethical significance.89 With a virile repertoire of high irony and low humour, Rabelais invites his readers to see the life around them more honestly and judge their own illusions more sceptically. Thus was born the modern novel. Bruegel’s paintings appear at the same time, and with the same combination of social realism, humour, and irony. In true Rabelaisian fashion, Bruegel’s depiction of legal violence similarly undercuts the romantic ideal of justice. He juxtaposes it against what people actually do in its name, and how, and where. Both moral/ conservative and political/radical readings of his work are too reductionist.90 They underestimate the carnivalesque sweep91 of his diverse social realism. Like Rabelais, his task is to separate objects and things from the hierarchies and norms that governed the traditional understanding of them, thereby ‘destroying the established hierarchy of values’, and reattach them to phenomena in an actual life world experienced in time and space.92 One of the most profound shocks delivered by Bruegel’s image is his insistence that justice is not produced by a single transcendent authority – an ideal, a king, or a god – nor conceived in terms of a personal relationship between man and god, nor realized in a single, climactic moment of judgement. Instead, Bruegel embeds justice in a social context and in multiple, everyday social practices and institutions. He

87

88 89 90

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in the process connecting the reformations of religion and literature; I am not sure who has made the argument. Franc¸ois Rabelais, Gargantua and Pantagruel, trans. M. A. Screech (London: Penguin [1532] 2006), p. 340. Max Weber, ‘Some Categories of Interpretive Sociology’, in (1981) 22(2) Sociological Quarterly 151–80. Bakhtin, ‘Epic and Novel’, in Holquist, ed., Dialogic Imagination, p. 7. The point is again well made, and by reference to Bakhtin’s treatment of carnival, in Svetlana Alpers, ‘Taking Pictures Seriously’ (1978–9) 10 Simiolus 46–50. Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’; Rabelais; see also Shanti Elliot, ‘Carnival and Dialogue in Bakhtin’s Poetics of Folklore’ (1999) Folklore Forum 30; Bruegel, Battle between Carnival and Lent. Bakhtin, ‘Forms of Time and of the Chronotope’, p. 177.

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implicates all of us in daily gestures of complicity and involvement. Bruegel seems to have captured here, for the very first time, a key feature of modern law. He shows how legal regulation expanded exponentially by being diffused across multiple actors and institutions.93 A good 350 years ahead of the legal realism of Pound, Llewellyn, or Olivecrona,94 he reveals justice to be mundane in every sense of the world. Yet as one’s eyes move back into the distance, collective action gives way to undifferentiated crowds. The legal system becomes an ornately choreographed performance intended for mass consumption. Bruegel therefore portends another key feature in the development of modern law – the rhetorical power of the spectacle of legal violence. In both these respects, the mundane and the spectacular, what concerns Bruegel is the embodiment of law. Typically the legal system is thought of as something which is done by ‘them’ – those others who have the power; not us – or done to ‘them’ – those others who are its victims; not us. But Bruegel confronts those fatuous assumptions. Jurisdiction means the place from where law speaks.95 And Bruegel shows how this place is our flesh – the flesh that is subject to it, the flesh that imposes, performs, and participates in it, and the flesh that gives rise and gives meaning to its texts and institutions.96 As Kafka was to suggest, the law is engraved on our bodies97 – a material pact that binds together those who do it, suffer it, and witness it. The second general feature of Bruegel’s work lies in his approach to history. Svetlana Alpers insists that the ‘art of describing’ gave a different character to northern than to the southern art. Dutch art – from Van Eyck to Bruegel to the golden age of the seventeenth century – is characterized by a flat surface, by a multitude of details at different levels of scale, and by the lack of single-point perspective. The map, she argues, makes a better metaphor for its reality effect than 93

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96 97

See Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (Abingdon, UK: Birkbeck Law Press, 2007); E. W. Mathes and A. Kahn, ‘Diffusion of Responsibility and Extreme Behavior’ (1975) 31 Journal of Personality and Social Psychology 881–6; M. A. Wallach, N. Kogan, and D. J. Bem, ‘Diffusion of Responsibility and Level of Risk Taking in Groups’ (1964) 68 Journal of Abnormal and Social Psychology 263–74; Gustave Le Bon, The Crowd: A Study of the Popular Mind (London, Benn: 1947 [1897]). Karl Llewellyn, Jurisprudence: Realism in Theory and Practice (Chicago, IL: University of Chicago Press, 1962); Karl Llewellyn, ‘A Realistic Jurisprudence – The Next Step’ (1930) Columbia Law Review 431–65; William Twining, Karl Llewellyn and the Realist Movement (Cambridge: Cambridge University Press, 2012); Roscoe Pound, ‘The Call for a Realist Jurisprudence’ (1931) 44 Harvard Law Review 697–711; Jes Bjarup, ‘The Philosophy of Scandinavian Legal Realism’ (2005) 18(1) Ratio Juris 1–15; Karl Olivecrona, ‘Realism and Idealism: Some Reflections on the Cardinal Point in Legal Philosophy’ (1951) 26 New York University Law Review 120; Karl Olivecrona, Law As Fact (Copenhagen: Munksgaard, 1939). See esp. Shaunnagh Dorsett and Shaun McVeigh, ‘Questions of Jurisdiction’, in Shaun McVeigh, ed., Jurisprudence of Jurisdiction (Abingdon, UK: Birkbeck Law Press 2007), pp. 3–18; Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Abingdon, UK: Birkbeck Law Press, 2012), pp. 4–5. Peter Rush, ‘An Altered Jurisdiction: Corporeal Traces of Law’ (1997) 6 Griffith Law Review 144–68. Franz Kafka, ‘In the Penal Colony’ (1919) in Franz Kafka, Collected Stories, trans. Willa and Edwin Muir (New York: Penguin, 1993), pp. 129–43.

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a window.98 This is a powerful repudiation of the normative and iconographical tendencies of a certain orthodox art criticism. Where she does not go far enough, however, is in recognizing the elements of social critique immanent in this strategy. Bruegel epitomizes Alpers’s claim for the rejection of an external authorial perspective that frames and organizes the meaning of an image, from a single point of view, instead ‘positing the world as seen by those within it’ rather than ‘positing the world as seen by those viewing it’.99 Landscape with the Fall of Icarus, Procession to Calvary, or The Conversion of Paul, depart radically from conventional representations of such scenes.100 In each case, the central event is lost amidst the riot of everyday activity that dominates the canvas. Indeed, the viewer is hard pressed to locate the stories they depict. The fall of Icarus makes only the tiniest splash in a vast and indifferent sea. Christ carries his cross, largely unnoticed by the hundreds of people milling around him. The riot of empirical detail in these pictures, and the way that it situates the viewer within rather than outside this rich confusion, suggests that the lack of an organized perspective – in Alpers’s art-historical sense – is not just a characteristic of Bruegel’s work, but its point. He encourages us to hunt out the important moment that those who were there, manifestly failed to notice. He is the painter, above all, of that failure. So it could be that the real subject of Justicia is in fact the Crucifixion; another world-historical event which at the time seemed of only marginal importance. Jesus was one execution among many; one incident in a long campaign of occupation and subjugation. Meanwhile, men and women went about their business, absorbed in the here and now. The difference between what matters to us now and what will be seen to have mattered in retrospect – in the temporality of the futur ante´rieur, as Derrida puts it101 – is one of Bruegel’s obsessions. The crucifixion is of course the locus classicus of this anachronic temporality. It destabilizes our relationship to linear time since its meaning so radically changes, from desecration to purification, from tragedy to salvation, when it is viewed from the position of a future time regarding itself. What does this have to do with the meaning of the blindfold? Bruegel highlights our temporal lack of perspicacity, our obliviousness to the wider significance of what is going on around us. The blindness of Justicia is therefore not a metaphor, but a metonym.102 She represents the blindness of all those around her. The figures in the picture pay no attention to the Virtue in their midst.103 They are blind equally to the future and the past. Their automatism or mundane self-absorption is again typical of many of Bruegel’s 98

99 100

101 102

103

Svetlana Alpers, The Art of Describing (Chicago, IL: University of Chicago Press, 1983), esp. introduction and chs. 1–2. Ibid., p. 60. Pieter Bruegel, The Procession to Calvary; Conversion of Paul; Landscape with the Fall of Icarus, oil on canvas (possibly copy of lost original) (Brussels: Royal Museums of Fine Arts of Belgium, 1554–5). Jacques Derrida, ‘Declarations of Independence’ (1986) 7(1) New Political Science 7–15. See also a remark on this point by I. Bennett Capers, ‘Blind Justice’ (2012) 24 Yale Journal of Law and Humanities 179, p. 189. Ibid.

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paintings. We see it here in the disinterested diligence of the torturers and guards, occupied by the minutiae of their own activities. The lawyers and judges– with the exception of the magistrate making eye contact with the witness – are likewise absorbed only in their writing. Bruegel’s technique of piling up details effectively conveys this myopic world. Bruegel’s dense treatment of space creates confusion rather than order, immersing us in multiple elements that compete for our attention. Like Icarus or Saul, Justicia invites viewers to share the internal perspective of the characters in it. Bruegel’s claustrophobic scene deprives one of a sense of belonging or an opportunity for judgement.104 Yet Justicia is removed from this social hyperactivity. This itself sets her apart from his treatment of the other virtues. Fortitudo shows an angel with her foot on the neck of evil; Spes (hope) shows her balanced on the anchor of a ship in peril; in Fides she is delivering the lesson (though admittedly the congregation faces the other way). Caritas holds a child’s hand; Prudentia is helping to bring in the crops. But Justicia is a mere bystander. Rather like the original woodcut in Das Narrenschiff, she is depicted as passively acquiescent. The blindfold further emphasizes this divorce between symbol and action. The contrast with Lorenzetti’s allegorical frescoes is productive. There, ‘Securitas’ holds a gibbet and a hanged man in her left hand, and a message of steadfast commitment to the law in her right. But she is a benign figure, hovering like a guardian angel over wellordered and prosperous fields. The need for security is explicitly justified by depicting the ‘effects of good government’.105 In Bruegel, legal order seems to be an end in itself. The chain of the law, parts of which can be seen in front of Justicia, has been broken. Instead of its reassuring and established connections (again, the contrast with the golden thread that literally connects citizens to the wise prince in Lorenzetti’s Allegory is suggestive), control is exercised through the state’s explicit violence, soldiers milling around the bandaged figure of Justicia in the foreground, and keeping a tight rein on the people in the background. It is not at all clear whether Justice is being protected from the people, or prevented from speaking to them. Who ever heard of a virtue being guarded in this way? Do they need our protection, or rather do we need to be forcibly cut off from them? On closer inspection, Justicia’s feet do not touch the ground, but rest on a plinth with her name on it, a plinth that has been explained by some commentators as a version of the ‘blue stone’ to which prisoners were commonly tied at the place of execution.106 What is crucial here, however, is not the stone but Justicia’s relationship to it. She does not appear to be alive at all. She is a statue on a pedestal. In all but one of the other virtues, the title of Bruegel’s image floats above or on top of the scene. But, here, the word ‘Justicia’, carved into the stone, is itself a textual element within the image rather 104

105

106

Compare the discussion of space and perspective in Hubert Damisch, A Theory of Cloud (Stanford, CA: Stanford University Press, 2002), p. 170. The close parallel between the scenes of good government in Lorenzetti, and the vignettes that run along the base of Giotto’s Justice and Injustice (Florence: Padua Scrovegni Chapel, 1305) are suggestive of a strong influence: see Gonza´lez Garcı´a, Eyes of Justice, p. 77. The detailed discussion of Lorenzetti, pp. 74–90, is comprehensive but does not advance beyond Skinner. Gonza´lez Garcı´a, Eyes of Justice, p. 123.

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than a label attached to it.107 The statue itself is therefore not a representation of the world of Bruegel’s drawing, but a representation within that world – a figure of a figure, an image of an image, a block of marble in a town square. Her feet are in contrapposto, a familiar pose in classical and Renaissance statuary, intended to convey not action but readiness.108 So the artist’s drawing is neither in praise of justice nor opposed to it. It is not about justice at all; it is about the symbol or discourse of justice, and the use that men make of it. Bruegel shows himself uncannily attuned to the perils and powers of a new discursive figure, in whose name all manner of legal actions might be, indeed would be, legitimated. He seems to foreshadow how the word or the statue of justice might become a coin circulating in the currency of rhetorical justification, at the mercy of those best able to seize, dress, and position her. Bound and guarded by a phalanx of well-armed mercenaries, one could imagine her as being held hostage. She is a pawn at the mercy of others in a game of blindman’s bluff. So there is a second aspect to Justicia’s blindness. It is neither an attribute nor a satire,109 but an incapacity or vulnerability. Edward Snow rightly sees close parallels between Justicia and Children’s Games, painted the following year. In the latter, children reappropriate all manner of everyday objects for their play. A child dressed as a monk holds a whip above a spinning-top, in a gesture that evokes some strange private ritual. But what is done in fun in Children’s Games is done in earnest in Justicia. Instead of a top, it is men who are turned into objects to be whipped, tortured, and executed for the law’s pleasure. In short, justice is depicted as a kind of game – rote, instrumental, even mindless – and human beings its toys. ‘It clarifies what the vision of Bruegel’s Justicia implies – that evil springs not from an innate anarchic violence but from the human capacity to detach oneself from it and administer it in the name of order.’110 The blindfolded Justicia, ritual and static, passive and vulnerable, is well suited to be used or manipulated by others.

virtue, vice, and predicament Bruegel’s image is ‘a trap to catch those not easily caught (the fun of the capture of the merely witless being ever small)’.111 It seems to me that several interpreters of Justicia fall into it: they assume that Bruegel represents a conventional idea rather than demonstrating the perils of conventional representation.112 But Bruegel also charts a way out of the 107

108 109 110 111

112

Mieke Bal, ‘De-disciplining the Eye’ (1990) Critical Inquiry 16: 506–31. The exception is Temperance, whose name is worn on the hem of her skirt. This figure too stands at some remove from the action, as if she too were a sign of it and not a participant in it. Perhaps once again this distance reflects Bruegel’s view of the nature of the virtue in question. I am grateful to Cristina Martinez for drawing my attention to the significance of this feature. See Gonza´lez Garcı´a, Eyes of Justice, pp. 121–4. Snow, Children’s Games, p. 118. Henry James, ‘New York Preface’ to The Turn of the Screw (New York: Ware, 1993), pp. xxxii–xxxiii; see Shoshana Felman, ‘Turning the Screw of Interpretation’ (1977) 55/56 Yale French Studies 94–207, 185ff. See Mieke Bal, ‘His Master’s Eye’, in David Levin, ed., Modernity and the Hegemony of Vision (Berkeley, CA: University of California Press, 1993), pp. 379–404.

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trap he has drawn. By making blindness visible he invites us to question our practices, and to resist the reification of justice in which, albeit in different ways, the legal actors and the discourse of justice are alike implicated. Bruegel includes figures of dissent at key moments in the image, showing us that at least some citizens were engaged participants in debates about the legal practices of their time. Justicia herself succeeds, almost by stealth, by the merest angle of her sword, in pointing us to the tension between the three temporal frameworks of law. She invites us to imagine the suffering experienced by each and every one of those microscopic figures sketched in the background; and suggests that the legal purposes that drive the foreground action might be ritual and pointless as children’s games, inevitable as the triumph of death. Finally, despite its claustrophobic air, Bruegel positions the viewer well above the town square, giving us access to a wider vista of the future and a recollection of the past. Bruegel’s blindfold turns the tables on his viewers. As a metonym, the blindfold directs us to the manifold elements of social behaviour that are in fact all part of what we call the ‘legal system’. We are all implicated, the image seems to be saying, in the blindness of the law. As an expression of vulnerability, the blindfold directs us to the susceptibility of discourse. We could simply mourn this weakness and continue to wait for some deus ex machina to come along and rescue justice on our behalf. But perhaps if we want justice we shouldn’t hold our breath. Much more recently, Jose´ Saramago’s modern fable invites us to see our blindness not so much as a disability that afflicts us and of which we could be cured, but rather as the shared predicament at the heart of human solidarity. The only miracle we can perform is to go on living, said the woman, to preserve the fragility of life from day to day, as if [Justice] were blind and did not know where to go, and perhaps it is like that, perhaps it really does not know, it placed itself in our hands, after giving us intelligence, and this is what we have made of it. You speak as if you too were blind said the girl with the dark glasses, In a way I am, I am blind with your blindness, perhaps I might be able to see better if there were more of us who could see . . .113

Like Saramago, the possibility of justice that Bruegel evokes is not a matter of either keeping the blindfold on or taking it off, but of seeing more truly how blind we are. Invoking Levinas, we could see her blindness as a call for help, a silent appeal that truly constitutes – inaugurates and brings to life – our legal subjectivity, imposing on us a duty that we cannot shirk.114 Bruegel’s Justicia stands on the cusp of modern times. The reformation in sovereignty was turning from God to state, from legitimacy to authority, and from justice to law. The Protestant Reformation was turning from image to text, from symbol to form. 113 114

Jose´ Saramago, Blindness, trans. Giovanni Pontiero (New York: Harcourt Brace, 1997), p. 297. Emmanuel Levinas, Autrement qu’eˆtre ou au-dela` de l’essence (Paris: Martinus Nijhoff, 1974); Emmanuel Levinas, Difficile Liberte´ (Paris: Livre de Poche, 1976); Difficult Freedom: Essays on Judaism, trans. Sean Hand (London: Athlone Press, 1990).

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The legal Reformation was turning from custom to structure, from individual responsibility to institutional accountability, and from an all-seeing to a blinded justice. Bruegel’s virtue responds to these transitions, harking back to a different set of underlying normative principles, and looking forward to new rhetorical constellations. The image of Justicia turns this clash of temporal perspectives from a mere fact about legal change, into different modes of argument about it. What we witness is a dialogue about time, law’s relationship to it, and our responsibility for it. This dialogue is charged with Bruegel’s characteristically violent, crowded, and disturbing corporeality. W. J. T. Mitchell wrote that the study of art had the potential ‘to restore the provocative, dialogic power of these dead images, to breathe new life into dead metaphors, particularly those metaphors that inform its own discourse’.115 That approach is in keeping with the interpretative strategies of the Renaissance.116 An image was not then, and is not now, an artefact possessed of an intention frozen in time but is rather, as Mary Carruthers put it, ‘an ever-rolling stream, accumulating and adapting over time as it is “collated” with its multitude of readers’.117 ‘Art’ is the name of the possibility of a conversation across time, a conversation more meaningful than the present’s merely forensic reconstruction of the past . . . the artwork functioned as a token of power, in its time, precisely by complicating time, by reactivating prestigious forebears, by comparing events across time, by fabricating memories.118

In short, the anachrony that was so central to early modern art, continues to exert its power over us. Exactly the same thing could be said about law. Now, no less than five hundred years ago, we tend to speak of justice as a spiritual concept, in other words timeless, and law as temporal force, in other words bound to the present moment. But Bruegel makes temporalities collide and contend, showing how the relationship between yesterday, today, and tomorrow is always contested. That contestation is an essential feature of legal discourse. Lest this should seem too sanguine a conclusion, Bruegel reminds us that this discourse is nonetheless clouded by blindness – the blindness of institutions, the blindness of the everyday, the blindness of violence and cruelty and fear and self-interest and power. In making blindness visible, too, the image of Justicia is a masterpiece of and about anachronism. It manages to be both strikingly modern (then) and strikingly contemporary (now). 115

116 117

118

W. J. T. Mitchell, Iconology: Image, Text, Ideology (Chicago, IL: University of Chicago Press, 2013), pp. 158–9. See also Mieke Bal: ‘Images are readings, and the rewritings they give rise to, through their ideological choices, function in the same way as sermons: They are not a retelling of the text but a use of it; not an illustration but, ultimately, a new text’ (Reading ‘Rembrandt’ (New York: Cambridge University Press, 1991), pp. 34–5). See Didi-Hubermann, Confronting Images. Nagel and Wood, Anachronic Renaissance, p. 32; Norman Bryson, Vision and Painting: The Logic of the Gaze (New Haven, CT: Yale University Press, 1983). Nagel and Wood, Anachronic Renaissance, p. 18.

2 Reynolds’s Justice, Blackstone’s Laws Diachronic Time

So Blackstone and Hoyle / Refused cod-liver oil. (Ogden Nash) It was . . . a pitiful example of the arbitrariness of existence, that you were born into a particular time and held prisoner there, whether you wanted it or not. It gave you an indecent advantage over the past, and made you a clown vis-a`-vis the future. (Daniel Kehlmann, Measuring the World)

sir joshua reynolds: neoclassical concepts of time The neoclassical period, roughly contiguous with the Enlightenment, marks a period of extraordinary intellectual and aesthetic creativity governed by a logic of ‘identity, difference, measurement and order’.1 The classical thinker was not interested in what things resembled, but their tabulation, every object to be measured in terms of its hierarchical position in a series. Order was essentially a function of representation. The search for the relationship between things within a field attempted to dislodge interpretation as an infinite recursive process, and replace it with a direct representation of the truth.2 Texts did not participate or constitute this relationship. They could only represent it, from the outside, as it were. As Foucault After I had already finished an early draft of this chapter, I became aware that Cristina Martinez had already written an unpublished doctoral thesis ‘Reynolds and Blackstone’ (Birkbeck College, University of London, 2007), and was moreover working on Reynolds for her forthcoming book on law and art in the eighteenth century. This chapter acknowledges her thesis, which however structures and develops the neoclassical connections between Reynolds and Blackstone in quite distinct ways. Because of our joint research into Reynolds’s Justice, we worked together on an early version of some aspects of this chapter, which appeared under our joint names as ‘Justice and Art: Face to Face’ (2016) 28 Yale Journal of Law and Humanities 241. The chapter you are reading now does not include the various contributions, references, and perspectives added by Cristina in that article. Readers are encouraged to consult Art, Law and Order: The Legal Life of Artists in Eighteenth-Century Britain (Manchester: Manchester University Press, 2018). 1 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Vintage, 1973); (Paris: Gallimard, 1966), p. 52. 2 Ibid., p. 67.

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writes, ‘this relation to order is as essential to the classical age as the relation to interpretation was to the Renaissance’.3 Perhaps the crowning achievements of these neoclassical impulses were the metric system and the Code civil, the former the perfection of measurement and the latter of order.4 From now on, every resemblance must be subjected to proof by comparison, that is, it will not be accepted until its identity and the series of its differences have been discovered by means of measurement with a common unit, or more radically, by its position in an order . . . The activity of the mind . . . will therefore no longer consist in drawing things together, in setting out on a question for everything that might reveal some sort of kinship, attract, or secretly shared nature within them, but, on the contrary, in discriminating.5

John Locke, writing at the very beginning of this period, makes a key distinction between a generative logic and one of discrimination: For wit lying most in the assemblage of ideas, and putting those together with quickness and variety, wherein can be found any resemblance or congruity, thereby to make up pleasant pictures and agreeable visions in the fancy; judgment on the contrary, lies quite on the other side, in separating carefully, one thing from another, ideas wherein can be found the least difference, thereby to avoid being misled by similitude.6

‘Western reason is entering the age of judgment’, says Foucault.7 Although Foucault pays little attention to epistemological developments in England during the eighteenth century, the themes he highlights are no less applicable there. Lawrence Lipking’s The Ordering of the Arts in EighteenthCentury England was published the same year as The Order of Things.8 He does not mention Foucault at all, yet the story he tells is eerily similar. In the arts in particular, there is an extraordinary impetus towards canon formation and taxonomy – not the interpretation of texts but the representation and judgement of a newly defined field. John Hawkins on music, Samuel Johnson on poetry, and Joshua Reynolds on art all seek to impose an authoritative order on the historical record.9 In each case there is a conscious effort to move beyond antiquarianism, anecdote, 3 4 5 6

7 8

9

Ibid., p. 57. Law of 18 Germinal, Year III (7 April 1795); Code civil des Franc¸ais (21 March 1804). Foucault, Order of Things, p. 55. John Locke, An Essay Concerning Human Understanding, Book 2 [XI] 203 (1959), in Walter Jackson Bate, From Classic to Romantic (New York: Harper, 1946), p. 57. Foucault, Order of Things, p. 61. Lawrence Lipking, The Ordering of the Arts in Eighteenth-Century England (Princeton, NJ: Princeton University Press, 1970); John Barrell, The Political Theory of Painting from Reynolds to Hazlitt (New Haven, CT: Yale University Press, 1986). See also John Barrell, ed., Painting and the Politics of Culture: New Essays on British Art 1700–1850 (Oxford: Oxford University Press, 1992). John Hawkins, A General History of the Science and Practice of Music, 5 vols. (London: JA Novello, 1868, first published London: T. Payne, 1776); Samuel Johnson, The Lives of the Most Eminent English Poets (Oxford: Oxford World’s Classics, 2009, first published London: 1781); Thomas Warton,

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devotion, or commentary, towards a structure that will establish basic criteria of criticism, and thereby develop a canon for each of the arts. These highly ambitious, indeed arrogant, works set themselves up as authoritative judges of whole artistic traditions, establishing standards that continue to be points of departure in their fields. And not just in the fine arts. Although situated right at the beginning of all these trends, a century earlier in fact, there is something telling about the fact that Izaak Walton was the author of The Compleat Angler, and a series of ecclesiastical Lives; a canon of canons and the fisherman’s bible, the angler and the Anglican, are grist to the same taxonomic approbating mill.10 Adam Smith’s Wealth of Nations on economics, Samuel Johnson’s Dictionary on English, or Edward Gibbon’s Decline and Fall of the Roman Empire – even the textbooks by Edmond Hoyle aim to take the rules of games such as whist out of the realm of interpretation and lay down the law.11 To play a game ‘according to Hoyle’ means to follow the rules. The intellectual coherence of these neoclassical enterprises is truly remarkable. This was partly due to the close personal ties among key figures in the English Enlightenment, centred on an intimate group of friends and colleagues based in London.12 Joshua Reynolds (1723–92), who together with Samuel Johnson founded the Literary Club where so many of them gathered, was its lynchpin.13 As founding President of the Royal Academy of Art from 1767, he delivered an annual or biennial address for almost twenty-five years. Together, these Discourses form a remarkably cogent manifesto of the theory and role of art in the neoclassical world.14 They set out with exceptional clarity and elegance both his vision of art in ‘the grand style’, and a broader picture of the relevance of aesthetics to social and political values. They are not only one of the most ambitious and comprehensive of the classical projects of order and judgement. Reynolds self-consciously absorbs the whole current of neoclassical thought and attempts to apply it to the realm of art. The Discourses accurately capture the imbrication of ideas in the middle and latter parts of the eighteenth century, in particular the close connection between aesthetic,

10

11

12

13

14

The History of English Poetry: From the Eleventh to the Seventeenth Century, 10 vols. (London: Ward Lock & Co., 1781). Izaak Walton, The Compleat Angler, ed. Charles Cotton (London and New York: Bodley Head, 1897 [1653]). Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (London: W. Strahan, 1776); Samuel Johnson, A Dictionary of the English Language, 2 vols. (London: W. Strahan, 1755); Edward Gibbon, History of the Decline and Fall of the Roman Empire, 6 vols. (London: W. Strahan, 1776–89); Edmond Hoyle, A Short Treatise on the Game of Whist (London: 1742), and other works on backgammon, whist, piquet, and chess (1743–61). On Reynolds’s prominent role, see e.g. Charles Robert Leslie and Tom Taylor, Life and Times of Sir Joshua Reynolds with Notices of Some of His Contemporaries, vol. I (1865), pp. 228–9. Pat Rogers, ‘Introduction’, in Joshua Reynolds, Discourses, Pat Rogers ed. (London: Penguin, 1992), pp. 3–35. The Discourses were originally published in The Works of Sir Joshua Reynolds, 2 vols. Edmund Malone, ed. (London: 1798). Ibid.

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political, and philosophical ideals. The artist must ‘preside, like a supreme judge, over all the productions of nature’, says he.15 A great artist is like a great lawyer. Great lawyers call the leading points in a case, or the leading cases relative to those points. The details of particulars, which does not assist the expression of the main characteristic, is worse than useless, it is mischievous, as it dissipates the attention.16

This is no mere metaphor. Reynolds’s argument is that the artist both edifies the public through his conception, and trains them in the practice of reasoned judgement. A man of real taste is always a man of judgment in other respects; and those inventions which either disdain or shrink from reason are generally, I fear, more like the dreams of a distempered brain than the exalted enthusiasm of a sound and true genius.17

The Discourses on Art is not only a vital neoclassical text on the theory and nature of art. It is a textbook on the aesthetic unity of knowledge, and a primer in the strain of civic humanism that framed themes of judgement, order, and representation, in politics and art alike.18 What distinguished the classical notion of representation from the involuted interpretative licence of the baroque was its quest for ‘noble simplicity’, for purity and order, for abstraction and generalization. The truth that classicism sought to represent, whether in music, art, or philosophy, was not the description of the divergent external forms of things, but the manifestation of their inner essence.19 ‘The business of a poet’, writes Samuel Johnson, ‘is to examine not the individual, but the species: to remark general properties and large appearances: he does not number the streaks of the tulip . . . and must neglect the minuter discriminations which one may have remarked and another have neglected’.20 Reynolds, again, was quick to disparage mere ‘mechanical’ artists, such as the ‘high finishers’ of the Dutch school, whose art pursued a meticulous realism. He condescends to art if it merely ‘attends to the minute accidental discriminations of particular and individual objects’.21 The best art, he insists, does not reside in details but expresses the general conception of an ideal. ‘Perfect form’, he said, ‘is produced by leaving out particularities, and retaining only general ideas . . . The general idea constitutes real excellence’. It is only the ‘inferior 15 16 17 18

19

20 21

Ibid., Discourse III, p. 106. Ibid., Discourse IX, p. 249. Ibid., Discourse VII; see Lipking, Ordering of the Arts, p. 398. Barrell, Political Theory; see also Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics, and the Law (London: Harvester Wheatsheaf, 1994), pp. 265–309. Charles Cramer, Abstraction and the Classical Ideal (Newark: University of Delaware Press, 2006); Lorenz Eitner, ed., Neoclassicism and Romanticism 1750–1850, 2 vols. (London: Prentice Hall, 1971); Walter Hipple, ‘General and Particular in the Discourses of Sir Joshua Reynolds’ (1953) 11 Journal of Aesthetics and Art Criticism 231–47; Hugh Honour, Neo-Classicism (Harmondsworth: Penguin, 1968). See Barrell, Political Theory, p. 91. Reynolds, Discourse I, p. 81; see also Discourse IV, p. 128.

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style that marks the variety of stuffs’.22 Reynolds took this Neoplatonism a very long way. Even the art of portraiture, the genre he made his own, should not aspire to the trivial ‘capturing of a likeness’. Rather than an exact imitation of the real world, the artist should instead draw out the general type and ideal that the sitter will exemplify.23 The grand style, above all, must strive to ‘improve partial representation by the general and invariable ideas of nature’.24 ‘Nature’, therefore, does not stand for ‘the real world’ as it rubs up against our ideas. On the contrary, what is natural is the ideal state of the world, which it is up to our reason to discover, working backwards and upwards from the inevitably flawed instances we observe around us. No wonder then that the neoclassical period marks the high point of doctrines of natural law, drawing on the seventeenthcentury legal writers Hugo Grotius and Samuel von Pufendorf.25 ‘Natural law’ was just another way of speaking about those essences and ideals which the eighteenth century strove to discover, systematize, tabulate, and make the perpetual basis of their judgments. Simple form and abstract thought did not remain wholly unanchored. It was grounded in a singular and compelling relationship to time.26 The very word ‘neoclassical’, although not a contemporary usage, articulates a liaison between the ancient world and the present, the classical and the neo. Greek and Roman sculpture, art, architecture and so on, were central elements of the myth of origin of the times. But their treatment was not comparable in any way to the nineteenth-century’s love of ruins and its sense of historical distance and tragic loss. The neoclassical love affair with the classical past was not a nostalgic turn away from the present, but an urgent template for how to revive it. The past was the model for everything the modern period sought – its pure ideals, its simple forms, its heroic myths, its pristine sculptures. In the Chapter 1 we drew on the idea of the ‘anachronic Renaissance’ to capture a relationship to time in which two different temporal moments are juxtaposed in a single event or experience.27 What is anachronic is the simultaneity of two different periods, the real presence, for example, of the Virgin Mary in the painting by Van Eyck of Chancellor Rollin. Part of the great intensity of Renaissance art lay in its dramatic foreshortening of temporal perspective, in the way that Bible stories were part of the daily experience of everyday life. The mystical and the mundane are brought together and experienced simultaneously.28 The neoclassical has a very different 22 23

24 25

26

27

28

Ibid., Discourse IX, pp. 116, 122. Mark Hallett, Reynolds – Portraiture in Action (New Haven, CT: Yale University Press, 2014); see the discussion particularly in Reynolds, Discourse IV. Reynolds, Discourses I, p. 81. See in particular Knud Haakonssen, Natural Law and Moral Philosophy from Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996). See in particular Barrell, Political Theory; Hugh Honour, Neo-Classicism (Harmondsworth: Penguin, 1968). Alexander Nagel and Christopher Wood, Anachronic Renaissance (New York: Zone Books, 2010); Georges Didi-Huberman, Confronting Images, trans. John Goodman (University Park, PA: Pennsylvania State University Press, 2005); Georges Didi-Huberman, Devant le temps: Histoire de l’art et anachronism des images (Paris: Minuit, 2000). Didi-Huberman, Confronting Images.

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relationship to the past. The classical period, the world of the ancient Greeks for example, is not conceived as present. There is a clear sense of the temporal space that separates us from that past. This long perspective justifies us in describing the neoclassical worldview as diachronic, that is, as consciously unfolding through and across time. But this temporal space is not approached as elegy or ruin or nostalgia. It is instead conceived in terms of emulation and revival. Where Reynolds shows his models in ancient dress or playing out mythological scenes, they have not been somehow transported through time – the dress is no sense anachronistic. They are consciously acting a part, evoking a history that must be affectively and performatively brought back to life.29 They are aware of the past but grounded in the present; it is the very existence of this temporal dialectic that creates the normative demands that the present experiences as a mandate, an injunction, or a summons. As Dr Johnson put it, ‘Whatever withdraws us from the power of our senses, whatever makes the past, the distant or the future predominate over the present advances us in the dignity of thinking beings.’30 This diachronic perspective turned towards the past as a child towards a revered parent and irreproachable teacher; or as a heliotrope towards the sun. Sensitive both to the passage and value of time, it assigned primary place to the tutelary power of a tradition and minimized the role of novelty or ‘genius’ (which, by way of contrast, was to become a hallmark of the romantics). The Artist who has his mind thus filled with ideas, and his hand made expert by practice, works with ease and readiness; whilst he who would have you believe that he is waiting for the inspirations of Genius, is in reality at a loss how to begin; and is at last delivered of his monsters with difficulty and pain.31

The value of imitation against ‘the alluring creed of natural genius’ or divine inspiration is closely connected to a neoclassical respect for the power of rules to prescribe, order, and control. Reynolds concluded his first discourse with a stern rebuke to those who might be tempted to think otherwise: I would chiefly recommend that an implicit obedience to the Rules of Art, as established by the practice of the great MASTERS, should be exacted from the young Students. That those models, which have passed through the approbation of ages, should be considered by them as perfect and infallible guides; as subjects for their imitation not their criticism.32

Nonetheless, Reynolds was careful to distinguish imitation from ‘servile copying’.33 There was a fine line between them, and Reynolds himself was accused of borrowing,

29

30 31 32 33

Martin Postle, Sir Joshua Reynolds – The Subject Pictures (Cambridge: Cambridge University Press, 1995). Bate, From Classic to Romantic, p. 11. Reynolds, Discourse I. Ibid. Ibid., p. 86; Discourse VI, pp. 153, 164; Discourse XII, p. 264; Discourse XIII, p. 290.

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of plagiarism, or more charitably of ‘witty quotation’.34 The purpose of imitation was not merely to regurgitate the tropes of the past but to study them as a template capable of adaptation and even of improvement by a process of abstraction and generalization, and thus to ever more closely approach the purified air of an ideal. As we shall see, this expresses a temporal vision not just of neoclassical art, but of neoclassical law and its direct successor – our own. Reynolds’s portrait of Justice helps us see more clearly the forces of culture and of ideology that were shaping the image of modern law and that continue to influence its values and its myths.

diachronic justice There is nothing borrowed about Joshua Reynolds’s painting Justice (Figure 2.1).35 In 1777, he was commissioned to design new stained-glass windows to rejuvenate the gothic West Window at New College, Oxford (Figure 2.2). He might have been expected to provide sketches from which the glass artist, Thomas Jervais, could work. Instead he chose to realize full paintings of the seven virtues which were to be placed beneath a nativity scene. This was, as it turned out, a lucky break. As Reynolds himself conceded, his foray into glass design was less successful than he had hoped.36 The tonal restraint that characterizes Reynolds work, and which reflects the preference for line over colour, reason over emotion, and form over effect, does not adapt well to the new medium. If anything, it seems rather to compete than to blend with the gothic drama of the chapel. The diffuseness of Reynolds’s brushwork becomes, in Jervais’s version, oversimplified, even crude. The colours appear washed out. The shadows that are so important to Reynolds’s Justice (second from right) are not well rendered; the face is brought into sharper relief than in the original painting, depriving it of its abstract and ideal quality. Justice looks more like a child than a lady. Of the original paintings, several have been lost or destroyed over the years. Only Fortitude and Justice survive. Justice is brought to life in a highly distinctive pose, and in a figure so convincingly flesh and blood as to emerge from a merely symbolic concept into a human ideal requiring human involvement. Neoclassicism looked to the past not just as a set of abstract ideas but as an embodied and lived episode in human history.37 Hence the profound shift in the arts of representation. Neoclassical thinkers had little time for mere ciphers, signs, or symbols: with some urgency, they sought to remake human beings and human society. The emblem literature, 34

35

36

37

Horace Walpole, quoted in Charles Mitchell, ‘Three Phases of Reynolds’s Method’ (1942) 80(467) Burlington Magazine 35–40, at 36. Nicholas Penney, ed., Reynolds (London: Royal Academy of Arts and Weidenfeld & Nicolson; New York: Abrams, 1986); Martin Postle, ‘The West Window of New College Chapel’ (1997) 423 Apollo 51–2. Postle, Sir Joshua Reynolds, p. 184; Penney, Reynolds; David Mannings, Sir Joshua Reynolds: A Complete Catalogue of His Paintings, 2 vols. (New Haven, CT: Yale University Press, 2000), p. 551. See discussions in Bate, From Classic to Romantic; Honour, Neo-Classicism; Eitner, Neoclassicism and Romanticism.

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figure 2.1 Joshua Reynolds, Justice, 1777. Oil on canvas, 223.5 cm × 83.8 cm, Somerley

Estate, Hampshire. (Image courtesy Lord Normanton; photocredit © Somerley Estate). For the colour version of this figure, please refer to the plate section.

iconographically complex but highly conceptual, was dying out; the last edition of Cesare Ripa’s Iconologia was published by George Richardson in 1779.38 In the work 38

Cesare Ripa, Iconologia, 2 vols. (New York: Garland, 1976) [Padua, 1611 and Paris 1644; first published Rome, 1593 and with illustrations Rome, 1603]; George Richardson, Iconology; Or, a Collection of Emblematical Figures, Containing Four Hundred and Twenty-four Remarkable Subjects, Moral and Instructive (London: G. Scott, 1779).

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figure 2.2 Joshua Reynolds, The Seven Cardinal Virtues, stained glass by Thomas Jervais, West Window, New College Oxford, 1779. (Courtesy of the Warden and Scholars of New College, Oxford/Bridgeman Images)

of Reynolds we instead see scene after scene of men and women self-consciously dressed up as their heroes or in the costume of historical or mythical figures – not allegories or symbols, but personifications, attempting to live up to their ideals in their own lives.39 Justice, in her own way, is another – a real person, whose dress and attributes suggests she is an ideal come to life. Reynolds pays careful attention to posture and movement. The embodiment of Justice is accompanied by a distinctive alertness in her body. In contrast with Fortitude’s staunch stability, legs apart and arms akimbo, the implied contrapasso of Justice’s feet (which we have already noted in Bruegel’s Justitia) shows her poised to act. So too the scales she holds are not symbolic but practical, modelled on everyday articles used in commerce – she looks like a butcher’s wife weighing out a leg of mutton, remarked one critic.40 And yet Reynolds’s Justice uses those scales in an entirely novel way – to shade her eyes. Penney concludes that ‘the point of the blindfold was that justice was unswayed by superficial evidence. Reynolds indicates that she has eyes only for the balance.’41 Yet Justice does not appear to be looking at the balance at all, but rather past and through it, to something else. Resnik and Curtis are more agnostic, offering a speculative smorgasbord. The gesture could be protective – as if to maintain balance, Justice needed to insulate herself from the glare of the sun. One could also read her raised arm and balance as authoritative, indicating the power to decide what light . . . ought to be 39

40 41

Nikolaus Pevsner, The Englishness of English Art: An Expanded and Annotated Version of the Reith Lectures (Harmondsworth: Penguin, 1964), p. 65; Hallett, Reynolds: Portraiture, p. 114. Morning Post, 2 May 1780, quoted in Mannings, Reynolds, p. 551. Penney, Reynolds, p. 291.

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figure 2.3 Joshua Reynolds, Self-Portrait Shading the Eyes, c. 1747–9. Oil on canvas, 63.5 cm × 74.3 cm, National Portrait Gallery, London. (© National Portrait Gallery, London)

brought before her. Or Justice’s stance could be seen as putting her in a quizzical posture, requiring her to peer out to decipher what comes before her eyes.42

A fuller analysis is possible. As Charles Cramer has previously noted, there is a companion piece to this image.43 It is a 1748 self-portrait, one of Reynolds’s earliest paintings (Figure 2.3). The similarity of gesture between the two is unmistakable. Clearly Reynolds’s experience as an artist has influenced his conception of Justice. Indeed, the two vocations, ‘the sovereign judge’ and the ‘arbiter of art’, are intertwined.44 ‘A man of real taste is always a man of judgment in other respects’, he writes.45 But either way, what exactly does the gesture of shaded eyes mean? In the Discourses, Reynolds recommends: 42

43

44 45

Judith Resnik and Dennis Curtis, Representing Justice (New Haven, CT: Yale University Press, 2012), p. 99. Mannings, Reynolds, pp. 46–7; Charles Cramer, Abstraction and the Classical Ideal (Newark, DE: University of Delaware, 2006), pp. 53–4. Ibid., Discourse VI, p. 170. Ibid., Discourse VII, p. 202.

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Reynolds’s Justice, Blackstone’s Laws the habit of looking upon objects at large, and observing the effect which they have on the eye when it is dilated, and employed upon the whole, without seeing any one of the parts distinctly. It is by this that we obtain the ruling characteristic.46

Charles Cramer connects dilated vision to the shaded eyes in the self-portrait, and thence to the figure in Justice. He argues that what is being depicted here is ‘the ability of judgment to weigh that empirical evidence based on broad universal principles rather than minute, circumstantial details, just as the generalizing artist, with “dilated” vision, sizes up and sorts perceived objects without becoming lost in the welter of adventitious contingencies’.47 But this is not why we shade our eyes. Cramer refers to ‘squinting or dilating the vision’,48 but these are not the same. Squinting – and the Reynolds self-portrait certainly seems to be squinting – does not dilate the pupils, but contracts them, in order to limit the amount of light (or distort the shape of the lens) that in very bright conditions provides too much information. Shading the eyes performs the same function. It eliminates glare to allow us to select and focus our vision better. The selfportrait does not show Reynolds striving towards a broader outline, but a sharper image. And Justice, too, is not shading her eyes to see a general whole. Instead, she expresses the artist’s capacity for discrimination – the exercise of judgement. Representing light as opposed to justice, as an excess or distraction, Reynolds draws us resolutely away from ideas of transcendence, authority, or total knowledge, and towards human judgement as a craftsman’s practice.49 The image evokes precisely Locke’s idea of judgement as the counterpoise to wit – a negative capacity of discrimination, of separation, and of discernment. In Reynolds’s Justice, blindness is partial not complete. She chooses not to see, the better to see what she chooses. Above all, shading the eyes allows us to see not broader but further. The very act conveys distance – spatial and temporal. Reynolds connects justice to distance quite explicitly, and writes ‘a hundred thousand near-sighted men, that see only what is just before them, make no equivalent to one man whose view extends to the whole horizon round him’.50 In the case of the self-portrait it is easy to see this distance in both its temporal and its personal dimensions. Entirely in keeping with the times, he saw the pursuit of fame not as a vice but a virtue.51 Fame was not merely worldly success. On the contrary, it looked towards immortality, a way of testing our lasting worth. ‘Without the love of fame’, he advised the Academy’s students, ‘you can never 46 47 48 49

50 51

Ibid., Discourse IX, pp. 250–1. Cramer, Abstraction and the Classical Ideal, p. 53. Ibid. See the discussion of light and sovereignty in Chapter 1. See also, Desmond Manderson, ‘Metastases of Myth: Legal Images as Transitional Objects’ (2015) 26 Law and Critique 207–23; Peter Goodrich, Legal Emblems (New York: Cambridge University Press, 2014); Peter Goodrich and Vale´rie Hayaert, eds., Genealogies of Legal Vision (New York: Routledge, 2015). Reynolds, Ironic Discourse, p. 240, quoted in Barrell, Political Theory, p. 80. Mark Hallett in Martin Postle, ed., Joshua Reynolds – The Creation of Celebrity (London: Tate, 2005), pp. 17–22, 35–7.

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do anything excellent’.52 Fame is the judgement of time. The person who pursues it does not live in the present, but in the past against which he measures himself, and in the future that will in turn recognize him. In the youthful self-portrait, we see an artist fixed intently on the distance, which is to say on the judgement of the future.53 What, then, might it mean to think of justice as a temporal virtue? In earlier periods, the question was hardly even thinkable. Justice was thought of as singular and unique. Each instance was its own crisis – the Greek krisis, after all, whether medical or juridical, denoted a moment of truth, requiring its own assessment.54 The judgement of Solomon was unique – a singular strategy designed in response to a singular problem. The justice of Christ is also unique – he is not subject to rules or doctrines. The justice of the Last Judgement, while it impacts all of us, is in no way temporal. Earlier figures of justice were not, strictly speaking, depictions of judgement but of executive action. St Michael, for example, is normally shown wielding his sword, casting Satan’s rebel angels down to hell, as in versions by Raphael or Giordano.55 The figure of the Last Judgement, which in the Christological tradition was a constant point of reference in legal or quasi-legal settings, likewise does not show Christ engaged in exercising judgement but only in carrying out its consequences. Images of the Judgement of Solomon concern a very different scene of judicial decision-making, but once again, the moment that is invariably chosen dramatizes not the act of judgement itself but rather its execution. The sword is again the active element. Although no longer in the hands of the judge, the artists are careful to indicate its function as the judge’s prosthetic. Raphael’s fresco is exemplary in this regard. A clear line of authority flows out from Solomon’s judgement, along his outstretched arm, and on to the soldier who raises his sword in one hand and holds the baby in the other. Exactly the same visual logic governs Poussin’s rendition, or that of Giorgione.56 Judgement is not about deliberation; it is about doing. Reynolds’s Justice represents a very different problematic. The power she has – and therefore the challenge she faces – is not of action but of judgement, of decision. It resides not in her hands but her eyes. She shades them and stares into the distance. The discrimination she practises, then, is not concerned with singular instances. It is a matter of pattern and comparison. In temporal terms, is she looking into the past or the future? The law must be understood in relation to both. The same message is 52 53

54 55

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Reynolds, Discourse V, p. 149. See Cristina S. Martinez, ‘Self-Portraits’, in Sam Smiles, ed., Sir Joshua Reynolds: The Acquisition of Genius (Plymouth: Sansom, 2009), pp. 96–100. Giorgio Agamben, Jesus and Pilate (Stanford, CA: Stanford University Press, 2015), pp. 51–8. Raphael, St Michael Vanquishing Satan, oil transferred from wood to canvas, 268 cm × 160 cm (Paris: Louvre, 1518); Luca Giordano, St Michael, oil on canvas, 198 cm × 147 cm (Berlin: Gemaldegalerie, 1663). Raphael, The Judgement of Solomon, oil on canvas (Rome: Palazzi Pontifici, 1519); Nicolas Poussin, Judgement of Solomon, oil on canvas, 101 cm × 150 cm (Paris: Louvre, 1649); Giorgione, Judgement of Solomon, oil on canvas, 82 cm × 72 cm (Florence: Uffizi, 1501).

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conveyed by the figure of measurement she holds, the better to control the light that reaches her eyes. Measurement, too, implies a selective comparison of different cases and different moments. Understanding justice diachronically – as a pattern that unfolds not at once but over time – removes it from the realm of the singular and propels it into the sphere of the general. By portraying Justice as a diachronic practice built around comparison, discrimination, and measurement over time, Reynolds articulates the distinctive character it would henceforth bear.

sir william blackstone: neoclassicism and law ‘Unwritten Law’ as a Concept of Time Neoclassical thought was not a matter of cause and effect, but of cross-currents and resonances across different domains. But who could bring to life these ideals of diachronic human judgement – ideal, universal, traditional, and measured – in English law? And who, for that matter, could employ the neoclassical passion for representation, that is impose a system of order onto a riot of fractious interpretations. English law had shown little interest in any of these things before. It was a congeries of specific instances governed by obscure forms of action, highly technical writs, and a kind of love of anecdote that lawyers imbibed rather than learned. Sir William Blackstone, that’s who. The four volumes of his Commentaries on the Laws of England are an exact complement to the other magisterial and disciplineforging efforts of the era.57 It is a companion piece to Reynolds’s Discourses, Johnson’s Dictionary, or Hoyle’s Whist. Indeed, it exerted a greater and more lasting influence over its field than any of these. Blackstone popularized an idea of the common law quite at odds with its reputation, ‘turning a fragmentary tradition into a coherent representation that was as persuasive as it was instructive and cohesive’.58 Blackstone has been painted as a crusty old reactionary seeking to hold back the tides of rational reform. He has been characterized as a proto-liberal, making English law safe for capitalism.59 But all this misses the point. Above all, Blackstone’s work was the realization of a neoclassical vision, through and through. Just as descriptive precision was categorically not Reynolds’s goal, it was not Blackstone’s either. They 57

58

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William Blackstone, Commentaries on the Laws of England, 1765–1769, 4 vols. (New York: Garland, 1978 [facsimile of 9th edn, first published Oxford: Clarendon Press, 1765]); see also Wilfrid Prest, ed., Blackstone and His Commentaries (Oxford: Hart, 2009); Wilfrid Prest, ed., Reinterpreting Blackstone’s Commentaries (Oxford: Hart, 2012). See Cristina Martinez, ‘Blackstone as Draughtsman’, in Prest, Reinterpreting Blackstone’s Commentaries, p. 58. Sue Chaplin, The Gothic and the Rule of Law, 1764–1820 (Basingstoke, UK: Palgrave Macmillan, 2007); Duncan Kennedy, ‘The Structure of Blackstone’s Commentaries’ (1979) 28 Buffalo Law Review 205–381; Prest, Blackstone and His Commentaries; Prest, Reinterpreting Blackstone’s Commentaries; Richard Posner, ‘Blackstone and Bentham’ (1976) 19 Journal of Law & Economics 569–606; Gertrude Himmelfarb, ‘Blackstone versus Blackstone’ (1978) American Scholar 537–52.

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were both of them interested in distilling ideals out of the past and bringing them back to life. Theirs was above all a commitment to general principles, and to diachronic time. Sir William Blackstone, cousin and grandson of an apothecary, was born the same year as Sir Joshua Reynolds, son of an apothecary.60 Blackstone was the first professor of English law at any university; Reynolds, the first president of the Royal Academy. The presidency gave Reynolds a pulpit that allowed him to consolidate the authority and legitimacy of art as a profession and not a mere trade; the professorship gave Blackstone a pulpit that allowed him to do the same for the law. I am not the first to explore their parallel lives. Costas Douzinas and Ronnie Warrington examine Reynolds’s Discourses in some detail, and convincingly deconstruct its underlying tensions.61 But they do so with little reference to Blackstone’s law except in very general terms, and none at all to Reynolds’s art. I did not have the advantage of reading Cristina Martinez’ unpublished doctoral dissertation until after this chapter was first written.62 Her thesis covers some of the same ground as this chapter and comes to broadly similar conclusions. But likewise it pays little attention to Reynolds’s art.63 More generally, my focus on the intellectual history of neoclassicism – specifically on the concept of time and representation in art and law – takes the comparison in a very different direction. Blackstone presented the common law not as a technique or an occult art or a priestly mystery. Unlike Sir Edward Coke, for example, he does not present law in technical or procedural or practical terms, but as a coherent structure of substantive ideas and principles.64 Reynolds in his first two discourses, although addressing the students of art before him, was intent on justifying the social and intellectual legitimacy of the artist as a gentlemanly pursuit. This accounts in part for the range of his intellectual references, and even more for the accessibility and elegance of his style. Blackstone does the same thing for the same reason. He too endeavours to introduce a ‘species of knowledge’ in which ‘the gentlemen of England have been . . . remarkably deficient’.65 Blackstone was acutely aware that the civil law was treated as an intellectual study even in England, and the common law was not; that the civil law was thought to represent justice, reason, and order, and the common law was not.66 He sets out to overturn these prevailing assumptions, imbuing the 60

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See Wilfred Prest, William Blackstone: Law and letters in the Eighteenth Century (Oxford: Oxford University Press, 2012). Douzinas and Warrington, Justice Miscarried, pp. 265–309. Martinez, ‘Reynolds and Blackstone’ . But see Manderson and Martinez, ‘Justice and Art: Face to Face’. Edward Coke, First Institute of the Laws of England (New York: Garland 1979, facsimile edn, 1628). See Mark Walters, ‘Written Constitutions and Unwritten Constitutionalism’, in Grant Huscroft, ed., Expounding the Constitution (Cambridge: Cambridge University Press, 2008), pp. 245–76. Allen Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, CA: Stanford University Press, 2003). Blackstone, Commentaries, Book I, p. 4. Ibid.

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whole text with a tone which was by turns envious, jealous, and angry: defensive of the common law’s vices, jealous of its virtues, and hostile to criticism. English law, as Blackstone tells it, sometimes reads like Charles Perrault’s Cinderella – recently translated into English67 – with the canon and civil laws in the role of wicked stepsisters and the lex non scripta as a glass slipper. Indeed, it is part of the anxiety of influence suffusing the text, that the very structure and epistemology of the Commentaries seems not only to ape the Corpus Juris Civilis, but to prefigure the Code civil, which only appeared forty years later. In both we find a neoclassical devotion to the elucidation and representation of an internal order. The structure of Blackstone’s Commentaries is simplicity itself: from the ‘rights of persons’ in Book I to the ‘rights of things’ in Book II; from ‘private wrongs’ in Book III, to ‘public wrongs’ in Book IV. Such a design imposes a far more coherent and principled structure onto the fabric of English law than anyone had previously thought possible. There is no mention of case law; virtually none of statute law. The very features that underwrite the distinctiveness of English law and account for its history and its practice are ignored. The peculiar institutions of legal education are ignored. The arcane writ system is ignored. Equity is glossed over. The fact–law distinction underpinning trial by jury is circumvented. Blackstone reframes the body of English lex into a work of ius familiar to neoclassical and civilian sensibilities. On the sine qua non of English law, the unique power vested in common law judges, as Duncan Kennedy points out, Blackstone dodges and weaves.68 ‘Very few’ legal cases ‘arise from obscurity in the rules or maxims of law’, and besides, as little as possible is left in the breast of the judges, who are ‘not delegated to pronounce a new law, but to maintain and expound the old one’.69 In one of his most famous passages, he famously describes the judges of the common law as ‘the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land’.70 The notion of the judge as an oracle reduces him from a creative agent to a purely mechanistic feature of the legal system. The role of precedent in weaving the history of judicial decisions into the future fabric of the law is refurbished by Blackstone as an instrument for reducing rather than increasing judicial power.71 Crucially, Blackstone reduces judicial precedent to a series of statements that merely ‘evidence’ a pre-existing corpus iuris. These laws are, of necessity, ‘unwritten’. By dividing law into two equal parts, the ‘written or statute law’ and ‘the lex non scripta, the unwritten, or common law’,72 Blackstone is able to transmute the doctrine of precedent, the centrepiece of the common law, from an inductive and textual practice to a deductive system based 67

68 69 70 71 72

Charles Perrault, Fairy Tales (London: 1753); Charles Perrault, Histoires ou contes du temps passe´ (Paris: Edition Claude Barbin, 1697). Kennedy, ‘Structure of Blackstone’s Commentaries’. Blackstone, Commentaries, Book 1, p. 69; see Kennedy, ‘Structure’, 240. Blackstone, Commentaries, Book 1. Ibid. Ibid., p. 63; see pp. 63–7.

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on the prior existence of invisible customs and norms. Judges are not ‘making’ written law, or even worse, making it up; they are just providing ‘principal and most authoritative evidence’ for the unwritten law, the corpus iuris angliae.73 Blackstone popularized these distinctions but did not invent them. Many fundamental aspects of the Commentaries were borrowed from Sir Matthew Hale’s History of the Laws of England (1713) and his posthumous Analysis: The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain’d their Force by immemorial Usage or Custom, and such Laws are properly call’d Leges non Scriptae, or unwritten Laws or Customs.74

But in Hale (as in Thomas Hobbes) the lex scripta authorizes and trumps the unwritten law; judicial decisions, although they are ‘less than a Law, yet they are a greater Evidence therefore than the opinion of any private persons’.75 So too for Hale, the unwritten custom is the product of the ‘vicissitudes and changes’76 of English legal history. It is a sign of their imperfection and impurity, contingent, even ad hoc, which the written law will over time breed out. For Blackstone, the opposite is the case. This same unwritten law is a sign of its origin, its purity, and its perfection. In Hale and Hobbes, the ‘unwritten law’ is a source, like a mountain-fed spring, out of which precipitates and flows the substance of the common law. But in Blackstone, the unwritten law is the mountain itself, the law we are seeking to find. Rather than Hale, Blackstone’s articulation bears an affinity to the much earlier work of John Davies, poet and lawyer (1569–1626). He too describes the ius non scriptum as emerging from time, reflecting the law of nature, and ‘far excelling our written laws’. Like Blackstone, and for the same complex of reasons, he argues that judicial decisions are ‘but comments or interpretations upon the text of the common law; which text was never originally written’. The ‘unwritten law’ is the true repository of ‘the spirit of the laws and the natural foundations of justice’.77 Blackstone’s description of the common law as ‘unwritten’, and his emphasis on ‘long’ or ‘immemorial usage’, customs that exist ‘time out of mind’, do not reflect a sentimental, or nostalgic antiquarianism. He adopts the same diachronic relationship between a Neoplatonic past, and a present which seeks to imitate it and perfect 73 74

75 76 77

Ibid., p. 69. Matthew Hale, History of the Laws of England, and an Analysis of the Civil Part of the Laws (6th edn), Charles Runnington, ed. (London: Butterworth, 1829) [1713, 1739]; see Walters, ‘Written Constitutions and Unwritten Constitutionalism’. Ibid. Ibid. Ibid.

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it, so characteristic of neoclassical thought. Reynolds, for example, no less than Blackstone, conceives of tradition not by reference to previous examples of it, but to the ideals that lie behind them. Of the imitation of the ancients, he writes that ‘the beauty of which we are in quest is general and intellectual; it is an idea that subsists only in the mind; the sight never beheld it, nor has the hand expressed it’78 – an ars non scripta, one might say. For the inauguration of Somerset House, the Royal Academy’s first home, in 1780, he completed and installed his only ceiling painting, Theory (Figure 2.4). Its two strong diagonals draw the corners of the room in upon her figure, representing the importance – both aesthetic and intellectual – of this upward aspiration away from the world and towards the giddy heights of conception, ideal form, and abstraction. She holds a compass in one hand, and in the other a scroll. The scroll declares, ‘THEORY is the knowledge of what is truly NATURE’. Thus while the compass acknowledges the importance of measurement and empirical observation, natural science serves a theoretical inquiry, to be pursued by reason and idealism. In Blackstone likewise, the common law exists not as a practice, but as a theory – it too is ‘the knowledge of what is truly nature’. Both ars and lex non scripta are theoretical clouds that hover above and shape the present world, falling like the gentle rain from heaven. The irony is that the common law was nothing if not written – hundreds of years of obscure judicial decisions, veritable mountains of desiccated paper. This material past Blackstone elided in favour of a more ethereal temporal realm to which he attributed a continuing life. By staking his claims on an unwritten law of which precedent was merely the material trace, he both enhances the prestige of the judiciary and conceals their power – as an ‘oracle’ both secures and hides his power behind the divine entrails he claims only to ‘read’.

dances to the music of time: history, myth, and custom Neoclassicism was not ‘modern’ in the sense of supposing that the past had nothing to teach it. But neither was it steeped in the romantic devotion to ruins and decline. It was not old-fashioned, as any perusal of the work of neoclassical architects like Etienne Boulle´e, for example, will soon confirm.79 It was ‘up to date’, but built on the purest and simplest of historical foundations. The temporal rhythm of the neoclassical period joins together an ancient idyll and the modern world. In the process, it skips over an intervening period of historical time marked by decay and corruption, seeking to revive the former at the expense of the latter. Thus Blackstone condemns Norman jurisprudence, canon laws, papal decrees, and even Crown prerogatives as impositions that degraded the original and pure perfection of the English common law. 78 79

Reynolds, Discourse IX. Jean-Marie Perouse de Montclos, Etienne-Luis Boulle´e: Theoretician of Revolutionary Architecture (New York: George Braziller, 1974).

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figure 2.4 Joshua Reynolds, Theory, 1779–80. Oil on canvas (ceiling painting), 178 cm × 179 cm, Somerset House, London. (© Royal Academy of Arts, London)

Notwithstanding the revival stimulated by Horace Walpole’s renovations at Strawberry Hill,80 the ‘gothic’ was, throughout the neoclassical period, virtually synonymous with bad taste. It stood for everything the neoclassical mind abhorred – excess, ornamentation, labyrinthine complexity, incoherent disorder, the absence of structure, emotion, irrationality, sensuality, mysticism, and so on.81 That Blackstone’s attitudes were in keeping with conventional taste we know not only from his references to it in the Commentaries, but from his early texts on architecture,82 which celebrate the classical styles of ancient Greece and Rome 80

81

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See the discussion in B. Sprague Allen, Tides in English Taste (1619–1800), vol. II (New York: Pageant Books, 1958), pp. 88–95; Honour, Neo-Classicism, pp. 132–8. Carol Matthews, ‘A “Model of the Old House” – Architecture in Blackstone’s Life and Commentaries’, in Prest, Blackstone and His Commentaries, pp. 15–34, 33–4; see also Chaplin, Gothic and the Rule of Law. As many have noted, before he became a lawyer, he wrote several manuscripts on architecture: William Blackstone, The Abridgment of Architecture (1743) and Elements of Architecture (1747);

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and use typical epithets to dismiss the gothic: ‘heavy’, ‘clumsy’, and ‘unreasonable’, ‘crammed’ with ‘silly ornaments’, ‘trite and incongruous embellishments’.83 He did not embody a ‘political Gothicism [that] collides and conflicts with a developing scientific model of jurisprudence’.84 The famous metaphor of the gothic castle he employs to describe the common law is ambivalent. It occurs after a long passage in which he concedes that procedures in real actions are ‘somewhat more complex and difficult, and attended with some delays’ as a result of their ‘intricate, feudal, or rather Norman’ origins.85 Somewhat apologetically, therefore, he concludes that it were nonetheless better to maintain the system than to engage in any ‘fundamental alterations’ to it. We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The inferior apartments, now converted into rooms of conveyance, are cheerful and commodious, thought their approaches are winding and difficult.86

The passage is undoubtedly complacent, and Blackstone’s dogged resistance to ‘fundamental alterations’ earned Bentham’s implacable fury. But Blackstone is not defending the gothic elements of law, merely accepting their unavoidable presence with a certain parochial affection. A similar move is ventured by Thomas Warton, in a well-known poetic meditation on Reynolds’s New College window.87 It reads like a confession. The poet’s love of the gothic (sensual, mystical, shadowy, irrational) is first introduced: ‘For long enamour’d of a barbarous age, / A faithless truant to the classic page’. But this affection is subtly undermined. The gaudy stained-glass of the gothics – Where SUPERSTITION, with capricious hand In many a maze the wreathed window plann’d, With hues romantic ting’d the gorgeous pane, To fill with holy light the wondrous fane; To aid the builder’s model, richly rude, By no Vitruvian symmetry subdued; To suit the genius of the mystic pile . . .

– he contrasts with Reynolds’s muted palette, ‘Those tints that steal no glories from the day / Nor ask the sun to lend his streaming ray’. Justice, as we have seen,

83 84 85 86 87

Matthews, ‘A Model of the Old House’; Wilfrid Prest, ‘Blackstone as Architect’ (2003) 15 Yale Journal of Law and the Humanities 103; Cristina Martinez, ‘Blackstone as Draughtsman’, pp. 31–58. From Elements, quoted in Matthews, ‘Model of the Old House’. Chaplin, Gothic and the Rule of Law, p. 3. Blackstone, Commentaries, Book III, p. 266. Ibid., 268. See Thomas Warton, On Sir Joshua Reynold’s Painted Window at New College Oxford, 1782, in Barrell, Political Theory, pp. 94ff. See also Warton, History of English Poetry, discussed in Lipking, Ordering of the Arts.

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repudiates the sun, both in her gesture and in her restrained tonality. Warton reads this as an argument for subduing our passions, drawing us to an idea of divine truth that relies on universal reason rather than ‘visionary rapture’. She leads us, via Reynolds’s ‘chaste design / The just proportion, and the genuine line’, to rational insight. Thy powerful hand has broke the Gothic chain And brought my bosom back to truth again; To truth, by no peculiar taste confin’d, Whose universal pattern strikes mankind; To truth, whose bold and unresisted aim Checks frail caprice and fashion’s fickle claim.

In particular, Warton’s closing lines express a plea for an accommodation between the two, or perhaps a tolerant affection, that seems identical to Blackstone’s. Not of its pomp to strip this ancient shrine, But bid that pomp with purer radiance shine: With arts unknown before, to reconcile The willing Graces to the Gothic pile.

In Blackstone as in Reynolds, not gothic complexity but rather innocence and purity are the constant points of reference. The common law is the embodiment of a ‘majestic simplicity’, the ‘simplicity of ancient times’. It is the source of ‘plain simple rules’, that the ‘specious embellishments and fantastic novelties’ of Norman feudalism corrupted.88 The task of the modern lawyer is precisely to return it to its primal source. We have taken occasion to admire at every turn the noble monuments of ancient simplicity, and the more curious refinements of modern art . . . defects, chiefly arising from the decays of time, or the rage of unskilful improvements in later ages.89

The time that Blackstone favours is neither gothic nor Roman, but Saxon. Saxon law – pre-feudal, pre-conquest, purely English – is for him that era of innocence and purity that produced the ‘unwritten law’. The ‘ancient Saxon constitution’ and the ‘spirit of Saxon liberty’ are always opposed to Norman chicanery. The ‘old Saxon laws’ stand as a template of innocence and purity to be recalled and salvaged.90 Neoclassicism needed such myths of origin. By and large, of course, it was the classical world that was their focus – but not always. The English and Scottish Enlightenments saw a Celtic revival, in whose themes of the primitive, the rustic, and the natural, can be found the first glimmerings of romanticism.91 But they also 88 89 90 91

Blackstone, Commentaries, Book I, p. 10; Book III, p. 49. Ibid., Book IV, p. 443. Ibid., Book III, pp. 37, 62, Book I, p. 464. Many other instances could be cited. See Honour, Neo-Classicism, pp. 65–7; Fiona Stafford, The Sublime Savage: A Study of James Macpherson and the Poems of Ossian (Edinburgh: Edinburgh University Press, 1989);

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chimed with the intellectual tenor of the late eighteenth century, when notions of sympathy and sensibility attempted to supplement the universalist rationality of the Enlightenment with a complementary attention to human feeling.92 The epic poems of Ossian were the high point of this trend. They were published by James Macpherson in the early 1760s, under the pretence that he had collected and translated them from ancient Gaelic sources.93 The figure of ‘Ossian’ commemorates a dying culture of noble sensibility and virtuous simplicity. Samuel Johnson was not slow to brand the poems ‘forgeries’ and its author a ‘mountebank’, while others, including Diderot, staunchly defended them. Blackstone’s Commentaries were published in the thick of the controversy. His Saxon constitution is a similar fiction, likewise evoking an ancient and autochthonous nomos whose purity and simplicity could inspire our own. It was said in defence of ‘Ossian’, that Macpherson’s work was ‘a translation without an original’.94 And what better way to characterize Blackstone’s ‘unwritten law’? Like Ossian, Blackstone is not genuinely describing the legal past but imagining one. Ossian, like the ancient Greeks, gave the neoclassical world a past to embrace; not the immediate past or the historical past but a prehistorical, fantastical, idealized past. That is what the Saxons gave Blackstone: a pure, unsullied time for law. Yet Blackstone’s emphasis on custom, specifically local English custom, seems at a remove from Reynolds’s implacable universalism – ‘truth, by no peculiar taste confin’d, Whose universal pattern strikes mankind’.95 Reynolds declared that ‘works . . . which are built upon general nature live forever; while those which depend for their existence on particular customs and habits, a partial view of nature, or the fluctuation of fashion, can only be coeval with that which first raised them

92

93

94

95

Thomas Curley, Samuel Johnson, the Ossian Fraud, and the Celtic Revival in Great Britain and Ireland (Cambridge: Cambridge University Press, 2009). See the discussion in Chapter 4 of this book. See also James Chandler, An Archaeology of Sympathy (Chicago: University of Chicago Press, 2013); Michael Bell, Sentimentalism, Ethics and the Culture of Feeling (New York: Palgrave, 2000); Adam Smith, The Theory of Moral Sentiments, ed. Knud Haakonssen (Cambridge: Cambridge University Press, 2002); D. D. Raphael, The Impartial Spectator – Adam Smith’s Moral Philosophy (Oxford: Clarendon Press, 2007); G. J. Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago: University of Chicago Press, 1992); Paul Goring, The Rhetoric of Sensibility in Eighteenth-Century Culture (Cambridge: Cambridge University Press, 2005); Chris Jones, Radical Sensibility: Literature and Ideas in the 1790s (London: Routledge, 1993); John Mullan, Sentiment and Sociability: The Language of Feeling in the Eighteenth Century (Oxford: Clarendon Press, 1988). James MacPherson, The Poems of Ossian and Related Works, Howard Gaskill, ed. (Edinburgh: Edinburgh University Press, 1996); Howard Gaskill ed., Ossian Revisited (Edinburgh: Edinburgh University Press, 1989); Howard Gaskill and Fiona Stafford, eds., From Gaelic to Romantic: Ossianic Translations (Studies in Comparative Literature 15) (Amsterdam: Rodopi, 1998); Paul de Gategno, James Macpherson (Boston, MA: Twayne, 1989). See also references cited above. Quoted in Curley, Samuel Johnson, The Ossian Fraud, p. 6; see Gauti Kristmannsson, ‘Ossian: A Case of Celtic Tribalism, or a Translation without an Original?’, available at: www.academia.edu/ 565547/Ossian_a_Case_of_Celtic_Tribalism_or_a_Translation_without_an_Original (last accessed 10 November 2018). Thomas Warton, Verses on Sir Joshua Reynolds’s Painted Window at New College, Oxford (1782).

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from obscurity’.96 But Reynolds’s views changed over the years. By the seventh discourse, delivered in 1776, Reynolds concedes that ‘besides this immutable truth, there are secondary truths, which are variable’,97 and which are localized in the customs, costumes, and even the ornaments of a particular time and place. John Barrell, and following him Douzinas and Warrington, argues that the whole of this discourse depends on an implied analogy between the function of custom in art and the function of custom in the common law – as Blackstone had only recently articulated.98 Furthermore, this trajectory, ‘from a discourse of [universal] tradition to one of [local] custom’99 maps the increasingly conservative strain of English thought under the influence of Samuel Johnson and Edmund Burke, particularly in the wake of the French Revolution. Already in the thirteenth discourse (1786) the ‘eternal and immutable nature of things’ is presented as opposed to ‘principles falsely called rational’.100 By the time Reynolds penned his last, so-called ‘Ironic Discourse’, in 1791, Burke had already published Reflections on the Revolution in France, sounding a prophetic warning as to the dangers of applying purely abstract thought to organic societies. In language of which Blackstone would surely have approved, Reynolds concludes ‘the tree of knowledge . . . does not grow upon a new made, slender soil, but is fastened by strong roots to ancient rocks, and is the slow growth of ages’.101 So Reynolds’s Discourses operates in two rhythms. On the one hand, it emphasizes the supreme authority of classical art understood as a realm of pure ideals. On the other, it emphasized the importance of respectfully tracing the footsteps of past generations. For Reynolds, as we have seen, all art was a process of imitation; any radical departure from tradition in the name of some original ‘genius’ or inimitable ‘vision’ was an effrontery. In Blackstone, too, the lightness of inspirational purity, called the unwritten law, is balanced by the heaviness of tradition, called precedent. The distinctive character of the Commentaries, which the common law continues to possess until the present day, is formed by the coupling of these two tempi which embody a very particular relationship to time, the allegretto grazioso of legendary ideals chastened by the andante maestoso of historical customs.

interpretation, representation, and ideology The cleavage between Renaissance and classical worldviews, as Foucault saw it, lay between a system in which knowledge was a matter of interpretation, and one in which knowledge was a matter of representation.102 The title of their major works, 96 97 98 99

100 101 102

Reynolds, Discourse IV, p. 122. Ibid., Discourse VII, p. 174. Barrell, Political Theory, pp. 150–1; Douzinas and Warrington, Justice Miscarried. Anne-Pascale Bruneau, ‘Tradition and the “English School”: Reading Reynolds’s Discourses’ (2003) 57 Bulletin de la socie´te´ d’e´tudes anglo-ame´ricaines des XVIIe et XVIIIe sie`cles 25–36, at 32. Reynolds, Discourse XIII, p. 283. Ibid., ‘Ironic Discourse’, p. 339. Foucault, Order of Things.

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Blackstone’s Commentaries and Reynolds’s Discourses, are in this sense equally misleading, evoking as they do the open-ended interpretative glosses of earlier times. But both Blackstone and Reynolds seek to discipline that interpretative flux, to replace it with a system in which firmly held ideals order and divide up, name, and relate all aspects of law and of art, providing criteria for authoritatively judging them and representing them, once and for all, to the public. Representation is the end of commentaries, the end of discourses. In this context, the word ‘representation’ has a double meaning. It implies something more than mere description. To represent is not only to portray but to advocate. A representation combines the ideal and the real: it seeks, in fact, to constitute that relationship, to bring them closer together. The diachronous temporality of neoclassicism, whether in law or in art, was precisely an effort to bridge that gap, to both abstract the distant ideal and to consolidate it in the real and present world. This is what gives time its sense of leaping so forcefully from the past to the present, over intervening historical periods. As Foucault mentions in a brief but suggestive aside, one way of explaining the mutual constitution of representation, truth, and a unified conceptual field is in terms of ‘ideology’.103 Shared assumptions and standpoints knit together political, legal, philosophical, and aesthetic practice into a single fabric stronger than the sum of its parts. Not just, of course, in England. The intimate relationship forged between aesthetics and politics in the French Revolution is well known. Jacques-Louis David gave revolutionary ideas of purity, abstraction, and rebirth a coherent symbolic and aesthetic form. David, more than anyone, understood that radical politics, law, and philosophy required instantiation in performance, art, and taste if it was to genuinely transform the social imaginary.104 In France, themes of purity and abstraction were pursued to their extremes; in England, they were often tempered by strains of empiricism and tradition. Each reveal different facets of the same elements. Those same ancient Greeks dancing around some mystic dell, that in England inspired Wedgwood’s Jasperware or Reynolds’s lords a-leaping, inspired David’s pageants and festivals in revolutionary France. Despite their very different trajectories, they were united in embracing the ideological function of art. The comprehensive nature of neoclassical principles itself encouraged – perhaps even demanded – it. Reynolds’s Justice can be understood as an aesthetic complement to Blackstone’s ideal of law, just as Blackstone’s Commentaries can be understood as a legal

103 104

Foucault, Order of Things, p. 117. Jonathan Ribner, Broken Tablets: The Cult of the Law in French Art from David to Delacroix (Berkeley, CA: University of California Press, 1993); Richard Taruskin et al., ‘Back to Whom? Neoclassicism as Ideology’ (1993) 16 19th-Century Music 286–302; Warren Roberts, Jacques-Louis David, Revolutionary Artist: Art, Politics, and the French Revolution (Chapel Hill: University of North Carolina Press, 1992); Carol Blum, ‘Rousseau and the Republic of Virtue: The Language of Politics in the French Revolution’ (1986) 9 History of European Ideas 353–5; Warren Roberts, Jacques-Louis David and Jean-Louis Prieur, Revolutionary Artists: The Public, the Populace, and Images of the French Revolution (New York: SUNY Press, 2000).

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complement to Reynolds’s ideals of art and custom.105 But that distinction, which still assumes that Reynolds’s work belongs to aesthetics and Blackstone’s to law or politics, is insufficient. Reynolds’s Discourses pursue an overtly political agenda. So too, his portraits and subject pictures participate directly in the ideological constitution of English life. The representations of his clients had a conscious normative intent: he sought to show them not as they actually were but in ways that he believed would improve ‘partial representation by the general and invariable ideas of nature’. To mechanically copy every leaf on a tree or every hair on a head perpetuated deformity, imperfection, and flaw. The portrait painter stands below the history painter in the scheme of things precisely because the latter ‘paints man in general’ while the former is constrained to reproduce ‘a particular man, and consequently a defective model’.106 The portraitist who wishes to achieve more than this must elevate the figure in front of him, using them to exemplify an ideal type, a virtue, or an attitude. Reynolds sought in his subjects – in their existence, or status, or reputation – the trace of an ideal form. He then endeavoured, whether by posture, dress, or performance, or by situating them in a classical scene or context, to enhance their connection to it (e.g. Figure 2.5). Justice succeeds in clothing an abstract virtue with the dignity of a real human being. But the opposite was equally true; his portraits succeed in clothing a particular human being with the dignity of virtue.107 This was neoclassicism’s diachronic power, its seductive foreshortening of temporal distance and temporal immediacy. Ironically then, it is the very artifice of Reynolds’s poses, the manner in which they consciously perform the set of ideals they represent, that accounts for their power to both confirm and constitute ideology. His portraits are like the studio photos of 1930s Hollywood stars, filmed in soft focus so as to lessen their individuality, hide their flaws, and transform them into an avatar of the universal. Diachronic time and ideology are clearly in cahoots. The self-conscious gesturing towards an ancient idyll articulated – for Reynolds’s clients, his audience, and his public – a desire to truly embody and revive the ideals it represented.108 At the same time, his emphasis on repetition, emulation, and tradition send a powerful message as to the natural rightness of the established order. Samuel Johnson said ‘whatever withdraws us from the power of our senses, whatever makes the past, the distant or the future predominate over the present, advances us in the dignity of thinking beings’.109 He was wrong. Focusing on past illusions and future visions may blind us to the present. It is hard to look at Reynolds’s poisonously sweet and subtly sexualized images of young girls – Muscipula in particular (a little girl is like a mousetrap) – 105 106 107

108 109

See Martinez, ‘Blackstone and Reynolds’. See esp. Hallett, Reynolds – Portraiture in Action; Mannings, Reynolds. See discussions in Bate, From Classic to Romantic; Honour, Neo-Classicism; Eitner, Neoclassicism and Romanticism. See Postle, Sir Joshua Reynolds. Quoted in Bate, From Classic to Romantic, p. 11.

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figure 2.5 Joshua Reynolds, Augustus Keppel, 1752–3. Oil on canvas, 239 cm × 147.5 cm, Greenwich, London. (© National Maritime Museum, Greenwich, London)

without seeing in them a representation of the nature of children which rendered utterly invisible, and covertly legitimated, endemic practices of child prostitution.110 Refusing to engage with ‘real life’ in eighteenth-century England, except as 110

See Postle, Sir Joshua Reynolds, pp. 117–18; Patricia Crown, ‘Portraits and Fancy Pictures by Gainsborough and Reynolds: Contrasting Images of Childhood’ (1984) 7 Journal for EighteenthCentury Studies 159–67.

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a gorgeous pageant of social legitimacy, turned Reynolds’s iterations and repetitions irrelevant at best, and toxic at worst.111 As E. H. Gombrich writes, For the world of the ‘ideal’ in which the patterns ‘borrowed’ by the master could be conceived and grow, has also become threadbare in this clash of reality. The resounding language of classical coinage which Poussin had made his natural idiom has become a graceful play.112

In the depressingly mediocre offerings of the Royal Academy or the stifling dogmatism of the Acade´mie Royale, imitation degenerated into the ‘threadbare’ citation of received gestures, fraudulent and spent, unable to convince its viewers of the relevance, let alone the truth, of their rose-tinted representations. Diachronic time in Blackstone works the same way. Having commenced with arguments about the eternal validity of natural law and the eternal centrality of natural rights, Blackstone moves with almost indecent haste to a defence of the status quo. The rights that take up the vast majority of Blackstone’s attention are socially defined statuses: the rights of the monarchy, the nobility, the clergy, the military, and the rights of masters over servants, husbands over wives, parents over children, guardians over wards, and the rights of corporations. Universal natural rights merely give a glossy sheen to existing social inequalities. One could readily superimpose images from Reynolds’s oeuvre onto the classes, personalities, and positions outlined in Blackstone’s book on ‘rights’ – as many of his readers presumably did. He did not aim to portray the legal system, but represent it – not as it actually was, much less as lawyers actually used it, but in a typical neoclassical project: imposing an external classification on the ‘general idea’ of the law, giving it a narrative arc that bound together the past and present, and finally grounding it in pure and simple ideals worthy of our approbation. Like Reynolds, Blackstone does not wish to present deformed or imperfect objects. Throughout the four volumes, his willingness to see the English common law in the best possible light is always on display. Reynolds created the imago of neoclassical society, as Blackstone created the imago of eighteenth-century law: beautifully false and falsely beautiful. This is surely the essence of Jeremy Bentham’s flailing assaults on Blackstone’s nefarious influence. ‘Our Author thinks he does his part when he embroiders [the law] with flowers. Law shews itself in a mask. This mask our Author instead of pulling off has varnished.’113 Indeed, both Reynolds and Blackstone may be better 111

112 113

Charles Mitchell, ‘Three Phases of Reynolds’s Method (1942) 80(467),Burlington Magazine 35–40; Edgar Wind, ‘“Borrowed Attitudes” in Reynolds and Hogarth’ (1938) Journal of the Warburg Institute 182–5; E. H. Gombrich, ‘Reynolds’s Theory and Practice of Imitation’ (1942) Burlington Magazine 40–5; see also Postle, Sir Joshua Reynolds, p. 190. Gombrich, ‘Reynolds’s Theory and Practice of Imitation’, p. 45. Jeremy Bentham, A Comment on the Commentaries and A Fragment on Government, J. H. Burns and H. L. A. Hart, eds. (London: Athlone Press, 1977), p. 124; see also J. H. Burns, ‘Bentham and Blackstone: A Lifetime’s Dialectic’ (1989) 1 Utilitas 22–40; Richard Posner, ‘Blackstone and Bentham’.

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remembered for the attacks they provoked than for the works that provoked them: William Blake’s bilious commentary on ‘this Man [who] was Hired to Depress Art’;114 Jeremy Bentham’s bilious commentary on the Author for whom ‘no extravagance that comes lubricated to him by the slime of his profession is too mighty . . . to swallow, nor having swallowed, to disgorge’.115 Of course, the romantics stood for everything that Reynolds rejected – for individualism, genius, and detail against tradition, imitation, and abstraction. Reynolds insists that ‘perfect form is produced by leaving out particularities, and retaining only general ideas’. Blake begs to differ. ‘To Particularize is Alone the Distinction of Merit – General Knowledges are those Knowledges that Idiots possess.’116 For the ideological idiocies that Reynolds and Blackstone defended cast a long shadow on those that followed them. The dishonesty and self-satisfied dogmatism they sowed, reaped an Oedipal and almost paranoid rage. Blackstone demands conformity to custom as its right and due. When therefore a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection, in such as have built the superstructure.117

Reynolds’s seventh discourse says much the same thing: The well-disciplined mind acknowledges this authority, and submits its own opinion to the public voice . . . This submission to others is a deference we owe, and indeed are forced involuntarily to pay.118

To which it is no wonder their critics replied, Oh piss off. Judgement – the encounter, scrutiny, and discrimination across time – was the one aspect of classicism that Blackstone lacked. Bentham rightly takes him to task for his refusal to exercise any honest ‘judgement’ in evaluating the merits or otherwise of the common law. In the labyrinthine byways of property law and procedure, or in relation to the law of couverture, for example, iniquities are glossed; convolutions are justified; delays excused; distortions and abuses minimized. The text is one long apologia. A similar complaint was made of John Hawkins’s influential textbook on music, first published in 1776, which Charles Burney described as nothing but a ‘black-lettered chain’ of citations dutifully passing on the authority of others and unburdened by any critical faculty or conviction. Hawkins was a lawyer too; and as

114

115 116 117 118

William Blake, Annotations to the Works of Sir Joshua Reynolds, Edmund Malone, ed. (London: 1798), Frontispiece, in David Erdman, ed., The Complete Poetry and Prose of William Blake (Berkeley, CA: University of California Press, 1982), pp. 635–62, p. 635. Bentham, Comment on the Commentaries, p. 122. Blake, Annotations, pp. xcvii–xcviii, in Erdman, Complete Poetry and Prose of William Blake, p. 641. Blackstone, Commentaries, Book III, p. 328. Reynolds, Discourse VII, p. 192.

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Lipking points out, ‘in terms of jurisprudence much becomes clear . . . the reliance upon ceaseless recital and revaluation of precedents; the urge to end every dispute by delivering a final verdict’.119 The problem was that Blackstone found himself in a predicament never faced, for example, by Gibbon on Rome, or Johnson on poetry, or Reynolds on art. In creating a canon they were constantly discriminating, pronouncing some successes, others failures, and so on. The imposition of order and structure, for the benefit of future practitioners, was intimately connected to the application of criteria by which to judge the past. But Blackstone was intent on defending the structure of English law entire and not merely selected highlights. The logic of the common law lay at the root of his difficulty. Unlike the civil law, it placed as a primary source of legal principles the whole corpus of judicial decision-making accreted over hundreds of years. The whole historical record was the canon. To explain and to defend it, Blackstone could not pick and choose. That would undermine all his interwoven claims for the merely ‘oracular’ or declaratory function of the judiciary.

the legacy of neoclassicism The diachronic and neoclassical time that organizes Blackstone’s Commentaries, and the ideological implications of its approach to representation, still matters. Blackstone’s temporal narrative constructed a relationship to history, an idyll of the purity of the common law, a concept of abstract reason, and a mythology of Saxon liberty and rights, that has proved unshakeable. Mabo v. Queensland (No. 2) was one of the most momentous decisions in Australian common law history.120 In 1992, the High Court of Australia acknowledged for the first time the existence of ‘native title’ in Australia, opening the way to the recognition of Aboriginal rights to land of which they had long been thought to have been dispossessed by the British. The leading judgment by Justice Brennan has at its heart the separation of the common law from the Crown. Brennan, faced with multiple acts of dispossession suffered by the Indigenous inhabitants since 1788, denied that the common law was to blame. Brennan cites Blackstone for the proposition that the common law was the ‘birthright’ of all settlers. Indeed, he specifically quotes Blackstone’s ‘misgivings’ as to the legitimacy of ‘seising on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour’.121

119

120 121

Lipking, Ordering of the Arts, p. 249; see John Hawkins, A General History of the Science and Practice of Music, vol. I (London: JA Novello, 1868); Charles Burney, A General History of Music: From the Earliest Ages to the Present Period, vol. I (Cambridge: Cambridge University Press, 2010). Mabo v. Queensland (No. 2), [1992] HCA 23; (1992) 175 CLR 1. Blackstone, Commentaries, Book II, p. 7, quoted in Mabo v. Queensland (No. 2), p. 33 per Brennan J.

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Brennan severs the common law from colonial concepts, such as the doctrine of terra nullius, which were certainly expressed by common law judges, while at the same time he salvages its reputation as the original source of our ‘fundamental values’. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.122

More directly, the heart of the judgment concerns the feudal doctrine of tenures. Under a feudal system, all land was held directly or indirectly under a grant from the Crown. But Brennan’s starting point is Blackstone’s claim that this was a mere legal fiction and that in consequence it could not by itself destroy the beneficial ownership of land that pre-existed and survived it.123 The difference is crucial. If feudalism was not a fiction, then Aboriginal title to land was clearly supplanted by the mere assertion of British sovereignty, because in a feudal system all title derives from that sovereignty. But Brennan’s argument instead relies on Blackstone’s story of the Saxon common law as the original bulwark against Norman chicanery. The common law is like a subterranean watercourse that continues to flow beneath the surface of English law. Norman feudalism did not wipe out the common law, nor sovereignty trump it, nor the Empire corrupt it. These have not altered the ‘skeleton’124 of the common law but only infected it. All such errors must be excised, argues Brennan, because they do not conform to the underlying values of the ‘unwritten law’, of which the actual common law is but the imperfect expression. Brennan’s argument depends not just on Blackstonian myth, but on its diachronic logic. Against a timeless common law idyll, which is placed prior to the Norman and feudal corruptions, Brennan pits ‘the actions of the Crown’ which took place in the intervening history. The Crown exercised its sovereignty in ways inconsistent with the continuing ownership of land by Aboriginal people, in many ways and in many places during the colonial period and right up until the present day. But the common law was apparently not to be considered a party to those degradations – and where the Crown had not acted in those ways, the common law retained its purity and innocence as the guardians of Aboriginal title ‘from time immemorial’.125 For Brennan, the common law’s existence is wholly noumenal, drawing on a Neoplatonic realm of ideas that come to us from a distant and purer time. The Crown’s existence is wholly phenomenal, and bound to verified historical events. This diachronic logic leaps over the messy reality of history, hurtling straight from the common law’s fairy-tale past to its present-day revival. For Brennan as for 122 123 124 125

Mabo v. Queensland (No. 2), p. 39 per Brennan J. Ibid., pp. 47–8 per Brennan J.; see also p. 212, per Toohey J. Ibid., p. 29 per Brennan J.; see also pp. 43, 45, 47. Ibid., esp. pp. 42–3.

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Blackstone, no matter what deformed textual form it may have taken in the recent past, the ‘unwritten law’ lay dormant, awaiting only some prince’s kiss to awaken it from its slumber. Oliver Wendell Holmes famously dismissed the excessive conceptualism behind the image of the common law as a ‘brooding omnipresence in the sky’.126 Holmes’s phrase recognizes its metaphysical nature, but he hardly does justice to its spirit. The common law is closer to an angel than a god – closer, in fact, to Reynolds’s angel in Theory. As with Blackstone or Reynolds, there is something seductive about this temporality. It does not just sanctify the mythic past, but allows it to continue to exert an influence in the present. But as with Reynolds’s ideological representations (not to mention Blackstone’s) it comes at the cost of any honest reckoning with history. The Aboriginal people whose land was taken would have been surprised to learn that the common law of England was committed to protecting and preserving their rights. The soldiers and settlers who were doing the taking, not to mention the judges who did nothing whatsoever to stop it, would have been even more surprised. Across the whole history of discrimination, violence, and dispossession in colonial Australia, there is precious little evidence to support anything other than a complete complicity of interests between the common law and the Crown. Washing the hands of the common law seems an extreme kind of revisionist history. One might argue that Brennan’s diachronic time, like those of the neoclassical period from which they derive, are just one more effort to gloss over colonial history. The argument is not simply about history. The ideological features of Blackstone’s Commentaries, including its aesthetics and its temporality, are not old-fashioned. They accounted first for his popularity and then for his influence, and they are still what is most contemporary in his work. One of the most urgent tasks of the twentyfirst century, is to understand how the interpenetration of aesthetics and politics lies at the heart of ideology, at the heart of what is visible to our discourse and what remains outside it.127 The eighteenth century provides an exemplary case study of the ways in which visual and textual genres circle around identical assumptions, so ensuring both the visibility and readability of ideology, its logical and its affective persuasion. Twenty-first-century ideology operates no differently. Foucault sees the ideology of the Enlightenment as connected to the demise of (open-ended) interpretation and the rise of (categorical) representation. ‘The age of judgment’, he argued, begins from transcendent principles. The text is thenceforth a problem to be solved, interpretation a temptation to be removed. Blackstone was in this as in everything a man of his time. He also thought that the logic of deduction from first principles was the only ‘true form[] of reasoning’, and he strove against all 126 127

Southern Pac. Co. v. Jensen (1917) 244 US 205, 222 per Holmes J. Terry Eagleon, The Ideology of the Aesthetic (Oxford: Wiley, 1990); Jacques Rancie`re, The Politics of Aesthetics, trans. Gabriel Rockhill (London: Bloomsbury, 2004); Jacques Rancie`re, Dissensus: On Politics and Aesthetics, trans. Steven Corcoran (London: Bloomsbury, 2010); Chiara Bottici, Imaginal Politics (New York: Columbia University Press, 2014).

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odds to make the common law conform to this model.128 Bentham thought he conspicuously failed, consigning the common law to ‘the wilds of perpetual conjecture’.129 But both of them ignore the possibility of defending the common law as a practice of interpretation. This was exactly the argument made by John Doddridge, 150 years before Blackstone. In keeping with the centrality and creativity of textual interpretation in Renaissance thought, he conceived of the common law not as unwritten but as written; not as general but as particular; not as deductive but as inductive; not as determined but as interpretative; not as certain but as dynamic.130 A creature of his time, Blackstone couldn’t see it, and Bentham couldn’t see past Blackstone. But Reynolds’s Justice – what does she see? At its best, the neoclassical legacy embodied a critical dimension, an acknowledgement of human imperfection and of yearning. It urged us to strive towards the higher virtues rather than simply presume that they were already within reach. Reynolds reflects movingly on this melancholy and noble goal. But the beauty of which we are in quest is general and intellectual; it is an idea that subsists only in the mind; the sight never beheld it, nor has the hand expressed it: it is an idea residing in the breast of the artist, which he is always labouring to impart but which he dies at last without imparting.131

The learning of lessons and the improvement of models, as we have seen, lay at the heart of Reynolds’s notions of imitation and tradition. In the allusions and resonances he often incorporated into his paintings, we see a use of visual precedent that inscribes the artist not as the slave of a tradition but as an active and critical interpreter of it.132 This is the trace of the Renaissance in his thinking, and the trace of a different temporal dynamic. His Justice is not the representation of ‘judgement’ or ‘justice’, but the embodiment of the search for it, her gaze intently focused on a ‘perfection, which is dimly seen, at a great though not hopeless distance, and which we must always follow because we never can attain’.133 Judgement is the constant standard of critique that Reynolds uses to evaluate all his predecessors, and to measure his own work against a standard he cannot hope to attain. Interpretation, whether in law or in art, is never-ending. Imperfection is its fate, criticism, and development its process. Look one last time at Justice. She is not in modern dress. If Blackstone looks back to some ideal past as a model for the present law, Reynolds’s Justice instead seems to 128 129 130 131 132

133

Blackstone, Commentaries, Book I, p. 59. Bentham, Comment on the Commentaries, p. 95. See the discussion in Walters, ‘Written Constitutions and Unwritten Constitutionalism’. Reynolds, Discourse IX. Ibid., p. 86; Discourse VI, pp. 153, 164; Discourse XII, p. 264; Discourse XIII, p. 290. See in particular Bruneau, ‘Tradition and the “English School”’, p. 30; Wind, ‘Borrowed Attitudes’; Gombrich, ‘Reynolds’s Theory and Practice of Imitation’. Reynolds, Discourse V, p. 230; see Lipking, Ordering of the Arts, pp. 189–206.

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offer a figure coming out of that past and heading straight for us. Her eyes scan the horizon to see what we have made of it. Perhaps above all, we can imagine that what she might see is the artist – or the judge or the viewer – himself. Let us imagine Justice and the Self-Portrait not side by side, but face to face. What they see is each other, as they were, as they will be. Reynolds’s Self-Portrait Shading the Eyes, shows a young man intent on conquering the world. He peers in order to make out how the future rewards his efforts. Justice looks at him and his achievements out of the past, measuring him against the highest standards: her own. The encounter of those two gazes, one anxious for approval, the other uncompromising and sceptical, surpasses ideology, turning paint into art and, very occasionally, turning law into justice. This alchemy is to be found in the look in Justice’s face as she shades her eyes, the better to see – who? – to see us. She casts us a critical look from some distant hilltop, endeavouring to meet our eyes across all the dazzling sun-drenched fields of time.

3 Governor Arthur’s Proclamation Utopian Time

Fair is foul, and foul is fair (William Shakespeare, Macbeth, Act I, scene i)

not yet This chapter concerns an infamous episode in the genocide of Aboriginal people on the colonial frontier in nineteenth-century Van Diemen’s Land/ Tasmania; and an equally famous image of British justice from exactly the same time and place. What are we to make of what appears at first glance to be the utter and irreducible contradiction between the lawlessness of colonial violence, on the one hand, and the image of the rule of law on the other? At first glance, this contradiction merely traces the self-evident hypocrisy of colonialism. It relies on an underlying inequality of treatment in the application of law – relied in the past, for example in the vast regions that fell under British colonial rule; and still relies, in the vast regions that continue to live with its legacy. This underlying duality has always proved an embarrassment for legal theory, and even William Blackstone, as shameless an apologist for the common law as ever lived, could not hide a blush when he reflected how far it could be justified.1 To some extent, the different legal values that apply to colonial rulers and colonial subjects, has itself always been a matter of time. The hypocrisy of colonial legality has typically been legitimated by recourse to the primitive or backward nature of subject peoples. If different rules applied to Aboriginal Australians, for example, that is because they belonged to a different time and could only slowly and arduously, or not at all, be brought into the modern world. So colonial law was built on the temporal gap between past and present. 1

William Blackstone, Commentaries on the Laws of England, 1765–1769, 4 vols. (New York: Garland, 1978 [facsimile of 9th edn, first published Oxford: Clarendon Press, 1765), Book II, p. 7, quoted in Mabo v. Queensland (No. 2), [1992] HCA 23; (1992) 175 CLR 1, p. 33 per Brennan.

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Yet on closer inspection, a more complex relation is at work. In the two previous chapters, I drew on concepts of anachronic and diachronic time in order to explore the imbrication of art and law. Both are temporalities of presence. They capture how, first in the sixteenth century and then in the eighteenth, the past was capable of intervening in the present. Colonial legality is not a temporality of presence but of absence. It does not seek to expedite the past, as it were, to bring it forward. On the contrary, it endeavours to postpone the present, to hold back its legal commitments to justice and fairness to some indeterminate future time. The rule of law is temporized – a temporal strategy of deferral. Colonial legality believes in the rule of law; but (as St Augustine was reputed to have said when praying for the Lord to grant him chastity) just not yet. But ‘not yet’ imports another temporality, which in recent years has been associated with the writings of Ernst Bloch in particular.2 It gestures towards the promise of a future transformed identity still to come and ‘not yet determined all the way to the end’.3 These two dimensions, not yet as deferral and not yet as potential, are not unrelated. Unlike anachronic or diachronic modalities, it is not the past but the future that is in each case the object of an intense longing. The shimmering promise of future light casts its shadow over the present, justifying a violence that will intervene in order to summon it into existence. The cavalier legal violence of colonial law is an intervention in the frustrated ambitions of the present, justified in order to hasten the arrival of the future. Such a temporal relationship will be familiar to anyone who has observed a similar painful logic in the history of utopian communities. ‘There is a tyranny in the womb of every utopia’, wrote Bertrand de Jouvenel.4 The tragic inadequacy of the present in relation to a future always just over the horizon generates a crisis in the name of which all manner of cleansing violence seems to become urgent and necessary. Present lives are thus sacrificed on the altar of the future. This dynamic I call utopian time, a combination of deferral and exception which is a distinctive feature of colonial legality, yoking together within a single temporal conception its theoretical ideals and practical atrocities. Throughout this book, I follow Mieke Bal in engaging in ‘preposterous history’.5 Although I wish to take seriously the problem presented by a historical image such as this one, I am also concerned to think through its ongoing implications for legal 2

3 4

5

Jamie Daniel and Tom Moylan, Not Yet: Reconsidering Ernst Bloch (London: Verso, 1997). For recent discussion of not–yet in the discourse of critical human rights, see Costas Douzinas, ‘Human Rights and Postmodern Utopia’ (2000) 11 Law and Critique 219–40, at 223ff. Bloch, p. 162, quoted in Douzinas, ‘Postmodern Utopia’, 223; see also at 224, 235. Bertrand de Jouvenel, Sovereignty: An Inquiry Into the Public Good (Cambridge: Cambridge University Press, 1957), p. 10. See Thomas More, Utopia, trans. Paul Turner (Harmondsworth: Penguin, 2003, first published 1516); Russell Jacoby, The End of Utopia (New York: Basic Books, 2000); John Gray, Black Mass: Apocalyptic Religion and the Death of Utopia (New York: Farrar, Straus, and Giroux, 2007); Nicholas Brown, Utopian Generations (Princeton, NJ: Princeton University Press, 2005). Mieke Bal, Travelling Concepts in the Humanities (Toronto and London: University of Toronto Press, 2002), pp. 77ff.

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discourse. In this chapter, I juxtapose colonial history with a much more recent example of Australian laws dealing with Aboriginal people. The aim is to illuminate a fundamental problem with the discourse of the rule of law. Indeed, the nineteenthcentury image perfectly dramatizes that problem and its underlying temporal paradox, and allows it to be seen in contemporary contexts. The deferral of the rule of law, and the utopian temporality that underpins it, is not just of historical importance. Governor Arthur’s Proclamation is an image and a legal act – both at once, entwined and inseparable – that brings to light a legal paradox of abiding importance to all colonial and postcolonial societies. The image’s capacity to say to us more even than it was meant to say, to reveal assumptions, tensions, and anxieties, is part of its strength as a legal resource. Images have a density to them, a complexity in their depiction of the relationship of ideas and forces. Their non-linear aspect makes them a singularly appropriate means of giving form to paradoxes, ambiguities, or crossed destinies.

a bill of rights? The ‘rule of law’ is a phrase that encompasses a body of principles that seek to prevent through law the arbitrary or tyrannical exercise of state power and to construct, as Aristotle put it, ‘a government of laws and not of men’.6 Governor Arthur’s Proclamation (Figure 3.1) is one of the most compelling articulations of it in all British colonial history, and certainly one of its earliest and most remarkable formulations in Australia. Fifty years before A. V. Dicey,7 it forges an idea of the rule of law out of the unhappy and violent encounter between colonial rulers and Indigenous subjects. Confronted by the clash of radically different cultures and mutually incomprehensible languages, it does so without using words (those at the top and bottom of Figure 3.1 were later additions) – a picture which is also a law. About one hundred versions of the original design were traced onto boards made from old packing crates, probably by convict artists using a simple copying technique known as pouncing.8 These first circulated in Van Diemen’s Land in the early 1830s, but were then largely forgotten until they turned up during renovations of Old Government House in Hobart a generation later. The Proclamation formed part of the Tasmanian display at the Melbourne Inter-colonial and Paris Universal Exhibitions in the 1860s,9 a proud statement of imperial goodwill.10 Seven boards survive, including versions in the Australian National Library, Canberra, the 6

7 8 9 10

Iain Stewart, ‘Men of Class: Aristotle, Montesquieu and Dicey on “Separation of Powers” and “the Rule of Law”’ (2004) 4 Macquarie Law Journal 194. A. V. Dicey, An Introduction to the Study of Law of the Constitution (London: Macmillan, 1885). Khadija von Zinnenburg Carroll, Art and the Time of Colony (London: Ashgate, 2014), pp. 73–5. Joan Kerr, ed., Dictionary of Australian Artists (Melbourne: Oxford University Press, 1992), p. 274. Penny Edmonds, ‘Imperial Objects, Truth and Fictions: Reading 19th Century Australian Colonial Objects as Historical Sources’, in Penny Edmonds and Samuel Furphy, eds., Rethinking Colonial Histories: New and Alternative Approaches (Parkville: University of Melbourne, 2006), p. 83.

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figure 3.1 Governor Arthur’s Proclamation to the Aboriginal People, c. 1830. Oil on

Huon pine board, 35.5 cm × 22.6 cm, State Library of NSW, Sydney. (Courtesy of Mitchell Library, State Library of NSW). For the colour version of this figure, please refer to the plate section.

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Mitchell Library, Sydney, and the State Library of Tasmania.11 The Proclamation is an iconic document in Australian history. Yet for all its fame, few have bothered to really consider the picture. Descriptions mostly cast it as an explanation of martial law or as a warning to the Aborigines of the consequences ‘of continuing in their present murderous and predatory habits’.12 Lyndall Ryan’s pioneering The Aboriginal Tasmanians erroneously interprets it as endorsing ‘the separate and harmonious living of two cultures’,13 whereas it clearly represents the convergence of those cultures under British rule. More recently, Khadija Carroll, despite studying the images in unprecedented detail, nonetheless asserts somewhat blithely that the narrative is to be read ‘from bottom right to top left’.14 A moment’s glance will show that this can’t be right. The bottom two frames can only be read from left to right, the antagonists in each case shown first alive and then dead, one murdered and the other executed. In similar vein, Penny Edmonds describes a contemporary account in The Tasmanian as offering rare evidence of the receipt of the image by Tasmanian Aboriginal people. Yet the report describes the image as follows: In one part of the sketch, the soldiery were presented firing upon a tribe of the Blacks, who were falling from the effects of the attack. On the other part were seen, another tribe, decently clad, receiving food for themselves and families.15

Whatever is being described here, it is definitely not Governor Arthur’s Proclamation. Even in 1830, the Proclamation was a myth – an object so familiar that it becomes hard to see. Images are treacherous; labels more so. The National Library’s copy is labelled Governor Davey’s Proclamation to the Aborigines 1816. But it had nothing to do with Governor Davey and does not date from 1816. It was commissioned by Lieutenant-Governor Sir George Arthur and produced in 1830. The later misattribution pushes the original date back almost a generation. Again, time matters, and mythic time by no means least. The shift in time is perhaps intended to suggest that Van Dieman’s Land, though established as a penal colony, was nevertheless founded on the British rule of law. Law always needs such magical retrospectivity to shore up its legitimacy16 – a giant prison established by dispossession and maintained by violence over whites and blacks alike, especially. By the 1860s it surely served the interests of Tasmania’s free settlers to inject ‘the rule of law’ into their 11 12 13 14 15

16

Carroll, Art and the Time of Colony, p. 85. The Tasmanian, 26 November 1830 in Kerr, Dictionary, p. 274. Lyndall Ryan, The Aboriginal Tasmanians (St Lucia: University of Queensland Press, 1981), p. 97. Carroll, Art and the Time of Colony, p. 77. The Tasmanian, 26 November 1830, discussed in Penny Edmonds, ‘“Failing in Every Endeavour to Conciliate”: Governor Arthur’s Proclamation Boards to the Aborigines, Australian Conciliation Narratives and Their Transnational Connections’ (2011) 35 Journal of Australian Studies 201–18. For a recent survey, see in particular Tim Bonyhady and Greg Lehman, The National Picture: The Art of Tasmania’s Black War (Canberra: National Gallery of Australia, 2018), esp. pp. 130–44. Jacques Derrida, ‘Declarations of Independence’ (1986) 15 New Political Science 7.

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narrative of legitimate settlement, from as early a date as possible. So, too, Davey may have been a better candidate for founding father. In 1814 he had protested his ‘utter indignation and abhorrence’17 about the kidnapping of Aboriginal children. Governor Arthur was more ambivalent, a melancholy man who oscillated wildly between expressions of unctuous concern for the Aborigines and military campaigns against them; between inciting white settlers to kill them and expressing outrage when they did; between extreme actions and remorseful reflections.18 Above all, as the man behind the notorious Black Line, the dragnet which attempted to corral like cattle the whole Aboriginal population of the island, Arthur embodied a way of thinking about the original Tasmanians that surely taints and complicates the noble aspirations of the rule of law. The original cartoon had been suggested and drawn by Surveyor-General George Frankland in 1829, inspired by his observation of Aboriginal bark paintings. I have lately had an opportunity of ascertaining that the Aboriginal natives of Van Diemen’s Land are in the habit of representing events by drawings on the bark of trees . . . In the absence of all successful communication with these unfortunate people, with whose language we are totally unacquainted, it has occurred to me that it might be possible through the medium of this newly discovered facility, to impart to them to a certain extent, the real wishes of the government towards them, and I have accordingly sketched a series of groups of figures, in which I have endeavoured to represent in a manner as simple and as well adapted to their supposed ideas as possible, the actual state of things.19

The Proclamation has four sections and they are clearly sequential.20 I see no reason to depart from a conventional reading from top to bottom. Anything else would have been a peculiar reversal of deeply engrained western narrative conventions. Once we recognize the temporal element that so clearly requires us to read the bottom panels from left to right, an inversion in the vertical axis is even less plausible. The four panels of the pictogram (A–D) trace a development, but not a historical one. Rather, the images move from abstraction to context, from theory to practice. Panel A describes abstract equality: men and children are presented as the same regardless of colour, and the image of a white woman nursing a black baby parallels that of a black woman nursing a white one. The image is not a statement of what the rule of law requires, nor what it will achieve, but a declaration of timeless and utopian principles. Two related features of what we might call this ideal ‘state of 17 18 19 20

Henry Reynolds, Fate of a Free People (Ringwood, Vic.: Penguin, 1995), p. 90. Ibid. Letter to Governor Arthur in Kerr, Dictionary, p. 273. Carroll on the contrary argues: ‘the way in which the violence below is schematically represented and capped by a peaceful outcome above reinforces the teleology of hierarchy and authority’. But to read the higher images as the ‘outcome’ of the lower ones would be to resist this temporality (Art in the Time of Colony, p. 84).

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nature’, which no doubt owes more to Rousseau than to Hobbes, stand out.21 The first is its individualism: humans are presented here not as belonging to societies or cultures. The equality that matters is individual and pre-social, not collective and cultural. Second, this individualism does not lead to a world in which everybody is different from each other but in which everybody is fundamentally the same. The men have identical dogs. White and black wear identical – European – clothes. The transcendent principles upon which the rule of law will be based are equality, individual rights,22 and sameness. The a priori character of these principles of justice, at the top of the Proclamation, naturalizes and universalizes them. Panel B turns to politics and history. The Aborigines lose their clothes but gain a community. White and black are no longer depicted as the same; instead, they are representatives of different societies, hands outstretched towards an agreement. Both the handshake and the headdress of the natives affiliate the image to a strain of British evangelical humanitarianism to which Arthur, along with many of his global colonial administrative caste, belonged. As Edmonds demonstrates, the Proclamation closely resembles a variety of pictures and medals in circulation in eighteenth-century North America.23 But the clasped hands do not indicate an equality of status implying some sort of treaty negotiations.24 The Indigenous chief adopts a posture of submission. His head is bowed and he is less upright than his counterpart. The Panel depicts the transfer of sovereignty from native to colonial rulers. A new political authority and hierarchy is acknowledged. Here already there is a temporal element reflected in the idea of progress as our eye travels from left to right – from Aboriginal to British society, from naked to clothed, from subservience to dominance, and from representatives of the past to representatives of the future. The image does not imply an equal sovereignty, but a dignified surrender to the modern world. Neither Frankland nor Arthur were naive. They did not believe for a moment that this transfer had been as consensual as Panel B represents. On the contrary, they were daily faced with a guerrilla war being waged by Aborigines but which as Arthur remarked in a moment of candour, ‘originated with the white inhabitants’.25 Panel B does more than portray the fait accompli of British sovereignty – it justifies it by looking both forward and up. Forward, to the day when the Tasmanian Aborigines might indeed consent to the loss of their sovereignty; and up, to the timeless principles in the panel above, which are designed to give them a reason to do so. The picture imparts a syllogism: because A, then B. Because of its universal 21

22

23 24 25

Thomas Hobbes, Leviathan, Edwin Curley, ed. (Indianapolis: Hackett, 1994, first published 1651); Jean-Jacques Rousseau, ‘The Discourses’ and Other Early Political Writings, trans. Victor Gourevitch (Cambridge: Cambridge University Press, 1997). William Kymlicka, Liberalism and Community and Culture (Oxford: Clarendon Press, 1989) and Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995). Edmonds, ‘Failing in Every Endeavour’, 203–9. But see ibid., 212. Ryan, Aboriginal Tasmanians, p. 94.

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commitment to the rule of law (Panel A), the British government deserves your fealty (Panel B). The legitimacy of the British legal system is based on right not might. The two subsequent panels demonstrate what follows in law from this syllogism. This is not idealist philosophy in the subjunctive mood, or the past as it will appear in the mirror of some future history, the futur ante´rieur as Derrida put it.26 There is an abrupt change of tense, bringing us back to the here and now of law. Abstract principles are brought into contact with the real world, where violent justice is meted out to violent crime. The last two pictures declare a fundamental norm – though shalt not kill. But, more importantly, they explicitly relate that prohibition both to principles of equality set out in Panel A, and to the legitimacy of the state propounded in Panel B. To the threat in Panel C corresponds the promise made in Panel D. Both insist that the British army is in each case not a party to the dispute but the neutral enforcer of the law. Governor Arthur had said as much in his very first Proclamation as Governor, some years previously: The Natives of this island being under the protection of the same laws which protect the settlers, every violation of those laws in the persons or property of the Natives shall be visited with the same punishment as though committed on the person or property of any settler.27

But the Proclamation goes much further than a mere statement of equal treatment. Its focus on establishing underlying principles of equality, individualism, and sameness might even be said to be make it more like a bill of rights than a rule of law. And, with foolhardy optimism, it stakes the sovereignty and legitimacy of British law on upholding these principles.

we of the never-never But could ‘the real wishes of the government’, as the Proclamation portrays it, be squared with the ‘the actual state of things’ in Van Diemen’s Land? At the very same time that Governor Arthur’s Proclamation advanced these expansive claims, the governor himself was busily extending martial law throughout Tasmania. Martial law had initially been declared in 1828 in the face of Aboriginal resistance to colonial settlement.28 Yet martial law had always been understood as involving the suspension of the rule of law. In 1829 the brutal murder of an Aboriginal woman was deemed by the Solicitor-General to be beyond the reach of the common law precisely because it fell under the very broad rubric of ‘necessary operations against the enemies’.29 Subject to ‘an active and extended system of Military operations against the Natives generally’ and until the ‘cessation of hostilities’, 26 27 28 29

Derrida, ‘Declarations of Independence’. Proclamation, 23 June 1824, in Reynolds, Fate of a Free People, p. 91. Ibid., p. 109. Ibid., p. 112.

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Aboriginal Tasmanians were specifically outlawed.30 In February 1830 a reward of five pounds was proclaimed for the capture of adult Aborigines (two quid for a child), describing them as ‘a horde of savages’ consumed by ‘revengeful feelings’.31 And then in October 1830, faced by ‘continued repetitions of the most wanton and sanguinary acts of violence and outrage’, Arthur extended martial law ‘against the Black or Aboriginal Natives within every part of this Island’.32 Specifically, on 7 October, ‘the [white] community . . . en masse’ was commanded to spread out like a human chain across the whole island, and by pushing forward herd the native population onto a narrow peninsula where they could be penned in once and for all.33 This operation became known as the Black Line. Although it was a signal failure, it was powerfully evocative of the colonial government’s attitude.34 Largely under the auspices of Augustus Robinson, who over a five-year period thereafter undertook a ‘friendly mission’ to the Aborigines which attempted to accomplish by persuasion what Arthur had failed to achieve by force, the whole population of Tasmanian Aborigines was effectively confined to a government reserve established on Flinders Island by 1840.35 In that state of exception36 they died in their droves of disease and neglect. The last ‘full-blood’ passed away in 1876. In a recent article, Penny Edmonds argues that the representation of trees rather than a scaffold to hang the figures in Panels C and D suggests the image is really about martial law itself.37 There is much to be said for this point of view, but it only restates the central puzzle of the image. Clearly the Proclamation does not treat martial law as an exception to the rule of law, but on the contrary as an aspect of it. Indeed, as the proclamations establishing it make clear, martial law did not apply to everyone on the island, but singled out the native population for special treatment. How then are we to make sense of this basic inconsistency? One might argue that the assertion of equality under the law in Panels C and D is nothing but a trick. The rule of law is not without its critics, and that is their response. Legal rhetoric is just a way of disguising how those with power actually carry out the law. Two lines 30

31

32 33

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Proclamation (Hobart Town Gazette, 2 October 1830). www.law.mq.edu.au/sctas/html/1830cases/ Notice7,1830.htm Government Order No. 2, 25 February 1830 (Hobart Town Gazette, 27 February 1830). www .law.mq.edu.au/sctas/html/1830cases/Notice1,1830.htm Proclamation (Hobart Town Gazette, 2 October 1830). Government Order No. 11, 22 September 1830 (Hobart Town Gazette, 25 September 1830). www .law.mq.edu.au/sctas/html/1830cases/Notice6,1830.htm Clive Turnbull, Black War: The Extermination of the Tasmanian Aborigines (Melbourne: Cheshire, 1948); see House of Commons, Copies of All Correspondence . . . on the Subject of the Military Operations . . . Against the Aboriginal Inhabitants of Van Diemen’s Land (Parliamentary Papers No. 259, 1831). George Augustus Robinson, in Australian Dictionary of Biography, vol. II (Melbourne: Melbourne University Press, 1967). http://adb.anu.edu.au/biography/robinson-george-augustus-2596 The connections with Agamben’s articulation and study of the state of exception are evident and need not be spelled out here: see Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago, IL: University of Chicago Press, 2005); Rande Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005). Edmonds, ‘Failing in Every Endeavour’, 205.

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of argument might lead one to this conclusion. First, the Proclamation is a lie. It promised equal treatment but it did not mean it. In Tasmania and elsewhere in Australia, massacres of black people went unpunished, whereas black attacks on white settlers were proof of ‘a wanton and savage spirit’.38 Second, the Proclamation misses the point. The formal justice that treats Aboriginal and settler violence as ‘the same’, is blind to questions of substantive justice. ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread’, wrote Anatole France.39 Even if the British government were neutral as between the two crimes drawn by Frankland (which it was not), the rule of law would still favour settler society and destroy Aboriginal society precisely by treating them as ‘the same’. Panel A, for example, shows a white woman nursing a black baby and a black woman nursing a white baby, implying that these are just the same. But they are not. The latter is in all probability a servant in a rich man’s house; the former is no doubt a missionary who has taken the child from her mother. So-called formal equality varnishes and perpetuates colonial inequality every time it turns a blind eye to social and economic context; which is to say, every single time. Of course a sceptical response that assumes the promises made in the Proclamation were not sincere, might be true. A recent book by Keally McBride on colonialism and the rule of law suggests that the real dialogue that took place was between colonial administrators on the ground, and the Colonial Office in London that oversaw their activities and which, under the benign dictatorship of James Stephen, essentially ‘invented’ the rule of law as an instrument of British colonial governance.40 It may be that the real audience for the good intentions expressed by the Proclamation were neither Aboriginal nor settler Tasmanians at all. The document might be treated as an attempt, more or less ingenuous, to placate the Colonial Office as to the nature of the British administration in Hobart. But these arguments, which in one way or another all reduce the Proclamation to rhetorical posturing, fail to take into account the beliefs of the participants themselves, and above all the ideology of the rule of law which they shared. It seems clear that Frankland, ‘innocent but misguided’,41 believed in the Proclamation. Arthur himself consistently sought to justify the violence he unleashed in humanitarian terms. His gestures are weirdly bipolar. They swing extravagantly between the violent actions he sets in motion, and the desire to protect the Aborigines from those same forces. He insisted that ‘the Government puts forward its strength on this occasion by no means whatever with a view of seeking the destruction of the 38

39 40

41

The words come from Report of the Committee appointed by Sir George Arthur according to which Archdeacon Broughton had been instructed to inquire into ‘the origin of the hostility displayed by the Black Natives of this island against the settlers’ ( Nicholas Blomley, The Aboriginal/Settler Clash in Van Diemen’s Land (Hobart: Queen Victoria Museum, 1992), p. 9). Anatole France, The Red Lily (London: J. Lane, 1894), ch. 7. Keally McBride, Mr Mothercountry: The Man Who Made the Rule of Law (Oxford: Oxford University Press, 2016). Kerr, Dictionary, p. 273.

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Aborigines’.42 Even the Proclamation which instituted the Black Line, concludes that: the Lieutenant Governor takes this opportunity of again enjoining the whole community to bear in mind, that the object in view is not to injure or destroy the unhappy Savages, against whom these movements will be directed, but to capture and raise them in the scale of civilization by placing them under the immediate control of a competent establishment, from whence they will not have it in their power to escape and molest the White Inhabitants of the Colony, and where they themselves will no longer be subject to the miseries of perpetual warfare, or to the privations which the extension of the Settlements would progressively entail upon them, were they to remain in their present unhappy state.43

The name of the place on Flinders Island where the last of the Tasmanian Aborigines were finally interned and eventually died, was Point Civilization. Their capture and control was seen as the necessary first step to ‘raise them in the scale of civilization’, a process that was both coercive and virtuous. Arthur’s policy may have owed more to Hobbes than to Rousseau. His government was a benevolent Leviathan whose violence and tyranny were thought necessary in order to save ‘the unhappy Savages’ from the ‘warfare’ and ‘privations’ of their hideous natural condition: ‘and the life of man, solitary, poor, nasty, brutish, and short’.44 Accordingly, the Proclamation does not lie or conceal. It is meant seriously, but its implementation is deferred to the future. This is the utopian logic of not–yet that justifies a counter-legality, an exceptional violence, by a temporal sleight of hand. Not ‘because A and B, therefore C & D’ but ‘when A and B, then C & D’.45 Governor Arthur’s Proclamation paradoxically justifies the violence of the Black Wars by asserting that such violence is necessary in order to institute the rule of law. The great historian of nineteenth-century England, E. P. Thompson, famously described the rule of law as ‘an unqualified human good’.46 But Thompson does not adequately recognize how fondness for our ideals might not merely conceal oppression but actively incite it. Governor Arthur’s Proclamation demonstrates the workings of this bait and switch. It is not that Aboriginal people did not ‘deserve’ the rule of law. But they had first to be brought to Point Civilization. The more beautiful the ideal the more inadequate seemed their present abject state. The more sincere the British commitment to universal sameness, the more Aboriginal difference and resistance seemed a ‘wanton’ ‘fierceness’ that had to be subjugated or a ‘weakness’ to 42 43

44 45

46

From a letter to the Brigade Major’s Office, 3 November 1828, Reynolds, Fate of a Free People, p. 109. Government Order No. 11, 22 September 1830 (Hobart Town Gazette, 25 September 1830). www .law.mq.edu.au/sctas/html/1830cases/Notice6,1830.htm Hobbes, Leviathan, ch. 13. Clifford Geertz, Local Knowledge (New York: Basic Books, 1983), p. 175 adumbrates a distinction between ‘as–so’ logic, and ‘if–then’ logic. Edward Thompson, Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975), p. 266.

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be fixed. The images in Governor Arthur’s Proclamation, juxtaposed against the colonial policy he pursued, reveal not a contradiction but a counterpoint, a distinctively utopian inversion in which the future predominates over the present. Indeed, Governor Arthur’s Proclamation and the proclamations of martial law that occurred at the same time, actually imply one another, as cause and effect. It was because Arthur and Frankland, and many like them – the idealistic colonial administrative caste spread like missionaries of Britishness across the face of the globe – believed so fervently in the rule of law that Aboriginal people were, on the one hand, always disappointing them and, on the other, required an emergency intervention if they were ever to be civilized. Governor Arthur’s Proclamation did not establish the rule of law in Tasmania; it established the state of exception.47 The aspirations of the Proclamation remained, but making good on them was deferred to some future time when Aboriginal people would at last prove themselves ready for it. In the temporal void left by this deferral, through one emergency after another, colonial and postcolonial regimes have postponed treating Indigenous people with justice, judging them not yet worthy of it or up to it. In this sense we can indeed read the image both up and down, both fair and foul. What in one direction reads as an assertion of equivalence reads the other way as a demand for assimilation. What might be supposed to express a guarantee of universal legal rights, right now, becomes converted into a debt of legal respect that will be paid off on the ‘never-never’.48 Now as in 1830 this is the insidious counterpoint to the radiant promises made by the rule of law; the perils of its temporality of righteous delay.49

another emergency The colonial temporality of deferral and violence is not merely a historical artefact. In August 2007 legislation was enacted which profoundly changed the treatment of large numbers of Aboriginal people in Australia’s Northern Territory. The legislation was couched, just as Giorgio Agamben would have predicted, as a ‘National Emergency Response’,50 and more generally as ‘the Intervention’. In this case, the emergency in question was not guerrilla war or terrorism but shocking 47 48

49

50

See Agamben, State of Exception. The idiom connects an interest rate paid for a good over a long period of time (called in Australia a layby), with Aboriginal ideas of the Dreaming: see Jeannie Gunn, We of the Never-Never (Ringwood, Vic.: Vintage Books, 2008, first published 1908). See in particular Sherene Razack, Dark Threats and White Knights (Toronto: University of Toronto Press, 2004). Northern Territory National Emergency Response Act 2007 (Cth), No. 129. See also Joint Press Conference (Prime Minister John Howard and Minister for Indigenous Affairs Mal Brough), 21 June 2007, www.pm.gov.au/media/Interview/2007/Interview24380.cfm and media release, ‘National Emergency Response to Protect Aboriginal Children in the NT’, 21 June 2007. See P. T. Hart, ‘Crisis Exploitation: Reflection on the “National Emergency” in Australia’s Northern Territory’, Dialogue (2007) 26, at 51–8.

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levels of child sexual abuse and domestic violence in remote Aboriginal communities, where people live, by and large, in isolated settlements under conditions of appalling poverty and sickness. Seizing on a report into endemic problems and patterns of child sexual abuse,51 the federal government rapidly, and with little political opposition, passed 500 pages of legislation through the Parliament.52 In the discourse of emergency intervention that had been generated, it would have been political suicide to have voted against the legislation. Sceptics and critics were cowed into silence, and when a minister in the Northern Territory government, an Aboriginal woman herself, dared to express strong disagreement with these laws, she was branded unfit to hold office and had an abject retraction bullied out of her. Ironically, one of the comments that got her into hot water was the suggestion that Australia was suffering under a ‘new McCarthyism’.53 The laws in question exploited domestic violence and sexual assault as an occasion to enact radical changes that bore little more than a passing connection to the problems they purportedly addressed.54 Ironically, themes of consultation, community trust and cooperation were the basis of the recommendations made by the Little Children Are Sacred Report.55 In response, the government imposed 51

52

53

54

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Crime Prevention Committee, Parliament of Victoria, Combating Child Sexual Assault: An Integrated Model, First Report (Melbourne: Government Printer, 1995); Chris Cunneen and T. Libesman, A Review of International Models for Indigenous Child Protection, A Report Prepared for the NSW Department of Community Services (2002); Human Rights and Equal Opportunities Commission (HREOC), Ending Violence and Abuse in Aboriginal and Torres Strait Islander Communities – Key Issues: An Overview Paper of Research and Findings by the Human Rights and Equal Opportunities Commission, 2001–2006 (Sydney: HREOC, 2006); NSW Aboriginal Child Sexual Assault Taskforce, Breaking the Silence: Creating the Future, Addressing Child Sexual Assault in Aboriginal Communities in NSW (Sydney: NSW Attorney General’s Department, 2006); Queensland Crime Commission and Queensland Police Service, Child Sexual Abuse in Queensland: The Nature and Extent: Volume 1. Project Axis (Brisbane: Queensland Crime Commission, 2000); S. Gordon, K. Hallahan, and D. Henry, Putting the Picture Together, Inquiry into the Response by Government Agencies into Complaints of Family Violence and Child Abuse in Aboriginal Communities (Western Australia: Department of the Premier and Cabinet, 2002); M. Rayner, The Commonwealth’s Role in Preventing Child Abuse: A Report to the Minister for Family Services (Melbourne: Australian Institute of Family Studies, 1994). Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, p. 72, Kevin Rudd (Leader of the Opposition). Comments made by Marion Scrymgour, Member for Arafura (NT), www.abc.net.au/news/stories/ 2007/10/24/2069201.htm. See C. Hamilton and S. Madison, eds., Silencing Dissent (Sydney: Allen & Unwin, 2007). Northern Territory National Emergency Response Act 2007; Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007; Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007; and cognate Appropriation Acts. R. Wild and P. Anderson, Little Children Are Sacred Report: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Child Sexual Abuse (Darwin: Government Printer, 2007); R. J. Goldman and J. D. G. Goldman, ‘The Prevalence and Nature of Child Sexual Abuse in Australia’ (1988) 9 Australian Journal of Sex, Marriage & Family 94–106; P. E. Mullen and J. Fleming, Long Term Effects of Child Sexual Abuse, National Child Protection Clearinghouse Issues Paper No. 9 (Melbourne: Australian Institute of Family Studies, 1998); J. Pocock, State of Denial:

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a suite of measures which comprehensively rolled back thirty years of efforts to empower Aboriginal communities and their members. The legislation specifically excluded the operation of the Commonwealth’s own Racial Discrimination Act 197556 and related international obligations.57 It prevented any person charged or convicted under any Territory law from raising ‘any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of the offence’.58 It singled out welfare entitlements to Aboriginal people in the Territory, imposing a comprehensive system of ‘income management’ not unlike electronic food stamps.59 As Professor Jon Altman explained to the Senate Standing Committee, ‘It is assumed that all Indigenous parents who are welfare recipients are feckless spenders whose incomes must be quarantined and controlled’.60 In the process, many people living in these communities felt singled out – humiliated and punished not for what they have done, but simply because of where they live and the colour of their wanton, savage, skin.61 At the same time, other means of diversifying the economic pathways open to Aboriginal people in these isolated communities were dismantled. The Community Development Employment Projects scheme (CDEP), which had funded many thousands of Aboriginal community organizations and people since 1977,62 was abolished in the Northern Territory,63 and its programmes never replaced. Using the language of ‘welfare dependency’,64 the government withdrew funding for a wide range of community services,65 including media outlets, schools, hospitals, and arts centres, simply because they had been partially funded by the public sector (as of course are schools, hospitals, and arts centres elsewhere in Australia). The government envisaged a twelve-month transition in which CDEP ‘will

56 57

58 59

60

61

62

63 64

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The Neglect and Abuse of Indigenous Children in the Northern Territory (Victoria: SNAICC, 1998); P. Cawson, C. Wattam, S. Brooker, and G. Kelly, Child Maltreatment in the United Kingdom: A Study of the Prevalence of Child Abuse and Neglect (London: National Society for the Prevention of Cruelty to Children, 2000). Racial Discrimination Act 1975 (Cth), No. 52. Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), No. 128 s. 4 subs. 2; Northern Territory National Emergency Response Act 2007 (Cth), No. 129 Part 8 s. 132 subs. 2. Ibid., Part 6, s. 90. Social Security and Other Legislation Amendment (Welfare Payment Reforms) Act 2007 (Cth), No. 130. Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, 10 August 2007, Jon Altman, p. 78. Australian Broadcasting Corporation, 4 Corners, ‘Tracking the Intervention’, broadcast 5 November 2007. www.workplace.gov.au/workplace/Programmes/IndigenousProgs/Community+Development +Employment+Projects+%28CDEP%29+Programme Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 4. Australian Bureau of Statistics, 6287.0, 2007.

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progressively be replaced with real jobs, training and mainstream employment’.66 Few such jobs ever eventuated,67 leaving the arts sector and a wide range of community services vulnerable to collapse. Small businesses were devastated; Aboriginal workers lost their jobs or went without payment.68 Welfare levels grew rather than shrank.69 These laws singled out Aboriginal programmes and people for special treatment. Where the language of equality and sameness was marshalled, it was to a directly contrary end. The government legislation prevented Aboriginal communities from controlling access to their own land in relation to fifty-two townships, areas, roads, and airstrips.70 The government defended the legislation by insisting that these areas ‘are in effect country towns’;71 the permits were accordingly treated as an anomaly. But as the Law Council of Australia explained, Aboriginal communities are merely applying the laws of property: ‘one of the underlying elements of freehold is that the owner of the freehold can exclude, at common law, whoever goes onto it. So the permit system is in fact something that allows people to go onto Aboriginal land where they would otherwise not be able to do so.’72 The attack on Aboriginal land rights, established in Australia by the Aboriginal Land Rights Act 1976, the Native Title Act 1993, and the High Court’s decision in Mabo,73 went much deeper than that. The control and administration of land held by Indigenous people in a large number of communities and ‘town camps’ was taken over by the government.74 In what were now called ‘business management areas’,75 a very wide range of organizations and businesses became subject to the day-to-day control and intervention of imported government business managers, who were authorized to negotiate contracts and renegotiate leases, and to order the sale or transfer of any asset in their possession to any organization or person.76 This was 66

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Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 5. Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, 10 August 2007, Jon Altman, p. 78. Australian Broadcasting Corporation, 4 Corners, ‘Tracking the Intervention’. Jon Altman and Susie Russell (Centre for Aboriginal Economic Policy Research), ‘Too much “Dreaming”: Evaluations of the Northern Territory National Emergency Response Intervention 2007–2012’; Jon Altman, ‘Neoliberal Assimilation’ (2014) 10(132) Arena Magazine, 12. Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007, Sched. 4; roads outside (providing access to communities) 70B; aerodromes 70C; roads inside communities 70E; common areas within communities 70F. Provisions also apply to landing points for vessels 70D. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 14. Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, 10 August 2007, Ms Webb (Advisory Committee on Indigenous Legal Issues, Law Council of Australia), p. 65. Mabo v. Queensland (No. 2) (1992); Native Title Act 1993 (Cth), No. 110. Northern Territory National Emergency Response Act 2007, Part 4 Div. 2; Part 4 Div. 1 subdiv. A s. 31. Ibid., Part 5. Ibid., Part 5 Div. 2 subdiv. B s. 68 (2).

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initially for a period of five years, but gave the government and administrators an unprecedented window to control, manage, and restructure the lives of community members. Paragraph 51(xxxi) of the Australian Constitution requires the payment of compensation on ‘just terms’ when the Commonwealth takes property away from someone.77 Although the minister repeatedly insisted that ‘this is no land grab, as some have tried to portray the emergency response. It is only a temporary lease and just compensation will be paid for that period’,78 the legislation itself is wilfully vague. No such compensation has ever been paid.79 Now the legislation does not ignore these issues for no reason. It identifies the poverty, the ‘poor living conditions’, the ‘despair and tragedy’ of remote Aboriginal communities. ‘These communities are not thriving; some are in desperate circumstances that have led to the tragedy of widespread child abuse. The leases will give the government the unconditional access to land and assets required to facilitate the early repair of buildings and infrastructure.’80 The ‘town camps’ resemble the socalled ‘townships’ of apartheid South Africa, and many remote Aboriginal communities live in third world conditions unknown in – and indeed, unknown to – the rest of the country. Australian Aborigines are the only community living in the developed world that still suffers from trachoma, a debilitating disease that causes blindness.81 It is eminently treatable. For $20 million Australia could wipe it out, as has every other country in the developed world, not to mention India, Vietnam, and Morocco, to name a few. But the emergency response did not provide extra funds for housing, health, education, or infrastructure. On the contrary, in some ways funding to Aboriginal people in the Northern Territory was reduced. Instead, the whole legislative framework saw the management and decisions of Aboriginal people, both individually and collectively – particularly as it had been made possible by the ownership of land – as a pathology to be overcome. Their ownership was identified with ‘closed towns [that] have made it easier for abuse and dysfunction to stay hidden’ and that ‘prevent the free flow of visitors and tourists that can help to stimulate economic opportunities’.82 Their ownership placed layers of Aboriginal decision-making between governments and the provision of services. Their ownership reflected principles of collective rather than individual control of 77 78

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Australian Constitution (Cth), s. 51 (xxxi). Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 9. Northern Territory National Emergency Response Act 2007, Part 8 s. 134. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 9. H. R. Taylor, ‘Trachoma in Australia’ (2001) 371 Medical Journal of Australia 175; Australian Broadcasting Corporation, 7.30 Report, ‘Fight to Eradicate Trachoma’, broadcast 10 September 2007; R. Edwards and R. Madden, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples (Canberra: Australian Institute of Health and Welfare and the Australian Bureau of Statistics, 2001). Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 8.

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land, and as a result ‘land tenure arrangements work against developing a real economy . . . Banks will not lend money to start up small businesses because a committee decides what tenure arrangements will apply. People cannot even borrow to buy their own home because they cannot own or lease a block of land.’83 The legislative package was directed towards giving the federal government increased power to significantly change attitudes and policies to land among Aboriginal people. We may see in this both a judgement that property was not a right to be respected but a barrier to be overcome, and a broader judgement that Aboriginal communities were ‘failed societies’84 that had to be rescued from the catastrophe of their own governance.

cry normal Despite several changes of government in Australia, the essential features that I have outlined above have not only continued but been expanded to cover more Aboriginal communities.85 These are themes that I will pick up again in a later chapter, which returns to the temporality of colonial law through the work of the great Australian artist Gordon Bennett. The language of emergency and crisis relegated the rule of law to a ‘constitutional nicety’86 or ‘the niceties of mainstream law and order’.87 Yet the ‘national emergency response’ was at the same time justified with familiar references to ideas of equality and sameness. ‘Aboriginal people may look different and many may speak a different language but they are Australian’,88 said the Member for Solomon before going on to criticize land rights legislation itself as creating a division in Australia: ‘within our community there are some people, the Aborigines, who live by a unique and distinct system of customary law . . . The purpose of the land rights act was to establish a sanctuary, a preserve of living prehistory within modern Australia’.89 Similarly the Member for Page asserted that ‘Most Australians believe that Aboriginals in this country have the same rights as other Australians. They are Australians like everyone else and they have the same rights.’90 The minister likewise concluded by recalling ‘a [black] man in Wadeye’ who told him, ‘Treat us like whitefellas and not like separate citizens.’91 How is it possible to believe in this rhetoric and yet simultaneously to justify exceptional legislation that so manifestly treats Aboriginal people entirely differently 83 84 85 86 87

88 89 90 91

Ibid. Ibid., p. 7. See Stronger Futures in the Northern Territory Act 2012 (Cth.), No. 100. B. Nicholson, ‘Northern Territory Grog Ban’, Brisbane Times, 21 June 2007. Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Barry Haase (Member for Kalgoorlie), p. 54. Ibid., David Tollner (Member for Solomon), p. 62. Ibid., p. 64. Ibid., Ian Causley (Member for Page), p. 69. Ibid., Mal Brough (Minister for Indigenous Affairs), p. 78.

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from ‘whitefellas’, and that most emphatically does not accord them ‘the same rights as other Australians’?92 How is it possible to invoke the rule of law and yet to abandon it? One answer lies in a constant refrain of the National Emergency Response Act: a cry for normality. The government proposed to use its special powers to ensure ‘normalised tenancy requirements’93 in Aboriginal townships; town camps would be treated as ‘normal suburbs’;94 amendments to the permit system aimed to ‘normalise access arrangements for Aboriginal land’;95 the welfare reforms enforced ‘normal community standards’96 until such time as Aboriginal communities were ‘stabilised and normalised’;97 the government professed itself committed to longer term action ‘required to normalise arrangements in these communities’.98 The government’s ‘national emergency response’ centred around a three-phase strategy of ‘stabilisation’, ‘normalisation’, and ‘exit’.99 The use of this language reveals the temporal deferral we observed earlier. To normalize is not to be normal or to treat normally. It is to make normal.100 Declarations about the sameness of Aboriginal people do not recognize an equality to be acted upon, now. Rather, they express a desire that Aborigines should become the same as us, and to the extent that they are not yet – to the extent that their laws and communities are not yet like the ‘mainstream’, that their attitudes to land, its use, and productivity are not yet ours – they need to be changed. Like Governor Arthur’s Proclamation, the grammar of legality is not ‘because–therefore’, but ‘when–then’. The language of normalization is a future promise that fuels an abiding irritation. As John Daly, Chair of the Northern Land Council said in evidence before the Senate Standing Committee, ‘Does every Aboriginal person necessarily want to be like you guys?’101 Colonialism’s utopian temporality, where the deferral of justice to the future constitutes a state of exception now, has not changed. We see the same temporal tension between who we are and who we will become if we return to Panel A of Governor Arthur’s Proclamation. We might read it as a promise of equality, a purely symbolic articulation of the right of all individuals to be treated the same. But at the 92 93 94 95 96 97 98 99

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Ibid., Ian Causley, p. 69. Ibid., Jenny Macklin (Member for Jagajaga), p. 46. Ibid., Mal Brough (Minister for Indigenous Affairs), p. 10. www.aph.gov.au/Library/pubs/bd/2007-08/08bd018.pdf Ibid., Mal Brough (Minister for Indigenous Affairs), p. 2. Ibid., p. 5. Ibid., p. 11. T. Colebatch, ‘Learning a Purpose in Life’, The Age, 26 June 2007; Jon Altman and Melinda Hinkson, eds., Coercive Reconciliation: Stabilise, Normalise, and Exit Aboriginal Australia (Melbourne: Arena Publications, 2007). Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Allan Sheridan (London: Allen Lane, 1977); Power/Knowledge, ed. Paul Rabinow (New York: Pantheon, 1980); History of Sexuality, trans. R. Hurley (New York: Vintage, 1998). Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, 10 August, John Daly (former Chair, Northern Land Council), p. 47.

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same time the image insists that Aboriginal people should not just be treated but should be ‘like whitefellas and not like separate citizens’ – they should wear the same clothes as us, bring up their children like us, walk their dogs like us. This is of course not a message of equality but of assimilation. It is not about altering our attitudes, but their behaviour. In Governor Arthur’s Proclamation, the rule of law appears as a promise held in suspension until Aboriginal people reshape themselves to fit it. Nothing much has changed. The rule of law still holds out a promise of equality to be paid out only at that time when Aboriginal people become normal, and live in normal suburbs with normal jobs in a normal economy. Until those conditions obtain, equality is postponed and a state of exception invoked to justify measures of extraordinary severity and far-reaching implications, through which they will be bloody well made normal, and like it. In 2007, the second reading speech delivered by the Minister for Indigenous Affairs described a ‘failed society where basic standards of law and order and behaviour have broken down’.102 The minister concluded, ‘the Government’s response will allow Indigenous communities in the Northern Territory to advance and enjoy the same human rights as other communities in Australia’.103 First advance, then enjoy. In the first phase, the government proposed to intervene to direct the advancement of Aboriginal communities. In the second phase, they would – at last – be in a position to enjoy the same human rights and the same ‘control over their lives’ as the rest of us. Like Governor Arthur’s ‘wanton’ and ‘unhappy Savages, against whom these movements will be directed’, the government’s goal was ‘to capture and raise them in the scale of civilization by placing them under the immediate control of a competent establishment’.104 In the case of the Northern Territory National Emergency Response Acts, this included a largescale mobilization by public servants and the Australian army, who descended on these small and isolated Aboriginal communities en masse. Such correction is based on Aboriginal people’s ‘failure’, and justifies the intervention of Leviathan before and so that the rule of law, or human rights for that matter, can eventually apply. Governor Arthur’s Proclamation illustrates and foreshadows the continuing relevance of this temporal paradox. This is nowhere more evident than in the legislation which in 2012 entrenched and extended the initial 2007 intervention after the five-year trial period had expired, entitled – an Orwellian touch, this – the Stronger Futures in the Northern Territory Act.105 The seductive allure of a stronger future is traded off against present injustice, inequalities, and violence. The effect is a double demotion of Aboriginal people. Their difference is discounted, their sameness ignored. The paradoxical 102

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Commonwealth of Australia, Parliamentary Debates, House of Representatives, 7 August 2007, Mal Brough (Minister for Indigenous Affairs), p. 7. Ibid., p. 15. Government Order No. 11, 22 September 1830 (Hobart Town Gazette, 25 September 1830). www .law.mq.edu.au/sctas/html/1830cases/Notice6,1830.htm Stronger Futures in the Northern Territory Act 2012 (Cth.), No. 100.

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legacy of ‘our commitment to the rule of law’ both highlights the ‘non-sameness’ of Aboriginal people and at the same time justifies – perhaps even causes – the exceptional violence that is deemed necessary to rid them of it. Is it too much to ask that an unwavering commitment to human rights and the rule of law now might instead form part of the ‘normalization’ of Aboriginal people, part of ‘raising them in the scale of civilization’, rather than being entirely projected into some stronger but distant future, to which they will gain access only after they have been moulded into suitable subjects for it?

another icon Governor Arthur’s Proclamation makes a kind of invisible cameo appearance in another iconic image from Australian history. Benjamin Duterrau’s 1840 painting The Conciliation (Figure 3.2) commemorates Augustus Robinson’s ‘friendly mission’. In the five years of his travels in Van Diemen’s Land, he carried a copy of the Proclamation with him as a sort of holy relic, proof of his authority and his bona fides. Robinson’s mission was, of course, contemporaneous with the Proclamation and the Black Line; Duterrau’s epic celebration of it was completed only ten years later. The painting is no doubt a bit of magical retrospectivity that promotes Robinson’s own self-serving reputation as ‘the great conciliator’.106 But the image is more complicated and ambiguous than such a reading would credit.107 Its three central figures (third, fourth, and fifth from left) are shown engaged in a complex discursive transaction. With his right hand, the left-most figure of the three (A) clasps that of Robinson and listens to what he says. His left hand rests on the shoulder of an angry comrade (B), in a gesture of restraint or of patient calm. The poses and the transmission of tactile energy from one to the other recall the three graces. But something more is at stake than beauty. Duterrau presents Aboriginal people as agents in their own destiny. Around the central figures a range of others are shown engaging with the central action, gesturing towards it, arguing about it, converging

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See Robert van Krieken, ‘Celebrity, Humanitarianism, and Settler Colonialism’, in Lisa Ann Richey, ed., Celebrity Humanitarianism (Abingdon, UK: Routledge, 2016), pp. 189–209; James Boyce, Van Diemen’s Land (Melbourne: Black, 2010); Anna Johnston, ‘George Augustus Robinson, the “Great Conciliator”: Colonial Celebrity and Its Postcolonial Aftermath’ (2009) 12 Postcolonial Studies 153–72. Research into this image has recently been transformed with the exhibition of Duterrau’s work and the publication of Bonyhady and Lehman, National Picture. For previous analyses, see in particular Greg Lehman, ‘Benjamin Duterrau: The Art of Conciliation’ (2015) 8(2) Journal of War & Culture Studies 109–24; Greg Lehman, ‘Benjamin Duterrau: A Grand Contradiction’ (2017) 304 Art Monthly Australia 52–6; Lindsay Broughton, ‘Tasmanian Art and Historical Interpretation’ (1993) 4(1) Tasmanian Historical Studies 14; David Taylor, ‘Presence and Absence: The Play of Race and Aesthetics in the Portraits of Thomas Bock and Benjamin Duterrau’ (2016) 4(2) History in the Making 37–51; Paul Paffen, ‘A Grand Illusion: Benjamin Duterrau and the Conciliation’ (2001) 5 Melbourne Art Journal 53–70.

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figure 3.2 Benjamin Duterrau, The Conciliation, 1840. Oil on canvas, 121 cm × 170.5 cm, Tasmanian Museum and Art Gallery, Hobart. (Courtesy of Friends of the Museum Fund and the Murray Fund, 1945, and Tasmanian Museum and Art Gallery)

on it or – perhaps – studiously ignoring it. Young and old, male and female, everyone has an opinion. In the generalized abstraction of the Proclamation, Panel B represents the transfer of sovereignty abstractly and collectively, and Aboriginal people are given neither face nor individuality. Duterrau, on the other hand, represents Aboriginal people in a rich diversity of reactions. Indeed, in every way the image opposes the Proclamation. Aboriginal people are not shown as ‘the same as’ whitefellas. Their difference is insisted upon. Their sovereignty is not conceded, but made an active part of the negotiations that are underway. The handshake at the centre of both images shows a very different balance of forces. In the Proclamation, the Aboriginal chief bows his head in submission to a greater authority. In the Conciliation, the Aboriginal leader (A) is the taller and more erect in posture, not to mention more handsome. The hunting dogs by his side add to his authority. The crowd of figures around Robinson convey the fact that he is outnumbered. He is dependent on the goodwill of the Aboriginal leader, and not the other way around. The three central figures present very different modes of engagement. B looks sullenly but directly at his comrade; at the far left, another pair of intent and wary eyes watches the scene, focusing on A’s gestures. Augustus Robinson, on the other hand, appears to be holding forth; or perhaps he is just lost in his own thoughts.

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Either way, he exhibits a peculiar inwardness. He seems distracted, absent. He attends neither to the hand nor the face of his interlocutors, but appears to be looking off to one side. The heavy texture of the painted surface and the intense saturation of the black and white he wears, removes him from the tonality of the rest of the image, and suggests an alienation from the Aboriginal life world that flows so vigorously around him, and from the physical world of the landscape too. Even within the confines of the picture, he is cut off – like Bruegel’s Justice, a representation within a representation. The handshake is particularly telling. Robinson holds his hand out, palm upward, in a gesture that seems distracted and flaccid. The black man shows a firm and determined grasp. He is certainly shaking Robinson’s hand; but Robinson, like some prince or potentate, merely consents to having his hand held. Does the queen shake your hand? By no means; she merely tolerates it when you shake hers. In many modern political photo opportunities you can observe a similar dynamic: the senior player limply offering his hand; the junior player grasping it energetically for the cameras. Emotionally, intellectually, and physically, the imposing figure of A is the lynchpin of the scene. It is this man, not Augustus Robinson, who Duterrau portrays as ‘the great conciliator’. Only he appears to be fully attending to the discourses that swirl around him. He links and joins all the others. By touch and sight, he embodies an intimate and charismatic authority that finds the path that mediates between them. This too is conveyed by the effect of depth rather than surface that connects his image to everything else going on around him, rather than separating him from it. It is also conveyed by the way he returns the objectifying impulse of the colonial gaze with an unrelenting gaze of his own, engaged in his own scrutiny and assessment; meets the limp hand of Robinson with his own vigorous grip. Augustus Robinson does not meet A’s gaze. He turns away with a blush, aware of the scrutiny he is under. The colonial ruler, like the colonial scientist and the colonial explorer, is a voyeur.108 He desires to see everything and to fix it in its place, but never to be seen himself. He stands behind a screen that conceals his face and feelings, studying the colonial subject as if they were a picture or an object or a wild animal being observed from within a hide. Duterrau’s revolution lies in this: in stark contrast to these familiar tropes of colonial representation,109 Aboriginal people are here shown as agents of observation, not merely as objects. It is the white man who is under observation. Robinson may be the centre of attention, to be sure, but he is by no means the centre of gravity. This time he does not judge, but is judged. The positions of ethical subject and epistemological object have been reversed. So the painting does not, strictly speaking, represent an act of conciliation but rather performs it by its own destabilization of power relations. Duterrau’s 108

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Paul Carter, The Lie of the Land (Boston: Faber & Faber, 1996); Simon Ryan, The Cartographic Eye: How Explorers Saw Australia (Cambridge: Cambridge University Press, 1996); Nicholas Thomas, Possessions: Indigenous Art, Colonial Culture (London: Thames & Hudson, 1999). See Thomas, Possessions.

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painting creates in us, here and now, the awareness that we are also being watched and judged. Dutterau’s image of course is by no means an accurate representation of the events of the time. Nor does it come to terms with the catastrophe that Robinson’s so-called ‘conciliation’ actually accomplished; the confinement of the last of the Tasmanian Aboriginal people to a small settlement on an isolated island, where they died of disease and neglect. Robinson’s good intentions, if that’s what they were, had genocidal consequences. Certainly, the painting is a naive fantasy or colonial propaganda. But it has the merits of not being modern. Duterrau’s art at least demonstrates that the capacity to imagine a future for Aboriginal people, and to represent them with real individuality and integrity was, even in 1840, a genuine possibility in social and legal relations. Duterrau provides us with important evidence to suggest that ideological determinism cannot excuse the choices that colonial authorities and artists made, either then or now. Two hundred years later, we still have something to learn from this. Duterrau’s representation inverts the trope of encounter not only in the way in which he depicts Aboriginal people, but by implying that conciliation derives from relational not legal recognition, a process in which Aboriginal agency is paramount. This too has a temporal aspect. The painting does not project the legal and moral rights of Aboriginal people far off into the never-never. If it normalizes them, as in a way it does, it does so by normalizing difference, their difference not just from us but from each other, as we are also different not just from them but from each other. And it shows dignity and respect as part of their normal life, into which August Robinson has intruded and not as an element that is suspended until they enter our time, our world. The relationship between colonial time and law is structured around an absence and a void. We see here a very early effort at reimagining it. It is shown here as a fluid movement that flows around legal authority, like water round the rock, rather than as an event that exists only in suspension until legal authority makes its entrance – in the form of Augustus Robinson, or the Governor of Van Diemen’s Land, or the Prime Minister of Australia. The Proclamation shows the law as a boon which the British were free to bestow or withhold – not yet – as they saw fit. Duterrau on the contrary depicts the law as an event in Aboriginal history that precedes and outlasts the British. It is a question of temporal perspective, whether we imagine law as creating the empty time that will allow its emergence not yet but later, or on the contrary as entering a time that is already crowded with meaning. Of course, the reason for the radical differences between these two images is that they were drawn from different perspectives. The Proclamation sees and represents things only from the point of view of colonial authority. But that is the point. While our understanding of justice and our commitment to the rule of law only dreams about the future, it will continue to perpetrate injustice now.

4 Turner’s Slave Ship Now Time

three readings This book brings together questions of time, law, and the visual arts. This chapter draws on threads that were introduced in the previous one, and does so again in the context of the critical problem of nineteenth-century legal history – the treatment of colonized peoples. J. M. W. Turner’s Slave Ship offers a powerful case study that throws yet more light on these legal themes, and in this sense can be seen as a companion piece to the Proclamation. Once again, in pursuit of a ‘preposterous history’, my reading of Turner’s painting is informed by its aesthetic, philosophical, legal, and social history, but at the same time I am determined to bring it into a dialogue with images and laws in the modern world. The richness of a fully historicized reading matters, first because it sheds light on our legal and cultural history and development; and second because Turner’s painting anticipates many images that circulate, more neuralgically than ever, in the body and legal politic of our own time. Turner’s imagery and rhetoric furthers our understanding of the colonial humanitarian impulse so fatally personified in Governor Arthur. What we might call the dark side of colonial righteousness, the sincerity of its aspirations and yet the harm that it does to the objects of its pity, is even more explicitly represented here. In this chapter it is placed in the context of the philosophical discourse of sensibility that informed and engaged it. The two chapters thus work together to give the reader a picture of colonial law as a tragic virtue. If Governor Arthur’s Proclamation frames the question as a problem of colonial law, the current chapter reverses our point of view, reframing it as a problem of imperial law. The general theme of this chapter is precisely the point of view of the image, and therefore of perspective, recognition, and identification. What matters is not just what we see, but where we stand. At the same time, this chapter calls on the resources of the image itself to uncover the possibility of its interpretation from different points of view. Turner’s Slave Ship is used to diagnose a certain mentality but, finally, to disrupt it. As Chiara Bottici 105

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argues in Imaginal Politics, it remains possible to deploy the power of images against the grain.1 We see here the beginnings of a strategy that sees in images not only the sublime object of law’s ideology but also its immanent critique. This polyvalence, to quote Derrida, ‘is not bad news. We may even choose to see in this a stroke of luck for politics’.2 It is right to introduce the idea of art as a challenge to political conformity in the context of the nineteenth century, since the repositioning of the artist as a critic or a revolutionary against rather than in the service of the state, owes so much to Romanticism. By introducing the viewer as a key component of the effect of the image, this chapter aims not only to thicken our understanding of nineteenth-century colonial law, but to begin the work of challenging it. The shift in point of view that changes the representational standpoint of the artwork, in this case Turner’s Slave Ship, likewise shifts our temporal relationship to it. Our analysis of Turner’s Slave Ship, and our relationship to the questions of human rights it arguably raises, will take us from distance to closeness in space, and from the past to the present in time. Walter Benjamin coined the term jetztzeit or ‘now-time’ to describe a relationship with the image that was not desiccated and historical but instead experienced as an immediate, urgent and unavoidable – indeed, revolutionary – demand for action.3 This immediacy, this breaking through to an event which is not historicized or distanced but experienced as a demand or force, is sometimes called a kind of ‘messianic time’, and is connected to the notion of ‘divine violence’ discussed in his powerful but elusive ‘Kritik der Gewalt’. But it is clear that his deployment of this idea of an urgent presence is both associated with, and usefully helps to clarify, the distinction between ‘aestheticizing politics’ and ‘politicizing art’ that he made in ‘The Work of Art in the Age of Its Technological Reproducibility’.4 The ideological appropriation of art situates it as a fate or a destiny outside of place or time, scrutiny, or agency; the image comes to stand for something already over and done with. Art that resists this ideological determinacy works in the opposite way, testing political mythology against precise contexts, times, and consequences. ‘Aestheticizing politics’ turns visual representation into something atemporal and utopian, mythic and therefore ultimately, in its appeal to eternity, reactionary; as our study of Reynolds showed. ‘Politicizing art’ on the contrary, demands that we return the image to temporal and spatial specificities in which 1

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Chiara Bottici, Imaginal Politics (New York: Columbia University Press, 2014). See Desmond Manderson, ‘Introduction’, in Law and the Visual: Representations, Technologies and Critique (Toronto: University of Toronto Press, 2016). Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11 Cardozo Law Review 919–1045, at 943–5. Walter Benjamin, ‘On the Concept of History’, in Howard Eiland and Michael Jennings, eds., Walter Benjamin, Selected Writings, Vol. 4, 1938–40 (Cambridge, MA: Belknap Press, 2006), pp. 389–411, Thesis XIV, p. 395. Walter Benjamin, ‘The Work of Art in the Age of Its Technological Reproducibility’, in Eiland and Jennings, eds., Walter Benjamin, Vol. 3, pp. 101–33, p. 122.

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we are still implicated.5 The former celebrates the art that conceals a politics; the latter exposes the politics concealed in art. The ‘here and now’ or compulsion to act in the work of art encompasses its unique existence and the history of its reception.6 So, for Benjamin, the ‘aura’ or presence of the work of art has a necessary temporal dimension and urgency. What Georges DidiHuberman adds to this diagnosis is precisely the awareness that part of the work that the work of art does, is not to be found in the archival reconstruction of its meaning or origin, but can only be realized in the now-time of its presence before us, for which the work clears an opening. That is why, for Didi-Huberman, to be face to face with time and face to face with the image are the same thing.7 As we shall see, art’s potential lies not so much in its explicit content, but the relationship it establishes with, and the point of view of, a spectator. The image is not just an artefact – the record of some prior reality created by such-and-such an artist at such-and-such a time.8 It is a site of response that demands something of, and constitutes something in, us. The responsibility we feel in front of a work of art is not a command that we return it to its own time, but that we continue to experience it in – and as – ours. So my discussion of Turner’s Slave Ship treats the question of our temporal relationship to the image as part of the broader question of the nature of representation, of the depiction and point of view of an event and of our responsibility for it, as it concerns both images and law. This will involve three different ways of looking at the painting. Louis Marin insists that a work of art contains ‘a dual dimension – a reflective dimension, presenting oneself; a transitive dimension, representing something – and a dual effect – the subject effect and the object effect’.9 In the first or objective mode, we are attentive to the external referents of the artwork: the story it tells. In the second or subjective mode, we turn our attention to its internal or constitutive effects on viewers: the storyteller it makes. Eighteenth-century thought left a significant legacy in this process. The discourse of moral sentiment in philosophy and the ‘age of sensibility’10 in literature redirected attention from the external 5

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The argument is further developed in Desmond Manderson, ‘Here and Now: From Aestheticizing Politics to Politicizing Art’ (2016) 13 No Fo 92–107. Ibid., 103. Georges Didi-Huberman, ‘Before the Image, Before Time: The Sovereignty of Anachronism’, in Claire Farago and Robert Zwijnenberg, eds., Compelling Visuality: The Work of Art in and out of History (St Paul, MN: University of Minnesota Press, 2003), pp. 31–44, at p. 32. Georges Didi-Huberman, Devant le temps: Histoire de l’art et anachronism des images (Paris: Minuit, 2000) and Devant l’image. Question pose´e aux fins d’une histoire de l’art (Paris: Minuit, 1990). Louis Marin, On Representation (Stanford, CA: Stanford University Press, 2001), p. 256. Of course this is not to deny their imbrication: Hubert Damisch, A Theory of Cloud: Toward a History of Painting (Stanford, CA: Stanford University Press, 2002). Northrop Frye, ‘Towards Defining an Age of Sensibility’ (1963) in Harold Bloom, ed., Poets of Sensibility and the Sublime (New York: Chelsea House, 1986), pp. 11–16; Janet Todd, Sensibility: An Introduction (London: Methuen, 1986), pp. 3–9. See also Graham Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago, IL: University of Chicago Press, 1996); Markham Ellis, The Politics of Sensibility: Race, Gender and Commerce in the Sentimental Novel (Cambridge: Cambridge University Press, 1996); Chris Jones, Radical Sensibility: Literature

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representation of objects to the internal disposition of subjects, and from reason and self-interest to feeling and subjectivity as the basis for social order. These transformations gave art new functions in the project of law. The question therefore arises as to where [the social structure] is to locate a sense of unity powerful enough to reproduce itself by. In economic life, individuals are structurally isolated and antagonistic; at the political level there would seem nothing but abstract rights to link one subject to the other. This is one reason why the aesthetic realm of sentiments, affections and spontaneous bodily habits comes to assume the significance it does.11

But there is a third possibility. Mieke Bal places the tension between these two modes of representation at the heart of critical visual practice. In particular, Bal’s distinction between ‘signs for the real’ and ‘signs for the text’ argues that these two ways of reading images may productively be set against one another.12 The anomalous details lurking within images, which are very often ignored or dismissed, may allow a critical reading that neither accepts at face value its object-effects nor succumbs without question to its subject-effects. In the third or critical mode, the ambiguities of the image bring to the fore the ‘here and now’ of our experience in front of the artwork, reconstituting us as active agents in relation to it.13 If the first two modes sometimes facilitate aesthetics’ social conservatism, its fatal positioning of art and law as representations that are over and done with, outside of our control or choice, the third mode transforms our temporal and aesthetic relationship to the image, unleashing its critical potential by changing our point of view.

reading in the objective mode The Slave Ship (Figure 4.1) was one of J. M. W. Turner’s most controversial paintings, exhibited at the Royal Academy in 1840. The painting is a bravura evocation of sunset and seascape set against a disturbing and macabre theme. Turner’s title for it was ‘Slavers throwing overboard the dead and dying – Typho[o]n coming on’. Dwarfed by the might of the sea and obscured by the glare of the sun, several tiny figures, hands beseechingly outstretched, are surrounded by iron chains. On the right, the dead body of a woman is being devoured by fish. A great shark bears down on them. In the background, a ship is buffeted by the storm. On the horizon, the setting sun bathes this monstrous scene in a dazzling, almost painful, light.

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and Ideas in the 1790s (London: Routledge, 1993); Jerome McGann, The Poetics of Sensibility: A Revolution in Literary Style (Oxford: Clarendon Press, 1996); G. S. Rousseau, ‘Nerves, Spirits, and Fibres: Towards Defining the Origins of Sensibility’, in Bob Brissenden and J. C. Eade, eds., Studies in the Eighteenth Century, Vol. 3 (Toronto: University of Toronto Press, 1976). Eagleton, Ideology of the Aesthetic, p. 23. Mieke Bal, ‘De-disciplining the Eye’ (1990) 16 Critical Inquiry 506–31. Sigmund Freud, Totem and Taboo and Other Works, James Strachey and Anna Freud, trans. and ed., The Standard Edition of the Complete Works, Vol. XIII (London: Hogarth, 1955 [1918]), ch. 2.

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figure 4.1 J. M. W. Turner, The Slave Ship (Slavers Throwing Overboard the Dead and Dying – Typhoon Coming On), 1840. Oil on canvas, 90.8 cm × 122.6 cm, Museum of Fine Arts, Boston. (Photograph © 2018; Museum of Fine Arts, Boston). For the colour version of this figure, please refer to the plate section.

The scene alludes to the case of the Zong,14 a slave ship. In November 1781 it was en route from West Africa to the Caribbean, overcrowded and behind schedule. Many of the captives on board fell sick or were suffering from malnutrition. On three consecutive days, the ship’s captain, Luke Collingwood, ordered men, women, and children to be thrown overboard. At least 132 drowned; one survived. The owners claimed on the insurance for the loss of the slaves under a term covering ‘goods’ jettisoned at sea, but not those which died of ‘natural causes’. The insurance company, suspecting that it was with this provision in mind that they had been thrown overboard in the first place, would not pay up. At trial, the shipowners argued that a shortage of water on board had endangered all the ship’s company, and that some of the slaves had to be sacrificed in order to save the lives of the rest. The trial judge agreed. As the Solicitor-General, John Lee, insisted: 14

See the influential discussion by Thomas Clarkson and Evan Lewis, The History of the Rise, Progress and Accomplishment of the Abolition of the African Slave-trade, by the British Parliament (London: R. Porter, 1816); see also Thomas Clarkson, An Essay on the Slavery and Commerce of the Human Species: Particularly the African, Translated from a Latin Dissertation, which was Honoured with the First Prize in the University of Cambridge, for the Year 1785 (Cambridge: J. Phillips, 1788).

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What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well serving honorable men of murder . . . The case is the same as if horses had been thrown overboard.15

Lord Mansfield – who, in Somerset’s Case,16 had already gone a little way towards recognizing the rights of slaves – heard the appeal. It clearly troubled him. This is a very uncommon case, and deserves reconsideration. There is great weight in the objection that the evidence does not support the statement of the loss made in the declaration. There is no evidence of the ship being foul and leaky, and that certainly was not the cause of the delay. There is weight, also, in the circumstance of the throwing overboard of the negroes after the rain (if the fact be so), for which, upon the evidence, there appears to have been no necessity.17

Gregson v. Gilbert was by no means the common law’s finest hour.18 The logic of slavery was not overturned; Lord Mansfield merely ordered a retrial. It never took place; the shipowners may have been worried about the broader implications of an adverse finding. Neither was Captain Collingwood brought to justice; he was one of those who had fallen ill on the journey, and he died shortly after the Zong reached port. Nevertheless, the case brought to light the callous logic of the slave trade, and the consequences of thinking of human beings as goods or chattels. It was a signal moment in the growth of abolitionist sentiment in Britain. Several writers have assumed that Turner’s painting depicts the story of the Zong. But Turner may well have had more recent incidents in mind. The British slave trade had been outlawed in 1807, but the Slavery Abolition Act had only put an end to the institution of slavery in its Caribbean colonies barely two years before Turner’s painting was exhibited. In 1840, just down the road from the Royal Academy, not one but two major conferences were being held, demanding the global prohibition of the slave trade. Neither was the practice of ‘jettison’ only of historical interest. In 1838, in a widely reported parliamentary speech, distributed as a pamphlet by anti-slavery groups, no less a figure than Lord Brougham accused the government of encouraging the jettison of slaves.19 In harrying the slave trade, members of the Royal Navy’s West Africa Squadron were rewarded with ‘head money’ calculated according to the number of slaves they rescued, while slavers, if caught, were fined according to the 15

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Colin Bobb-Semple, English Common Law, African Enslavement and Human Rights (CreateSpace Independent Publishing Platform, 2012), p. 22. Somerset v. Stewart (1772), 98 Eng. Rep. 499. Gregson v. Gilbert (1783), 99 Eng. Rep. 629. The most profound creative response to the case is to be found in M. NourbeSe Philip, Zong! (Middletown, CT: Wesleyan University Press, 2011). See e.g. Spectator, 17 March 1838, p. 10; Henry Lord Brougham, Speeches of Henry Lord Brougham, upon Questions Relating to Public Rights, Duties, and Interests: With Historical Introductions, and a Critical Dissertation upon the Eloquence of the Ancients, 4 vols. (Edinburgh: Adam & Charles Black, 1838).

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number of slaves in their possession. So the Navy had every incentive to wait until slave ships were put to sea before intervening; while slave ships had every incentive to destroy the evidence.20 Lord Brougham said: The irons too serve the purpose of weights . . . to the end that the wretches may be entangled to prevent their swimming . . . It is not a creation of fantasy to add that . . . sharks follow in her wake, and her course is literally to be tracked through the ocean by the blood of the murdered with which its enormous crimes stain the waters.21

Turner’s painting, with its blood-red sea, its prominent irons, and trailing sharks, clearly draws on more than just the story of the Zong. Yet the Slave Ship initially met a hostile reception. Many contemporary critics found it moralizing, maudlin, and unrealistic.22 What seemed to work against it was the ‘sentimentality’ of the picture. The sentimental literature of the eighteenth century had sought to produce not social realism but a heightened emotional response for the purposes of moral education.23 David Hume turned the Enlightenment suspicion of emotions on its head, arguing that it is only through the sympathy that vibrates through us at the plight of others, like the sympathetic vibrations of a violin, that we become capable of moving from self-interest to the public interest.24 Adam Smith, in The Theory of Moral Sentiments,25 developed and transformed this argument, refracting sentiment and sympathy through the fiction of the ‘impartial spectator’.26 For Smith, it is not so much our own spontaneous feelings that form the basis of moral judgement, but those of this imaginary third party – substituting for that Enlightenment figure ‘the reasonable man’, a new avatar of judgement, ‘the sensible man’.27 But the ‘excesses of sensibility’ or ‘fashionable sentimentality’ came in for growing criticism.28 By the beginning of the Victorian era, Turner’s association of strong feeling with moral action seemed hopelessly old-fashioned – not an appeal to sentiment but to the sentimental.29 20

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John McCoubrey, ‘Turner’s Slave Ship: Abolition, Ruskin, and Reception’ (1998) 14 (4)Word & Image 319–53. Henry Lord Brougham, in British Parliament, Hansard, vol. 40, 7 March 1838, quoted ibid., p. 327. E.g. Mark Twain, A Tramp Abroad (New York: Oxford University Press, 1996), ch. 24. Michael Bell, Sentimentalism, Ethics and the Culture of Feeling (New York: Palgrave, 2000), p. 80; Todd, Sensibility, pp. 1–7. David Hume, A Treatise of Human Nature (Oxford: Clarendon Press, 2011, first published 1739); John Mullan, Sentiment and Sociability: The Language of Feeling in the Eighteenth Century (Oxford: Clarendon Press, 1988); James Chandler, An Archaeology of Sympathy (Chicago, IL: University of Chicago Press, 2013). See also Francis Hutcheson, Essay on the Nature and Conduct of the Passions and Affections with Illustrations on the Moral Sense (New York: Liberty Fund, 2003, first published 1742). Adam Smith, The Theory of Moral Sentiments, ed. Knud Haakonssen (Cambridge: Cambridge University Press, 2002, first published 1757). David Raphael, The Impartial Spectator – Adam Smith’s Moral Philosophy (Oxford: Clarendon Press, 2007). See ibid.; Mullan, Sentiment and Sociability. Bell, Sentimentalism, pp. 44–52; Todd, Sensibility, pp. 1–9. Bell, Sentimentalism, pp. 118–20; see Fred Kaplan, Sacred Tears: Sentimentality in Victorian Literature (Princeton, NJ: Princeton University Press, 1987); Bob Brissenden, Virtue in Distress: Studies in the Novel of Sentiment from Richardson to Sade (New York: Barnes & Noble, 1974);

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John Ruskin saved the reputation of the painting, insisting in Modern Painters (1843) that it staked the greatest claim for Turner’s immortality.30 Indeed, he evinced a particular love of the work. His father purchased it for him as a wedding gift, and the canvas remained in his private collection for many years.31 But Ruskin’s defence of the Slave Ship is notorious. He relegates its subject matter to a footnote,32 treating the painting instead as a study of light on the sea. Even so, his analysis may not have been quite as anodyne as that.33 The painting shines, he says, with an awful but glorious light, the intense and lurid splendor which burns like gold and bathes like blood . . . [The ship’s] thin mast written on the sky in lines of blood, girded with condemnation in that fearful hue which signs the sky with horror, and mixes its flaming flood with the sunlight – and cast far along the desolate heave of the sepulchral waves, incarnadines the multitudinous seas.34

Not red and yellow – blood and gold.35 The language echoes Brougham’s description of ‘the blood of the murdered with which [the slavers’] enormous crimes stain the waters’.36 Still more explicitly, Ruskin’s references to the light that ‘incarnadines the multitudinous seas’ links the slave ship to Macbeth, that most guilt-wracked of figures. Will all great Neptune’s ocean wash this blood Clean from my hand? No, this my hand will rather The multitudinous seas incarnadine, Making the green one red.37

Ruskin’s language and cadence likewise emphasizes the biblical allusions of Turner’s image. Two shafts of brilliant light cut the picture into the shape of a cross. First, a white, horizontal light seems to shoot from the left of the frame like a bolt of lightning, giving the image its sense of movement. Second, a golden vertical light slices through the middle of the image, quelling its turbulent spirit. Turner’s

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Markman, Politics of Sensibility. On the transition from sentimentality to Romanticism, see M. H. Abrams, Natural Supernaturalism (New York: Norton, 1971); Morse Peckham, ‘Toward a Theory of Romanticism’ (1951) 66 Proceedings of the Modern Languages Association 5–23; John Rosenberg, ‘Sentimentalism to Romanticism: Rereading “Maria”’ (1994) 22 Latin American Literary Review 5–18. John Ruskin, Modern Painters, Volume I, first published 1843, in E. T. Cook and Alexander Wedderburn, eds., The Works of John Ruskin, Volume III (London: George Allen, 1903), p. 572. McCoubrey, ‘Turner’s Slave Ship’; Cook and Wedderburn, eds., Turner, p. 605. ‘She is a Slaver’, he notes, ‘throwing her slaves overboard’, before adding that the foreground is ‘encumbered with corpses’ (Ruskin, Modern Painters, p. 572). It is worth noting as a preliminary point that the criticism decontextualizes Ruskin’s discussion. It takes place as part of a chapter dedicated to the artist’s treatment ‘Of Water’, and Ruskin’s examination of the painting is perhaps understandably limited to that aspect (ibid., pp. 494–73). Ibid., p. 572. McCoubrey, ‘Turner’s Slave Ship’, 337. Henry Lord Brougham, in British Parliament, Hansard vol. 40 quoted ibid., p. 327. William Shakespeare, Macbeth, Act II, Scene ii, 60–3; Ruskin identifies the passage in a footnote (Modern Painters, p. 572).

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last words were reported to be ‘the sun is God’.38 Here, its dying gleam seems to take on the shape of the Archangel Michael, an early figure of divine justice, the sword of judgement aloft in his right hand, the scales of justice held low by his other side. In medieval art, the sun itself was often represented as the pitiless instrument of divine judgement.39 The light silences the storm, so that an eerily tranquil slice of sea bisects the stormy sea. This must surely put us in mind of Moses’ parting of the waves, the flight of the Hebrews out of Egypt, and the drowning of Pharaoh’s pursuing overseers. Throughout the nineteenth century, black Americans sought comfort in the story of Exodus and identified themselves as modern-day Jews.40 The ‘incarnadine’ sea recalls, then, another Red Sea, and another narrative of slavery and redemption.41 Nature in Turner’s painting does the work of God – the storm enacts its vengeance on the ship; the glowing sunset redeems the dead and dying. These were standard themes in abolitionist tracts, evoked precisely by images of slaves holding aloft unbound hands and broken chains – in triumph not despair. Although in Turner’s case the Hebrews and not the Egyptians find death, they are summoned in spirit to the Promised Land. The critics who held Turner to a standard of realism missed the point. The painting does not try to be accurate but true – true, not to an event but to a sentiment. Turner’s is another abolitionist tract saturated in the humanitarian rhetoric and emotive compassion of the Victorians. What sets his version apart is its diagnosis of slavery as a feeling not a fact, as present not as past, and as British not as foreign.42 The contemptuous laughter of the early critics was perhaps symptomatic of the rawness of British guilt, which Turner situates precisely ‘here and now’. The painting’s temporal urgency is the key to its power.

reading in the subjective mode Let me turn now to ‘the subject-effect’ – how the Slave Ship constitutes the affective disposition of his viewers, and constructs their relations to law and to others. The intense debate that still rages over the meaning of the Slave Ship comes down to whether and how such events should be treated in art. How can one represent the 38

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Of multiple secondary sources, see Norman Davies, Europe: A History (London: Pimlico, 1988), p. 687. For example, Albrecht Du¨rer, Sol Justitiae (1500), in Albrecht Du¨rer, The Complete Engravings, Etchings and Drypoints of Albrecht Du¨rer (New York: Dover, 1972); see Erwin Panofsky, The Life and Art of Albrecht Du¨rer (Princeton, NJ: Princeton University Press, 1955), pp. 78–9. See also the discussion in Chapter 1 in this book. Paul Gilroy, The Black Atlantic (Cambridge: Cambridge University Press, 1993), pp. 205–7. One of the difficulties in this connection is that the red dye used by Turner has been lost in the painting and darkened to a ‘hard valueless brown’ throughout the picture. So the redness of the sea is hard to appreciate from this distance in time. Even when Ruskin was writing, he noted that the Slaver had already ‘chilled in some of the darker passages’ (Modern Painters, p. 249). Marcus Wood, Blind Memory: Visual Representations of Slavery in England and America, 1780–1865 (Manchester: Manchester University Press, 2000), p. 44.

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infinite or the unrepresentable? This is one of the central questions of the sublime, which the Slave Ship treats in two different registers . The picture, says Ruskin, ‘is dedicated to the most sublime of subjects . . . the power, majesty, and deathfulness of the open, deep, illimitable sea’.43 Turner employs a violent swirl of colours and brushstrokes – ‘mud’, according to Mark Twain – so as to create an effect of confusion, terror, and disorientation. This accords with Burke’s theory that the terror of the sublime required obscurity.44 It grows in the shadows and shrinks in the light. But to this natural sublime, Turner juxtaposes the human sublime of our own mortality. The incomprehensibility of our ‘deathfulness’ must arouse within us feelings of vertigo and of horror. It is debatable whether or not the painting succeeds in its efforts to yoke together images of natural and mortal terror – the failed sublime is merely grotesque, an epithet which has been applied to Turner’s composition on more than one occasion.45 But Turner’s high-risk strategy invites a more telling critique. Despite their significant differences, both Edmund Burke and Immanuel Kant, its two most significant theorists in the late eighteenth century, considered the sublime not as a natural phenomenon but as a subjective human experience.46 We see this most clearly in Romanticism, in which the representation of awesome nature was often enough a means of reflecting on the heightened sensibility of the artist.47 The romantic interest in the sublime marked the gravitation of sentiment towards ‘spectatorial aloofness’ – an obsession with our own capacity for fine feelings as we observe, from a safe distance, the might of the world. The moral tenor of the age ‘treated ethics as a matter of sentiment, sentiment as a matter of sympathy, and sympathy as a matter of spectatorship’.48 Conforming to

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Ruskin, Modern Painters, p. 573. Edmund Burke, A Philosophical Enquiry into the Sublime and Beautiful (Harmondsworth: Penguin, 1998, first published 1757), pp. 59–61. See the discussion in Albert Boime, ‘Turner’s Slave Ship: The Victims of Empire’ (1990) 10 Turner Studies 34–43. Burke, Philosophical Enquiry, pp. 39–51. Immanuel Kant, Critique of Judgment (Minneapolis, MN: Hackett, 1987, first published 1790), sections 23–7; Paul Crowther, The Kantian Sublime: From Morality to Art (Oxford: Oxford University Press, 1991), pp. 70–99, 108. The contrast lies with twentieth-century theorists for whom the sublime is precisely the mis en abyme of human power: Jean-Franc¸ois Lyotard, The Postmodern Condition: A Report on Knowledge (Minneapolis: University of Minnesota Press, 1984). For a comprehensive critique of Lyotard’s use of Kant, see Jacques Rancie`re, Aesthetics and Its Discontents (New York: Polity, 2009). William Wordsworth, The Cornell Wordsworth: The Thirteen-book Prelude, Stephen Parrish and Mark L. Reed, eds. (Ithaca, NY: Cornell University Press, 1991); see M. H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Tradition (Oxford: Oxford University Press, 1971). This is very clear in Ruskin’s understanding of Turner: see Ruskin, Modern Painters, p. 134. See also Ian Baucom, Specters of the Atlantic: Finance Capital, Slavery, and the Philosophy of History (Durham, NC: Duke University Press, 2005), p. 288; Thomas Weiskel, The Romantic Sublime (Baltimore, MD: Johns Hopkins University Press, 1986); Bloom, Poets of Sensibility and the Sublime. Karen Halttunen, ‘Humanitarianism and the Pornography of Pain in Anglo-American Culture’ (1995) 100 American Historical Review 303–34, at 307.

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this logic, Turner ‘shifts the concrete horror of the slave system above time and place’.49 He does not imagine the life of a slave, or even descend into the water with them. Human beings are reduced to cyphers and symbols. His drowning souls have no eyes; no faces; no individuality, agency, or history. He treats them like beasts in death, just as they had been treated in life.50 They are represented as objects for whom we feel an abstract and lofty pity, not as subjects with whom we feel sympathy. In his 1795 essay Of Naïve and Sentimental Poetry, Friedrich Schiller specifically warned against this tendency of sublime representation to separate us from individual lives, and lead us into a grave moral narcissism.51 Throughout the nineteenth century, sentimental literature came to be disparaged as ‘rancid’, ‘mawkish’, and ‘sickly’.52 Yet ironically this lofty sentiment was not without significant consequences. From a point of view which positioned black Africans as abject and passive objects of British pity, the colonial project became not just attractive, but obligatory. This is precisely the philosophical and emotional stance taken by Governor Arthur in Chapter 3. There too colonial pity and colonial violence are revealed not as opposites but correlatives. That was in 1830, but this affinity has formed the basis of colonial humanitarianism ever since. In meetings of the Anti-Slavery Society, held at the same time as the Royal Academy in 1840, leading abolitionists like Fowler Buxton advocated political and economic colonialism as the answer to the ‘problem’ of African abjection. ‘The horrors of Africa were not to be described or even conceived’, he said. ‘The tongue of man could not tell them, the ear of man could not receive them, they completely outran the comprehension of man’s mind.’53 ‘Africa’ itself, in its essential passivity and darkness, was the problem; just as Edmund Burke thought that the darkness of the Negro was ‘terrible of its own nature’.54 If slavery was just a symptom of the African sublime,55 the imposition of colonial civilization was surely the solution. Subject peoples were to be dragged, like flotsam, from the hapless destiny in which they were floundering.56 49

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Tobias Do¨ring, ‘Turning the Colonial Gaze: Re-visions of Terror in Dabydeen’s Turner’ (1997) 11(38) Third Text 3–14, at 8. For an astonishing and sustained creative endeavour to rescue the victims of the tragedy from their anonymity, with direct relevance to Gregson v. Gilbert, see NourbeSe Philip, Zong! Friedrich Schiller, Naive and Sentimental Poetry and On the Sublime, trans. Julius Elias (New York: Frederick Ungar, 1984, first published 1795); see Bell, Sentimentalism, pp. 80–91. See Ross Brown and Douglas quoted in Elizabeth Maddock Dillon, ‘Sentimental Aesthetics’ (2004) 76 American Literature 495–523, at 496; Coleridge and Byron quoted in Todd, Sensibility, pp. 7–9. Quoted in Boime, ‘Turner’s Slave Ship’, p. 37 (italics added). Burke, Philosophical Inquiry, p. 142. See Gilroy, ‘The Slave Sublime’, in Black Atlantic, pp. 187–223. Unfortunately, although the title of Gilroy’s chapter refers to the sublime, the term is hardly touched on. Rudyard Kipling’s ‘White Man’s Burden’ is a classic statement of the sentiment: ‘To wait in heavy harness / On fluttered folk and wild– / Your new-caught, sullen peoples, / Half devil and half child’ (The Collected Poems of Rudyard Kipling (Ware: Wordsworth Editions, 1994), p. 334).

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The Slave Ship depicts a moral feeling and a moral failing. Turner perpetuates ‘slavery as the site of black victimage’57 – anonymous, impotent, barely human.58 Rather than a demand for justice, Turner makes a plea for mercy.59 His ‘colonial gaze’ reveals a slippage from an equal to a hierarchical relationship, from sentiment to mere sentimentality, from sympathy to pity, and from right to righteousness.60 The uncanny brilliance of his masterpiece lies in its ability to consciously depict a system of exploitation that the Empire was ultimately willing to forego, while subconsciously revealing another system of exploitation that the Empire was not able to see. We are in the presence of not one but two perspectives: the story of suffering that is represented and the colonial gaze doing the representing.61 At stake is the very question of representation. By the creation of a frame both spatially distant and temporally predetermined, from beyond which we view the image, colonized or disenfranchised peoples are constructed as objects of imperial knowledge. So too, from the same standpoint, colonizers are constructed as aloof spectators whose perspective and feelings are privileged. As Damisch says, the gaze on the legal object and the gaze of the legal subject operate together. Thus, as the treatment of Indigenous people in Australia so clearly shows, the imposition of violence by one group on the other is justified ‘for their own good’.62 Turner’s painting illuminates this mentality, without appearing to be conscious, it would seem, of its internal contradictions. The colonial project thrived on just such double-think. Of course, not everyone read Turner’s image in the same way. Nineteenthcentury viewers were at least as diverse and critical as their modern-day counterparts. But at the same time it is equally clear that images are important elements of the ideological ‘ways of seeing’ of a particular time and place. They are important resources that both disclose and construct an immensely powerful mindset, even if it is not all-encompassing. Ideology allows the assumptions and values that govern our practices of interpretation to dissolve into ‘common sense’.63 It exerts the most influence on how we see the world precisely at the point that it is carried by genres that are not overtly ideological, governing the questions we ask of a representation and the questions we don’t. Turner’s image made some of his nineteenth-century viewers uncomfortable by speaking of slavery as unfinished business, here and now; 57 58

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Gilroy, Black Atlantic, p. 49. Abigail Ward, ‘“Words Are All I Have Left of My Eyes”: Blinded by the Past in JMW Turner’s Slavers Throwing Overboard the Dead and Dying and David Dabydeen’s “Turner”’ (2007) 42 Journal of Commonwealth Literature 47–58, at 49–51. For the use of mercy as an instrument of power, see Douglas Hay, ‘Property, Authority, and the Criminal Law’, in Douglas Hay et al., eds., Albion’s Fatal Tree: Crime and Society in EighteenthCentury England (New York: Allen Lane, 1975) 17–63. Tobias Do¨ring, ‘Turning the Colonial Gaze’ (1997) 11 Third Text 3–14. Marin, On Representation, p. 256. For a recent elaboration in the context of postcolonialism, see Sherene Razack, Dark Threats and White Knights: The Somalia Affair, Peacekeeping and the New Imperialism (Toronto: University of Toronto Press, 2004). John Tagg, The Burden of Representation (Minneapolis, MN: University of Minnesota Press, 1988).

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part of what might make some of his twenty-first-century viewers uncomfortable is the possibility that it speaks to the unfinished business of colonial representation, here and now.

reading in the critical mode Images are like dead bodies: entirely passive and vulnerable to the interpretations of others, yet for that reason endlessly generative.64 The Slave Ship raised troubling questions about how we might regard the drowning bodies of disenfranchised strangers. These questions have not gone away. Since the turn of the present century, the Italian island of Lampedusa has become a primary point of entry into Europe for migrants from Africa and the Middle East. In 2011, 50,000 arrived by boat; by 2014, the number had risen to 170,000. But the journey is fraught with danger. From 1994 to 2012, 6,000 drowned in the attempt; in July 2013, over 300 died when an overcrowded vessel capsized and sank.65 On the other side of the world, refugees from Pakistan, Syria, or Sri Lanka, sail from Indonesia in order to try to claim asylum on Australian territory. 353 people drowned when the SIEV-X sank in 2001; 200 more with the loss of the Barokah in 2010.66 Over 1,000 people have drowned since 1999. Deaths at sea are a regular occurrence, hardly even newsworthy. When the Australian parliament debated the deaths of asylum seekers at sea in 2012, many politicians struggled to choke back tears.67 As in the case of the Slave Ship, it would be a mistake to dismiss such a sentimental response as crocodile tears. As abject as Turner’s depiction of dismembered bodies may be,68 it is undeniably true that death reduces us all to a collection of lifeless body parts, a powerful expression of our corporeal vulnerability, ‘its tenuousness, its fragility and its absurdity’.69 Yet without contemporary images of similar force, this reality is too readily chased from our minds. We are prepared to condemn the drowned, perhaps, for the risks they took; we are prepared to pity them, no doubt, in the abstract, as a statistical number of deaths at sea.70 But we are not prepared to truly imagine them as individuals who even in death have families and communities that cherish their bodies and their memories.

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Maurice Blanchot, ‘Two Versions of the Imaginary’ (1982) 39 Espace litte´raire 254–63. Der Spiegel, 9 July 2013: www.spiegel.de/international/europe/german-press-praises-pope-francis-lam pedusa-visit-a-910196.html (last accessed 15 November 2013). Mary Hutton, ‘Drownings on the Public Record of People Attempting to Enter Australia Irregularly by Boat 1998–2012’. www.news.com.au/national-news/tears-in-parliament-over-asylum-seeker-deaths-at-sea/story-e6frfkvr1226410278096 (last accessed 15 November 2013). For further on the critique of capitalism as a process of conceptual dismemberment in the nineteenth century, see William MacNeil, ‘The Monstrous Body of the Law: Wollstonecraft vs Shelley’ (1999) 12 Australian Feminist Law Journal 21. Wood, Blind Memory, p. 51. Desmond Manderson, ‘From Zero Tolerance to Harm Reduction – The “Asylum Problem Problem”’ (2013) 32 Refugee Survey Quarterly 1–21.

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The colonial gaze that troubles Turner’s painting remains as pertinent as ever. We in the twenty-first century are probably not more sophisticated consumers of visual culture than our forebears, or less susceptible to the power of representation to orchestrate our emotional reactions by strategies that objectify and externalize other people, even while we profess our concern for them. On the contrary, media images of asylum seekers at sea mimic with uncanny persistence Turner’s piteous and distancing point of view. These images are not just produced by the media (e.g. Figure 4.2), but by governments themselves (Figures 4.3 and 4.4). Such images represent ad nauseum the ‘deathfulness of the open, deep, illimitable sea’,71 as Ruskin put it, and position the abject bodies of mainly unidentifiable refugees in it. Refugees and asylum seekers are represented as passive objects at the mercy of the natural world. Governments around the world, and the Australian government in particular, pass laws and policies which explicitly prevent citizens from learning about the individual lives of asylum seekers, which discourage any effort to ‘personalise’ or ‘humanise’ them,72 that make it almost impossible for

figure 4.2 Massimo Sestini, Mare nostrum, Immigrants Shipwreck Rescued by the Italian Navy, 2015. (© Massimo Sestini, all rights reserved)

71 72

Ruskin, Modern Painters, p. 573. See e.g. the documented discussion in relation to the ‘children overboard’ affair in Senate Select Committee (Australia), A Certain Maritime Incident (Canberra: Australian Government Printer, 2002); see www.aph.gov.au/~/media/wopapub/senate/committee/maritime_incident_ctte/report/ report_pdf.ashx, p. 24 (last accessed 15 November 2013).

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figure 4.3 ‘No Way’, information page for refugees, Australian Government

Department of Immigration and Border Protection, 2014

photographers to visit the offshore processing centres where they are held, and which in some cases prohibit the publication of images of asylum seekers at all. Law’s iconophobia, its fear that images may get out of control – a fear that goes back at least to the Reformation73 – now takes on very specific forms, with the conscious intention of managing images in political and legal discourse. We construct a narrative in which generic and abstracted others appear almost exclusively in the guise of victims, and the West appears almost exclusively as bystanders or rescuers.74 Images of impotence ignore the agency and diversity of individuals themselves. Perhaps more importantly, such images write our own societies out of the lives and choices made by those living in third world countries. Legal structures treat asylum seekers as a national problem of border security, rather than a regional or global problem of human security.75 But refugees are driven out of their own 73

74

75

See Costas Douzinas and Lynda Nead, ‘Introduction’, in Costas Douzinas and Lynda Nead, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago, IL: University of Chicago Press, 1999), pp. 1–15; Martin Jay, ‘Must Justice Be Blind?’, ibid., 19–35, pp. 24–5; Costas Douzinas, ‘Prosopon and Antiprospon’, ibid., 36–68. Razack, Dark Threats; see Steven Baum, The Psychology of Genocide: Perpetrators, Bystanders, and Rescuers (Cambridge: Cambridge University Press, 2008). Note in 2014 the Australian government changed the name of the relevant Department, from ‘Immigration and Citizenship’ to ‘Immigration and Border Protection’ (Manderson, ‘From Zero Tolerance to Harm Reduction’); Catherine Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge: Cambridge University Press, 2008); Mary Crock and Daniel Ghezelbash, ‘Do Loose Lips Bring Ships? The Role of Policy, Politics and Human Rights in

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figure 4.4 ‘If You Come Here by Boat without a Visa’, information page for refugees, Australian Government Department of Immigration and Citizenship, 2013

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countries by political instability, including for example, war and other foreign policies in which we are implicated. Refugees are driven to our country by aspirations that we actively encourage, and by an entrenched poverty that produces the cheap goods we require. Sweatshops and poor working conditions in the developing world reflect the global division of labour. It is simply the colonial bargain by another name. Yet governments across Europe, North America, and Australia never acknowledge the ways in which their domestic policies and laws have caused the explosion in refugees we currently face. When climate change leads to migration flows an order of magnitude greater, or more, that won’t have been our fault either. More and more people will be floating in the water, and tougher and tougher laws will try to stop them: for their own good, again. The Australian example is salutary in the extreme. In May 2013, legislation ‘excised’ the entire Australian mainland for the purposes of immigration,76 turning the whole continent into a ‘legal black hole’77 for refugees and asylum seekers.78 The language of excision is a brutally graphic metaphor for a legal fiction that renders invisible the legal relations that subsist at international law between refugees and the state, allowing the removal of asylum seekers to offshore islands and countries where they have languished ever since.79 Treating exceptionally poor countries such as Papua New Guinea as dumping grounds for Australia’s refugee ‘problem’ means that incidents of suicide and violence are growing at a horrendous rate. Since 2014, a chorus of criticism has described these measures as blatant breaches of international law, amounting in some cases to torture. Yet as we have already seen in relation to Turner, the abject vision of drowning bodies in the water constitutes subject-viewers whose spectatorial distance, and the violent condescension that comes with it, seems like ‘common sense’ and even makes us feel morally superior. Our affective response to bodies in the water is not a counterpoint to violent practices of discipline and control – it justifies it. Governor Arthur’s Proclamation demonstrates the proposition. Turner’s Slave Ship highlights its emotional content and its humanitarian lineage. Such criticisms relate not only to the specific issue of asylum seekers, but more

76

77

78

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Managing Unauthorised Boat Arrivals’ (2010) 19 Griffith Law Review 238; James Hathaway, ‘Human Rights Quagmire of Human Trafficking’ (2008) 29 Virginia Journal of International Law 1; James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005). Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act, 2013 (Commonwealth of Australia); ‘Excision of mainland finally made into law’, The Australian, 17 May 2013. Johan (Baron) Steyn, ‘Guantanamo: The Legal Black Hole’ (2004) 53 International and Comparative Law Quarterly 1–15. Stephen Brophy, ‘Lawless Sovereignty: Challenging the State of Exception’ (2009) 18 Social and Legal Studies 199; Elspeth Guild, Security and European Human Rights: Protecting Individual Rights in Times of Exception and Military Action (Oisterwijk: Wolf Legal Publishers, 2007); Elspeth Guild, Security and Migration in the 21st Century Polity (Cambridge: Cambridge University Press, 2009); P. K. Rajaram and C. Grundy-Warr, ‘The Irregular Migrant as Homo Sacer: Migration and Detention in Australia, Malaysia and Thailand’ (2004) 42 International Migration 33. Migration Amendment (Excision from Migration Zone) Act, 2001 (Commonwealth of Australia).

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generally to a discourse of human rights that operates along parallel lines, rewarding our pity and our righteousness while it turns the suffering of others into a matter of fate, or nature, or their own wickedness, and rarely questions the innocence of the virtuous western observer.80 To offer one trifling but telling example, the Australian Prime Minister Malcolm Turnbull recently pivoted in the course of one brisk sentence from Australia’s ‘generous humanitarian program and harmonious multicultural society’ to sending an ‘absolutely unflinching unequivocal message’, through proposed legislation which would enforce a lifetime ban on all ‘irregular maritime arrivals’ being granted an Australian visa, at any time or for any purpose, wherever they settle and whatever their future may bring. The prime minister’s announcement adopted a bipolar tone – echoes of melancholy Governor Arthur – rigidly policing a demarcation between the orotund warmth used to describe law’s feeling subjects, and the martial abrasiveness that described its unfeeling objects. Perhaps Turnbull’s law was merely a rhetorical gesture designed to protect Australia’s complacent self-image as the home of the ‘fair go’, by excommunicating all those who dared question it.81 But the proposed law shows precisely the dangers of an immobile and distanced representation. The whole complex history and experience of people’s lives was obliterated. The lives of asylum seekers are anything but static. Persecution, flight, suffering, want, waiting, moving yet again; these are stories marked above all by mobility, transience, response, adaptation, and a constant effort, against all the odds, to exert some agency over their lives in times of crisis. But in its place, the Australian government offered only a single unchanging image, a refugee on the open sea, which would define their legal status for the rest of their lives. The past and future of the asylum seeker was thus reduced to a fixed point, a single moment in time and place, a still and silent representation that they were never to be allowed to leave behind. Representation, image, and legal definition form a vicious circle. Whether we are thinking about the specific contours of images, or more generally about the shape of political discourse and legal response, the issue of representation continues to be central. The visual images that teach us how to see the world are symptoms of broader relations of objectivity and subjectivity, feeling and knowing, cause and effect. What we see is what we get. We will never make much progress while the global forces in which our societies are implicated are ruthlessly excised from the picture, while the lack of visual (or cognitive) connection between us and them, internal and external realities, is so marked, and while complex and continually changing relations are reduced to a single image frozen in time. 80

81

See Razack, Dark Threats; Halttunen, ‘Humanitarianism and the Pornography of Pain’; Joseph Slaughter, Human Rights, Inc. (New York: Fordham University Press, 2007); Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2013); Richard Rorty, ‘Human rights, Rationality, and Sentimentality’, in Stephen Shute and Susan Hurley, eds., On Human Rights: The Oxford Amnesty Lectures (New York: Basic Books, 1993) 111–34. See Malcolm Turnbull MP, Prime Minister of Australia, in The Guardian, 30 October 2016.

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Yet perhaps there is another way of looking at Turner’s representation of abjection. Mieke Bal suggests that the anomalous details of an image can work to unpick its normative coherence, opening onto an alternative point of view and changing our relationship to it. The Slave Ship is just such a problem picture. Mark Twain ridiculed ‘the floating of iron cable-chains and other unfloatable things . . . The most of the picture is a manifest impossibility – that is to say, a lie’.82 The title poses another problem, since the picture does not in fact portray ‘slavers’ in the act of ‘throwing overboard the dead and dying’. The doomed ship is already far away, engulfed by the typhoon – but the dead and dying are right in front of us. So what happens if we take these anomalies seriously? According to Turner’s original title, the painting records the precise moment that slaves were being thrown overboard. It is phrased in the present tense. Perhaps, therefore, the iron chains are rendered at the very moment they hit the water – not floating, but just before they have sunk. In that case, however, the ship in the distance cannot be responsible. There must be another ship from which slavers are here and now ‘throwing overboard the dead and dying’. But where is it? If the solution to this mystery is not immediately apparent, that is due to the orthodox separation of objects from subjects in western art. All pictures have a blind spot. The reason we cannot see the slave ship is because we are viewing the painting from its position. The slavers’ point of view is the picture’s point of view, which is to say, the viewer’s point of view. The Slave Ship is what we’re standing on. Introjecting ourselves into Turner’s painting in this way – as if we were the slavers all along – sheds new light on other peculiar details. For many critics, the line of the sea ‘prompted the complaint that water flows uphill, deny[ing] viewers a means of orientation, and leav[ing] them instead with an uneasy sense of being themselves at sea’.83 But again, what is a flaw for orthodox readings gains new purchase now. If we really were to imagine ourselves on board a slave ship in the middle of the ocean, no doubt the waves would rise and fall precipitously. Above all, the strip of calm water that bisects the image now seems less miraculous, less biblical, and certainly less reliant on a symbolic explanation. Is this not the wake of the slave ship itself, cutting through the water – heading not towards the light but away from it, charting our own invisible position and our own moral predicament? To feel that wake is to be made aware of our own presence. This new reading places us in relation to, rather than excising us from, the bodies in the water. The image invokes a jetztzeit or temporal urgency ‘here and now’, which breaks through the barriers we set in place around our understanding, forcing us to become implicated in what is happening before our eyes, rather than merely observing it. This may account for the uneasiness felt even by Turner’s greatest advocate. Ruskin, having so wanted to own the painting, eventually had it sold, 82 83

Mark Twain, Tramp Abroad. McCoubrey, ‘Turner’s Slave Ship’, 335.

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declaring that he could no longer bear to be in the same room as it.84 Perhaps he thought, as a good colonialist might, that he could control its meaning by taking possession of it.85 In that case, he was wrong. Its point of view generates an interpretative mal de mer; the product, we might say, of some unstable pitch and roll that lurches between sentimentality, on the one hand, and complicity, on the other. Reframing the painting in this way might even transport us from a weak and much criticized understanding of the sentimental86 back to an earlier version. Adam Smith, it will be recalled, refracted sympathy through the fiction of the ‘impartial spectator’, asking us to evaluate our own affective responses from a point of view outside ourselves. The mediation of sympathy from multiple points of view radically reoriented Hume’s affective turn, away from self-absorption and towards an awareness of the subjectivity and perceptions of others.87 Schiller, likewise, held out hope that sentiment could be transformed from a kind of feeling into a kind of judgement.88 It is a ‘mode’, says Schiller, ‘constituted by ambivalence and reflexivity’89 whereby we come to experience multiple points of view, judging ourselves by that ‘sentimental journey’90 through the eyes of others. There is an essential triangulation and heterogeneity in Schiller’s understanding, a restless perspectivism that ‘combines seeing oneself in the eyes of another with the act of looking into our own hearts’.91 One might say that ideology works by cultivating a blind spot: the representation of our subject position in relation to others. Turning the gaze back on ourselves, but this time critically rather than indulgently, knocks us off the lofty perch of mere spectatorship. Placing ourselves within the frame of the image shifts our relationship to it. We find ourselves implicated in a tragedy that we previously only observed. The Slave Ship’s point of view reveals a moral stasis no less than a representational one. Reading Turner’s painting either as a story or as a constituent of the colonial gaze places viewers outside the action; the restless point of view advocated by Schiller makes visible our involvement in it. The first two modes represent slavery and death in the past tense, as a fait accompli; the critical point of view catches us in flagrante delicto, in the present tense. The first two readings present salvation as the gift of a benevolent god; feeling the urgency of the image here and now presents it as a matter of human choice and action. The bodies that are now so close to us that we could reach out and touch them incite not our pity but our responsibility. 84

85 86 87 88 89 90

91

Ibid., 337; Nancy Scott, ‘America’s First Public Turner: How Ruskin Sold the Slave Ship to New York’ (2009) 10 British Art Journal 69–77. Ward, ‘Words Are All I Have Left of My Eyes’; Wood, Blind Memory. Todd, Sensibility, pp. 7–9. Mullan, Sentiment and Sociability, pp. 35–49; Bell, Sentimentalism, pp. 128–32. Schiller, Naive and Sentimental Poetry, pp. 80–91. Chandler, Archaeology of Sympathy, p. 11. Laurence Sterne, A Sentimental Journey and Other Writings, Ian Jack and Tim Parnell, eds. (Oxford: Oxford University Press, 2008, first published 1768). Chandler, Archaeology of Sympathy, pp. 142, at 153–8.

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Turner’s Slave Ship exposes the threads that link the aesthetic temperament of nineteenth-century colonialism to the operations of the colonial gaze in our own time, where moral feeling and moral failing are still inseparable. But it also suggests how a shift in point of view can open up new temporal and causal relationships. If images are of vital importance in how modern governments manage the discourse of refugees and asylum seekers – and they are – that does not mean we have no aesthetic or interpretative resources at our disposal. Admittedly, we live in a time in which the media power of visual images has rarely been greater, and yet the stocks of visual literacy do not seem to have much improved.92 Contemporary images exemplify the limits of representation of the world’s boat people, in Australia, Italy and elsewhere. But were we able to imagine ourselves as participants in those images, our political and social discourse might begin to acknowledge the ways in which we are implicated in their stories, right here and right now. Projecting ourselves back into the image of drowning bodies in this way transforms it from the static representation of the past pluperfect to a continuous present. In this way, the image is restored to the messianic time, the urgency of the jetztzeit, that Turner in 1840 instilled in it. We might find ourselves compelled to imagine those who drown at sea in terms of the responsibility we bear, rather than just the pity we feel, recasting charity in the language of cause, and mercy in the language of justice. As a case study, a diagnosis, and a prospectus, J. M. W. Turner’s the Slave Ship allows us to see more clearly not only bodies in the water, but our troubling relationship to them – here and now.

92

Richard Sherwin, Visualizing Law in the Age of the Digital Neo-Baroque (New York: Routledge, 2012); Paul Messaris, Visual Literacy: Image, Mind, and Reality (Boulder, CO: Westview Press, 1994); Edward Tufte, Beautiful Evidence (Graphics Press, 2006).

5 Klimt’s Jurisprudence Suspended Time

introduction There is something uncanny and prophetic about Klimt’s lost masterpiece (Figure 5.1). A suffering naked man surrounded by eyes eerily captures the relationship between ‘sovereignty and bare life’ that Giorgio Agamben argues was reforged and refined across the twentieth century. Executive power enjoys an unfettered freedom of action in the context of a self-declared exception or emergency, increasingly dominating and shaping the bodily experience of the human beings that fall under its sway. Klimt’s image might perhaps be regarded as the very first, and perhaps still the most comprehensive, representation of this abject modern figure, although we would not be wrong in detecting the influence of Rodin’s Burghers of Calais.1 It captures in particular the relationship or non-relationship between sovereign power, law and the body – the force field of abandonment that holds the abject man in its thrall.2 And it captures the temporal structure that is the key feature of the ‘state of exception’.3 As an emergency, a national intervention, or an exceptional measure, the state of exception operates by the suspension of legal norms, allowing established laws and procedures to be overridden until such time as the sovereign determines that normal service should be resumed. Such a temporal suspension – not the abolition or the changing of a law but simply bracketing it, so to speak – may remain in place for a day, a week, twelve years, or forever – it is impossible to tell. So if power in Chapter 4 operated by containing representations of others in a frozen past, power in the present chapter operates by suspending it in a continuous present. Law sits in time out, like a child in the naughty chair, watching the clock. This notion of suspended time distinguishes the emergency or state of exception from the urgent pressure exerted by Benjamin’s jetztzeit, the ‘here and now moment’ he thought was a pressure from the present that propelled us into the 1 2

3

Auguste Rodin,Les Bourgeois de Calais, cast bronze, 201.6 cm × 205.4 cm × 195.9 cm (Calais: 1889). For a more limited and orthodox reading, strongly derived from Carl Schorske, see Jose´ Marı´a Gonza´lez Garcı´a, The Eyes of Justice: Blindfolds and Farsightedness, Vision and Blindness in the Aesthetics of the Law, trans. Lawrence Schimel (Frankfurt: Vittorio Klostermann, 2017), pp. 322–36. Giorgio Agamben, State of Exception, trans. K. Attell (Chicago, IL: University of Chicago Press, 2005).

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figure 5.1 Gustav Klimt, Jurisprudenz, 1903–7. Oil on canvas, 430 cm × 300 cm, Leopold Museum, Vienna. (© Fotografie Archiv Leopold Museum, Wien). For an alternative reproduction of this figure, please refer to the plate section.

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future. On the contrary, to exist in a state of suspended animation is to be incapable of movement, caught indefinitely in a trap. In Klimt’s Jurisprudence, the figures are caught in an eternal dance of abjection and menace. Far off, the figures of Truth, Law and Justice also hover, apparently powerless to intervene. They too hang in the air, like particles in suspension. The state of exception produces a temporal paralysis. How can a painting which no longer exists, by an artist long since dead, be ‘about’ a book written in 1998? One answer lies in the social and legal landscape already emerging at that time. The seeds of Agamben’s analysis of the relationship between sovereignty and law are to be found in the work of earlier writers such as Carl Schmitt and Walter Benjamin, much closer to Klimt’s time and place.4 More than this historical connection, the meaning of a work of art is a function not just of the artist’s intention but of the richness of quotation and cultural resonance that grows up about it.5 Art does not lose currency in changed social contexts, but accumulates it, like a snowball tumbling down a hill. So, in a manner familiar by now from previous chapters, the current chapter attempts to draw out the full implications of Klimt’s compelling image by reference to the cultural and legal forces in circulation in 1900, and by reference to how they have unfolded in the one hundred years since. The parallel reading aims to illuminate past and present, sovereign violence, Klimt’s image, and the body in legal theory,6 in relation to one another. Klimt does not merely exemplify the force field of jurisprudential violence outlined by Agamben; he complicates and interrogates it. In this chapter, I first introduce the basic themes and background of the picture, highlighting the inadequacies of a merely iconographic reading, before offering alternative interpretations of the image, and particularly of the bare life at its centre. I first interpret the picture through one of the most important cultural events that took place in Vienna while Klimt was planning Jurisprudence – the first German production of the Oresteia. This reading highlights Klimt’s critique of legal formalism, and closely connects it to the concept of homo sacer. I then develop a very different understanding of bare life via Freud’s Interpretation of Dreams – published, once again, at the very same time that Klimt was thinking about Jurisprudence. A dream, as we will see, is another kind of suspended time, another epoch that unfolds according to its own internal logic. Its arrival, duration, and departure are subject to no regulatory authority. Like Agamben’s state of exception, Freud’s dream state exists as a present without a past or a future. Nonetheless, approaching the image through the lens of Freud produces a very different reading of the relationship between bare life and law. If Klimt’s homo sacer 4

5 6

Carl Schmitt, Political Theology, trans. Kevin Attell (Chicago, IL: University of Chicago Press, 2005, first pub. 1922); Walter Benjamin, ‘Critique of Violence’, in Walter Benjamin, Illuminations, ed. Hannah Arendt (New York: Schocken, 2007, first pub. 1921), pp. 290–303; Desmond Manderson, Kangaroo Courts and the Rule of Law (London: Routledge, 2012). Mieke Bal, Quoting Caravaggio (Chicago, IL: Chicago University Press, 1999), pp. 1–23. Judith Grbich, ‘The Body in Legal Theory’ (1992) 11 University of Tasmania Law Review 26.

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illustrates the vulnerability of human life to the ‘force of law’ – the figure of the sovereign being both a creature of the law and exterior to it – Freud also reminds us of its physical reality and moral authority. Perhaps, once again, a third or critical reading might bring these two alternatives into relation with one another. Inasmuch as Klimt’s naked man exposes both the power of sovereign violence in the world today, and yet seeks to assert his bodily humanity, the painting operates dialectically. Neither oblivious to the realities of modern law nor unconscious of the responsibility of critiquing it, but suspended between them – is that not the awkward balancing act demanded of any Jurisprudence?

athene’s absence Gustav Klimt was Lord of the Ring – the Ringstrasse that is, home and monument to bourgeois Austrian legality.7 In 1894, sustained by a well-burnished respectability, he was commissioned to produce three paintings for the ceiling of the Great Hall of the University of Vienna. They were to represent the Faculties of Philosophy, Medicine, and Jurisprudence.8 It was to be an ode to the spirit of enlightenment. But by the time he came to fulfil the commission, Klimt had changed, artistically and intellectually. In 1900 and 1901, his first two paintings, Philosophy and Medicine, were excoriated.9 Philosophy showed ‘unclear ideas through unclear forms’,10 darkness and fog abounding; Medicine showed not the science of healing but bodies in pain and ecstasy, death, sex, and life writhing across the canvas.11 Reason and science are in each case subjugated to primal forces. Questions were asked in Parliament; petitions were raised against the works; the ministry was pressured to withdraw the commission; the university’s new chair of aesthetics famously declared ‘We are not opposed to nakedness or to the freedom of art, but we are opposed to ugly art.’12 In 1901, when Klimt began work on Jurisprudence (Figure 5.1) he knew what to expect.13 It was already apparent that the canvases would never be installed. In style, palette, and texture, the treatment of the final picture marks more of a rupture with the first two than their continuation. The canvas was not designed with a ceiling, or 7 8

9 10 11 12 13

See Carl Schorske, Fin-de-sie`cle Vienna: Politics and Culture (New York: Alfred Knopf, 1980), ch. 1. Gustav Klimt, Jurisprudenz, oil on canvas, 430 cm × 300 cm (Vienna: Leopold Museum, 1903–7, destroyed by fire 1945): see Fritz Novotny and Johannes Dobai, Gustav Klimt: With a Catalogue Raisonne of His Paintings (New York: Praeger, 1968), cat. no. 128; Gustav Klimt, Medizin, oil on canvas 430 cm × 300 cm (1899–1907); Gustav Klimt, Philosophie, oil on canvas 430 cm × 300 cm (1898–1907). Frank Whitford, Klimt ( London: Thames & Hudson 1990), p. 50; Schorske, Fin-de-sie`cle Vienna. Schorske, Fin-de-sie`cle Vienna, pp. 231–43. Whitford, Klimt, p. 58. See Tina Marlowe-Storkovich, ‘“Medicine” by Gustav Klimt’ (2003) Artibus et Historiae 231–52. Schorske, Fin-de-sie`cle Vienna, pp. 235–9. Ibid., pp. 246–7. See also Alice Strobl, ‘Klimt’s Studies for the Faculty Paintings Philosophy, Medicine and Jurisprudence’, in Stephan Koja, ed., Gustav Klimt: The Beethoven Frieze and the Controversy over the Freedom of Art (Munich: Prestel, 2006), pp. 27–47; Alice Strobl, ‘Zu den Fakulta¨tsbildern von Gustav Klimt’ (1964) 2 Albertina-Studien 138–69.

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with its companions, in mind. When it was first exhibited, as part of the Secession exhibition of 1903, Karl Kraus, Vienna’s most prominent critic, dismissed it as bringing the majesty of law into disrepute. The viewer might respond to the work, he suggested, with ‘ridicule or pity’ as the mood took them.14 Klimt had committed the unpardonable sin of turning his back on conventional wisdom. The painting was not called Recht or Rechtswissenschaft or Gerechtigkeit. No mystery there; Jurisprudenz was what he had been commissioned to depict – the title given to the oldest faculty in the one of the oldest universities in the Germanspeaking world.15 But a ‘faculty of jurisprudence’ stakes a claim to treat law as a coherent object of study. In the civil law tradition, die Jurisprudenz, la jurisprudence, iurisprudentia connects philosophy to practical wisdom by tracing its underlying logic. Klimt sought to illuminate a relationship between theory and practice – precisely a ‘jurisprudence’ – radically different from this self-image. He paints a portal into the faculty. We are allowed to furtively peer through the keyhole into the inner recesses of the law, but the scene we glimpse there is visceral and disturbing. It is as if the faculty were secretly a club for sexual fetishists. Justice is in drag; the law is taking its pleasure with whips and chains. No wonder they hated it. Bitter recriminations followed. The Faculty Paintings were never displayed at the university, let alone installed in the Great Hall. Klimt returned the commission and refused to hand over the paintings. They were sold to the Lederer family at the end of the First World War, only to be ‘Aryanized’ by the Nazis after the Anschluss. In 1943, they were removed for safekeeping to a castle in lower Austria. There, they sat out the war, only to be destroyed in a fire, along with about seventy other works by Klimt and others.16 Jurisprudence no longer exists. We have nothing except a few brief descriptions of it and a black-and-white reproduction. The one thing we cannot do any more is simply look at the work, since before it we are all now colour-blind. Its monochrome drabness immediately suggests black-letter law and grey-haired lawyers. But this only serves to remind us that viewing a work of art – any work of art – requires the exercise of the imagination. The original experience of looking at Klimt’s canvas was not dull but shocking. The vast canvas, over 4 metres high, was dominated by the use of only three strong colours – black, gold, and red.17 The swirling females have red hair; the currents that flow around them and give the picture a sense of giddy movement are black; gold illuminates the three goddesses that stand in the background. The monster in the middle is red or fleshy pink. It is worth beginning with Karl Kraus, not only because he was so prominent in Viennese critical and cultural circles at the time, but because his analysis of 14 15 16

17

Karl Kraus, Die Fackel, trans. Leo Unglaub and Logan Kennedy, 21 November 1903, vol. 147, pp. 10–11. Panu Minkkinen, Thinking without Desire: A First Philosophy of Law (Oxford: Hart, 1999), p. 183. Whitford, Klimt, p. 62; Christian Nebehay, Gustav Klimt: From Drawing to Painting (London: Thames & Hudson, 1994), pp. 76–7. Whitford, Klimt, p. 61.

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Jurisprudence is the fullest contemporary discussion of it we have. Writing in Die Fackel, Kraus treated Klimt’s tonal ‘symphony’ as a kind of visual slander – the scurrilous appropriation of a combination of colours ‘strictly frowned upon by the Austrian authorities’.18 By adopting the three colours of the imperial coat of arms, Klimt equates law with the power of the state, and implies that its trappings of patriotism and nobility only further eroticize its violent fetish. Throughout Europe, the judiciary almost always wore crimson robes and hats; in that way too red and black signify judicial authority, blood, and power. In the distance, among the clouds, Klimt shows three conventional allegorical figures: Nuda Veritas,19 the naked truth; Justicia in the middle; Lex cradling the word of the law, literally. They appear totemic, static, indurate. Beneath this celestial frieze, a scene of submarine horror unfolds. Three Furies surrounded by swirling black lines suggest a fast-flowing river or the sea.20 Yet in the middle of this turbulence, two central figures are locked together in an eternal embrace – one an abject everyman with head bowed, and the other a creature from the deep. The association between Hobbes’s Leviathan21 and the state springs to mind, but Leviathan was a dragon or sea serpent, or more generally a whale.22 No, Klimt has drawn a kraken, the giant octopus of northern legend.23 The German word for octopus is Krake, which echoes this mythology, but the older word polyp conjured yet more sinister resonances. The term was commonly used as a metaphor for the state and its agents – tentacular, dark-loving, ‘blood-sucking’, furtively deploying its many limbs in all directions.24 In Klimt’s Vienna, to put it bluntly, polyp was slang for the police: the long arm of the law. As Kraus puts it, the artist is ‘getting away with a painted insult’.25 A verbal pun – polyp/polizei – has been literalized visually, or visualized literally. Kraus complains that while ‘at the beginning of the twentieth century . . . no symbol can reveal relations that are richer than that of jurisprudence’,26 Klimt has merely equated law with punishment, smuggling in veiled jibes at the imperial family, the judiciary, and the police along the way. Iconography, a kind of visual 18 19

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Kraus, Die Fackel. Gustav Klimt, Nuda Veritas, oil on canvas, 240 cm × 64.5 cm (Vienna: Austrian National Library, 1899); Carl Schorske, ‘Generational Tension and Cultural Change: Reflections on the Case of Vienna’ (1978) 107 Daedalus 111–22. Gustav Klimt, Water in Motion, oil on canvas, 52 cm × 65 cm (private collection, 1898). Thomas Hobbes, Leviathan, C. B. MacPherson ed. (Harmondsworth: Penguin, 1968, first pub. 1651); Minkinnen, Thinking without Desire, p. 184. ‘Leviathan the piercing serpent, even leviathan that crooked serpent . . . the dragon that [is] in the sea’, Isaiah 27:1; ‘his scales are his pride . . . Out of his mouth go burning lamps and sparks of fire leap out’, Job 41:19. See Herman Melville, Moby Dick: Or the Whale (New York: Random House Vintage Classics, 2007). Alfred Lord Tennyson, ‘The Kraken’ (1830); Erik Pontoppidan, Bishop of Bergen, A Natural History of Norway (Copenhagen, 1753). Google Ngram analysis reveals multiple references in German newspapers and literature in the target period. Nebehay, Gustav Klimt, p. 74; Kraus, Die Fackel, pp. 10–11. Kraus, Die Fackel, p. 11.

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search for clues that treats the image as standing ‘for what it is not’, as Norman Bryson put it, therefore translates the visual image into textual terms.27 Even Kraus’s interpretation of Klimt’s colours relies on a sharp tongue, not a keen eye.28 The colours themselves are not used by Klimt – the ‘gold’ of the imperial flag was not, by any stretch of the imagination, the same as Klimt’s gold. What they had in common was the word. Kraus uses the same words to describe different sensory phenomena, and then connects together their connotations. Through this chain of extended signification, imperial honour becomes tainted with blood lust. But Kraus does not notice that his textual approach actually invites a broader linguistic point. Klimt’s wordplay is embedded in the very structure of the picture. On the one hand, we have highfalutin legal virtues expressed in Latin – veritas and lex, abstract and remote. Meanwhile the voice of the people is expressed in slang, telling us that down in the streets some poor sap is having the life sucked out of them by the fuzz, much to the delight of a bunch of harpies. Just as Latin is a secret code of the elite, slang, doubly hidden in imagistic puns, is the secret code of the people, the means by which they can slip their messages past the censors and the cops. But this semantic analysis cannot come to terms with the dynamic complexity of Klimt’s image29 – its style, composition, erotics, affect, and ‘mysterious atmospheric depth’.30 For Carl Schorske, Jurisprudence marks a turning point in Klimt’s career. He reads it as the last gasp of a wounded narcissism: a self-portrait of the artist as martyr.31 Certainly a radical shift took place in the years following Klimt’s original 1898 composition study for the painting. In that version, an all-powerful Justice wields a mighty sword to slay her tentacular enemies32 (Figure 5.2). By 1902, a revised composition sketch reflected Klimt’s radical rethinking. Justice has retreated to the sidelines and now the hideous sea monster holds centre 27

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Norman Bryson, Vision and Painting: The Logic of the Gaze (New Haven, CT: Yale University Press, 1983); Mieke Bal, Reading ‘Rembrandt’ (Cambridge: Cambridge University Press, 1991), ch. 1, and pp. 177–89. On Kraus and language, see Edward Timms, Karl Kraus – Apocalyptic Satirist (New Haven, CT: Yale University Press, 1986). Bal, Reading ‘Rembrandt’, pp. 15–16. Schorske, Fin-de-sie`cle Vienna, pp. 273. Carl Schorske, ‘Mahler and Klimt: Social Experience and Artistic Evolution’ (1982) 111 (3) Daedalus 29–50, at 44–5; Robert Kann, ‘Carl Schorske’s Fin-de-sie`cle Vienna’ (1981) 14 Central European History 169–80, at 179. The specifically legal analysis of Jurisprudence is patchy, and sometimes inaccurate. Apart from the extended analysis in Schorske, see also Narnia Bohler-Muller, ‘On Desire, Transcendence and Sacrifice’ (2007) 18 Law & Critique 253–74; Minkinnen, Thinking Without Desire, pp. 183–7; Karin Van Marle, Jurisprudence, Friendship and the University as Heterogeneous Public Space (Pretoria: University of Pretoria Press, 2010); Assaf Likhovski, ‘Venus in Czernowitz: Sacher-Masoch, Ehrlich and the fin de sie`cle Crisis of Legal Reason’, in M. L. M. Hertogh, Living Law: Reconsidering Eugen Ehrlich (Oxford: Hart, 2009); Sionadh Douglas-Scott, Law after Modernity (Oxford: Hart, 2013). Gustav Klimt, Kompositionsentwurf, oil on canvas (1897–8); Novotny and Dobai, Gustav Klimt; Tobias Natter, ed., Klimt: The Complete Paintings (Cologne: Taschen, 2012), p. 557, no. 103. See Strobl, ‘Klimt’s Studies for the Faculty Paintings’, pp. 28–47; Alice Strobl, ‘The Faculty Paintings and Sketches for Medicine and Philosophy’, in Alfred Weidinger, ed., Gustav Klimt (Munich: Prestel, 2007), pp. 41–54.

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figure 5.2 Gustav Klimt, Jurisprudenz, Kompositionsentwurf, 1897–8. Charcoal on paper, Galerie Welz, Salzburg. (Courtesy of Galerie Welz; photo credit © Claire Atteia and Australian National University 2017)

stage.33 Abject and naked, the central figure, who has no place in the earlier sketch, 33

Revised sketch, 1901–2 in Gustav Klimt, Die Zeichnungen. 1 1878–1903, Alice Strobl, ed. (Salzburg: Galerie Welz, 1980), no. 942. While the date given on the final painting is 1903–7, it was first exhibited in 1903 and few changes seem to have been made after that (Nebehay, Gustav Klimt, plates 10–11). The transition between the original sketch and Klimt’s final work is discussed in Schorske, ‘Mahler

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elicits our attention and our sympathy. For centuries, the figure of justice had been idealized, and the state legitimated as its embodiment. That still seems to have been Klimt’s intention in 1898. But the painting Klimt actually came up with in 1903 offered something quite different: law seen from the point of view of its victims. According to Schorske, Jurisprudence was Klimt’s parting shot. Thereafter, he retreated from the real world to ‘an ornamental two-dimensionality, itself an index of utopian complacency’. ‘Wherever European artists made the difficult attempt to grapple with an existing order’, writes Schorske, ‘as they so often did in the nineteenth century, social realism emerged as a dominant literary mode’.34 He is not alone in making this argument. Kraus condemned Klimt as a mere aesthete. The architect Adolf Loos accused Klimt and the Secession of applying ‘a layer of whitewash . . . in collusion with a reactionary order of state’.35 In a similar vein, Schorske treats utopia as apolitical, a synonym for ‘complacency’. But that is nonsense. Thomas More did not write the original Utopia as a ‘retreat’ from the world. He wrote it as a critique.36 Both utopian and dystopian texts have performed that function ever since. Indeed if the reputation of utopianism has been tarnished over the past century, it is on account of its political zeal rather than for any supposed complacency.37 Of course, there is nothing real about ‘realism’.38 Modernism was determined to reject the pseudo-realism of mimesis.39 Abstraction for example, recognized the reality of paint and the actual ‘two-dimensionality’ of the canvas far more honestly than the trompe l’œil of perspective and figurative art.40 Modernism took as its point of departure the gap between the world and our representations of it. That has been a common feature of social critique ever since.41 In this regard, Klimt’s Faculty Paintings have more in common with his later works than Schorske admits. Certainly they reject art’s arrogant claims to objectivity and realism – just as they reject the arrogant claims of Philosophy, Medicine, and Jurisprudence. That is not an apolitical position; far from it.

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and Klimt’, 44. See also Michael Roth, ‘Performing History: Modernist Contextualism in Carl Schorske’s Fin-de-sie`cle Vienna’ (1994) 99 (3) American Historical Review 729–45, at 733. Schorske, Fin-de-sie`cle Vienna, pp. 273, 279. The notion of utopianism as an escape from reality infuses the whole of Schorske’s analysis of Klimt, and much broader (ibid., pp. 279–321). Werner Hofmann, Gustav Klimt (New York: Graphic Society, 1972), p. 9. See also Timms, Karl Kraus, pp. 3–17; Adolf Loos, Spoken into the Void, trans. Jane Newman and John Smith (Cambridge, MA: MIT Press, 1982); Adolf Loos, Ornament and Crime, trans. Adolf Opel (Riverside, CA: Ariadne Press, 1998). Thomas More, Utopia, trans. Paul Turner (Harmondsworth: Penguin, 1965, first pub. 1516). For further discussion, see Karl Mannheim, Ideology and Utopia (London: Routledge, 2013); George Kateb, Utopia and Its Enemies (New York: Schocken, 1972). See e.g. Mieke Bal, ‘De-disciplining the Eye’ (1990) 16 (3) Critical Inquiry 506–31. Compare Schorske, Fin-de-sie`cle Vienna, p. 339. Peter Gay, Modernism (London: Norton, 2010); Manderson, Kangaroo Courts, pp. 26–3; J. W. Burrow, The Crisis of Reason (New Haven, CT: Yale University Press, 2000). See e.g. Bal, Reading ‘Rembrandt’, p. 147. See also the discussion of the ideological nature of ‘realism’ (ibid., p. 235); Bal, ‘De-disciplining the Eye’. Burrow, Crisis of Reason, pp. 235–8.

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Klimt’s Jurisprudence shows how ornament and style operate as critique. The aesthetic dimension of law – its gilded forms and abstract reasons – is juxtaposed against the lonely figure with heavy irony. This makes Jurisprudence very different from its sister works. Both Philosophy and Medicine evoke ethereal spaces with soft lines and flowing contours. His emphasis on the sensuous corporeality of the body, on birth, sex, and death, again identifies the aporia that separates the reality of human existence from their clinical treatment at the hands of rational philosophy and technological medicine. Klimt showed the aspects of living that these disciplines, for all their claims to scientific accuracy, could not cure, could not comprehend, and could not perhaps even see. Obscurity and uncertainty are both the subject and the form of Philosophy and Medicine. Jurisprudence takes the opposite tack. Its subject and its form are clearly defined. The lines are etched with greater force, and the figures more sharply demarcated. The geometric designs in the background, the swooping curves of the women’s hair, and the circles that stud the sea creature create two-dimensional shapes rather than three-dimensional volumes. In all these ways, Klimt conveys the rigidity and force of law. If Klimt attacked the disciplines of philosophy and medicine by portraying what their arrogant claims to authority could never reach, Jurisprudence took law’s authority very seriously indeed. There are obvious connections between Klimt’s portal to the law and the gatekeeper who stands ‘before the law’ in the parable by Franz Kafka – another central figure, of course, in the cultural life of the late Austro-Hungarian Empire. But the interior workings of the law, to which Kafka’s ‘countryman’ never gains access, is pitilessly exposed by Klimt. The Kafkaesque might have looked something like the other Faculty Paintings – tableaux of misty mystery.42 But Jurisprudence makes a very different argument. It does not minimize law’s pretensions to total knowledge, but shows instead its effects on human bodies. Klimt does not suggest that the law fails too often, but that it succeeds too well.43 Klimt’s Jurisprudence developed this critique in dialogue with one of the greatest dramatic works ever written about law – Aeschylus’s Oresteia, a trilogy first performed in Athens in 458 BC.44 The influence of Greek tragedy on nineteenth-century 42

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For their observations on the relationship between Kafka’s ‘Parable of the Law’ and Klimt’s Jurisprudence, I am indebted to both Dorota Gozdecka and Peter Goodrich. See Franz Kafka, Collected Stories (New York: Schocken, 1953, first pub. 1921), pp. 173–5; Panu Minkkinen, ‘“The Radiance of Justice”: On the Minor Jurisprudence of Franz Kafka’ (1994) 3 Social & Legal Studies 349–63. That Kafka is another one of the eminent figures from fin-de-sie`cle Vienna (almost) goes without saying. See also Gustav Klimt and Colin Bailey, Gustav Klimt, Modernism in the Making (New York: Abrams, 2001), p. 24. Unless indicated, in-text citations use Aeschylus, Oresteia, trans. Richmond Lattimore (Chicago, IL: University of Chicago Press, 1953); references are to line numbers in Agamemnon (A), The Libation Bearers (LB) or Eumenides (E). A range of other translations were consulted and compared, including Aeschylus, Oresteia, trans. Christopher Collard (Oxford: Oxford University Press, 2003); Aeschylus, Oresteia, trans. Robert Fagles (Harmondsworth: Penguin, 1977); Aeschylus, Oresteia, trans. Ted Hughes (London: Farrar, Straus, & Giroux, 2000); Aeschylus, Oresteia, trans. Alan Sommerstein (Cambridge, MA: Harvard University Press, 2009); National Theatre Production, Aeschylus, The Orestia, trans. Tom Harrison, dir. Peter Hall (London: National Theatre, 1981).

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Germanic culture – on Richard Wagner for example,45 and later on Sigmund Freud – cannot be overstated. A monumental statue of Pallas Athene (the key figure in Oresteia), completed in 1902, guards the entrance to the Austrian Parliament. Yet the first complete German-language performance of the trilogy did not take place until the end of 1900, when Berlin and Vienna both put on performances based on the same new translation within weeks of one another.46 The modern approach of the Austrian production at the Burgtheater was particularly influential.47 There are enough internal references in Klimt’s image to be confident that he saw it and had it in mind. The play tells the story of the transition of Athens from a primitive vendetta culture, represented by the Erinyes – the Furies – to the founding of the Areopagus, the development of independent courts, and the emergence of something like the rule of law. In the first play, Agamemnon, the Chorus insists on unquestioning obedience to two laws. Zeus’s infallible law that wisdom comes only through suffering (A 177–8) is one; the lex talionis is the other. ‘Blood grudge for blood grudge, blood let for blood let’, they intone. ‘He who has wrought, shall pay; that is law’ (A 1564). The Furies are the bailiffs of this law. In return for fair winds when his fleet set sail for Troy, King Agamemnon sacrificed his own daughter Iphigenia. For this shocking and callous act, his wife Clytemnestra plots a terrible vengeance. On his victorious return from the war, she tangles him in a net and stabs him to death. In The Libation Bearers, their son Orestes exacts bloody retribution on his mother. Now the Furies, mere metaphors and allusions in the earlier plays, take visible form. The ghost of Clytemnestra demands that they revenge her death, as Orestes avenged that of his father, and Clytemnestra that of her daughter. ‘In return for hostile words, let hostile words be paid!’ – in exacting what is due, Justice shouts that aloud, and ‘In return for bloody blow, let bloody blow repay!’ ‘For the doer, suffering’ is a saying three times old. (L 310–13)48

The Furies pursue Orestes. ‘They come like gorgons, they wear robes of black, and they are wreathed in a tangle of snakes. I can no longer stay . . . These are no fancies of affliction! They are clear, real, and here; the bloodhounds of my mother’s hate’ (L 1048–54). 45 46

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Michael Ewans, Wagner and Aeschylus: The Ring and Oresteia (London: Faber & Faber, 1982). Aeschylus, Die Orestie, trans. Ulrich von Wilamowitz-Moellendorf, dir. Paul Schlenther (Vienna: Burgtheater, 1900). See Fiona Macintosh et al., eds., Agamemnon in Performance 458 BC–AD 2004 (Oxford: Oxford University Press, 2005), pp. 366–8; Lorna Hardwick et al., eds., A Companion to Classical Receptions (London: Wiley, 2011); Paul Schlenther, Antikes Drama und Moderne Buhne (Vienna: 1900). The production was influential in the modern Greek revival of the plays: George Mikhalis, Modern Greek Theatre and National Cultural Identity 1901–3; Hardwick, Classical Reception. See Neue Freie Presse, trans. Leo Unglaub and Logan Kennedy (Vienna: 8 December 1900), pp. 1–2. Aeschylus, Oresteia.

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In Eumenides, the final play, Orestes seeks Apollo’s protection, and the goddess Pallas Athene is called upon to arbitrate between Apollo and the Furies. She breaks the cycle of vengeance, acquitting Orestes and insisting that justice does not condemn us to eternal repetition. She designs the Areopagus, a trial court, to include the participation of Athenian citizens, and shifts its focus from tribe to city, from vengeance to reason, and from honour to welfare. The Erinyes are renamed Eumenides, ‘kindly’ or ‘awesome’ ones. They cede part of their vengeful role and become the guardians of creation – of fertility, productivity, and the land – before being led ‘deep in the earth’s primeval hidden places’, there to ‘keep holy silence’ for all time. Guided by Athene’s wisdom, and with feeling put to sleep, the rule of law begins. But in Klimt’s Jurisprudence something seems to have gone wrong. The Furies – for it is surely they, although the watery element that surrounds them in Klimt’s treatment suggests some possible connection to the Rhinemaidens, and again some association between Greek tragedy and the Wagnerian Gesamtkunstwerk which inspired it – have just woken up and circle around a figure that might be Orestes. In the distance, the virtues whose aloof and golden splendour may warrant the adjective Apollonian, appear powerless to intervene. Schorske concludes that Klimt reruns the drama; only this time, the Furies win. Law is still governed by vengeance, reason stands far off, and Athene, the Goddess of Wisdom and Justice who is central to the play’s reconciliation, is ‘simply absent’.49 This is only half right. Although the golden figures of Justice, Truth, and Law are distant and static, this should not be taken to imply their impotence. On the contrary, law’s legitimacy relies on its removal from the grubby violence that is carried out in its name. Law’s ornamental trappings are the mantle that shields the legal system, making sure it doesn’t have to get its hands dirty. In Klimt’s rendition, Truth holds no mirror;50 Justice has a sword but no scales; Law is fixated on letter not spirit.51 The gilded forces of legal order – the word of the law, the beauty of truth, the majesty of justice – have not been sent packing by the passions. They stand and watch; they give the Furies the thumbs up.

bare life This is not just autobiography. Jurisprudence is, well, jurisprudence. Vienna, said Karl Kraus, was ‘an experimental laboratory for the end of the world’.52 Klimt’s painting reflects two opposite features of his legal culture as well as our own – the ascendancy of legal positivism, on the one hand, and a growing wave of antagonism to it, on the other.53 49 50 51 52 53

Schorske, Fin-de-sie`cle Vienna, p. 251. Compare Klimt’s versions of Nuda Veritas and Ver Sacrum (ibid., pp. 215–17). See Jacques de Ville, ‘Mythology and Images of Justice’ (2011) 23 Law & Literature 324–64, at 346. Timms, Karl Kraus, p. 10. See e.g. Manderson, Kangaroo Courts, pp. 25–51; David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); David Dyzenhaus, ed., Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham, NC: Duke University Press, 1998); Burrow, Crisis of Reason; Likhovski, ‘Venus in Czernowitz’.

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These two forces were already on a collision course that would shake the twentieth century. In Austria, the Allgemeines bu¨rgerliches Gesetzbuch had already been promulgated in 1811, but Pandectism across the continent further intensified a systematic, metaphysical, and abstract approach to law. The German civil code, the Bu¨rgerliches Gesetzbuch or BGB – widely perceived as the apotheosis of nineteenth-century legal positivism – came into effect on 1 January 1900.54 This was the model for Viennese legal thought at the faculty although in practice the Austrian legal system lagged far behind its big brother. In due course, Hans Kelsen would give this ambitious legal science its most uncompromising theoretical justification. In 1901 he was still a law student: in the Faculty of Jurisprudence at the University of Vienna.55 Meanwhile, although Carl Schmitt’s mature work likewise dates from the interwar years, his early monograph on decisionism appeared before the start of the Great War.56 It is hard not to see even in this early work, storm clouds of violent power and demagoguery already gathering; already shattering the bourgeois legal liberalism of Austria. Already the fires were being stoked that would one day consume the Reichstag in Berlin, and – lest we forget – the Palais de Justice in Vienna. There, on 15 July 1927, ninety civilians were shot dead by the police.57 Schmitt argued in his very first book that within every moment of legal judgment lay a fundamental indeterminacy which could not – indeed, should not – be contained by rules. Every decision includes within it a unique moment of freedom that the artifice of legal positivism only pretends to do away with. It would not strain matters too much to read Klimt’s Jurisprudence in the light of these twin fin-de-sie`cle developments in legal thought. The Furies of arbitrary power engulf a solitary figure – to describe him as a ‘criminal’,58 as has often been the case, seems too hasty by half, and too willing to accept a legal rhetoric which Klimt’s image serves to critique. Rule-bound legality stands idly by. Klimt chastises the pompous Rechtsstaat for the forces it could not control; and popular legality for the violence it had already unleashed, with ramifying effects that would eventually consume the whole legal order. The question whether and the extent to which one could check the other was already an important one at the turn of the century, though the full flowering of this debate was still some way off.59 Klimt prefigures the way that Schmitt will take 54

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Bu¨rgerliches Gesetzbuch (BGB) promulgated on 1 January 1900; see Roger Berkowtiz, The Gift of Science (Cambridge, MA: Harvard University Press, 2006). David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Clarendon Press, 1997); Hans Kelsen, Pure Theory of Law (Los Angeles and Berkeley, CA: University of California Press, 1967, first pub. 1934). Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham, NC: Duke University Press, 2004); Schmitt, Political Theology; Carl Schmitt, Concept of the Political (Chicago, IL: University of Chicago Press, 2008); Carl Schmitt, Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis (Munich: Beck, 1969, first pub. 1912). See Gonza´lez Garcı´a, Eyes of Justice, pp. 318–22. E.g. Strobl, ‘Klimt’s Studies for the Faculty Paintings’, p. 40. Carl Schorske, ‘Politics and the Psyche in fin de sie`cle Vienna: Schnitzler and Hofmannsthal’ (1961) 66 (4) American Historical Review 930–46; Carl Schorske, ‘Politics and Patricide in Freud’s Interpretation of Dreams’ (1973) 78(2) American Historical Review 328–47, at 330.

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Kelsen to task for the barren impotence of Kelsen’s ‘legal science’. But he also prefigures the way that Kelsen will take Schmitt to task for the dire consequences of his ‘political theology’.60 Can one take both sides to task? Certainly – if, like Klimt’s abject man, one suffers from the deceitful aloofness of one and the violence of the other, adding the insult of the former to the injury of the latter. Much more recently, but building on this debate and the history that would unfold around it, Giorgio Agamben elaborates a contemporary understanding of sovereignty as the id of law, we might say, the moment where legal rules break down and the power of the executive to enforce its will proves unstoppable. He traces the origins of the sovereign’s right to suspend the law from Roman times to the concentration camps of the twentieth century.61 The dies non juridicus of Roman law was for Agamben the urtext of the state of exception, ‘non-law days’ in which law’s clock stopped. From this origin, Agamben draws the sovereign’s power to step outside the circle of law by pronouncing an exception or an emergency in which the rules no longer apply. To this is allied the executive’s power to decide as a matter of fact that this or that group or race or class are simply not legal persons. Now Schmitt’s initial insight was that all legal circumstances contain some unique kernel, some new or exceptional element. The anomic genie might be released from its bottle at any moment. In fact, it is already on the loose. As Schmitt put it, ‘Sovereign is he who decides on the exception’.62 Sovereignty does not work against the law but circumvents it; and the law cannot define in advance the unforeseeable circumstances that may call forth its power. The recognition of an exception is not a legal judgment at all but the exercise of a sovereign power. In either case, the sovereign does not abrogate or change the law, but merely suspends its application. We are close in other words to the kind of temporal framework described by Mikhail Bakhtin as pertaining to ancient Greek romance: sovereignty carves out a niche for itself free of legal constraints by creating an ‘extra temporal hiatus’ ‘outside biographical time . . . that leaves no trace’.63 ‘This empty time leaves no traces anywhere, no indications of its passing. This we repeat is an extra-temporal hiatus that appears between two moments of a real time sequence.’64 Homo sacer is the human figure formed by the sovereign’s power to summon this ‘extra temporal hiatus’ – he could be any one of us, reduced to a pure animal existence without political status, legal identity, or recourse. Law’s relationship to 60

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Hans Kelsen, ‘Pure Theory of Law – Its Method and Fundamental Concepts’ (1934) 50 Law Quarterly Review 474; Schmitt, Political Theology. Giorgio Agamben, Homo Sacer, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998). Schmitt, Political Theology, p. 7. M. M. Bakhtin, ‘Forms of Time and of the Chronotope in the Novel’, in Michael Holquist, ed., The Dialogic Imagination: Four Essays by Mikhail Bakhtin, trans. Caryl Emerson and Michael Holquist (Austin, TX: University of Texas Press, 1981), pp. 84–259, at pp. 89–90. Ibid., 91.

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this figure is paradoxical. As Agamben explains, ‘bare life’ (the term originates with Walter Benjamin) is ‘included’ in the legal order only ‘by exclusion’.65 One might say that, like the outlaw or werewolf of the Middle Ages, he is entitled to the solace of neither law nor religion, rights nor rites; neither is the state subject to them with respect to him. He is outcast from law – by law. This intertwined logic of absolute sovereignty and human nullity cast its longest, darkest shadow over Europe under the Third Reich, where the forces of legal order were complicit in the murder of many millions of human beings, stripped of all belonging and exposed to the sadistic pleasure of the furies. Indeed the Third Reich itself was a massive state of exception. As is well known, immediately after his election to the chancellorship, Hitler set about creating a climate of emergency which persuaded President Hindenburg to invoke Article 48 of the Weimar Constitution, ‘suspending for a while’ the fundamental rights it supposedly enshrined.66 This ‘temporary suspension’ was never lifted, allowing Hitler to govern by emergency decree and without regard to any constitutional protections.67 This is the context in which the system of concentration camps, and the steady erosion of the rights of Jews, developed. Their extermination was ‘neither capital punishment nor a sacrifice, but simply the actualization of a mere “capacity to be killed” inherent in the [factual] condition of the Jew as such’.68 Their death was not, strictly speaking, a punishment, but only the outcome of a factual determination by the sovereign power, to which law was utterly indifferent. And this is the very terrain on which the paths of Klimt and Agamben cross, though one was already dead and the other not yet born. The Third Reich did not come from nowhere. The British had already constructed ‘concentration camps’, so-called, during the Boer War, which began in 1899 and claimed 9,000 lives. In some ways the war was quickly won; but Boer commandos continued to mount a successful guerrilla operation in the countryside. In 1900, to cut off their supply lines, the British army interned well over 100,000 civilians, mainly women and children. Within a year, nearly 30,000 had died from disease and starvation. After Emily Hobhouse exposed these atrocious conditions, the British government was forced to appoint a commission which investigated the concentration camps in the second half of 1901.69 The Boer War was the most important topic of Austro-Hungarian foreign 65 66

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Agamben, Homo Sacer, p. 65; Benjamin, ‘Critique of Violence’, p. 250. ‘Zu diesem Zwecke darf er voru¨bergehend die in den Artikeln 114, 115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft setzen’ (Weimar Constitution, Article 48). See Dyzenhaus, Legality and Legitimacy; Kennedy, Constitutional Failure; Nikolous Wachsmann, KL: A History of the Nazi Concentration Camps (London: Hachette, 2015). Agamben, Homo Sacer, pp. 114–15. Emily Hobhouse, Report of a Visit to the Camps of Women and Children in the Cape and Orange River Colonies (Friars, 1901). https://digital.lib.sun.ac.za/bitstream/handle/10019.2/2530/leyds-60–7735 .pdf. See Agamben, Homo Sacer, pp. 166–80; Birgit Seibold, Emily Hobhouse and the Reports on the Concentration Camps during the Boer War 1899–1902 (Stuttgart: ibidem, 2011); Denis Judd and Keith Surridge, The Boer War: A History (London: Palgrave Macmillan, 2013); Thomas Pakenham, The Boer War (New York: Random House, 1997).

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policy that year. During 1900 and 1901, anti-British sentiment in Germany and Austria ran high. There was uproar in the press, and in the Austrian Parliament.70 The emperor stood by his British cousins.71 Perhaps he had an eye on the German empire’s own ‘state of exception’ in southern Africa. Only a couple of years later, the Herero people of German South-West Africa were driven into the Namib desert by General von Trotha, and prevented from leaving: hounded ‘like a wounded beast’, reported the German general staff with satisfaction, ‘until finally he became a victim of his own environment’.72 The Herero people were not, by implication, murdered or executed. They were bare lives, simply forced to return to their own, factual, animal nature. Up to 100,000 died of starvation and thirst, the rest reduced to slavery. It was the first attempted genocide of the twentieth century.73 The violence that sovereign power would soon unleash could not have been imagined by Klimt or his viewers. But Jurisprudence had its roots in the legal context that was already emerging, and may even owe some of its shape to the idea of the concentration camp that was already topical. Klimt seems to have captured with eerie prescience the danse macabre between its component parts – ‘the tinsel of legal form’ whose hands are tied, the tentacular state whose arms are long, the rabid furies of sovereign power, and in the middle, homo sacer, a ‘bare life’ abandoned to its fate like a wounded beast. If, as Agamben argues, sovereignty exists precisely by virtue of its capacity to constitute and exploit bare life, then homo sacer is both the creature and the creator of that sovereign power. There is a strange symmetry between them, on one side a power that exposes all men to the exteriority of the law, and on the other a vulnerability so absolute that any man might without constraints of any kind exert sovereignty over them: a prison guard, a bureaucrat, or even another internee. The sovereign is a beast, it is said, just as the outlaw is nothing but an animal;74 both are included by jurisprudence only by virtue of being excluded from it.75 The naked man and the kraken state both exist outside protocols of responsibility and governance. After seeing the paintings in 1903, legal scholar Josef Redlich made the telling remark, ‘In this country, law and jurisprudence have very little to do with each other.’76 70 71 72 73 74

75

76

F. R. Bridge, From Sadowa to Sarajevo (London: Routledge & Kegan Paul, 1972), pp. 247–8. Ibid. Helmut Bley, Namibia under German Rule (Munster: LIT Verlag, 1996), p. 162. B. Whitaker, Special Rapporteur, Report on Genocide (UN Doc.E/CN. 4/Sub. 2/1985/6 (1985)). Agamben’s homo sacer can be productively related to the caput lupinum or wolf’s head that branded the legal outlaw – half wolf, half man – in the German and Anglo-Saxon legal codes and practices throughout the Middle Ages. See Desmond Manderson, ‘From Hunger to Love’ (2003) 15 Law & Literature 87. If the outlaw is an animal, then he is a werewolf. Jacques Derrida, The Beast and the Sovereign, trans. Geoffrey Bennington (Chicago, IL: University of Chicago Press, 2009); Agamben, Homo Sacer, p. 28. Letter to Hermann Bahr, 19 November 1903, quoted in Strobl, ‘Klimt’s Studies for the Faculty Paintings’, p. 53.

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Look at the pre-eminent role of eyes and vision in Klimt’s painting. The Furies stare wildly; the Virtues look into the distance. There are further small figures behind the Furies, all watching on inquisitively. The circles and spots that form the cloak of the Law, and splatter Truth and Justice, resemble pupils in a glaucous jelly. Above all, look at the kraken. Its single eye stares fixedly ahead.77 But its arms and body are covered in thousands of more eyes, emphasizing the idea of the state as an organ of unblinking surveillance. The image is not new. Legal emblems depicting the sovereign wearing a ‘coat of eyes’ frequently signified its all-seeing power.78 The Rainbow Portrait of Elizabeth I (Figure 5.3) is the best known of them.79 She wears a cloak covered in uncannily realistic eyes and ears, the better to spy on her enemies. One looks from kraken to sovereign and from sovereign to kraken; but already it is impossible to say which is which. What shape does this sovereignty take? It is a torus, an enclosed circular tube that surrounds empty space, never entering the anomic field or legal vacuum it generates.80 That is the shape of Klimt’s kraken – neither polyp nor homo actually touch one another, though no doubt a magnetic force holds them in place. Klimt portrays ‘the force of simultaneous attraction and repulsion that ties together the two poles of the sovereign exception: bare life and power, homo sacer and the sovereign’.81 The bareness of life, its brute bodily facticity, ‘which is invoked today as an absolutely fundamental right in opposition to sovereign power, in fact originally expresses precisely both life’s subjection to a power over death and life’s irreparable exposure in the relation of abandonment’.82 The sovereign needs bare life and bare life cannot evade it; legality, like the fundamental rights of the Weimar Constitution, hovers in suspended animation somewhere in the clouds. This is exactly the relationship at the heart of Klimt’s Jurisprudence – a sovereign power beyond juridical control, and a bare life beneath it, circling one another. Klimt’s ‘painted insult’, outrageously implicating the royal house in the violence of the long arm of the law, brings to light a dirty secret. It is this: the sovereign, the police, and the criminal have quite a lot in common – they all know that covert passion and violence is the way the world actually works. Indeed, they need each other to confirm and constitute this world view, to mirror it and to enforce it on the flesh of the abject body. The police and the criminal understand the world in basically the same way. The sovereign state looks the other way, but knows better. The law and its fairy circle of rights continue to exist, you may rest assured, but not right now, and not, my friend, for you. Agamben is not alone in thinking that we are witnessing the normalization of the figure of homo sacer by endemic practices of sovereign violence that see emergencies as opportunities to ‘suspend for a while’ the laws that hold them back. We see it in the 77 78 79

80 81 82

The creature’s eye is clearly marked in Klimt’s second composition sketch, 1901. Peter Goodrich, Legal Emblems (Cambridge: Cambridge University Press, 2014). Isaac Oliver (attrib.), Queen Elizabeth I, ‘The Rainbow Portrait’, oil on panel, 128 cm × 102 cm (Hertfordshire: Hatfield House, c. 1600–2) (inscribed Non Sine Sole Iris). Agamben, Homo Sacer, pp. 55–8. Ibid., p. 110. Ibid., p. 83.

figure 1.1 Pieter Bruegel the Elder, Justicia, engraved by Philips Galle, in Hieronymous Cock, The Virtues, 1560. Engraving, 26 cm × 33.5 cm, Metropolitan Museum of Art, New York. (Image courtesy of Harris Brisbane Dick Fund, 1928 and Metropolitan Museum of Art)

figure 4.1 J. M. W. Turner, The Slave Ship (Slavers Throwing Overboard the Dead and Dying – Typhoon Coming On), 1840. Oil on canvas, 90.8 cm × 122.6 cm, Museum of Fine Arts, Boston. (Photograph © 2018; Museum of Fine Arts, Boston)

figure 2.1 Joshua Reynolds, Justice, 1777. Oil on canvas, 223.5 cm × 83.8 cm, Somerley Estate, Hampshire. (Image courtesy Lord Normanton; photocredit © Somerley Estate)

figure 3.1 Governor Arthur’s Proclamation to the Aboriginal People, c. 1830. Oil on

Huon pine board, 35.5 cm × 22.6 cm, State Library of NSW, Sydney. (Courtesy of Mitchell Library, State Library of NSW)

figure 5.1 Gustav Klimt, Jurisprudenz, 1903–7. Oil on canvas, 430 cm × 300 cm,

Leopold Museum, Vienna. (© Fotografie Archiv Leopold Museum, Wien)

figure 6.1 Gordon Bennett, Possession Island, 1991. Oil and synthetic polymer paint on

canvas, 162 cm × 260 cm. (Collection: Museum of Sydney on the site of first Government House, Historic Houses Trust of New South Wales, Sydney. © Estate of Gordon Bennett

figure 6.9 Jackson Pollock, Blue Poles, 1952. Oil, enamel, aluminium paint, glass on

canvas, 212.1 cm × 488.9 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia; © Pollock–Krasner Foundation/ARS, licensed by Viscopy, 2017)

figure 6.10 Frederick McCubbin, Violet and Gold, 1911. Oil on canvas, 72 cm × 130 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia)

figure 6.11 Frederick McCubbin, Violet and Gold, 1911 (detail)

figure 7.1 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

figure 7.13 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9 (detail)

figure 7.11 Rafael Cauduro, Violacion from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

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figure 5.3 Isaac Oliver (attrib.), Queen Elizabeth I, ‘The Rainbow Portrait’, 1600–2. Oil on panel, 128 cm × 102 cm, Hatfield House, Hertfordshire. (Courtesy of Hatfield House, Hertfordshire, UK/Bridgeman Images)

administration of humanitarian intervention, and in places like Guantanamo Bay and Abu Ghraib.83 We see it in stealth bombings, drones, forced deportations and targeted 83

Karen Greenberg and Joshua Dratel, eds., The Torture Papers: The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005); Stephen Humphreys, ‘Legalizing Lawlessness: On Giorgio Agamben’s State of Exception’ (2006) 17 European Journal of International Law 677–87;

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assassinations authorized by – what? – an executive authority that does not presume to make a legal decision but only to declare certain facts. We see it in the internment of refugees and displaced persons, not for the purposes of punishment of course but simply to become ‘a victim of their own environment’.84 These states of exception certainly correspond to specific places – a camp, a ‘facility’; Guantanamo Bay, Manus Island. They are, by and large, generic places, places that could be nowhere and anywhere. The hospitals, schools, prisons, dormitories, all look identical. But the power to make these places, and to abolish the normal rules, practices, and order of society within them, comes through the executive’s power to suspend legal time, appealing to the status of an exception or the moment of an emergency, when the rule of law can be ignored without, in theory, any long-term consequences. The people who inhabit these places are warehoused – the word again suggests the removal of objects from circulation for an indefinite period of time. In Australia, a person who wishes to claim protection to which they are legally entitled is automatically stripped of those self-same rights, prevented from accessing them, or accessing knowledge of them, or even accessing information about the denial of them. By law this can’t happen in Australia, and it doesn’t happen in ‘Australia’; since May 2013 the whole continent has been legally removed from Australian territory for the purposes of immigration.85 The whole of Australia, Agamben would say, is only included in the law to the extent that it has been excluded from it. Sovereign power is then free to unleash its inner fury – again, not in Australia but offshore where Australian law does not apply, though Australian officials run them and Australian dollars pay for them. This structure of excision and exception, ‘black holes’, warehoused bodies, secret violence, and active surveillance, seems increasingly to threaten our physical existence.

the interpretation of dreams Nonetheless, such a reading, shaped by the ideas of Agamben and Schmitt, ignores certain aspects of Klimt’s style and composition. The rounded volumes of the central figure give it a powerful embodied reality; but the sacred man is circled by a cartoon monster, stylized, flat gorgons, and highly ornamented goddesses. They float in twodimensional space. Those in the foreground are dynamic but spectral; those in the background suggest a monument or a statue. What they share is this sense of

84

85

Daniel Goldstein, ‘Human Rights as Culprit, Human Rights as Victim: Rights and Security in the State of Exception’, in Mark Goodale and Sally Engle Merry, eds., The Practice of Human Rights: Tracking Law between the Global and the Local (Cambridge: Cambridge University Press, 2007), pp. 49–77. Desmond Manderson, ‘From Zero Tolerance to Harm Reduction – The “Asylum Problem Problem”’ (2013) 32 Refugee Survey Quarterly 1–21; ‘Groundhog Day: Why the Asylum Problem Is Like the Drug Problem’ (2013) 41 Griffith Review: Now We Are Ten, 84–110. Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act, 2013 (Commonwealth of Australia); ‘Excision of mainland finally made into law’, The Australian, 17 May 2013.

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hovering disembodiment, symbolic rather than real, unanchored in physical space. The image transpires in an ether, alien to the logic of perspective, like a painting of angels from the Middle Ages. Even the clouds86 at upper right, and the unpainted space across the middle, suggest an absolute contrast between transcendent forms outside the world, and the immanent body of the naked man, firmly shackled to it. These two elements of the picture seem to inhabit categorically incommensurable realms. When could they ever meet? Freud knew the answer: in a dream, where life becomes a representation and representations come to life. A dream is also a dies non juridicum, where time stops and starts according to its own obscure laws; it is an exception which can neither be summoned nor banished by our conscious will. It is the suspended time of our inner lives. The Interpretation of Dreams, was published in November 1899.87 The resonances between Klimt’s and Freud’s preoccupations are well known. Both associate dreaming with eros and thanatos.88 And both find in Greek myths the archaic and instinctual undertows of our lives.89 But in what follows I want instead to directly juxtapose Klimt’s art against Freud’s classic text.90 Klimt’s painting records a dream, and the dreamer of it and in it, his eyes closed, drawing us into his unconscious. It is one thing to explain Jurisprudence as an avatar of Klimt’s unconscious, as does Schorske.91 It is quite another to explain Klimt’s unconscious as an avatar of jurisprudence. Indeed, in The Interpretation of Dreams, Freud’s language is unapologetically legalistic. He lays down the law: ‘The dream is the fulfilment of a wish.’92 But we experience ‘a feeling of repulsion towards this wish. And owing to this defence the wish was unable to express itself except in a distorted state.’93 In order to evade the internal thought police, dreams articulate our desires in disguise. They have a ‘latent content’ (or meaning) that must be hidden in order to sneak past the mind’s ‘censor’, often resorting to puns, proverbs, or figures of speech to get its point across. The connection Freud draws between the governance of the subconscious and legal regulation was not a coincidence. Law was explicitly his model. The political writer who has unpleasant truths to tell to those in power finds himself in a like position. If he tells everything without reserve, the Government will 86

87

88 89 90 91

92 93

For further on the relationship between clouds, space, and transcendence, see Hubert Damisch, A Theory of Cloud (Stanford, CA: Stanford University Press 2002). Sigmund Freud, Die Traumdeutung (Vienna: Franz Deuticke, 1900); The Interpretation of Dreams (The Standard Edition of the Complete Psychological Works of Sigmund Freud, vols. IV–V), trans. and ed. James Strachey (London: Hogarth Press, 1953). E.g. Gerbert Frodl and Gustav Klimt, Klimt (New York: Vintage, 1992), p. 88. Schorske, Fin-de-sie`cle Vienna, pp. 20–1. Bal would describe Freud’s book as a ‘co-text’ (Reading ‘Rembrandt’, p. 199). Schorske Fin-de- sie`cle Vienna, pp. 220–1; see also the psycho-biographical approach taken to Freud’s own work in Schorske, ‘Politics and Patricide’. Sigmund Freud, The Interpretation of Dreams, pp. 119, 121, 122. Ibid., p. 141.

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suppress them . . . [H]e therefore moderates and disguises the expression of his opinions . . . The detailed correspondence between the phenomena of censorship and the phenomena of dream-distortion justifies us in presupposing similar conditions for both.94

Freud continues to treat the dream as a kind of regulatory structure: We should therefore suppose that dreams are given their shape in individual human beings by the operation of two psychical forces (or we may describe them as currents or systems), and that one of these forces constructs the wish expressed by the dream, while the other exercises a censorship upon this dream-wish, and, by use of that censorship, forcibly brings about a distortion . . . Nothing can reach consciousness from the first system without passing the second agency.95

Freud’s jurisprudence leads him to modify his original law. The dream is not simply the fulfilment of a wish. It is rather ‘a (disguised) fulfilment of a (suppressed, repressed) wish’.96 Freud provides many examples of this concealed wish fulfilment, from the most straightforward (dreams motivated by the sleeper’s thirst, or the urge to urinate translated into scenes of waterfalls or fountains), to complex dreams employing elaborate techniques in order to encode their meanings – rebuses or picture puzzles, the ‘condensation’ of multiple experiences into a single figure, and the ‘displacement’ of its central themes.97 He might have been talking about Jurisprudence. Indeed, the university professors and administrators who spoke out against Klimt’s Faculty Paintings when they were first revealed made frequent reference to Klimt’s ‘hieroglyphic symbols’, ‘exercises in puzzles’, like an ‘enigmatic sphinx’.98 The sphinx of course, was another figure who spoke in riddles.99 In order to evade government censorship, Klimt disguised his latent content by means of extensive wordplay, codes, and metaphors. So Jurisprudence is a dream, and a dream is the fulfilment of a wish. But what wish? Freud struggles to explain how anxious or shameful dreams – nightmares, even – can fulfil a wish when they seem to do the exact opposite. His response to these ‘apparently invincible objections’ is not entirely convincing. Most of the time, he says, the wish being fulfilled in distressing dreams is to prove him, Dr Freud, wrong. The dream fulfils the wish by not fulfilling a wish.100 But fortunately Freud does not leave it at that: ‘[D]istressing dreams do in fact contain something which is distressing to the second agency [the internal censorship mechanism], but something which at the same time 94 95 96 97 98 99

100

Ibid., p. 142. Ibid., p. 144. Ibid., p. 160. Ibid., ch. VI, esp. pp. 279–309. Strobl, ‘Faculty Paintings and Sketches’, pp. 50–1. Strobl also notes the currency of the language of riddles since the publication of Ernst Haeckel, The Riddle of the Universe, in 1899 (ibid., p. 52). Ibid., p. 145.

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fulfils a wish on the part of the first agency.101 Dreams are not free.102 The unconscious has its own Internal Revenue Service – guilt, shame, and anxiety are the taxes it levies on our desires. One dream that occupied Freud he called the ‘embarrassing dream of being naked.’ It is a dream that many of us may be familiar with, typically occurring in a very public place while figures of authority, or strangers, look on. In this distressing dream, [one] tries to escape or to hide, and is then overcome by a strange inhibition which prevents one from moving, and makes one feel incapable of altering one’s distressing situation . . . The unconscious purpose requires the exhibition to proceed; the censorship demands that it shall be stopped.103

Such dreams, for all the discomfort they cause, reveal an underlying desire, which might be termed the desire to achieve legal subjectivity: to be seen by the law, to be exhibited before it, not in a partial or abstract way, but exposed once and for all ‘as we truly are’, in all our complexity, innocence, pain, and pleasure. This is the dream of Jurisprudence. The man who dreams it is old, worn, and weary. He is not one of those idealized figures that the legal system constructs or supposes – not the virtuous citizen, the rational actor, the bonus pater familias, or the ‘reasonable man’. He is a man of everyday feelings, needs, and desires. This is literally what he stands for, against the wholly symbolic and abstract forms that encircle him. Freud observes that a dream cannot directly express a negation. Instead, elements of form and absurdity critique the manifest content of the dream and direct us towards its secret message.104 The form of Jurisprudence conveys clarity, force, and separation. But the kraken strikes a satirical note that made Kraus uneasy. The noble figures, immobile and far away, demonstrate their ignorance. The figure of humanity yearns for a responsiveness they cannot give him, an understanding they do not possess, an intimacy of which they are incapable. Klimt’s painting cries out for recognition. Up close, the ‘first agency’ of desire is found in the dynamic and dangerous movement of the libidinous figures that swirl around him. In the distance, the ‘second agency’ of censorship and repression looks on. They are static and authoritative, gesturing us to stop in the name of the law. Caught in the middle, abjectly exposed to the gaze of others, both desire and shame course through the naked man. The censors of the dream-work pervert this desire for recognition, but nevertheless hold our feet to the fire, preventing our escape. In Klimt as in Freud’s dream, the man is unable to get away. 101 102 103 104

Ibid., p. 146. But see ‘Dreamin’ is free’: Blondie, ‘Dreaming’ (1979). Freud, Interpretation of Dreams, pp. 242–6. Ibid., pp. 304–7, 341.

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What is the meaning of the sensation of inhibited movement which appears so commonly in dreams, and verges so closely upon anxiety? One tries to move forward but finds oneself glued to the spot; or one tries to reach something, but is held up by a series of obstacles.105

The abject man clasps his own hands behind his back. Nothing ties his wrists together, and indeed the kraken’s limbs do not at any point touch him either (a modification of Klimt’s own composition sketch). Mieke Bal sees the position of the hands in works of art as forms of visual ‘speaking’.106 But in Jurisprudence the hands are holding back not reaching out. The goddesses express forbearance or disinterest: justice wards us off; law clutches its own word tight to its bosom. The hands of the Furies do not grab, or consume, or entice. They seek their own flesh, each hand caressing only its mate. ‘Inhibited movement’, expressing a frustrated will to communicate, marks not only the abject man but all the hands in the painting. There is a complete breakdown of relations, an alienation of its component parts. The same lack of relation characterizes the treatment of eyes which dominates the picture. In Francisco Goya, El tres de mayo de 1808 shows a complex interplay of eyes.107 The soldiers who are about to execute the young man look at their target but their faces are hidden from us. The witnesses cover their eyes from the violence to come; the eyes of the dead are closed. So the former cannot be seen, and the latter cannot look. Only the central figure returns the gaze of the firing squad. Jurisprudence presents a very different ocular exchange. It shows us every eye except the victim’s. A man stands: head bowed, gaze averted. As opposed to Goya, it is the man that turns inward, and everyone else that sees, a classic instance of Freud’s shamed visibility. Panu Minkkinen is wrong to conclude, however, that ‘all eyes are on him: the goddesses’, the Furies’, ours’.108 Of all those avid eyes not a single one registers the central figure. Klimt gives us ideals that do not speak, hands that do not touch, and eyes that do not see. The dream expresses and fulfils a wish for recognition and communication. But the eyes do not have it; they look the other way. Klimt’s dream represents the experience of a thwarted desire for recognition, a feeling of impotence accompanied by only the traces of a lost desire: in the dreamlike and innermost posture of the man and the libidinous forces of the swirling female figures that surround him, searching for a connection that cannot be consummated. Throughout the twentieth century, the politics of recognition has taken many forms: philosophies of human rights, legal pluralism, legal realism, critical legal 105 106 107

108

Ibid., 336. Bal, Reading ‘Rembrandt’, p. 167. Francisco Goya, Second and Third of May 1808, oils on canvas, 266 cm × 345 cm (Madrid: Prado Museum, 1814); for further on the relationship between vision and responsibility, see Francisco Goya, Disasters of War (etching, aquatint, engraving and dry point, 1810–20). Minkkinen, Thinking through Law, p. 187.

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studies, feminism, race theory, and post-colonialism, to name a few.109 In very different ways, they all start from the experiences and needs of human existence and human societies rather than imposing idealized legal forms and a priori normative schema onto human life. On one level, Klimt’s treatment forcefully suggests Agamben’s critique of this movement. Bare life has two faces: the face of biopolitical subjection, and the face of legal recognition. They are not opposed but mutually implicated. ‘The spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.’110 In this, he broadly follows Foucault’s critique about law’s creeping discipline of bodily existence. Although their approaches are quite different and related to distinct projects, both writers conceive of the relationship between power and bodies as marking a profound shift towards more intimate and invasive practices of administration and governance, as opposed to the periodic and spectacular displays of sovereign power.111 Pierre-Joseph Proudhon observed this change in 1851: To be governed is to be watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, controlled, checked, estimated, valued, censured, commanded . . . and to crown all, mocked, ridiculed, derided, outraged, dishonored. That is government; that is its justice; that is its morality.112

The promulgation of various rights to life, body, and so on were partial political responses to these developments. Agamben mentions the writ of Habeas Corpus (1679).113 A legal command is issued to bring before the court not a person or citizen or a name, but a body. It is released from custody but subjugated before a greater authority. The ‘corpus is a two-faced being, the bearer both of subjection to sovereign power and of individual liberties’.114 Klimt’s figure might well be called habeas 109

110 111 112

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The literature is vast and citation would be tedious, but see e.g.: Frederick Neuhouser et al., eds., The Philosophy of Recognition: Historical and Contemporary Perspectives (Toronto: Rowman & Littlefield, 2000); Charles Taylor, Sources of the Self (Cambridge: Cambridge University Press, 1992); Charles Taylor, Multiculturalism: Examining the Politics of Recognition (Princeton, NJ: Princeton University Press, 1994); Maeve Cooke, ‘Authenticity and Autonomy: Taylor, Habermas, and the Politics of Recognition’ (1997) 25 Political Theory 258–88; Charles Taylor, ‘The Politics of Recognition’, in New Contexts of Canadian Criticism (Toronto: Toronto University Press, 1994), pp. 98–131; Nancy Fraser, Justice Interruptus: Critical reflections on the ‘Post-socialist’ Condition (London: Routledge, 1997). Agamben, Homo Sacer, p. 121. Ibid., see the second half. P.-J. Proudhon, ‘What Is Government?’, in General Idea of the Revolution in the Nineteenth Century, trans. John Beverly Robinson (New York: Freedom Press, 1923), pp. 293–4. Agamben, Homo Sacer, p. 125; Anselm Haverkamp and Cornelia Vismann, ‘Habeas Corpus: The Law’s Desire to Have the Body’, in Violence, Identity, and Self-determination (Stanford, CA: Stanford University Press, 1997), pp. 223–35. Agamben, Homo Sacer, p. 125.

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corpus, too – for the sovereign will have the body of the legal subject, exposed to its judgment and use.115 The desire for exposure, for recognition – to be seen by the law – is the perverse complement of our subjection. In Klimt, too, desire and subjection change places before our eyes. In fact, the naked figure stages this ambiguity with unprecedented clarity. Yet on another level, Jurisprudence resists this argument. Klimt reminds us that the bareness of life is not simply a legal construct. We are bare life. Sickness, mortality, poverty, and ageing remind us of the desires and needs which we share with all human and animal life. My mother lived to be very old. In her last years she was incontinent; she remembered little; she found it hard to produce the simplest sentence. She was constantly perplexed, anxious, lost. She was utterly dependent on others. Her life was bare. But Mardi – her name still belongs to her – did not relinquish need and desire. If anything, these became more urgent in her fading days. She enjoyed the sun on her back and the song of the birds, the colour of the spring flowers even if only dimly made out by her cloudy eyes. She needed to be touched with love and companionship. She wished to be comfortable: she needed to be comforted. Her existence was reduced, one by one, to elemental needs; but their pulse can be felt in all of us. Our defenceless nudity makes demands on others, and reveals a truth about ourselves.116 So then we have two ways of looking at our bare life. For Agamben, homo sacer was constituted by sovereign power as an object that could be killed with impunity. For Levinas – writing several years earlier in very similar vocabulary which continues to frame debates on the relationship between ethics and law – the ‘nudity’ and ‘defencelessness’ of life implies a very different set of relations. The hidden face of Klimt’s central figure, turned away from recognition, only intensifies the fragile introspection of suffering, which breaks up the world of knowledge and narrative closure.117 The naked man, precisely by resisting our efforts to impose a settled meaning on him, produces a unique ethical demand. He exceeds meaning. As Schopenhauer – whose influence on Klimt is well established – said, the fully realized human subject is capable of ‘regard[ing] the endless sufferings of all that 115

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No doubt the extent to which this argument can be pressed is open to dispute, specifically in relation to the liberatory potential of the writ: Peter Fitzpatrick, ‘Bare Sovereignty: Homo sacer and the Insistence of Law’ (2001) 5(2) Theory & Event; Andrew Norris, ed., Politics, Metaphysics, and Death: Essays on Giorgio Agamben’s Homo Sacer (Durham, NC: Duke University Press, 2005). Agamben, Homo Sacer, p. 151, quoting Levinas: ‘This feeling of identity between self and body . . . will therefore never allow those who wish to begin with it to rediscover, in the depths of this unity, the duality of a free spirit that struggles against the body to which it is chained. On the contrary, for such people, the whole of the spirit’s essence lies in the fact that it is chained to the body.’ This point is made with powerful perspicacity in Panu Minkkinen, ‘The Expressionless: Law, Ethics, and the Imagery of Suffering’ (2008) 19 Law and Critique 65–85, at 82 (in particular discussing Shoshana Felman and Walter Benjamin). See also Marinos Diamantides, ‘In the Company of Priests: Meaninglessness, Suffering and Compassion in the Thoughts of Nietzsche and Levinas’ (2003) 24 Cardozo Law Review 1275–1307 and ‘The Subject May Have Disappeared But Its Sufferings Remain’ (2000) 11 Law and Critique 137–66.

Athene – Just in Time

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lives as his own, and thus take upon himself the pain of the whole world’.118 According to Agamben, homo sacer is to be sacrificed for sovereignty: the concentration camp is its regulatory exemplification. According to Levinas, it is our sovereignty, our autonomy, which must be sacrificed for him: the concentration camp is the denial of this ethical responsibility.119 And not for the first time, a previously obscure passage from Benjamin suddenly emerges into clarity, leaving one with the humbling feeling that he got there long ahead of you: Mythic violence [in Agamben] is bloody power over mere life for its own sake; divine violence [in Levinas] is pure power over all life for the sake of the living.120

The paradox is that this same human body is both the expression of our cry for recognition and the vehicle of our subjection. Klimt’s painting shows us these two ways of looking at the very same flesh and blood, one by eliciting our compassion and the other by dramatizing our power. Jurisprudence is suspended between these two discourses. On the one hand, sovereignty’s demand on human life – habeas corpus, surrender your body to me; and on the other hand, humanity’s demand on sovereign power – ave verum corpus, behold my body’s truth. These two sides are not related as right to wrong, or false consciousness to true, or cause to effect. They express the inescapable irony of the ‘two poles, irreconcilable but indissociable’121 of our relationship to law; what we want from it and what it wants from us.

athene – just in time Two opposed readings of Klimt’s painting, then, one focusing on sovereign power and the other on the claims of bare life against it. This presents a problem – sovereignty helps constitute the desire for recognition but also perverts and exploits it. The answer may lie with a brief return to the Oresteia Aeschylus’s great trilogy, which I have discussed at greater length elsewhere.122 The trilogy begins with two legal norms – 118

119

120 121

122

In Marlowe-Storkovich, ‘“Medicine” by Gustav Klimt’, 245; see Schorske, ‘Mahler and Klimt’, 32–3; Schorske, Fin-de-sie`cle Vienna, pp. 229–31. Emmanuel Levinas, Otherwise Than Being, or, Beyond Essence, trans. Alphonso Lingis (The Hague: Nijhoff, 1981); Emmanuel Levinas, ‘Useless Suffering’, in Robert Bernasconi and David Wood, eds., The Provocation of Levinas: Rethinking the Other (London: Routledge, 1988), pp. 156–67; Marinos Diamantides, ed., Levinas, Law, Politics (London: Routledge, 2007); Desmond Manderson, ed., Essays on Levinas and Law (New York: Palgrave Macmillan, 2009). Benjamin, ‘Critique of Violence’, p. 250 (italics mine). Jacques Derrida, ‘Forgiveness’, in On Cosmopolitanism and Forgiveness, trans. M. Dooley and M. Hughes (London: Routledge, 2002), pp. 51–4; Manderson, Kangaroo Courts, pp. 147–8. See Desmond Manderson, ‘Athena’s Way: The Jurisprudence of the Oresteia’ (2016) J. Law, Culture and the Humanities 1–24. Apart from brief references, see Costas Douzinas and Adam Gearey, Critical Jurisprudence (Oxford: Hart, 2005), pp. 113–15; Paul Gewirtz, ‘Aeschylus’ Law’ (1988) 101 Harvard Law Review 1043–55; R. F. Kuhns, The House, the City and the Judge (New York: BobbsMerrill, 1962); James Boyd White, Heracles Bow (Madison, WI: University of Wisconsin Press, 1989), ch. 8; William Wagner, ‘Pursuit of the Hunt, Interrupted: Changing Literary Images of Law’ (1999– 2000) 49 Catholic University Law Review 945. Perhaps the most sustained reading is that by

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‘learning through suffering’, and ‘the doer must suffer’. These are initially treated as two formulations of the same strict rule. But they are not the same.123 The Furies’ law, the lex talionis – eye for eye and tooth for tooth – implies a stasis and a cycle of repetition from which the House of Atreus could never escape. But Zeus’s law, as it is called, wisdom or learning through suffering, implies the possibility of growth and change. The House of Atreus was condemned to an eternal cycle of blood for blood by virtue of its failure to learn from its own suffering. In fact the Furies are – and this is the critical point – the most rule-bound of all the characters in the play. Like strict legalists, positivists, and fundamentalists everywhere, they claim they cannot choose, but merely follow the law, time after time after time. In this, they too are trapped in suspension, where time never changes and the future never comes. Finally, however, by dint of Athene’s persuasive force, even they come to acknowledge that things are not condemned to stay the same for ever. The curse of blind repetition is surely the curse of law. Athene invites us to see in the passage of time and the subtleties of circumstance, the difference rather than the sameness of our acts. Human time, its passage not its suspension – the very element of dynamism on which myth turns its back – becomes law’s defining feature. ‘En krono’, writes William Zak about this conclusion, ‘we may come to wisdom not merely after the fact of our failures but “in time” to avoid repeating all the same catastrophes over again’.124 Athene achieves this resolution by yoking the moment of judgment to persuasion, difference, and time. Contrary to most orthodox interpretations of the play, she does not stand for reason against the passions, but for a discourse of judgment against the merely repetitious word of the law. With that in mind, let us return one last time to the enigma of Klimt’s Jurisprudence. Who is the man? What is everyone staring at? And where in the world is Athene? The answers are connected. Here is a scene from a play – a play that Klimt saw on a winter’s night, in Vienna, 1900. Klimt positions the viewer onstage, painting the audience in the background, peering out of the darkness, only their heads visible, exactly as they would appear to an actor onstage. In the middle stands Orestes surrounded by the Legal Furies, just woken up and baying for blood. In the distance, perhaps, are the avatars of Apollo: shellacked in gold, high-handed and arrogant. Klimt has depicted a very specific moment in the story: the moment of decision, when the very future of the law was at stake, and before Athene inaugurates a new legal discourse that will shatter the yoke of the past.

123

124

Maria Aristodemou, ‘The Seduction of Mimesis: Theater as Woman and the Play of Difference and Excess in Aeschylus’ “Oresteia”’ (1999) 11 Cardozo Studies in Law and Literature 1–33; Maria Aristodemou, Law and Literature: From Her to Eternity (Oxford: Oxford University Press, 2000), ch. 1. D. J. Conacher, Aeschylus’ Oresteia: A Literary Commentary (Toronto: University of Toronto Press, 1987), pp. 83–5; William Zak, The Polis and the Divine Order (Lewisburg: Bucknell University Press, 1995), pp. 38–9. Zak, Polis and the Divine Order, pp. 85–7.

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Indeed, Athene’s decision to break with the lex talionis of the Furies creates a striking parallel with Agamben’s argument in Homo Sacer – albeit with a significant difference. Athene can be accurately described using Schmitt’s famous words: ‘Sovereign is [s]he who decides on the exception’.125 Agamben echoes the logic of the plays even more closely. The lex talionis, he concludes, is just the repetition of a sanction. The juridical ‘constitutes itself through the repetition of the same act without any sanction, that is, as an exceptional case . . . In this sense, the exception is the originary form of law’.126 If this claim seems far-fetched, the Oresteia illustrates it perfectly. Athene’s willingness to judge singular facts, and to break with a slavish adherence to the past by acknowledging an exception, truly inaugurates the juridical order. The exception is the origin of the law. Schmitt and Agamben only push this to its logical conclusion, showing us the paradox nestling at the heart of the legal order. Schmitt writes that ‘All law is situational law. The exception reveals most clearly the essence of legal authority . . . To produce law it need not be based on law.’127 Thus he opens the door for the exercise of sovereign power purely on the basis of a factual circumstance of which the sovereign alone is competent to judge.128 The appearance of homo sacer, the exceptional figure of abjection who is excluded from the rules, is but the reductio of this irreducible sovereign power. Orestes, answering Athene’s writ of habeas corpus, is ‘a two-faced being, the bearer both of subjection to sovereign power and of individual liberties’.129 His freedom comes at a terrible price. Yet Aeschylus resists this conclusion. What ultimately separates Athene’s advocacy of the rule of law from untrammelled sovereignty or pure decisionism, are the external structures of abnegation and accountability to which she willingly submits herself. First, she insists on the involvement of the whole community in the act of judgment, establishing the Areopagus in which Athenians themselves would play a responsible part in all future trials. The matter is too big for any mortal man who thinks he can judge it. Even I have not the right to analyse cases of murder where wrath’s edge is sharp, . . . Then, since the burden of the case is here, and rests on me, I shall select judges of manslaughter, and swear them in, establish a court into all time to come. (E 470–84) 125 126 127

128 129

Schmitt, Political Theology, p. 5. See Agamben, State of Exception, pp. 1–31. Agamben, Homo Sacer, p. 26. Schmitt, Political Theology, p. 13. The argument is already made in Schmitt’s first book of legal theory (Gesetz und Urteil). Agamben, State of Exception, ch. 1. Agamben, Homo Sacer, p. 125.

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Second, she shows the essential role of peitho – rhetoric or persuasion – in a discourse of legal legitimacy. Aeschylus understands, better than a great many people before or since, that a legal system does not depend on whether the winners accept the verdict, but whether the losers do.130 Both Apollo and the Furies connect dike, justice, with nike, victory; Athene rejects the association (e.g. E 795–6).131 Indeed, it is a striking feature of the drama that so much of the last play takes place after the decision to pardon Orestes, drawing our attention to the fact that the critical question facing any legal system is not how to decide, but how to justify.132 Athene does not treat peitho as a legal pathology, as do the Furies (and as indeed does Schmitt, in no uncertain terms). She shows how its ‘sweet beguilement’ (E 885) can be enlisted in the service of wisdom and judgment. I admire the eyes of Persuasion, who guided the speech of my mouth towards these, when they were reluctant and wild. (E 970–4)

By exposing our discussions to ongoing dispute and negotiation, sovereignty is made continually answerable to everybody.133 The Oresteia begins by presenting the indeterminacy of language as law’s curse, and the rote application of the lex talionis its cure. It concludes by radically reframing the question. Now it is the rote application of law which is the curse – and the indeterminacy of language its cure.134 The indeterminacy of Klimt’s image between the two readings I developed above is in fact its critical feature. Orestes is shown on the cusp of this indeterminacy, his visage concealed from us and his body suspended between possible futures – poised between recognition and exploitation, between the arrogance and humility of sovereign power. Klimt generates this suspense by introducing not one but two distinct centres of focalization.135 The internal focalizer draws us into Orestes’s psyche and invites us to engage imaginatively with his experience and dreams. But the many eyes of the picture constitute an external locus of focalization, which addresses the viewer directly. By inviting us to inhabit these two positions at once, Klimt places us in exactly the position of the judgment of Athene. No wonder, then, Klimt’s painting is dominated by eyes that look expectantly out of the frame. They are looking at us. Athene is not ‘simply absent’, as Schorske put it, at all. In fact, if we are onstage, the part we must be playing is hers. All the other figures – even the 130 131

132

133 134

135

Allan Lind and Tom Tyler, The Social Psychology of Procedural Justice (New York: Springer, 1988). See the extensive discussion in Simon Goldhill, Language, Sexuality, Narrative (Cambridge: Cambridge University Press, 2004), pp. 239–45. See Anne Lebeck, The Oresteia: A Study in Language and Structure (Cambridge, MA: Harvard University Press, 1971), pp. 20–1. See Manderson, Kangaroo Courts, pp. 158–74. Goldhill traces this move from the problem of indeterminacy to a social and institutional response to it not just in the play’s themes, but its structure, its language use, and its conclusion (Language, Sexuality, Narrative). See Bal, Reading ‘Rembrandt’, p. 159.

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kraken – gaze at us expectantly. They are waiting for us, as Athene’s representatives in the Areopagus, to deliver our verdict.136 Same or different? Forwards or backwards? Again, as we saw in Chapter 4, the shifting point of view of the image transforms our relationship to it, and the law. As she says in the Oresteia, justice must be a collective responsibility embedded in a kind of judgment and a kind of institution that supports and respects it. It is not that she stands for the public but that the public stands for her. Jurisprudence thus condenses three readings of the relationship between sovereignty and law into a single scene. Law is described in the real world of the first reading in terms of exploitation and violence. This objective or external perspective treats the abject man as a legal object, to be governed and disciplined by sovereign power. In the imaginary or dream world of the second reading, law is described in terms of an unrealized potential. This subjective or internal perspective imagines the man as a legal subject, whose vulnerability constitutes legality and legitimacy itself. In the symbolic world of the third reading, law is transformed into an ongoing and collective responsibility.137 This reflects neither an absolutist understanding of the power of the sovereign, as in Schmitt, or a reductionist or positivist understanding of the rule of law, as in Kelsen. In a strange way, what these two positions have in common is the way they hold time in suspension; in Schmitt, the sovereign suspends the force of law,138 while in Kelsen, law suspends the force of time. Athene’s vision of legal judgment differs from them both, by tying the development of legal practices to the temporally dynamic discourse of the community as a whole. It is they – we – who are charged by her and by Klimt with its stewardship. These readings are all held together by the gravitational force of the naked and abject figure at their centre. He shifts between the expression of a desire that is at one moment killed, the next unconscious, and then aroused. His ‘bare life’ is simultaneously legal violence, human vulnerability, and social responsibility. Like an optical illusion, Klimt’s painting thus switches between three different but nonetheless necessary points of view: law as it is (which has something to do with politics); law as we imagine it (which has something to do with philosophy); and law as it might be (which has something to do with society). The proper name for the study at the intersection of these domains is jurisprudence. The end of Jurisprudence demonstrates just how unwelcome its study can be.139 Two days after the German surrender in May 1945, Soviet troops took over Schloss Immendorf. Fire broke out soon after and German soldiers, including the castle’s 136

137

138 139

Klimt’s provides this third position, which is the position not of objectivity or of subjectivity but of judgment, throughout the Faculty Paintings (Hofmann, Gustav Klimt, p. 24). Sigmund Freud, Civilization and Its Discontents, in Civilization, Society and Religion (Volume 12 of the Complete Works of Sigmund Freud) (Harmondsworth: Penguin, 2002, first pub. 1929), pp. 243–341, at p. 311. This is most explicit in Agamben, ‘Force of Law’, in State of Exception, ch. 5. Attempts to reconstruct the last days of Jurisprudence can be found in Frodl and Klimt, Klimt, pp. 19–20; Nebehay, Gustav Klimt, p. 78.

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owner, returned to put it out. A few days later, another fire broke out in the basement, where over seventy works by Klimt, Schiele, and others were held. All were burned to ashes. It is no longer possible to determine how the fire started or whose fault it was. But it doesn’t matter. One fire may be regarded as a misfortune – two looks like a Freudian slip. Klimt’s Faculty Paintings were stored away from the ¨ sterreichische Galerie. Disavowed by the Austrians, abandoned by the rest of the O Nazis, left to the Soviets, the incineration of Jurisprudence seems a predictable coda to its sad history of neglect. Klimt’s Jurisprudence implicates law in violence and oppression, no doubt. But perhaps just as awkwardly, it implicates the ‘faculty of jurisprudence’, implying a more direct relationship with the state on the one hand, and the legal subject on the other. No doubt a lot of people would rather forget the whole thing. The tentacular state, the lofty idealists, the venal Furies – everyone must have breathed a sigh of relief when Jurisprudence went up in smoke. Ironically perhaps, the powers that be proved the point of Klimt’s masterpiece. In 1903 and again in 1945, they repressed his critique of repression and censored his critique of censorship.140 We are left with only ashes and a colourless copy, gone but not forgotten.

140

Freud, Civilization and Its Discontents, pp. 284–86. Freud’s only brief reference to Oresteia takes place in the context of law and sublimation: see Moses and Monotheism, in Origins of Religion (Volume 15 of the Complete Works of Sigmund Freud) (Harmondsworth: Penguin, 1990, first pub. 1939).

6 Bennett’s Laws Colonial Time

introduction Colonial representations give visual form to distinctive concepts of legal time. The story goes that when Gandhi was asked what he thought about Western civilization, he replied that he thought it would be a good idea. The same could be said of postcolonial Australia. That too would be a very good idea.1 Aboriginal people in particular do not live with the ‘legacy’ of colonial attitudes and laws, a word implying the aftermath of discontinued policies. Jennifer Biddle describes remote Australia as living ‘under occupation’.2 Colonialism is an ongoing reality in their lives. What makes this perseverance of colonial law possible is a set of temporal discourses that allow the legal system simultaneously to disavow and to legitimate its effects on Indigenous people. This chapter demonstrates the point through a detailed analysis of the art of Gordon Bennett. His work illuminates at least three temporalities at work in the colonial project: the mystical foundation of authority, which is to say colonialism’s primal scene; the deferral of the rule of law; and the experience of law as a repetitive trauma. Bennett’s art shows the continuing importance of colonial representations in modern life, and at the same time reveals the underlying legal temporalities they enable. Prior to his untimely death in 2014, not yet 60, Gordon Bennett had produced a body of work that was the most careful and comprehensive aesthetic reflection on the fantasies and implications of the colonial project, at least in Australia.3 His paintings unpack both the complex temporal logic and the visual ideology of 1

2

3

The remark was made at a dinner party with Luis Gomez Romero and Richard Mohr; I can’t remember now who first uttered it. On the question of postcolonial art in the context of Bennett’s work, see Rex Butler, ‘Two Readings of Gordon Bennett’s the Nine Ricochets’ (1992) Eyeline 18–23; Jeanette Hoorn, ‘Positioning the Post-colonial Subject: History and Memory in the Art of Gordon Bennett’ (1993) 31 Art and Australia 216–25. Jennifer Biddle, Remote Avant-Garde: Aboriginal Art under Occupation (Durham, NC/London: Duke University Press, 2016). See Ian McLean and Gordon Bennett, The Art of Gordon Bennett (Roseville: Craftsman’s House, 1996). For further discussion, see Ian Mclean, ‘Gordon Bennett’, in Rex Butler, ed., Radical Revisionism: An Anthology of Writings on Australian Art (Brisbane: IMA, 2005) 272; Ian McLean,

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figure 6.1 Gordon Bennett, Possession Island, 1991. Oil and synthetic polymer paint on

canvas, 162 cm × 260 cm, Museum of Sydney on the site of first Government House, Historic Houses Trust of New South Wales, Sydney. © Estate of Gordon Bennett. For the colour version of this figure, please refer to the plate section.

Australian colonial law, the images that enact and justify its arrogant assertion of the right to dispose of Australia’s native inhabitants. As we have seen throughout this book, the visual and the temporal go hand in hand. Bennett’s artworks demonstrate how powerfully fantastic images of colonial representation resonate through time and continue to form the foundation of Australian authority. He refuses to consign these events in Australian history to some prior and finished moment. He shows how they remain actively implicated in ongoing assumptions and practices. It is in this way that Bennett is able to pull off an exceptionally difficult trick. He is able to recuperate certain tropes of the colonial imaginary without at any point letting the viewer off the hook, or permitting contemporary Australians to satisfy their voyeuristic urges under the guise of a critical distance or the alibi of irony.4 Bennett’s attention to the question of colonial representation derives at least in part from his own story of origin. Until he was in his teens he did not know that his mother was an Aboriginal woman. She had been brought up on a Queensland mission station after her own mother had died of TB. The discovery of his heritage profoundly disoriented his sense of identity.

4

‘The Aura of Origin: Ghouls and Golems in Gordon Bennett’s Art’ (2001) 21(4) Artlink 24; Kelly Gellatly, Gordon Bennett (Melbourne: National Gallery of Victoria, 2007). See in particular the powerful discussion of the problems of ‘post’ colonial voyeurism and complicity in Mieke Bal, Double Exposures (New York: Routledge, 1994), pp. 195–224.

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When I first discovered my Aboriginal descent I first denied it and repressed it. When the repression became unbearable, and that was a true de-centring, not a matter of a ‘failed locality’ but almost of an entire system of belief – I mean psychic rupturing.5

Bennett’s work therefore brings to bear what Mari Matsuda termed the ‘multiple consciousness’ of colonized subjects.6 He was forced to negotiate his experience of the world across two cultural registers. Nick Thomas writes that he engages two histories, and two artistic traditions, each his own, that are ‘linked but remain incommensurable . . . a strange dynamic which involves distance and collision, connection and rejection’.7 But Bennett’s standpoint is more complicated than that. The employment of ‘Aboriginal’ art motifs in some of his early work came in for considerable criticism for their unearned quality.8 Since then, his appropriation of Indigenous references has been far more circumspect. Thomas to the contrary, Bennett approaches the question of white Australia’s colonial heritage, and its effect on Aboriginal lives, not as someone who belongs to two traditions (‘each his own’) but as an outsider to both of them. Indeed, as Ian McLean told me, Insider/Outsider was the title of his retrospective exhibition in Holland. The question of how and where he belonged was always, for Bennett, painfully problematic. Bennett does not offer information about how Western colonialism was experienced by Aboriginal people, in the past. Other modern Aboriginal painters have described their role as essentially historical. Judy Watson sees her art practice as a way of doing history. Robert Campbell, Jr.’s painting Abo History is pointedly subtitled (Facts).9 Fiona Foley, likewise, insists categorically on the historical basis of her work. What I am trying to talk about is a notion of truth . . . It is an oversimplification to call me a political artist and just slot me in a box. I don’t see myself that way. I’ve worked with different themes at different times in my life . . . I can show, because I understand notions of truth – hence my continual historical research.10

Bennett’s art is different.11 He interrogates the fantasies and delusions that nourish Western perceptions of that history, then and now. He does not simply relativize the 5 6 7

8 9

10 11

Gellatly, Gordon Bennett, p. 17. Mari Matsuda, ‘When the First Quail Calls’ (1989) 11 Women’s Rights Law Reporter 7. Nicholas Thomas, ‘Introduction’, in Nicholas Thomas and Diane Losche, eds., Double Vision: Art Histories and Colonial Histories in the Pacific (Cambridge: Cambridge University Press, 1999), p. 15. McLean, Art of Gordon Bennett. Robert Campbell, Abo History (Facts), synthetic polymer paint on canvas, 130 cm × 200 cm (Canberra: National Gallery of Australia, 1989). Bennett, interview for MCA exhibition, 2009, in Gellatly, Gordon Bennett. For further on the treatment of history in Bennett’s work, see Bob Lingard and Gordon Bennett, ‘A Kind of History Painting: An Interview with Gordon Bennett’ (1989) 17 Tension 39–42; Ian McLean, ‘Gordon Bennett: History Painter – The Ghost Returns’, in I. Were, ed., Selected Recent Acquisitions 2009–2011 (St Lucia, Qld.: University of Queensland Art Museum, 2012) 61–4; Ian McLean, ‘Angel of History’ (2002) 16 Third Text 212–16.

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truth and facts of our colonial past. Rather, he emphasizes how that past has been mediated not only by layers of aesthetic tradition, but by centuries of selfrepresentations about it. The encounter between Indigenous and settler Australians is always already read through the images and reproductions, fantasies, and blind spots of the colonial gaze. So Bennett’s raw materials are not facts or truth as such, but rather the representation of history in the iconic and familiar visual record of Australian colonialism – the set pieces and pageants that pass for and into memory through stamps, paintings, drawings, old newspapers, and school textbooks.12 Bennett’s virtuoso ability to layer multiple aesthetic references and materials on top of this colonial source material, ranging from traces of Renaissance perspective to the modernist icons of Pollock, Preston, and Mondrian, is not simply a postmodern gesture of alienation and drift. It suggests with uncanny precision the layers of memory that connect to one another without relation; and that repeat their effects without intention. It suggests a nauseating feedback loop in our cultural worldview. These images – the stockman, the explorer, the settler, the native – never existed in the form they have come down to us. They were always chimeras – partial, misleading, or fantastic creatures. But their illusory quality does not prevent them from generating real-world consequences; on the contrary, it is this quality of mythic innocence that enables them. In this, images are not only creations of but precisely analogous to the unconscious: inaccessible to conscious thought and yet for that very reason, capable of motivating and guiding action. Representations, argues Bennett, are not real, but they produce the real. The ghostly presence of these tropes do not simply ‘haunt’ Australian life like a shameful secret, or in some ill-defined and poetic sense. They animate it, generating the continuing consequences we live with. They grind out the repetitive nature of our actions without our being fully aware of it. Crucially, however, Bennett shows art’s potential not just to diagnose the power of colonial representations and colonial temporalities of law; but to intervene and transcend them. As Georges Didi-Huberman argues, art cannot be reduced to the realm of representation or semiosis.13 Robert Rauschenberg said, ‘I don’t want a picture to look like something it isn’t. I want to look like something it is.’14 The artwork’s presence is not reducible to what it represents. On the one hand, its materiality, its corporeal embodiment, constitutes its own effects on viewers. On the other, and Bennett’s work is exemplary on this point, its disruption of our temporal assumptions, its ability to make a synaptic leap between the historical and the contemporary, makes possible, through the experience of art, the very encounter 12 13

14

McLean, Art of Gordon Bennett. See Georges Didi-Huberman, Confronting Images, trans. John Goodman (University Park, PA: Pennsylvania State University Press, 2005); Georges Didi-Huberman, Devant le temps: Histoire de l’art et anachronism des images (Paris: Minuit, 2000). Carolyn Lanchner, Robert Rauschenberg (New York: MOMA, 2009), p. 37. The quote comes originally from an interview with Calvin Tompkins.

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between different lives that colonialism disciplined or prevented. Through art, the encounter between peoples, laws, and civilizations is experienced not as a prior history that took place hundreds of years ago, but as an ongoing event. Bennett does not just represent the visual fantasies and temporal logics of colonialism; he unsettles them, creating a new space of possibility for new encounters that might not simply rehash the failures of the past. Bennett’s art therefore exemplifies the capacity of art in our own times to move from an ideological to a critical engagement with legal subjectivity.

representations of colonial time The Primal Scene: Possession Island The colonial relationship is founded on an encounter, a primal scene, a Grundnorm in legal terms,15 or as Derrida put it, the ‘mystical foundation’ or mythic structure of authority.16 This encounter takes place in historical time but is not confined to it. On the contrary, as Derrida makes clear, the origin of the legal system is temporally located in what he calls the futur ante´rieur tense, that is, as a claim which is not tenable at the time of its making but will, in retrospect, come to assume the momentous importance of a point of departure.17 History is told through a rearview mirror. Thus, the Declaration of Independence of the United States of America was a criminal act of rebellion when it was made. It is only in retrospect that it has come to assume the paramount significance of an origin.18 And just as the status of such an act cannot be determined until a much later stage of social and legal development, when it assumes a wholly mythic aura, so too, its terms and meaning continue to be the object of scrutiny and assessment. Kelsen to the contrary, neither its interpretation nor its implications can be confined to a single point in historical time.19 Legal points of departure reverberate through and in time, defining the foundation of the relationship between peoples. As a framing event or an ongoing encounter rather than as a historical moment, images become a particularly important mode of entry into how we understand the paradoxical temporality of the primal scene. 15

16

17

18 19

Hans Kelsen, ‘The Pure Theory of Law’ (1934) 50 Modern Law Quarterly 474; (1935) 51 Modern Law Quarterly 517; Pure Theory of Law, trans. M. Knight (Berkeley, CA: University of California Press, 1978). Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’, trans. Mary Quaintance (1989–90) 11 Cardozo Law Review 920–1045; Jacques Derrida, ‘Declarations of Independence’ (1986) 7 New Political Science 13–32. Derrida uses the phrase and elaborates its implications in up to one hundred passages throughout his work; see the reference list compiled in Index des mots de Jacques Derrida, www.idixa.net/Pixa/pagixa1008171026.html Derrida, ‘Declarations of Independence’, 10. The key point of Kelsen’s Grundnorm is that he assigns it a purely formal and structural role in the inauguration of a legal system, without giving it any normative or legitimating function.

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My first encounter with the mystic foundations of colonial law might be described as the primal scene and point of origin of my own career. In the very first class of a course on the ‘foundations’ and ‘principles’ of Australian constitutional law, in my first week as a law student, my lecturer announced with blithe insouciance that when Captain Cook planted the British flag on ‘Australian soil’ – Possession Island, a speck of land off the very tip of Australia’s northern coast – the whole continent, with which the island was not even contiguous and which had not then even been mapped, became at that very instant subject to British law. This was the moment that a legal system came into existence in a new land. I do not remember anyone challenging this assertion, though the next several weeks were taken up by the study of various retrospective confirmations of law’s claim to an irrefutable sovereignty, such as the Colonial Laws Validity Act.20 But the chutzpah of the argument fair takes one’s breath away. In what way was this assertion even remotely true, given that up to 750,000 Aboriginal inhabitants then lived under their own laws right across the continent, almost none of whom even saw a white man until many years later, and some of whom not for a century and a half? The legal claim that founds the colonial project in Australia cannot be true in the literal way in which it was presented, and indeed bears no relation at all to lived experience. It can only be a myth, a powerful constitutive illusion or fiction which assumed, as Derrida predicts, a retrospective importance about what ‘will have been’ considered a turning point. But, as my legal education makes very clear, this temporal paradox has continuing effects on the laws we live under, not least their legitimacy, and their immunity from challenge, not to mention the legal subjectivity of all who live here. Some mental images, already familiar from my childhood, must have rendered plausible this myth of the birth of Australian law. It probably looked a lot like the iconic painting by J. A. Gilfillan (1857), now lost, engraved by Samuel Calvert, and published in the Illustrated Sydney News in 1865 (Figure 6.2). The image already has a retrospective quality, illustrating as it does a scene which had by then taken place a century beforehand, imagined through a nostalgic and imperial haze. Here there is scarcely an encounter or a clash of legal systems at all, certainly no indication of consent or exchange or conquest. The local inhabitants are reduced to fauna, with the sole exception of a black man in European dress. Who this figure might be is hard to say. Recent scholarship has even proposed Tupaia, a Tahitian elder who had been brought on board the Endeavour both for his navigational knowledge and to act as a mediator.21 Here he is reduced (against all the documentary evidence) to a waiter holding the drinks, but his function in the image is ultimately more important than that. He draws a connection with the Indigenous Australians but also marks his distance from them. He is the focalizer of the image, the eyes through 20 21

United Kingdom, Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63). See Joan Druett, Tupaia – The Remarkable Story of Captain Cook’s Polynesian Navigator (Wellington: Random House, 1987); Maria Nugent, Captain Cook Was Here (Cambridge: Cambridge University Press, 2009), p. 34.

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figure 6.2 Samuel Calvert [after J. A. Gilfillan], Captain Cook Taking Possession of the

Australian Continent on Behalf of the British Crown, AD 1770, under the Name of New South Wales, Illustrated Sydney News, December 1865. Wood engraving, hand-coloured, 43 cm × 57 cm, National Library of Australia. (Reproduced courtesy of National Library of Australia)

which we see. As a witness to Cook’s actions he relegates the native inhabitants of Torres Strait – and Australia – and the South Pacific – to mere bystanders at the event of their own subjugation. Unlike Governor Arthur’s Proclamation, there is no question of a contract, an agreement, or a treaty. Neither the knowledge nor the ignorance of Aboriginal people matter. Conquest is treated as a legal fact not a social discourse. The hoisting of the colours in the name of the king, the show of force and the military parade with fife and drum, even the celebratory tipple to follow, are all ritual actions. They are performative in J. L. Austin’s sense.22 They change legal relations by the mere fact of carrying them out, requiring not the consent of hearts or the melding of minds but only the presence of some witness to confirm that the specified actions and words have indeed been correctly performed. The uncanny importance of the central black figure in the picture suggests that it is not Tupaia at all, or at least not only him. The juxtaposition of savage islanders and this resplendent servant suggests an anachronism in time and space. Many other 22

J. L. Austin, How to Do Things with Words (Cambridge, MA: Harvard University Press, 1962).

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aspects of the image seem equally muddled in time. The image transfers Captain Cook’s claim of sovereignty from the Torres Strait, where it actually took place, to Botany Bay, 2,500 kilometres further south, where Cook had landed several months earlier and where the British settlement of Australia was to commence twenty-five years later.23 Even the Union Jack is an anachronism, since the flag did not exist until 1801. The figure is a time traveller, a ghost in reverse – some Bennelong24 transported back a generation in order to witness Australia’s ‘declaration of dependence’. The scene imagines the legal origin of a civilization that, according to the logic of the futur ante´rieur, will have transformed him, his clothes, his function, his nationality, and his manners, from a savage into a docile British subject. Indeed, his bare feet suggests a further anachronism and makes him appear more like the pastiche or parody of a US slave from the antebellum South. The black servant was a common feature of late-eighteenth-century paintings of British gentry and there were, in fact, several ex-slaves transported on the First Fleet. But his role here is clearly not that of a convict. He has been redeemed – the ideal colonial subject to come, in relation to whom the civilizing process of the conquest in all its formal majesty ‘will have been’ valorized and modalized. That transubstantiation, the fait accompli of colonial law, is also depicted as a fact rather than the outcome of an encounter, a choice, or a negotiation. Reproduced in multiple school textbooks in the twentieth century, in the course of which it came to acquire almost the character of an eyewitness account, despite its palpably fictional and retrospective character, Calvert’s engraving was an ideal subject for Gordon Bennett’s art. In Possession Island, his reworking of this primal scene (Figure 6.1), he spotlights the brightly coloured black figure against the background of an abstract grid, bringing starkly home the disciplinary power thus exerted over certain black bodies. This highlights the black servant’s peculiar centrality and incongruity. The black geometric frame against which he is set makes him appear as if he has arrived from the future through a portal in time, while also indicating the logic or grid of western order that is his real prison. Bennett dramatically foregrounds the ‘fabulous retroactivity’25 of the mystical foundation of colonial authority, which is both temporally anomalous and yet continuously active. The primal scene is a moment in which the future imagines the past imagining its future. It oscillates in this way not just at the moment the event took place, but (not so happily) ever after. Captain Cook and the rest are reduced to pallid translucent spectres by comparison. In Bennett’s retelling, the oblivious natives squatting in the 23

24

25

In fact the story is even more convoluted than that. Captain Cook had landed in Botany Bay in 1770 and recommended it as a site for future settlement. But when Captain Phillip arrived in 1788, he found it unsuitable and made camp at Port Jackson, a few miles further up the coast, where the town of Sydney would slowly take shape. Bennelong was a senior man of the Eora people who served as a mediator between the British and the Eora both after the arrival of the First Fleet in 1788, and later in England, where we travelled in 1792. Derrida, ‘Declarations of Independence’, 10.

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foreground of the engraving have been erased altogether, an excision that further focuses our attention on the presence of the witness and the look that passes between white man and black. Their eye contact is the only encounter that takes place. Yet in that moment, the witness suddenly accumulates not just legal significance but moral power. Bennett focuses our attention on the ways in which the colonial gaze was always already returned by its supposed objects, from the first encounter onwards, generating not only memories of the colonial experience, but an alternative site of self-consciousness of difference, with distinctive moral implications and vulnerabilities. Gilfillan and Calvert invite us to observe the spectacle of sovereignty from an external perspective, the witness playing a necessary but wholly subsidiary role in the performance of British rituals. Bennett shifts the focus of the relationship. Tupaia/Bennelong is not merely depicted as the passive product of colonialism. He is its silent and attentive archivist, a role with which Bennett himself surely identified. He insists on the moral significance of the witness, unnoticed and unconsidered, but he also reminds us that the true witness is the victim. So Giorgio Agamben, in Remnants of Auschwitz: The ‘true’ witnesses, the ‘complete witnesses’, are those who did not bear witness and could not bear witness. They are those who ‘touched bottom’: the Muslims, the drowned. The survivors speak in their stead, by proxy, as pseudo-witnesses; they bear witness to a missing testimony. And yet to speak here of a proxy makes no sense; the drowned have nothing to say, nor do they have instructions or memories to be transmitted. They have no ‘story’ (Levi 1986: 90), no ‘face’, and even less do they have ‘thought’ (ibid.). Whoever assumes the charge of bearing witness in their name knows that he or she must bear witness in the name of the impossibility of bearing witness.26

There we have the meaning of Bennett’s omission. The true witnesses cannot be represented because they have been ‘dismayed, displaced, dispersed, dispirited, displayed, dismissed’ – and, finally, ‘disappeared’.27 Instead, the pseudo-witness, an after-image, must accept the impossible burden of bearing witness in their name. Across the erasures of time, to testify to what did not happen to them; to offer a presence on behalf of the absent; to insist on watching and seeing; to constitute an immanent encounter that is constantly being shirked; to judge. Even the colours of the picture suggest the moral ambiguities of this complex temporality. The Europeans are covered in wild splatterings of colour that surely resemble a deconstructed Union Jack. But the Indigenous figure is dressed in black, yellow, and red. It’s the same combination that Klimt used to implicate the AustroHungarian Empire in legal violence. Here, the implications are different; these are the 26 27

Giorgio Agamben, Remnants of Auschwitz (New York: Zone Books, 1999), p. 34. Gordon Bennett, Untitled, 1989, oil and synthetic polymer paint on six canvas panels each 30 cm × 30 cm (Collection: Museum of Contemporary Art, Sydney).

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colours of the Aboriginal flag. The association is made explicit in a different version of the same painting, entitled Possession Island (Abstraction),28 in which the figure is replaced by abstract swatches of colour, black – yellow – red. So, if at one moment, the painting implies the constitution of the colonial subject to come, at another moment, Bennett may be suggesting the potential, as yet unrealized, for the constitution of a new sovereign subject under a new flag. As to which of these readings or prophecies is in any sense right, time will tell, for the power of fabulous retroactivity works both ways. The Colonial Pantocrator: A Legal Emblem As discussed in Chapter 3, Governor Arthur’s Proclamation constitutes the colonial encounter on different terms, according to the abstract logic of modern law.29 The transfer of sovereignty from Aboriginal to British rule, spelled out so explicitly in the second panel of the Proclamation, suggests a weaker opponent manfully conceding to a stronger. The two sides look like they are shaking hands at the end of a rather one-sided cricket match. But the handshake does not just signify a cessation of hostilities. It inaugurates a new social contract – Aboriginal people are shown to be exchanging autonomy for the protection of British justice. The rule of law is held out to subject peoples as a benefit of their adapting to modern conditions. More than that, the Proclamation uses the abstract equality of the rule of law to justify the assumption of legal and political power by our colonial masters. In fact, there is more than a little retroactivity in this temporal logic too. The promise of the rule of law to come justifies the surrender of sovereignty now and for all time. The Proclamation stages this encounter in unusually civil and abstract terms: in fact, the abstraction and civility of British law was its point. Tim Bonyhady argues that nineteenth-century colonial art shows a fundamental schism between two arcadias, the Aboriginal and the pastoral, each of which occupy a separate imaginative space.30 But as Nicholas Thomas points out, colonial art – for example in the Tasmanian paintings by John Glover, who arrived in Australia only just after the events which gave rise to Governor Arthur’s Proclamation – may be better understood as portraying a narrative of succession: not the one or the other, but the one and then the other.31 Glover’s work echoes, perhaps, the Proclamation’s argument for displacement, assimilation, and disappearance. ‘This temporal construction of the 28

29 30 31

Gordon Bennett, Possession Island (Abstraction), 1991, oil and synthetic polymer paint on canvas, 182 cm × 182 cm (Collection: Museum of Contemporary Art Australia and Tate, purchased jointly with funds provided by the Qantas Foundation, 2016). See Chapter 4 of this book and sources there cited. Tim Bonyhady, Images in Opposition (Oxford: Oxford University Press, 1985). Nicholas Thomas, Possessions: Indigenous Art / Colonial Culture (London: Thames & Hudson, 1999), pp. 153–7.

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colonial relationship’, writes Thomas, ‘finds settler accomplishments blessed, while lamenting the passing of the Indigenous way of life’.32 As we saw, however, in Chapter 3, colonialism’s temporal temper is more complicated still. Every Aboriginal resistance to assimilation triggers the deferral of these legal principles. The state of exception does not give up on the handshake promise of western law, but defers it, indefinitely, until such time as subject peoples have shown themselves capable of receiving its blessing. Imagine a highway. Western law is represented as the broken line in the middle of the road that drives us onwards to the future, while Aboriginal people are doomed to slip between the cracks. Thus, the Proclamation sets out a narrative of colonialism that is characterized neither by two incommensurable visions, a` la Bonyhady, or an orderly succession from one system to another, a` la Thomas, but by a temporal aporia. Aboriginal peoples are perpetually consigned to the no-road or abyss, the dies non juridicus, carnival, or outlaw state,33 the broken white lines of a justice perpetually deferred. Gordon Bennett provides an aesthetic representation of this colonial temporality, not from the point of view of the legal system but of the colonized. In several paintings, including The Persistence of Language,34 The Coming of the Light (Figure 6.3), and a decade later as part of the Notes to Basquiat series (Figure 6.4), he introduces an alternative coat of arms, or should I say a single arm with a fist at both ends.35 One holds a torch, upwards, and the other holds a belt, downwards. On the first occasion, the belt is choking the contorted head of an Aboriginal jack-inthe-box. The treatment in Notes to Basquiat is more explicitly iconographic, and might be taken to be Bennett’s emblem of the rule of law. Like a legal emblem, the image floats in front of the picture plane – a stamp of overriding authority, pronouncing the specific relationship between norm and exception, always existing, never admitted. The image echoes a long iconographic tradition. Images of the Last Judgement were recurring points of reference for human justice throughout the Middle Ages and the Renaissance.36 The figure of ‘Christ Pantocrator’, judge of all humanity, is depicted sending the blessed to heaven and consigning the damned to hell. In each and every case the gesture which identifies Christ in the role of judgement is virtually identical. He points up to the heavens with the fingers of one hand and points or presses down to hell with the palm of his other. The symmetrical posture of the two 32 33

34 35

36

Ibid., p. 109. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, eds. W. Hamacher and D. E. Wellbery, trans. D. Heller-Roazen (Stanford, CA: Stanford University Press, 1998). Gordon Bennett, The Persistence of Language (Perth: Art Gallery of Western Australia, 1987). Gordon Bennett, The Coming of the Light, 1987, synthetic polymer paint on canvas, 152 cm × 274 cm (Collection: Queensland Art Gallery, Gift of Leanne and Caitlin Bennett in memory of and admiration for Gordon Bennett through the Queensland Art Gallery/Gallery of Modern Art Foundation 2016. Donated through the Australian Government’s Cultural Gifts Program); Gordon Bennett, Notes to Basquiat (The Coming of the Light), 2001, synthetic polymer paint on canvas, 152 cm × 152 cm (Collection: The Estate of Gordon Bennett, Brisbane). Robert Jacob, Images de la Justice (Paris: Le´opard d’Or, 2000).

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figure 6.3 Gordon Bennett, The Coming of the Light, 1987. Synthetic polymer paint on canvas, 152 cm × 274 cm. (Collection: Queensland Art Gallery, gift of Leanne and Caitlin Bennett in memory of and admiration for Gordon Bennett through the Queensland Art Gallery/Gallery of Modern Art Foundation 2016. Donated through the Australian Government’s Cultural Gifts Program; © Estate of Gordon Bennett)

hands creates a sinuous line, like a sideways ogee or figure S, extending from hand to hand, straight across the body of Christ, or swaying and tilted slightly. The curvature of the arms forms a single counter-balanced form – almost like the scales of justice itself. Michelangelo’s great version on the wall of the Sistine Chapel37 is unusually dynamic. Christ is shown almost as a magician, levitating one group by a gesture of his right hand, while casting down the other by a movement of his left. They appear to be propelled through the air like leaves borne on some cosmic wind. Other images of Christ Pantocrator, with which Michelangelo would have been familiar, are more static, more decidedly emblematic in their presentation – versions, for example, by Memling, Bosch, Cranach, or Fra Angelico.38 The notion of judgement is sometimes accentuated by the presence of the Archangel Michael, a traditional figure of justice, who incorporates a similar gesture. Giordano’s version shows a balletic St Michael delicately poised, and his outstretched hands appear to be enabling him to keep his balance. In Memling’s triptych, Michael and Christ are depicted on top of each other, each posed similarly. 37

38

Michelangelo, Last Judgement, fresco, 1,370 cm × 1,220 cm (Rome: Sistine Chapel, Vatican, 1536–41); Bernadine Barries, Michelangelo’s Last Judgment (Berkeley, CA: University of California Press, 1998). Hans Memling, The Last Judgement, distemper, oil on panel, 241 cm × 180.8 cm (Gdansk: National Museum, 1467–71); Hieronymus Bosch, The Last Judgement, oil on wood panel, 167.7 cm × 60 cm and 164 cm × 127 cm (Vienna: Kunsthistorisches Museum, 1482); Lucas Cranach, Last Judgement, oil on wood panel (Kansas City, MO: Nelson-Atkins Museum of Art, c. 1525–30); Fra Angelico, The Last Judgement, tempera on panel (Florence: San Marco, 1425–30).

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figure 6.4 Gordon Bennett, Notes to Basquiat (The Coming of the Light), 2001. Synthetic polymer paint on linen, 152 cm × 152 cm. (Collection: Estate of Gordon Bennett, Brisbane; © Estate of Gordon Bennett)

The Gerechtigheidstafereel or Allegory of Justice by Jan van Brussel in the Town Hall of Maastricht (Figure 6.5) creates a striking triple accord.39 The figure of Christ sitting in judgement brackets and unifies the two halves of the image shown below, where a scene of earthly justice on one side is balanced against an angel (perhaps not St Michael) on the other. Christ’s familiar gesture, the fingers pointing up and the hand pushing down, are consciously paralleled by the gesture of the angel. The connection that is drawn between heavenly and earthly justice, each under the watchful guidance of Christ the judge, is explicit. In Brussel’s Allegory, law’s menacing violence is depicted as a monster lurking behind the courtroom’s veneer 39

Jan van Brussel, Allegory of Justice (Maastricht: Antechamber of the former Council meeting hall, 1477 or 1499).

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figure 6.5 Jan van Brussel, Dual Justice, 1477 or 1499. Oil on panel, 211.5 cm × 158 cm, Town of Maastricht. (Image courtesy of Gemeente Maastricht)

of civility. But, as elsewhere, the parallel with the Last Judgement is both a terrifying threat and a reassurance. The presence of Christ and the angel confirm to us that the weighing of souls is not arbitrary but just. So too in human justice we are reassured

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that the law’s terrible punishment marks out its victims with care. The demon of violence that haunts human law is intended to keep us on the straight and narrow. Bennett distils into its purest emblematic form exactly the same gesture. The single line of the arms, one hand turned up and the other turned down, is reduced almost to the status of a symbol. But the bodily balance, and the echo of the scales of justice, is unmistakable. This is Bennett’s version of the Last Judgement. But the emphasis and meaning of the gesture has subtly changed. In figures of the Last Judgement, heaven and hell, punishment, and salvation, are shown as temporally simultaneous alternatives. Either heaven or hell are our final fate. But Bennett shows a colonial discourse in which heaven and hell operate simultaneously. Enlightenment and exception are represented as implicated in one another, the one delayed the better to produce the other. The arm with a hand at either end recalls the scales of justice, also supposed to be evenhanded. But, here, the relationship between the promise of enlightenment and the reality of violence is not one of balance but of complicity. Law claims to be ‘the coming of the light’, while simultaneously keeping its colonized subjects ‘at arm’s length’ – and suspending them by the neck until civilized. The strangling man, his head lolling obscenely to one side, reminds us of a hanging. This is the perfect image of the deferral of the rule of law: a promise on the one hand, which is held in abeyance on the other, subordinated to an exceptional violence. Under the guise of justice, law has Aboriginal people in a chokehold. As opposed to figures of the Last Judgement, then, the violence of colonial law is not a threat that balances a promise; it is the legal reality that the legal vision actually enables. The distinction, which is temporal as well as logical, might be summarized as follows. The shapely gesture of the Last Judgement conscripts the terrors of hell, the better to bring us to heaven. The same gestures in Bennett’s emblem conscript the promise of heaven, the better to keep Aboriginal people in hell. Bennett recuperates a familiar juridico-theological form in order to imply a different temporal relationship, neither of separation, succession, or synthesis but a paradox – an encounter deferred on the one hand, and yet experienced in the bluntest material way, on the other. He brings abstraction and materiality into close relation, insisting that they are not opposites so much as counterpoints: ‘two poles, irreconcilable but indissociable’; ‘two poles, irreducible but indissociable’.40 The abstract vision of enlightenment is not the opposite of the physical violence of the belt, but its imprimatur, a light that does not just illuminate but draws our eye away from the zone of darkness beyond it, and in fact makes that darkness harder to penetrate. At the heart of Bennett’s treatment of colonialism lies this aporia between the abstract benevolence of colonial representation, and its material and 40

Jacques Derrida, ‘Forgiveness’, in On Cosmopolitanism, trans. M. Dooley and M. Hughes (London: Routledge, 2002), pp. 51 and 54.

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legal violence. Bennett stages the paradox of a missed encounter that continues to scar minds and bodies. Traumatic Repetition Along with the concept of deferral, the experience of repetition, unnoticed or historicized, seems to organize colonial time. Governor Arthur’s Proclamation, which was the central focus of Chapter 3, is certainly a blunt acknowledgement of law’s dependence on violence. The violent conflict that raged across Van Diemen’s Land in the 1820s is the explicit backdrop of the image. What is promised is the evenhanded administration of death. The violence of gun and spear will be replaced by the violence of the noose. Yet although the Proclamation unflinchingly acknowledges legal violence, it is much less honest in owning up to the experience of it. Death by hanging dominates the image. But it is presented in mathematical terms, as an expression of law’s in-felicific calculus. The death penalty is a dramatic sign of the universal commensurability of the rule of law. The Proclamation’s even-handed portrayal of public execution to the contrary, the reality of colonial violence was monstrously one-sided, whether condoned by the rule of law or excused by the state of exception. And its continuation and repetition in the modern world has not gone unnoticed, by Indigenous people at any rate. Indigenous Australian artists have turned with astonishing regularity to the role of law in this unfinished history, and specifically to the image of a hanging: in a 1963 piece by Jack Wherra, for example, called Speaking Stockman,41 and repeatedly in the late 1980s and early 1990s: in Robert Campbell, Jr.’s Abo History,42 in the brutally direct sculpture by Fiona Foley,43 Annihilation of the Blacks, and in a torrent of works by Gordon Bennett, including Cornfield (with Scarecrow); Hanging Man, Sleeping Man; Ask a Policeman; and The Persistence of Language.44 Of course, the symbol of a hanged man has been a staple of western art illustrations of legal authority since the invention of the printing press.45 But with nagging insistence, the colonial enterprise has been 41 42 43

44

45

Jack Wherra, Speaking Stockman, carved boab nut (Canberra: National Museum of Australia, 1963). Campbell, Abo History. Fiona Foley, Annihilation of the Blacks, wood and other materials (Canberra: National Museum of Australia, 1986). Gordon Bennett, Cornfield (with Scarecrow), 1991, watercolour on paper, 37 cm × 27 cm (Collection: Gift of Dr Paul Eliadis through the Queensland Art Gallery | Gallery of Modern Art Foundation 2013. Donated through the Australian Government’s Cultural Gifts Program); Hanging Man, Sleeping Man, 1995, mixed media on paper, 60 cm × 40 cm (Collection: National Gallery of Victoria, Melbourne); Ask a Policeman, 1993, soft ground etching on paper, 60 cm × 40 cm (Collection: Museum of Contemporary Art, Sydney); The Persistence of Language, 1987, synthetic polymer paint on three canvas panels each 152 cm × 137 cm (Collection: Art Gallery of Western Australia, Perth). See several examples in Michael Widener and Mark Weiner, Law’s Picture Books (Clark, NJ: Talbot Publishing, 2017) (catalogue for exhibition held at Grolier Club, New York, September–October 2017); notably Coutumes ge´ne´rales d’Artois (Paris: Chez Le Clerc, 1756).

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figure 6.6 Marlene Gilson, Standing by Tunnerminnerwait and Maulboyheenner, 2015. Acrylic on linen, 142.5 cm × 198.5 cm. City Gallery at Melbourne Town Hall. (Image courtesy of City of Melbourne Art and Heritage Collection; © Marlene Gilson)

summed up by a black man on the end of a rope. Fiona Foley presents ‘the annihilation of the blacks’ through nine black dolls strung up in a row, under the supervision of a single white doll.46 She evokes the image of the Proclamation – a line of black bodies hung out to dry. A recent artwork by Marlene Gilson makes the connection even more overtly. Standing by Tunnerminnerwait and Maulboyheenner, from 2015 (Figure 6.6), addresses the execution of two young Aboriginal men in Ballarat in 1842. It incorporates, as this detail from the much larger canvas shows, highly specific references to Governor Arthur’s Proclamation which leave no doubt that what is intended is a darkly ironic commentary on the its naive promises of brotherly love and equality before the law. Still more direct in confronting the real legacy of Governor Arthur’s Proclamation is the photo by Geoff Parr (Figure 6.7). Parr plays on the myth of origin of the Proclamation, copies of which were supposedly nailed to trees the better to communicate the benign intentions of the colonial regime to the Indigenous inhabitants. But the real and racist application of the Australian legal system is nailed to the same tree, an abrasive contrast. Neither can the image be read as limited to historical revisionism; the black man’s modern suit is not enough to save him from the real 46

Foley, Annihilation of the Blacks.

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figure 6.7 Geoff Parr, Place II, 1983. Silver gelatine photo, Plimsoll Gallery, University of Tasmania, Hobart. (Photo credit: Geoff Parr; © Estate of Geoff Parr)

violence of the noose, whether we are to read the image symbolically, or to acknowledge its associations with modern histories of suicide and of deaths in custody. These multiple derivations bring home to us the continuing afterlife of Governor Arthur’s Proclamation as a touchstone for Australian Indigenous artists. The choice of a noose, above all, must be accounted for. It attributes racial violence not just to personal animus or a racist ideology, but to the legal system as such, to discourses of authority and right. As the Proclamation boards make abundantly clear, the noose is a universally recognized symbol of legally authorized violence. Bennett supplements this register with the intimate domesticity of a settler’s belt, extending its meaning to other contexts, other stories on the colonial frontier, while suggesting a certain attitude of crass expedience. The belt implies a domesticated racist violence that could not proceed without the complicity of the legal system, in just the same way that domestic violence against women could not proceed without the complicity of a patriarchal legal system. Bennett insists that the agents of this violence were not simply military or judicial officers – as Governor Arthur’s Proclamation implies – but colonial settlers, exconvicts, and farmers. Nonetheless, the image of the noose swaddles these actors in the authority of the law. What they did was not murder. It had about it some of the trappings of ritual and formality, the whiff of legitimacy and of self-justification. Slavoj Zˇizˇek observes that there is ‘an obscene underside to the law’.47 This underside is not 47

Slavoj Zˇizˇek, The Metastases of Enjoyment (London: Verso, 1994), p. 54; Laurent de Sutter, ed., Zˇizˇek and Law (London: Routledge, 2015), p. 82.

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acknowledged by it, but operates as ‘an open secret’ that sustains the law by licensing the enactment of its fantasies of freedom and omnipotence. This indeterminate zone of legal fantasy is ‘obscenely visible to each of his subjects in the privacy of their own visual field, yet must be shrouded in a cloak of invisibility in the public realm. This is the site of the gaze.’48 This is the role of hanging both in the work of these artists and in the unfolding of the colonial project. An obscene fantasy of genocidal violence which was rarely admitted in so many words, but which was nevertheless an ‘open secret’ of colonial ideology, and which allowed many white settlers to live out their unspoken violent desires. In Hanging Man, Sleeping Man, Bennett associates what was done to Aboriginal people in Australia with the lynch law of the American South.49 Those men and women, too, were hanged, an indication of ritual elements, of underlying normative principles, and a manifestation of law’s open secret. Lynching did not simply borrow the iconographic trappings of the state; it depended on a relationship of tacit approval that shored up law’s social cohesion while allowing it maintain a plausible stance of deniability. The hanged body itself was not merely the product of this dynamic but was forced to participate in the production of colonial meaning. A society, Zˇizˇek says elsewhere, is bound together by what it cannot say as much as by what it does say – a silent pact that outsiders know nothing about. In this light, Governor Arthur’s Proclamation takes on an ominous hue, giving shape to this ‘open secret’ while formally denying it. A neat trick; what it says out loud and what it only whispers are entirely opposite. To belong to Van Diemen’s Land society was to be able to read the image both ways, the public law disavowing what the private law allowed. Hobart was a town bound together by winks and nods that remained unsaid, a righteous violence shackled to a guilty conscience. It would not have been the first place, particularly in settler colonies, in which these two aspects strangely sustained one another; the secret shame only provoking ever louder protestations of justification. Indigenous Australian artists are particularly sensitive to the long-term patterns of legal violence that repeat themselves across hundreds of years. From 1987 to 1991, the Royal Commission into Aboriginal Deaths in Custody investigated the deaths of over one-hundred Aboriginal men in a ten-year period, at least thirty of whom died by hanging, and seventy by other preventable causes.50 Those familiar with the workings of Australian political life will be unsurprised to learn that twenty-five years later, Aboriginal deaths in custody continue to ravage the carceral system, while the recommendations of the Royal Commission lie gathering dust. Robert Campbell, Jr.’s Abo History (Facts) explicitly connects colonial violence and modern deaths in 48

49 50

See Henry Krips, ‘The Politics of the Gaze: Foucault, Lacan and Zˇizˇek’ (2010) 2 Culture Unbound: Journal of Current Cultural Research 91–102, at 98–9; Zˇizˇek, Metastases of Enjoyment, ch. 1. Bennett, Hanging Man, Sleeping Man. Royal Commission into Aboriginal Deaths in Custody, National Report, 5 vols. (Canberra: Government Printer, 1992).

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custody; Fiona Foley might have been similarly inspired. In Ask a Policeman,51 Bennett refuses to distinguish between murder and suicide, the noose and the belt. From the point of view of a violently colonial legal system, the distinction is largely irrelevant. In The Persistence of Language,52 the shadowy figure of a hanged man in a cell, only dimly seen at first, forms a dark counterpoint to the blood-red lexicon of terms of racist abuse daubed like graffiti on the wall next to his body. Violence and despair are implicated in a whole matrix of institutional practices, legal, cultural, visual, linguistic. In 2016, graphic visual evidence of the abuse of young mainly Aboriginal juveniles held in detention in the Northern Territory garnered enormous media attention.53 But the story was not new, either in its particulars or in general. The pattern of repetition and forgetting goes on, a long and sorry history that Indigenous Australians see very clearly. The figure of the hanged man looms over them all – Governor Arthur’s rule of law, through a glass darkly. Thus, another distinctive temporal strategy of colonialism comes into focus, characterized by repetitive fantasies on the one hand and repetitive violence on the other. This is not a cycle; there is something reassuring about cycles. The year and the body have their cycles. So does the economy, politics, or Halley’s Comet. A cycle is recognized, predictable. This is different. Repetition is the consequence of repression – the performance of a trauma that, as Cathy Caruth has argued, has not been adequately represented, still less addressed, and for that reason continues to be compulsively and perhaps unconsciously performed in law and in politics.54 Like artefacts in the tombs of ancient civilizations, to recall Freud’s metaphor, repression not only buries memories, but preserves them intact.55 This compulsive repetition is the consequence of a lack of consciousness of the forms and contours of our own history.56 Six different prime ministers have continued and extended the policies adopted in 2007. Under the new title Stronger Futures in the Northern Territory Act,57 laws that initially applied to 73 communities and 32,000 people, now extend over 600 communities and 45,000 people. By any serious measure, these laws have failed Aboriginal communities in 51 52 53

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Bennett, Ask a Policeman. Bennett, Persistence of Language. Australian Broadcasting Corporation, Four Corners, 25 July 2016; see Royal Commission into the Protection and Detention of Children in the Northern Territory (2016–). See Unclaimed Experience: Trauma, Narrative and History (Baltimore, MD: Johns Hopkins University Press, 1996); Roger Luckhurst, The Trauma Question (London: Routledge, 2008); Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century (Cambridge, MA: Harvard University Press, 2002), pp. 173–82; Simon Boag, Freudian Repression, the Unconscious, and the Dynamics of Inhibition (London: Karnac, 2012). See ‘Sigmund Freud’s Archaeological Metaphor and Archaeology’s Self-Understanding’, in C. Holtorf and A. Piccini, eds., Contemporary Archaeologies: Excavating Now (London: Peter Lang, 2009), pp. 33–45; Malcolm Bowie, Freud Proust and Lacan: Theory as Fiction (Cambridge: Cambridge University Press, 1987), pp. 20 and 22, quoting Freud’s letters. Griselda Pollock, ed., Visual Politics of Psychoanalysis (London: IB Tauris, 2013), pp. 10–12. Stronger Futures in the Northern Territory Act, 2012 (Commonwealth of Australia).

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the Northern Territory.58 Domestic violence incidents are up. Children being removed from their families are up. Child hospitalizations are up. Indigenous incarceration levels in the Northern Territory are the highest in the country, and are increasing the fastest. Unemployment and welfare is rising; school attendance levels are not. Self-harm and suicide rates in Aboriginal communities have more than doubled since 2007.59 But the government has responded with what has been termed a kind of ‘evaluation fetishism’.60 It might better be described as evaluation legalism – less aimed at any sort of genuine consultation or evidence than in establishing a paper trail that will pass legal muster under international law.61 Several so-called evaluations have been done by private consultants given narrow briefs, or by government departments who have chosen to evaluate themselves on the basis of inadequate documentation. The resulting reports are repetitive and self-satisfied, suggesting an almost neurotic insistence on the supposed success of the programmes. Addressing the highly controversial imposition of the so-called ‘basics card’ on Aboriginal communities, the survey commissioned for the 2011 Evaluation Report ignores the difficulties and resentment the programme faced, instead drawing only on the anecdotal evidence of one respondent: ‘We’re happy people, transfer money to the Basic Card. People like it here. Can ring up Centrelink Income Management seven days a week to transfer money.’62 Like some image out of a colonial textbook, the image of the happy blackfella pleased to be rid of the responsibility of looking after himself, has too long and unpleasant a history to be trotted out with such nauseating ingenuousness. Even our fantasies have a depressingly repetitive quality to them. Law, its rhetoric and its effects, repeats itself – in 2019 as in 2007; in 2007 as in 1989; in 1989 as in 1842 or 1829 – while appearing wilfully blind to its own repetition. Echo 58

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See in particular Jon Altman, ‘Tracking Indigenous Policy 2011–2014’ (2015) 15 Journal of Indigenous Policy 1–156; Eva Cox, ‘Evidence Free Policy-Making: The Case of Income Management’ (2012) 12 Journal of Indigenous Policy 1; Castan Centre for Human Rights (Faculty of Law, Monash University), The Northern Territory Intervention: An Evaluation (www.monash.edu/law/centres/castancentre/ourresearch-areas/Indigenous-research/the-northern-territory-intervention, last accessed 18 February 2016); Peter Billings and Anthony Cassimatis, ‘Redesigning the Northern Territory Emergency Response’ (2009) 27 Law in Context 58. See in particular Altman, Tracking Indigenous Policy; Jon Altman and Susie Russell, ‘Too Much “Dreaming”: Evaluations of the Northern Territory National Emergency Response Intervention 2007–2012’ (2012) 3 Evidence Base 1. Altman and Russell, ‘Too Much “Dreaming”’, 9. Initially, the laws sought to exclude the operation of the Racial Discrimination Act 1975 which was enacted in 1975 to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Reinstating it raised questions as to whether the Intervention could be justified as a ‘special measure’. The UN Committee which oversees the Convention has advised signatories that the ‘informed consent’ of minority groups is paramount. The UN Declaration on the Rights of Indigenous Peoples goes further, requiring governments to obtain from them ‘free, prior and informed consent’. Bowchung Consulting, Community Safety Well Being Survey Consolidated Report (Canberra: Government Printer, 2011), p. 58, commissioned for Australian Government, Northern Territory Emergency Response: Evaluation Report 2011 (Canberra: Government Printer, 2011).

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and Narcissus is Bennett’s diagnosis of this tragic repetition.63 He imagines Narcissus as colonial Australia. In standard versions of the myth, such as those by Poussin or Waterhouse or Picasso,64 Narcissus is depicted in a haze of selfabsorption, Echo reduced to the status of a yearning bystander. But Bennett turns the story on its head. Black Echo rises up out of the water, caressing Narcissus’s white cheek with fond desire. Echo is none other than Narcissus’s own reflection. This makes doubly tragic the non-relation to which they are each condemned. The tragedy is not the image that Narcissus sees, but his failure even to see himself. The Australian Narcissus is not in love with his own reflection. He is blind to his own reflection, which is a very different matter – blind to the encounters that have actually constituted his own history and existence. Repetition is the temporal loop to which this blindness condemns us. By staging the drama of colonial Australia in the realm of myth, Bennett intensifies this feeling of repetitive failure, of a discourse that is fatally stuck. Colonial time is on a treadmill, going nowhere fast. But as between white settlers and Aboriginal people this repetition is experienced very differently. For most Australians and for Australian law, repetition condemns time to two related qualities: first, a constant sameness for all eternity; second, through the operations of repression, each repetition seems to appear as if for the first time. The repetition is compulsive, while its repression is amnesiac. Isn’t it queer: there are only two or three human stories, and they go on repeating themselves as fiercely as if they had never happened before; like the larks in this country, that have been singing the same five notes over for thousands of years.65

The curse of colonialism lies in this strange temporal dualism, like the song of the lark. On the other hand, Aboriginal people – as the work of contemporary Aboriginal artists including Bennett makes incontrovertibly clear – do not have the luxury of forgetting. Trauma is a temporal phenomenon, the name for an event that has not been reduced to the past or to meaning and is therefore experienced as continually present. It is no surprise that the trauma of colonial violence is rehearsed so obsessively by Aboriginal artists such as Bennett. The violence of the noose has not gone away. Each repetition is as the opening of a wound that will not heal. Their experience of the colonial legal system does not get better or more distant over time. Law keeps worrying the same infected spot, hurting the patient not less and less but 63

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Gordon Bennett, Echo and Narcissus, 1988, oil and synthetic polymer paint on canvas, 179.5 cm × 200 cm (Collection: Paul Eliadis Collection of Contemporary Australian Art, Brisbane). See Rex Butler, ‘Echo & Narcissus: Gordon Bennett and His Critics’ (2000) 16 Postwest 46–51. Nicolas Poussin, Echo and Narcissus, oil on canvas, 74 cm × 100 cm (Paris: Muse´e du Louvre, 1628– 30); J. W. Waterhouse, Echo and Narcissus, oil on canvas, 109.2 cm × 189.2 cm (Liverpool: Walker Art Gallery, 1903); Pablo Picasso, Girl before a Mirror, oil on canvas, 162.3 cm × 130.2 cm (New York: MOMA, 1932). Willa Cather, O Pioneers, pt. II, ch. 4 (Boston, MA: Houghton Mifflin, 1913).

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more and more. So, if trauma and repetition characterize colonial law, these temporal anomalies are nevertheless experienced very differently by Aboriginal and settler societies.

re-presentations of colonial time Bennett shatters the illusion of time as linear and progressive, showing that this shattering is already at work in colonialism, in its art and its law alike. He illuminates how colonial representations fold and crease time. Colonialism’s primal scene is imbued with a fabulous retroactivity. The colonial Pantocrator postpones the promise of rights and the rule of law in the interests of an unforgiving and punitive violence exacted on black bodies. Everyday colonial law is governed by repetition and repression. The combination provides the colonial experience with its peculiar characteristic apathy, condemned to a sameness that is nevertheless experienced as if it were a novel response to an entirely unique set of circumstances. In each case, Bennett’s art explores how the colonial imaginary is deeply implicated in temporal logics and visual rhetorics, and that this relationship is not something which can be relegated to historical time or wiped clean by historical progress. But Bennett does more than just diagnose the haunting effects of colonial representation. By re-presenting those effects, he creates a visual space in which the viewer can engage with their own subject position in a way that is psychological and contemporary rather than only analytic and historical. The temporal complexity of much of his art is not just critical but constitutive – in other words, the art itself is caught up in a temporal paradox that is essential to its productive effects. This is what I mean by distinguishing how Bennett’s art works as representation from how it works as re-presentation. But to develop the point we need first take a step back and reflect on a certain debate within art history and theory. More than almost any artist, Bennett believed that visual regimes are vital tools of colonial ideology. The aesthetic and the legal for him were two sides of the same coin. In this he surely betrays the influence of Erwin Panofsky, to whose essay on ‘perspective as symbolic form’ Bennett’s work frequently gestures.66 Panofsky famously argued that the development of perspective was a master trope that both drew on and framed the whole structure of Renaissance knowledge, and continues to govern how we perceive the world and our relationship to it. In painting after painting Bennett traces geometric figures and perspective schema over the top of Aboriginal landscapes and Aboriginal bodies. He suggests that western modes of perception – abstract, imperial, and objectifying – were therefore blind to the relations between land and people of the original inhabitants and complicit in their erasure.67 In a painting like Terra Nullius 66

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Erwin Panofsky, and Christopher Wood, Perspective as Symbolic Form (New York: Zone Books, 1991); Hubert Damisch, The Origin of Perspective, trans. John Goodman (Cambridge, MA: MIT Press, 1994). See Simon Ryan, The Cartographic Eye: How Explorers Saw Australia (Cambridge: Cambridge University Press, 1996).

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(Teaching Aid): As Far as the Eye Can See,68 legal appropriation is tied, both literally and metaphorically, to the invisibility of cultures and peoples, and to the perspective grid through which they were viewed. Sight, organized through the dictates of western perspective, abstracted, disciplined, ordered, prioritized – owned – space. Aboriginal people, whose relationships to land were unable to be represented in these terms, were seen to be incapable of possessing legal title. The doctrine of terra nullius was not just a legal term; it encapsulated a way of seeing, or rather of failing to see. There is no doubt that Bennett, an artist who went to art school relatively late in life, was considerably influenced by the theoretical material he encountered there. But this influence could sometimes come across as a trifle heavy-handed. There is no doubt that Panofsky inaugurated a revolution in art history due to the enormous breadth of his scholarship and his determination to always situate the artwork in its conceptual and historical context. For Panofsky, the key question was that of ‘meaning in the visual arts’;69 art is treated as part of the history of ideas. But so forceful a presence was he, that generations of art historians have been trying to get out from under the weight of his influence. Considerable scholarship in recent years, such as that of Svetlana Alpers, has insisted that Panofsky radically overstated the hegemony of Renaissance perspective; indeed, to the extent that that hegemony has persisted, it was not so much artists but critics like Panofsky (and before him, Vasari) who were responsible for it. Alpers argues for a distinctly northern form of representation, in the golden age of Dutch art for example, which does not take the single spectator as its point of view and whose guiding metaphor might be the map, not the window.70 If, for Alpers, Panofsky’s problem was one of over-generalization, for others, notably Georges Didi-Huberman and Hubert Damisch, the problem lay in his preoccupation with the matter of meaning.71 Their assault has been both more comprehensive and angrier. Alpers’s ‘referential bias’ is no more satisfactory than Panofksy’s ‘semiotic bias’.72 The former treats art as mimetic, the description of things in the world; the latter treats art as iconographic, code for some other thing.73 Both imagine art history as a kind of detective work in which final answers can be given and ‘meaning in the visual arts’74 conclusively determined. And this assumption, they argue, misses what art does, is, and how it works.75 The difference goes back to the two great founding fathers of twentieth-century art criticism, Panofsky 68

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Gordon Bennett, Terra Nullius (Teaching Aid): As Far as the Eye Can See, 1993, synthetic polymer paint on canvas, 175 cm × 414 cm (Collection: Private, Melbourne). Erwin Panofsky, Meaning in the Visual Arts (Chicago, IL: University of Chicago Press, 1955). Svetlana Alpers, ‘Is Art History?’ (1977) 106 Daedalus 1–13; Svetlana Alpers, ‘Taking Pictures Seriously’ (1978–9) 10 Simiolus 46–50; Svetlana Alpers, The Art of Describing (Chicago, IL: University of Chicago Press, 1983). Didi-Huberman, Confronting Images; Devant le temps; Hubert Damisch, The Origins of Perspective; The´orie de la peinture. Pour une histoire de la peinture (Paris: Seuil, 1972). Didi-Huberman, Confronting Images, p. 244. Ibid. Panofsky, Meaning. Didi-Huberman, Confronting Images, p. 231.

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and Aby Warburg – between explanation and expression, symbol and symptom.76 Damisch associates Panofsky’s project with the ideology of perspective that he analysed. Both represent efforts to ‘fix the eternal world in space and extend the sphere of the ego into it’.77 He emphatically rejects the attempt to reduce art to content and aesthetic effects to mere ‘signifiers’ of some underlying, legible, meaning.78 So, too, according to Didi-Huberman, ‘one cannot disentangle “pure reason” from “pure unreason” . . . except by disincarnating the intrinsic power of images’.79 Note that word ‘incarnation’, which connects art to something bodily and material rather than symbolic and conceptual – we will have occasion to return to it. To the contrary, they argue that an essential part of the experience of art is not and never has been reducible to questions of content or meaning. In this, they resist a wholly narrative or semiotic understanding of aesthetic experience; sustained perhaps by Walter Benjamin’s often-quoted remark that ‘history breaks down into images, not into stories’.80 Works of art are not just depictions of a place or representations of a story or an idea. They are not simply signs that mimic or represent other, specifically linguistic, things. Instead, they constitute, incarnate, or open up a space in which the spectator experiences a disturbance in their equilibrium. The encounter that takes place is not with a narrative or history, but with an event that cuts through time. As I discussed in the Foreword, the study of artists’ treatment of the Annunciation in Renaissance and pre-Renaissance art,81 that moment when according the Christian tradition, the angel of God became present to Mary, is telling. The idea of incarnation, of embodiment or material form, is an integral component of the relationship between Christian thought and art. It corresponds to a mystical presence that the artwork seeks not to represent or explain or remind us of, but rather to summon. It establishes art not as the mimetic representation of the past but as the space of an event made present. For DidiHuberman as for Damisch well before him, all art is therefore an annunciation. Perhaps another way of putting this is to recall Hans Belting’s famous distinction between an image as symbol or as icon; between its function as a ‘likeness’ – which since the Renaissance we have come to imagine as the only thing a painting can be – and its much earlier power as a ‘presence’.82 Belting describes this is the history of the image ‘before the era of art’, but this temporal dividing line is, as we have seen, 76

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Particularly the Warburg of the late and incomplete Mnemosyne Atlas. See Georges Didi-Huberman, L’image survivante: Histoire de l’art et temps des fantoˆmes selon Aby Warburg (Paris: Minuit, 2002). Damisch, The Origin of Perspective, p. 287, quoted in David Packwood, ‘Dream Perspectives – Hubert Damisch’, in Nigel Saint and Andy Stafford, eds., Modern French Visual Theory: A Critical Reader (Manchester: Manchester University Press, 2013), p. 92. See Packwood, ‘Dream Perspectives’. Didi-Huberman, Confronting Images, p. xxv. Walter Benjamin, The Arcades Project (Cambridge, MA: Harvard University Press, 2002), p. 467. Didi-Huberman, Confronting Images, pp. 13–52; Georges Didi-Huberman, Fra Angelico – Dissemblance and Figuration (Chicago, IL: University of Chicago Press, 1995). Hans Belting, Likeness and Presence: A History of the Image before the Era of Art (Chicago, IL: University of Chicago Press, 1997).

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problematic. We cannot understand art’s effects while we continue to seek to master its meaning and to rigorously police and compartmentalize a temporal distance that was and is alien to it. ‘The history of art will fail to understand the visual efficacy of images so long as it remains subject to the tyranny of the visible.’83 This traversal across time is key to art’s force. Michel Serres has described the artwork as like a crumpled handkerchief.84 Rather than an ordered topography, the folded cloth brings into close proximity otherwise distant times and objects, creating new juxtapositions and associations through the continuity of signs over time.85 And it is worth remembering that Aby Warburg stands as the wellspring of this tradition no less than the semiotic and analytic approach raised to such a pinnacle by Panofksy. Warburg’s Mnemosyne Atlas was driven by synchrony not diachrony. He wanted to explore the interplay of similar signs in different times, rather than the interplay of different signs at the same time. Neither can we approach works of art now except through the layers of meaning that have been added to it over time, creating a variety of complex links between the work and the present-day spectator through which a more total and intimate relationship is developed.86 ‘You cannot acknowledge the memorial dimension of history’, wrote Didi-Huberman, ‘without accepting at the same time both its anchoring in the unconscious and its anachronic dimension’.87 With this in mind, we can begin to see that Bennett does not just study colonial representations. His art brings them into the present moment, queering the history of law, art, and colonial history in complex ways, making space for the viewer to encounter them anew, and in the process transforming their power. In other words, he does not merely insist on the contemporary salience of the colonial image archive. At every moment, we are in the presence of a new and equally primal scene, the possibility of a new start. ‘Faced with the image, we are faced with time . . . faced with the image, the present and past are ceaselessly reconfigured.’88 The ‘fabulous retroactivity’ of the colonial encounter, therefore, is not only the source of its hold over us, but also the site of its potential disruption. Rupturing Time: Requiem Reading art as a material presence that unscabs the wound in time is the first part of Didi-Huberman’s twofold strategy to move beyond the reduction of art to 83 84

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Didi-Huberman Confronting Images, p. 52. Michel Serres, Conversations on Science, Culture, and Time/Michel Serres with Bruno Latour, trans. Roxanne Lapidus (Ann Arbor, MI: University of Michigan Press, 1995), p. 60. Mieke Bal, ‘Dreaming Art’, in Griselda Pollock, ed., Psychoanalysis and the Image (Oxford: Blackwell, 2006), p. 55. Ralph Dekoninck, ‘Daniel Arasse’s Joyful Visual Science’, in Saint and Stafford, eds., Modern French Visual Theory, pp. 82–3. Didi-Huberman Confronting Images, p. 37. Quoted in Dekoninck, ‘Daniel Arasse’s Joyful Visual Science’, p. 86.

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iconography or iconology, in other words to accommodate its potential to disrupt the relationship between past and present.89 Requiem (Figure 6.8), for example, juxtaposes a familiar image of the face of Truganini against a harsh landscape redolent of a flayed and ruined body, on which has been superimposed schematic Euclidean shapes drawn using standard perspective techniques and an alphabetic schema often deployed in renaissance textbooks – from whence, indeed, it quickly gravitated to law textbooks as a common way of visually schematizing property relationships.90 Bennett marks the point of their convergence ‘CVP’, a reference to the Renaissance concept of the central vanishing point.91 Again, Bennett creates a network of resonances that float and collide. Obviously, the genocide of the Tasmanian Aborigines was in part a result of the limited nature of western legal perspective, its tendency to reduce landscapes and people to abstractions, either conformable to standard definitions of property, authority, and law; or if not, rendered invisible. Soon enough, of course, and particularly in Tasmania, this piece of abstract legal thought had very real material consequences. The ‘central vanishing point’ is a symbol for the disappearance of Tasmania’s first nations, lines of perspective critiquing a certain temporal logic which throughout the nineteenth and twentieth centuries was used to justify the fate of Aboriginal peoples, supposedly ‘doomed’ to extinction by the inevitable march of the modern world, left behind by modern art which was thought to have progressed further than theirs, and by modern law – ditto. But this sense of the violence that dwells in the language of progress does not quite account for the image’s uncanny power. Truganini, often called the last full-blood Tasmanian, does not simply vanish over the horizon. She rises like a sun, sublimed among the clouds. Bennett’s use of an iconic image, here as elsewhere, interrogates the lazy cultural lexicon that we absorb and that unconsciously frames our worldview. But Truganini’s severe gaze nonetheless maintains a spectral authority. She continues to reprove the eyes trained on her and trained, likewise, to see past her. One might treat her ascension at the very moment of her requiem as a Levinasian move, ‘the face of the other’ which constitutes my own subjectivity and imposes an ethical responsibility.92 Such a reading oversimplifies I think the problem of representation. Bennett offers viewers not a face but an image and an icon, the 89

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See the discussion of Walter Benjamin’s ‘dialectics of images’ in Anthony Auerbach, ‘Imagine No Metaphors: The Dialectical Image of Walter Benjamin’ (2007) 18 Image [&] Narrative [e-journal]; Walter Benjamin, The Arcades Project, trans. Howard Eiland and Kevin McLaughlin (Cambridge, MA: Harvard University Press, 1999); Nigel Saint, ‘Didi-Huberman – Images, Critique and Time’, in Saint and Stafford, eds., Modern French Visual Theory, pp. 226–7. See several fifteenth- and sixteenth-century examples in Widener and Weiner, Law’s Picture Books. In addition to sources cited above, see Samuel Edgerton, ‘The Renaissance Discovery of Linear Perspective’ (1978) 3 Journal of Aesthetics and Art Criticism 377. In a vast literature, see Emmanuel Levinas, Otherwise than Being, or Beyond Essence, trans. Alphonso Lingis (Pittsburgh, PA: Duquesne University Press, 1981); Roger Burggraeve, ‘Violence and the Vulnerable Face of the Other: The Vision of Emmanuel Levinas on Moral Evil and Our Responsibility’ (1999) 30 Journal of Social Philosophy 29–45.

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figure 6.8 Gordon Bennett, Triptych: Requiem, 1989. Oil on canvas, 120 cm × 120 cm. (Collection: Queensland Art Gallery, purchased 1989 under the Contemporary Art Acquisition Program with funds from Hill & Taylor, solicitors through the Queensland Art Gallery Foundation, Brisbane; © Estate of Gordon Bennett)

re-presentation of a person who has themselves become the representation of a history. The symbolic and therefore artificial nature of ‘Truganini’, a woman whose fame rests on the sheer fact that she died, is a necessary component of the painting’s provocation. The colonialist is a voyeur, as I argued in Chapter 3 in relation to August Robinson. He desires to see everything without ever being seen; he treats the colonized native like a picture or an object. But Jacques Lacan makes the point that the object – or the objectified subject – nevertheless gazes back at us, whether intentionally or otherwise, arousing in us an uncomfortable anxiety.

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The gaze I encounter is not a seen gaze, that is, not an eye that I see looking at me, but a gaze imagined by me in the field of the other . . . the sound of rustling leaves heard while out hunting . . . a footstep heard in a corridor. And when are these sounds heard? At the moment when he has presented himself in the action of looking through a keyhole. A gaze surprises him in the function of voyeur, disturbs him, overwhelms him and reduces him to a feeling of shame.93

Truganini’s portrait returns to us the image of a figure we had thought to define and observe in this way. From the point of her disappearance, she turns back on us a gaze that elicits a feeling of shame – of having been caught out in the act of looking – rising unbidden like a blush. And something more is going on. Lacan’s famous discussion of Hans Holbein’s The Ambassadors focuses on the extremely distorted anamorphic shape in the foreground that ‘from some angles appears to be flying through the air, at others to be tilted . . . It is then that turning round as you leave, you apprehend in this form . . . What? A skull.’94 The skull, in other words, is not visible from the standard position of the viewer but only comes into focus at the moment that we reorient ourselves in accordance with its perspective.95 The sudden horror of our own mortality opens a rupture in the authority of our own perspective, our own right to look. This rupture is temporal no less than positional. Death stares back at us from a time at once unknown yet certain, slashing through the narrow temporal confines of the painting like a knife. We lose our control over the image and over our life. So, too, Truganini’s uncanny gaze confronts us from the other side, beyond her own death. She is a memento mori, an anamorphic death’s head or the voice of conscience that whispers in our ear: respice – watch out.96 Floating like Holbein’s skull above and against the naturalism of the picture plane and incommensurable to its objective perspective and linear time, her forbidding countenance reminds us of our own inevitable dissolution in space and time. Her gaze cuts through the conventional temporal timeline of the picture, sending a shiver up and down the spine – a frisson of bad conscience on the one hand, and a frisson of our own CVP on the other. One has to change one’s perspective, leave the room, and glance backwards over one’s shoulder, to be caught in its trap.97 It is easier to think of ‘Truganini’ as a symbol than as a person; to think of her as representing the death of a people than as a flesh and blood individual whose death – as an event rather than as a ‘meaning’ – was real, not symbolic. Bennett challenges her function as pure representation and in the process brings her human life and ours into proximity. She interpellates the viewer, demanding that we look deep 93 94 95 96

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Lacan, Four Concepts, p. 84. Ibid., p. 88. Ibid., p. 92. Hendrik Simon Versnel, ed., Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph (Leiden: Brill, 1970). Packwood, ‘Dream Perspectives’, pp. 93–4. The key point for Damisch is the removal of conscious authority within the dream, which therefore subjects the ego to a structure outside of it.

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inside ourselves, to locate the ticking time bomb of our own mortality. Only once the trauma of that event is made present to us in the only way it can, which is to say outside of linear time, can we truly mourn the death of another human being – not only Truganini but each one of the thousands of Indigenous people who have died through some combination of colonial cruelty and indifference. Requiem creates a tension between these two versions of the gaze: the scopic regime of colonialism in art and law, which constitutes the terms of the temporal annihilation of Aboriginal people; and death’s anachronic time and anamorphic perspective, troubling our distance from that history. Bennett opens the space for an annunciation: not a historical fact or a representational fantasy, but a trauma of loss made present. Pan, Flesh, and Irony: Possession Island Revisited The second element of this subversive strategy – this effort to replace art as meaning with art as event – lies in recuperating the materiality of the painted surface. A symbol forms part of an intelligible unity that makes sense of the whole of the work. But a symptom destabilizes this unity; it is the physical and material manifestation of something unresolved.98 Even in works as detailed and scrupulously descriptive as Vermeer, in other words, art which according to Alpers is entirely comprehensible as a minutely accurate description of a thing or place, moments of painterly disruption disrupt its epistemological surface. This is the second way in which art breaks through the prison of historicity. The word Didi-Huberman uses is pan, by which he means the non-representational flesh of a painting which brings together two ecstatic moment: the artist’s experience at the moment of its creation, and the viewer’s experience at the moment of its reception.99 A pan is a splash or a blur, a patch of colour or texture which is in and of the art rather than in and of the object being painted – the ‘shimmer’ of light on water, or the riotous ‘shimmer’ of colour on the surface of Vermeer’s Girl with a Red Hat.100 The very excess of colour over and above its representational meaning disturbs our ability to maintain mastery of the image. The pan or intrusion of materiality on the surface is experienced as a shock – it resonates as witness to an event that takes place equally in past and present. What we are drawn to is not the signified object but the act of signification itself, the picture’s own speech act or utterance. ‘The detail is a semiotic object tending toward stability and closure, while the pan by contrast, is semiotically labile and open . . . The pan reveals only figurability itself, in other words a process, a power, a not yet.’101 It vibrates as pure body and pure potential. 98 99 100

101

See also Mieke Bal, ‘De-disciplining the Eye’ (1990) 16 Critical Inquiry 506–31. Didi-Huberman, Confronting Images, pp. 17–19. Johannes Vermeer, Girl with a Red Hat, oil on canvas, 23 cm × 18 cm (Washington: National Gallery of Art, 1666); the example of this work, and the analysis of it, are both thanks to Professor Richard Sherwin. Ibid., p. 269.

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The brightness of the yellow corner of a wall in a Vermeer or the glossy luxuriance of the application of paint by a Rothko or Newman or Pollock: the question is not so much what this ‘zone of coloured intensity’ means but rather what it does.102 The intrusion of paint disrupts the detail, the unity, and the illusion of the image. Without paying attention to these disruptive elements, we cannot account for the intensity of its effects on us. Materiality sabotages the mimetic illusion and yet intensifies our subjective and affective relationship with it. Perhaps this is the real miracle and emotional appeal of cave painting. Not that those ancient humans could have drawn a bison so cleverly, but that they could have felt the same joy of colour and line that we feel before the same image now. Even at a distance of thirty thousand years, there is something in the pleasure of the action of daubing colour and shape on a wall that is not simply documented but shared. Thus the potential of art shifts from a past description to a present event, and from ‘the visibility of the visible’ to its ‘sacred’ and ‘incarnate truth.’103 Art is incarnated – it has a body, in flesh and blood, not in mimesis but in experience, which enables it to continue living in the world. Nagel and Wood say this: A merely forensic reconstruction of the past . . . leaves the art trapped within its original symbolic circuits. It tends not even to notice that the artwork functioned as a token of power, in its time, precisely by complicating time.104

Possession Island (Figure 6.1) should be understood in these terms. Bennett’s disorienting layering of a version of Pollock’s ‘action painting’ over the top of the original image, combined with the white dots that echo a familiar form of Aboriginal art, violently disrupts its representational surface. Ironically, Howard Morphy, in his influential work on the Aboriginal art of the western desert, talks about the three dimensionality of dot painting as creating a ‘shimmer’ of experience on the surface of the art.105 Morphy’s language uncannily echoes the transcendentalism of experience we observed above. In Pollock or in Bennett, as in Vermeer or Emily Kngwarreye, the ‘shimmer’ of glossy paint, shiny dots, or lurid splashes, transports the viewer into the utterance of the work – its speech act, as it were – in order to recuperate aesthetic experience from something passive and historical into an ongoing event. The encounter is not historicized but rendered fully contemporary – ‘a process, a power, a not-yet’.106 Materiality is of fundamental importance to Bennett’s work because he consistently connects the flesh of art to the flesh of Aboriginal lives, bringing together questions of representation, experience, and encounter across different timelines 102 103 104

105

106

Ibid., pp. 267, 246–9. Didi-Huberman, Confronting Images, p. 29. Alexander Nagel and Christopher Wood, ‘The Plural Temporality of the Work of Art’, in Saint and Stafford, eds., Modern French Visual Theory, pp. 38 and 41. Howard Morphy, Aboriginal Art (London: Phaidon, 1998), p. 68; Ancestral Connections (Chicago, IL: University of Chicago Press, 1991). Didi-Huberman, Confronting Images, p. 269.

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figure 6.9 Jackson Pollock, Blue Poles, 1952. Oil, enamel, aluminium paint, glass on

canvas, 212.1 cm × 488.9 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia; © Pollock–Krasner Foundation/ARS, licensed by Viscopy, 2017). For the colour version of this figure, please refer to the plate section.

and different traditions. He describes ‘the over-painted Modernist trace of a Pollock skein as a metaphor for the scar as trace and memory of the colonial lash’.107 Where abstract expressionism sought to retreat from representation to the primal materiality of paint, Bennett insists on returning it to the primal materiality of flesh. This might be thought to be a highly problematic move, but Bennett doubles down on it. His use of Pollock to complicate this work, and specifically to bring it into relationship with Indigenous art on the one hand, and with colonial history on the other, was not incidental in the slightest. Consider Blue Poles (Figure 6.9), one of Pollock’s undoubted masterpieces, alluded to here and cited directly in another of Bennett’s works from this time. Blue Poles holds a privileged place in Australian cultural history. It was purchased by the fledgling Australian National Gallery in 1973, igniting public controversy at the time but marking now – again through the magic of the futur ante´rieur – the belated emergence of a modern Australian butterfly from the chrysalis of British provincialism. But how can Bennett conceivably assert a relationship between Pollock’s New York abstractions and Australian colonialism, appropriating in this endeavour a work that is often taken to signify the very moment that Australia finally turned its back on its colonial past? In the first place, let us not forget that the works of Pollock himself are not so purely ‘abstract’ as one might first suppose. On the contrary, they were produced by and seem to contain a visceral fury of physical activity that the canvas receives like

107

Gordon Bennett, 10 October 1996, quoted in Gellatly, Gordon Bennett.

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the scar of some violent impulse.108 The notion of the image as the aftershock of a physical effort is not far-fetched. Pollock’s ‘action painting’ was not figurative, but neither was it abstract in the sense of immaterial or conceptual. In him, paint and flesh already trade places. His painting traces the effect of his body in motion, without representing it in motion. Indeed, one might say that what distinguishes the work of Kazimir Malevich, then in a later generation Mark Rothko and Pollock, is the fact that they make no attempt to conceal the work of art. There is no smooth surface, neither a flawless representation or a sublime abstraction. In each case, their art traces as a revelation the work that went into making it. The art object, in short, records not a final outcome but an incomplete process. Again, the alleged abstraction of western desert art, most notably in the tradition of dot paintings, is a familiar point of reference.109 The corporeality of this art is far less appreciated. The correlation between flesh and paint, bodies, and canvas, lies at the heart – at once social, spiritual, and aesthetic – of many Aboriginal art practices. The relationship between identity and country is inscribed on the skin; the pliability of canvas and the bodily fluidity of ochre is not a metaphor for this relationship, but a tactile way of sustaining it, in ways that were traditionally smeared directly onto bodies and the land.110 Traditional Indigenous Australian art was also abstract but at the same time irreducibly material. In bringing together within a single frame familiar Aboriginal dot art on the one hand, and the palette and gestural abstraction of high modernism on the other, Possession Island offers not a facile appropriation of Pollock but a genuinely critical reading that works both ways. Bennett’s refusal to treat Pollock’s work as abstract echoes a further critique. Abstraction, in law and in art alike, has tended to dismiss the material and the figurative from consideration, claiming for itself the mantle of purity, even of innocence.111 Bennett’s use of Pollock to render the scars left by a whip, or of Mondrian (in the Home De´cor series) to construct the bars of an iron cage in which Aboriginal figures cavort,112 categorically refuses to allow modern art this innocence. He draws the abstractions of western perspective, and the stereotyping of colonialism, into a larger critique of modernism,113 expressing a genuine ambivalence between the undoubted power of the western fine art tradition and the chilling 108

109

110

111

112 113

Delia Ciuha, Action Painting – Jackson Pollock (Basel: Hatje Cantz, 2008); B. H. Friedman, Jackson Pollock: Energy Made Visible (New York: Da Capo Press, 1995). See Ian McLean, ed., How Aborigines Invented the Idea of Contemporary Art (Sydney: Power House, 2011). Jennifer Biddle, ‘Country, Skin, Canvas: The Intercorporeal Art of Kathleen Petyarre’ (2003) 4 Australian and New Zealand Journal of Art 61–76; Jennifer Biddle, ‘Breasts, Bodies, Art: Central Desert Women’s Paintings and the Politics of the Aesthetic Encounter’ (2006) 12 Cultural Studies Review 16; Biddle, Remote Avant Garde. Donald Kuspit, Signs of Psyche in Modern and Postmodern Art (New York: Cambridge University Press, 1993), pp. 87–8. Ian McLean, ‘Gordon Bennett’s Home Decor: The Joker in the Pack’ (1998) 4 Law Text Culture 287. The classic reference is Theodor Adorno and Max Horkheimer, Dialectic of Enlightenment (New York: Verso, 1997).

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arrogance of its claims to transcend the corporeal, to define the universal, to hold the monopoly on novelty, and to progress inexorably towards the unchallenged heights of modernity. Bennett returns abstraction back to the suffering body with which, he seems to say, it has always been surreptitiously implicated. Associating the lash of the paint as it hits the canvas with the lash of the whip as it sinks into flesh, connecting Pollock’s oozing red dribbles and blue poles with welts and cicatrices left on human bodies, Bennett forces us to see legal and artistic history as mutually implicated: to consider the corporeal violence of which abstraction – abstract law, abstract logic, abstract humans, abstract ideologies, even abstract art – claimed ignorance. This has a particular salience in reassessing the narratives of colonialism. Modernist logic tells a story in which our societies progress closer and closer to purity. The counterlogic of colonialism, which as we have seen is the dark undertow of this ideal of purity, condemns more and more lives to be remaindered, or even sacrificed, because they fit so poorly with this Bildungsroman.114 Bennett exposes a gap between intentions and effects, vision and blindness, purity and violence. He brings the narrative triumph of abstract modernism, so exultantly argued by Clement Greenberg,115 into a closer proximity with traditional Aboriginal art, undermining the supposed gulf that exists between their manner and form. But at the same time he allows the shadow of colonial violence to fall between them, preventing any neat or theoretical assertion of their equivalence by reminding us of the violence of that relation, which a Whig version of history facilitated and that more recent art interpretations tend to forget. Within the established canon of Australian art history, Bennett’s incorporation of Pollock is equally subversive. To take one example: Frederick McCubbin is celebrated as one of the most important of the Heidelberg school, which in the late nineteenth century gave Australian visual art a distinctive vocabulary and colour. The work of McCubbin, like that of Tom Roberts and Arthur Streeton, introduced and applied the methods of Impressionism to Australian scenes and landscapes. But the work of the Heidelberg school is notable for its nationalist blind spots. Their art glorified the bush and celebrated the work of its white settlers – farmers, selectors, loggers, shearers. McCubbin never acknowledged the destruction of the physical environment or of the Indigenous people who had lived there for thousands of years.116 The colonial violence exercised against people and place is relentlessly

114 115

116

See Judith Butler, Precarious Lives (London: Verso, 2004). See Clement Greenberg, Art and Culture (Boston, MA: Beacon Press, 1961); Clement Greenberg, The Collected Essays and Criticism, Volume 4: Modernism with a Vengeance (1957–1969), ed. John O’Brian (Chicago, IL: University of Chicago Press, 1993). See David Astbury, ‘The Heidelberg School and Rural Mythology’, 1982; Paul Foss, ed., Island in the Stream: Myths of Place in Australian Culture (New York: Pluto Press, 1988); Ian McLean, ‘White Aborigines: Cultural Imperatives of Australian Colonialism’ (1993) 7 Third Text 17–26; Robyn McCallum, ‘Cultural Solipsism, National Identities and the Discourse of Multiculturalism in Australian Picture Books’ (1997) 28 Ariel: A Review of International English Literature.

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figure 6.10 Frederick McCubbin, Violet and Gold, 1911. Oil on canvas, 72 cm × 130 cm, National Gallery of Australia, Canberra. (Courtesy of National Gallery of Australia). For the colour version of this figure, please refer to the plate section.

forgotten. Aboriginal people are wholly unrepresented. The work is nostalgic rather than realist, and historically naive. Violet and Gold (Figure 6.10) is emblematic of the style. It takes its place in the conventional triumphalist narrative of Australian art history. Its antipodean beauty is celebrated, its politics effaced. The colonization of the landscape is subtly but powerfully romanticized. But look more closely at its surface and the multicoloured and scratched surface of the paint, lined and splotchy, begins to shimmer in a new way. On the one hand, look close enough (Figure 6.11) and McCubbin’s figurative meaning breaks up, revealing a palette and texture that seems unmistakably Pollocklike in its physicality and pan. Even the trees start to look a lot like blue poles. With Bennett’s eye, the temporal linearity that compartmentalizes Aboriginal, colonial, and modern art, collapses. But, again, the trace of Pollock in McCubbin now leaves a haunting trace of colonial violence too. The scars of this violence, albeit steadfastly omitted by the artist, lash and punish the surface of the image just the same – like the angular dissonances of a piece by Stockhausen, or the uncanny silence of John Cage, in which, if we only listen hard enough, the world has irretrievably left its mark.117 I can only report the shock of revelation I felt on discovering these associations. Reading McCubbin through Pollock and Pollock through Bennett opened an entirely new reading of the painting to me. I saw the trace and memory of the 117

Composed the same year as Blue Poles; see Karl Stockhausen, Four Piano Pieces (1952); John Cage, 4‘33’ (1952).

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figure 6.11 Frederick McCubbin, Violet and Gold, 1911 (detail). For the colour version of this figure, please refer to the plate section.

colonial lash118 in the interstices of McCubbin’s bush. The dark and silent undergrowth now took on a new inflection, as if the Aboriginal communities that used to inhabit these places were still there in some way – gazing back at us from the impenetrable recesses of the scrub, or absent but present like ghosts. McCubbin’s omissions were no longer oblivious or naive; they filled the image with a loss. Bennett’s work queers the tradition of Australian painting in the precise sense of impelling us to see that work in a new way, against the grain.119 It is not at all a matter of rereading artists’ intentions, but of generating new associations which, once implanted, cannot be forgotten. By creating new juxtapositions, he invites a reassessment of the narrative and experience of viewing Australian colonial art. This is also a mode of temporality – a temporal logic that Bennett uses to great effect, against the oppressive temporalities of colonialism. Its name is irony – the use of anachronistic or unintended associations to reconfigure our emotional understanding of an event or a history.120 The soldier who sees a dead rat by the side of the 118 119

120

Gordon Bennett, 10 October 1996, quoted in Gellatly, Gordon Bennett. See Nikki Sullivan, A Critical Introduction to Queer Theory (Edinburgh: Edinburgh University Press, 2003); Quo-Li Driskill, Queer Indigenous Studies (Phoenix, TX: Arizona University Press, 2011). Shoshana Felman, ‘To Open the Question’ (1977) 55/56 Yale French Studies 5–10.

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road as he marches off to war is not aware that his future is thus accidentally prefigured and put into perspective.121 But the irony is observed and comes to fruition at a later date and when seen through other eyes. In life and in art, the new is immanent in the old, awaiting some future encounter capable of noticing it. The transfigurative powers of a fabulous retroactivity work not only with, but against the colonial grain. Bennett proposes a ‘preposterous history’122 that retrospectively subverts the verities and silences of Australia art history. All art, as we have seen, constantly reconfigures the relation between past and present. This suggests, among other things, new curatorial possibilities. It would be a revolutionary act to see three of Australia’s pictorial masterpieces – Bennett’s Possession Island, McCubbin’s Violet and Gold, and Pollock’s Blue Poles – side by side. The ironies exposed by this radical juxtaposition will facilitate a new discourse, not only about the history of Australian art, but of Australian colonialism. If only we give it a chance, art allows us not only to see the fabric of colonial ideology but to unpick it. The power of this irony might go surprisingly far. As two students noted in a discussion on Bennett’s work, the seat covers on Sydney trains weirdly resemble Possession Island in colour and style. So, here we are, right back at Botany Bay, ground zero of British settlement in Australia, with a queer reminder of the colonial lash every time we take a seat.123 ‘Of whom and of what are we contemporaries?’ asks Giorgio Agamben.124 The contemporary is not simply an unselfconscious experience of the present. On the contrary, to be truly with time, to see ourselves in relation to it, requires us to look past this repetitive aphasia, refusing to be ‘blinded by the lights of the century’125 in order to make out the darkness of the present. This means that the contemporary is not only the one who, perceiving the darkness of the present, grasps a light that can never reach it destiny, he is also the one who, dividing and interpolating time, is capable of transforming it and putting it in relation with other times.126

That work the art of Gordon Bennett takes up. He is Australia’s most contemporary artist not, alas, because he is still with us, nor yet because he is modern, a discourse which assumes an unbridgeable gulf between past and present. He is contemporary in Agamben’s sense because he is interested in the precise relationship between 121

122

123

124

125 126

See the treatment of irony in Paul Fussell, The Great War and Modern Memory (Oxford: Oxford University Press, 1975). Mieke Bal, Quoting Caravaggio – Contemporary Art, Preposterous History (Chicago, IL: University of Chicago Press, 1999). Thanks to David Barden and Lottie Clark for the observation, to the students in jurisprudence at University of Technology, Sydney, and to Ass. Prof. Penny Crofts for the invitation to speak to her students on this and other occasions. Giorgio Agamben, What Is an Apparatus? And Other Essays, trans. David Kishik and Stefan Pedatella (Stanford, CA: Stanford University Press, 2009), p. 39. Ibid., p. 45. Ibid., p. 63.

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times and periods, not as a matter of historical interest, but as the enduring structure of present experience. To be contemporary is to be untimely;127 to straddle time, to be paradoxically related to our past, our representations of that past, and the effects of those representations. Bennett does not just diagnose the representations of colonial time – its mystic foundation, its cynical deferral, its repetitive repression, its arc of fateful progress. He uses aesthetic resources to create a temporally layered space – an untimely space, an uncanny time – in which the encounter can be re-presented, and re-imagined, and begun anew. The complexity of his relationship to history and his willingness not just to study it, but to see it as lived and active now, as worthy of our contemplation and our transformation, means that even after his death, his art remains, in the fullest sense of the word, contemporary.

127

Friedrich Nietzsche, Untimely Meditations, trans. R. J. Hollingdale (Cambridge: Cambridge University Press, 1997).

7 Cauduro’s Crimes Ghostly Time

All in all, you’re just another brick in the wall. Pink Floyd (1979) This past, moreover . . . does not pull back but presses forward, and it is, contrary to what one would expect, the future which drives us back into the past. Hannah Arendt (1961)

introduction: representation, time, place ‘Aestheticizing the Political’ Rafael Cauduro’s 2009 mural series, 7 Crı´menes, covers three floors on the back stairs of the Supreme Court of Justice of the Nation in Mexico City.1 They offer both a powerful departure from Mexico’s mural tradition and a fierce attack on its legal tradition. It is unusual to find such a highly critical image of the law at the very apex of the legal system, a fact that has been duly noted by others.2 But there has been little detailed analysis of this work, despite its significance for the developing relationship between law and art. Previous discussions have completely failed to connect its aesthetic and formal elements to its ideas and concepts about law. In, for example, brief essays by Ross, Cossio, or in Resnik and Curtis, the most arresting features of the mural have not even been mentioned, let alone explained. These are 1

2

Rafael Cauduro, 7 Crı´menes (originally, Los siete crı´menes mayores), mural, various materials (Mexico City: Suprema Corte de Justicia de la Nacio´n, 2007–9). See Judith Resnik and Dennis Curtis, Representing Justice (New Haven, CT: Yale University Press, 2011), pp. 364–6; John Ross, ‘In the Basement of Mexican Justice, No One Is Innocent’, Counterpunch, 16 July 2010; Jose´ Ramo´n Cossı´o Dı´az, ‘Las conditions del juzgar’, Letras Libras, October 2009 (www .letraslibres.com/revista/artes-y-medios/las-condiciones-del-juzgar); Miguel Ceballos, ‘Pinta Cauduro siete crimenes’, El Universal, 15 November 2006; Angel Vargas, ‘Inauguracon del mural’, La Jornada, 15 July 2009, at 5; Erika Bucio, ‘Hace critica con mural’, El Norte, 21 August 2007, at 3; Erika Bucio, ‘Lleva Cauduro mural’, Reforma 21 August 2007, 8C; Carmen Gonzales, ‘Historica fin de semana’, Reforma, 3 December 2006, 16.

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figure 7.1 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City). For the colour version of this figure, please refer to the plate section.

harsh words, but I hope that this chapter, which offers a radically new reading of Cauduro’s work, will justify the claim that 7 Crı´menes is far more than a pictorial representation of legal problems. Cauduro reclaims the relevance of the mural to politics and law, reconnecting its function to critique and disentangling it from ideology. 7 Crı´menes contributes to a critique of law and a critique of art at the same time. Few other artworks could make such a claim. Above all, as we shall see, Cauduro confronts the problem of time in the Mexican mural tradition, and offers entirely new solutions to it. If in artists like Diego Rivera, a certain temporal rhetoric or orientation consistently lets the critique of law and politics off the hook, in Cauduro the opposite is the case. The unusual temporality of his images make that critique uncompromising and inescapable. One cannot understand Cauduro’s murals in the Supreme Court of Mexico without heeding the historical context and tradition to which it responds. In 1921, Jose´ Vasconcelos, Minister for Public Education in the post-revolutionary

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government of Alvaro Obrego´n, commissioned a programme of vast public murals to celebrate the Mexican Revolution of 1910–20. Thus was begun a ‘mural renaissance’ dominated by los tres grandes, Diego Rivera, Jose´ Clemente Orozco, and David Alfaro Siqueiros.3 Over the next few years, their work advocated a powerful communist and revolutionary vision of Mexican history. At the same time, fuelled by a fertile interaction between the Indigenous fresco traditions of Teotihuacan and the Renaissance and Byzantine frescoes he encountered during extended travels through Italy in 1920–1, Rivera in particular incorporated imaginative depictions of pre-Columbian culture and society.4 The confluence of these two great mural traditions represents a remarkable synthesis of aesthetic and political discourses, giving visual form to the idea of a mestizo culture at the heart of the Mexican political project between the wars. From the outset, the political commitments of the Mexican mural movement attracted the admiration of many observers. Leon Trotsky wrote that if you want to see art and revolution working side by side, forget Moscow and travel to ‘faraway Mexico’. Do you wish to see with your own eyes the hidden springs of the social revolution? Look at the frescoes of Rivera. Do you wish to know what revolutionary art is like? Look at the frescoes of Rivera.5

But the final assessment of this body of work has not been quite so sanguine. Rivera’s work gave visual legitimacy to Mexico’s one-party state, whose eventual name, the ‘Party of Institutionalized Revolution’,6 appropriated the rhetoric of national revolution and 3

4

5

6

See David Craven, Diego Rivera as Epic Modernist (New York: GL Hall, 1997); Desmond Rochfort, The Murals of Diego Rivera (London: Journeyman, 1987); David Craven, ‘Recent Literature on Diego Rivera and Mexican Muralism’ (2001) 36 Latin American Research Review 221–37; Mary Katherine Coffey, ‘Muralism and the People: Culture, Popular Citizenship, and Government in Post-revolutionary Mexico’ (2002) 5 Communication Review 7–38; Rick Lopez, Desmond Rochfort, Mary Vaughan, and Stephen Lewis, eds., The Eagle and the Virgin: Nation and Cultural Revolution in Mexico, 1920–1940 (Durham, NC: Duke University Press, 2006); Octavio Paz, ‘Re/Visions’, in Labyrinth of Solitude (London: Allen Lane, 1967); Leonard Folgarait, Mural Painting and Social Revolution in Mexico, 1920–1940 (Cambridge: Cambridge University Press, 1998); Alejandro Anreus, Leonard Folgarait, and Robin Ade`le Greeley, eds., Mexican Muralism: A Critical History (Berkeley, CA: University of California Press, 2012); Mary Coffey, How a Revolutionary Art Became Official Culture (Durham, NC: Duke University Press, 2012). See Esther Pasztory, The Murals of Tepantitla, Teotihuacan (Education-Garla, 1976); Arthur Miller, The Mural Painting of Teotihuacan (Washington, DC: Dumbarton Oaks, 1973); Kathleen Berrin and Clara Millon, eds., Feathered Serpents and Flowering Trees: Reconstructing the Murals of Teotihuacan (Seattle, WA: University of Washington Press, 1988). Leon Trotsky, ‘Art and Politics in our Epoch’, letter published in Partisan Review, 18 June 1938 reprinted in Fourth International, 11(2) (March–April 1950), 61–4. The PRI has had three different names. It was first known as the National Revolutionary Party (PNR, 1929–38), then as the Party of the Mexican Revolution (PRM, 1938–46). It officially became the Party of Institutionalized Revolution only from 1946. At the time Rivera painted his first murals, the PNR had not been founded yet, although its oxymoronic self-image as a party that was at once institutional and revolutionary was already clearly in evidence. Certainly, the ideal of a mestizo nation emancipated from the yoke of imperialism and capitalism was forged before the foundation of the party through the

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national identity in order to camouflage its own increasingly sclerotic and authoritarian tendencies.7 For the great Mexican writer Octavio Paz, ‘that was the way in which a mistake began which ended with the perversion of Mexican mural painting: on the one hand, it was a revolutionary art, or one that called itself revolutionary; on the other, it was an official art’.8 The muralists claimed for themselves a heightened popular legitimacy: The mural [wrote Jose´ Clemente Orozco] . . . cannot be transformed into a matter of private profit, nor can it be hidden away for the benefit of a certain privileged few. It is for the people. It is FOR ALL.9

But in fact they were commissioned by the government and installed in government buildings. No doubt scholars who have attempted to characterize Rivera as little more than a government stooge have overstated the case, ignoring his own agency, and reifying, indeed, personifying, ‘the state’ or ‘el sistema’.10 All the same, it is hard not to appreciate the slippage from art to ideology in his work. Rivera’s Whiggish approach to history draws a straight line from the independence movement in 1810 to the revolution of 1910, and portrays the government and the nation as its natural successors. The great statesmen of nineteenth-century Mexico – Hidalgo, Morales, and Jua´rez – are treated as tropes, symbols, and prophets. With Rivera’s assistance, the modern state plasters their legacy all over its buildings and basks in their glory.11 Admittedly, Rivera’s vast mural sequence for the Ministry for Public Education (SEP, 1923–7), not to mention the panel ‘modern Mexico’ in the History of Mexico triptych (Figure 7.2), articulate an explicitly anti-capitalist agenda for the Revolution.12 But his caricatures pit good against evil, peasant against capitalist, in a manner that had little to do with the real issues facing modern Mexican politics. Ironically, by yoking mexicanidad to a utopian socialist fantasy, the

7

8 9

10

11 12

aesthetic programme of los tres grandes and the intellectual programme of los siete sabios (‘the seven wise men’), both under Vasconcelos’s patronage. See Desmond Rochfort, ‘The Sickle, the Serpent, and the Soil: History, Revolution, Nationhood, and Modernity in the Murals of Diego Rivera, Jose´ Clemente Orozco, and David Alfaro Siqueiros’, in Lopez et al., eds., Eagle and the Virgin, 43–57. See in particular critical discussion in Folgarait, Mural Painting; Coffey, Revolutionary Art; Lopez et al., Eagle and the Virgin. Quoted in Coffey, Revolutionary Art, 1. Jose´ Orozco, ‘New World, New Races, New Art’, 4 Creative Arts, January 1929: in Museum of Fine Arts Houston/International Center for the Arts of the Americas, Resisting Categories – Latin American and/or Latino (Critical Documents in 20th Century Latin American and Latino Art (New Haven, CT: Yale University Press, 2012), pp. 366–7. See Folgarait, Mural Painting, pp. 13–26. For critical commentary, see in particular Anreus et al., Mexican Muralism; David Craven, ‘Recent Literature’. Folgarait, Mural Painting, pp. 122, 194 (see esp. pp. 86–136). Diego Rivera, 235 murals covering 1585.14 m2, frescoes (Mexico City: Secretaria de Educacion Publica (SEP) Headquarters, 1923–8) (hereafter, Rivera, SEP); Diego Rivera, The History of Mexico from the Conquest to the Future, staircase triptych (Mexico City: Palacio Nacional, 1929–35) (including The Ancient Indian World (north wall), History of Mexico (west wall), Mexico Today and in the Future (south wall), hereafter, Rivera, History of Mexico series; From Pre-Hispanic Civilization to the Conquest, eleven patio corridor murals (Mexico City: Palacio Nacional, 1942–51).

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figure 7.2 Diego Rivera, Mexico Today and Tomorrow, 1935. Mural, 749 cm × 885 cm,

Staircase, South Wall, Palacio Nacional, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

government was able to appropriate its rhetoric, while never having to do anything to bring it about. Rivera’s visions conveniently solve the paradox of an ‘institutionalized’ ‘revolution’ by means of myth – justifying the first in the name of the second, and deferring the second in the name of the first.13 This is what Walter Benjamin had in mind when he coined the phrase ‘aestheticizing the political’14 – the ideological use of art to resolve, to mask, or even to exacerbate underlying social tensions and political differences. In his 1936 essay, ‘The Work of Art in the Age of Its Mechanical Reproducibility’, Benjamin treats this as synonymous with fascism, which proved especially adroit at the manipulation of imagery, symbols, and film to advance a political 13 14

See extended discussions in Folgarait, Mural Painting; Coffey, Revolutionary Art. Walter Benjamin, ‘The Work of Art in the Age of Its Mechanical Reproducibility’, Zeitschfirt fur Sozialfoschung (May 1936), in Walter Benjamin, Selected Writings, Vol. 3, 1935–38, Howard Eiland and Michael Jennings, eds. (Cambridge, MA: Belknap Press, 2006), pp. 101–33. As is conventional, quotations are, unless otherwise indicated, taken from the slightly modified third version, in Walter Benjamin, Selected Writings, Vol. 4, 1938–40, Howard Eiland and Michael Jennings, eds. (Cambridge, MA: Belknap Press, 2006), pp. 251–83.

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mythology.15 But the history of Mexican muralism shows that fascism was neither the only nor the first political ideology to forge a potent alliance between mass, nation, art, and politics between the wars.16 But Benjamin was not the first writer to make the point.17 In 1934, the muralist David Siqueiros had expressed similar concerns in an essay for a US socialist newspaper entitled ‘Rivera’s Counter-revolutionary Road’.18 The next year, their conflict exploded in a three-day public brawl at the Palacio de Bellas Artes. It was a denouement worthy of the Stalinist show trials they uncannily foreshadow (Siqueiros the committed Stalinist, Rivera the friend of Trotsky). Rivera was coerced or persuaded to sign an artistic confession, conceding that his ‘art has served the demagogic interests of the government’, and that it was ‘an error to realize murals almost exclusively in the interiors of grand buildings’.19 Notwithstanding its bullying edge, Siqueiros’s critique was astute. Throughout his writings, Siqueiros condemned ‘the European Utopia of art for art’s sake, and also [that of] the Mexican demagogic opportunism. We must put an end to the superficial folk art’ in favour of ‘modern tools and materials . . . develop[ed] in accordance with the technical possibilities of their age . . . universal and political’.20 He attacked on three fronts: first, Rivera’s conventional, even naive representational style and old-fashioned technique; second, his romanticized treatment of preconquest societies;21 third, the way in which Rivera’s murals were largely unrelated to the specific sites on which they stood. In other words, Siqueiros highlights three crucial problems – the mural tradition’s relationship to representation, to time, and to place – that had undermined, in his view, Rivera’s efforts to develop a critical dialogue between art, law, and politics. But these inadequacies, it must be said, were not Rivera’s alone. Similar criticisms could be levelled at the work of Orozco and even of Siqueiros himself. But Cauduro’s art separates itself from his 15

16

17 18

19

20

21

See Ernst Hartwig Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ: Princeton University Press, 1997); Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago, IL: University of Chicago Press, 1985); Slavoj Zˇizˇek, Eric L. Santner, and Kenneth Reinhard, The Neighbor: Three Inquiries in Political Theology, with a new Preface (Chicago, IL: University of Chicago Press, 2013). Matthew Affron and Mark Antliff, Fascist Visions: Art and Ideology in France and Italy (Princeton, NJ: Princeton University Press, 1997); Desmond Manderson, ‘Faraway, So Close! – From “Aestheticizing Politics” to “Politicizing Art”’, in Angela Condello and Stefan Huygenbaert, eds., Sensing the Nation’s Law (Springer, 2016). Benjamin, ‘Work of Art’. David Siqueiros, ‘Rivera’s Counter-Revolutionary Road’, New Masses (New York), 29 May 1934; David Siqueiros, Art and Revolution (New York: Lawrence and Wishart, 1975), pp. 332–4; Laurance Prentiss Hurlburt and David Alfaro Siqueiros, David Alfaro Siqueiros: The Quest for Revolutionary Mural Form and Content, 1920–1940 (Madison, WI: University of Wisconsin Press, 1976); Jennifer Jolly, ‘Siqueiros’ Communist Proposition for Mexican Muralism’, in Anreus et al., eds., Mexican Muralism, pp. 38–42. Maricela Gonza´lez Cruz Manjarrez, La pole´mica Siqueiros-Rivera: planteamientos este´tico-polı´ticos 1934–1935 (Museo Dolores Olmedo Patin˜o, 1996). David Siqueiros, ‘Towards a Transformation in the Plastic Arts’, from Art and Revolution (New York: Lawrence & Wishart, 1975), pp. 45–8, in Anreus et al., eds., Mexican Muralism, pp. 332–4, at p. 333. David Siqueiros, ‘Rivera’s Counter-Revolutionary Road’.

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famous predecessors in exactly these three respects. His remarkable solution to the problems of representation, time and place avoids the trap of aestheticizing the political into which, in different ways, los tres grandes all too often fell. Confronting the Tradition Against the background of this well-known critique of the ideological entrapment and political naivety of the muralists, Cauduro’s approach was decisive in the development of 7 Crı´menes. The Supreme Court’s original commission had called for submissions that addressed ‘the history of justice in Mexico’. But many, including some of the justices themselves, were reluctant to install yet another version of a gallery of worthies, such as those produced by Diego Rivera or Jose´ O’Gorman. In an invaluable interview conducted by legal scholar Luis Go´mez Romero – who first alerted me to these murals several years ago, and who conducted these interviews as an immense favour to me, for which I am deeply grateful – Justice Jose´ Ramo´n Cossı´o, then and now a member of the Supreme Court, expressed his view: It was fine that there be some murals, there was no problem with that, but it had to be a mural that didn’t narrate what almost all the murals in the country narrate . . . I believe that for some of those who were opposed, Cauduro’s mural wasn’t within the canon, let’s say, of a traditional mural. Traditional murals, well you know more than me about this, narrate national history, in capsules, don’t you think?22

Cauduro, with the sympathy of at least some of the judges, unambiguously turned his back on this ‘national cult’ of ‘commonplaces’.23 7 Crı´menes is located on the back stairs, far from the public entrance to the building; but they are enormous pieces, each several metres in height and in width, covering the whole three floors and more that the staircase rises (see Figure 7.3), and the viewer passes very close to many of the larger-than-life figures as they climb. The overall experience therefore, is all-consuming and overwhelming. The stairs are frequented mainly by the judges themselves, who enter from a car park on the lower ground floor. They are immediately confronted by a large wall of sacrificial skulls – a Tzompantli (Figure 7.4), used in Aztec and other Mesoamerican civilizations for the public display of the skulls of prisoners of war or sacrificial victims. That of Tenochtitlan – modern-day Mexico City – contained as many as 60,000. As one moves past this jarring reminder of pre-colonial juridical violence, past the prefatory panel which sets out the different sections of the murals in Cauduro’s own words, a spiral movement up the stairs (Figure 7.3) first leads one past what appears to be a vast dishevelled file room entitled Procesos Viciados. In other words, from the 22

23

Luis Go´mez Romero, interview with Jose´ Ramo´n Cossı´o, trans. Thomas Nulley-Valde´s (transcript and recording on file with the author, 2014). See Shifra Goldman, Contemporary Mexican Painting in a Time of Change (Austin, TX: University of Texas Press, 1981).

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figure 7.3 Rafael Cauduro, staircase including Proceso Viciados and Violacion from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

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figure 7.4 Rafael Cauduro, Tzompantli from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

quick terror of ritual sacrifice, to a slow death by due process – a bleak house indeed. The climber then walks past a scene of Violacio´n, or Rape. Standing on the ground floor landing, with Rape below and to the left, Homocidio, above and to the right, shows a woman who has been thrown down a deep well. Directly in front of us, equally deep and isolated chambers reveal images of Tortura (Figure 7.5), graphically depicted and hard to stomach. At the far left of this wall, as we climb the staircase again, a victim of Secuestro (Kidnapping) (Figure 7.8) squats in the corner of a tiny room. The shadowy outline of his kidnappers looms in front of us, and seems to have their origin in the police behind us. Now we have climbed up to the first-floor landing. A fantastically surreal Ca´rcel (Figure 7.6), or Prison looms to our right and rises to vertiginous heights above us. Strange tricks of perspective convey an infinite concrete repetition, from behind whose bars a crowd of prisoners peers and reaches out, beseeching our help.

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figure 7.5 Rafael Cauduro, Tortura from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

Now we pass to the final and largest image, Represio´n (Figure 7.1), which is reproduced at the top of this chapter. It is best viewed from the landing on the top floor. It too is a vast scene that stretches high above us. In front of us there is a scene of demonstrators being mown down by tanks in front of a dilapidated wall. Above this, at the highest point of the mural, enormous clerestory windows frame three riot police standing guard with the light behind them, while – strangest of all – three winged angels rain down their arrows on the crowds below. Cauduro’s prefatory mural describes these figures as ‘avenging angels who are celestial grenadiers, but they are also related to the uniformed repressors that are painted in the windows’. Climbing the mural takes us from skulls and archives, rape, homicide, and torture, to kidnapping, incarceration, and repression, before finally arriving at this fantasy of guardians spiritual and temporal. Whatever temporality is at work across these violent and disturbing scenes, it is not one of progress. The mural spirals from the pre-Columbian past – which is no paradise – to some postmodern future – which is no utopia – suggesting instead, as Cauduro says, a mythic continuity ‘between

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figure 7.6 Rafael Cauduro, Ca´rcel from 7 Crı´menes, 2007–9. Mural, various materials,

Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

underworld, earth and heaven. Basement, first floor, upstairs.’24 But, as we will see, the majority of the images are not mythic; rather, they are convincingly grounded in a historically authentic past still fresh in our minds. Indeed, the mythic or religious element, which the title ‘seven’ might connote – seven sins, seven virtues, seven days of creation – is undermined by the mural itself, which comprises not seven but eight ‘crimes’. The question of who or what to trust is already an unsettling one.25 In the sections that follow I examine these murals in detail. I proceed by focusing in turn on the three weaknesses of the Mexican mural tradition identified above – representation, time, and place – showing exactly how Cauduro’s work separates 24 25

Prefatory panel, Cauduro, 7 Crimenes. The discussion that follows makes constant reference to elements and details of the mural. In addition to the images reproduced here, I strongly encourage readers to examine Cauduro’s work more closely, in particular on the artist’s website (www.cauduro.com/obra/murales/scj/scj.html).

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figure 7.7 Diego Rivera, Mexico Today and Tomorrow (From the Conquest to 1930), 1929–35. Mural, 859 cm × 1287 cm, West Wall, Palacio Nacional, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

itself from the approaches of los tres grandes, and finds radically new solutions to these problems.

representation Between Objectivity and Subjectivity Siqueiros accused Rivera of perpetuating a tourist or ‘curio’ version of Mexico by means of old-fashioned techniques and styles of representation. Rivera used traditional fresco techniques which he had studied in Italy, producing a flat, almost twodimensional, picture plane crowded with colours and figures, close in some ways to the techniques of social realism on the one hand and to a Cubist-inflected primitivism on the other. The fragmentation of his larger murals into multiple smaller vignettes and single figures in static, iconic, or emblematic poses, solicits little involvement from the viewer. On the contrary, one observes the parade of Mexican history pass by, without participating in it. In the History of Mexico (Figure 7.7) at the Palacio Nacional in particular, the figures form such a complex set of overlapping icons that one can do no more than recognize and name them. They do not engage either each other or the viewer as

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figure 7.8 Diego Rivera, From Porfirianism to the Revolution, 1957–67. Mural, acrylic

on glass fabric on celotex and plywood, Museo Nacional de Historia en la Ciudad de Me´xico, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

actors in a human drama. Rather they are treated purely as symbols or emblems26 brandishing the devices that identify them, like medieval saints clutching the instruments of their martyrdom – the cross or brand, the cap or coat, and sometimes indeed the texts, even the specific provisions (Article 123, enshrining workers’ rights; Article 27, the public ownership of land) or constitutional documents with which they are associated. Utterly devoid of depth of characterization or context, Rivera reduces history to a series of hieroglyphs: mnemonic texts that rehearse a conventional narrative of progress and legitimation.27 Rivera’s flat and fractured surfaces lack interiority; they are positivist. They exemplify Benjamin’s distinction between an ‘absorbing’ art and one, on the contrary, which is passively ‘absorbed’ or consumed.28 In response to this naive objectivity, Siqueiros had urged ‘a more affective style and a more dynamic medium’.29 From Porfirianism to the Revolution (Figure 7.8), for example, his contribution to the National History Museum,30 disrupts the selfsatisfied historical narrative dutifully recapitulated in the galleries around him. He does not attempt to depict a litany of great men or great events, but to evoke 26 27 28 29 30

See Peter Goodrich, Legal Emblems (New York: Cambridge University Press, 2014). Folgarait, Mural Painting, pp. 86–138. Benjamin, ‘Work of Art’, 268. Coffey, Revolutionary Art, p. 42. Siqueiros, Del porfirismo a la Revolucio´n, murals totalling 420 m (Mexico City: Museo Nacional de Historia, Chapultepec Castle, 1957–66).

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a feeling. In one scene, galloping horses destabilize and then invade the unusual spatial layout of the gallery. In contrast to the flat and static historicism around it, Siqueiros’s contribution does not represent history as settled: a subject we are told about. His artistic and spatial techniques convey the sense of history as a dynamic and continuous possibility: something we live in.31 Yet no less than Rivera, Siqueiros presents the revolutionary struggle as selfevident, unified, and internally coherent. The outcome remains uncertain and the success of the revolution must be fought for – but the character of that utopian future is little different from Rivera’s. Both are guilty of ‘aestheticizing politics’; both represent a utopian future devoid of internal dissent or conflicts of interests, and whose relationship to contemporary political realities is obscure. What makes Siqueiros’s art ultimately ideological rather than critical is its ‘affective’ orientation,32 seeking to stir up revolutionary sentiment by a kind of triumph of the (aesthetic) will.33 In the Palacio de Bellas Artes, New Democracy (1944, Figure 7.9) makes dramatic use of new painting materials and undoubtedly delivers an emotional charge.34 A woman breaks her chains and surges through the picture plane, leaving enemies quailing in her wake, and spectators cowering at the naked breasts that overawe them. She resembles Wonder Woman, who first appeared as the sexy warrior of US modernity only a year earlier.35 But she bears no relation to Mexico’s social and political situation, then or now. Siqueiros envisions a desire, a yearning for a new democracy, as if superhuman feeling were enough. Beyond Realism How then to find a way of representing politics without succumbing to either Rivera’s primitivist objectivity or Siqueiros’s expressionist subjectivity? Cauduro adopts a representational strategy both more ‘realist’ than theirs, and far less. The mural’s uncomfortable oscillation between the two destabilizes viewers’ experience and opens the way to a richer critical reflection on the relationship between art, law, and politics. 31

32

33

34

35

Leonard Folgarait, So Far From Heaven: David Alfaro Siqueiros’ The March of Humanity and Mexican Revolutionary Politics (New York: Cambridge University Press, 1987); David Siqueiros, Portrait of the Bourgeoisie, several murals, pyroxylin (Mexico City: Sindicato Mexicano de Electricistas Headquarters, 1939–40); Folgarait, Mural Painting, pp. 138–90. See Coffey, Revolutionary Art, p. 42; Siqueiros, ‘Transformation of the Plastic Arts’; Robin Greeley, ‘Nietzsche contra Marx in Mexico’, pp. 148–73, Jennifer Jolly, ‘Siqueiros’ Communist Proposition for Mexican Muralism’, pp. 75–92, and Alejanro Anreus, ‘Los Tres Grandes – Ideologies and Styles’, pp. 37–55, all in Anreus et al., eds., Mexican Muralism. His last work, at the Polyforum, appears to give up on political content altogether; it is a strangely overblown and formalist valediction ( David Alfaro Siqueiros, The March of Humanity on Earth and Toward the Cosmos: Misery and Science, mural, 8,700 m (Mexico City: Polyforum, World Trade Centre Mexico City, 1960–6)). David Alfaro Siqueiros, New Democracy, mural, pyroxylin on canvas (Mexico City: Palacio de Bellas Artes, 1944). Wonder Woman #1, 1 June 1942 (DC Comics).

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figure 7.9 David Siqueiros, La Nueva Democracia, 1944–5. Pyroxaline on canvas and

celotex, c. 1,200 cm × 600 cm, Palacio de Bellas Artes, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

Let us begin with the mural’s hyperrealism, which is apt to shock the viewer. Tzompantli could well be the installation of a real Aztec skull rack. Procesos’s file cabinets and documents (Figure 7.10) are depicted in painstaking detail. The bodies and faces, particularly in the scenes of rape, torture, and kidnapping, are sculpted with a highly persuasive sense of volume and depth. The representation of space in the brick cells framing homicide, torture, and kidnapping is vertiginous. The vertical lines of the shafts, the use of iron chains to emphasize height, and the shadows on the wall all contribute to enhancing the three-dimensional illusion. So too in the prison scene, the detailed rendering of bricks and bars is immensely tactile. Cauduro originally studied architecture and industrial design,36 and the murals incorporate a vast array of materials including paints, plastic, ceramic, paper, newspapers, and synthetics which mimic the effect of wood, brick, and so on. Their use

36

http://cauduro.com/estudio/biografia/biografia.html

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figure 7.10 Rafael Cauduro, Procesos Viados from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

continually blurs the line between representation and reality. The archival scene, for example, incorporates actual court documents as well as painstaking imitations. The image of rape (Figure 7.11) shows a scene through the wall’s exposed scaffolding. At first glance Cauduro appears to have exposed the timber frame of the stairwell, plastered with the decaying remnants of old posters. But this too is an illusion. The beams and newspapers are synthetic reproductions which give the effect of being, but are not, part of the original construction of the wall.

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figure 7.11 Rafael Cauduro, Violacion from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City). For the colour version of this figure, please refer to the plate section.

The realism of the images makes a powerful critical statement about the relationship between law and justice in modern Mexico. As opposed to marking the triumphal progress of the rule of law, as one might have expected, Cauduro insists

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on the prevalence of injustice in the real world. As Ramo´n Cossı´o Dı´az, himself a judge of the Supreme Court, put it in a personal response to the murals: This aggravates the condition of vulnerability and social neglect. Whether a person to be raped, killed, tortured or repressed in itself it is serious, very serious. However, what new adjective can we give when those actions come from the very people who serve as public servants . . . under the cover of the heavy cloak of legality?37

The mural finds the legal system itself guilty of ‘crimes of justice:’38 guilty of sacrifice, guilty of the denial of due process, guilty of rape, homicide, torture, kidnapping, false imprisonment, and repression. Torture and kidnapping take place with its consent or at least its connivance. Repression is shown as a normal sphere of activity of the law, condoned by the angels of justice and the riot police of the state. There is an essential connection between the top-most scenes and the bottom ones. Political repression, like the skull rack, or like the legal system’s mindnumbing processes of denial, delay, and indifference, are all rituals that confirm the might and irresistible authority of the state. Law is not injustice’s enemy at all: it aids and abets it. Perhaps more than any artist before him – at least since Goya39 and Klimt, as we saw in Chapter 5 – Cauduro insists that the legal system connives in the production of injustice, cruelty, and violence. By drawing their honours’ attention to the injustice and the violence of lived Mexican reality, and specifically identifying law as one of its causes, Cauduro invites anger and shame rather than pride, arrogance, or even confidence – an extraordinary gambit, particularly within the precincts of the Supreme Court itself. The visceral realism of the images might be experienced, particularly by the judges themselves, as a plea for more social realism in their judgments. As Justice Cossı´o put it: This is to me really fascinating because it reminds one, and I believe it is a call to conscience. The idea that this is not a problem, I insist, of files, of paperwork, do you remember that there is a file where he put an ashtray with an amazing realism? So that is the element . . . these human beings that come out of these filing cabinets which we all had . . . such heavy things, very practical, but very heavy. That part keeps attracting my attention, as much as to conscience.40

But such an analysis misses a crucial point. Cauduro’s virtuoso manipulation of materials is not a realist gesture.41 In some ways this is immediately apparent. 37 38

39

40 41

Cossı´o Dı´az, ‘Las conditions del juzgar’ (see n. 2). Cauduro has used several titles over the years: ‘7 Crimes’ is one, as well as ‘Seven Major Crimes’ and ‘The Crimes of Justice’. See e.g. Francisco Goya, El Tres de Mayo, oil on canvas, 2.66 m × 3.451 m (Madrid: Museo del Prado, 1814); Los Desastres de la Guerra, eighty-two aquatints (Madrid: Museo Reina Sophia, 1810–20). Go´mez Romero, interview with Jose´ Ramo´n Cossı´o (see n. 22). Susan Edelstein, Patrick Mahon, Juan Luis Sua´rez, and Jose´e Drouin-Brisebois, Barroco Nova: Neobaroque Moves in Contemporary Art (London/Ontario: University of Western Ontario Press, 2012); Monka Kaup, Neobaroque in the Americas (Charlottesville, VA: University of Virginia Press, 2012);

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The scenes of homicide and torture are framed by brick walls that do not conform to a single perspective. As Siqueiros had advocated, they require us to move across the space in order to make sense of them. Cauduro’s prefatory plaque makes the same point: Space is crucial in the project’s aesthetics. The stair’s structure emphasizes concepts such as ascent and descent in elliptical mechanics . . . The contemplative exercise should be kinetic . . . Special attention has been given both to close vision and the visual distortion that is forced by the space.

So, too, the scene of incarceration, while precisely realized at the lower level, suddenly twists like an Escher print, displaying an impossible perspective into the distant reaches of the prison. Using papers to represent papers, synthetic or manufactured bricks to represent bricks, fake scaffolding to represent scaffolding, and so on, both intensifies the realism of the scenes and at the same time leads us to doubt, even upon careful examination, what is before our eyes. What appears to be ‘real’ is only another level of imitation, a game of trompe l’œil. The result is a kind of aesthetic vertigo. The mural’s design and content constantly seduce the spectator and then pulls the rug out from under them, ultimately provoking a sense of disorientation, distrust, and distance that unsettles the mural as a whole. Cauduro’s apparently ‘realistic’ images are always subject to circulatory systems of mediation or hearsay. Almost no image within it is in fact the representation of an event, but rather the representation of a representation – a kind of aesthetic trick deployed to ironic effect by Bruegel in his Justicia. In Procesos, for example, Cauduro himself peeps out from inside a filing cabinet, as if he were himself entombed there. Other figures are painted on to the surfaces of the cabinets. Though painted as if they were real, they are trapped in the material of the files and indexes. In Secuestro, the menacing kidnappers are not represented as real figures, but only as shadows on a wall, shadows whose origins can be traced back to the feet of the police in the previous scene. Again, in Ca´rcel, the reality of the figures as they reach through the bars that imprison them is disturbed by the hands which are, if you look closely, devoid of substance. They appear to float on top of or merge with the bars in a way that contradicts the laws of physics. Throughout the murals, what looks real turns out not to be. The game of cat and mouse with realism reaches new levels of intensity in the scene of Violacio´n (Figure 7.11). It depicts a woman tied to a chair in an aspect of despair. Once again, the figure fades into and behind the substance of the chair on which she initially appears to be sitting. She too is insubstantial, the representation of some shadowy form. On the other side of a wall, her rapists spy on her. They are looking at her through a one-way mirror, and it is her reflection in the mirror that Mary Ann Frese Witt, Meta-theater and Modernity: Baroque and Neobaroque (Madison, WI: Fairleigh Dickinson University Press, 2013); Nigel Wheale, ed., The Postmodern Arts (London: Routledge, 1995).

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figure 7.12 Rafael Cauduro, Homocidio from 7 Crı´menes, 2007–9. Mural, various materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

Cauduro paints. So, she is shown twice, but on neither occasion as a body – first as a shadow, then as a reflection. In Homicidio (Figure 7.12), the victim is fading away; the tiles on the floor can be seen through her body. Cauduro instead draws our attention to the white-chalk outline of her corpse – a conventional signifier that marks the outline of a dead body that has been taken away. Here too we are not privy to a human life, but the forensic representation that substitutes for it.

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figure 7.13 Rafael Cauduro, Represio´n from 7 Crı´menes, 2007–9 (detail). For the colour

version of this figure, please refer to the plate section.

This idea is pursued even more relentlessly in Represio´n (Figures 7.1 and 7.13). The mural shows a crowd of protesters being attacked by tanks and riot police. They run and they fall. But what we are looking at is a picture – a mural let us say – painted on an old wall covered in graffiti. The wall is rendered with Cauduro’s masterful command of materials. The bricks are crumbling, the paint faded. The wall itself bears several bullet holes which we might well imagine record material evidence of the violent deaths. A bullet hole in a wall is evidence. A painting of that wall, bullets, graffiti, and all, is a record of that evidence. But an image painted on that wall is representation third hand – a memory of the representation of evidence of an event. The hyperrealism of 7 Crı´menes is a trap worthy of Henry James.42 Cauduro seduces 42

Henry James, New York preface to The Turn of the Screw (New York: Heritage Press, 1949) [1898], Collected Edition, vol. XII, p. 120; Shoshana Felman, ‘Turning the Screw of Interpretation’ (1977) 55/ 56 Yale French Studies 94–207, at 185ff. For further discussion, see Desmond Manderson, ‘Two Turns of the Screw’, in Peter Cane, ed., The Hart–Fuller Debate – 50 Years On (Oxford: Hart, 2009), pp. 197–218. Here a very brief personal reflection or perhaps, as the governess would have it, confession. The only other story to have had a like effect on me was Sixth Sense (M. Night Shyamalan dir., 1999) – another ghost story whose shocking conclusion led me to a most embarrassing and, frankly, uncontrollable fit of crying. I think part of the trauma I experienced in watching this film is attributable in a similar way to narrative instability and the way in which it requires us to retell the whole story, from the beginning, in a new light. There is I think something traumatic in having one’s confident

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his audience into an unwonted confidence about their ability to distinguish truth from fiction, before turning the tables on their interpretative assumptions. Justice Cossı´o describes what we might call a ‘realist critique of legal formalism’; that is, that judges and legal argument generally need to develop a more richly imagined understanding of the worlds and experiences of those who come before it. ‘Because you have to remove yourself from your formalist tribunal condition. I believe that is the theme.’43 For Cossı´o, then, it is the realism of the figures trapped in filing cabinets that appeals to him. Cauduro starkly presents the dilemma we face every day: do we judge the man as a human being, endowed with his own biography and biology, or do we judge from the status contained in a file? We are asked: what should we do when imparting justice is mediated by a record that can tell the truth only procedurally . . . reduced to the technical peculiarities of each process? . . . We must find ways to hear his voice, to let human beings transcend the record, beyond the archivist where it is procedurally stuck.44

But even more than this, 7 Crı´menes generates what we might call a ‘formalist critique of legal realism’. There is always a gap between human experience and our representations of it. Law, like art, is always imperfect, always late, and second-hand and partial. (Recall Mark Tansey’s Action Painting, which I discussed in the Foreword.) Cauduro’s images draw our attention to the necessary inadequacy – even perhaps the impossibility – of representation. Again, the observations of Justice Cossı´o are alive to the implications of this aspect. Justice has to legalize through processes, it has to legitimate itself through forms, it has to legitimate itself through distance, in a certain sense impartially and that is what legitimates it. But at the same time that which legitimates it impedes it from touching, getting closer and growing. That I believe is a problem of what gives us strength, at the same time, confers to us our own limits . . . It’s not so much a justice that abandons, but rather it is a justice that finds its limits, I insist, in its own mechanisms, in the very things that it does and this I think is universal.45

No matter how much we strive to fully incorporate ‘social reality’, the legal system will always fail to do so. The paradoxical instability of Cauduro’s realism broadens his critique. 7 Crı´menes constitutes a challenge to the possibility of a truthful or wholly realist representation of events in the world – whether in art or in law.46 This critique holds important lessons for our practices of judgement. For Benjamin, the danger of technological realism in art and society – the age of the

43 44 45 46

interpretative assumptions overturned in this way. See also The Others (Alejandro Amena´bar, dir., 2001) which is based, if thinly, on The Turn of the Screw. Go´mez Romero, interview with Jose´ Ramo´n Cossı´o (see n. 22). Cossı´o Dı´az, ‘Las conditions del juzgar’ (see n. 2). Go´mez Romero, interview with Jose´ Ramo´n Cossı´o (see n. 22). John Tagg, Burden of Representation (Minneapolis, MN: University of Minnesota Press, 1988).

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‘surgeon’ and the decline of the ‘magician’ – lies in its instrumentalization.47 Assuming an adequate epistemology of human experience, modern governance through modern technology presumes to intervene without restraint or caution. Only the aura of distance, our sense of the mystery of other lives – the unrepresentability of the life and death and pain of another – checks these impulses. 7 Crı´menes oscillates uncomfortably between representation and reality. It forces the viewer to become vertiginously conscious of their own point of view. One begins to both sense and doubt how we are implicated – perhaps pruriently, perhaps voyeuristically, perhaps complicitly – in the process of identifying and judging truth. Cauduro’s trick ensures that our role as signifier does not simply vanish from view.48 The responsibility that attaches to our own perceptual orientations and assumptions emerges from behind the veil of aesthetic illusion. At the same time, by becoming the acutely visible product of these representational processes, the subjectivity of the other is likewise revealed: in its resistance to our knowledge and as something which exceeds any process of ‘information-gathering’. This was exactly the argument that Benjamin developed in his analysis of baroque illusion in The Origin of German Tragic Drama.49 In two related ways, then, Cauduro’s neo-baroque trompe l’œil incites a better practice of judgement. On the one hand, it brings home the mysterious and unrepresentable nature of human experience in a way that no realism, however exact, could accomplish.50 And on the other hand it presents ‘reality’ as a question already perilously shaped by our own assumptions and subject position. 7 Crı´menes – most especially in its scenes of torture and rape – catalogues the violent processes of legal instrumentalization at work, the reduction of human beings to pure spectacle and object. But the mural does not simply give us a collection of donne´es – snippets of information about the failings of Mexican law and justice. It turns us into active participants in its operations and development. At the same time these scenes attempt to interrupt and subvert the logic of this instrumentalization, demonstrating its problematic operation in and through our own viewing practices. As we corkscrew around the spiral staircase, as we begin to doubt our own eyes, as the line between illusion and reality starts to blur, we become giddy and disoriented. Cauduro’s hyperrealism ultimately subverts the realism of art and the realism of law, creating a sense of self-reflection and distance that includes all of us in its critique. That, to recall Henry James’s term for this spiralling movement, is the final turn of the screw.51 47 48

49

50

51

Benjamin, ‘Work of Art’, 263. Christian Metz, The Imaginary Signifier: Psychoanalysis and the Cinema (Indianapolis, IN: Indiana University Press, 1982). Walter Benjamin, The Origin of German Tragic Drama, trans. J. Osborne (New York: Verso, 1977); Samuel Weber, ‘Taking Exception to Decision: Walter Benjamin and Carl Schmitt’ (1992) 22 Diacritics 5–18. See in particular the discussion about this by Weber (‘Taking Exception to Decision’); Desmond Manderson, Kangaroo Courts and the Rule of Law (London: Routledge, 2012), p. 146. See Shoshana Felman, ‘Turning the Screw’.

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time Between Myth and Utopia The central challenge that faced the mural tradition lay in its treatment of time. The resort to transcendentalism in the work of los tres grandes – in the form of myth or legend, utopia, or apocalypse – created an abyss, a temporal ‘gap between past and future’52 which they found no way out of. If Rivera epitomized these problems, neither Siqueiros nor Orozco succeeded in breaking free. From Rivera’s sprawling SEP murals (1923–7), to the Palacio Nacional (1929–45), his treatment of pre-colonial Indigenous people is idealized and folkloric. The History of Mexico unfolds as three large murals around the walls of a double staircase. The pre-Columbian past is represented on the right side (Figure 7.14), with colonial history in front of the viewer, and an image of ‘modern Mexico’ to the left.53 The upper levels show a variety of additional scenes from pre-Columbian Tenochtitlan.54 The Aztec world is associated with femininity, craft, and natural harmony. Labour is never presented as coerced, but as social (the comparison with scenes of Mexican labour under capitalism, in the SEP courtyard, is striking). The violence associated with the Aztecs, their imperial ambitions, ritual sacrifices, and authoritarian social structure, are ignored. Mexico–Tenochtitlan is shown as another Eden, paradise lost.55 It is a legendary world. Unlike myth, legend inhabits a specific time and place; it may well be based on real historical figures or events. Unlike myth, it does not stand above time, but is trapped inside it. As opposed to myth, then, the legend does not continue to exist; it is lost in the misty and irrecoverable past, separated from the real time of the modern world by a gulf. On the other hand, literally the left-hand side of the History of Mexico, ‘Mexico today and tomorrow’ (Figure 7.2) portrays an unfinished revolution, whose promises of development, prosperity, and equality have not yet been realized.56 The figure of Marx looms like a god. But this utopia, lacking any sense of specificity, any precise political programme, or any sense of the conflicts and differences between interests that might need to be addressed, is equally temporally adrift. Here too we stare across an abyss. In the case of legend, an unbridgeable gulf separates the past from the present; in the case of utopia, a like gulf separates the present from the future. The realm of politics, which specifically links the past to the future, whether as programme or critique, disappears.57 There is instead just this imaginative leap from one world to the next. Just as utopia is u-topos, no-place, so also is it no-time. 52 53

54 55 56 57

Hannah Arendt, Between Past and Future (London: Faber & Faber, 1961), p. 3. Diego Rivera, History of Mexico: The Ancient Indian World [north wall], History of Mexico [west wall], Mexico Today and in the Future [south wall]. Diego Rivera, From Pre-Hispanic Civilization to the Conquest. Ibid.; see e.g. The Marketplace Tlatelolco; The Great City of Tenochtitlan. Rivera, Mexico Today and in the Future. Folgarait, Mural Painting, ch. 4.

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figure 7.14 Diego Rivera, The Aztec World, 1929. Mural, 749 cm × 885 cm, Staircase,

North Wall, Palacio Nacional. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY, © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust. Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

On this point, in another important interview conducted by Go´mez Romero, Cauduro offers a blunt dismissal. How does utopia help us? I believe in the end . . . the world of Machiavelli next to Thomas More’s, this one doesn’t have any use and this one is useful in all respects. How does this grandiloquent discourse of Mexico and the flag, [heaven giving the beloved Motherland] ‘a soldier in every son’,58 benefit us? It has no use. Children are aware of it, they hate that type of thing from when they are very little . . . What is the flag? Why am I going to venerate a cloth? It’s a symbol that in the end identifies us but that . . . you pay homage to organic things, you don’t to a flag, why? . . . Because it doesn’t say anything, the more we invent the more it becomes irrelevant.59

58

59

The reference is to the last line of the first verse of the Mexican national anthem: ‘Think, oh beloved Motherland! – that heaven / Gave you a soldier in each son’. Thanks again to Luis Go´mez Romero for explaining Cauduro’s allusion to me. Luis Go´mez Romero, interview with Rafael Cauduro, trans. Thomas Nulley-Valde´s (transcript and recording on file with the author, 2014).

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Unlike paradise, legend, or utopia, the timelessness of myth is not a distance but a presence. Myth presents us with a lesson not of change but of unchanging. But it is equally cut off from politics and history. As Roland Barthes says, myth transforms contingent historical choices into a language of natural justification, ‘making contingency appear eternal’ and reducing human decisions to ‘the simplicity of essences’. ‘For the very end of myths is to immobilize the world.’60 The visual vocabularies of Siqueiros, Orozco, and, later, Tamayo, constantly evoke a rhythm outside history, where truth bubbles up out of the deep past, and endures forever.61 In Orozco in particular, political action is depicted as a kind of futile struggle against the mythic structures – natural, eternal, and immobile – of the land and its people. The stubborn stains of violence, death, and corruption are never far from the surface in his work. The dying solider in Trench (Figure 7.15) eternalizes, ennobles, and ossifies the suffering of war.62 Even when he portrays recognizably historical figures, such as Hidalgo (Figure 7.16), he tends to surround them with the trappings of myth, elevating them out of their social and political context in order to make them the vehicles of a timeless message.63 The juxtaposition of Hidalgo, brandishing a burning torch – a` la 1810 – with communist and fascist warmongers from a century later, suggest that the apocalyptic fire he lit still burns. This tragic universalism is of course the very opposite of politics, which treats the established order as contingent and seeks to mobilize it. A ‘political’ Hidalgo would show us what he did that changed Mexico; instead, Orozco shows us what he did that didn’t. For Rivera in the Palacio Nacional, History is the middle space that might have been expected to link the scenes of past (pre-Colombian) paradise to the future (Marxist) utopia on the other side. But a final abyss intervenes, unequivocally severing any temporal, historical connection between us and them. That is the aporia of colonialism, which is conspicuous by its absence. From the founding of Tenochtitlan to the landing of Corte´s was a period of 196 years (1325–1521); from Mexican independence to the present day, 114 (1821–1935). The Spanish colonial period, therefore – 300 years – is far longer than either and almost as long as both (1521–1821). Yet Rivera shows virtually no figures or episodes from the twelve generations of colonial history. It is a wasteland outside of historical time, disconnected from the legendary Aztec past on one side, and the modern world on the other. The abyss of colonialism is an American version of the Dark Ages. Perhaps even more than that, it is a Mexican version of the Fall. Rivera addresses the colonial 60

61

62

63

See Roland Barthes, ‘Myth Today’, in Mythologies, trans. Annette Lavers (London: Vintage, 2000), pp. 109–55, 142, 155; Desmond Manderson, ‘The Metastases of Myth: Legal Images as Transitional Phenomena’ (2015) 26 Law and Critique 207–23. See Octavio Paz, Tamayo (New York: Rizzoli, 1982); Coffey, Revolutionary Art, pp. 33, 64; Desmond Rochfort, Mexican Muralists: Orozco, Rivera, Siqueiros (San Francisco, CA: Chronicle Books, 1998), e.g. pp. 99, 118, 140; Robin Greeley, ‘Nietzsche contra Marx in Mexico’, in Anreus et al., eds., Mexican Muralism, pp. 148–73, at p. 158. Jose´ Orozco, e.g. The Phantasms of Religion in Alliance with the Military; The Carnival of the Ideologies, murals, fresco (Guadalajara, Mexico: Palacio de Gobierno de Jalisco, 1937). Jose´ Clemente Orozco, Hidalgo, mural, fresco (Guadalajara, Mexico: Palacio de Gobierno de Jalisco, 1937).

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figure 7.15 Jose´ Orozco, The Trench, 1926. Mural, Escuela Nacional Preparatoria, Colegio San Ildefonso, Mexico City. (Photo credit: Schalkwijk/Art Resource, NY ©ARS NY, © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust, Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

period only in the last of the Palacio Nacional murals on the upper floor, The Arrival of Corte´s (Figure 7.17),64 which compresses three centuries of colonial rule into 64

Diego Rivera, The Arrival of Corte´s, mural, fresco (Mexico City: Palacio Nacional, 1951).

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figure 7.16 Jose´ Orozco, Father Miguel Hidalgo and National Independence, 1937–8.

Mural, Palacio de Gobierno, Guadalajara. (Photo credit: Schalkwijk/Art Resource, NY © ARS NY. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust, Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

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figure 7.17 Diego Rivera, The Conquest or Arrival of Hernan Corte´s, 1951. Mural, Palacio Nacional, Mexico City. (Photo credit: Palacio Nacional, Mexico City, Mexico/Bridgeman Images. © 2017 Banco de Me´xico Diego Rivera & Frida Kahlo Museums Trust, Av. 5 de Mayo No. 2, Col. Centro, Del. Cuauhte´moc, CP 06000, Mexico City)

a catalogue of disasters, from slavery and forced labour, torture, oppression, and disease, to the introduction of new crops, livestock, and industries. For 300 years, Rivera’s dystopia apparently underwent no development or change until suddenly, on 16 September 1810, time started up again. The Christian eschatology that the conquistadors brought with them lends itself all too readily to a vision of time as fundamentally discontinuous. As M. H. Abrams put it, Christian time is ‘right-angled’.65 It imagines no temporal transitions or developments; it moves abruptly and without gradation from paradise to Fall, Resurrection, redemption, and eternal life. Christian time, in other words, is intransitive and abyssal. Indeed, images of apocalyptic fire, which give visual form to this sense of rupture, are one of the most consistent themes of los tres grandes. In Orozco, most obviously: Hidalgo, Man of Fire, Catharsis.66 The Supreme Court of Mexico is home to four of 65 66

M. H. Abrams, Natural Supernaturalism (New York: Norton, 1971), p. 113. Jose´ Clemente Orozco, Hidalgo; Man of Fire, cupola, fresco (Guadalajara: Hospicio Caban˜as, 1938–9); Catharsis, fresco (Mexico City: Palacio de Bellas Artes, 1934).

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Orozco’s murals and each makes prominent use of fire.67 Elsewhere in the Supreme Court, He´ctor Cruz Garcı´a’s The Birth of the Nation (2000) takes the apocalyptic theme to extremes.68 Don Miguel Hidalgo and Juan Jose´ de los Reyes Martı´nez Amaro are portrayed as arsonists setting alight the tinder-box dry colonial order. On the other side of the mural, people flee across a wasteland of ash and smoke, led by figures that surely evoke the Four Horsemen of the Apocalypse. The murals of Mexico City show a world ablaze. Siqueiros’s diptych of Cuauhte´moc last of the Aztec emperors, provides one final example.69 He was burned alive by the conquistadors in 1521. In the first scene, shockingly redolent of Gerard David’s 1498 diptych, The Judgement of Cambyses,70 Siqueiros shows fire as the instrument of Cuauhte´moc’s passion; and, in the second, of his resurrection. Siqueiros represents the extreme suffering of the conquered peoples, the wasteland of the colonial period, and the absolute incineration necessary in order to usher in a new and better epoch. Fire destroys and fire purifies. Above all, fire cuts us off. It marks the temporal emptiness of the Dark Ages and the temporal abyss out of which the new erupts – suddenly, like a resurrection, and without transition. Its searing heat reduces the past to scorched earth, an aporetic space through which nothing can pass. Where we might have expected colonial history, struggle, resistance, dispute, development, or conflict, we see only a holocaust – an abyss at the end of time. Beyond Aporias Crimes rejects these temporal aporias. The mural links representations of Mexico’s recent past to legal practices in the modern world, without resorting to the resigned passivity of myths. To achieve this, Cauduro developed a wholly new temporal imagery. He does not offer representations of immediate events, but only their shadows. They appear to condense out of the past. Cauduro’s buildings and rooms are old and falling down – crumbling bricks and plaster, peeling paint, rotten wood. They have a materiality which connotes decay or ruin. His figures, on the other hand, have a corporeality about them which is fresh, but at the same time evanescent. The men in the filing cabinet hover on its surface. The woman tied to a chair (Figure 7.11) appears only half-present on it, like a hologram. The woman in Homicidio (Figure 7.12), the floor visible beneath her, is shown superimposed on the outline of her own body. Tortura includes figures that merge into the

67

68

69

70

Jose´ Clemente Orozco, Justice, False Justice, Proletarian Struggle and Natural Riches, murals, fresco (Mexico City: Suprema Corte de Justicia de la Nacio´n, 1941). Hecto´r Cruz Garcı´a, Ge´nesis. El Nacimiento de una Nacio´n, mural (Mexico City: Suprema Corte de Justicia de la Nacio´n, 2000). David Alfaro Siqueiros, The Torment of Cuauhtemoc, and The Apotheosis of Cuauhtemoc, pyroxylin on masonite (Mexico City: Palacio de Bellas Artes, 1950–1). Gerard David, Judgement of Cambyses, oil on wood, 202 cm × 349.5 cm (Bruges: Groening Museum, 1498).

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figure 7.18 Rafael Cauduro, Ca´rcel (detail) from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

wall behind them. In Ca´rcel, the men’s hands both grasp and fail to grasp the bars of their prison (Figure 7.18). These are not human bodies. They are flickering effects of the light. They are precisely apparitions – on a chair, a cabinet, a wall, a floor – set against the decaying physical residue of the places they once occupied. They are ghosts. Previous writers have uniformly failed to identify or comment on this critical point. But it is not enough just to say that these figures are ghosts come back from the dead. We must ask ourselves what a ghost signifies, and how it forms a distinctive treatment of time and place. A simple definition to begin with: a ghost is the persistent after-image of an earlier physical event.71 It is the visible manifestation of a temporal dislocation; the physical presence of a temporal distance. In a ghost story, for example by M. R. James or Henry James or in a film like The Sixth Sense, the spectre is trapped in the place it died, destined to replay over and over again the traumatic events that took place there.72 Trauma, as I noted in Chapter 6, is 71

72

See Shoshana Felman, ‘A Ghost in the House of Justice’, in The Juridical Unconscious (Cambridge, MA: Harvard University Press, 2002), pp. 131–69; Avery Gordon, Ghostly Matters: Haunting and the Sociological Imagination (Minneapolis, MN: University of Minnesota Press, 1997); Tatiana Flessas, ‘A House Haunted by Justice’, in Desmond Manderson, ed., Legal Spaces (Law Text Culture volume 9) 215–44. Henry James, Ghost Stories of Henry James (Ware: Wordsworth, 2001); M. R. James, Casting the Runes and other Ghost Stories (Oxford: Oxford World’s Classics, 1987); Shyamalan, Sixth Sense.

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essentially temporal in nature. It is what happens when a past event is not reduced to memory, but continues to be experienced as if it were present, a wound that will not heal. The ghost is the visible manifestation of a prior trauma which, because it has not been adequately addressed, is condemned to an eternal repetition. It is cursed to stay on-site. The building decays but the trauma remains untouched by time. Cauduro has painted a series of gruesome ghost stories. Rape, murder, torture, violence, blood, despair – scenes from a horror movie play on the walls of the Supreme Court. These images, and their pain, and maybe even the voyeuristic pleasure I took in them, haunt me still. It was as if I had been co-opted to join in the Day of the Dead – Dı´a de Muertos, that macabre Mexican festival of excessive skeletons and ghoulish violence. Diego Rivera also painted the Day of the Dead, in the Fiesta courtyard of the SEP series.73 But for him it is a benign celebration of Mexican cultural traditions, the wellspring of social life and the incubator of revolutionary fraternity. Cauduro deploys the cult for horrific purposes. His ghosts describe events, trapped in the past, that haunt the present, reliving over and over again the same traumatic experiences. The walls are crumbling, collapsing, overgrown, or disused. Time has moved on for them, but the memories of what took place within them continue to haunt us. As opposed to los tres grandes, Cauduro does not deal in aporetic relationships. The function of the ghost is to connect a past memory to a present responsibility. As Cauduro writes in the brief prefatory text that introduces the whole sequence, repeating the same phrase twice on the wall and identically on the plaque beneath it: ‘Esta historia – de fondo es la ma´s importante’. ‘Esta historia–de fondo–es la importante’. And again: ‘Esta historia – de fondo es la ma´s importante’. ‘Esta historia–de fondo–es la importante’. George Santayana – ‘Those who cannot remember the past are condemned to repeat it.’74 Cauduro ‘sees dead people’.75 But the danger, he suggests, is not that we might see ghosts but that we might not. As opposed to Orozco, for example, each of the ‘seven crimes’ focuses on the face and features of its victims. Cauduro offers paradigm cases not abstractions. He implies that this responsibility is not simply owed to the present – as therapy, as legacy, or as warning – but to the dead as such – as atonement. As Arendt says, ‘This past, moreover . . . does not pull back but presses forward’.76 The half-life of the ghost brings together the obligations of memory and of legal change into a single framework, without ever falling into the bottomless pits of colonialism, utopia, myth, or legend. The first and last images of Cauduro’s sequence, which bookend the rest, are less realist in orientation. The first, Tzompantli (Figure 7.4), sets the tone for what 73 74

75 76

Rivera, Day of the Dead, fresco (Mexico City: South Wall, Fiesta Courtyard, SEP, 1923–4). George Santayana, The Life of Reason: Introduction and Reason in Common Sense, Marianne Wokeck and Martin Coleman eds. (The Works of George Santayana, vol. VII, bk 1) (Cambridge, MA: MIT Press, 2011), ch. XII. Shyamalan, Sixth Sense. Arendt, Between Past and Future, 120.

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follows. The last, with its riot police and angels, looms over the whole series. They are faceless in the first case and fantastic in the last. One possibility would be to read the series temporally, travelling from past to future. But the structure is clearly not linear or historical. The contradiction between the aestheticizations that bracket the murals at the start and finish, and the grubby little practices that are enclosed and legitimated by them, might be what we are urged to confront. A psychoanalytic rather than a purely historical reading works better. In the basement, the ‘underworld’ of the skull rack suggests the id, our subconscious impulses, and physical drives. On the ceiling, the ‘heavenly’ guardians stand for the superego, the voice of divine authority. But, for Cauduro, the angels of justice are no better than the faceless and menacing police. Their arrows rain down on the just and the unjust alike. Go´mez Romero confronted Cauduro on this very point. LGR:

RC:

LGR: RC:

Why is there this progression, it feels like one is leaving the catacombs or a basement to arrive to an open-air and a ceiling which is guarded by some frightful angels, which one isn’t sure if they are angels or repressive demons, where one finally arrives at the light . . . Well. I believe that all angels, all of them, are demons . . . Our angels from our culture, I don’t think the Tibetans have anything like this, come from the Old Testament. And all of those angels are bastards. Tell me which one is a sweet angel? . . . So the time of angels – The time of angels is the time of vengeance. And as authority is the image and likeness of the kings and the governors, the grenadiers are the angels.77

A mythic reading would interpret the middle passage78 of the murals in light of the transcendent frames of heaven and hell that bracket them. But Cauduro invites us to subvert the paradigm, holding those myths accountable for the banal violence perpetrated in their name, by self-proclaimed ‘grenadiers’ of their ‘image and likeness’.79 7 Crı´menes invites a critique of myth and archetype, employing an exceptionally aggressive irony by juxtaposing them against the intimate and casual brutality of human practices. Cauduro frames and represents these psychoanalytic myths not simply as ‘natural’ ‘essences’, but as the insidious constructions of concrete political and legal institutions. Pre-Columbian society is not immune to criticism.

77 78 79

Go´mez Romero, interview with Rafael Cauduro (see n. 59). See (among other references) V. S. Naipaul, The Middle Passage (London: Vintage, 2002). Sigmund Freud, ‘The Origin and Development of Psychoanalysis’ (1910) 21 American Journal of Psychology 196–218; Sigmund Freud, ‘Beyond the Pleasure Principle’ (1920); ‘The Ego and the Id’ (1923), in The Standard Edition of the Complete Psychological Works of Sigmund Freud, James Strachey, ed. (New York: Norton, 1961); Sigmund Freud, ‘Neurosis and Psychosis’ (1923) in The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume XIX (1923–5): ‘The Ego and the Id’ and Other Works, pp. 147–54.

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RC: LGR: RC:

In the end dead people, ‘criminals’, those who are sacrificed weren’t killed by nature. Of course, they are things that we do to each other. They killed them, it’s a crime . . . the worst crime.80

In short, just as Cauduro makes visible the ghostly violence that haunts our legal institutions, his skulls and angels makes visible the psychoanalytic recesses and mythic forms that enable it – ghosts of the subconscious. In each case the ghost defines a particular relationship between past and present with concrete implications for political and legal discourse. As opposed to its treatment by los tres grandes, the past is figured neither as irretrievable, nor as concluded history, nor as eternal myth. The ghost is an event whose insistent repetition has both psychological and material consequences, now. Cauduro’s image of Represio´n (Figure 7.1) spells out this temporal logic explicitly. It brings together no less than three separate moments in time. First, the wall bears the scars of an initial repression. Second, the mural on the wall was painted some time later in order to remind us of what took place there. The mural is not new; it has also suffered the ravages of time. But at the bottom of the wall, the picture plane changes and comes forward to meet the viewer. This corresponds to a third and much more contemporary time frame – notice the sneakers, plastic bottled water, and a mobile phone. Here, as elsewhere in the mural, Cauduro blurs temporal distinctions: parts of the bodies, particularly the feet and legs, of some of the figures depicted on the wall, ooze into the scene that takes place in front of it. On the ground, in this much more modern episode, lies a child. He looks like he has been shot dead, presumably by the same forces that killed those other demonstrators many years ago, in front of the same wall that witnessed those events. The shock of the picture derives from the parallels it draws between past and present. In the scene of Represio´n, Cauduro makes explicit the dangers of traumatic repetition, and the importance of memory, that underpin the mural cycle as a whole. The title Represio´n startlingly compresses these two meanings, legal and psychoanalytic.81 It points on the one hand to state-sanctioned violence, and on the other, to the unconscious processes which produce ghosts when historical crimes are hidden away. Legal and political repression results in trauma, and trauma itself leads to the kind of psychic repression that perpetuates the cycle. If we don’t pay attention to one, we are doomed to repeat the other. One of the things that puzzled me about this scene is why Cauduro chose to include under the same title both the image of angels and demons at the top of the mural, and the very different scene of police attacking demonstrators, beneath it. But the analysis of repression, 80 81

Go´mez Romero, interview with Rafael Cauduro (see n. 59). S. Boag, Freudian Repression, the Unconscious, and the Dynamics of Inhibition (London: Karnac, 2012); Peter Madison, Freud’s Concept of Repression and Defense: Its Theoretical and Observational Language (Minneapolis, MN: University of Minnesota Press, 1961); Michael Billig, Freudian Repression (Cambridge: Cambridge University Press, 1999).

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incorporating both a political and a psychological dimension, explains it. Jacques Lacan was right: ‘what is repressed in the symbolic, returns in the real’.82 Cauduro’s final image shows us both: the force of symbolic repression above, and the return of the repressed below. The mural, as any Mexican would tell you, commemorates an event which has ‘haunted Mexico’ since 2 October 1968. On that day, during a year of global student unrest, up to 300 students were shot dead by military and police officers in Tlatelolco, right in the heart of Mexico City.83 Thousands more were arrested. Some were never seen again. Like Tiananmen Square, the brutality of this action starkly exposed the authoritarian underbelly of ‘the Mexican miracle’. Ten days later, the Olympic Games opened in Mexico City. Certainly, the Tlatelolco massacre was intimately tied to the government’s anxieties about its international reputation. But in Postdata, Octavio Paz also blamed Mexican art. In the Museum of Anthropology in particular, Paz argued, ‘the regime sees itself, transfigured, in the world of the Aztecs. And in contemplating itself it affirms itself . . . Therefore a critique of Tlatelolco includes the Museum of Anthropology.’84 Paz argues that the museum’s selection of the Mexica/ Aztec people as the state’s myth of origin associates Mexican national identity with images of power and authoritarianism that privilege Christianized apocalyptic tropes ‘of death, sacrifice, and rebirth, while also fetishizing Aztec imperialism as the prophetic origin of the Mexican republic’.85 The key question Paz posed was whether art can ever graduate from ideology to critique – engage thought rather than simply overwhelm it. Siqueiros, Rivera, and Orozco help us to hate, to love, and to despair; Paz argued that they do not help us to understand. The aporia of time lay at the heart of this limitation. Whether as legend, utopia, myth, or apocalypse, the very connections, or transitions, that might have helped us move from one time to another, were severed. In the wake of what he saw as the tragic weakness of the Mexican mural renaissance, Paz rejected the possibility of a socially engaged art, retreating instead to the formalism of post-war American modernism, and the timelessness of Rufino Tamayo. Paz concluded, ‘we must oppose . . . not with another image – all images have a fatal tendency to become petrified – but with criticism, the acid that dissolves images’.86 From the terrible crimes that were perpetrated at Tlatelolco, he drew the lesson that art and criticism were incompatible. Cauduro’s Represio´n proves him wrong. Like Picasso’s Guernica,87 7 Crı´menes uses 82

83

84 85 86 87

Jacques Lacan, The Seminar of Jacques Lacan – Book III: The Psychoses, trans. Russell Grigg (New York: Norton, 1993), p. 22, first published as Les Seminaires, Livre III, Les Psychoses (Paris: Editions Seuil, 1983). See Dolly Young, ‘Mexican Literary Reactions to Tlatelolco 1968’ (1985) 20 Latin American Research Review 71–85; Elena Poniatowska and Helen R. Lane, Massacre in Mexico (New York: Viking, 1975). Octavio Paz, Postdata (Mexico City: Siglo XXI, 1970), quoted in Coffey, Revolutionary Art, p. 128. Ibid., p. 144. Ibid., p. 179. Pablo Picasso, Guernica, 349.3 cm × 776.6 cm (Madrid: Museo Reina Sofia, 1937); Ellen C. Opler, Picasso’s Guernica (New York: Norton, 1988); Vernon Clark, ‘The Guernica Mural – Picasso and

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art to record an atrocity that art could not prevent, and may even, as Paz suggests, have aesthetically facilitated. But Cauduro, like Picasso, does not merely depict a violent event but engages in a comprehensive critique of it. The ‘acid of critique’88 capable of dissolving the image – is none other than the image itself. What else could haunt us and move us, so well?

place The Wall The figure of the ghost is central to Cauduro’s work. First, as representation, the ghost is an illusion masquerading as solid reality. Second, it is temporally transitive. The ghost is the lingering after-image of an event that took place long ago. It is time out of joint. It brings together past and present. But – third and crucially – it is spatially intransitive.89 The ghost, as a rule, manifests itself at a specific place, and only there. It doesn’t move around. It is the house that is haunted. This gives the figure of the ghost the flavour of a temporal absence, as we have seen, but equally it gives it the flavour of a spatial presence. That is why the haunted house is always a ruin; it evidences the passage of time that the ghost denies. Accordingly, the ghost is the eruption of the marvellous into archaeology, not history. If it is unmoored in time, it is nonetheless firmly anchored in space. And, as we shall see, this marvellous archaeology uncannily parallels the form of a mural. The Mexican murals came in for criticism on account of their failure adequately to respond to their unique physical emplacement. Siqueiros, for example, derisorily dismissed Rivera’s work as nothing more than ‘big paintings’. 7 Crı´menes does not make this mistake. It directly addresses the relationship between justice and legal practice in the very building at the apex of the legal system. The staircase around which these images spiral, attracts two main audiences: the justices of the Supreme Court themselves, who use or see it every time they enter the building; and students from all over Mexico, whose tour typically ends there. Some judges, no doubt, have been and will continue to be hostile to the mural’s indictment of the system over which they preside. Some will interpret the images as reminders of a history now ‘all in the past’. Others, like Justice Cossı´o, have emphasized the mural’s tragic vision in which the formalism of ‘judicial rationality’ inevitably produces sacrificial victims.90 But Cauduro’s murals connects suffering and injustice to the actions of

88 89 90

Social Protest‘ (1941) 5 Science and Society 72–8; John Berger, The Success and Failure of Picasso (New York: Pantheon, 1965); Rudolf Arnheim, The Genesis of a Painting: Picasso’s Guernica (Berkeley, CA: University of California Press, 1980); Herschel Chipp and Javier Tusell, Picasso’s Guernica: History, Transformations, Meanings (Berkeley, CA: University of California Press, 1988). Quoted in Coffey, Revolutionary Art, 179. See e.g. Michael Mayerfeld Bell, ‘The Ghosts of Place’ (1997) 26 Theory and Society 813–36. Go´mez Romero, interview with Jose´ Ramo´n Cossı´o (see n. 22).

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particular individuals. The cause of suffering is personalized, and sheeted home to the law. Thus, the confined space of the court is connected not to abstract principles but to a whole raft of mundane practices carried out by a multitude of legal actors. Cauduro therefore seems to be demanding that the court attend more closely to the many rooms and spaces where law, even as we speak, is being perpetrated. 7 Crı´menes does not depict persons so much as places: catacombs, a storeroom, a shaft, a toilet, rooms of confinement, an interview room, prison cells, and, finally, a public square. With the exception of the last, the affective experience of the viewer is claustrophobic and airless. Cauduro’s ghosts are trapped in these spaces; they wander hopelessly in the filing room where they are entombed, or stretch their arms out as if trying to escape. And the mural engages with the spatial environment, not just of the court but of the stairwell itself (Figure 7.3), recalling that Cauduro himself insists that ‘space is crucial in the project’s aesthetics. The stair’s structure emphasizes concepts such as ascent and descent in elliptical mechanics.’91 Stairs are places of movement and constraint, choices and limits. Perhaps in this way they are a little like a metro station, scene of another of Cauduro’s ghostly time-fracturing murals – sites that emphasize journeys and memories but not exactly freedom.92 The Supreme Court murals transform this confined physical space into other confined spaces. They do not simply communicate a range of ideas ‘about’ the law; they transform the experience of the space into an experience of these other spaces and places. They address the ways in which spaces change their character and their meaning with the connivance – or the wilful ignorance – of the law. And they imply that most of those spaces are not made ‘legal’ by virtue of their dedication or their design, like a courtroom or a prison, but by virtue of what takes place in them. A hallway, a toilet, or a bedroom – even a stairwell – may be the scene of a crime. Cauduro’s attention to the claustrophobic spaces where legal violence is experienced arouses a disabling intimacy, a disturbing normality. Ultimately, however, the subject of 7 Crı´menes is not a building. Nor is it a room. It is the wall itself. Cauduro’s use of materials is at its most virtuosic in the rendering of surfaces, confusing us as to where the wall ends and the art begins. The brick and stone rendering of Ca´rcel, Homicidio, Tortura and Secuestro are masterpieces of illusionary surface and depth. Violacio´n (Figure 7.11) is framed by the exposed wooden struts of the building, some painted on and some layered on top. Peeling paint, dilapidated bricks, and faded posters express the work of time and ruin in the structures of buildings. The posters themselves are a palimpsest recording different events over time: a bullfight, a wrestling match, a missionary group, government propaganda, a music concert, a reference to Auschwitz. The prefatory mural 91 92

Cauduro, prefatory panel. Rafael Cauduro, mural art in Insurgentes metro station, Mexico City, 1990.

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functions in the same way, a background layer of faded quotes and homilies from Roman law overlaid with Cauduro’s scrawl and signed, after the manner of graffiti artists or taggers the world over – ‘Cauduro wuz here’.93 Represio´n (Figure 7.1) serves once again as the master key to the series. It is nothing but a painting of a wall, itself covered with cracked and peeling paint, scarred with the worn graffiti of time, and pockmarked by old bullet holes. Cauduro does not paint on the wall or paint over it. His mural depicts the wall itself. Ironically, such an approach corresponds more closely than his predecessors to the classic definition of artistic modernism. ‘The unique and proper area for each art’, wrote Clement Greenberg, ‘coincided with all that was unique in the nature of the medium . . . Modernism used art to call attention to art’.94 Just as abstract expressionism took paint to be its subject matter, Cauduro seizes on what is unique in the nature of his medium, specifically its use of a wall as if it were a canvas, to address the theme of space and law. Cauduro uses the wall to call attention to walls. Cauduro’s mural transforms the wall from an aesthetic medium, into its message. So too, the wall is transformed from a legal medium, into its message. The wall is one of the great unacknowledged technologies of the law. What does it do? It serves two indispensable functions: it conceals (in space) and it forgets (in time). Cauduro’s mural enables us to peek inside these legal spaces, to see what once went on within them. The secret places in which suffering is imposed and life disposed, are at last made visible. Some of this is connected to our understanding of what is now sometimes called the ‘deep state’, whether in Mexico or elsewhere: military, police, and intelligence agencies implicated in black ops make use of secret locations to torture or detain terrorists, or supposed terrorists, or radicals, or dissenters, or just citizens of an inconvenient complexion.95 The connection between these practices and non-state actors, particularly organized crime, is well known. A web of corruption and facilitation goes both ways. An economy operates 93

94

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The background quotes include passages from Horace, Seneca, and Cicero, but they are only partially legible and covered not only by Cauduro’s explanatory memorandum but random pieces of graffiti (‘Anacleta I love you’), and the signatures not only of Cauduro but of those who worked with him on the project. The signature he uses – ‘Aquı´ estubo Cauduro’ – is commonly seen in graffiti. The grammatical error ‘estubo’ for ‘estuvo’ connotes the partial illiteracy that I have sought to convey in the translation I have adopted here. For much of this information and for many enlightening conversations I am forever indebted to Luis Gomez Romero. Clement Greenberg, ‘Modernist Painting’ (1965) 4 Art and Literature 193–201, in Francis Frascina and Charles Harrison, eds., Modern Art and Modernism – A Critical Anthology (London: Harper & Row, 1982), pp. 5–10, at pp. 5–6. See e.g. Ola Tunander, ‘Democratic State vs. Deep State: Approaching the Dual State of the West’, in Eric Wilson and Tim Lindsay, eds., Government of the Shadows. Parapolitics and Criminal Sovereignty (London: Pluto, 2009) 56–72; Claudio Lomnitz, Deep Mexico, Silent Mexico: An Anthropology of Nationalism (Minneapolis, MN: University of Minnesota Press, 2001); Peter Dale Scott, American War Machine: Deep Politics, the CIA Global Drug Connection, and the Road to Afghanistan (Lanham, MD: Rowman & Littlefield, 2010).

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between kidnappers and government officials, as Cauduro remarks.96 So, too, the relationship between drug cartels, terrorists, and governments is far murkier than we are often led to believe.97 The so-called war on drugs has over the past ten years cost upwards of 120,000 lives in Mexico. The cartels often employ branches of law enforcement agencies as their proxies, and vice versa. On 26 September 2014, in a shocking echo of Tlatelolco, drug cartels acting on behalf of the mayor of Iguala in the state of Guerrero kidnapped and murdered forty-three protesting students.98 There are many crimes that ‘justice’ does not seek to prevent but to exploit. Side by side on top of Cauduro’s mural, the state police and the guardian angels patrol the walls and spaces where these things take place. The riot police fight organized crime one day, but use them for their own purposes the next. As 7 Crı´menes suggests – and was this not exactly Bruegel’s point? – their allied function is ultimately not to protect us from them, but to protect them from us. Law’s walls are silencing dissent all over the world. In Australia’s mandatory detention centres for asylum seekers, a gulag archipelago behind walls that none are allowed to breach, evidence mounts daily of practices of violence, sexual exploitation, child abuse, and torture, alongside epidemic levels of trauma, mental illness, and self-harm.99 Rape victims are denied treatment and spirited out of the country in the dead of night.100 The ability of Australians to see and report such conduct is now almost impossible – indeed, even criminalized – by government laws and practices.101 There, too, the more the walls see, the less we are told. 96

97

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Go´mez Romero, interview with Rafael Cauduro (see n. 59); John Sullivan and Adam Elkus, ‘State of Siege: Mexico’s Criminal Insurgency’ (2008) Small Wars Journal 12; Caroline Beer, ‘Judicial Performance and the Rule of Law in the Mexican States’ (2006) 48 Latin American Politics and Society 33–61; Andreas F. Lowenfeld, ‘Still More on Kidnapping’ (1991) 85 American Journal of International Law 655–61; Andreas Lowenfeld, ‘Kidnapping by Government Order: A Follow-up’ (1990) 84 American Journal of International Law 712–16. Cory Molzahn, Viridiana Rı´os, and David A. Shirk, ‘Drug Violence in Mexico: Data and Analysis through 2011’, Trans-Border Institute, University of San Diego, San Diego (2012); John Sullivan and Robert J. Bunker, ‘Drug Cartels, Street Gangs, and Warlords’ (2002) 13 Small Wars and Insurgencies 40–53; Tomas Kellner and Francesco Pipitone, ‘Inside Me´xico’s Drug War’ (2010) 28 World Policy Journal 29–38. Anabel Hernandez and Steve Fisher, ‘La historia no oficial’, Proceso, 13 December 2014 (proceso .com.mx); Ed Vulliamy, ‘One Year Ago, 43 Mexican Students Were Killed’, The Guardian, 20 September 2015; Nick Miroff, ‘Mass Kidnapping of Students in Iguala’, Washington Post, 11 October 2014; Francisco Goldman, ‘The Missing 43: The Government’s Case Collapses’, New Yorker, 8 June 2015. See Human Rights Council, 28th Session, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Me´ndez (A/HRC/28/68/Add. 1, 6 March 2015), pp. 7–9; (www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session28/ Documents/A_HRC_28_68_Add.1_AV.doc) Amnesty International, This Is Breaking People (Broadway, NSW: Amnesty International, 2013) (www.amnesty.org.au/images/uploads/about/ Amnesty_International_Manus_Island_report.pdf). Ben Doherty, ‘Australia Secretly Flies Pregnant Refugee out of Country before Hearing’, The Guardian (Australia), 16 October 2015. Australian Human Rights Commission, Review of Counter-Terrorism and National Security Legislation (Sydney: AHRC, 2012) (www.humanrights.gov.au/sites/default/files/content/legal/submis sions/2012/20120914_counter-terrorism.pdf).

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figure 7.19 Rafael Cauduro, Secuestro from 7 Crı´menes, 2007–9. Mural, various

materials, Suprema Corte de Justicia de la Nacio´n, Mexico City. (Reproduced by kind permission of the Suprema Corte de Justicia de la Nacio´n, Mexico City)

Governments’ ability to detain citizens without charge is increasing, to little comment or outcry.102 The walls and spaces where these decisions are being 102

See e.g. Counter-Terrorism Legislation Amendment Bill (No.1) 2014; Parliament of Australia, Committee on Intelligence and Security, Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, 20 November 2014 and see also submissions to the committee (www

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made form part of a global labyrinth far from prying eyes. Acts of cruelty and indifference are carried out by politicians and judges, bureaucrats and nurses and security guards. They take place in offices, tents, and warehouses, in old and abandoned, burnt-out or dilapidated buildings (see Figure 7.19). Ghost towns, ghost prisons, ghost sites, even ghost planes.103 Their banality only adds to their horror. The mural represents walls as accomplices in these acts of cruelty, violence, suffering, and injustice. But also and crucially, it represents them as witnesses to them. The power of the wall lies in its endurance. But like the victims, isolated or silenced forever, the wall cannot speak.104 The ghosts trapped in them are cursed to repeat their torments, until such time as someone hears their injustice and atones for it. Perhaps it was Dickens, a great pioneer of ghost stories himself, who first saw this connection between the mouldy and forbidding spaces of the law and the stories hidden away inside them. How many vain pleaders for mercy, do you think, have turned away heart-sick from the lawyer’s office, to find a resting-place in the Thames, or a refuge in the jail? They are no ordinary houses, those. There is not a panel in the old wainscotting, but what, if it were endowed with the powers of speech and memory, could start from the wall, and tell its tale of horror – the romance of life, Sir, the romance of life! Commonplace as they may seem now, I tell you they are strange old places, and I would rather hear many a legend with a terrific-sounding name, than the true history of one old set of chambers.105

The suffering figures in 7 Crı´menes are frozen in time, trapped in place, and immured in silence. The mural places a moral and aesthetic obligation on the rest of us to speak for them. And this obligation is of course particularly the responsibility of judges whose ‘most important task is to create the necessary conditions to prevent, symbolically speaking, the word being taken away, diminished or silenced’.106 Politicizing the Aesthetic Nonetheless, Cauduro positions the viewer beyond these crumbling walls. We do not experience these scenes from the point of view of the victim or the oppressor, the

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.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Amendment_Bill/ Submissions). Stephen Grey, Ghost Plane: The True Story of the CIA Rendition and Torture Program (London: St Martin’s Griffin, 2007); Anne McClintock, ‘Imperial Ghosting and National Tragedy: Revenants from Hiroshima and Indian Country in the War on Terror’ (2014) 129 PMLA 819–29; Leila Nadya Sadat, ‘Ghost Prisoners and Black Sites: Extraordinary Rendition under International Law’ (2005) 37 Case W. Res. J. Int’l L. 309. Cossı´o Dı´az, ‘Las conditions del juzgar’ (see n. 2). Charles Dickens, The Posthumous Papers of the Pickwick Club (Special Authorized Edition of the Works of Charles Dickens, vol. III) (London: Cassell, 1871), p. 223. Cossı´o Dı´az, ‘Las conditions del juzgar’ (see n. 2).

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soldiers, or the demonstrators. Instead, our point of view is that of external observers granted privileged access to an interior space. We see into the archive and the interview room, as we look down from a great height on scenes of homicide, torture, and kidnapping, and look across at the wall of the public space, from outside of it. In other words, Cauduro’s method combines a hyperrealist rendering of walls, with a cross-section which exposes spatial structures in order to allow us to see through them. This undoubtedly cinematic technique heightens the mural’s diagnosis of the wall’s power.107 The viewer can see it in action: we can look down on the height from which the murder victim fell; look in on the pitiful spaces that circumscribe the torture or kidnapping victim’s world. Violacio´n is the clearest example. We see the wall, but we see through it too, like a cross-section or an X-Ray. 7 Crı´menes does not advocate a naive transparency, as if walls could simply be done away with. A more trivial and deflating utopianism could not be imagined. Buildings constructed of glass, like the new Reichstag in Berlin or the European Court of Human Rights in Strasbourg, are always accompanied by large areas that are out of bounds, off-view, or inaccessible.108 The more glass such public spaces use, the less actual work is done there. Cauduro’s depiction of exposed and crumbling walls does not simply bemoan them, or will them away. On the contrary. Opposed to the ‘force of wall’,109 Cauduro offers two marvellous superpowers: the X-Ray vision that can see through them; and the sixth sense that can see the ghosts trapped within them. Louis Marin remarked that the purpose of the image in law is ‘to valorize’, that is, to legitimate power, and ‘to modalize’, that is, to stir us into action.110 But the image need not valorize the law; it may make us feel horrified instead. Ghosts well illustrate the power of fear to change our behaviour. Even if we do not quite believe in them, we deadlock the doors, just in case, and pull the blankets over our heads. Then you wake up at three in the morning anyway, suddenly alert (it was just a nightmare). A creak or a noise, and the hair on the back of your neck stands up (it was just a mouse). A shape moves on a wall (it was just the shadow of a tree). But it’s too late; you’re wide awake, heart beating, adrenalin pumping. Everyday examples can readily be imagined. Ghosts exert their power whenever someone passes by a house or a building where something of traumatic importance happened to them; or sees the fresh flowers, piled up on the side of the road, where someone died in a terrible car crash. Our attention is heightened, memory provoked; we become more alert. These things remind us of our mortality. Respice, they seem to say: watch out. Truth 107 108 109

110

Metz, Imaginary Signifier. See Linda Mulcahy, Legal Architecture (London: Routledge, 2010). See Jacques Derrida, ‘Force of Law’ (1990) 11 Cardozo Law Review 961; Giorgio Agamben, State of Exception (Chicago, IL: University of Chicago Press, 2008), ch. 2. Louis Marin, Portrait of the King, trans. Martha House, foreword by Tom Conley (Minneapolis, MN: University of Minnesota Press, 1988).

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or fiction, this is the affective power of the ghost story: it pricks your senses, it wakes you up. And the aim of Cauduro’s legal ghost stories is the same – to wake you up. The profoundest effect is therefore the queerest. The student rallying cry of 1968, in Paris as well as Mexico City, was that ‘une structure ne descend pas dans la rue’.111 But this is not true; structures are not only concepts. They take physical forms which themselves shape and constitute the streetscapes in which political action takes, or doesn’t take, place. Imagining the wall as a ghostly witness alerts us to what is going on behind the other walls around us. 7 Crı´menes changes how we look at all the other places and structures in which legal institutions go about their business, behind closed walls. It wakes us up. The queering effect begins inside the Supreme Court itself. Cauduro’s mural does not grace the grand public steps that dominate the front entrance to the building. His is the utilitarian stairwell at the back, near the judges’ underground car park. With our senses attuned to what is hidden on the other side of these walls, we might begin to reflect on the kinds of negotiations and pressures that have been brought to bear in whispered conversations and phone calls, in corridors and offices – even on the stairs themselves. As one leaves the Supreme Court, descending those ceremonial stairs into the streets, casting only a quick backwards glance at its heavy front door and imposing fac¸ade, one approaches the vast Zo´calo, an empty yet highly regulated space. The cathedral sits imperiously in front of us, and the Palacio Nacional, carefully roped off and guarded, is to the right. Cauduro’s work trains the viewer to see these bricks and stones, spaces, channels, windows, and doors, through new eyes. Our entire aesthetic experience of law and legal institutions has been changed. The stones themselves are carriers of power and of memories. The ghosts that they hide and conceal are as important as the impassive grandeur they present to the public. Institutional buildings embody what the French call une mine de rien. Nothing to see here, they seem to say. Une structure ne descend pas dans la rue. Really? What secrets do they harbour? What memories are entombed within them? What is taking place behind those walls? The wall is law’s aporia: it stops us moving forward – a poros, no passage, no way. To crash through, we need both political commitment and an aesthetic imagination. Equipped by Cauduro with X-ray vision and a temporal ‘sixth sense’ attuned to the slightest muffled noise or cry, or to the shadow or stain on a wall, we may start to ask questions as to what is really going on in some darkened corner or behind impassable doors.

conclusion Tucked away in a staircase in the Supreme Court of Mexico, is a masterpiece in both law and art. It is a mural in much more than name. It takes the wall not as its 111

Generally attributed to a poster on the walls of the Sorbonne, May 1968; see e.g. Paul Hernadi, What Is Criticism? (Indianapolis, IN: Indiana University Press, 1981), p. 81.

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medium but its message, and ties its treatment into the specific institutional walls that house it. 7 Crı´menes unites object and subject, form, content, and theme, politics, and aesthetics. It makes good on the promise of the mural as a form, binding together its materiality and the materiality of the place it inhabits. Cauduro’s art generates a dialogue that transforms our understanding of what a mural is about and what it can achieve, and transforms our understanding of law as set of material institutions, locations, and practices. In this way, Cauduro resolves the three central problems of representation, time, and place which los tres grandes addressed with only partial success. Ironically, through the genre of a ghost story, Cauduro removes us from the temporal abysses of myth and legend, and brings us instead into a real and transformative relationship between past and present law. There is not a shred of ‘aestheticizing the political’ in this work. No problems are resolved aesthetically, but only made to appear, to reveal their secrets: just as Cauduro’s two superpowers counteracting the law of the wall – the ghost and the X-Ray – are both visible manifestations of the invisible and the marvellous. But the murals also work, as all art must, on another level. As Rancie`re wrote: Suitable political art would ensure at one and the same time, a double effect: the readability of a political signification and a sensible or perceptual shock caused, conversely, by the uncanny, by that which resists signification.112

This is, as we saw in Chapter 6, the point. The material presence of art goes beyond its symbolic meaning. 7 Crı´menes has a concrete set of meanings that connects it for all time to the Supreme Court in Mexico City. But these murals also have an afterlife. They are not just things. They are embodied memories, still ghostly animate in some way. Oh, lad, I know they’re only stones. And the moon is only the moon. But they’re not empty things you know. The past is still in them. The fore of events long gone, it lingers. These heavenly bodies and earthly forms, what are they but expressions of matters unfinished? Perhaps it’s not childish nonsense to see stones as men walking, to behold the moon and feel a tinge of dread.113

Cauduro’s murals too, like the stones, walls, and heavenly bodies all around us, transmit a pricking or tingling sensation, a perceptual shock like the hairs standing up on the back of one’s neck – an uncanny sensation that changes how we look at all the other walls that surround us, all over the city and all around the world.

112 113

Jacques Rancie`re, The Politics of Aesthetics (London: Bloomsbury, 2013), p. 63. Tim Winton, The Shepherd’s Hut (Melbourne: Hamish Hamilton, 2018), pp. 227–8.

Afterword

How fitting, to end with a ghost story. Cauduro’s trompe l’œil realism almost eroticizes the many acts of legally inflicted violence and murder he depicts. Yet, as we have seen, representations of law in the visual arts are fixated on death. Deathbound, they impress on us the inexorable force of both legal power, and the passage of time. The difference is that where once such images might have terrified us into submission, increasingly the macabre operates as a form of critique. In seventeenthcentury Amsterdam, or for that matter, Bruegel’s sixteenth-century Antwerp, citizens were never allowed to forget that someday – and maybe today, by the grace of God and the will of the law – those who are living must die. Both Artus Quellinus’s grieving angels and Pieter Bruegel’s biting satire (Chapter 1) are filled with dread. The latter’s striking and ambiguous rendition of the figure of ‘blind justice’1 evinces an intense anxiety about the spiritual and socio-legal violence that underpinned the rapid development of modern law, exploiting the structure of anachronic time to unsettle his viewers’ assumptions. Although Justice is now many hundreds of years old, and Bruegel portrayed the blindfolded lady as old-fashioned even then, the paradoxes to which she alerts us, specifically in the relationship between time, law, and death, are by no means out of date. In twenty-first-century Australia or Mexico, on the other hand, we are reminded that someday – and maybe today, by the power of art – those who are dead once lived. In Gordon Bennett and in Rafael Cauduro, law’s macabre side – its sadism or its shame or its tragedy – arouses fury and sorrow, not acquiescence. The deeper that law attempts to bury its violent passions, the more art is determined to exhume the corpse. Cauduro’s achievement, in particular (Chapter 7), is marked precisely by the new temporal relations he opens between death and the law. First, he paints ghosts. 1

Among other discussions, see Martin Jay, ‘Must Justice Be Blind?’, in Costas Douzinas and Lynda Nead, eds., Law and the Image (Chicago: University of Chicago Press, 1999), ch. 1; Judith Resnik and Dennis Curtis, Representing Justice (New Haven: Yale University Press, 2011), pp. 62–90; I. Bennett Capers, ‘Blind Justice’ (2012) 24 Yale JL & Human. 179; Desmond Manderson, ‘The Metastases of Myth: Legal Images as Transitional Phenomena’ (2015) 26 Law and Critique 207–23; Peter Goodrich, Legal Emblems (New York: Cambridge University Press, 2014), pp. 140ff.

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These ghosts create an urgent and material bridge over the abyss of time. They shove the past into the present, merging the spaces they haunt with the spaces which, as lawmakers, judges, or citizens, we now inhabit. Second, his virtuoso representational technique focuses on the mundane and tangible locations where injustice is actually done. Law does not just take place in a courtroom. It comes to pass in file rooms, offices, interrogation chambers, secret passages, abandoned warehouses, prison cells, and in public squares at six o’clock in the afternoon. Cauduro’s work turns the mural, the medium of his art, into the subject of his inquiry: a consideration of the wall as a mode of law. In the process, Seven Crimes changes our perceptions. It unsettles what we see when we look at all the other walls around us – guarded, barred, and silent, hidden behind locked doors or protected by signs saying keep out, do not disturb, no admittance, strictly private, staff only, or some similar mantra. Through Cauduro’s eyes we can look afresh at where and when we see the law, and the cries and whispers its walls entomb. Certainly, this book has traced a shift in art from law’s ideological partner – exemplified in this book by Reynolds’s Justice and his time (Chapter 2) – to its alienated critic; perhaps even its jilted lover. The transformation has many causes reflecting profound changes to intellectual, political, economic, and aesthetic structures: the reconfiguration of the disciplines in the eighteenth century,2 the changing political economy of art in the nineteenth, and a new ‘distribution of the sensible’ in the twentieth.3 These changes too include questions of time and space – who is entitled to speak, on what subject matter, and when. In tracing and studying this movement through particular artworks, much of my analysis has necessarily had a historical dimension, and none of it has ventured outside mainstream works from the western fine art tradition. In that respect, I hope that the frameworks I have developed will stimulate new research, including possibilities for thinking about representations of time and of law in non-western and Indigenous art,4 not to mention the representation of law on coins, in architecture, and perhaps above all in monumental sculptures.5 What is a monument, after all, but the visual fusion of 2

3

4

5

See Michel Foucault, The Order of Things, trans. Alan Sheridan (New York: Vintage, 1973); Lawrence Lipking, The Ordering of the Arts in Eighteenth-Century England (Princeton: Princeton University Press, 1970). Jacques Rancie`re, La partage du sensible (Paris: La Fabrique, 2000); Jacques Rancie`re, The Politics of Aesthetics (A&C Black, 2013); Jacques Rancie`re, Aisthesis – Scenes from the Aesthetic Regime of Art, trans. Zakir Paul (London: Verso, 2013). See in particular Jennifer Biddle, Remote Avant-Garde: Aboriginal Art under Occupation (Durham and London: Duke University Press, 2016); Kirsten Anker, Declarations of Interdependence (Farnham, Surrey: Ashgate, 2014); Howard Morphy, Becoming Art: Exploring Cross-cultural Categories (Oxford: Berg, 2007). Patricia Branco, ‘On Prisons and Theatres: Santo Stefano and San Carlo’ (2010) 14 Law Text Culture 31; Richard Mohr, ‘In between Power and Procedure: Where the Court Meets the Public Sphere’, in A Thousand Eyes: Media Technology, Law and Aesthetics (Berlin: Sternberg Press, 2011); Ben Forest and Juliet Johnson, ‘Unraveling the Threads of History: Soviet-Era Monuments and Post–Soviet National Identity in Moscow’ (2002) 92 Annals of the Association of American Geographers 524–47.

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death, time, and law? Above all, the historical focus of these analyses has perhaps left open the question of its contemporary manifestations; although not, I trust, entirely. Law’s implication in powerful visual technologies, from photography to CCTV to drone strikes, not to mention the ways in which digital media are profoundly transforming the consumption and discourse of images, has crucial implications for social, political, and legal thought in the twenty-first century.6 The ‘unconscious optics’7 that bind together images, law, and time, have today an urgent relevance. There is much work to be done. Nevertheless, this book’s focus on conventional works of art from the historical western tradition does not shy away from these problems. Rather, it has been intended to provide the reader with a broader perspective, a longer view, and a deeper engagement. Leaving aside its bravura rendition of sea and sun, for example, Turner’s Slave Ship (Chapter 4) serves as an object lesson in the power of nineteenth-century sentimentality: Turner perfectly conveys the ruling passions – pity, compassion, and righteousness – that were on the one hand vital to the antislavery movement, and on the other, central attributes of nineteenth-century colonialism. Analysing these aesthetic strategies, furthermore, encourages us to see how the discourses of pity and righteousness they evoke, which undoubtedly drove the colonial enterprise in the nineteenth century, continuing to sustain the postcolonial enterprise now. The painting, like the law, is ‘always speaking’. The uneasy alliance between colonialism and humanitarianism it exposes never went away: tropes of drowning and ‘the deathfulness of the illimitable sea’, which give Turner’s work its sublime power, are echoed in newspaper images all around us. Walter Benjamin used the word Jetztzeit or ‘now time’ to capture a temporality that, as I read him, is key to the distinction he makes between work that ‘aestheticizes the political’, and that which ‘politicizes art’. With this in mind, the spectator’s relationship to Turner’s tragic scene shifts radically, pressing the question of responsibility upon us with a renewed urgency. So too, Governor Arthur’s Proclamation (Chapter 3) powerfully illuminates the temporal logic that allowed British settlers to square their commitment to the rule of law with the genocidal violence they visited on subject peoples. Conventional interpretations have tended to interpret it as a peon to the virtues of the British rule of law in the colonial period. But when juxtaposed against a detailed understanding of the legal and social history of the time, the Proclamation emerges as a far more troubling document. The promise of a utopian legal future is continually being deferred in order to justify a brutal colonial present. The image of the 6

7

E.g. Richard Sherwin, Visualizing Law in the Age of Digital Baroque (London: Routledge, 2011); Desmond Manderson ed., Law and the Visual: Representations, Technologies, Critique (Toronto: University of Toronto Press, 2018); Chiara Bottici, Imaginal Politics (New York: Columbia University Press, 2014). Walter Benjamin, ‘A Little History of Photography’, in Michael Jennings, Howard Eiland, and Gary Smith, eds., Walter Benjamin, Selected Writings, Vol. 2, Part 2, 1931–4 (Cambridge, MA: Belknap Press, 1999), p. 512.

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Proclamation allows us to see how the interplay between utopian time and dystopian delay, so characteristic of the temporality of colonial law, leads not to the rule of law but to the opposite. Again, however, such an argument cannot be consigned to history. The same logic continues to justify violent and unjust policies directed at Aboriginal people – in the name of the rule of law, in the name of human rights – right up until the present day. Even the visual trope at the heart of the Proclamation, the figure of a hanged man as the synecdoche of western law, has not lost its macabre power. Its Nachleben, as Aby Warburg would have it, its afterlife, forms a thread that connects settler colonial violence in the nineteenth century – lynchings, executions, and massacres – to deaths in custody, Aboriginal suicides rates, and other everyday acts of legal violence. The bridge between past and present is made very clear if we take the time to study the work of contemporary Aboriginal artists, represented in this volume by Gordon Bennett (Chapter 6). These images reveal not law’s ‘golden thread’8 but a rough suture – a trauma, a wound which has failed to heal, and which every new injury, striking exactly the same sore point, only aggravates. The image of a black man on the end of a noose looks like ancient history to many white people. Aboriginal people do not have the luxury of that temporal distance. For them the macabre images, memories, and wounds are perpetually fresh. In a rich vein of works including Possession Island, The Coming of the Light, and Requiem (1985–91), Bennett diagnoses the various temporal discourses of the colonial imaginary and their repressive and violent effects on Aboriginal Australians: the mystic foundation of colonial authority, the deferral of justice, the repetition of trauma. Then. Now. It’s not at all clear whether it even makes sense to distinguish between past event and present experience when we are talking about the montage of images, tropes, and myths that circulate in the social unconscious.9 For Bennett, time, law, and image are inextricable. Concepts of time, the legal violence they unleash, and the images that underpin them, work together to ideologically stitch up the Australian colonial experience. The enduring cultural resonance that pulses through these works gives them a salience across time. And whenever they are produced and by whom, images are not univocal. The temporal lability of images is their secret weapon. ‘We may even see in this a stroke of luck for politics, for all historical progress’, as Derrida put it.10 I began this book by noting that the idea of being ‘before the law’ is Janus-faced, suggestive of both innocence and guilt and constituted by the uneasy tensions that 8

9

10

In a celebrated judgment, Viscount Sankey described the presumption of innocence as ‘the golden thread’ of English criminal law (Woolmington v. DPP [1935] AC 462, per Viscount Sankey (House of Lords)). See Kathleen Birrell, Indigeneity: Before and Beyond the Law (London: Routledge, 2016), p. 22, citing William Stanner, After the Dreaming (Sydney: ABC Books, 1969), p. 25; Chris Healy, Forgetting Aborigines (Sydney: University of New South Wales Press, 2008). Jacques Derrida, ‘Force of Law, or the Mystical Foundation of Authority’ (1989) 11 Cardozo Law Review 919, at 942–4.

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pervade that paradox. But the image is also Janus-faced. It likewise points in two directions, towards its subject as well as its object, towards a signifier as well as a signified, the uttering and the uttered, the voice of the saying and the seeing of the gaze.11 Klimt’s Jurisprudence (Chapter 5) underscores the point. It communicates a vision of the law so contrary to the bourgeois establishment’s complacent sense of its own virtues, that the painting was condemned, repudiated, hidden, locked away, and finally – in 1945, when all of Europe was covered in ashes – burnt. With uncanny prescience, Klimt’s gripping image diagnoses the figure of abject human life that reshaped our understanding of law across the twentieth century, from Carl Schmitt to Giorgio Agamben, and from so-called Nazi legality, to Abu Ghraib, Guantanamo Bay, Nauru, and Manus Island. Klimt describes and satirizes this exceptional legal violence with concentrated vitriol. Yet taking Sigmund Freud’s work on the dream as a parallel text, an alternative reading of Klimt’s painting emerges. Klimt does not see jurisprudence as the study of order, or rules, or process – let alone justice. He sees it through the prism of shame, the spectacle of violence, and the vortex of desire. Through a shift of perspective, the figure of homo sacer, ‘bare life’, can remind us of the legal subject’s physical vulnerability and its moral claim at one and the same time. What changes is not the image, the signified, but how we look at it. By honing our visual literacy and developing these skills of double reading, images – be they produced by a camera, a computer, or a paintbrush – are still capable of challenging our complicity with sovereign violence, rather than merely becoming yet another instrument in our subjection. Connecting together historical moments, disciplines, and ways of knowing in these ways, reflects my deep commitment that the problems and challenges we now face will require all our senses, passions, and imagination. The preceding chapters have each taken as their focus a single image or corpus in order to explore, in as much detail as possible, how the visual arts have participated in the construction and transformation of concepts of law. By engaging fully with aspects of legal and social history and with the artworks themselves, these images, exemplary but by no means unique objects of study, provide exceptional resources through which to observe the work of legal ideology, legal transmission, legal transformation, and – not least – legal critique. The artworks discussed in this book have brought us closer, I hope, to how law looked, felt, and seemed at a particular moment in time, and how these cultural sediments continue to inform or interrogate the way that law looks, feels, and seems in our own time. Temporality has been the underlying thread that has woven together these analyses. There is an intimate relationship between art and time, just as there is an intimate relationship between law and time. For both, the passage of time is both 11

Louis Marin, On Representation (Stanford: Stanford University Press, 2001), p. 350. Marin’s argument here clearly echoes the ethical philosophy of Emmanuel Levinas.

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a problem to be solved and a key feature – equally mundane and uncanny – of their power. Revealing the temporal logic at work in each of these images likewise reveals the temporal logics at work in the law; and the possibility of a critical dimension in the art is both a function of its relationship to time and its relationship to law. In each chapter, artworks have disclosed a complex affective and conceptual dance with time, and suggested how the distinct temporal logic at play in these images illuminates a corresponding form of legal discourse. They reveal what it means to think of law as anachronic, diachronic, utopian, suspended, or ghostly; to see in colonialism the force of mystic foundation, deferral, and traumatic repetition; to see the effects on law and on art of discourses of myth, legend, apocalypse, and utopia; to see the ghost as a circuit-breaker in the fabric of law’s time; to understand the force of art as lying in its creative temporal irony. Such temporal orientations are highly complex, and incorporate not just a set of concepts, but an array of imaginaries – feelings, desires, and tensions – with powerful visual corollaries and with enduring legal consequences. Law is not narrative, but figurative.12 And this temporally compressed, extranarrative power is likewise at the heart of the transgressive potential that dwells within work of arts. They have the capacity to place us before an event, not merely as the record of something in the past, but here and now. This opens the possibility of transformation by a connection to other lives and experiences that is at once aesthetic and ethical. The unsettling visceral charge I felt in front of Gordon Bennett’s Possession Island or Rafael Cauduro’s Crimes of Justice has carried over into how I engage with other colonial histories and images, other legal buildings, other walls. It has changed how I see the world, and how I relate to others. This surely accounts for the optimism I retain, against all the evidence, for the ability of our societies to make the kinds of changes that will be needed if we are to survive the century.13 Bennett’s work (Chapter 6) is paradigmatic in this respect. Art is itself a historical event and not just a representation of it. It therefore holds within it the key to real social change. Confronting images, the encounter between cultures can begin again and again, and perhaps, one of these days, on new terms, again. This is the backhanded promise of Groundhog Day. Settler colonialism is destined to repeat itself in the ideological play of images until, one day, we finally see what’s been right before our eyes all this time. In a perfect illustration of what Mieke Bal calls ‘preposterous history’ – time spooling backwards – Possession Island, once seen, exerts a strange and disorienting effect on the orthodox canon of Australian art. Bennett queers colonial art history. And by opening it up to new readings, a different temporality and a different sensibility, he queers colonial law too. 12

13

See Walter Benjamin’s remark, quoted as the frontispiece to this book: ‘Images, not stories, are the ruins of history’. Jacques Derrida, Gift of Death/Donner la Mort, trans. David Wills (Chicago, IL: University of Chicago Press, 1996).

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Ironic, ‘queer’ (Jagose), ‘preposterous’ (Bal), or ‘anachronistic’ (Didi-Huberman), as ‘Nachleben’, afterlife (Warburg) or ‘Jetztzeit’ (Benjamin), temporality at the crossroads of art and law is not just a matter of forms of representation, but how artworks work. The triumph of death is time’s last laugh. But if the force of law lies before it, the force of art lies after it. We have come full circle; back to the terrible Vierschaar in the Town Hall of Amsterdam – a bardo, a liminal place before death and afterlife.14 The danse macabre of law is thus redeemed by art’s promise of transcendence and rebirth, and by a temporality that is not finite but remains capable of surprise and reinvention. Law’s deathly grip is everywhere manifest in art but in the process it undergoes a sea change that opens it to new relationships and potentials. Before death, afterlife. Combining the two is a way not merely of understanding the world, but inhabiting it, finding oneself before it, as before the law and before the image.

14

The reference to the Tibetan limbo is of course shamelessly poached from George Saunders, Lincoln in the Bardo (New York: Random House, 2017).

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Index

Abrams, MH, 223 Abu Ghraib, 143 Aeschylus, 135, 151–2, 153–4, see also Oresteia aesthetics, politics and, 106–7, 199–201, 208, 237–8 Africa and Africans, 115–16 afterlife, art and, 8, 244–5 Agamben, Giorgio, 93, 126–8, 139–41, 149, 151, 153, 165, 193, 243 age, and vulnerability, 150 Alpers, Svetlana, 44–5, 180–1 Altman, Jon, 95 Angelico, Fra, 9, 168 angels, imagery of, 2–4, 227–8, 239 Annunciation, imagery of, 9–11, 181 Apollo, see Justice Arcimboldo, Guiseppe, 17–18, 18 Arendt, Hannah, 195, 226 art abstraction and, 188–90 critique and, 108, 123–25, 179–81, 235–8, 244 embodiment and, 43–4, 150–1, 160–1, 186–90 law and, 16–19 modernism and, 134–5, 188–90, 232 objectivity in, 108–13, 206–8 perspective and, 179–80, 183–5 realism and, 134–5, 208–18 representation and, 179–86, 206–18 subjectivity in, 113–17, 206–8 superpowers of, 235–8 temporal in, 1–10, 160–1, 179–94 esp. 181–6, 193–4, 238, 243–4 Arthur, Governor Sir George, 86–93; see also Governor Arthur’s Proclamation asylum seekers, representation of and Australian government policies towards, 117–25, 118–20, 233–5, 243 Athene, Pallas, see Justice

Austin, JL, 163 Aztecs, 197, 202, 218, 219, 220–224, 229 Bakhtin, Mikhail, 14–15, 21, 42, 139 Bal, Mieke, 7–8, 83–4, 108, 244–5 bare life, see homo sacer Barokah, sinking of, 117 Barthes, Roland, 220 before, 1–10, 107, 242–3, 245 Belting, Hans, 181 Benjamin, Walter, 8, 106–7, 126, 199–200, 207, 216– 7, 238, 245 Bennett, Gordon, 4, 98, 157–94, 242, 244 Ask a Policeman, 172, 176 Coming of the Light, 168, 242 Echo and Narcissus, 177–8 Hanging Man, Sleeping Man, 172, 175 Home De´cor, 189 Notes on Basquiat, 169 Persistence of Language, 167, 172, 176 Possession Island, 158, 164–6, 186–94, 242, 244 Requiem, 182–6, 184 Terra Nullius, 179–80 Valley of the Ghost Gums, 10–11, 10 Bentham, Jeremy, 75–6, 80 Berman, Harold, 28–29 Bible, 113 Biddle, Jennifer, 157 Black Line, 86–88 Blackstone, Sir William, 62–81, 82 Bloch, Ernst, 83 Boer War, 140–1 Bonyhady, Tim, 166 Bottici, Chiara, 16, 106 Brant, Sebastian, 35, 39 Brennan, Justice Gerard, 77–79 Bronfen, Elisabeth, 5 Brough, Mal, 98–101

277

278

Index

Brougham, Lord Henry, 110–11 Bruegel, Pieter (the elder), 21–49, 239 Children’s Games, 21, 42, 47 Conversion of Saul, 45 Justicia, 22–49, 23, 24, 26, 213 Landscape with the Fall of Icarus, 45 Procession to Calvary, 45 Triumph of Death, 31 The Virtues, 22, 46 Brussel, Jan van, 169–71, 170 Burke, Edmund, 71, 114 Burney, Charles, 76 Buxton, Fowler, 115 Cage, John, 191 Calvert, Samuel, 162–6, 163 Campbell, Robert Jr., 159, 172 Carroll, Khadija, 86 Carruthers, Mary, 49 Cauduro, Rafael, 4, 195–6, 201–6, 208–17, 224–38, 239–40, 244 7 Crimenes, 202, 202–06, 203–5, 209–17, 210–11, 214–15, 224–35, 225, 234, 235–8 Represion, 196, 204, 215, 215–7, 228–30, 232 Violacion, 202, 211, 213–4, 231–2 Causley, Ian, 98 Celtic revival, 69–71 censorship, 146–7, 156 Christ, and Christian iconology, 2, 5–7, 32, 45, 167– 70, 223–4 chronotopes, 14–15 Cock, Hieronymous, 22 Coke, Sir Edward, 63 Colonialism, see also Governor Arthur’s Proclamation; Bennett, Gordon; Rivera, Diego history and administration of, 82–104, 91–2, 115–6, 162, 166–79, 220–24 representations of, 159–66, 181–2, 220–4, 242 Commentaries, see Blackstone Cook, Captain James, 162–5 Cortes, Hernan, 220–24, 221 Cossı´o Diaz, Jose´ Ramo´n, 195, 201, 212, 216, 230 Cover, Robert, 4 Cramer, Charles, 59–60 Cranach, Lucas, 37 Cuauhte´moc, 224 Daly, John, 99 Damhoudere, Joost, 24–8, 27, 30, 34 Damisch, Hubert, 116, 180–1 Davey, Governor Sir Thomas, 86–7, 122

David, Gerard, 4, 224 Davies, John, 65 death, death penalty and death in custody, 1–6, 19, 171–6, 173, 174, 183–6, 184, 239–41 Declaration of Independence, 161, see also Derrida Derrida, Jacques, 2, 45, 89, 106, 161, 242 Dı´a de los Muertos (Day of the Dead), 226 Dicey, Albert Venn, 84 Dickens, Charles, 235 Didi-Huberman, Georges, 1, 7–9, 15, 107, 160, 180–2, 186–7, 145 Douzinas, Costas and Ronnie Warrington, 63 dreams, interpretation of, 128–9, 144–51, 243 Du¨rer, Albrecht, 37–41, 38, 40 Duterrau, Benjamin, 101–04, 102 Edmonds, Penny, 86, 88, 90–1 Elizabeth I, Queen, 142, 143 emergency, 93–101; see also exception Erasmus, 32–3 exception, state of, 126–8, 139–44; see also Agamben fire, imagery of, 223–4 Flinders Island, 89–92 Foley, Fiona, 159, 172, 176 Foucault, Michel, 51, 71–2, 79–80, 149 Frankfurt Calendar, 39–41, 40 Frankland, Surveyor General George, 87–93 Freud, Sigmund, see dreams Furies, 136–8 futur anterieur, see temporality Gadamer, Hans, 9–10 Galle, Philips, 22 Garcia, Hector Cruz, 224 gaze, colonial, 116, 118 Genocide, see Indigenous peoples German South West Africa, 141 Gesetzbuch, Austrian and German, 138 ghosts, see also temporality—ghostly power of, 236–8, 239–40 spatial dimensions of, 213, 230–5 temporal dimensions of, 225–30 Gibson, Walter, 41 Gilfillan, JA, 162, 165 Gilson, Marlene, 173, 173 Glover, John, 166 Gombrich, EH, 75 Gothic, 67–70 Governor Arthur’s Proclamation, 82–93, 85, 99–101, 101–04, 105, 121, 163, 166, 172–6, 241–2 Goya, Francisco, 148, 212 Greenberg, Clement, 190

Index Greenhouse, Carol, 14 Gregson v. Gilbert, see Zong Guantanamo Bay, 143–4, 243 Guernica, 229–30 habeus corpus, 149–51 Hale, Matthew, 65 hanging, imagery of, 172–9, 242, see also death penalty; Governor Arthur’s Proclamation Hawkins, John, 76–7 Herero peoples, 141 Hidalgo, Father Miguel, 198, 207, 220–4, 222 Hindenburg, Paul von, 140 Hobhouse, Emily, 140 Holbein, Hans, 185 homo sacer, 128, 139–44, 149–51, 153, 155, 243; see also Agamben humanitarianism and human rights, imagery of, 17, 96–101, 113–17, 118–22, 241 Hume, David, 111, 124 ideology, theory and representation of, 71–7, 106–8, 116, 118–22, 123–5, 197–201, 208–9, 218–24, 242 Iguala, kidnap of students in, 233 imperialism, art and, 113–7, 130–1, 229 incarnation, see embodiment Indigenous peoples, esp. Australian Aboriginal people art and, 11, 82–93, 101–4, 172–6 genocidal violence against, 91–3, 101–4, 141, 172–9 law and, 77–81, 82–105 esp. 93–98, 162, 166–79, 176–8 representation of, 82–93, 101–04, 157–94, 200–2, 218 rights and, 98–101 James, Henry, 215, 217, 225 Jay, Martin, 36 Jetztzeit, see temporality—now Johnson, Samuel, 51–3, 55, 70–1 jurisprudence, see Klimt justice Apollo as symbol of, 137, 152 Athene as symbol of, 135–7, 151–5 blind, 34–41 in Bruegel, 42–9 in Reynolds, 58–62 figures of, 22–49, 131–7, 133, 169–71, 170 injustice and, 211–3, 231–5 law and, 136–7, 151–5

279

Kafka, Franz, 1–2, 44, 135 Kant, Immanuel, 114 Kelsen, Hans, 138–9, 155, 161 Klimt, Gustav, 4, 126–56, 212, 243 Faculty Paintings (Philosophy and Medicine), 129–30, 134–5, 156 Jurisprudence, 127, 127–56, 133, 243 Kraus, Karl, 130–2, 137 Lacan, Jacques, 184–5, 229 Lampadusa, 117 Latour, Bruno, 16, 24 law colonial, 82–101, 162–4, 166–79 common, 63–71, 76–81 development of early modern, 22–49 feudal, 67–9, 77–78 martial, 89–90 myth, custom and, 66–71 natural, 54 police, State, and, 131, 142, 203–5, 211–3, 232–5 realism and, 208–17 unwritten, see common law walls and/as, 215, 231–5, 237, 239 Leviathan, 131 Levinas, Emmanuel, 1, 10, 151 light, imagery of, 37–41, 60–61 Lipking, Lawrence, 51–2 Locke, John, 51 Loos, Adolf, 134 Lorenzetti, Ambrogio, 31, 31, 35, 46 Luther, Martin, 37 Mabo v. Queensland, 77–79, 96 Macbeth, 112 Mansfield, Lord William, 110 Manus Island, 143, 243 Marin, Louis, 10–12, 236 Martinez, Cristina, 63 Marx, Karl, 218 materiality, see embodiment Matsuda, Mari, 159 McBride, Keally, 91 McCubbin, Frederick, 190–93, 191, 192 McLean, Ian, 159 Memling, Hans, 168–9 Mexico, post-revolutionary government of, 196–201 Michelangelo, 5–7, 6, 168 Minkkinen, Panu, 148 Mitchell, WJT, 49 More, Sir Thomas, 134, 219 Morphy, Howard, 187

280

Index

muralism, Mexican, 195–201, 206–8, 218–24, see also temporality; walls—law and; and under specific artists Museum of Anthropology, Mexican, 229 mystical foundation, 161–6, 242 Nagel, Christopher and Alexander Wood, 7–8, 20–21 National Emergency Response Acts, see Northern Territory Nauru, 143, 243 Nazism, 130, 140–1, 156, 243 neoclassicism Blackstone’s Commentaries and, 62–71 English Enlightenment and, 50–7, 111–12 legacy of, 77–81 representation and ideology of, 71–77, 79–81 Northern Territory CDEP scheme in, 95 child abuse in, 94–5 emergency and intervention in, 93–101, 176–7 land rights and native title in, 96–7 Little Children are Sacred Report concerning, 94–5 Obrego´n, Alvaro, 197 Oresteia, 135–7, 151–5 Orozco, Jose´ Clemente, 198, 200, 218, 220–4, 221–2 Ossian, 70 Ost, Francois, 14 Panofsky, Erwin, 8, 20, 35, 37–9, 179–82 Pantocrator, see Christ Parr, Geoff, 173, 174 Paz, Octavio, 198, 229 Penney, David, 58 Pink Floyd, 195 Point Civilization, 92 Pollock, Jackson, 160, 187–93, 188 Proudhon, Pierre-Joseph, 149 Quellinus, Artus, 2–3, 2, 239, 245 Rabelais, Francois, 42–3 Rancie`re, Jacques, 238 Raphael, 39 Rauschenberg, Robert, 160 reception of Roman law, 29–30 recognition, politics and philosophies of, 148–9 Reformation, 29, 36–7, 48–9 refugees, see asylum seekers repression, denial and, 172–9, 228–30

Resnik, Judith and Dennis Curtis, 32, 58–9, 195 responsibility, 5 Reynolds, Sir Joshua, 50–81 critics of, 75–7 Discourses, 52–6, 70–2 English Enlightenment and, 50–56 Justice, 56–62, 57, 58, 80–81 portraiture, 73–4, 74 Self-portrait, 59–61, 59, 81 Theory, 65–66, 67, 79 Ripa, Cesare, 36, 56–7 Rivera, Diego, 197–201, 199, 206, 206–8, 218–24, 219, 223, 230 History of Mexico, 198, 199, 206, 206–7, 219, 220–1, 223 SEP murals, 198, 218 Robinson, George Augustus, 101–04 Rodin, Auguste, 126 Romanticism, 114–16 Romero, Luis Go´mez, 201, 219, 227 Royal Navy, 109–11 rule of law, history and theory of, 84–91, 211 Ruskin, John, 112, 118, 123–4 Ryan, Lyndall, 86 Santayana, George, 226 Saramago, Jose´, 22, 48 Schiller, Friedrich, 115, 124 Schmitt, Carl, 128, 138–9, 144, 153, 155, 243 Schopenhauer, Arthur, 150 Schorske, Carl, 132–4 sea, imagery of, 107–9, 112–3, 117–20, 123–5 sentiment and sentimentality, 111–6 SIEV-X, sinking of, 117 Siqueiros, David, 200–01, 206–8, 207, 209, 218, 224 Sixth Sense, 225–6, 236 Slaughter, Joseph, 17 slavery flight from Egypt and, 113–4 representation and abolition of, 108–17, 123–5 Smith, Adam, 111, 124 Snow, Edward, 47 Somerset’s Case, 110 sovereignty, 39–41, 137–44, 149–151, 154–5, 243 Stalinism, 200 Stephens, Sir James, 91 Stolleis, Michael, 39 Strauss, Gerald, 29 Stronger Futures in the Northern Territory Act, see Northern Territory sublime, 114–16

Index Supreme Court of Mexico, 195–6, 201, 226, 230–1, 237–8 sympathy, see sentiment Tamayo, Rufino, 220, 229 Tansey, Mark, 12–13, 13, 216 Tasmania, history of, 82–93, 101–4, 175 temporality, 7–8, 241–4 anachronism and, 12–13, 20–2, 33–4, 48–9 Christian, 223–4 colonial, 157–94, 220–4 contemporary, 193–4 deferral as a form of, 93, 100–01, 166–72, 241–2 diachronic, 50–81 empty, 139 futur anterieur as, 161–6, 188–9 ghostly, 225–35 ironic, 192–4, 227, 237–8, 244–5 lark song and, 178 Mexican muralism and, 218–24 myth and, 161–6, 199–201, 218–24, 227 neoclassical, 54–56, 62–71, see also Neoclassicism now-time (jetztzeit) as a form of, 106, 123–5, 126–7, 241 paradise and, 218-24 queer, see temporality—ironic repetition, trauma and, 152, 172–9, 226–30, 236, 242 retroactivity and, 8, 86, 89, 165–6, 181–2, 193, see also futur anterieur suspended, 126, 139–40, 144, 154–5 transcendental, 218–24 utopian, 82–104 esp. 82–3, 92–3, 134, 218–24 Tenochtitlan, 201, 218, 220 Third Reich, see Nazism Thomas, Nicholas, 159, 166–7 Thompson, EP, 92 time, see also temporality in art, 2, 5–10

281

law and, 2, 11–16, 61–2 presence and, 179–86, see also temporality —‘now time’ as a form of Tlatelolco, 229, 233 Tollner, David, 98 Torture, imagery of, 24–32, 44–7, 121, 210–3, 223, 226, 232–3, 236 trauma, 172–9, 226; see also temporality—repetition, trauma, and Trotha, General von, 141 Trotsky, Leon, 197, 200 Truganini, 102, 183–6 Truth, 131, 137, 142 Tupaia, 162–3, 165 Turnbull, Malcolm, 122 Turner, JMW, 4, 105–17, 109, 123–5, 241 Twain, Mark, 123 Union Jack, 164–6 Valverde, Mariana, 14–15 Van Diemen’s Land, see Tasmania Vasconcelos, Jose´, 196 Vermeer, Jan, 186 Vienna, University of, 129–30 violence, law and, 30–32, 131–5, 137–44, 155–6, 172–9, 201–6, 208–17, 229, 232–7 visual studies, law and, see image, law and Wagner, Richard, 136 Warburg, Aby, 8, 181–2, 245 Warton, Thomas, 68–70 Watson, Judy, 159 Weimar, 142 Wherra, Jack, 172 Winnicott, Donald, 34 Winton, Tim, 238 Zizek, Slavoj, 174–5 Zong, case of, 109–10