Law and The Senses: Symposium, Performance, Phenomenon?

A recent 'unconference' entitled 'Law and the Senses' proved to be an import­ant event that dis­covered not only novel ways to regard the rela­tion­ship of law and the senses but also its relevance.

Pietro Paolini - Allegory of the Five Senses

The announcement of the event ‘Law and the Senses’ at the University of Westminster sounded intriguing. The call for papers asked:

What is Law’s relationship to senses? In a sense, Law, the anaesthetic par excellence, is constantly engaged in numbing the sense into common sense; manipulating, channelling and controlling the sensible; inserting properties and forbidding contacts; dissimulating violence, regulating sounds and defining taste. However, senses are not static. Rather, they are shifting and elusive qualities, constantly reshuffled by socio-cultural and technological changes, always dislocating Law’s normativity towards new potentialities. In this other sense, Law emerges from the senses, and whereas senses are a constant arena of legal machinations, they are also Law’s constant blind spot and inescapable excess. Is there then a legal sensing, an illegal sensing, or even perhaps a sensing beyond the Law? How does Law sense? Can Law hear, taste, smell, touch, see? Can Law indulge in sensual pleasures, or is it confined to the anaesthetic arena of common sense? Can senses be a tool to use, know and study Law better? Would this make Law more ‘sensible’, or instead more suffocating?

This signified an incursion into the unfamiliar. The event was to be structured around the premise that law, through the strictures created by its frameworks, normativity and processes, can be so asphyxiating as to prevent our engaging our personal or individual consciousness. In the radical characterization by Niklas Luhmann, law is autopoietic, constantly reproducing its own operations internally, which creates its own enceinte. Even without engaging in such esoteric theory, it could be foreseen that this event might constitute an experiment to see how we can consider law by evading its formalism. ‘Law and the Senses’ therefore aimed to consider whether we can learn anything new in our encounters with law by engaging our consciousness via our senses. These were to be the ‘standard’ senses of sight, hearing, smell, taste and touch but the present author also offers cognition as an extension of ‘sense’, because the raw data (sensorial input) of our senses requires interpretation, from whence comes meaning and understanding.

Performances

The intense, two-day event was structured around six principal themes describing the way in which we as subjects perceive, interpret, consider and reconstruct sensorial input. They were screening; trans-sensing; echoes; attuning; vulnerability and hearings. Rather than formally presented lectures, each constituted a performance or performance lecture, the nature of which will be revealed soon. There were sixteen of them and it is impossible for reasons of space to describe but a few here. Instead, I have selected those that utilized our senses the most (or to the utmost) to comprehend the concept of senses in law.

This performance, under ‘Screening’, by Marta Iljadica (University of Southampton) set the standard for the event in that, from the outset, the performance was interactive, interspersed with factual material only when necessary to confirm or deny common opinions. It examined the social phenomenon of graffiti, not as static expressions but traces of [human] movements, histories and emotions. Graffiti appeared in this performance to represent the frustrations of a repressed urban subculture seeking expression that inescapably potentiates criminal damage and personal injury. Thus its common perception as purely anti-social behaviour and nuisance largely was disabused in favour of a more enlightened view. The execution of graffiti also was said to have sensorial connotations because of the creativity of signing with vibrant colours, the excitement and physical danger of spraying them, the smell of the paint and even the hiss of aerosol cans.

The performance started the programme well in the way it was intended to carry on. It allowed insights into the minds of those using graffiti as a means of expression. Previously these had not been accessible to us. It provided social and sense-oriented commentary on a contemporary social phenomenon and permitted us a new conception of urban space. From a more pragmatic point of view though, the ‘tags’, ‘pieces’ and ‘throw-ups’ of graffiti are in code and are forms of communication only between fellow artists and communities. While this must create [a sense of] identity, social solidarity, territorial demarcation, movements and the loci of themes, it might be more useful publicly if the messages could be understood1 (although perhaps secrecy is precisely the point). Nonetheless, Marta’s performance allowed us appreciation of the compulsion of graffiti artists to express themselves, told us what the art symbolizes and the sensory associations of artists in executing (performing?) it. This was most illuminating, worthwhile and current. What graffiti means for law and the senses is that it is a visual phenomenon that can be perceived readily and that has own sensorial associations. Artists can break the law; sometimes graffiti can cause damage, incur personal risk and costs in its removal. Yet, for all that, graffiti does not always seem criminal or harmful (to me, at least) because it has become almost an acceptable (or, perhaps accepted) part of urban life. That could be because sometimes it adorns the plainness of buildings and ugly structures and the primitive form of art and graphics is not always aesthetically displeasing.

Hamlet and the thresholds of ‘sense’

Under ‘Trans-sensing’ the performance by Eric Heinze (Queen Mary, University of London) was very enjoyable. A video excerpt from the famous gravediggers’ scene from Hamlet, Act V, Scene I was shown, with the dialogue being analysed sometimes at just two or three words at a time. Debate between the gravediggers concerns the lawfulness of granting a Christian burial to Ophelia, suspected of committing suicide and in relation to the Coroner’s verdict. The example in Hamlet was used to illustrate Shakespeare’s contrasting of elements of the transcendentally human with those most conventionally and arbitrarily oppressive within law.

First Gravedigger:2

Is she to be buried in Christian burial that wilfully seeks her own salvation?3

Second Gravedigger:

I tell thee she is: and therefore make her grave straight: the crowner (coroner) hath sat on her, and finds it Christian burial.

First Gravedigger:

How can that be, unless she drowned herself in her own defence?4

Second Gravedigger:

Why, ’tis found so.

First Gravedigger:

It must be ‘se offendendo;’5it cannot be else. For here lies the point: if I drown myself wittingly, it argues an act: and an act hath three branches: it is, to act, to do, to perform: argal6, she drowned herself wittingly.

Second Gravedigger:

Nay, but hear you, goodman delver,—

First Gravedigger:

Give me leave. Here lies the water; good: here stands the man; good; if the man go to this water, and drown himself, it is, will he, nill he (willy-nilly?), he goes,—mark you that; but if the water come to him and drown him, he drowns not himself: argal, he that is not guilty of his own death shortens not his own life.

Second Gravedigger:

But is this law?

First Gravedigger:

Ay, marry, is’t; crowner’s quest law.

A cleverly conceived performance by a legal academic with acute literary awareness. The performance chimed well with the ethos of the event. It showed how all the senses (and possibly a sixth, according to the speaker) were engaged in collapsing boundaries between rationality and irrationality in law in the self-styled gravedigger-lawyers’ reasoning of the lawfulness of Ophelia’s death through their perception and questioning of the ‘crowner’s’ (coroner’s) verdict. For anyone inadvertently taught an English schoolboy’s loathing of the Elizabethan text, wit and irony was discovered in this excerpt that was diverting as well as instructive. Eric Heinze suggested a sixth sense in his performance but did not elucidate. Regarding the significance of the Hamlet excerpt for law and the senses, it was evident that more than the simple sensorial input of listening to the dialogue was involved. Coinciding with the present author’s impressions on the matter, it is suggested that Eric meant that cognition also was required to identify the wit and subtlety of the dialogue, to evoke the emotional response of amusement and to relate the malapropisms and mock legal opinions of the gravediggers to actual law. Rather stating the obvious, in order to be relevant to law and the senses it would be impossible to carry out this novel analysis of text unless it already concerned some aspect of law but it would be interesting to see the technique extended to other literary works that do.

Echoes

Three performances within ‘Echoes’ were the most astounding, challenging and distracting. During each, the senses of participants were assailed with diverting synthesized sound (electronically generated effects) while the presenters performed.

1. Reverberation of ©

Danilo Mandic (Doctoral Researcher, School of Law, University of Westminster), assisted by Daichi Yoshikawa (London College of Communication), performed an elucidation of copyright law in terms of the technological advancement that interferes with it and threatens to render it nonsense, that is, so that it no longer makes sense. To address the question, Danilo performed an intervention into copyright’s sensory disposition. He introduced the proposition that copyright is a visually dependent category for reasons of being a property right but, critically, in [through] the communication means out of which it emerged originally. By drawing a cogent analogy between the noisy interference of technology, represented in the performance by synthesized sonic reverberations performed by Daichi, and a most competently spoken improvisation on the nature of copyright, it was argued that copyright should open its ears to its soundscape.

My deduction from Danilo’s performance was that any new law of copyright not only should speak unto itself of that of which it is already part but also listen to the commotion that is a feature of present discourse. The implication for law and the senses is evident—listening, feeling, observing (as seeing with cerebral processing). At a pragmatic level, it will be fascinating to see how Danilo develops in his doctoral thesis the theme that copyright is always already immersed reflexively in its own environment. What kind of framework for new law might he propose?

2. Our theme is echo

The performance by Anne Bottomley (Kent Law School) and Nathan Moore (Birkbeck College, University of London) was the most challenging to understand. Anne transported us into another way of regarding the ‘space’ of law. Provident acknowledgement by Anne in her event abstract of Deleuze and Guattari7 (and others) and their discussion of space, sound, refrains and repetitions, provided (retrospective) guidance8 in order to grasp the concepts better. The themes of these two scholars were taken as the entry point to Anne and Nathan’s performances. Deleuze and Guattari contend the deterritorialization of space by the ‘machine’ that otherwise ‘territorializes’ space in any way —geologically, epistemologically—in the form of refrains that define a different way of discovering our identity. These transpire, they say, to be largely musical and auditory. For instance:

[I]t is significant that the “refrain” is an auditory metaphor. The refrain is “eminently sonorous.” …Sound does not signify or communicate values, but rather it “invades us, impels us, drags us, transpierces us. It takes leave of the earth, as much in order to drop us into a black hole as to open us up to a cosmos. It makes us want to die” … The refrain is a repetition, the song of the bird repeated, but not verbatim. Repetition necessarily contains difference, yet what is important is its resonance, the sympathetic vibrations that occur in a territory that give it life. The refrain is a catalyst, a to-and-fro movement. It “fabricates time” by its rhythm. “The refrain remains a formula evoking a character or landscape.9

Inspired by such exhortative language it is easy to understand how the universe can be perceived as replete with sound. Anne and Nathan transformed the themes of refrains, repetitions, resonance, vibrations and rhythms into their own expression, that of echoes. Nathan used a sound generator/amplifier in which its output was looped back into its input so that a new reverberation was overlaid on each pass of the signal and multiplied into a huge, pulsing, and rhythmic assault on our auditory senses.

The massive, abstract soundscape generated impressed on participants the cosmic scale and intensity of sound and its echoes. Bewildered at first, one was immersed in something that struck deep into the psyche; it was much more than something physical beating on the senses. Other sensations were realized. Participants truly were ‘trans-pierced’ by echoes; Anne and Nathan demonstrated this convincingly. One confesses to excitement at the experience and a feeling of having been transported to another space.

3. Atmospheres of conflict

This was performed by Andreas Philippopoulos-Mihalopoulos, Professor of Law and Theory in the School of Law of the University of Westminster and Andrea Pavoni, his Doctoral Researcher colleague. Andreas contemplates the world through distinctions such as inside/outside; unity/difference; material/transcendental; intactness/rupture; autonomy/heteronomy and so on, that are pre-eminently Luhmannian inspirations, whose theory this scholar has enriched exquisitely. In a new departure, but with comparable intellectual athleticism, Andreas and Andrea introduced the concept of atmospheres created by performing words. Atmospheres as entities are redolent of systems thinking: they are immanent and have insides and outsides. As examples, there were proposed the atmospheres of asphyxiatingly formal law and those of the graffiti writer. Normally, we can be aware of only one atmosphere at a time. In the performance though, our perception was that of evaporation of an atmosphere and its becoming other—we were privileged as überobservers to being able to see all the word-atmospheres. This was a self-comment on the entire event. The performance took the form of two soliloquists orating concurrently about ‘atmospheres’ but with each in isolation. Their themes, though, were common. Andrea perambulated as a disembodied commentator, gaze averted; Andreas was centred. Their performance was in prose at the same time elegant and angst-ridden, as examples—

A spoken part:

Empty, emptiness around me, and yet full of Nomos.
The prosthetic eye of law always above. CCTV: the eye of God is a four-letter word.
I feel it on my skin, humid, oppressive and subtle, like fog.
The anti-graffiti law.
The anti-social behaviour law.
The law of property.
My property is what makes me.

Another spoken part:

Could my body ever be without property, from without property? Where my body expands, my fingers end and my skin stops — this is just the core of my property. But more than that, my property is the whole world, this and that hemisphere, the geology of freedom. I am the golden average, I breathe in my whiteness, my westerness, my maleness, I breathe out your theories, your human rights, your ancestral claims, your bodies. I embody the law so fully. I am full of… law […].

A spoken part:

[After a supposed demonstration]… The grey smoke between law and non-law: I am relieved. Hidden from the gaze of the authority, discharged from its oppressive cloud, I can breathe again. Breathe the smoke, energises me. I run towards partial immunity […].

Another spoken part:

Bodies, slogans, chants, radical dress-codes. New normativities displace old ones. All is simmering. Slow-cooking. The oppression of law is filtered out, clarified, like boring wine.

Fear to touch, gone. Yet non-fearing touch is not freedom to touch.

A noisy background effect and visuals punctuated the performance. There was even room for a little intellectual humour. The speakers, trapped inside their atmospheres of ‘un-actualised potentialities’, the weight of intangible normativity and amorality that is formal law, needed escape routes. Impishly, they proposed the ‘northern line for epistemologists; the central line for ontologists’. The narration in the performance contained a notion of a demonstration, of radicalism—even of revolution—as the barricades of legal formalism were torn down.

Cleverly, here was a skit or satire on the event itself, like a play about a play, which demanded appreciation by participants. These scholars also engendered a novel medium that they called the ‘performance lecture’. Perhaps the delivery was a little tongue in cheek but nevertheless containing a message. My response to the speakers afterwards was that they had rendered written expression superfluous, lame and mundane.

Personal Reflections

Reporting on such seemingly avant-garde types of events as ‘Law and the Senses’ (and on the form that is rapidly becoming a trend in academia of an ‘unconference’), automatically involves one in trying to convey the utility of such debates and their relevance to the realities of law. Associations between law and the senses are harder to imagine than between, say, law and society; law and literature; law and morality; law and policy, and many other ‘law ands’. If the notion of law and the senses might be regarded as a ‘fringe’ subject about which some scholars might be sceptical, it is important out of respect for the convenors and properly informing non-attenders to give a fair account. And for free thinkers, the potential for discovery of new truths could not be abjured. So, in order to gain from attending, it was necessary to put aside predispositions and enter fully into the spirit of the event. It was insightful, with responses rising above the predictable and mundane. I felt quite exhilarated, as much by the delivery of the communications as by their materials. Consequently, I feel very comfortable in creating this blog because I believe I participated in an important event that discovered not only of novel ways to regard the relationship of law and the senses but also its relevance.

This had been an experimental—nay, daring—kind of event. One cannot experiment with law but one can experiment in talking about law (and sensing law). Without experimentation, how can we know what we do not know? But one is free to debate the relationship of law, the senses or any other psychosocial element. In the most radical leave-taking from convention, to study the senses you were encouraged to engage your own senses, not just those of the passive acts of heeding and spectating. Another important theme permeating the event was subjectivity; responses could not be mandated. What you took from a performance was at your discretion: you were free to decide what sense to make of it or, indeed, whether it made any sense.

Initially, I was apprehensive about attending because I feared leaving my comfort zone. If there were to be any difficulties in accommodating the highly unconventional nature of performances and the subject matter, it would be because of a persistent personal reluctance to forsake the ordering of experience in terms of habitual frameworks for understanding: an un-liberated psyche that imposed its own restraints on my comprehension. I was a prisoner of my own history and I suspect not the only one present. An impression that I took away was not so much whether I considered individual sensory stimuli evoked law for me or that I could identify better where senses came into operation in regarding it. It was that I had been alerted to the way in which my senses could be stimulated deeply to achieve a new capacity to respond. And this is precisely what the performers achieved. This changed me and I am usually quite resistant to that. However, can we not be permitted to be just a little excited occasionally in our academic labours? Can understanding not be pleasurably obtained, especially through our senses?

Cedric Gilson is visiting fellow in law at the University of Westminster, London.

Show 9 footnotes

  1. This is not necessarily to say that explicit slogans would be preferable because, sometimes, their language is radically polemical and such assertions are not always shared. However, the messages and purpose of graffiti can be obscure to those not belonging to the groups that paint them up.
  2. In the original, the gravediggers are termed clowns because they are ignorant of the law but attempt professional interpretations of judgments. This part of the scene is intended to be pure comedy.
  3. Used intentionally in error for ‘destruction’
  4. ‘Self-defence’ being interpreted as suicide brought about by intolerable pain.
  5. Through error, in substitution for ‘se defendendo’.
  6. Misconstrued Latin for ‘ergo’.
  7. See n.7
  8. I needed post-performance information in order to assess what I had heard because I was unfamiliar with its themes.
  9. From Bruce B. Janz’s interpretation of ‘The Territory Is Not The Map. Place, Deleuze And Guattari, And African Philosophy’, Philosophy Today, Winter 2001, 392–404
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