Abstract
In Danse Macabre: Temporalities of Law in the Visual Arts, Desmond Manderson delves the visual arts for insights into jurisprudence and legal practice. The book is a tour de force. Observing that just as art always fails to capture the image of justice, justice also always escapes positive law, Manderson claims, “We cannot paint the present; nor can we write the present law. . . . painting and lawmaking are always behind the times, late for their rendezvous with a world that has turned without them. . . . they strive to shape a future that they will never live to see” (13). Developing this claim, he notes, “Art and law share the same obsession with time, the same paradox, the same predicament” (13). Thus, law’s tempi lead us in a literal, not metaphoric, dance of death (2).
Manderson’s exegesis of the jurisprudential implications of visual imagery is strikingly original. Although he discusses art primarily as a vehicle for exploring legal concepts, he reveals a sophisticated knowledge of theories of aesthetic interpretation. Nevertheless, Manderson’s goal is not to develop a philosophy of art, nor to answer such questions as whether the political content of an image is the proper object of inquiry for an art critic or whether the conscious empirical intent of the artist should determine the meaning of a work. Importantly, in art, like in law, multiple different interpretations may be valid. At times he even embraces what Mieke Bal calls a “preposterous” interpretation: self-consciously re-reading historical images anachronistically through a modern perspective to incorporate its “afterlife” (8, 83–84).
Nor does this book provide a survey of law and the visual arts. On the contrary, it is a deep dive into a few works that epitomize certain moments in jurisprudence, with side trips through dozens of others. Within each chapter, Manderson discusses not only the legal context of the painting, but uses the painting as an entry into contemporary issues, with an emphasis on his native Australia. His choices are idiosyncratic. Only one—J.M.W. Turner’s Slave Ship—could be considered major. Two allegories of Justice designed by important artists, Pieter Bruegel and Joshua Reynolds, are studies for final works executed by others—an etching and a stained glass window, respectively. Another painting by a well-known artist, Gustav Klimt’s Jurisprudenz, is virtually unknown. Because of its controversial imagery, it was never installed by the university that commissioned it and was subsequently destroyed. It survives in a single, grainy black-and-white photograph. Manderson’s unique study is not limited to Europe. Governor Arthur’s Proclamation to the Aboriginal People, was not created as “art” per se; it is political propaganda promulgated by the colonial government of Tasmania for dissemination to the non-English reading indigenous population. Gordon Bennett, a recently deceased part-Aboriginal artist, paints variations on an iconic image of Australia’s founding. Finally, Rafael Cauduro’s 7 Crímenes (Seven Crimes, or, perhaps more accurately, atrocities) are murals surrounding a staircase of the Mexican Supreme Court.
Manderson describes these images as “dances.” Each embodies the rhythm of a legal culture: an implicit relationship of time and law. For example, Bruegel, in the early Renaissance when formal legal codes and procedures were replacing ad hoc administration by kings and judges, views the world through anachronistic time. Past, present and future exist simultaneously. Early modernism does not replace the barbarism of medievalism, but institutionalizes it through elaborate procedures designed to insulate each legal actor—other than the defendant—from personal responsibility. Personified “Justice,” dressed archaically, stands by blindly as contemporary judges, lawyers, and jurors preside over a march of torture and execution stretching into an infinite future.
In the eighteenth century, Reynolds, founding President of the Royal Academy of Art, and producer of periodic addresses known as the Discourses, was a leading theoretician of the neoclassic movement that also underlies Blackstone’s Commentaries. Neo-classicism views law in diachronical time—from two temporal perspective. Although neo-classicism looks back to an imagined idealized past (the classical world, for Reynolds, pre-Norman Britain, for Blackstone), it does not nostalgically mourn it, like romanticism. Rather, this past is being reclaimed and recreated in the here and now; the present is the past brought back to life (55). This is a strategy to justify the status quo.
Governor Arthur’s eponymous proclamation of 1830 reflects utopian time. The placard depicts Aborigines and colonists as equal before the law. In fact, Arnold had imposed martial law and commenced the genocidal “Black War” against the native population. Arthur’s sincerely held ideals are indefinitely postponed; his promise of future justice is used to justify present injustice. “Present lives are . . . sacrificed on the altar of the future” (83).
Turner’s 1840 painting presents what Walter Benjamin called “‘now- time’ . . . 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” (106). His image of chained victims thrown overboard by slavers does not merely depict a notorious historical atrocity, as conventionally thought. In Manderson’s reinterpretation, the eponymous ship is not the one seen in the middle distance. Rather, the viewer is standing on it, participating in an injustice in the immediate present.
Klimt, at the turn of the twentieth century, presents justice in suspended time. At first glance, his allegory depicts the punishment that follows judicial procedure. Manderson suggests that it is rather the moment before decision, a Carl Schmittean “state of exception [that] operates by the suspension of legal norms . . . .– not the abolition or the changing of a law, but simply bracketing it” (126). Law is “incapable of movement . . . caught in an eternal dance of abjection and menace” (128). The suspension of law calls us to restart it and seek justice.
Bennett, who died in 2014, reinterprets an iconic image of Captain Cook claiming Australia for the British crown in colonial time. This has three temporalities, “the mystical foundation of authority . . . the deferral of the rule of law; . . . and the experience of law as a repetitive trauma” (157). Only learning of his part-Aboriginal identity in his teens, Bennett depicts this “primal scene” and “the question of white Australia’s colonial heritage, and its effect on Aboriginal lives, not as someone who belongs to two traditions, . . . but as an outsider to both of them” (159).
Finally, living artist Cauduro’s Supreme Court murals present us with ghostly time. They reflect crimes committed by police and others acting under the color of law. These seemingly hyper-real murals “blur[] the line between representation and reality” (212) and produce a kind of “aesthetic vertigo. . . a sense of disorientation, distrust, and distance that unsettles [them]” (213). The subjects are not the crimes per se, but their victims. What seem to be bodies are shadows, reflections, and semi-transparent wraiths; “ghosts trapped in [the walls] . . . cursed to repeat their torments, until such time as someone recognizes this injustice and atones for it” (235). Like the ghost of Hamlet’s father, they cry out “Remember me.”
Law and justice engage in a dance macabre, a dance all too often leading to death. Although each of the eras Manderson explores has its own tempo and rhythm, they are unified by the fact that law and justice are always out of step. Justice dances a beat before or after law. Justice, like Eurydice, always escapes our embrace. According to Manderson, this is not an empirical observation but a logical necessity. The “relationship” between law and justice is a fundamental non-relation. Positive law is a brute fact that exists here and now. Justice, in contrast, is not a fact, but an act; in Jacques Lacan’s terms, it does not exist. As such, it is always already lost in the past, or has not yet occurred. The inability to capture justice in the present is illustrated by the images that Manderson chooses. Just as justice escapes the law, all attempts to portray justice fail to some extent. Injustice—the inability of law to capture justice—is an example of what Lacanian theory identifies as the sexual impasse.
One lesson Manderson draws from the failure of law is that each one of us is guilty of its injustice and bears personal responsibility to set it right it by creating justice. Space does not permit me to go into more than one example of how Manderson draws this lesson. Governor Arthur’s Proclamation to the Aboriginal People can be seen as the least self-aware of the art works Manderson discusses. The crudely drawn placard, copied using an early reproduction technology and distributed throughout Tasmania, depicts racial harmony. It consists of four rows: At top is a frieze of a black and white man embracing while their children hold hands and their wives caress each other’s babies. Below this, an Aboriginal chief accompanied by his followers clasps hands with the Governor accompanied by his entourage. In the last two rows, a white man is hanged for killing a black man, and a black man is hanged for killing a white man. This racial harmony sharply contrasted with the official genocidal policy imposed by Arthur that eventually led to the elimination of all full-blood Aborigines from the island (89–90). But Manderson argues an examination of Arthur’s personal papers shows that he was not a cynical hypocrite; he was a complex, ambivalent man who sincerely believed in this vision of social justice, but his vision is utopian (90). This means justice and equality will come about only in some infinitely delayed future if and when Aborigines adopt British customs and, in effect, cease being Aboriginal (88–89). Tellingly, in the frieze of brotherly love that forms the top of the proclamation, the Aborigines have abandoned their traditional loincloths, and are dressed identically with their English doppelgangers. As Manderson notes, even the men’s pet dogs are identical (88). In the meantime, harsh law must be enforced in the name of order. “This is the utopian logic of not-yet that justifies a counter-legality, an exceptional violence, by a temporal sleight of hand” (92).
The danger of utopian time is that it can justify any evil in the name of the good. Utopia is imaginary in both the colloquial and Lacanian senses. It is a Lacanian “masculine” strategy that protects us from confronting the incompleteness of the symbolic order and the failure of the law to achieve justice. The Utopian pretends that the law could be and will be complete someday. Justice, however, requires the Lacanian “feminine” position that we jettison our self-satisfying fantasies of perfection and act now. In this sense, “the Proclamation does not treat martial law as an exception to the rule of law, but on the contrary as an aspect of it” (90). Consequently, although Manderson is remarkably empathetic in his treatment, ultimately he cannot forgive Arthur. More unfortunately, Manderson cannot forgive his own country, as this utopian logic continues to be used to justify unjust treatment of Aborigines under a claim of temporary emergency (93–101).
In Danse Macabre, Manderson refuses to concede the supposed separation of law and morality. He seethes at the injustices, particularly the historical and contemporary treatment of indigenous people and refugees. Nevertheless, this is not a depressing read, nor a hectoring screed. Manderson is surprisingly empathetic to those he criticizes. His is not a bleak vision without hope. His condemnation of the fact of injustice reflects an implicit faith in the possibility of justice. Perhaps Manderson is so harsh in his judgment of Arthur because, at first blush, there seems to be a similarity between the utopian view of justice delayed into the future and Manderson’s recognition that justice escapes the present. They are, in fact, opposite—mirror images. The former is an excuse for not acting now, while the latter is a demand that one do so.