Legal Aesthesis : Affect,Space and Encounter

Aesthetics and Aesthesis

As a philosophical discipline, aesthetics was first named and elaborated by the 18^th-century German philosopher Alexander Baumgarten and, whilst questions of defining the beautiful and the distinct power of art – particularly poetry – are some of his central concerns, aesthetics in this early formulation evokes a much broader canvas than we normally associate with the term. Baumgarten’s delimitation of the discipline returns us to its most ancient meaning: aesthetics (derived from aesthetikos and aisthesthai) refers to the conditions of sensory perception. ¹ For Baumgarten, aesthetics is presented as a form of knowledge pertaining to the ‘lower faculties’ – that is, the senses – that run in parallel to reason. In this sense, the aesthetic is primarily concerned with the body: the affective and felt reality of a sensible subject. As Terry Eagleton puts it, aesthetics refers to ‘the whole of our sensate life together – the business of affections and aversions, of how the world strikes the body on its sensory surfaces, of that which takes root in the gaze and the guts and all that arises from our most banal, biological insertion in to the world’. ² Aesthetics, in this sense, becomes a matter of the interestedness, engagement and attunement of the somatic and affective registers. As Eagleton suggests, modern aesthetics emerges in the 18^th century as a kind of ‘primitive proto-materialism’ ³ that took form as a distinct register of knowledge, crucial to the mediation and control of social life.

This account of aesthetics has largely been eclipsed, following a Kantian inheritance that has confined aesthetics to a specialist domain within philosophy, primarily concerned with an avowedly rational understanding of the beautiful. Via Baumgarten, Eagleton approaches aesthetics as the study of how the visive, affective and sensuous dimensions are animated through a given configuration of power relations that order, distribute and enframe the world. We can describe this as a matter of aesthesis, differentiating it from aesthetics (in stricto sensu), which is concerned with questions of representation, appearance, integrity, harmony, fit, form and style. Attention to aesthetics in legal studies has tended to privilege the latter understanding of the aesthetic at an expense of the former. There are three strands to this kind of analysis. The first examines the way in which law and justice are represented within a range of cultural resources, including textual, visual and performative arts. Such studies often turn to the aesthetic in order to supplement or critique the limitations of the procedurally, rhetorically and imaginatively constrained legal world. ⁴ A second approach seeks to examine how the aesthetic is mobilised by legal institutions in order to variously buttress, dissimulate or legitimise the violence done in the name of the law. Studies of courtroom architecture ⁵ ; the emblems, icons and other visual accoutrements that accompany legal power ⁶ ; and the sartorial and imagistic presentation of lawyers and judges ⁷ all identify the ways in which the law draws on aesthetic forces in addition to discursive, textual, hermeneutic and material power in order to achieve its desired effects. A third approach returns to the more orthodox sites and sources of the law but reads them through methodologies developed within the arts and humanities. This has been most fully developed within law and literature scholarship which reads judgements, constitutions and legislation as aesthetic texts and seeks to with draw out the rhetorical, narratological and stylistics devices that the law mobilises. ⁸

The starting premise of this collection of essays is that these existing approaches do not exhaust the scope of legal aesthetics. By returning to the philosophical and etymological roots of the term, we can develop a distinctive account of aesthetics as a matter of sensory perception in the broadest terms that is primarily interested in the material, affective and somatic dimensions of lived experience. To study aesthesis, in the sense developed in the essays that follow, is to study the ways in which sensate subjects are immersed within social space, rendered sensitive or insensitive to a given set of phenomena by and through an assemblage of social relations. This approach displaces the centrality of aesthetic objects – like literary or legal texts, images, films and so on – and focuses instead on the power relations that shape a subject’s capacity to enframe social life in a particular way, whereby some things are privileged and other are either consigned to an indistinct ‘background’ or else left entirely ‘off stage’. The specific contribution of legal aesthesis in this context is to attend to the work that law does in shaping the conditions of sensory perception, and the work that sensory perception does in shaping law’s power.

Affect/Space/Encounter

In addressing this challenge, all the essays that follow rely – to a greater or lesser extent – on the language and conceptual resources of ‘affect’. Studies of affect have a long and rich history but can be broadly understood to refer to those forces that exceed or work alongside reason-giving and conscious knowledge. ⁹ To be subject to an ‘affective’ force is to be moved in a way that might be described as pre-conscious, non-linguistic, non-representational or non-narratological. In this way, affect works at the outer limits of a semantic field – unlike ‘emotions’, which are more readily represented, narrated and defined. Such a focus on affect within the study of aesthetics emphasises three related issues. First, it privileges the body as a site of intensity. Affects are felt in the stomach, on the skin, on the tip of one’s tongue, before they can be linguistically coded or narrated; indeed, even before they can be visualised or represented. In this way, studies of affect examine the material and sensate body’s complex and overlapping perceptive faculties and the unique capacity of subjects to render themselves – or otherwise be rendered – sensitive to a given set of forces, objects and relations. Second, studies of affect seek to draw attention to the background ordering of social life by examining how agentic capacities are very often shaped by forces that are prior to or simply other than those proffered by reason-giving subjects. An attention to affective life aims to draw out the ways in which latent and unarticulated anxieties, hopes, fears, loves and hates mobilise subjects in ways that orthodox accounts of agency fail to describe. The following essays seek to examine the background affective ordering of lawful and social relations. Third, a focus on affect foregrounds the significance of the material ordering of social space, emphasising the role that non-human elements play in creating distinct affects and atmospheres. In this way, the essays collected here are more closely aligned with critical legal geography than conventional law and aesthetics scholarship. Close attention to the spatial dynamics of streets, supermarkets, hospitals and cities helps us draw out an account of everyday legal aesthesis.

If we find law in a murky backdrop to the social domain – that is, in often occluded affects, encounters and atmospheres – then the scholarly challenge becomes one of establishing ‘contrast’ or ‘luminance’. In the visual field, contrast is what allows an object to stand out from its background. If the problem is law’s tendency to fade into the background, and thereby dissimulate itself, then the question becomes how to establish the conditions of luminance. In seeking to achieve such luminance, the essays that follow all ‘bracket’ or ‘suspend’ those aspects of our prevailing legal scenography that most legal scholarship – even of a critical and interdisciplinary disposition – tends to study in an effort to turn our gaze to the often taken-for-granted affective architecture on which legal power relies.

In Alison Young’s paper, formal and juridified accounts of citizenship give way to a focus on the material and affective ‘urban encounters’ that define city-living. This draws attention to the multiple subject-positions that citizens occupy as they navigate the mobilities, threats, fears and joys of the contemporary urban environment. For Young, the question of the urban encounter necessitates grappling with a range of affective forces that interrupt, exceed and ‘haunt’ the legal imaginary. This approach seeks to trace new forms of belonging and identity within the everyday rhythms and encounters of the city. Illan rua Wall adopts a similar approach by describing the law’s largely unquestioned but pervasive ‘conditioning’ of social interactions. Wall emphasises how the law is deeply entwinned with the production of what Kathleen Stewart has called ‘ordinary affects’ that precondition the tenor and form of everyday life. By examining this ‘affective legality’, Wall challenges the predominant focus of legal study on exceptional or spectacular moments of judgement, eruption, confrontation or injustice by urging instead an attention to law’s power to shape our everyday assumptions and predilections at pre-conscious and affective registers. Daniel Matthews examines how dominant conceptualisations of law are deeply implicated in the production of aesthetics that fails to render subjects sensitive to the various challenges associated with environmental harm. Highlighting the way in which modern legal scholarship has tended to overlook the unique force and meaning of obligations – favouring instead to focus on the complexities and contestations that attach to rights – Matthews explores how a focus on obligation can itself entail a shift away from aesthetics (where order, harmony and integrity are the predominant values) towards an account of aesthesis, in which subjects become attuned at a somatic and affective level to the human and non-human assemblages to which we owe urgent attention in the context our Anthropocenic present.

Whilst maintaining the same lens and methodological orientation, the final two essays shift the focus of the collection: Olivia Barr works on a public mural in Redfern (Sydney, Australia) that depicts the long and enduring history of Aboriginal Australians in the area; and Mairead Enright and Tina Kinsella examine an experimental theatre project in which participants were encouraged to reassess the narratives of progress and freedom that were privileged within the recent centennial celebrations of Irish independence. Though both essays have aesthetic objects at their heart, the primary focus is on the unique ways in which these artworks are effective in material and affective terms. Barr, for instance, understands the Redfern mural as a materialised and spatialised legal artefact through which the complexities of a pluralistic legal order, which includes both Aboriginal and settler law, can be examined. In Barr’s analysis, the affective force of the mural can only be grasped through an attention to its materiality: the flaking paint and faded bricks reveal not simply a meteorological weathering, but also an erosion of legal responsibilities that are essential to the affective charge that surrounds the mural and the encounters that it engenders. Similarly, Enright and Kineslla trace how the Touching Contract theatre project creates an ‘affectosphere’ in which participants are confronted with a radically re-materialised law within the bodies of the audience members and actors themselves. In this way, Enright and Kinsella draw out how women’s bodies constitute the background ordering on which Irish legal history has relied, offering a radically reconfigured legal scenography to that constructed within predominant legal and political narratives.