Legal geography 1: Court materiality

I Introduction

On Tuesday, 30 May 2017, Jeremy Joseph Christian entered the Multnomah County Courtroom in the US state of Oregon, charged with two counts of aggravated murder. Christian – known to US authorities as a white supremacist – was alleged to have fatally stabbed two men, Taliesin Myrddin Namkai-Meche and Rick Best, when they intervened after Christian had shouted ethnic and religious abuse at two women on a commuter train at the Hollywood transit station in Portland. As Christian entered the secure dock in the Multnomah courtroom, complete with bullet-proof glass and two security officials, he continued his anti-Muslim tirade, shouting: ‘Death to the enemies of America. Leave this country if you hate our freedom. Death to Antifa! You call it terrorism, I call it patriotism! You hear me? Die’ (Chavez, 2017). As he spoke these words a commotion could be picked up on courtroom microphones; around 30 anti-fascist protesters, following the proceedings on mobile phone livestreams, could be heard shouting in the adjacent corridors.

There is a complex spatiality at work in the Multnomah courtroom, as there is in any place of legal adjudication. The arrangement of bodies, materials and sites is notably reconfigured by the presence of a series of unseen infrastructures: the technology that facilitates court filming, the wi-fi or 4G network that permits livestream viewing, the recording of ambient noise in the wider court building, and the silencing effect of the securitized plastic dock. We could add here a series of other forces that shape the proceedings: the intimate bodily proximity of the security guards and the defendant, varying dress and comportment amongst court participants, and the design and symbolism of the courtroom. Perhaps most significantly, the vocal articulations themselves – the violence of extremist nationalism and cries of protestors’ anger – gesture at an atmosphere of intolerance, exclusion, and disruption. Linguistic rules mean that we understand these circuits of information, vocal expression, materials and affect as different orders of object – different ‘things’ – but in the moment of Christian’s outburst it is their play together which produces the trial hearing.

In these three progress reports, I will explore legal geography through an examination of scholarly work on trial spaces. The past three years has seen the production of three field-defining progress reports by David Delaney (2015, 2016a, 2016b) examining the nature of legal geography, its emergence, strengths and future possibilities. This work has advanced our understanding of the role and potential of geographical concepts in understanding legal systems, codes and jurisdictions. The reviews I am presenting are attempting to examine the relationship between law and space from a different vantage point: to think through how geographical ideas and concepts can inform understandings of trials. Rather than a review of progress in an already-defined intellectual field, I am interested in bringing together an interdisciplinary set of works – drawn from both recent and more established scholarship – with the aim of tracing the future pathways for work on the geography of trials, while advancing our understandings of the spatial attributes of the production of law.

There are two points of departure for such an endeavour, and neither is situated comfortably within a defined field of ‘legal geography’. The first is a concern with the ways in which scholars – from a range of intellectual positions both within and beyond the borders of geography – have explored the spatial attributes of trial processes, whether the architecture of courtrooms (Graham, 2003; Mulcahy, 2011; Rosenbloom, 1997), the implications of new technologies (Licoppe et al., 2013; Rowden, 2013), the performance and comportment of trial participants (Felman, 2002; Hyde, 1997; Hughes, 2015), or the distancing effects of legal rubric (Blomley, 2014, 2015). These approaches speak to the situatedness of legal practice and, in different ways, look to emphasize the significance of place, embodiment and performance in the accomplishment of law. The second is an engagement with work on materiality – often conducted within the field of cultural geography – that has sought to deepen our understanding of how reality is encountered, understood and theorized, challenging established binaries through which the world is apprehended – for example, nature/society, material/immaterial, or human/non-human (Anderson and Wylie, 2009; Dittmer, 2014; Tolia-Kelly, 2013; Whatmore, 2006). In doing so, this work has posed a challenge to enlightenment conceptions of agency and consciousness, replacing the image of the rational human actor detached from material surroundings with a materialist and relational ontology that foregrounds the networks within which human and non-human agents are entwined. Taking theoretical cues from actor-network and assemblage theories, this diverse body of scholarship has sought to explore the world as a series of ‘sociomaterial practices that are diffuse, tangled and contingent’ (Anderson and McFarlane, 2011: 125).

With these two points of departure in mind, these three reports will each consider a different aspect of the situated nature of trials: their architecture, objects and embodiment. Across all three I will explore how theoretical approaches to materiality can enrich understandings of the spatiality of trials, focusing on the architecture of court buildings, the circulation of things in court spaces and the implications of increasingly ‘dematerialized’ trial processes through increased use of information technology. This focus builds on a growing body of work in legal geography that has sought to inflect understandings of legal spaces with a more theoretically attuned understanding of materiality (see, for example, Braverman, 2009; Pruitt, 2013). It is also important to emphasize that these reports are not an attempt to ‘rematerialize’ law, as if nostalgic for a mythical past when things really were more as they seem (Anderson and Wylie, 2009). If anything, quite the opposite. Following Latham and McCormack (2004: 703), the purpose of a focus on materiality is – perhaps perversely – to highlight the immaterial ‘not as something that is defined in opposition to the material, but as that which gives it an expressive life and liveliness independent of the human subject’. Geographical work on materiality has a number of theoretical origins, and by drawing together disparate work on architecture, evidence and technology I am not suggesting that there is a theoretical consensus at work in this piece. Instead, I will look to the advances that have stemmed from an engagement with Latour’s (2005, 2010) actor-network theory, Deleuzean transcendental/immanent materialism, and the phenomenology of Merleau-Ponty (1996). While diverse, we can trace shared traits across this work: perhaps most significantly, these approaches share a concern with the world that does not elevate human agency and the human subject as the sole focus for scholarly concern. Instead, practices, institutions and events are understood as assemblages of human and non-human actors, in a constant and turbulent process of becoming (Anderson and Wylie, 2009). Matter then becomes a complex object of study, never stable but always in process, where imagined stability and categorization are expressions of human desire for permanence and singularity, at odds with the changes in state, decay, and interaction with the elements experienced by all bodies and things (see Halewood, 2005). Consequently, a materialist approach demands a challenge to the (often cherished) distinction between lively and inert matter, in doing so illuminating the ‘vitality intrinsic to materiality, […] absolving matter from its long history of attachment to automatism or mechanism’ (Bennett, 2009: 3).

II Court materiality

No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not simply a system of rules to be observed, but a world in which we live. (Cover, 1983: 4–5)

Others have mounted a more sustained challenge to separation between law and environment though retaining the rubric of the nomos. David Delaney (2004, 2010, 2014) has provided a new vocabulary for understanding the relationship between law and space through his concept of the nomosphere, referring to ‘the cultural–material environs that are constituted by the reciprocal materialization of the legal and the legal signification of the sociospatial’ (Delaney, 2004: 851). By foregrounding the production of spatiotemporal orders through enduring normative frameworks, the concept of the nomosphere has provoked work in as varied contexts as the moralities of market exchange in Morocco (Turner, 2013) and the production of licit narcotics in Tasmania (Williams, 2013). In each of these works, reciprocation is key, gesturing at the mutual constitution of law and materiality. Delaney (2014: 246) subsequently talks of nomic settings where particular constellations of statutes, rules and regulations interplay to constitute place. In so doing he is returning to some of the more foundational understandings of the nomos as set out in the work of Schmitt (2003 [1950]), who identifies the act of enclosure as a foundational legal moment, elevating ‘land appropriation as the primeval act in founding law’ (Schmitt, [2003 [1950]: 45). This focus is perhaps no surprise and precedes the wide body of legal geographical work exploring property law, enclosure and the commons (Blomley, 2003; Jeffrey et al., 2012). But what is crucial here is the very physicality to the act of line drawing, not as an abstract concept that frames imaginations of inside and outside, but rather as a material process that embeds normative ideals of law and justice.

In her literary analysis of transitional justice, the legal philosopher Carrol Clarkson (2013) examines how the drawing of lines stabilizes certain ideals of law, while also producing specific nomic settings (though she does not use the term). Clarkson interprets such practices, following Rancière (2004), as aesthetic acts, ‘configurations of experience that create new modes of sense perception and induce novel forms of political subjectivity’ (Rancière, 2004: 9). ‘What interests me’, Clarkson explains, ‘is the context in which certain works, acts or encounters, by creating a new field of sensory perception, have the potential to bring about shifts in the way a community delineates itself in terms of what it perceives to be significant, or even noticeable at all’ (Clarkson, 2014: 3, original emphasis). This interplay between visual practices and legal process has been examined in depth by the Forensic Architecture research group, exploring aesthetics as more than simply the visual qualities of the material world, to examine instead ‘the sensory capacity of matter itself’ (Weizman, 2014: 14). Approaching aesthetics in these terms draws attention to the role of (amongst other things) colour, texture, screen resolution and graphic design in the presentation of courtroom evidence and the unfolding of law.

Beyond the presentation of evidence and the physicality of the legal process, the architecture of the court is itself an aesthetic act. In these terms Clarkson identifies the opening of the new South African court in Hillbrow, Johannesburg, in March 2004, placed on the site of the Old Fort, where many of the 156 treason trialists had been held in 1956 (Clarkson, 2014). The construction of the court building and its function as a site of adjudication stabilized the new post-apartheid administration, while commemorating injustices of the past. This symbolic function is consistent with a longer lineage of geographical and criminological work that has explored the visual function of both court rooms and court architectures. One of the conclusions of this work is that judicial buildings have always been monumental enactments of authority. For example, it is telling that Stonehenge, the Neolithic monument in southern England, was known in Cornish dialect as Merddin Embys, signifying the ‘fence of judgement’ (Mulcahy, 2011: 15, see also Bellott, 1922). These contemporary and historical examples underscore the significance of the visibility of judicial spaces, cohering with the importance granted to justice being seen to be done in the operation of new legal systems (Nagy, 2008).

But in embracing this work we must be wary not to imagine visual prominence erases ambiguity. Novelists have been particularly attuned to the uncertain aesthetics of law, producing accounts that have illuminated the unease and social dislocation produced through contact with legal spaces. Kafka’s (2014 [1925]) The Trial, perhaps the most celebrated example of this genre, traces the subjection of Josef K. to an inaccessible and uncertain legal authority to answer for unspecified crimes. Rather than a singular or comprehensible focus of authority, Kafka’s account conjures an image of a legal order ‘in which ignorance and confusion are pervasive, where law is unknowable but seemingly ubiquitous’ (Matthews, 2016: 238). This troubles a straightforward account of the monumental, or visual, basis of legal architecture, pointing to the fundamentally indecipherable and unseen qualities of authority. The writings of W. G. Sebald have done more than anyone to give voice to this sense of indecipherability, often drawing on the morphology of labyrinths to symbolize disorientation, loss and the inability to escape (see Baxter, 2013; Zilcosky, 2004). The figure of the labyrinth stalks Sebald’s (2001: 39) writing on legal space, for example where he describes the Palais de Justice in Brussels, Belgium’s primary court building, as ‘a huge pile of over seven thousand cubic metres contain[ing] corridors and stairways leading nowhere, and doorless rooms and halls where no one would set foot, empty spaces surrounded by walls and representing the innermost secret of sanctioned authority’. In this claustrophobic account, the reader is given the impression of a site of both monumental significance but also of bewildering proportions and design, both a visual spectacle but also an unseen, secret set of prerogatives.

Following Sebald, it can be suggested that not all aesthetic acts carry consolidating power, not all communicate an unambiguous story of the social. Research conducted in Rwanda and Bosnia and Herzegovina has illuminated the potentially divisive role of legal visibility in post-conflict environments. Barbara Oomen’s (2005) study of the Gacaca courts in Rwanda has traced the ways in which they have been presented as a local, visible and, therefore, participatory form of post-genocide justice. But Oomen’s research highlights how these purportedly local courts have served to embed certain forms of internationally-mediated justice and consolidate the power of particular local elites. ‘Justice is presented as a neutral, technocratic and universalistic enterprise’, Oomen (2005: 907) writes, ‘[but] it is actually deeply enmeshed in local politics’. In the case of Bosnia and Herzegovina (BiH), Jeffrey and Jakala (2014) examine the construction of the Court of Bosnia and Herzegovina, inaugurated in 2005 in Sarajevo. The court building was intended as a symbol of the new judicial system in BiH, as recent years had seen the replacement of the 1976 Yugoslav Legal Code with a new Criminal Procedure Code, part of which granted increased domestic responsibility for the prosecution of war criminals. The selection of the new court building, however, proved contentious, as it was formerly an army barracks for the Bosnian Government, and the site of alleged war crimes against Serb civilians. Consequently, as an aesthetic act this proved to embed established lines of social division rather than perform a unified communal imagination. The contestation over this building selection underscores the symbolic significance of courts and their centrality as nomic settings: establishing normative frameworks for social life.

These works provide an illustration of the role of the prominence of court buildings in shaping public perceptions of law. Alongside such contributions, the aesthetic and practical aspects of the internal organization of the courts, their circulation spaces, security arrangements and layout have proved the site of sustained analysis by architects, criminologists and socio-legal studies scholars. Much of this work centres on technical questions of how the organization of courtrooms can shape the outcome of trials, for example studying the impact of the securitization of the defendant’s dock on a jury’s perception of guilt or innocence (see Mulcahy, 2013; Rossner, 2016). There have also been in-depth studies of the segregation of the courtroom and court house, to explore how participation and observation are enabled and constrained through factors such as seating design, the height of raised platforms and the sightlines from public galleries (Rosenbloom, 1997). Perhaps unsurprisingly considering the theatrical nature of trials, others have been drawn to the dramaturgical language of Erving Goffman (1978) to think through the ‘front’ and ‘back’ stage of court space, marking how judicial comportment and deliberation vary based on physical location (Portillo et al., 2013).

While it is difficult to neatly categorize the epistemological approach of these varied works, they share a concern for the role of space in constituting subjectivity. This focus has drawn upon the social theory of Michel Foucault (1977), tracing the disciplinary function of court space as it organizes bodies and marshals the conduct of participants. Central to these mechanisms is the role of repetition of court room attributes in normalizing judgement and stabilizing legal identities within court spaces. Emblematic of this work is Linda Mulcahy’s (2011) historical study of the function of architecture in the establishment of the English court system, illuminating the micro-geographies of court space and their function in constituting power relations and stabilizing identity. Mulcahy (2011: 1) explores the exclusionary nature of court arrangements, observing that ‘[e]ach time a section of floor is raised, a barrier installed or a segregated circulation route added it has the potential to create insiders and outsiders; empowered and disempowered participants in a space ostensibly labelled “public” in which the intricacies of civil liberties and participatory democracy are played out’.

Adopting a Foucauldian approach facilitates an understanding of the dynamism of architecture, not as a static form but as a series of processes that enmesh the material, corporeal and affective. Reflecting this perspective, Jane M. Jacobs (2006: 11) advocates a rubric of the architectural world that centres on building events where a building ‘is always being “made” and “unmade”, always doing the work of holding together and pulling apart’ (see also Weizman, 2014, for an exploration of the continuous transformation of buildings). Taking this work seriously, we need to understand the aesthetic act not as a singular event, and neither is the nomic setting a stable backdrop. Instead, courts are constantly being reconstituted through the life of the building, itself an assemblage of architectural form, bodies and things (see also Dittmer, 2016). The work of Bruno Latour, and specifically his study of the workings of the Conseil d’État (2010), has been at the forefront of a more materialist understanding of the working of the legal edifice. Reflecting an actor-network approach, Latour is interested in the mechanisms through which the coherence and stability of law is achieved, focusing in particular on the circulation of human and non-human actants within the court building. Following his earlier studies of the laboratory and the associated production of scientific knowledge, Latour is interested in the mechanisms through which legal rationality is separated and elevated from other forms of discourse through material and embodied practice. ‘What makes a comparison between the world of science and law all the more interesting’, Latour (2004: 73) argues in an earlier essay, ‘is that both domains emphasize the virtues of a disinterested and unprejudiced approach, based on distance and precision, and in both domains participants speak esoteric languages and reason in carefully cultivated styles’. The task of the legal geographer is now to entwine this focus on the actor-networks of law with the materialist approach to the court as building event.

III Conclusion

This report opened with the outbursts by Jeremy Joseph Christian in Multnomah County Courtroom, their reception and the subsequent retorts, each pointing to the entanglement of bodies, infrastructures and objects within the contemporary court. This report is arguing that geographical work, in particular approaches that have sought to rethink the nature of materiality, provides a toolkit for considering the mechanisms through which law is productive of space and space shapes understandings of the legitimacy and purpose of law. One of the key achievements of law is its ability to produce stability, to perform a sense of legal spaces as timeless, ordered and rational, even as they are reworked, transformed and unsettled in practice. Court architecture is central to this achievement. To unsettle this accomplishment, we can turn to theoretical approaches derived from assemblage theory or actor-network theory in order to foreground the coherence of law as a relational achievement rather than a preordained truth (see Castree, 2002). Such a reappraisal necessarily returns attention to the question of agency and how it is distributed through the actants within the court. Perhaps this requires what Jacobs (2006: 13) refers to as a more ‘baroque sensibility’ that allows us to trace the complexity of the court process while not losing site of the forms of exclusion and expertise that shape participation and public understandings of justice. In more prosaic terms it forces us to think again about the nature of human presence within court spaces. Rather than the rigid imagination of ‘front’ and ‘back’ stage, a focus on materiality encourages a retheorization of the permeability of the building and the courtroom, enmeshed as bodies are within both visible and invisible technological, social and physical infrastructures. The court becomes ‘a place where a number of material and immaterial links meet in a node of relations, whose durability is both relative and negotiated’ (Jenkins, 2002: 232). I would argue that this is at the heart of the productive encounter between cultural geographies of materiality – in this case the building – and anthropological works on the making of law. In the following two progress reports I will trace how scholarship concerning the circulation and degradation of objects can assist our understanding of the places and temporalities of law.