THE FORCE OF MEANING

Introduction

Law has a dual capacity in the field of culture: it enables the formation of subjects and of cultural practices, and it constrains those very formations. The tensions created by that paradox are instrumental in constituting the political field. Cultural Studies of Law move beyond textual analysis by attending to the networks of social practices through which law is constitutive of culture just as culture and cultural analyses shape, resist and interrogate legal regulation, exception and norms. Law is a cultural product, but its operations, venues and discourses are unique, as is its coercive power. We take it as given that the law must act to efface both its own rhetoricity and its interestedness in order to function as law, and in this way stands in awkward relation to culture, and to history. A Cultural Studies of Law is anodyne, therefore, in seeking not just to make the law accountable but to show that law might be taken as the preeminent object of culture – preeminent precisely because of its claims to neutrality and objectivity.

Law's intersections with disciplines from the Humanities and Social Sciences were well established even before the so-called ‘cultural turn’. Legal anthropology, beginning with Malinowski's work on systems of reciprocity and authority in Crime and Custom in a Savage Society (1926), established the grounds of legal pluralism and, in examining the tensions between formal and informal systems of law, opened up the study of law (what it is, how it works and upon what) to embrace a wider cultural field. The development of the concerns of legal anthropology with normative systems and their operation in the 1980s was carried forward by feminist and critical legal scholars in increasingly complex theoretical analyses of law's presumptive space ‘above’ culture, a thinking through of law's relation to culture that proposed the dependences of the former in the concept of interlegality: ‘the intersubjective or phenomenological dimension of legal pluralism’ (de Sousa Santos 2002, p. 97). At the same time, interdisciplinary law and history scholars were unpicking the quite different ways in which the disciplinary practices of law and history understood and ‘legislated’ the past – differences consequential for peoples figured as incompetent of exercising sovereign rights; whose present claims (for land, cultural independence, language, etc.) continue in the spectral realm of exclusion (e.g. Fitzpatrick (2001) on imperialism and the semantics of ‘discovery’).

In terms of a discussion of Law and Cultural Studies, and the basis for a Cultural Studies of Law, it is the Critical Legal Studies ‘movement’ that is of most significance here. As David Saunders suggests, the ‘Leftist’ reformist ambit of Critical Legal Studies (CLS) was two-fold. It sought to re-invent law from the inside out with an excoriating critique of legal education and its curricula, and from the outside in by re-imagining the precepts and claims of law in socio-political terms: making law account for itself (Saunders 2007, p. 80) by casting light upon its hidden workings and operations of meaning that order, occlude and exclude. In Saunders’ view of the movement, this ‘critical unblocking’ (Saunders 2007, p. 83) produced more sound than fury. The intellectual energy of the movement dispersed over the 20 years following its founding in the Wisconsin–Madison Conference in 1977, partly through a process of the narrowing and migration of its concerns into other fields of scholarship; and partly due to the success of the CLS intervention itself. The critical concerns of the movement have inflected the direction of legal education, even if only modestly, and so too have the attacks of CLS on legal positivism had lasting effect: indeed, effects deducible from the concerns of the work of the scholars collected here.

Following the theoretical turn of CLS, and on the heels of the law and literature movement's initiation of the ‘textualist’ turn, scholars across both Cultural Studies and Law have focused their attention on mapping or re-orienting the intersections between their disciplines. Thanks to the growth in the scholarly field of law and literature, and the vigour of critical legal theory and feminist legal studies, the relationship of law to culture continues to receive attention, but arguably there is more to be made of those small but instructive words yoking the disciplines. The phrase Cultural Studies of Law suggests that the animating critical concerns of Cultural Studies over the last 20 years – that is, the symbolic, material, economic, and political practices and power relations that are inscribed in everyday life – should be brought to bear upon the assembly of practices, procedures, sites, interactions and agents of law. Such inquiry has emerged through special editions of journals such as this one, and also through key monographs and edited collections which include, but are not limited to, Robert Post's (1991) Law and the order of culture; Steve Redhead's (1995) Unpopular Cultures: The Birth of Law and Popular Culture; Paul W. Kahn's (1999) The Cultural Study of Law: Reconstructing Legal Scholarship; Austin Sarat and Thomas R. Kearns’ (1998) Law in the Domains of Culture; David Theo Goldberg et al.'s (2001) Between Law and Culture: Relocating Legal Studies; Austin Sarat and Jonathan Simon's (2003) Cultural Analysis, Cultural Studies, and the Law: Moving Beyond Legal Realism; Austin Sarat et al.'s (2010) edited collection Law and the Stranger and Austin Sarat's (2011) edited collection, Imagining Legality: Where Law Meets Popular Culture.

At the last century's turning, Austin Sarat and Thomas Kearns (1998, p. 10) identified the cultural lives of law as ‘located within the emergent crisis of representation as well as contemporary changes in the organization of symbols and the rhythms of symbolic construction’, determining that law and legal studies were late comers to Cultural Studies. From the late 1980s, scholars working in the arena of critical legal studies had turned their attention to the particular significance of law and culture (Chase 1986, 1989, 1994, Macauley 1987, Silbey 1992), and Coombe (2005) issued a prescient warning: ‘a Cultural Studies of Law’, she wrote, ‘will only emerge as a distinctive field of academic inquiry when scholars stop reifying law and start analyzing it as culture’ (2005, p. 36). Distinguished by neoliberalism as a dominant mode of governance and marred by the ‘culture wars’, the last decades of the twentieth century were in the USA (but also in the United Kingdom, Australia and – to a lesser degree – New Zealand) characterized by governmental policies, practices and legal regulation that have shaped everyday living. Neoliberal policies aimed at economic de-regulation, privatization and the reform of tax and labour laws to privilege corporate interests – a process that eroded the capacity to minister once strong welfare states and that weakened the impulse toward, and capacity for, reform in nascent welfare. This disobliging social and economic climate was to provide excellent fodder for the burgeoning Cultural Studies of Law. The shocks of the events of 9/11 altered the socio-cultural and political landscape in marked ways – ushering in an era of American legal exceptionalism, of state sanctioned racism and securitization with broad-ranging impacts on international relations.

This issue revolves around the leakiness of the jurisprudential and the legal in the field of culture. That is, a leakiness that is mirrored in the bleed between national and international law, and the migration of legal cultures, precepts, norms and models between both different – even distinctive – legal systems and cultural venues even more disparate. The contributions are less concerned with what William MacNeil (2007) nattily terms ‘pop law’, even where the object of critical scrutiny can be considered a popular cultural text. (After all, two of the three popular cultural texts discussed by the contributors have long since been dislodged from their cultural moment; so too have the audiences to which they speak changed, as have the general circumstances of a viewers’ likely encounter with the work.)1 The articles collected in this special issue aim instead at a re-contextualization of law and its effects. While the quotidian (‘a-legal’ or ‘otherwise’ [MacNeil, 155; 156]) is not the direct focus of their inquiry, the conditions of what might be termed ‘law's everyday life’ are nevertheless examined, and at some depth. Our understanding of a ‘Cultural Studies of Law’ follows Joseph Pugliese's lead (2005). While a study of the unhappy relationship between magistrates and their gowns of office, or of the rite of passage of the getting of chambers would be valuable offerings to one kind of a Cultural Studies of Law, the contributors here mobilize that term differently. This special issue is pre-eminently occupied with questions of doctrine, procedure and principle; with, if you like, the operability or inoperability of systems of justice in given cultural conditions.

The two leading papers in this issue come from outstanding interdisciplinary scholars, scholars who have been at the forefront of the ‘cultural turn’ of critical legal studies. Desmond Manderson considers the vulnerabilities of a dynamic, pluralist vision of law, where the ‘memory traces’ of past legal forms and conceptualizations of justice haunt contemporary law and culture. Using the long-running primetime television drama 24 as the fulcrum of his analysis, Manderson examines the show's textual demonstration of proofs of the ‘efficacy of torture’ but, more importantly, the ways in which its screen logic invokes and revivifies earlier forms of ‘moral jurisprudence’ and ‘legal jurisprudence’ where true justice, and law's capacity to act, derive from a secret, almost numinous, source, one that cannot be questioned or scrutinized and the lights of which must be taken by faith. It is here worth quoting Manderson as he warns:

What law ‘is’ is not a brute fact about the world; it is necessarily a consequence of how we represent it. By presenting an image of law in which communication is depicted as weakness, and trust is synonymous with secrecy, cultural representations themselves constitute justice as unresponsive, non-reciprocal, and external to discourse. Such an approach undermines the relevance and power of a pluralist approach to law itself. (Manderson forthcoming)

Manderson's analysis of the longue duree of cultural representations of law provides a sobering cautionary. But the question of the complexity and resilience of cultural representations of law is taken up in quite another way by Austin Sarat and Martha Umphrey in the article following. Legal pluralism assumes the co-existence of different forms of law and justice. The ‘memory traces’ of earlier forms may lie heavy on the current conscience of law, but so too are cultural representations of law future oriented, not only do they recall the past – they call the future into being. Sarat and Umphrey trace this prospective power of law – its generative possibilities – by unpacking the figuring of fatherhood and the role of father in the classic film version of To Kill a Mockingbird. Atticus Finch's vocation as a lawyer is discursively tied to his role as father: his power and agency in both contexts being almost entirely prospective. His principled defense of Robinson – the African-American man accused of raping a white woman – is optimistic and doomed to failure. But Finch's arguments are less pitched at the jury before him – a jury in lockstep with its times, and irretrievably biased – than at a future when all men are treated as equal before the law. Likewise, Atticus's strategies of fathering – many of which are ineffectual – point themselves beyond all present difficulty, in the process enacting that generational contract ‘sacrificing the present for a better future’. The idealistic forward lookingness of Atticus Finch is eloquently contrasted with the film's other pivotal representation of fatherhood: that of Bob Ewell, the dirt-poor farmer who brings the accusation of his daughter's rape. Sarat and Umphrey artfully demonstrate the subtle ways in which Ewell – the walking personification of all that's worst about Southern law and honor – is backward looking. This pointed reading of To Kill a Mockingbird models the logic of ‘redemptive constitutionalism’ (Robert Cover, quoted in Sarat and Umphrey). Here cultural representations of law not only represent a future orientation of law to ‘the good’ but actually constitute that address. They call the future into being.

It is significant that three of the seven contributors to this issue have chosen to address the use of torture by US military and intelligence personnel, its routinization in a cultural moment where extraordinary measures have become an ordinary mode of operation. What Joseph Pugliese elsewhere describes as the ‘twinned strategies of violence and effacement in law’ (2005, p. 4) can be seen operating in Manderson's article on the television drama 24 (where the torture of suspects – always efficacious for extracting good and timely intelligence – works strophe/antistrophe with the busywork of investigation); in Peter Hutchings’ article on the transformation of John Rambo from tortured vagrant to avenging patriot [torturer] in First Blood; and in Pugliese's own investigation of the workings of a torture continuum and ‘redaction’ as the blacking out of the sensitive sections of documents, but also of those facilities where torture occurs. All three articles deal with a paradoxical situation where the instrumentality of torture is self-evident but where, in actuality, its instruments operate outside of law.

Peter Hutchings treats this paradox through a discussion of the contorted – and compelling – logics of torture, as exemplified by the circumlocutions of the infamous Bybee memo and the strategic evolution of contemporary practices of torture: practices reverse engineered from training programmes designed to train US troops and operatives to resist torture into procedures for interrogation that operationalized torture. That evolution is an act of willful invention – misguided and oddly fanciful – given what must necessarily be forgotten in the transmutation of a defense against torture into a manual for its practice: the question of the efficacy of torture as an instrument for extracting reliable intelligence information. Survival, Evasion, Resistance, Escape (SERE) training was originally a response to KGB, The Soviet Committee for State Security interrogation methods that aimed less at intelligence gathering than at the extraction of false confession. What was wanted was an image of truth, not the truth itself. An image of truth shaped not for secret advantage over the enemy but for a war of propaganda and moral one-upmanship (during the Korean war, sunken eyed and sleepless US Air force pilots in the hands of their captors publicly confessing to having used ‘germ bombs’ on civilian targets, confessions not only false but patently florid). As Hutchings goes on to show those discursive antecedents for torture, however, buried beneath a legal logic of necessity, sovereign power and a state of ‘permanent exception’ keep coming into view: notably in the sudden shocking appearance of torture as entertainment in the Abu Ghraib prison photos.

So too are the conditions by which torture comes into view treated by Joseph Pugliese in his examination of the torture and death of Gul Rahman in a Central Intelligence Agency (CIA) secret prison in Afghanistan. Pugliese traces the relations of legal and governmental power that were instrumental in establishing US regimes of torture and death, elegantly mapping the intersecting modes of instrumental and gratuitous violence that operate across multiple CIA prison sites, the collective effects of what he terms a ‘torture continuum’. Linking this US torture continuum to a complex genealogy that precedes the events of 9/11, Pugliese argues that current practices of torture are also inscribed with histories of colonial and racist violence. In his careful reading of the sanctioning of a range of torture practices implemented by US officials, Pugliese examines the juridical and socio-cultural effects when defendants claim impunity from prosecution by claiming to have deployed these practices without specific intent to cause severe pain or to kill. He also examines the subsequent physical, ontological and juridical dimensions enabling the dehumanization of Gul Rahman, and examines the medicalized instrumentalization of torture wherein ‘the body of the torture victim is kept alive only in order to render it viable for the extortion of information’. Through his reading of redacted legal texts, an analogy is drawn between such texts and the reading of maps, or ‘articulating topographies of ruin’.

The contribution of Cristyn Davies here turns the direction of enquiry in the issue toward a focus on gender, sexuality and the law. Pre 9/11 America was defined by a series of regulations aimed at placing limits on what might be culturally produced, disseminated or consumed – a phenomenon that has continued into this century, although now also marked by the contemporary forces of securitization, counterterrorism and nationalism (Puar 2007). History tells us that moral entrepreneurs turn to the law as if to put culture in its place. Davies examines the production of normative subjectivity and the construction of ‘appropriate’ and exportable knowledge through cultural policy and legal regulation during the culture wars in the USA. Focusing on a 1998 US Supreme Court case, National Endowment for the Arts v. Finley, Davies is concerned with the construction and application of decency offered in the case, arguing that cultural policy is a technique of governmentality and a means through which citizenship and national identity is formed and constrained, and self-governance inculcated. For Davies, law is a key technology through which governance and subjectivity is produced, constituted and regulated. She argues that policies such as the ‘decency’ clause depend on a series of coercive technologies and practices, which ensure that only particular kinds of individuals are understood as embodying norms that are constitutive of citizen-subjects that the state desires. Davies concludes that the introduction of the ‘decency’ clause may be understood, in part, as a response to a perceived failure in the arts community of individuals to effectively self-regulate and embody standard socio-cultural norms.

The final articles in the issue return to law's capacity to take account of violence, but carry through the emphasis of Davies on contestation around gender and sexuality. Sitting squarely on the indefinite article linking culture and law is the body. The recent vigour of work theorizing the impact of hate speech recognizes this, for instance, by developing a tradition of legal thought that responds to the blunt – and the pointed – force of words. Hate speech presupposes a direct link between the invocation to act and resulting injury, for it conjures the very body it reviles, doing so with the object of the punishment or destruction of that body. Laws to regulate hate speech and bring hate crime into legal and cultural view are the result of hard work of activists and critical race scholars and, more recently, of critical legal studies of the institution of gender. The contributions of Rana Jaleel and John Erni both register that inheritance, but in quite different ways.

Rana Jaleel's article examines a process of cultural and legal borrowing: the impact of the US feminist cultures war of the 1980s on international law, despite the contests of the culture wars being in the first instance bound by time and place, and by institution and jurisdiction. Jaleel demonstrates the evolution of a concept of rape as an instrument of genocide and ethnic cleansing – rape as a collective not an individual injury. While skirmishes in the feminist culture wars around sex work and pornography ultimately failed in asserting the universality of women as a vulnerable class and category, it is precisely that formulation that is the animating logic of the response of international criminal law to war rape. Jaleel's genealogy tracks the progress of a cultural and political intervention that has had significant unforeseen consequences, not only for the workings of international law, but – more significantly – for the ways in which it is now possible to perpetrate, suffer and witness to sexual violence.

John Erni's contribution to this issue looks at the law's failure to rise to the challenge of recent cultural shifts in gender practices and identities by a comparative analysis of the legal response in the USA and Hong Kong to the incarceration of transgendered inmates – a minority population so routinely and systematically exposed to harm in US prisons that redress has been sought on Eighth Amendment grounds. Erni suggests that the blindness of US Federal and State law to the vulnerability of transgendered prisoners is related to the law's refusal to look – or inability to see – the gendering of sexual violence in prisons more generally. Unlike the situation that Jaleel addresses, where activist legal scholars find the discursive wherewithal to reconceptualize rape as a collective injury, there is no possibility – no preconditions, discursively – for the ‘sexual terrorism’ Erni addresses to come into cultural view and under legal purview. Leveraging off an analysis of the legal response to rape in US prisons, and the failure of arguments about ‘cruel and unusual punishment’ in respect to sexualized violence against male to female transgendered prisoners assigned to men's prisons, Erni turns to a discussion of the still more profound institutional and cultural blindness to transgendered subjects in Hong Kong, where transgender people ‘are almost entirely obscured from social existence’. The inability of law to categorically account for transgendered subjects in Hong Kong is complicated by more thoroughgoing cultural and institutional silences.

Each of the contributions in this issue critically examines sites of legal contestation and the performative workings of law in contemporary culture. In the pages following, the interests of legal scholars and cultural theorists meet to address the ‘complex cultural borrowings’ and ‘importations of new meanings’ and ‘points of resistance’ (Sarat and Kearns 1998, p. 10) that mark the productive relation of law and culture. And so doing, these contributions add to a growing, and significant, interdisciplinary scholarship.

Notes on contributors

Sara L. Knox is Associate Professor in the School of Humanities and Communication Arts at the University of Western Sydney, and a member of the Writing and Society Research Group. She is author of Murder: a Tale of Modern American Life (Duke University Press, 1998). Her ongoing scholarly research is divided between concern with death, violence and representation and the altogether more upbeat subject of contemporary cultures of reading. Her most recent work includes a chapter on ‘Random School Shootings, Teen Culture and the Representation of Violence’, in Rethinking School Violence: Theory, Gender, Context (2012) and her contribution to a collection of essays on audiobook culture, Audiobooks, Literature and Sound Studies (2011). Her novel – The Orphan Gunner (2007) – won the 2009 Asher Literary Prize and was short-listed for the Commonwealth Writer's Prize and for the Age Book of the Year.

Cristyn Davies is a Research Associate at The University of Sydney. She has worked in research across the tertiary and private sectors at the intersections of Cultural Studies, Humanities and the Social Sciences. Her doctoral research investigates the impact of the culture wars in the USA on cultural policy, cultural production and gendered and sexual citizenship. Her areas of expertise include gendered and sexual subjectivities; cultural policy, regulation and moral panic; neoliberalism and governmentality; constructions of childhood and youth and narrative and (heritage and new) media. She has authored and co-authored articles in journals including: Sexualities, Cultural Studies Review, Contemporary Issues in Early Childhood and Australian Feminist Studies. She is co-editor of: Rethinking School Violence: Theory, Gender, Context, Palgrave, Macmillan (2012), and Queer and Subjugated Knowledges: Generating Subversive Imaginaries, Bentham Publishers (2012), which is available on Amazon Kindle. She has collaborated with academics, writers, performance artists and digital and new media artists on a range of projects.

Notes

1. ‘To Kill a Mockingbird’ is a case in point here. Both the novel and the film adaptation continue to be influential texts, but the nature of their influence has changed: a change at least partly due to canonization by curricula. But it is precisely this changing of the cultural horizon of a text already idealistically oriented to an imagined legal and cultural future (specifically, the future of race relations in the USA) that is the focus of Austin Sarat and Martha Umphrey's contribution to this issue.