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[12-8-06] Law, Metaphysics, and the New Iconoclasm Richard K. Sherwin Professor of Law Director, Visual Persuasion Project We have been told many times since the dawn of the modern era that we are living in a post-metaphysical age.[1] As Gianni Vattimo recently put it, we are all on our way to becoming “accomplished nihilists.”[2] When Vattimo uses the word ‘nihilist’, he has in mind Nietzsche’s sense of the term: meaning, roughly, that what we call ‘truth’ is akin to a mobile army of metaphors.[3] In Vattimo’s view, and in the view of many social constructivists[4], the positivist model of scientific knowledge has increasingly given way to Nietzsche’s model of rhetoric.[5] Simply stated, postmodern truth is, at bottom, an aesthetic experience. As Clifford Geertz once wrote, we live in webs of meaning that are of our own making.[6] Every culture has its own way of imagining the real. No matter how deep you go, according to this view, it’s constructions all the way down. Fundamentalists[7] in a sense may also be described as ‘nihilists’, but their claim is the opposite of the constructivists’. In the their effort to eradicate the impurity of constructed truths[8], which we witness in iconoclastic acts of destruction directed at the idolatrous icon, the false idol, the dead statue[9], fundamentalists have expressed the felt wish to empty the world of all man-made simulacra, all human constructions or mediations. In the purified world, they believe, the transcendent truth will shine forth in all its glory. In my scholarly research and writing over the last two decades[10], I have identified intellectually with the constructivist / rhetorical community. To be honest, I still do. And yet, the limits of the constructivist perspective are increasingly coming into view. Aesthetics isolated from some grounding in the ethical offers no protection against, and might even invite, a sense of law as being rooted in no more than subjective preferences, or perhaps the will to power alone.[11] The latter development is reminiscent of Walter Benjamin’s invocation, using Carl Schmitt’s phrase, of a perpetual state of emergency.[12] It is what happens when the morality of law, or let us say the law of law, which is Justice, collapses into two closely interwoven agents: power and fear. The one thrives on the other. Positivism, instrumentalism, and the ideology of the marketplace lack the normative resources to fend off the specter of nihilism and the political and legal ascendancy of the will to power. In a word, they simply cannot do justice to Justice. That challenge, I believe, requires metaphysical insight.[13] One of the underlying premises of my recent work on the practice, theory, and teaching of law in the digital age, is that significant changes in key communication technologies have given rise to significant changes both in the legal mind and the legal culture.[14] This is not simply a matter of how inherited meaning-making tools help us to make sense of (as well as to construct and sustain) the world around us, including the nomos (the world of law) in which we live.[15] It is also a matter of understanding the rhetorical norms that we engage when we exercise one set of communication tools as opposed to another.[16] For example, an audio-visual story on the screen engages a different code of truth, and a different measure of expressive force, than a story told in words alone.[17] When a new set of communication tools begins to challenge the dominance of another set, the nature, function, and even the efficacy of mediation becomes troubled.[18] We may crave novelty, but we tend to grow uneasy when we look at mediation rather than through it, as if it weren’t there at all.[19] We prefer truths that seem transparent. Unlike the Japanese Bunraku player[20], the Western puppeteer stays out of view, and tries his best to keep the puppet’s strings hidden.21]
Figure 1 The Japanese Bunraku player in full view We’ve been having trouble lately hiding the strings attached to our truth claims. And the confusion between truth and illusion that plays out on the screen has made many people uneasy.[22] This sense of uneasiness is now invading the courtroom together with the computers and electronic monitors that have proliferated wherever law is being practiced in the As a consequence, we are being driven to ask: when are the images that we see on the screen credible, and when are we being ‘taken in’? When is ‘seeing believing’, and when are our eyes deceiving us?[23] Deep rhetorical clashes regarding how best to represent (or mediate) the real, are unsettling on many levels. They invite confusion regarding how a particular sign should be read. And they raise anxieties about how, or whether, we can make sense of the world at all. Under certain conditions, rhetorical clashes of this kind may breed iconoclastic impulses, for when commonplace certainties are shaken, the urge to restore stability grows strong.[24] If a competing medium of representation cannot effectively assimilate (or be assimilated into) a pre-existing medium, (in other words, if remediation fails[25]), a war of mediations may break out. Iconoclasm is the word we use to describe such a war.[26] Of course, iconoclasm involves more than the clash of disparate mediations. It also reflects a deep rift regarding the source and legitimacy of conflicting truth claims about the nature of reality itself. The French sociologist Emile Durkheim once wrote that our value ideals cannot survive if they are not periodically revived.[27] Along similar lines, I think iconoclasm expresses an urgent, deep-seated impulse to revive core values in the face of what is perceived by the iconoclast as a severe threat. We see this impulse at work in the historic outbreak of violence toward what some have come to regard as the idolatrous image or icon. This occurred, for example, during the Byzantine era in the 8th century, and at the time of the Protestant Reformation in For the iconoclast, idolatrous or illusory images and icons act as an impediment to the experience of higher or transcendent truths. False idols fool the unwary into treating what their eyes see as the real thing. In so doing, deceptive signs lead people away form true reality which, the iconoclast declares, lies elsewhere. For the iconoclast, true reality is hidden, but accessible by recourse to invisible signs which can be perceived by an inner eye, the eye of the soul. I will refer to that higher source of invisible truth as ‘second order reality.’ According to the iconoclast, the dead idol of the secular, sensate world, like the sensual spectacle of religious pomp and ceremony, must be overcome, smashed and cast down, if need be, to make way for second order reality to be known as such.[28] When significant shifts in communication technology coincide with deep-seated political, philosophical, and cultural conflicts, conditions are ripe for renewed iconoclastic outbursts. For example, the iconoclastic impulse during the European Protestant Reformation marked a shift in the dominant medium of communication from words in the company of images (the ornate realm of religious ceremonies and spectacles) to the invisible realm of the sacred word in prayer. The Protestant iconoclasts in Today, we are witnessing the outbreak of similarly powerful iconoclastic impulses. Consider, for example, n the Taliban in n Islamic fundamentalists in Then there are the iconoclasts who practice closer to home. I have in mind here neo-Marxist social critics, particularly of the Frankfurt The commercial world has been making steady advances on Warhol’s vision – albeit for a different purpose. Today, mass marketing thrives on commodifying the self. Consider the ads: “Just do it” [with a pair of Nikes]. “Coke is it” – and presumably when you drink a bottle, you have ‘It’ too.[34] In short, according to the Marxist iconoclasts, illusory meanings derive from the consumer’s act of incorporating the commodity’s brand into the subject’s sense of self. You are the [corporate] logo that you take on, or take in. Through the triumph of magical, mimetic immanence “I am what I have.” And today, the ads tell us, we can have it all.[35] Consuming acquires a fetishistic quality by virtue of the consumer’s erotic investment in the commodity.[36] Eros is the glue that binds us to the object – like a truly secularized religion, in the ideology of consumption the religious bond (‘tying together’ being one of the etymological meanings of re-ligare), is sublimated downward or outward into the material domain of the transient and the banal rather than upward into the realm of the timeless transcendent. The Wachowski brothers, in their Matrix film trilogy, for all its cultural ‘hip-ness’, still end up with the same commercial message: digital utopia it would seem basically amounts to being whoever you desire based on possessing virtually anything you desire.[37] Perhaps this is precisely the secular danger that Protestant reformers feared: a wholly material, intensely sensual sacrament bereft of any transcendental reference whatsoever.[38] For Protestant reformers the material image must be purged to protect the sacred domain of the invisible transcendent. For Marxist reformers, the fetishized commodity must cast aside for the sake of more authentic, creative labor. How to ensure that the process (of production) will not be trumped by the pleasures made possible by the product still remains somewhat obscure. We may also discern of late another form of iconoclasm that is active in contemporary society. Scholarly postmodern iconoclasts proclaim the crisis of representation, and the onslaught of “the image wars.”[39] As Bill Nichols archly states, “What counts as knowledge is not what it used to be.”[40] The late modern self has fragmented into multiple subjectivities[41] and the boundary between traditional categories of knowledge – reason and desire, truth and fiction, concept and experience – has grown increasingly blurred, perhaps to the vanishing point. Amid proliferating frameworks for meaning and interpretation, representation itself seems to be up for grabs. The “ambiguous truths” of media-spawned “pseudo-events” which Daniel Boorstin famously described over four decades ago[42] have blossomed into what Frederic Jameson has called the “derealization of the event”[43] and what Jean Baudrillard has referred to as “simulacra.”[44] To an ever increasing extent, we seem to be living among copies without originals. Indeed, with the advent of digital communication technologies and the Internet, as copies effortlessly spawn other copies the very notion of an original may soon dissolve into quaintness. In the meantime, however, during the current transitional period, the aura of the original, or its fragments, haunts the late modern (or as I prefer to call it, the neo-baroque) mind. It is this ghostly encounter that prompts our sense of derealization. In sum, for the postmodern iconoclast reality itself has become “the effect of the sign” in a world where signs no longer “refer to any sort of ‘reality’ or ‘referent’ or ‘signified’ whatsoever.”[45] Postmodern iconoclasm meets fundamentalist nihilism – without the latter’s faith in a second order reality. For the postmodern iconoclast there is no transcendental truth to rescue us from the chaos of human constructions or to overcome the crisis of representation.[46] To be sure this metaphysical anxiety can be felt outside the academy as well. In fact, contemporary popular culture is filled with the foreboding sense of how precarious is our grip on reality. We see this in films like The Truman Show (1998), Dark City (1998), The Matrix (1999), Being John Malkovich (1999), Memento (2000), Waking Life (2001) Vanilla Sky (2001), Adaptation (2002), Eternal Sunshine of a Beautiful Mind (2004), Mulholland Drive (2001), and Caché (2005) (to name only a few[47]). In these films, the distinction between truth and illusion, or between reality and fantasy, or between waking and sleeping, becomes intensely problematic. These cultural products – amid a host of other comparable signs – announce the advent in our time of the neo-baroque. “La vida es suéno,” the great Spanish baroque playwright Calderon tells us.[48] We are living in a dream world. Or, perhaps we are simply enmeshed in an artificial digital program, and what we call experience is but a coded series of endless simulacra.[49] Or perhaps, in an even more sinister vein, it’s all a vast conspiracy; someone is ‘doing it,’ as a character says in David Lynch’s Mulholland Drive[50]; perhaps it’s all a conspiracy orchestrated by the unconscious.[51] Law has not been spared the impact of this cultural development. Many participants, and observers of the legal system have also experienced uneasiness with the semioticians’ wisdom that “it’s all signs.”[52] Their fear seems to be that embracing this constructivist insight will undercut confidence in the capacity of legal proceedings (paradigmatically, trials) to yield provable truths about the world.[53] An unbridgeable gap between what legal decision makers believe they need to know and what, on reflection, they seem able to know is for many a cause for real concern. The common thread running through all of these postmodern variations is a fundamental distrust of our collective representations of the order of things. Prick the surface of reality and it fractures into countless pieces, transporting us into a world of dancing shadows, an endless labyrinth, a vast network of ruins. In this respect, I believe that we are now living in the age of the new baroque. Spectacles proliferate, while deeper anxieties roil beneath the surface of appearances. The concern to re-establish threatened meanings coincides with baroque culture’s obsession with allegories and symbolic forms. If surfaces cannot be trusted, if we are bathed in shadows, perhaps we may find new meaning by penetrating more deeply into the darkness.
Figure 2 Baroque shadows: Rembrandt, “Philosopher in Meditation” (1632);
Figure 3 Caravaggio, “Death of the Virgin” (1601-1606) Metaphysical meaning cries out from this hidden depth, this invisible source. Only by looking beyond the finite constructions of everyday discourse and practice might we discern traces of the infinite, that inexhaustible source of meaning that will not be materially or for that matter discursively contained.[54] That infinite source – be it ‘deconstruction’ or ‘Justice’ (which Derrida treats as one and the same[55]), or the face of the Other (which is Levinas’s measure of Justice[56]), or the unrepresentable Nothing of the empty image (the Protestant trope for the invisible living image and source of law[57]) – whatever it is that lay in secret beneath the spectacle of dancing forms, it is that hidden source for which metaphysical anxiety longs. Finite form ultimately points beyond itself, toward an unspeakable Nothing.[58] As Schlegel wrote, “It can never be seized because the mere imposition of form deforms it.”[59] That deformity, or one might say, that barocco, (which is Portuguese for ‘deformed pearl’), takes us to the very heart of the baroque.[60]
Figure 4 Bernini’s Throne of Saint Peter (1657-1666)
Figure 5 Bernini's The Baldacchino (1624) [right] Today, as in the baroque era of the 17th century, we are once again experiencing the deformity of forms. There is a heightened sense of inhabiting a universe of representations that seems to turn the urge for real world knowledge back upon itself, as if in an endless regression, like some spectacular baroque tapestry or infinite arabesque endlessly folding in upon itself.[61] This vertiginous sense of a lack of grounding has intensified in the digital age. Digital technologies allow the pictures and words from which meanings are composed to be seamlessly modified and recombined in any fashion whatsoever, while the Internet allows practically anyone, anywhere, to disseminate meanings just about everywhere.[62] The Enlightenment-era insistence upon essentialist foundations (whether exemplified by Locke’s empiricism, Kant’s rational categories, or other totalizing epistemologies) is being challenged by digital experience, which has helped to inspire an alternative model of knowledge and reality as a centerless and constantly morphing network of virtual connections.[63] This de-centered, incessantly flowing web of information provides an apt symbol of the new baroque culture in which we are living today.[64] We are obsessed, as were those who lived in earlier baroque times, with the endless proliferation of forms as mere projections, shadows of the real, what Baudrillard calls ‘simulacra,’ specters of virtual reality. There is a discrete form of anxiety that comes with such radical contingency and de-centering fragmentation. It derives from our feared incapacity to hold onto meaning; to keep our sense of self and social meaning intact. We can hear baroque anxiety whispering in our ear: what if beneath the surface of proliferating form, beneath the spectacle of production, there lies: Nothing? What if it is only a great shadow play, a collective dream?[65] From Guy Debord’s Society of the Spectacle, to John Trow’s Within the Context of No Context, to Jean Baudrillard’s popular writings on visual simulacra, which also played a role in the Wachowsky brothers’ influential 1999 film, The Matrix, this repeated theme, that we are living in a dream world of illusory images – of simulacra resting on simulacra – attests to the double-edged potency of the image in our time. On the one hand, we understand that images help us to construct our world. But on the other hand, we wonder: can images be trusted?[66] Must we break through the web of screen-based illusions in order to penetrate to the realm of the really real? Given the tightly controlled realities disseminated by embedded journalists, with images of war on radar and TV screens projected straight from governmental centers of command and control, it is hardly surprising to come across Baudrillard’s recent title: The Gulf War Did Not Take Place.[67] It is not that there was no war; it’s only that we didn’t see it. What we saw instead, says Baudrillard, was a “masquerade of information” and “the prostitution of the image.”[68] And yet, on the other hand, when we see images of the horrors of Abu Ghraib prison in And so we are caught in the paradox of the image: torn between belief and disbelief, enmeshed in what historian of science Bruno Latour calls iconoclash.[71] We love the image and we hate it; we need the image and we fear it. What does the image mean? What are we seeing?
Figure 6 Bruno Latour's Iconoclash: What does the image tell us? Are these vandals in a destructive frenzy? Or firemen smashing plate glass casing to save the famous ‘shroud of
Figure 7 Maurizio Cattelan’s ‘Pope John-Paul II being struck to the ground by a meteor’ (1999)
Figure 8 Andres Serrano’s ‘Piss Christ’ (1987)] [right] Is this sacrilege? Or do they embody new ways of evoking the humble truths of human vulnerability and suffering? Law, too, is being gripped by the effects of iconoclash. On an everyday level in legal practice, decision makers today must discern which among the images they see projected in court justify belief.[73] But there is a deeper impact as well that needs to be addressed. Law’s iconoclash recapitulates other culture-wide forms of expression. On the one hand, new technologies of visual mass media amplify our craving for, and our expectation that, reality can be instantly and transparently communicated. On the other hand, the epistemological naiveté of this expectation has never been greater. As Latour writes: “Accurate facts are hard to come by, and the harder they are, the more they entail some costly equipment, a larger set of mediations, more deliberate proofs.”[74] Ambiguity and complexity feed the anti-rhetorical impulse that has long dogged Western culture.[75] In fact, iconoclasm and the anti-rhetorical impulse share a good deal in common. Both seek to escape the grip of ambiguity and interpretive openness by attacking their source: by capturing and assimilating a competing medium of representation.[76]
Figure 9 Remediation: transposing one [textual or televisual] medium within another
Figure 10 Remediation: Lara Croft, Tomb Raider [Angolina Jolie] – from video game to film (2001) Iconoclasm also seeks to escape ambiguity by assailing it head on, iconoclastically – which is to say, by actively seeking to rid the world of useless fictions, fanciful metaphors, and other figurative forms. Consider in this regard Bentham’s almost obsessive commitment to weeding out metaphors from legislative language.[77] Or consider Baudrillard’s insistence that truth has been lost in “the desert of the real,” amid the endless parade of simulacra.[78] Even here, in the pantheon of postmodernism, the positivist’s impulse is still at work. For Bentham it was the impulse to pin meaning down once and for all, to hold it still.[79] For Baudrillard, it is positivism by negation, the postmodern elegy regarding modern truth’s demise. The common thread is plain: as ambiguity grows, so too does the anti-rhetorical reaction. We may crave the simplicity of positivist definitions, empirical quantifications, or naïve realism toward the ‘transparency’ of the image on the screen, but the elusiveness of incontrovertible facts today requires, as Latour notes, a different sort of eloquence. A neo-baroque world calls for a neo-baroque epistemology: “more indirect, distorted, inconclusive,” as Latour puts it.[80] It also requires a response to a characteristic baroque anxiety, which I have referred to as metaphysical anxiety, for it echoes a deep-seated fear of a pervasive, underlying Nothingness. Metaphysical anxiety wonders aloud whether all that remains of this contingent and fragmented world will have to be flushed away, apocalyptically evacuated, to use Walter Benjamin’s term[81], before something ‘truer’, more essential, can take its place. We witness this urge to purify the world through destructive means in neo-fundamentalist movements, such as al Qaida[82], and in other, perhaps more localized, cults such as the Aum Shinrikyo cult that attacked the My argument up to this point may be distilled into the following inter-related claims: (1) First, with law’s visualization comes iconoclash: should we (can we) place our trust in images? Tensions between old and new mediations of reality generate a heightened awareness of the rhetorical (or ‘constitutive’) nature and function of mediation and of the clashing aesthetic and epistemological assumptions that underpin different kinds of mediations. (2) Second, iconoclash may give rise to heightened iconoclastic impulses: these impulses harbor a strong anti-rhetorical component. They express a wish to destroy mediation for the sake of getting at the unvarnished truth: naked facts, Reality itself. But if second order reality is not mediated, if it is not even susceptible to mediation, how can we hope to know, much less communicate its meaning? And if first order reality is all there is, just the endless flatlands of material forms and digital flows, how do we anchor the endless proliferation of these equally fungible aesthetic representations in some discourse of truth? (3) Third, overcoming iconoclash requires aesthetic clarification as well as metaphysical resolve: we need to attain a new understanding of proof and persuasion in the digital age. But we also need to clarify the way we distinguish a source of meaning from the aesthetic means of its mediation. In a word, without metaphysics, epistemological and ontological anxiety will persist. We need benchmarks – a new baroque aesthetic (“a new eloquence”) – to express a new baroque epistemology (a new understanding of digital mind and culture). And yet, even with these new benchmarks in hand, the proliferation of aesthetic forms without ethical guidance will remain problematic, for they will not lead to metaphysical resolve. If the clash among competing truth claims is not resolved, iconoclash has revolutionary potential. We have seen this kind of thing before. For example, in the seventeenth century, belief in the divine right of kings was shattered by an iconoclastic repudiation of that belief’s metaphysical underpinning.[85] The common law then took on the corona of metaphysical legitimacy – what By displacing the image, the iconoclasts of the Reformation assimilated the spiritual jurisdiction and its courts of conscience to the Crown.[87] The new regime was to be consummated not in the spectral image but rather in the static stability of the printed word. And further on, when the king’s transcendental (second order) reality gave way to nominalist beliefs, this opened the way to new forms of political and legal discourse, and new political and legal institutions – together with new normative self-justifications. We witness this transformative drama in Hobbes’ Leviathan. In Hobbes’ scientific view, the rationalization of fear becomes the logical basis for totalizing the authority of the Sovereign - together with the Sovereign’s will to legislate.[88] The metaphysics of natural law thus gives way to a wholly secular ‘positive law’. Out of the ashes of the feudal concept of the transcendent, manifesting the sovereign right of kings, the secular modern state was born.[89] As these historical references may suggest, my claim is that we have arrived at a critical juncture that shares a number of striking similarities to the baroque era in In a word, today we are confronting the iconoclash of the digital neo-baroque. In 1600, Giordano Bruno died at the stake for blasphemously theorizing an asymmetrical proliferation of infinite worlds. Today, we call Bruno’s vision the Internet. With the Protestant Reformation the realm of the sacred contracted from mimetic, visual ceremonies supplemented by the living word (“This bread is Christ’s body, this wine is His blood”) to the interior realm of individual prayer. The living word trumped the visual image.[90]
Figure 11 Edward VI and the Pope; or, Allegories of the Reformation (unknown artists) [c. 1568-1571] (National Portrait Gallery, In modern times, the realm of the sacred (e.g., natural reason and natural law) has contracted even further leaving an even more expansive secular domain for positive law to operate in. Modern jurisprudential thought reflects this trend. Natural law and ethics, as the touchstone of social and political life, have given way to instrumental reason, economics, and the rational calculation of subjective interests and preferences measured by pleasure and pain, the maximization of individual wealth, or some other calculus of ‘maximized individual satisfaction.’[91] Jurgen Habermas has proposed a paradigm of law to replace the liberal and welfare model. He calls it the model of ‘communicative action.’[92] This model, he says, “no longer favors a particular ideal of society, a particular vision of the good life or even a particular political option.”[93] This sounds a lot like Phillip Bobbitt’s “market state” model, where the state’s sole raison d’etre is to maximize economic opportunity.[94] In short, politics has been “uncoupled from ethics.” As Habermas put it, we can only “hope” people will orient themselves to the common good, as they see it.[95] Hence the underlying concern that drives this project, which can be expressed by the query: Are we losing the very capacity to articulate irreducible values in modern, secular discourse? Today, the modern nation-state is threatened on numerous fronts, from without and from within. The moral impoverishment of positivist jurisprudence and the incapacity of instrumental reason to cope with the nature of the crisis serve as an impetus to explore new sources of normative renewal. According to Isaiah To paraphrase Kafka, modern law remains valid, but there seems to be no mythic narrative left for law to police.[97] The hell that Grant Gilmore envisioned, namely: a world in which there would be nothing but law[98], bears striking resemblance to Gersholm Scholem’s reading of Kafka’s parable, “Before the Law.”[99] Commenting on the forsaken status of revelation in the modern era, Scholem said that today the law asserts itself, it has validity, but it lacks significance.[100] The baroque labyrinth of law’s institutions, like the bureaucratic world depicted in Kafka’s writings, ramifies law’s presence everywhere. I believe there is a kinship in this respect between Kafka’s evocation of validity without significance and the leveling effect of Bruno’s metaphysical interpretation of the Copernican system.[101] For Bruno, the transcendent realm of the divine has collapsed into the material world; and as goes the divinity, so goes the king, God’s representative on earth.[102] In Bruno’s view, there are no longer any privileged points in the universe; the same infinite driving spirit pervades everything. Except that in the modern era, starting with Hobbes and Machiavelli, that transcendental spirit devolved into the secular mechanics and strategies of power in a political world of human design. With Foucault, we witnessed the devolution of the transcendent proceed further into the microphysics of disciplinary power within a metonymic system of economic exchange. Power could now be taken as a right that could be possessed, transferred, or alienated just like any other commodity.[103] Today, little is left of the royal power, the king’s right that once metaphysically authorized western law. Ours is the dispensation of nominalism and the secular market. Like the characters in Kafka’s The Castle[104], where sovereign authority is no more than a rumor, we too have been cut off. The door opening to the transcendent source of law’s legitimation appears to have been shut tight.[105] Exiled from a living nomos, “the ‘state of emergency’ in which we live is not the exception but the rule.”[106] These words, penned by Walter Benjamin in 1940, carry an ominous familiarity today. In the Under present circumstances, it is becoming increasingly difficult to sustain fundamental liberal ideas such as Rawls’s notion of “a fair system of cooperation between citizens regarded as free and equal.”[112] How do we find support for this intuitive assertion? That is a question to which positivism, instrumental rationality, and the ideology of the market place can offer no fruitful response. To the extent that law is more than command, more than obedience to rules, to the extent that law seeks legitimacy in a nomos, a living reality of shared normative beliefs, there may be no escaping the ‘second order’ domain of metaphysics. Born and bred in the Eros of logos, metaphysics drives the quest for legitimating mythic narratives, over-determined symbols, and transcendent values.[113] In this respect, I believe At the time of the early modern English common law tradition, around the sixteenth century, these myths played out in public ceremony and rites. The same erotic binding power of law could be discerned in art, poetry, music, and dance: cultural forces that “humanize the human” in the institutionalization of the social.[116] The emblematic images of early modern law betoken the invisible and unspoken, a mysterious reality that reaches us only indirectly, if at all. Their message addresses more than the body’s capacity for pleasure and pain – that Hobbesian register for law’s legitimation. The early modern emblem, like some of the moving emblems that we see today on contemporary screens, points beyond the visible surface of reality. There is no direct path to this anagogic truth. One must work one’s way as through a maze, or a labyrinth. This is a crucial and recurrent trope of the baroque. In baroque culture the labyrinth of form is self-consciously discerned and depicted. We see this in Velasquez’s monumental painting, Las Meninas, in which the subjectless subject of the painting has become the act of representation itself.
Figure 12 Diego Velasquez, Las Meninas (1656) Here the viewer’s gaze and the artist’s commingle, and in that dynamic exchange of vantage points the artifice of the painterly craft seems to become the chief focus of the painting. It is a strange convergence of the baroque and the postmodern, where we look at looking, as the unseen subject’s image bounces from the surface of the rear wall mirror to the surface of the painting itself. This intensified kind of baroque self-reflexivity is a commonplace today. We see it in the endless play of digital simulation, (consider the dream world of The Matrix), and in the destabilized flux of simulacra, (as in Michel Gondry’s and Charlie Kaufman’s Eternal Sunshine of the Spotless Mind, where reality is endlessly being built up and torn down again in memories gained and lost). Thus we return to one of the core themes of this essay: namely, the renewed significance of the baroque for our time. We live amid spectacles and shadows, but there are signs of a metaphysical truth, a second order reality that may lead beyond simulacra and illusion. The hidden poetic structure of law (the Eros of law’s logos) reveals desire deflected against itself. This recursive process opens up a social imaginary in which an ethics of care, the soul’s living response to the other, may be enacted. Such a response points to a hidden foundation, a mythic core that is repressed by the commodified images of positive law’s unreflexive, outward gaze. Behind what John Noonan once referred to as the mask of the law lies its hidden, ethical foundation: the repressed poetics of Justice.[117] Today, the associative, connotative, affective discourse of the visual image on the screen speaks of commodified Eros, but it also speaks, if we let it, of something of immeasurably greater significance. The associative, affective logic of visual images help us to escape the disembodied logic of instrumental reasoning. When the flesh of the image (what ethnographic film maker David MacDougal calls the “materiality” of the image[118]) arouses and transforms the viewer’s heart and soul in this way it invokes the Eros of law’s logos. When desire bends toward sublimated care for the other, it invokes law’s hidden source, which is Justice. Unlike classical contract theory, or law as the command of the sovereign, the traditional origin stories for law, law metaphysically conceived begins with the ethics of obligation. In the beginning, ethics turns away from abstract theory. Its origin lies closer to hand.[119] Ethics originates with the neighbor, the other who is near by. The primary ethical query asks: what does our neighbor demand of us? |
