NATHAN MOORE*

THE IMAGE OF LAW

Alison Young, Judging the Image: Art, Value, Law (London:Routledge, 2005), ISBN: 978-0-415-30184-8.

1. Introduction

Law’s relationship to the image has to date been dominated by aline of scholarship which finds its roots in the work of French jur-ist and psychoanalyst Pierre Legendre, in particular the essay trans-lated as �Introduction to the Theory of the Image: Narcissus andthe Other in the Mirror’.1 The most recent addition to this line ofscholarship is Alison Young’s book Judging the Image: Art, Value,Law.2 Young explores law’s relationship with the image through anumber of specific contexts, ranging through photography, graffiti,performance art, and memorials. However, it is her method ofinvestigation that should be initially foregrounded if one is toappreciate Young’s interrogation of law’s interaction with the im-age. In her opening chapter she sets out the theoretical frameworkfor the law/image relationship which then informs her more partic-ular, and even subjective, considerations in the rest of the book. Itis also this chapter that most explicitly links Young’s project to thescholarship derived from Legendre’s work.

There are (at least) two dimensions to this inheritance of lawand image scholarship: the first is concerned with a certain ambigu-ity or tension in the necessary use made of images by law; whilstthe second explores law’s relationship to aesthetics. I find both ofthese dimensions problematic, most of all the assumption that theimage is, in some sense, necessarily aesthetic, and that this aestheti-cism (also problematically) is understood as a question of represen-tation, as the representation of the unrepresentable, of the sublime.

* Thanks to Anne Bottomley1 In Peter Goodrich (ed.) Law and the Unconscious: A Legendre Reader,

P Goodrich, A Pottage & A Schutz (translators) (Basingstoke: MacMillan Press,1997), pp. 211–254.

2 (London: Routledge, 2005).

International Journal for the Semiotics of LawRevue Internationale de Semiotique Juridique (2007) 20: 353–362

DOI 10.1007/s11196-007-9051-3 � Springer 2007

What tends to be addressed is then not so much aesthetics and theimage, but rather representation as the foundation of both. Forthis reason, before turning to a closer examination of Judging theImage, I want to set out more clearly what I mean by these twodimensions, and why I think they are limiting of the scholarship inthis area.

2. Law and Image

Young’s opening chapter unsurprisingly references the work ofPeter Goodrich, as well as the influential collection Law and theImage, edited by Costas Douzinas and Lynda Nead.3 ReferencingDouzinas and Nead specifically, Young points out that the law hasan aversion to images, that the image is a pollutant of law’s self-image as unified and self-contained. Yet, precisely because law isnecessarily imaged as policing images while also operating throughthem, it acts repressively and misconstrues its own desire to repressas a desire for repression by its object: what it imagines as image.It might be thought, therefore, that the law only ever engages withthe image of itself, and this would be true but for the fact that theregulation of images has repercussions, as Young’s book shows.However, this is where the greatest caution is needed. (Postmodern)critical legal studies presents a seductive image of the law, whichenables a particular exercise in critique and, to an extent, makessuch exercise inevitable, by predicating an imaging of law as con-structed through a process of separation. This is well known, andDouzinas and Nead present it as a foundational story when theymake specific reference to Plato’s separation of law and the image.4

To therefore call for an encounter between law and the image,between that which Plato divides, nevertheless allows the field ofinvestigation to be defined by the law: the problem becomes one ofputting law on trial and disproving its claims to be free of theimage and, more broadly, the aesthetic. In such a process neitherterm escapes unscathed: the law is forced to admit its own inade-quacy; whilst the (aesthetic) image is equally forced to admit itsown out-law nature, the truth of its otherness to law. But because

3 (Chicago & London: University of Chicago Press, 1999).4 Supra at p. 4.

nathan moore354

of a necessary failure to �escape’ the law,5 the image remainscaught in the grip of the tragic, as something less than that which(postmodern) critical legal studies imagined it might, or could, be.What, we might then ask, is repressed by (postmodern) critical le-gal studies itself? Perhaps that the law is also not what we imag-ined it to be, that it is something �impure’ and contingent and that,furthermore, it revels in this condition, prizing it as the ground ofits very possibility, its exceptionality?

Here we touch on an uncomfortable possibility that (postmod-ern) critical legal studies has largely chosen to ignore, but which isevident in work by Badiou, Deleuze and Guattari and Hardt andNegri: that it was not resistance to power which thrived on thepostmodern, but rather all that such resistance put itself against:capital, state, law.6 For example, in the UK, one has only to con-sider the recent rise of anti-social behaviour as a programme ofexceptional and specific intervention, in response to the shortcom-ings of what Prime Minister Blair called �traditional’ law, to seethat law is rapidly becoming something else, quite different fromwhat seems to be presupposed of it.7

We might then ask: was law ever the way (postmodern) criticallegal studies imagined it to be? Or was this scholarship from thevery beginning seduced by the idea of a universal legal hegemony

5 Agamben’s work highlights the great difficulty of thinking the exception of law, ifthis means a thought �beyond’ the metaphysical voice of sovereign power (see HomoSacer, D. Heller-Roazen (translator), (Stanford: Stanford University Press, 1998)and Language and Death, K. E. Pinkus & M. Hardt (translators), (Minneapolis &

London: Minnesota University Press, 1991). In a related analysis, Deleuze describesthe interrelation of a philosophy with the non-philosophical, where the latter is thenecessarily presupposed, and perhaps even unthought, that enables a philosophical

thinking to occur. It is no coincidence that Deleuze terms this the ’image of thought’– see Gilles Deleuze Difference and Repetition, P. Patton (translator), (New York:Columbia University Press, 1994), Chapter Three.

6 A point which has also been understood by Peter Goodrich when he writes thatlegal scholars who drew inspiration form the postmodern did not go far enough(Peter Goodrich, �Barron’s Complaint: A Response to ‘‘Feminism, Aestheticism and

the Limits of Law’’’ Feminist Legal Studies 9, 2001, pp. 149–170) – certainly not, as itnow seems, as far as the law itself.

7 See Nathan Moore, ‘‘Icons of Control: Deleuze, Signs, Law’’, InternationalJournal for Semiotics of Law 20(1) 2007 and Anne Bottomley and Nathan Moore,�‘‘You Will Never Finish Paying’’: Contract and Regulation, Globalization and

Control’ New York University Review of Law and Social Change 31(3) 2007.

THE IMAGE OF LAW 355

requiring resistance?8 I raise this question (motivated by a readingof Law and the Image as a consequence of reading Judging theLaw) because both books reveal in their case studies that law wasalways intermixed with images9 – can we then pretend that the lawis hiding something? Hasn’t it always been out in the open thatlaw, despite what might be said by a Coke, for example, about thesovereign purity of law, that law in fact only ever deals with partic-ular problems, with specific cases: that is, with jurisprudence?10

Since Hobbes at least, has it not been the case that everyone knowsthe law to be unfounded?11 If so, it is not too much to suggest that(postmodern) critical legal studies has tended to repress its ownknowledge of law so as to become capable of knowing the law thatit desired.

This is suggested, for example, by both Douzinas’ and Good-rich’s contributions to the Law and the Image collection. Both offeradmirable analyses of specific situations in which law encountersthe image,12 but both extrapolate from this an over-determining�essence’ of law that operates via the repression of its own absence.Consequently, the space for critique (and the space of justice) isnot so much opened out as revealed, via psychoanalytical anddeconstructive techniques, as aporetic, feminine and transcendent.It is as if the authors repressed their own knowledge as to the al-ways problematic exercise of law (jurisprudence), and instead calledfor a generalised law that would best correspond to their respective

8 I don’t mean to arrogantly dismiss the entire venture of (postmodern) criticallegal studies as a failure, nor to deny the success and usefulness of its many struggles

to open law up to other disciplines and modes of knowledge. Rather, I ask what if,despite all of this, (postmodern) critical legal studies has also helped the law tobecome more intrusive, more arbitrary, more extensive – in short, less law like and

more regulatory?9 See also Peter Goodrich, Law in Courts of Love (London: Routledge, 1996),

particularly Chapter Four.10 See Gilles Deleuze, ‘‘Control and Becoming’’, in Gilles Deleuze, Negotiations,

M. Joughlin (translator), (New York: Columbia University Press, 1995). See further

in �Icons of Control’, supra n 7.11 See Michel Foucault, Society Must Be Defended, David Macey (translator),

(New York: Picador, 2003), pp. 93–99. Agamben shows how this awareness goes

back beyond Hobbes to the Sophists in Homo Sacer, supra n 5 at pp. 35–6.12 Douzinas studies the history of the legal icon, revealing the interdependence of

both iconophobia and iconophilia in �Prosopon and Antiprosopon’; Goodrichundertakes a genealogy of the empty page that distinguishes between the picture andthe image in �The Iconography of Nothing’. See Chapters Two and Four respec-

tively, supra n 3.

nathan moore356

methods and, in so doing, move much closer to the way in whichthe law operates than they might imagine. If so, they are in dangerof themselves becoming legislators.

It is worth briefly considering (despite the limited scope of thisreview), how another thought of the image might be worked out, inthe interests of experimentation.13 Studies on law and the imagehave been overdetermined by two things predominantly: the power-ful influence of Pierre Legendre; and the tendency to elide theimage with representation. For Legendre the image is understoodthrough the myth of Narcissus as testimony that the subject is split,and that what is thought in the image is absence. Linked to Hegel’sAufhebung, the image, as supreme relation to nothingness,14 putsthe subject in relation to the other which, from the perspective ofpsychoanalysis, is ultimately the Other as origin of both societyand law. What is at stake here is ‘‘Reason, or ... the principle oflife in and by representation.’’15

Contrast Legendre’s analysis of the Narcissus myth with that ofKristeva’s analysis in Tales of Love.16 One can discern in Kristeva’sreading a radically different approach to the image, in which whatis foregrounded is not reason, nor representation, but rather amour.Law, rather than simply being established, is thus called into ques-tion by a ‘‘Narcissian process’’ that understands the image not as arepresentation of nothingness, but as the image of an image.17 Inother words, before it is a representation, the image is affective.18

Moving away from the psychoanalytical register, we can say thatnothing exists except affectivity. The specificity of any given thing

13 I do not mean that neither critical legal studies, nor law, is experimental. Rather,it is a matter of refusing (as the best critical scholarship does) to allow the experi-ments to be done for us: ‘‘It’s jurisprudence, ultimately, that creates law, and we

mustn’t go on leaving this to judges. Writers ought to read law reports rather thanthe Civil Code.’’ Supra n 9 at p. 169.

14 This nothingness lies at the heart of both Douzinas’ and Goodrich’s contribu-

tions to Law and the Image.15 Supra n 1 at p. 240.16 (New York: Columbia University Press, 1987). See Part III.17 Supra at pp. 103–121.18 A point made particularly clear in Chapter One of Brian Massumi Parables for

the Virtual: Movement, Affect, Sensation (Durham & London: Duke University

Press, 2002). See also Leonard Lawlor The Challenge of Bergsonism (London & NewYork: Continuum, 2003) in which Bergson’s concept of the image is described assomething other than representation, being instead between the latter and the thing it

represents; pp. 9–10.

THE IMAGE OF LAW 357

is determined by its capacity to affect and to be affected: in otherwords, nothing exists beyond the universe of images so long as it isunderstood, following Bergson, that images and things in extensionare the same.19 For this reason, representation, although differingonly by degree, is nevertheless something less than the image.20

3. Law and Aesthetics

Once the image is considered as something more than representa-tion, it necessarily takes on an objective characteristic that hasimportant consequences for how it is to be related to aesthetics.The most significant is that the aesthetic remains inadequatelythought if it is understood as a matter of subjective experience.Specifically, it is Kant’s concept of the sublime21 that has provenparticularly influential given the necessary rejection of a beautywhich, even though experienced by the subject, ‘‘rightly lays claimto everyone’s assent.’’22 The sublime, as a quantity or force thatoverwhelms the subject’s imagination, is, in part, a ‘‘negative plea-sure’’, on account of such magnitudes, combined with a pleasurethat is ultimately moral in nature.23. In my opinion, work on law

19 See Chapter One of Lawlor, supra. It will be noted that I leave out here anyreference to the body, to follow a, perhaps, more Deleuzean line: see Gilles Deleuze,Cinema 1: The Movement-Image, H. Tomlinson & B. Habberjam (translators),

(London: The Athlone Press, 1992) at p. 58.20 Again, see Lawlor’s description in The Challenge of Bergsonism. More generally,

Ron Burnett’s study How Images Think (Cambridge, MA & London: MIT Press,2005), provides a useful reconceptualisation of how images function beyond, andeven as a challenge to, representation.

21 Young uses the word �abject’ to ‘‘[locate] that which we would rather not see, orreveal, or touch.’’ Supra n 2 at p. 12. While not equating the �abject’ with thepsychoanalytical �sublime’, Kristeva nevertheless recognises an important link

between them: ‘‘The abject is edged with the sublime. It is not the same moment onthe journey, but the same subject and speech bring them into being.’’ Julia Kristeva,Powers of Horror: An Essay on Abjection, L. S. Roudiez (translator), (New York:

Columbia University Press, 1982) at p. 11.22 Immanuel Kant Critique of Judgment, W. S. Pluhar (translator), (Indianapolis:

Hackett, 1987) at p. 31.23 Supra at p. 115. It is worth noting that the feeling of the sublime is also due

universal assent (p. 97), but the difference from the beautiful, at least in terms of its

current acceptability, is, perhaps, that it is not so directly legislative, and thus moreeasily absorbed into the postmodern insistence upon the aporetic nothingness con-stitutive of the subject (for a variation on this see Anne Barron �Feminism, Aesth-

icism and the Limits of Law’, Feminist Legal Studies, 2000, 8, pp. 275–317).

nathan moore358

and aesthetics fails to escape the moral dimension of the sublime ifit merely finds, in the aesthetic, a disturbance in the law indicativeof that which the law represses: the law of the law. If Agamben’sanalysis is right, and the Law and law are now elided in a sover-eignty that takes bare life as its object, the revelation of such asuperior law, through aesthetics, is not only no longer pertinent,but potentially dangerous in its mistaking.

Young cites Adam Gearey in seeking, by the bringing intoproximity of law and aesthetics, a revelation of law’s other truenature, of that which, through the image, it seeks to repress.However, to the extent that the aesthetic remains within the sub-jective horizon of the sublime, it remains within the law:24 thelaw, thoroughly postmodernised, takes the sensations and passionsof the subject as its primary focus and concern, grading and tab-ulating them in relation to its image of homo sacer; the pointbeing that the law is not disturbed by what disturbs it, but utilis-es it to extend its grip over life. Against this we should pursue apurely objective understanding of aesthetics such as that found(for example) in Deleuze and Guattari’s What is Philosophy? Theyunderstand aesthetics to be a matter of sensation, made up ofaffects and percepts that exist independently of those who experi-ence them: i.e. affective images.25 That aesthetics therefore has anethical dimension (as Simon O’ Sullivan notes, �the ethicoaesthet-ics of affect’26.) is apparent when Eric Alliez writes, in his com-mentary on What is Philosophy?, that the function of art is torender ‘‘Life sensible in its �zones of indeterminacy’’’.27

24 It could be argued that Gearey’s analysis, taking Nietzsche as its main inspi-

ration, escapes from Kant’s concept of the sublime. However, his reading ofNietzsche, and of the eternal return particularly, fails to escape from a subjectivismthat is best described as a type of dandyism. For example, one must bear the weightof a law that is too great in magnitude, but in such a manner that it is borne lightly –

do we not here re-encounter the pleasure of the supersensible and the will to truth,i.e. the law of the law? See Adam Gearey, Law and Aesthetics (Oxford & Portland:Hart, 2001), and, by way of contrast, Gilles Deleuze, Nietzsche and Philosophy, H.

Tomlinson (translator), (London: Athlone Press, 1986), particularly Chapter Two,and Keith Ansell-Pearson, Viroid Life: Perspectives on Nietzsche and the TranshumanCondition (London & New York: Routledge, 1997), particularly Chapter Two.

25 Again, it is useful to refer to Deleuze’s study of Nietzsche supra.26 Simon O’ Sullivan, Art Encounters Deleuze and Guattari: Thought Beyond

Representation (Basingstoke: Palgrave, 2006)27 Eric Alliez, The Signature of the World, E. R. Albert & A. Toscano (translators)

(New York & London: Continuum, 2004) at p. 69.

THE IMAGE OF LAW 359

In which case, what is the relation between law and aesthetics?To argue that aesthetics can help to reveal the other true nature oflaw can only make sense if the law is imagined as ‘‘detached, pas-sionless, thorough, impartial, rule based’’28 – but as I have sug-gested above, this is less (postmodern) law’s fantasy than it is aconstruction of an image sustained by (postmodern) critical legalstudies. If so, we must not simply look to the law of law, but mosturgently to the working through of cases – that is, to jurisprudence.

4. The Image of Judging

The strongest parts of Young’s book are the chapters focusing onparticular instances of law encountering aesthetic practice – partic-ularly when her analysis seems on the verge of escaping her owntheoretical framework.29 Equally, the weakest parts are the inter-chapter sections entitled �viewing (de)positions’ where the authorseeks ‘‘to emphasize the experience of looking, a prior state whichnecessarily antedates the critical moment and the distance of analy-sis.’’30 The problem should not be to capture an authentic momentof experience31 before reason kicks in, but rather to trace howwhat Young designates as experience relates to and with critiqueand analysis: not to subject the former to the latter (or vice versa),but rather to discover the �zones of indeterminancy’ that rendersboth possible.32

What Young portrays when she looks at the encounters of artand law, is that law responds by treating aesthetics as a problem.However, it does not follow from this that aesthetic issues aretherefore problems for the law. Rather, as her second chaptershows, it is the context of the encounter that determines whether or

28 Supra n 2 at pp.12–13.29 For example, in Chapter Three.30 Supra n 2 at p. 18. Author’s emphasis.31 One need only read Agamben’s �Infancy and History’ (in Giorgio Agamben

Infancy and History: On the Destruction of Experience, L. Heron (translator),(London & New York: Verso, 2007) to be aware of the difficulties and dangers of a

politics of experience.32 Such �zones’ are not beyond or superior to the affects they unleash, but rather

are immanent with them. See Gilles Deleuze, Pure Immanence: Essays on A Life, A.Boyman (translator), (New York: Zone Books, 2001) and Gilles Deleuze and FelixGuattari,What is Philosophy?, G. Burchell & H. Tomlinson (translators), (London &

New York: Verso, 1994).

nathan moore360

not law must intervene. Despite the interesting account that Younggives of the various examples of such encounters, none of the law’sinterventions are made on an aesthetic basis; just the opposite,Young shows that the respective judges avoid any decision on thebasis of aesthetic merit. Instead, consideration is on the basis ofobscenity and offence. Of course, there is a plethora of work onthe indeterminacy of the relation between obscenity and art, but itshould not be thought that this indeterminacy is the same whenconsidered aesthetically as when considered legally. Indeed, fromthe legal perspective, any case, whether it is about art or any othersubject, disturbs the law. Furthermore, if Kristeva writes of a�Narcissian process’, then a case is always a specifically legal pro-cess, regardless of what it is about, of jurisprudence. Law does notneed aesthetics to locate its own disturbances, but need only lookto itself.

Law is thus neither finally closed nor unified. Not only does itnot function as if it were, but equally, it does not necessarily imageitself as so doing. Without doubt, there are specific legal �character-istics’ or singularities, but these are not matters of closure nor iden-tity, but instead that which enables legal closure and identity tofunction as such, through zones of indeterminacy. In support ofthis view, Agamben’s work and its demonstration of a state ofexception that, whilst indeterminate in its relation to the law, isnevertheless of a specifically jurisprudential quality, is useful.

Thus, whilst Young moves into interesting territory, she quicklyreverses back to her presuppositions about what law is. The appar-ent refusal of an encounter between law and aesthetics has more todo with her own insistence upon what the law should be, ratherthan what it might be. If law is presumed to be determined by adesire for some end, rather than as a desiring process, the risk isrun of failing to fully appreciate both legal and aesthetic practices.What begins to emerge, instead, is less the figure of the artist-as-redeemer than it is the figure of the victim, of those who suffer theviolence of law’s closure. Art is then in danger of being reduced toa kind of �sub-law’, wholly determined by its relations to the law.What one then detects is the symptom of what the author might berepressing: the sense of loss that the law is not what one imaginedit to be, or rather of it not being what (postmodern) critical legalstudies has demanded it be.

This trajectory is increasingly apparent as one reads across thebreadth of Judging the Image. Whilst less obvious in the excellent

THE IMAGE OF LAW 361

chapter on graffiti, it becomes much more so in the subsequentchapters, where what appears is a tragic body ultimately held fastin its own nothingness, as the subject of disease, loss and death: i.e.of the law’s absence. Most problematically Young conceives of cer-tain artworks as a type of judgement against the viewer, in thename of an �ethics of witnessing’, in which ‘‘[t]he viewer is thusmetaphorically charged with the participation in the injury’’ thatthe work presents.33 It seems that art is concerned only to occupythat remaining space it imagines the law to have evacuated. Fromthis perspective, it is no surprise that the book should concludewith the ruins of 9/11. Against this we should remember, and medi-tate upon, the consequences, for both law and aesthetics, of theDeleuzean aphorism: I have nothing to admit.34

N. MooreSchool of LawBirkbeck CollegeMalet Street,London, UKE-mail: nathan.moore@bbk.ac.uk

33 Supra n 2 at p. 116.34 See generally �Letter to a Harsh Critic’ in Gilles DeleuzeNegotiations, supra n 10.

nathan moore362