The research project that grounds this website is a joint undertaking of the Centre for Sensory Studies at Concordia University, co-directed by David Howes, and the Canadian Initiative in Law, Culture and Humanities at Carleton University, directed by Sheryl Hamilton. The Centre, formerly known as the Concordia Sensoria Research Team (CONSERT), has been conducting research into the varieties of sensory experience in history and across cultures since 1988. The Initiative has been engaged in organizing and staging interdisciplinary and interactive workshops and conferences since 2004. In May 2013, with the support of a Social Sciences and Humanities Research Council of Canada (SSHRC) Connection grant, the Initiative convened a workshop on “Sensing the Law,” which was held at the Wakefield Mill Inn in Wakefield, Quebec. The papers presented at this workshop have since been published as a book, Sensing Law.
The primary aim of the present research program is to continue the conversation that began in Wakefield, and broaden the discussion to incorporate additional topics and interlocutors. Our common objective is to address four main questions:
1) How does law apprehend the world?
2) How does law regulate the senses and sensations?
3) How is law apprehended by those who formulate and are subject to it?
4) How does approaching law through the senses reconfigure law’s understanding?
In addition to examining the contemporary culture of law through the lens of these questions, this project will incorporate anthropological and historical perspectives on law and the senses that help expose the contingency of the prevailing Western sensory and legal order. This program will also yield a series of policy directives for reforming the legal sensorium.
Context: Literature Review and Theoretical Framework
After a long struggle for recognition, the “cultural turn” in law and legal studies is now well established, while the “sensory turn” is still taking shape. As regards the former, a variety of factors contributed to taking law down from its pedestal and “making a place for a cultural analysis of law” (Silbey 1992). These included the development of the critical legal studies and law and literature movements, the rise of socio-legal studies (with its emphasis on the “situatedness” of legal consciousness), and the influence of interpretive (or “Geertzian”) anthropology.
Geertz’s (1983) description of law as “a distinctive manner of imagining the real” had a marked impact on legal scholarship. It repositioned law as a cultural reality, an active part of society (rather than, somehow, above society), and it shifted the focus of legal studies from rules to meanings. “Our gaze,” Geertz suggested, “ focuses on meaning, on the ways … people make sense of what they do – practically, morally, expressively, … juridically – by setting it within larger frames of signification, and how they keep those larger frames in place, or try to, by organizing what they do in terms of them” (Geertz 1983: 232). Out of this emerged a focus on the “production, interpretation, consumption and circulation of legal meaning” (Sarat and Kearns 1998: 6), and a radical redefinition of law itself. “Law” is no longer only what the legislators proclaim and judges interpret it to be, law is also what we (ordinary citizens) make of it. Thus, alongside the old legal positivist definition there has arisen the (critical) legal pluralist position (see Macdonald 2002 on “everyday law” and Adams 2010 on “improvised law”). Now, popular culture is recognized as potentially equal in influence to the courtroom as a forum for “troubling” and re-negotiating legal meaning (Hamilton 2009), though it remains important to recognize the tensions between these two fora. Another offshoot of the new focus on meaning is the steady growth of research in “law and semiotics” (e.g. the International Roundtables for the Semiotics of Law) and “legal aesthetics” (Dahlberg 2012).
The “sensory turn” in law and legal studies conceptualizes law as a sense-making activity. It focuses attention on the regime of sensation which undergirds and encompasses the “frame of signification” (“encompasses” in the sense that the term sense includes both sensation and signification, perceiving and meaning, in its spectrum of referents). Sensorial jurisprudence, as this new field may be called, literally “incorporates” (i.e. sensorially embodies) all the developments in law and legal studies since the cultural turn.
The sensory turn was heralded by a flurry of publications in the mid-1990s, including “Coming to Our Senses” (Hibbitts 1992; see also Hibbitts 1994) and Law and the Senses (Bentley and Flynn 1996), both of which were inspired by then breaking research in the history and anthropology of the senses (see e.g. Bently and Flynn 1996: 12 n20). More contemporary work taking up the intersection of law and the sensorium is typically either practice-based, offering knowledge for better evidentiary presentation in the courtroom (Feigenson and Spiesel 2009; Sherwin et al 2005), or doctrinal, taking up case law and its proper interpretation. It is also mainly focussed on visuality to the neglect of other modalities (Sherwin 2011; Grabham 2009); For example, the “aesthetic” in “legal aesthetics” tends to be conflated with the image (see e.g. Douzinas and Nead 1999; Dahlberg 2012) whereas the term aesthetic actually pertains to sense perception in any and all modalities, not just the optical (Howes 2011; Manderson 2000). The doctrinal and practice-based work cited above is neglectful of the cultural turn, while the “aesthetics of law” work could be enhanced by taking cognizance of the many radical developments in sensory studies since the early 1990s (e.g. Stoller 1997; Howes 2003; Smith 2007; Porcello 2010; Howes 2013; Howes and Classen 2014). Parenthetically, it is the same with politics, which has remained preoccupied with treating political communities as “imagined” (Anderson 1991), rather than sensed, and is only now discovering the “political life of sensation” (Panagia 2009; Trnka, Dureau and Park 2013). It is about time law, like politics, awakened from the sleep of the senses. There are many signs of sensori-legal studies becoming a recognized field of studies (e.g. Sensing the Law 2013; Westminster 2013; Media@McGill 2014; International Roundtable 2015; UTS Architecture, Law and the Senses 2015).
This research program is distinguished by the combined cultural studies and sensory studies approach it takes to law. The cultural studies methodology used here is one elaborated by Hamilton (2009) and Hamilton and Gerlach (2012). It involves reading law in light of popular culture. It will be supplemented by Lafrance’s penetrating exegesis of psychoanalyst Didier Anzieu’s theory of the “skin ego” (or “sensory envelope” of the self). This theory highlights the subjective dimensions of law’s experience, and doubles as a bridge to sensory studies (Lafrance 2004, 2012). The sensory studies methodologies to be employed here have been elaborated over the course of many previous research grants held by Classen and Howes. In the case of archival or bibliographic research, the method involves “sensing between the lines” of written sources in order to discern the sensory practices which underpin and inform the written texts (Howes 2013; Classen 2012: Introduction). In the case of field research involving human subjects, it involves engaging in “participant sensation” (as opposed to mere observation) in order to uncover local ways of sensing and issues of preoccupation (Howes 2003, 2013; see further Pink 2009).
1) How does law apprehend the world? Law apprehends the world through the law of evidence and the prevailing regime of surveillance. As regards evidence, there is an extensive discourse on what kinds of sensory experience can be taken into account as evidence. Our research will explore how the differential valorization of the senses in this discourse may colour the construction of “the facts” in any given case. An investigation of what is involved in bringing state violence to the attention of the international community by means of photographs will also be pursued in this connection.
2) How does law regulate the senses and sensations? The legal domains in and through which the senses and sensations are controlled or regulated are many. Intellectual property law has created property (trademarks, copyright) in sensations; the law of nuisance polices the range of permissible sensory emissions; hygiene laws regulate forms of contact; human rights laws prohibit discrimination on the grounds of such sensory traits as skin colour or disability. The norms and thresholds in each of these domains have varied significantly in history and across cultures. Through studying select instances of this variation the contributors to this project will bring to light the sensory codes embedded in legal practice and their relationship to the encompassing sensory models of society.
3) How is law apprehended by those who formulate and are subject to it? Law” is an abstraction, as is “justice”. Yet they are rendered sensible by means of images and institutions. How does the sensory character of such images and institutions (e.g. the iconography of justice, the architecture of the courtroom, the representation of social and legal orders in museums) inflect the experience and understanding of the legal by the ordinary citizen? What impact does varying the sensory order of the courtroom (e.g televising trials) have on the administration of justice? Beyond the law in books, beyond the law in action, there are the logics of sensation which also shape law’s experience.
“Law and the Regulation of the Senses: Explorations in Sensori-Legal Studies” is funded by a grant from the Social Science and Humanities Research Council of Canada for the period 2015-2019.
For further information about this research project, the workshop, or the conference please contact us at email@example.com
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