Law, Regulation, Sensorium
Concordia University Montreal, 1-3 May, 2018
Law and Legal Studies has come lately to the study of the sensual. This is a breaking area of research. The Othered Senses launches from, and seeks to trouble, two premises. The first is that when the law has thought about the senses, the story is typically one of discipline, translation, and the movement of non-rational senses into rational Law, with a capital “l”. The second is that inquiry into the senses remains dominated by a five-sense model while at the same time evidencing an ocular-centric and aural-centric bias, which leaves the ‘other’ senses (taste, touch, and smell) understudied and also deflects attention from how the senses interact. We suggest the time is right for intellectual and political creativity in the imagined and material spaces where legal regulation and sensorial experience entangle, where laws and sensing bodies clash, and where sensuality and legal institutions flirt. Our Call for Papers invited scholars to explore the multi-directional flows of legal-sensory encounter and its multiple modes and registers.
In this workshop we seek to animate an interdisciplinary discussion that brings together scholars interested in the unlikely, messy, and less studied ways in which sensing bodies and legal(ized) practices intersect. We hope to disrupt the normal and normalizing order of senses, to counter law’s attachment to reason, and to de-romanticize the body. We ask: whose senses count and do not count in law’s register? What invisible work do the ‘lower’ senses do? How can regulatory structures take account of the synaesthetics of embodied experience? How does the hierarchy of the senses intersect with the debilitating structuring dualisms of Western culture: mind/body; person/property; human/animal; adult/child; abled/disabled; settler/savage? And, how might we disrupt and dismantle the regulatory apparatuses which invest in these dualisms? In what ways might legal logics and sensorial pleasures productively stimulate each other?
This workshop is a collaboration between the Canadian Initiative in Law, Culture and Humanities at Carleton University and the Centre for Sensory Studies at Concordia University. It will be held immediately preceding and in conjunction with the Uncommon Senses II conference at Concordia from May 1-3 (the workshop) and May 3-5 (the conference).
Please find below a tentative list of abstracts of papers to be presented and discussed at the Othered Senses Workshop from May 1 through May 3, 2018.
The workshop programme will be posted in mid-March.
For further information, please contact us at senses@concordia.ca
Abstracts
Making Sense of Law and Development
Ruth Buchanan, Osgoode Hall, York University
How international institutions and global publics perceive the situation and the problems of the billions of poor people on the planet defines the project of development at any given time. That is, the project of development can be understood as a project of ‘world-making’ (Rist, 2002 Pahjua, 2011; Eslava, 2015). And yet, this approach has often been discussed primarily as matter of framing or a ‘way of seeing.’ (Berger 2008; Scott, 1998; Manderson, 2015) While acknowledging that it is no east matter “to learn to see the frame that blinds us to what we see,” (Butler, 2010) this paper will seek to move beyond visual metaphors towards a more encompassing approach. Drawing insights from Ranciere, this paper engages with international development as a project that is both political and aesthetic (Rancière, 2006 and 2013). The term aesthetic originally means ‘the science of the sensible’. Until recently, legal scholars working in international law and development have paid little attention to the important constitutive dimensions of sensory economies in their fields. Recent work, notably Johns (2017) has begun to attend to ways in which the quotidian sensing practices of international institutions (such as at the border retinal image scanning or the use of satellite images to monitor the movement of nuclear weapons or the growth of slums) effect the ‘uneven distribution of capacity and resources’ under international law. Similarly, this paper will explore the relationship between the ways in which populations of the global poor, urban slum dwellers in particular, come to be ‘sensed’ and the types of resources, laws and policies that are designed and implemented on their behalf.
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Colonizing the Senses in the Nineteenth-Century Museum
Constance Classen, Centre for Sensory Studies
The exhibition of artefacts from colonial territories in nineteenth-century museums served not only to disseminate information about these “exotic” lands, but also to provide tangible and visible evidence of their new regulation at the hands of Europeans, Removed from their original dynamic, multisensory contexts, such artefacts were transformed into static aad mute testimonies to the reach of imperialism. Visitors to museums, in turn, learned to regulate their own senses in keeping with the rules of museum etiquette – no shouting, no running no grabbing – and thus manifest a corporeal civility which contrasted with the sensory “savagery” supposedly lurking beneath the controlled visual displays of indigenous objects. With its “ideal” orderliness, therefore, the micro-empire of the museum presented a model of colonial governance for the larger empire, in which the senses of subjects were to be likewise “educated” and subdued.
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Regulating Erotic Touch: Migration, Sex Work and Law’s Touchiness
Ryan Conrad, Sociology, Carleton University
Erotic services, the exchange of cash for erotic touch and/or simulated affection, have been at the centre of a number of controversies involving corporate and governmental intervention over the last decade in the US and Canada. For example, Liberal then-Immigration Minister Judy Sgro’s “strippergate” scandal (2004), the banning of “erotic services” (2009) and “adult services” (2010) on Craigslist; the Supreme Court of Canada’s Bedford ruling (2013) and the subsequent passing of the Protection of Communities and Exploited Persons Act (C-36) by the Harper government (2014); the FBI raid and closure of MyRedBook.com offices in California (2014); the Homeland Security raid and closure of Rentboy.com offices in New York City (2015); the decision by American Express, Visa, and Mastercard to block the use of their credit cards to pay for individual ads on sex worker-friendly websites like Backpage.com (2015); and changes made by Immigration Refugee and Citizenship Canada at the behest of Conservative then-Immigration Minister Jason Kenney who instructed IRCC to reject applications for temporary foreign worker visas sponsored by employers in the “sex trade” (explicitly naming strip clubs, escort services, and massage parlours) (2012). This was followed by a ban of those on open work visas and student visas from working in the “sex trade” (2013). This paper will investigate the way rhetorical framings of gender, migration, and worker exploitation have been mobilized by the Canadian government and anti-sex trafficking organizations to frame commercial erotic touch as dangerous, always exploitative, and in need of remedy and regulation. The uneven regulation of erotic services in Canada—the adult film industry where the visual stands in for touch is never named as a prohibited employer for temporary foreign workers, and erotic touch is the only condition set on the type of work that foreign nationals may engage, yet all sex work-related employment that is illegal for foreign workers is legal for permanent residents and Canadian citizens—will be my starting point.
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Blindness, Race and Gender: politico-epistemic issues in the study of “visual culture”
Elizabeth Davis, OISE, University of Toronto
This paper challenges the positivist conception of vision as ‘purely’ optical by refusing to pathologize the non-normative experiences of sight that characterize certain racialized, disabled and gendered experiences. I bring together W.E.B. DuBois’ concept of ‘double-vision’; Franz Fanon’s description of having the gaze stolen from him by a white child; feminist conceptions of ‘the male gaze’; and theories of ‘objectification of women’ alongside critical disability studies of blindness. Vision and knowledge are complexly related in the Western imaginary, such that blindness is conceived as lack, loss and limit of an optical capacity, while seeing is convoluted with knowledge in many manifestations. Meanwhile, the puzzle persists that blindness knows that it is seen. Rather than understanding these non-normative experiences as pathological or ‘merely’ metaphorical, I seek to unpack what configuration of the human body and (its alleged) sensory capacitation is embedded in the normative notion of vision as optical. This paper underscores the embodied nature of vision, and seeks to tease out the implications of this embodiment vis-a-vis race, gender, and disability without collapsing the differences at stake.
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Sensorium®: In the Splash of Sensory Trademarks
Charlene Elliott, Kinesiology and Communication, University of Calgary
In January 2015, the Combating Counterfeit Products Act (CCPA) came into effect in Canada, with the primary aim of stemming the distribution of counterfeit products within the country. In addition to providing extra protection to copyright and trademark holders, CCPA refined and expanded the definition of trademark in Canada to include sensory marks. Colour, sound, scent, taste and shape marks are now explicitly defined as “signs” capable of indicating the source our origin of goods, and therefore registrable.
Sensory trademarks present a compelling case in which to explore the senses as “containers of possibility” (Peters 2015), and this paper explores how sensory trademarks came to be accepted in Canada, the US and the EU, the implications of such development, as well as how the current legal environment opens up a conversation into what I would call sensory capitalism (the monetization of the senses rather than the propertization of the senses). I suggest that the sensory model espoused by the trademarking of the senses is one of the mass sensorium—whereby that the ‘audience’ universally recognizes these marks as designating a particular source or origin of goods.
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Law and Time: Sensory Encounters
Emily Grabham, Law, Kent University
How can sensory encounters help us to understand relationships between law and time: law’s temporal assumptions, ontologies, and particular forms of knowing? This paper is part of an ongoing research project that reflects on how our methodological choices as socio-legal scholars influence the concepts of time we’re able to see emerging through our work. Constructivist social sciences research has long been preoccupied with the question of how methods create or instantiate worlds (e.g. Law and Urry 2002). This has led to an interest in how research concepts and material practices across sciences and social sciences effectively re-create Euclidean times and find it difficult to account for non-linear relationships and complexity (e.g., Barad 2007). The proposition here is that time and temporal worlds are accomplished as much as anything else through research practices; as scholars we co-create the temporalities that arise in our work. The implication is that we could instead understand time or temporal orientations through ‘entanglement(s) of matter and meaning’ (e.g. Tutton 2017, 485) in which we, as scholars, are implicated.
In the light of these analytic turns, critical and socio-legal researchers face considerable challenges in understanding what we’re doing as with the methods we use to perceive and, I would argue, construct time and temporalities in relation to law. This paper explores some of the more common methodological problems arising in research on law and time (see for example Wiber 2014) before turning to the potential use of sensory methods as one way of establishing alternative research repertoires. Feminist sociologists of time have recently turned to sensory methods to explore non-linear, embodied, experiences and constructions of time. Rebecca Coleman’s ‘sensory sociology of the future’, for example, aims to trace the many ways through which futures are invented through social and cultural life (Coleman 2017). For her part, Dawn Lyons has used film and audio-visual montage to explore temporal rhythms of work in fish markets (Lyons 2016 a, b), yielding many unexpected visual and haptic vantage points. Reflecting on these bodies of work in relation to law’s persistent temporalities, the paper exports how sensory methods might challenge temporalities otherwise arising in socio-legal research; how accounting for our sensory encounters might help us to engage meaningfully with social complexity and non-linearity in relation to law and governance.
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Troubling Bonds: Business Handshakes in Pandemic Culture
Sheryl N. Hamilton, Journalism and Communication and Law and Legal Studies, Carleton University
American talent agent and dealmaker, Irving Paul Lazar famously remarked, “I have no contracts with my clients; just a handshake is enough.” “This is not a handshake of gratitude, this is a binding contract,” Ted advises Don in Season 6 of Madmen, and the first few lines of Depeche Mode’s, Everything Counts, warn, “The handshake seals a contract; from the contract there’s no turning back.” I suggest these (and countless other) examples testify to the way the ‘handshake as bond’ in the domain of business operates as a broadly recognizable cultural icon and iconic gesture. Indeed, I would go further to suggest, the handshake operates as synecdoche for the legally binding contract.
And yet, in pandemic culture (Hamilton and Gerlach 2014), the handshake is an increasingly volatile ritual, thoroughly implicated in the transmission of communicable disease. In North America, we increasingly see both formal and informal regulation of this particular type of handwork (Schiffrin, 1974) in various social locations. Business is, not surprisingly, one of those sites. Equally unsurprisingly, efforts to rewrite the norms of touch governing the symbolic production of contractual bonds have met with controversy. In this analysis, I will suggest that the handshake, far from being a stable signifier of bonding, has always been about the reinforcement and legitimation of boundaries, and in particular, the regulation of the inherent promiscuity of touch in business. I will review recent contests over what I call “haptic etiquette” in business discourse, situating them in conversation with the legal fictions that suture contracting agents together.
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The Racialized Sensorium
David Howes, Sociology and Anthropology, Concordia University / Faculty of Law, McGill University
Why does so much of the discourse on race centre on skin colour? Is the –blind in colourblind the same as the post- in postracial? And, why all the emphasis on “transparency” in the debate over the niqab or Muslim veil? Might the very emphasis on visibility be hiding something? This paper opens with a critique of the disproportionate emphasis on the visual and visibility in contemporary debates over race and alterity. It goes on to explore how other senses and sensations are equally susceptible of racialization, such as smell in the case of the motif of the “smelly immigrant” and touch in the case of the allegedly thick-skinned brute. Then, the paper shifts perspectives, from the white gaze to the immigrant look. It looks back at the dominant society from a series of alternate subject positions, and explores other respects in which subaltern groups may use their senses of hearing and particularly taste in ways that are incomprehensible to dominant society. The paper is based in part on interviews conducted in a pluriethnic borough of Montreal. It concludes by suggesting that perhaps the best way to combat sensory segregation is through the education of the senses.
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Skin Work: Gender, Race and the Social Regulation of Acne
Marc LaFrance, Sociology and Anthropology, Concordia University (with Scott Carey)
Skin work is a familiar experience for many acne sufferers and is often characterised by practices of concealing, medicating and grooming (Lafrance & Carey, 2018). These skin work practices are, however, neither gender nor race-neutral. Instead, our research shows that dominant norms of gender and race are at the very heart of why and how acne sufferers work on their skin. In this paper, we will examine how these norms are both consolidated and contested through the seemingly mundane acts of concealing, medicating and grooming. In doing so, we will show how the skin—and the work we do on it—can be seen as a complex site of normative regulation and resistance.
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Odorless in decay: olfactory desires in Victorian burial reform
Monika Lemke, Social and Legal Studies, York University
Between 1839 and 1853, Victorian sanitary reformers drew attention to the state of town burial grounds through sensational accounts of their fetidness. Inspired by scientific theories which treated foul odors as indicators of discord in the natural order, reformers such as G.A. Walker, Edwin Chadwick related burial ground odors to the moral and sanitary evils found within the administration of burial grounds and the working class living in proximity to burial grounds.
According to the scientific theories employed by burial reform discourse, the foul odor resulted from compounding toxic emanations from the living and dead alike and stood to threaten the overall moral and physical health of the population if left untreated. As reform proceeded, this scientized treatment of odor remained central. Toward the goal of enforcing odorlessness as a standard of body disposal, a newly anointed profession of burial inspectors literally “sniffed out” sanitary issues in burial grounds.
In my paper, I explore how the ambition to treat foul odor in Victorian burial grounds as an object of reform arose among the trend toward expressing the new science of the social through an expanding techno-administrative state and its reliance on science’s newfound capacity to intervene in the natural world to attain the goals of social reform. By treating burial ground odor alongside a broader discourse of filth and sanitation, I explore the social and moral dimensions of Victorian scientific inquiry as deployed through burial reform activity, which tended to associate the smells of bodily waste, pollution, and decay with sin, disorder, unproductivity, corruption, and social decline. I emphasize the relationship between the discourse on filth within the general aspirations of Victorian social reform as a lens to interrogate the class politics implicated in the burial reform movement’s desire to diffuse noxious burial ground effluvia within cities and towns.
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An assault on the ears? Law, sound, emotion and the body
Michael S. Mopas, Sociology and Anthropology, Carleton University
Sounds are felt as much as they are heard. From the thumping bass inside a nightclub to the pounding shocks of a jackhammer, sounds can affect us physically through the vibrations they impose upon our bodies. Sounds can also touch us on an emotional and psychological level. Indeed, as anyone who has ever seen a horror movie can attest, the sounds that we hear—an eerie drone, a squeaking door, a loud scream, etc.—are often just as disturbing and terrifying as the images on the screen. This paper explores how law is used to limit and control the potentially negative and harmful effects that sounds can have on us by looking closely at two specific types of sound and the ways they are regulated: noise and sonic warfare. In both cases, I want to examine how law comes to know and understand the impact that these sounds have on the body. More specifically, does law view these sounds as objects that can touch, penetrate or cause bodily pain? And, if so, what are the implications for how law deals with such violations? Do courts look beyond the physical or psychological harm caused by these sounds and consider the emotional or affective impacts they may have? Conversely, what does the regulation of noise and sonic weaponry tell us about law’s understanding of silence? Is silence really ‘golden’? How does law address the weaponization of silence (e.g., sound deprivation) and how does this compare with the way that it handles the weaponization of sound? Finally, what can all of this tell us about law’s perception of sound, more generally?
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Hearing Silence in Legal Performance
Sean Mulcahy, Law, University of Warwick
The array of competing stories drives the listener to the edge of language and of consciousness, to the moment of silence where transformation and invention can take place (White 1985).
At the turn of this century in the finale of a collection of essays on law and literature, Balkin and Levinson (1999) reconceptualised law as a performing art. Whilst scholars have explored the relation between music and law (Ramshaw 2013), focus on the acoustic dimension of law is relatively new. Taking as my starting point James Parker’s Acoustic Jurisprudence (2015), I seek to address how silence affects and, in particular, attunes the listener to a legal performance (Dawson 2014). Whilst the law maintains a right to silence, the sensorial and performative dimensions of that silence are seldom considered. Silence is not merely heard but felt (and even, possibly, smelt, tasted and sensually experienced); it is part of our synaesthetic experience of the legal performance.
The use of the term ‘legal performance’ (Rogers 2008; Peters 2008) bewrays my interdisciplinary approach, drawing from my observations of legal performances and participation in theatrical performance. Silence, I conjecture, is used and experienced in a similar way in legal and theatrical performance. Abandoning oft-held demarcations of the theatrical as emotional and the legal as rational, I re-position law as a performing art and consider the role that silence plays in its performance from that perspective.
The paper, through advancing an interdisciplinary methodology of law as performance, contributes new insights into the existing scholarship on acoustic jurisprudence. It invites listening to the gaps in speech, the pauses, the background noise and the silence in the court.
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“When law touched us, we died.” On touching, queerness and regulation of queer bodies
Chantal Nadeau, Gender and Women’s Studies, University of Illinois, Urbana-Champaign
Queerness is not here yet. Queerness is ideality. Put another way, we are not yet queer. We may never touch queerness, but we can feel it as the warm illumination of a horizon imbued with potentiality.
José E. Munoz. Cruising Utopia
This paper seeks to rethink the relationship between touching and seeing in our approach to legal recognition. Taking as a point of departure the recent wave of state and official “We are sorry” mediated performances across North America, I question how recent reparative public justice evocations have the potential to reframe our understanding of public apologies, including how law touches queers.
In order to do so, I analyze how the latest trend by various cities, police corps and federal governments to issue public apologies and pardons to their LGBT citizens (Pulse Bar shooting in Orlando, Florida; the Sex Garage Riots in Montreal, Canada; and the Turing’s Law in the UK) is less about seeing/recognizing the injured body than about acknowledging that the legal apparatus has deployed the human touching resources to taunt, probe, and invite queer bodies to be touched in order to be denied to touch. Growing interest in recent legal and political studies deciphers democratic environments as public things (Thomas Lemke 2015; Bonnie Honig 2017). This paper asks what happens when touching in public as a public thing becomes the modus operandi for legal interventions. I contend that touching in public provides the means for law to “touch” and “touch up” the queer bodies that dare to “touch”. In this paper, I then move away from a conceptual framework that privileges the opticon/panopticon as a way to regulate or make heard the queer body (via the question of political visibility for instance),to rather engage with the tactility of queerness as legal tool.
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Within and without: Guantanamo Bay detainees and the creation of (il)legal subjects
Safiyah Rochelle, Law and Legal Studies, Carleton University
In this presentation, I interrogate the legal category of “detainee”, as it pertains to prisoners of Guantanamo Bay, and the legal techniques and imaginaries from which this concept emerged. Using U.S. Supreme Court decisions that speak to this issue as a framework of analysis, I ask, how do law and lawlessness become written on to certain subjects? What are the legal techniques used in the process of creating boundaries of legality and rights? What work do they do in relation to how the figure of the detainee circulates legally, politically, and socially? I argue that juridical decisions and the legal techniques deployed in the process of rendering detainees as quasi, semi, or not quite full legal subjects occur in the midst of an often-ignored part of the construction of legal knowledge – sight, sound, touch, and fear. These elements have not been seriously considered as formal matter but instead as existing somewhere beyond the expressible range of justice and its legislation. Thinking about the detainee category in relation to the poly-sensual rhetoric which is involved in the construction of (il)legal subjects allows for an understanding of law as a multi-factorial transmission site of affect, aesthetic, and meaning, which can and does summon certain kinds of subjects to its domain even as it works to cast them outside of its boundaries.
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Acoustic viscerality: Infrasound, vertical space and environmental governance
John Shiga, School of Professional Communication, Ryerson University
The paper explores the manner in which, since the early 1990s, scientific uses of ocean sound have come under increasing scrutiny by environmental groups and ocean governance institutions due to controversial acoustic experiments in the ocean, such as the Heard Island Feasibility Test – an acoustic tomography experiment in 1991 in which MIT researchers transmitted powerful low frequency acoustic signals throughout the world’s oceans in an attempt to use the travel time of the sound to calculate global ocean temperatures. The Heard Island experiment was a tipping point in the regulation of scientific uses of underwater sound since it motivated the production of calculative and predictive knowledge about the perception and behaviour of low frequencies on bodies and environments while at the same time drawing attention to new uncertainties and risks stemming from the lower frequencies’ variable impact on human and animal senses as both sound and as force. The mobilization of low frequency techniques into the ocean economy, ocean governance and environmental security troubles the predominant understanding of touch and hearing as discrete sensory modalities as well as the long-standing acoustical discourse which valorizes high frequencies as the domain of information and order and which denigrates low frequency vibration as noise and disruption. The strategic use of and controversy surrounding acoustic frequencies that have tactile, kinaesthetic, visceral as well as aural effects is suggestive of new modes of governing human-ocean interactions through what David Howes has called “intersensory perception,” or the combination and sequencing of multiple sensory modalities to extend and intensify perception but also, in this case, to open up global and vertical space to political and economic rationalities.
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Building Black Mirrors: Computer and Human Vision(s) in Law
Christina Spiesel, School of Law, Quinnipiac University / Senior Research Professor, Yale University
Back in the 18th Century in Europe, the black mirror, or Claude Glass, was used by artists as an optical device (a slightly convex glass with a tinted surface) that would render subjects reflected as more picturesque than regular mirrors which dealt in the actual. They would work from this pre-aestheticized data to make pictures that resembled reality but were abstracted and styled with reduced abrupt contrasts and increased the perception of forms in shadows. A current dramatic series on television has used Black Mirror for its title and shows our digitally inflected world through metaphoric lenses to foreground the challenges of our new technologies particularly those that have screen displays. They are pictures by virtue of their framing. Pictures are what I specialize in.
I am interested in using the black mirror of technology to make visible some issues in the law and some of the challenges particularly it faces in view of the belief of some technologists that law is the next sector of society that needs disruption. This disruption is offered to make law more rational, a counter direction to the project of the Workshop that hopes “to disrupt the normal and normalizing order of senses, to counter law’s attachment to reason, and to de-romanticize the body.” The particular focus of my examination will be on the differences between computer vision and human vision as a way to illuminate what is at stake for the law. What a computer sees will be quite different from what humans see but if we anthropomorphize our tools because they can seem like us, or if we fail to properly estimate human capacities, or if we are just in love with new shiny things, we may be at the mercy of figures lurking in the shadows of the aestheticized mirror.
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Hammurabi and the Senses: Awareness and Regulation of Sensory Experience in an early ‘Law Code’ from Mesopotamia
Allison Thomason, Department of Historical Studies, Southern Illinois University
As one of the earliest lists of legal regulations in the world, Hammurabi’s “Code of Laws” (ca. 1750 BCE) is an important glimpse into the experience and regulation of the senses. The nature of this unique list of laws, the function of the stele on which they are found, and the execution of their decrees are constant topics of debate in Mesopotamian legal studies. However, the code has not yet been mined fully for its attention to and regulation of sensory experiences in Babylonian society. First, this study will interrogate the sensing of the stele itself in its native and original context of the courtyard of a temple in the Babylonian city of Sippar. Then, an analysis of the image and text of the stele will explore how Mesopotamian bodies experienced both the instrument used for dissemination of the laws as well as how those laws influenced individual bodies and their sensory experiences. Questions considered include: Who could be physically present at the stele and how was it experienced? What was the “Water Ordeal” method of simultaneous judgment and punishment and how did it work on/with the senses of the accused and the witnesses? How did the sensory experiences of individuals or social groups “count” differently in Babylonian society? How were noise, smell, taste, pain, and pleasure differentially regulated for individuals or groups?
This study will also consider earlier and later lists of laws from Mesopotamia as comparative material to gain an understanding of sensory regulation and bodily experience in ancient Mesopotamia. Given from the perspective of an archaeologist who specializes in material culture and sensory experience, rather than from an Assyriologist or ancient legal scholar, the paper will offer fresh insights regarding bodily experience in Mesopotamia to scholars interested in law and the senses, as well as provide analysis of one of the foundational sources for the study of law in world history.
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Sight, Errors, and the Authority of the Aerial Perspective: Adjudicating Aerial Bombardment
Christiane Wilke, Law and Legal Studies, Carleton University
Aerial technologies of violence such as bombers and armed unmanned aerial vehicles (UAVs) have re-spatialized war: airspace has become an important dimension of armed conflict, and people who live nowhere near fighting on the ground are vulnerable to the violence of bombs unleashed from the sky. In the aftermath of many air strikes, questions arise about the number and status of victims: how many were killed, how many of them were civilians? Were the civilians deliberately targeted or incidentally killed?
This paper analyzes what happens when air strikes are submitted to legal judgment. It focuses on the assessment of the factual record, in particularly the claims about what and who could be seen by those authorizing and unleashing the air strike. The relevant visual evidence is usually taken from the aerial perspective. How do arguments about what can and should be seen shape up in court and in political inquiries? The paper takes issue with the literature that presumes that the aerial perspective is authoritative and all-seeing as well as with the literature that faults pilots for flying so high that they can’t properly “see”. I argue that the authoritative status of the aerial perspective is constructed and constituted in court by deferring to specific interpretations of what can and should be visible, and that the problem with the high-altitude aerial footage is not the low resolution of the video footage, but the cultural assumptions that shape the reading of such images.