Law and the Regulation of the Senses: Explorations in Sensori-Legal Studies

Principal Investigator
David Howes

Co-Researchers
Marc Lafrance, Sociology and Anthropology, Concordia University
Charlene Elliott, Communication and Culture, University of Calgary
Christiane Wilke, Law, Carleton University
Sheryl Hamilton, Journalism and Communication, Carleton University
Constance Classen, Centre for Interdisciplinary Research in Music, Media and Technology, McGill University

Brief Project Description

This research program 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. This 3-day event, involving 15 invited participants, generated a highly dynamic discussion and the proceedings are currently being edited for publication.

Objectives

The primary aim of the present research program is to continue the conversation that began in Wakefield, broaden the discussion to incorporate additional topics and interlocutors, and produce a comprehensive reference work on the senses in law. 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? and, 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” (Austin and Sarat 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 (Bently 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)

Methodology

This research program is distinguished by the combined cultural studies and sensory studies approach it takes to law. One applicant has a background in history and political science (Wilke), others have backgrounds in cultural studies (Lafrance), communication studies (Hamilton, Elliott), and cultural anthropology (Howes). The collaborator (Classen), a cultural historian, is one of the foremost authorities on sensory studies in the world. Classen has written programmatic pieces on the anthropology of the senses (Classen 1993, 1997), history of the senses (Classen 1993, 2001), education of the senses (Classen 1999), and recently edited the 6-volume Cultural History of the Senses (Classen 2014a; 2014b). Our aim is to do for law and the senses what Classen has done for history and the senses – that is, to produce a comprehensive two-volume reference work on “Law, Society and the Senses” with circa 24 contributors from a range of disciplines each focussed on a specific topic having to do with law as sense-making activity.

To this end, we propose to stage a conference entitled “Law’s Sensorium” in August 2018 to which we shall invite 15 contributors selected on the basis of their potential contribution to the outline we develop for the two-volume reference work we plan to publish. This outline will be elaborated dialectically through conversations amongst ourselves and in light of the seven carefully-chosen sensori-legal studies. These studies are informed by the four questions guiding our research (see Objectives above). They are intended to serve as exemplars for present and future empirical and theoretical as well as action research in law and the senses. The process will continue with the public dissemination of research results through mass and other media in a series of what we call acts of sensitization. Our aim is to bring the public to its senses concerning the modulation of the senses and sensation in and by law, for we have found that “sensory critique is the beginning of social critique” (Howes 2005a), as evidenced by the work of such contemporary scholars as Sennett in Flesh and Stone (1996) and Scott in Seeing Like a State (1999)

The cultural studies methodology for purposes of this research program 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).

The questions to be considered are, first: How does law apprehend the world? This question will be broached through a sensori-legal study of: 1-A) The Hierarchy of the Senses and the Law of Evidence (directed by Howes). It will involve analyzing the social construction (and contestation) of the senses in a wide array of evidentiary doctrines, such as the debate over whether the plain view doctrine (which allows police officers to seize evidence that is in plain sight without having a search warrant) does or does not include “plain touch,” or “plain odour,” etc.. In what amounted to a trial of the senses, a Minnesota appellate court overturned a conviction based on “plain feel” evidence, stating that touch is both less reliable and more intrusive than sight and cannot therefore be viewed as equivalent (affirmed by the U.S. Supreme Court) (Hess and Orthmann 2012: 289-90). The main focus of this sector will be on the coming to be of “the sensor society” (Andrejevic and Burdon 2014) and the complex legal issues which it raises. Networked digital devices used for personal communication or positioning double as sensors which generate clouds of information which can then be mined by corporations and governments as well as police – or hackers – for their own purposes. The controversy surrounding House of Commons Bill C-13 (the so-called Cyberbullying Bill) which ostensibly governs the non-consensual distribution of intimate images but also provides police with various (some would say excessive) “access powers” nicely illustrates the way in which ephemera have become permanent and jurists and legislators are struggling to make sense of how to regulate the new modes of sensing made possible by ubiquitous computing.

In addition to exploring issues internal to the Western law of evidence, this sector will examine the fall-out when sensori-legal regimes collide, as in various cases concerning land claims litigation in Canada and Australia where orality clashes with literacy (Mills 1994; Anker 2005), and witchcraft trials in Africa, which trouble Western norms of evidentiary probity in some singularly revealing ways (Niehaus 2001).

The second sector opened up by the above-mentioned question is: 1-B) Visual Meaning-Making and International Criminal Law: The Violence of Photography (directed by Wilke). Photographs have been key components of campaigns to bring distinct forms of violence, including genocide, torture, enforced disappearances and war crimes, to the attention of international law, from the exposure of the concentration/death camps of Nazi Germany (Sontag 2003) to the abuse of prisoners at Abu Ghraib (Dauphinée 2007; Butler 2010), This study asks: what accounts for this affinity between photography and international criminal law? How do the meanings attached to photographs change when they circulate (e.g. the pictures from Abu Ghraib, a dental x-ray, or the record of a “camera bomber” strike)? How is photography used to bolster or challenge “hierarchies of credibility” (Stoler 2009) in national and international contexts? This case study focuses on the practice of “seeing from below” (compare Scott 1995, 1999) engaged in by NGO workers in New York and Buenos Aires who produce, work with or circulate different kinds of photographic material in the interest of exposing state violence and injustice. But it also asks: what are the implications of apprehending violence through the visual register alone and equating the viewing of photos with witnessing (compare Lambek and Antze 1996)

How does law regulate the senses and sensations? In response to this question, Elliott will direct a sensori-legal study of 2-A) IP Law and the Privatization of Sensation. Canada is rapidly moving from being one of the most conservative jurisdictions with respect to the registration of trademarks to being among the most liberal by making it possible to “protect” sounds, colours, scents and even motion, or some combination thereof (see House of Commons Bill C-8 [formerly C-56], now before the Senate). Formerly, only a brand name and/or logo were subject to such “protection.” This development raises serious issues about the privatization of sensation (or, “enclosure” of the sensory commons). It also touches on corporate control of eating behaviour through strategic manipulation of colour and other sensory markers (Elliott 2012; Spinney 2013). Elliott will conduct a comparative study of recent changes in the way trademark law is conceptualized and administered by trademark offices and courts in Canada and Australia (site of the recent epic battle between Cadbury and Darrell Lea over rights to the colour “royal purple”). She will also investigate how consumers feel about being manipulated sensori-legally by the food industry, and potential strategies of resistance through education. Other issues to be addressed include the patenting of “mouth-feel” and the copyrighting of recipes.

In 2-B) Shifting Thresholds of Perception and the Law of Nuisance, Howes will investigate how auditory, olfactory and light emissions have been regulated historically under the law of nuisance, and how thresholds of tolerance have shifted over time due not only to changing levels of intensity, but to changing cultural norms and associations (e.g. the sound of Christian church bells or the Muslim call to prayer have become targets for complaint in today’s increasingly secular society: see Isaacs 2014). He will also direct an empirical case study in an as yet to be deterrmined location using qualitative methodologies, such as the soundwalk (McCartney 2007), smellwalk (Henshaw 2013), and sensory biography (Parr 2010) to test the fit (or lack of fit) between administrative regulations and popular ways of sensing, building on Mariana Valverde’s study of “Seeing Like a City” (Valverde 2011).

In 2-C) Public Hygiene and the Pathologization of Touch Hamilton will explore what it means to live in a “pandemic culture” (Hamilton and Gerlach 2013) where the threat of global viral contagion is constant even if the incidence is rare (SARS, H1N1, etc.). At the level of the state, specialized agencies are constituted to monitor and react to potential outbreaks. But the generalized anxiety also plays out at the level of the quotidian, where boundaries – of bodies as of nations – come to be perceived as porous, and touch is increasingly constituted as a viral medium. Hamilton will analyze both levels, with a particular focus on the new norms of haptic etiquette (e.g. “hand-free” greetings, sneezing into one’s elbow, handwashing in public) promoted by risk communication specialists responsible for public health campaigns from Toronto to Vancouver, whom she will be interviewing for this sector of the research program — a sector which takes on particular urgency in the face of the 2013-2014 Ebola outbreak.

How is law apprehended by those who formulate and are subject to it? – the third question, will be addressed in 3-A) Spaces of Order. In this sector, Classen will explore sensory representations of law and order within museums, both as regards the exhibition of artefacts and the inculcation of codes of civility in visitors through regulations governing sensory behaviour (i.e. touching, making noise, running). Her research will focus on how displays of colonial objects, peoples and animals in 18th and 19th century European museums were intended to serve as visual and tangible models for the representation and regulation of colonial territories, and on how such displays have (or have not) been reordered in recent times in response to calls for museums to function as sites for social justice (e.g. Butler 2007). The three museums she will concentrate on are the Museum of the Americas (formerly the Royal Cabinet of Natural History) in Madrid, the British Museum, and the National Museum of Scotland (formerly the National Museum of Antiquities) in Edinburgh. All three manifest different but overlapping responses to the deep-seated desire of officials to make social orders visible and material within the museum. Classen (in association with Howes) will also investigate how courtrooms and prisons constitute spaces of sensory and social order – that is, how ambience informs function.

3-B) Bodies of Order (directed by Lafrance) will investigate how the law regulates sensory appearance (e.g. through restricting the wearing of head-coverings or religious symbols, or through “unsightly” ordinances aimed at the homeless and disabled) and how the law also, somewhat paradoxically, prohibits discrimination on the basis of sensory difference (i.e. skin colour or disability). Lafrance will undertake a comparative study of these issues in Quebec and France, two societies which have struggled with the issue of how to “manage” sensory alterity in public settings (e.g. the controversy surrounding the Quebec Charter of Values in 2014). Lafrance has a special interest in the issue of access for the disabled, and how this policy is now being extended to include such things as tactile access to museum collections and auditory access to websites for the visually-impaired.

“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 2015-2018.