ABSTRACT
Law’s dealings with the senses have been shaped by law’s traditional privileging of the visual as the basis for the legibility and authenticity of the legal subject. Moreover, the association of the visual with objectivity undergirds the principle that law must be impartial, a doctrine that is well and alive, as exemplifi ed by Ronald Dworkin’s infl uential jurisprudential analyses. 1 In an equally infl uential argument, John Rawls (1971) injected new blood in the fi gure of justice as impartial objectivity by using the metaphor of the veil of ignorance to elaborate his concept of fair justice. 2 In this context, a consideration of the relation between law and the senses arises as yet another opportunity for probing the legal imperative to legitimize being through legibility and categorization. With its traditional reliance on legibility, what does law’s approach to bodies reveal about its mediation of the senses? 3 Which epistemological concepts undergird legal practices that legitimize the sensorial into the legible? Furthermore, if the senses function as semiotic systems of social being and relationality, what does the regulation of digital and biometric mediation of the body tell us about law’s governance of citizens as sensorial and sensing bodies? 4
As a socio-cultural institution and set of everyday practices, the law not only legitimizes but also participates in cultural processes of mediation, thereby generating a semiotic of the senses for the sake of governance through identifi cation and recognition. This semiotic of identifi cation is nestled in legal practices and ontological conceptions of the legal subject and it historically feeds on taxonomies of being, aided and abetted by the advent of technes such as anthropometrics, physiognomy and photography. In the fi rst part of this chapter, I focus on Nadar’s L’hermaphrodite (1861) and consider the convergence of a nascent sexological biometrics with the use of photography as a means of generating a taxonomy of sexuality that would reverberate in later medical and legal conceptions of being. 5 However, I show that although Nadar’s pictures construct a scientifi c touch to expose and classify an incongruous body, their mythopoietic mise en scène trumps the sexological, and potentially legal, will to truth. 6
Shifting from this archival moment to law’s legitimization of being in twenty-fi rst-century cybernetic culture, I suggest that Western law is currently striding two cultural paradigms of mediation: one is a logocentric paradigm that can be traced back to the compiling of laws during the era of the Roman emperor Justinian (AD 527-65); 7 the other is the shift from the Gutenberg galaxy to an informational paradigm. Thus, law’s will to truth manifests itself through these two technologies of governance. I consider the use of legal-biometric procedures at airports and their implications for transgendered bodies to demonstrate that, in this technological transformation, law presents itself as a paradoxical assemblage of governance: although in its statutory texts it still invokes practices of sensorial mediation with legibility as its operative mode, it now draws on digital practices of sensorial mediation. In the former case, the law seeks to decode the sensorial body hermeneutically; in the latter case, it seeks to encode the sensorial body as information. With digital biometrics, we see a transmogrifi cation of the imperative for legibility whereby the law intends to author and secure citizenship through the indistinction between identifi cation and identity as a means to the truth of the citizen as a digitally encoded body. This regime of truth grafts onto a new legal ontology whereby to be is to be biometrically identifi ed here, now and forever. However, as Shoshana Magnet (2011b) and Kelly Gates (2011) show, digital biometrics’ claim to infallible truth can only be sustained through a silencing of technological inadequacies and inabilities to capture human complexity and temporality. 8 In this context, transgendered bodies fail to fulfi l the legal aspiration to equate identifi cation with identity. Thus, these bodies perform as signs of sensorial and political dissonance in a governance of body surveillance for the sake of territorial security. 9
I will conclude with an analysis of Mirha-Soleil Ross and Mark Karbusicky’s video (2001), Tremblement de chair , as the political occasion for a different use of digital technology and for a counter-semiosis of sensorial bodies constituting themselves in time. Underlying my analysis of the video is the notion that the senses function as semiotic processes and practices of social being, relationality and affect, and as such participate in a social poiesis whereby in a historical process of citizenship we create and re-create ways of being and doing things. 10 The video illustrates this principle of citizenship through aesthesis, or the sensorial perception of the world, and engages the viewer in a political, ethical and erotic mediation of the world and other bodies. Analog, digital and biometric mediations of transgendered bodies indicate that semiotic practices play a primordial role in the constitution of citizenship: sensorial bodies are enacting citizenship through an agonistic relation between practices of mediation and political agency.
