This is a presentation that I gave online to my colleagues at a Warwick Law School staff seminar in early March 2022. Most legal theorists will know German legal historian Cornelia Vismann (1961–1980) as an innovative and observant interpreter of continental philosophy, most notably of Walter Benjamin, Jacques Derrida and Pierre Legendre. Vismann’s numerous contributions to the development of so-called German media theory are, however, hardly known among her Anglophone legal peers. Legal theory’s apparent lack of engagements with German media theory is even more surprising if one considers that Vismann’s breakthrough monograph was translated into English as Files: Law and Media Technology (Stanford UP, 2008). This presentation attempts to outline the beginnings of a materialist and anti-hermeneutic framework that is indebted to Vismann as well as to her media theory collaborators. It discusses judicial artefacts such as courthouse designs as cultural techniques, that is, as chains of operations that link together humans, things and media.
The mercurial Kittler
Allow me to first tell you a personal anecdote. In her obituary for Friedrich A. Kittler, Gill Partington wrote:
In [his] late years at the Humboldt [University in Berlin], [Kittler] even found himself something of an inspirational figure. Kittler became cool; the new name to drop. As the eccentric, white-haired guru of Mediawissenschaft, he was surrounded by a coterie of artists and young intellectuals. Ironically, for someone who revelled in his outsider status, he became the centre of a group. Members of this Kittlerjugend, accompanying him to conferences and augmenting his papers with outlandishly costumed performance pieces, provided an element of the perverse and the provocative, which he enjoyed. (Partington 2012: 69)
This tribute resonates well with my personal introduction to Kittler. In 1993, I met a young German man from Berlin who was in town for the Helsinki Film Festival. He and director Jörg Buttgereit were there to promote the controversial arthouse horror and exploitation film Nekromantik (1987) that my friend had co-scripted. With a degree in film studies, my friend was well versed in the type of theoretical literature that I was devouring at the time. We would share ideas and views about Jacques Derrida or Jacques Lacan whose work we both knew well.
But my friend also told me that of all the contemporary critical theorists, his favourite had to be Kittler, one of his professors from Berlin. I was slightly baffled because even though I considered myself reasonably well read and not dependent on English translations, I had never heard of this Kittler. At one point or another, I dug up one of his books, probably Gramophone, Film, Typewriter (Kittler 1999). The book blew my mind. It was the type of theoretical Sturm und Drang that only Germans can get away with, maybe a bit like Luhmann, but definitely on steroids. Geoffrey Winthrop-Young, one of the leading English-speaking Kittler experts, warns about jumping to conclusions too quickly even if the similarities are there (Winthrop-Young 2000). A few well-targeted searches also verified that no one in the critical legal camp had written about Kittler. So as a token of my friendship with this young German man, I decided then and there that one day I would do my bit to get Kittler on the critical legal map.
Decades went by, and nothing happened. I never got around to even beginning my investigations into Kittler. I seemingly needed some external trigger. And eventually such a trigger did come along. During the turn of the millennium or so, texts by the German legal historian and theorist Cornelia Vismann started appearing in English translations. Although I knew that Vismann was German, those texts were mainly interpretations of continental philosophers like the aforementioned Derrida and Lacan. On the face of it, the texts were just an addition to the already existing plethora of secondary texts that I had already distanced myself from. So I didn’t pay as much attention then as I perhaps should have. I hadn’t first realised that Vismann’s intellectual home in Germany was with Kittler and his kin, often referred to as ‘media theory’. I’ll return to this potentially misleading disciplinary nomenclature a bit later.
The appreciation of Vismann’s work among her Anglophone colleagues was curiously limited to the same continental philosophers and theorists that had been discussed ad nauseam anyway. So once again Kittler had been side-lined even though at least for anyone who dug even a bit deeper into Vismann’s book Files (Vismann 2008; originally Vismann 2000), Kittler’s influence should have been easily detectable. Kittler and Vismann even co-authored a book called Vom Griechenland (Kittler – Vismann 2001). Be that as it may, Vismann gives me the opportunity to begin an analysis about something legal using a ‘media-theoretical’ framework that is indebted to Kittler and his kin.
The structure of my presentation today is the following. I will first try to describe this curious thing called ‘German media theory’ and why its main ideas often get lost in translation. This has less to do with whether accessible technical terminology is available or not, and more with the incompatibility of academic cultures. Like Anglophone sociology that all too often and much too simplistically juxtaposes the ‘critical’ Marx with the ‘conservative’ Weber ignoring the latter’s Nietzschean undertow (on a ‘critical’ Nietzschean Weber, see e.g. Minkkinen 2013). For the lack of time, I won’t be going into Kittler at all because packaging his eccentric corpus into a few sound bites would be a Herculean task for anyone.
In the second part I draw on a few specific texts by Vismann and argue that if we understand law and its artefacts as media — or rather as ‘cultural techniques’ — we arrive at the core of why the antihumanist and neo-materialist premises of German media theory are such a radical challenge to the hermeneutic preoccupations of even most critical legal scholarship.
In the conclusions, I’ll briefly demonstrate my main argument by looking at the new Paris Courthouse, designed by the celebrated Italian — or more precisely Genovese — architect Renzo Piano, and officially inaugurated in 2019.
From media to cultural techniques
What is ‘German media theory’, then?
As Germany was approaching ‘die Wende’ or reunification in 1990, what had traditionally been called the ‘study of culture’ — ‘Kulturwissenschaft’, literally the ‘science of culture’ — got a new lease on life. The discipline should not be confused with what the Anglo-American tradition calls ‘cultural studies’ or ‘cultural theory’. Originally it had more to do with the philosophical study of German literature from Goethe onwards. Although culture in this sense had traditionally been studied in all German universities, at that point in history the discipline had lost its standing in the west. By way of contrast, in East-German universities the discipline was still alive and well. After reunification, the study of German culture was, in fact, one of the few eastern academic specialisations that managed to gain new prominence in the west.
But subsequently the cultural objects of study diversified. They were now — perhaps sometimes misleadingly — referred to collectively as ‘media’, at least partly in order to polemically question the uncritical affiliations that the Critical Theory of the Frankfurt School had forged with the hermeneutic humanities represented by the likes of Hans-Georg Gadamer. At the outset, media theory was an anti-hermeneutic and anti-humanistic contestation of the critical tradition of German scholarship. Media did not mean simply mass media, for practically any cultural artefact could be understood as a medium, as something that ’mediates’. This new ‘media theory’ also introduced French high theory into the German debate through the likes of Michel Foucault, Gilles Deleuze, Derrida and Lacan, but without trying to transplant the foreign theory into native soil like the Anglo-American reception did. German media theory put these sources of inspiration to very specific uses which partly accounts for why this German specialisation is so poorly understood outside of the country. As David Wellbery notes in his fine introduction to Kittler, a striking feature in Kittler compared with even the best American adaptations of post-structuralist thought — and even with the work of the post-structuralists themselves — is the ‘absence of any partisanship and schoolishness’ (Wellbery 1990: xi).
Bernhard Siegert (Siegert 2015: 1-7; see also Siegert 2013) describes the development of German media theory through two phases. The first he sees as an ‘anti-hermeneutic’ media analysis ranging from the 1980s to the end of the 1990s, whereas the subsequent and still ongoing second phase is ‘post-hermeneutic’ with media and technology now re-conceptualised as ‘cultural techniques’. The main objective of German media theory was originally to salvage media from the technophobic ghetto of ‘systems’ that the hermeneutically oriented humanities and social sciences had isolated them into. Think of, for example, Habermas. At the same time, the chosen objects of study of this emerging field, the typewriters, televisions, cinematic and printing artefacts, and so on, all these media, now redefined as cultural techniques, could henceforth be studied independently outside of the humanities departments. The intellectual hub for this emerging discipline became the Institute for the Study of Culture and Art (Institut für Kultur- und Kunstwissenschaft) that was set up at the Humboldt University in East Berlin. With its new standing and conceptual independence centred on cultural techniques, German media theory could now develop independently and freed from the post-war anthropocentric and humanistic emphases of critical theory.
Although German media theory deals with ontological differences, it differs significantly from, for instance, the more subtle deconstructionist readings that do more or less the same thing. German media theory does not critique the doctrine of ontological difference as such but, rather, insists that all such differences are radically technical by nature. To paraphrase Siegert’s own example (Siegert 2015: 8-9), Ahab’s gradual process of turning into the raging whale with his whalebone prosthetic blurring the difference between human and animal is not rooted in any bioethical position that Melville may have held. It results from whale hunting understood as a cultural technique that produces the human/animal distinction. Without this technological ‘decentering’, ethics becomes muddled with a soppy sentimentality that simply reinvests the humanity that the vengeful and raging Ahab has lost into the consequently ‘humanised’ animal.
In the German tradition, the word ‘Kulturtechnik’ has its origins in agricultural engineering (see Winthrop-Young 2014). It referred to the technical procedures that sought to improve soil conditions like irrigation and drainage. Human evolution is marked by a series of such cultural techniques that distinguish human from animal, culture from nature, and so on. Taken a step further, the underlying claim is that this being called ‘human’ cannot exist ‘as such’ in relation to non-humans but requires cultural techniques like farming utensils to execute and mark the required distinctions. Think of this in terms of the mythological primal scene imagined by Carl Schmitt: the nomadic and animal-like hunter-gatherer becomes the settled human only when land is appropriated by marking the boundaries of a field with a fence and by tilling the soil with a plough (Schmitt 2003: 42). In a similar way, we might say that time can exist ontologically only by way of the cultural techniques that measure it like an agricultural calendar marking harvests even if the seasons while away cyclically irrespective of whether the year is measured. And more appropriately for our discussion today, we could say that law can only exist through the cultural techniques that enable it like courthouses, case files and archives. Cultural techniques are operative chains that precede the media-related concepts that they generate. Operations like writing also presuppose technical objects that are capable of performing these operations:
As a historically given micronetwork of technologies and techniques, cultural techniques are the “exteriority/materiality of the signifier.” An abacus allows for different calculations than do ten fingers; a computer, in turn, allows for different calculations than does an abacus. When we speak of cultural techniques, therefore, we envisage a more or less complex actor network that comprises technological objects as well as the operative chains they are part of and that configure or constitute them. (Siegert 2015: 11)
The materiality of these technological objects and operative chains is noteworthy here (on media theory and new materialism, see Parikka 2012b: 63-89; also Parikka 2012a). By analogy, parliamentary enactments which are materially inscribed on and communicated with scrolls of calfskin vellum will allow for different laws than enactments printed on cellulose-based archival paper — a change that happened in the UK as recently as 2017 — not to mention laws that are only enacted digitally and disseminated through binary code like the EU’s Curia database.
I’ll have to leave a deeper dive into the mercurial Kittler for another occasion.
The cultural techniques of law
The legal protagonist of this presentation is, of course, Cornelia Vismann, legal historian and media theorist, who died in 2010 at the age of 44. Having passed away so young, the body of work that she left behind is not vast. Moreover, her ‘reception’ in the Anglophone world is tainted by the same sort of distortion as those that have affected Kittler and German media theory more generally. To her English-reading legal audience, Vismann is primarily known as someone who participated in reworking French ‘high theory’ for critical purposes, but her more media-theoretical contributions have gone largely unnoticed.
Her work published in German has now been collected into three volumes. The first is her Dissertationsschrift, her doctoral thesis, Akten (Vismann 2000), translated into English as Files (Vismann 2008).
A second monograph, Medien der Rechtsprechung (Vismann 2011b), literally ‘the media of jurisdiction’, but more speculatively ‘the media through which the law is spoken’, was written during the final years preceding Vismann’s death, edited and finalised by colleagues, and published posthumously. The book develops themes that Vismann had already analysed in her first book, but this time with a specific focus on particular cultural techniques such as courtroom furniture, interpreters, the interplay between discussion and silence or between introductions and closing arguments. There have been rumours about translating it into English.
The third volume, Das Recht und seine Mittel (Vismann 2012), ‘the law and its tools’, is a collection of selected writings, mostly in German but some even in English, that covers topics from Roman law and Antiquity to high theory and technology. Some of the individual texts of the collection have appeared in English elsewhere as either articles or as chapters in edited volumes.
I don’t want to suggest that Vismann’s work has gone unacknowledged in our circles. In many ways, quite the contrary. My point is that within Anglophone critical legal scholarship, Vismann’s reception has followed the same fate as Kittler’s in the sense that an Anglo-American understanding of French high theory has been crafted into the shared interface that would enable a common ground for exchange. Such a forced reception ultimately runs the risk of excluding something that is unique in Vismann’s work. So, for example, in a recent edited volume on law and new media (Delage – Goodrich – Wan 2019), there is only one very general reference to Vismann on the opening page of the introduction even though her specialisation would have merited a whole chapter. Kittler doesn’t even get a mention.
What would Vismann’s most proper contribution to our work be?
She opens her seminal article ‘Cultural Techniques and Sovereignty’ in the following way:
Cultural techniques describe what media do, what they produce, and what kinds of actions they prompt. Cultural techniques define the agency of media and things. If media theory were, or had, a grammar, that agency would find its expression in objects claiming the grammatical subject position and cultural techniques standing in for verbs. (Vismann 2013: 83)
Vismann continues that media that set cultural techniques into motion contradict the notion recognised and embedded in law that only a subject can rule over things through action. There is a pre-existing relation between media and cultural techniques that determines the way things are to be handled even before they allow themselves to be submitted to a subject’s will. As a tool, a cultural technique, then, dictates its own use. Even if we could identify its pre-existing conditions of usage with the subjects who have designed and built the tools to carry out certain tasks in certain ways, these conditions can never be completely independent of the tool’s conditions of production, its materiality or its spatio-temporal circumstances. So, as Vismann points out, one must distinguish ‘between persons, who de jure act autonomously, and cultural techniques, which de factodetermine the entire course of action’ (Vismann 2013: 84), between legally determined actors and factual techniques. In this sense, Vismann’s brand of media theory shares certain aspects with Action Network Theory (Latour 2005):
To inquire about cultural techniques is not to ask about the feasibility, success, chances and risks of certain innovations and inventions in the domain of the subject. Instead, it is to ask about the selfmanagement or auto-praxis [Eigenpraxis] of media and things, which determines the scope of the subject’s field of action. (Vismann 2013: 84)
When we turn our eyes from ideas to techniques, we are also shifting our analytic gaze from nominally defined entities like ‘law’ or ‘justice’ to the processes through which such entities are produced, that is, to the individual steps that are included in a given operation. Production, on the other hand, implies proceeding in a structured way following a certain plan. Even if an action like throwing a snowball at a passing car may on the face of it seem completely spontaneous, the media involved — snow, hands, arm, and so on — require a planned execution. As actions are repeated, these planned operations reveal their almost algorithmic quality. So a certain ‘procedural conformity’ is involved in even the most seemingly unique and spontaneous operations through the media that are involved in their execution:
To derive the operational script from the resulting operation, to extract the rules of execution from the executed act itself: that is what characterizes the approach of cultural techniques. (Vismann 2013: 87)
As Vismann points out, the essence of all cultural techniques is to be reproducable and learnable. Academic disciplines where knowledge emphasises the importance of transferrable skills are all rooted in cultural techniques. Think of, for instance, law in its most conventional ‘black letter’ sense. Systematising a plethora of normative raw material in order to produce interpretive propositions for the practitioner involves the consolidation of complex data into doctrines — or ‘dogmas’, to use Vismann’s term (see also Supiot 2007: 3-40). Doctrines ensure that legal operations are executed independently of the individuals that may be involved and are, then, ‘the linguistic expression of particular acts of execution’ (Vismann 2013: 87).
If we view the law in this way, our gaze will, in other words, focus on the practices with which the law consolidates into routines and doctrines. Acknowledging her indebtedness to the Weberian tradition, for Vismann, the essence of law is revealed in its administrative offices and courtrooms, but now understood specifically as cultural techniques. In order to demonstrate what we can achieve by focusing on legal phenomena in this way, Vismann considers a particular medium that, she insists, is just as fundamental to the working of the law as the legal file is to the state, namely the table:
Without making any explicit decrees, it decrees nonetheless how the law is to be practiced. And without making even the slightest claim to be establishing a particular technology of culture [that is, cultural technique], by the mere fact of providing the conditions for the simple act of standing and sitting, it becomes central to the practice of law. The table determines who is placed where in the courtroom, and thereby determines who is to speak in the courtroom and in what way. The table authorizes the court to speak and authorizes one to speak before the court. Rules of procedure, legal commentary, debates over due process are all secondary in comparison. (Vismann 2011a: 310)
We can well do without the rules, the commentaries, and the debates. But if the table is removed, the whole process simply comes to a stop. So as a cultural technique, the table determines the proceedings involved in a trial without itself being a legally regulated object. The table is ‘simply there’ vanishing into the background network of co-related tools and only reveals itself occasionally if it somehow malfunctions or becomes a problem, perhaps in a Heideggerian sense of ‘unhandiness’ (see Heidegger 2010: 67-71).
Renzo Piano’s ‘salle des pas perdus’
To conclude, I wish to briefly focus here on a particular judicial artefact and to see what this thing called ‘German media theory’ could offer us in terms of new insights. My specific focus is Renzo Piano’s design for the new Paris Courthouse. I quote at some length from a 2012 ministerial press release that outlined the fundamental values on which the design was to be premised:
Tiered, thin and timelessly elegant, the construction will express the values that must govern any work of justice through the notions of transparency and openness. … The building is presented as a homogeneous entity that is composed of a transparent base which is extended by a high-rise stepped construction, the facade of which plays with light. … The plinth is dedicated to public access and brings together the 90 courtrooms allowing for shorter journeys both for the public and for judicial personnel. The Bastion building to the south, for its part, brings together the detention spaces and adjoining premises and isolates the functions requiring specific security measures thus optimising the protection of the palace. … The architecture avoids the archetype of the office tower and the caricature of the monumental scale of a classic tower thanks to a composition of three superimposed sets consisting of ten floors each that creates a cascade of terraces inviting nature with generosity. It is a vertical city including places reserved for conviviality and organised to serve the judicial functions in a setting that is conducive to the serenity necessary for the exercise of justice. (Présentation du futur palais de Justice de Paris 2012: 9-10 [my translation])
The message embedded in the ministerial press release opens up in a very particular way. The ‘exercise of justice’, that is, the operative execution of judicial power, requires a certain ‘serenity’. The press release goes on to associate this serenity with ‘transparency and openness’ that are allegedly essential to the ‘exercise of justice’. For the architect, the design of the courthouse merely ‘reflects’ these essential characteristics. In other words, justice ‘is’ essentially transparent and open, and the aim of the designed artefact is to merely highlight the values by juxtaposing light with darkness.
This can be seen in the courthouse vestibule called the ‘salle des pas perdus’ in French — literally the ‘hall of those who were not lost’ — where the incoming natural light represents the values of transparency and openness and what they allow us to see. The luminosity also reveals a number of other distinctions that the ‘exercise of justice’ is allegedly founded on. To cut a few corners here, the common hermeneutic way of interpreting this is to claim that law is invested with particular ontological characteristics that it either exhibits or that it at least should exhibit. Through law, for instance, the state exercises public power but also enables individuals to make claims within their rights. The structure of judicial power is essentially hierarchical allowing for oversight and control from both higher norms and appellate institutions. The force of law is not only restrictive or punitive, but it also enables individuals to achieve designated ends. The judiciary is an efficient modern bureaucracy, but its ‘exercise of justice’ includes the discretionary wisdom of an enlightened tradition. And so on.
If we think of the courthouse design as a cultural technique in Vismann’s (et al) meaning, we would read all this the other way around. Law is ontologically ‘empty’, it has no such ontological characteristics to begin with, so no design can ‘reflect’ them. They can only be attributed to law if we first focus on certain processes and operations that invest law with them. So, for example, law becomes hierarchical only through the cultural practice of the tiered courthouse, it attains the quality of transparency only through the cultural practice of the luminous vestibule, and so on. Perhaps we can, as a working hypothesis, sum this up by saying that just like Vismann’s courtroom table, Renzo Piano’s luminous ‘salle des pas perdus’ exists outside of the official legal repertoire as an element of the materiality of the building. But it invests the values of transparency and openness into everything that happens inside the courthouse by supposedly allowing us to see. We, of course, know that it is just a spotlight. At the same time as it illuminates something to be seen, it leaves something else in the dark.
For now, I’ll leave it at that.
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