Visualizing Law in the Digital Age

In anticipation of Bard’s upcoming fall conference (“Human Being in an Inhuman Age”) and reflecting upon several related threads in recent blogs (regarding “the wonders of man in the age of simulation”), I’ve found myself thinking about Rabbi Joseph Soleveitchik’s observations concerning the profound split in human nature.

It’s a division Soleveitchik traces back to the two creation stories in the Old Testament. In the first creation story (“Genesis I”), we read: “God created man, in the likeness of God made he him.” Created in God’s likeness, the first Adam stands as both the model and champion of humanity’s instrumental mastery over the earth and all that it contains. (“Fill the earth and subdue it, and have dominion over the fish of the sea, over the fowl of the heaven, and over the beasts, and all over the earth.”) Humankind’s mimetic faculty, in other words, correlates to material mastery. In the second creation story, by contrast, we find no reference either to images or to mastery. Instead, we read: “God breathed into his nostrils the breath of life; and man became a living soul.”

The chief variation in this version consists in the gift of life in the form of God’s breath. With the introduction of this immaterial element, the second creation story shifts focus, along with its normative register. Dominion over the material world gives way to a very different purpose. Placing Adam in the Garden of Eden, God instructs him “to dress it and to keep it.” In other words, mastery now yields to solicitude and conservation. If the first Adam is the master of creation, the second Adam is its self-denying caretaker. In short, if our first nature is instrumental, in the service of command and control, our second is responsive, mindful of that which requires care or service.

Today, it is the spirit of mastery that seems to be on the upswing. Whether it’s the culture of digital gaming, or the likes of Kurzweil’s immortal “spiritual machines,” or in popular films like The Matrix and Dark City, the message we hear is: “you can have it all!”

(from Dark City [1998])                                                              (from The Matrix [1999])

Dreams and the will to power, desire and reality, converge. Yet, it is this very convergence that may threaten the human – if we think of the “human” in terms of finitude, suffering, fragility, and the inevitability of uncertainty. This human reality is precisely what the will to material mastery (and dreams of digital immortality) deny. In this respect, Genesis I trumps Genesis II. The impulse to control is displacing our capacity for self-demotion in the service of what is other (beyond control). Otherness precludes mastery. Instead, it invites wonder. Wonder is the way we respond to that which goes beyond rational or instrumental control or mastery. This is the sublime. We experience it in the infinite call of nature (“beauty”) and in the infinite demands of the other who stands before us (“the ethical”). Judgment (of the beautiful and the just) begins in wonder, in the face of the real.

Sherry Turkle writes that digital simulation tends to undermine our fealty to the real. If this is so, authentic judgment may have no place in the domain of digital simulation. That claim looms large when law itself migrates to the screen (e.g., in the form of visual evidence and visual argument in court). Over the last decade or so, initially in my book When Law Goes Pop (Chicago: 2000) and more recently in my book, Visualizing Law in the Age of the Digital Baroque: Arabesques & Entanglements (Routledge: forthcoming 2011), this phenomenon has preoccupied my attention. What happens when visual images become the basis for judgment inside the courtroom? How does the image – the amateur documentary, the police surveillance video, the fMRI of brain or heart, or the digital re-enactment of accidents and crimes – affect law’s ongoing quest for fact-based justice? Upon reflection, it becomes plain that judgments based on visual images arise in a different way, with different aesthetic and ethical consequences, than when they rest upon words alone. Nor is visual literacy a given. We need to carefully decode the truth claims of images on the screen, but in order to do that we must first crack the code that constitutes the meaning they provide. And the code changes with the kind of image we see. Regardless, we all tend to be naïve realists when it comes to images. “Seeing is believing.” We tend to look through the screen as if it were a window rather than a construct.

When law lives as an image on the screen, it lives there the way other images do, for good and for ill. Law emulates the cultural constructs of popular entertainment as well as the aesthetics of science. When law lives as an image it, too, takes delight in images of a brain glowing with the beautiful, digitally programmed colors of visual neuroscience. Thus, the images on which legal judgments are based may serve as factual anchors or merely as a source of aesthetic delight, as reliable information or as unmitigated fantasy or illicit desire. So it’s no idle matter to ask, in what reality (if any) does the digital image partake? When fact-based justice rests upon digital simulation its claim to truth may come from a fantasy.

Like an image, law invites us to forget or deny what lies beyond its mimetic (figurative) aspect. Law’s oscillation between aesthetic form (image, figure, copy, text) and moral authority reenacts humanity’s historic vacillation between the two poles of our nature: mastery (Genesis I) and service (Genesis II). In the endless dance of power and meaning, Adam I and Adam II recapitulate the King’s two bodies, the letter and spirit of the law. Law oscillates between these two poles. Law commands, but it wants its commands to be accepted not simply out of fear of punishment, but also, even more importantly, in the belief that it is just. Without good (non-punitive, moral) reasons to accept its coercive power, law remains merely a gunman writ large.

And so, in a visual age like ours, it becomes incumbent upon all of us – jurists and lay people alike – to discern with great care whether or not the screen images we see are capable of bringing justice to mind.