Law’s Force, Law’s Farce

Books about law are often utilitarian. But perhaps sometimes we should embrace sublime uselessness.

We are living in a moment of legal shock. A highly politicized far-right court is rapidly undoing a half century and more of jurisprudence. In the space of a single week in June, the Supreme Court effectively outlawed gun regulation, eviscerated environmental protection laws, gave schools the right to institute Christian prayer, repudiated one of the historic foundations of Native American sovereignty, and declared that women have no greater right to life than fetuses. We knew it was coming, but not quite like this.

That week, messages tore across social media with the constant refrain: “What is to be done?” The responses were by turns angry, revolutionary, utopian, escapist. “We’ll fight them with everything we’ve got!” said one. “We’ll blow up the Supreme Court!” said another. “We’ll all move to Australia!” (a singularly unhelpful idea, but fortunately no one ever actually moves to Australia).

Not so long ago, law seemed to be the force that could achieve what politics couldn’t. The Supreme Court outlawed segregation, established a right to reproductive privacy, required that police inform criminal suspects of their rights, and more. As the Court moved rightward in the 1980s, those on the left came to feel that law was not their friend. Yet legal radicalism remained a kind of promise. Revolution in the courts might still someday sweep away precedent, making way for true equality. Meanwhile, one could work on deconstructing law, in order to shake loose its foundations.

But these days, it is hard to feel enthusiasm for shaking foundations, sweeping away precedent, or deconstructing the house of law. For, now, law seems to be deconstructing itself. And there has been no court more radical than the current one.

Since the initial shock in June, a certain grim legal pragmatism has set in. After Dobbs v. Jackson Women’s Health Organization (the decision that overturned Roe v. Wade), maybe all we can do is slow down legislation banning abortion. After New York State Rifle & Pistol Association v. Bruen (which created a constitutional right to brandish a gun in public), maybe all we can do is slip in a background check and hope for fewer mass shootings.

Maybe with patience we can slowly chip away at the edges of these decisions, in all their violence. Not merely a depressing prospect, but actually a tragic one, if one thinks about the consequences. Even those of satiric bent may be disinclined to laugh.

Perhaps chipping away at bad laws is more useful in the long run than grand visions of justice. If a background check saves a single life, that is surely better than vague preaching. But revolutions, even the bad ones, have a way of making one think. So, while we undertake whatever patchwork legal redress is possible, it may be worthwhile to also step back and look at just how strange our legal universe can be—and then to imagine a different one.

This is what The Cabinet of Imaginary Laws proposes to do. The collection of 34 short essays and stories came together under the shadow of Trump’s Supreme Court appointments and Boris Johnson’s right-wing premiership in the UK. In their dialogue “Prelude,” the iconoclastic legal scholars Peter Goodrich and Thanos Zartaloudis describe the contributors as a group of “anarchists,” “jurists,” “druids,” “musicians, architects, poets,” “bicyclists and other ambulators, sober and stoned.” Together, they would “experiment with law”: “tar together [its] force and [its] farce” to produce a “wild jurisprudence” (as Goodrich explains in his signature baroque style),—a set of “dystopic, heterotopic, protreptic and proleptic poems and treatises” dedicated to “reverie and renewal.”

Like an 18th-century cabinet of curiosities—in which an ancient scroll may sit beside a stuffed salamander, a unicorn horn, a clockwork clown—the collection is exuberantly anarchic. It places history beside fantasy, celebrating the promiscuous mingling of the incommensurable and the poetry of chance encounters. The result is an extraordinary collection of legal fantasias: visions of utopia and dystopia; tales of weird and wondrous legislation; philosophical ballads; lampoons and dreams; and the occasional earnest disquisition (just to keep things interesting). Mysterious characters populate its pages: for instance, Tobias Smith’s Borgesian heretic Adolphus Valenti, whose sect’s worship practices include “ritually consecrating exfoliated skin, depilated hair and other human detritus in wet soil.”

From one perspective, we might view The Cabinet as a serious work of legal critique. Many of the essays do, in fact, read like legal theory, though of an imaginative kind. But if there is theory here, its antecedents are not Aristotle or John Rawls, but Don Quixote, Gargantua and Pantagruel, Cupid’s Jurisprudence, The Island of Jurists, The Ship of Fools (to draw from Goodrich’s list). Like these, The Cabinet’s contributions are quixotic, whimsical, occasionally rhapsodic, with a good dose of irony—offering untamed visions of alternative legal universes, some of which uncannily resemble our own.

In Hayley Gibson’s extraordinary “The Court of the Monuments,” an unnamed city has risen up in protest against its monuments, which stand as grotesque tributes to a cruel past. The authorities decide to put the monuments on trial. Some of the accused are colossal, so the only space large enough for the trial is the public square. However, the prisoners cannot remain at large and on display, so the city deputizes the Court Architect to design a courtroom in the square. It includes a gallery with a long window: as the public crosses the once-public square, they can look down at the proceedings.

To prevent the monumental defendants from diminishing the judges’ dignity, the Architect has created three towering chairs, which the judges mount by means of ladders, perching there “like birds in the rafters.” The accused begin to arrive, dangling from chains as cranes transport them across the city to the prisoner’s dock. But, meanwhile, there is an underground resistance: descendants of the people the monuments honor have secretly begun to rescue the monuments, sometimes harboring the fugitives, sometimes destroying them (deeming this preferable to the shame of a trial).

At the same time, monuments have begun to reappear on their pedestals. These turn out to be copies—and soon the authorities start producing their own to replace the originals that have disappeared from custody. Half the working population takes up apprenticeships, and factories dedicated to producing copies spread across the city. Saboteurs with explosives destroy whole warehouses, but the faster the monuments disappear, the faster they return. One day, a hairline crack appears in the courtroom dock, slowly creeping across its expanse until the dock gives way under the weight of the stone defendants: walls shake, the gallery window shatters, and all flee the Court. There is only one option: the Court must expand. As its walls and roof begin to loom over the city, the inhabitants start to leave. Monuments fill the abandoned dwellings. Displaced residents beg for an end to the trial, but it wears on. Years pass. Until one day there is no public left to watch, no judiciary to try the monuments. But the last Court Historian has ordered recordings of the witness testimony, which play in perpetuity, “resound[ing] forever in the avenues of unhearing giants.”

Inutility gives one space to think with an otherwise impossible integrity.

My summary might suggest that Gibson’s story is a cautionary tale: do not remove monuments, or where will it end? But to flatten her Kafkaesque dystopia into a legal op-ed would be to destroy it. For its power lies not in argument but in the encounter it offers with the dizzying and inescapable vortex that is law.

The same can be said of even more bluntly satiric pieces, which may target certain, specific abuses but also have a resonance that exceeds applicability. For instance, in David Campbell’s Swiftian “Proof of Judicial Omniscience Act,” we learn that the UK Ministry of Justice faces a problem: judges have been legislating from the bench, overriding the will of the legislature. At times, of course, this is necessary, for instance in recent rulings combatting the legislature’s “unfortunate socialist aspiration[s].” If only all the judges were so omniscient. Indeed, creating an omniscient judiciary seems a worthy aim. But how?

At first, the solution seems easy: judges will simply self-identify, testifying to their own omniscience. However, there has been “a most unfortunate excess supply of candidates.” After a lengthy search for a means of selection grounded in time-tested principles of jurisprudence, one is at last found: ducking. The procedure, of course, originated in the benighted days of witch trials. The alleged witch was placed on a stool attached to one end of a beam that rotated on a pivot, dunking her into the water. If she floated, she was clearly guilty. Updated for a more enlightened era, ducking would serve as an excellent test of judicial omniscience. If candidates persisted in proclaiming their omniscience after multiple duckings, their fitness would be beyond doubt (as recent US Supreme Court appointments showed). Early trials have led to improvements, the most important of which is a change in the ducking medium: from water to excrement. Despite a few unfortunate incidents with the proprietary new ducking mechanism (the “dipshit,” which has occasionally incidentally spattered family members), the results have exceeded expectations. The procedure has weeded out the merely grossly self-satisfied, yielding a crop of judges impervious to the noxious odor they exude and endowed with a godlike certainty of their omniscience.

In this moment of right-wing revolution, one might be tempted to ask: Of what use are “imaginary laws” if they suggest no remedies? They may offer escape into futurist fantasy, as in Andreas Philippopoulos-Mihalopoulos’s Ad Vitam Aeternam Act, which has mandated eternal life for all “humans.”  They may offer a glimpse of utopia, as in Aristide Antonas’s protocol for a State of Mobile Rooms that circulates among host cities, guaranteeing security to its refugee citizenry. They may offer the perverse pleasures of lampoon, as in Pierre Schlag’s account of the 2048 Judicial Conference at NYU-Bermuda, where the old Constitution is discarded piece by piece until all that remains is the Postal Power—a private corporate entity that now sustains the legal fiction of the “United States.” They may offer lyric history, as in Piyel Haldar’s account of the epiphany of the antiquarian Alfred Watkins, who, on a hillside in Herefordshire, suddenly saw that the Earth herself had drawn “ley lines” (law lines) in the landscape at the dawn of time.

But, in this moment when Rome is burning, is it not somehow obscene to dally with poems about law?

Maybe. But it is also surely too much to demand a solution to our current catastrophe, even from a book about law. We tend to insist that books about law be useful—that they intervene in the world to fix a practical problem. We don’t demand the same of works of art or literature. In moments of anguished soul-searching, we may ask if they are ever any use, but, at other times, we think: The more useless, the better.

In some ways, The Cabinet seems to stand for the proposition that texts about law should also, sometimes, be sublimely useless.1 There is, in fact, much to be said for such principled inutility. Utility demands compromises, sometimes stomach-turning ones. Inutility gives one space to think with an otherwise impossible integrity. Inutility may act, as in Georges Bataille’s famous phrase, as a form of “unproductive expenditure.” It may defy the worldly productivity-profit calculus—the calculus that lies only thinly veiled behind such decisions as New York State Rifle. It may replace the smug certainty of policy proposals with openness to discovery. In this, inutility may represent the three qualities that Stephen Webster identifies here as central to inquiry: innocence, reticence, and intimacy.  It may allow us to stop tinkering with broken things.


When Law Attacks the Rule of Law

By Bernadette Meyler

As we struggle to find cracks in the recent Supreme Court decisions, one thing The Cabinet can do is remind us that trivial tweaks will not cure what ails law. Catastrophes—and of course also the slower catastrophes of policing or the prison system—demand not just patches but a more fundamental rethinking. Legal theory may, of course, give us that, in a sober sort of way. But it tends to cleave to what Goodrich describes as “the over-optimistic science of laws,” and thus stultify discovery. As he and Zartaloudis suggest in their opening dialogue, imaginary laws may break up the clods of earth, so that new things can grow. At the same time, they may show us law as it really is by holding up a mirror, saying: You yourself are nothing but imaginary. (Or, as Alice in Wonderland cries to the King and Queen of Hearts at the trial of the Knave: “You’re nothing but a pack of cards!”) In the everyday work of law, we “forget the crevasse from which … laws emerge,” writes Zartaloudis. This is so even in the most prosaic sense, for all laws project the future through an act of imagination, with hope and sometimes longing—a point that Swethaa Ballakrishnen makes in their beautiful essay on imagining the other in contract. Less prosaically, imaginary laws show us how truly weird law can be. (Read the recent Supreme Court decisions and you’ll see what I mean.)

In showing law to be always already imaginary, such fantasias produce “an aperture”: “a cleft, clough, [or] chink,” as Goodrich writes. This chink may serve as a tiny, illuminated window. Or it may serve as an opening for an idea that might actually take shape in law.2 Or it may be the beginning of a crack that will spread until the wall falls. Or it may do nothing for a while–—that is OK, too.

If there were ever a time for confessing that our certainties are not at all certain, this may be it. Viewing precedent as a “prison hous[e] of prior judgment” (as Goodrich puts it), we may have failed to notice that it can sometimes be a bulwark against worse things. (Standing before the oncoming train of gun-brandishing Christian fundamentalist rule, we now pray that it may be). And, as for legal radicalism, it was always rather vague, and maybe dubious at best. Opening ourselves to uncertainty—the innocence and reticence that Webster advocates—may look like quiescence. If we are reticent, how can we reverse Dobbs or New York State Rifle or all the other decisions?

The answer may be that we can’t. Our hands may be tied, and like “X” and “Y”—the Vladimir and Estragon doppelgangers in Stacy Douglas’s “Waiting for Law”—we may simply have to wait:

Y: But what are we to do then? Just sit here?

X: [Defiantly] Just sit here.

Y: And wait?

X: [Confidently] And wait.

I am tempted to end this review here, but that cannot be the ending. There is a limit to inutility, and a time to turn it back toward the world.

Imaginary laws may help with that too. They may allow us to envision the impossible as possible, to project the “reality of the not yet” into the now. For it is clearly “impossible solutions that are needed, imaginary conversations, tabula rasa as the page upon which the future is writ.”


This article was commissioned by Nicholas Damesicon

  1. Goodrich’s absurdist tour-de-force, “An Act for the Elongation of Noses,” exemplifies this principle.
  2. An example: Linda Mills’s “Law in the Round Act,” which replaces punishment for intimate violence with treatment “in the form of (therapeutic) circles that untangle the meaning of the harm.”
Featured Image: Photograph by K. Mitch Hodge / Unsplash (CC0 1.0)