Ari’s partner Maiju requested us all to remember a story or an anecdote about him and to share it with those who are attending the memorial service today. Unfortunately I can’t be there, but I would probably have shared a (much) shorter version of this.
I don’t remember exactly when or where I first met Ari. Most likely we spotted each other in the Helsinki law school cafeteria in the mid-1980s because of the coifs that we both sported. Ari was a cross between David Sylvian and the ‘thin white duke’ with a heavy splash of hairspray domesticating the natural curls that he wasn’t fond of, and I, for my part, had shaved the sides and back of my head clean with a wedge hanging over mohawk-style. In a faculty mostly known for acrylic suit trousers and hard plastic business briefcases, haircuts like that tend to gravitate towards each other. Shortly after that we were both studying for exams and writing essays in Café Colombia, a popular spot in the city centre in the Alvar Aalto designed office building Rautatalo.
Ari was determined to become a tax lawyer because, as he quite rightly pointed out, ‘that’s where the money is’. Like an older brother who over-controls his sibling’s love life, I sensed that this would not be a good match. So with some cunning, I nudged Ari closer to my own professional plans that did not include tax law. I first recruited him into the student law society’s media team that, at the time, was practicing some form of ‘gonzo journalism’. After reading Ari’s published poems and short stories, I was even more convinced that not only would Ari do well in academia, but that academia needed Ari just as much.
We both signed up for the same LLM dissertation module in criminal law knowing that the lenient seminar leader would give us leeway in choosing our topics and perspectives. Ari wrote his dissertation on abolitionism as the theory of the anti-prison movement (this is before Foucault’s big breakthrough, so we’re mainly talking about Thomas Mathiesen, Louk Hulsman and Herman Bianchi), while I focused on criminal protests and rioting as expressive forms of political contestation (drawing mostly on Brummie subcultural theory). The work that we did for those dissertations found its way into our first international publication, a co-authored ‘dystopian manuscript’ that came out in Contemporary Crises in 1987, and apparently only after some forceful persuasion from Stanley Cohen who was our only ‘peer-reviewer’.
As part of that dissertation module, we also attended our first international seminar. The whole module group set out for Oslo with our professor chaperoning. Over the years, I got to travel a lot with Ari, and it was always a thrill. Not always in an unequivocally good sense. In this instance, we first took the overnight passenger ferry to Stockholm with train tickets for Oslo from there. On the ferry, Ari made friends with the road crew that supported the onboard entertainment. It turned into an all-nighter with the nightclub dance band’s road managers and sound engineers and continued the following day in Stockholm at the hotel where the crew was supposed to rest before their trip back. Evening came and the departure time of our train approached, and the rest of the entourage waited at Stockholm Central Station wondering what was keeping Ari, whether he’d make the train at all, or if he’d be left behind stranded. He showed up from the dead of night at the last minute.
The main seminar in Oslo was mostly a heated debate with feminist criminologists of a Maoist persuasion who had a very no-nonsense approach to crime and crime prevention. Later in the evening we attended a meeting of a local inmate organisation (Straffedes Organisasjon i Norge, SON), and to the disquiet of our chaperone, Ari and I quietly slipped into the Oslo night with the inmates and activists. We had also set time aside to interview the radical legal sociologist Thomas Mathiesen for our student law society magazine.
During our days (was it a week?) in Oslo, we established base at the trendy Café de Stijl on Skippergata where we continued to work on our dissertations. We also plotted ways in which we could agitate the ‘woollen stockings’, as we affectionately called our left-leaning colleagues from the earlier generation. We were impressed by the way in which the different Nordic anti-prison associations had ‘acronymised’ themselves into a series suggesting kinship: KRIM, KROM and KRUM. We wanted to somehow participate in that kinship series but disrupt its straight-faced seriousness. And so at de Stijl, we devised our own ‘association’: the Collective for Negative Criminal Philosophy (NEKROFIL). I can’t exactly remember how we managed to justify that acronym, but I do remember that it had to be a ‘collective’ and not an ‘association’, and that the word ‘negative’ was our forerunner to deconstruction. Upon returning home, we printed letterheads with the stylised letters NEKROFIL accompanied by John Tenniel’s Hatter in chains as our logo. We used our letterheads to communicate written ’radical statements’ that no-one, of course, had requested.
By that Oslo seminar, Ari’s projected persona was already morphing from the ethereal ‘thin white duke’ into something more akin to a rock star with black skinny jeans, boots and a gaucho hat. His inspiration was a Finnish punk-rocker called Andy McCoy, best known from the band Hanoi Rocks. During the last post-seminar days in Oslo, Ari amused himself — and me — by approaching locals randomly and telling them in his clumsy and make-believe cockney accent: ‘Do you know who I am? I’m Andy McCoy.’
Ari’s enthusiasm for this role-playing diminished considerably when we entered a local record store and found all of Hanoi Rocks’ LPs in the sales bin for the equivalent of a few euro each.
This is by far the hardest thing I’ve ever had to write.
Yesterday evening my beloved friend and cherished colleague Ari passed away. The emotions are still too raw to be eulogised into anything meaningful. But for those of you with whom we have stayed in touch through these digitised media, especially over the last few years, hopefully this short message will be enough for now.
Ari slept away peacefully with his loved ones by his side. He had battled with ill health for longer than most of us had realised. During his final days, Ari was generous enough to receive friends. He may have drifted in and out of consciousness, but during his better moments, he would clearly acknowledge our presence, maybe mumble a word or two, and smile faintly.
This is a written version of a presentation I gave at a seminar called ‘Law at the Vanishing Point? Reflections on the Rule of Law Beyond the State in the 21st Century’, organised by Dr Massimo Fichera, on 17 May 2021. My thanks to the participants for their comments.
Perhaps we have Orban and Kaczyński to thank for something. Often grand constitutional statements like Article 2 TEU about the Union being founded on ‘core values’ like the rule of law tend to be window dressing. At least the core values are now being put to the test. But whether these values remain merely ‘reactive’, or whether they can amount to something more than that, something ‘beyond’ as the title of today’s event suggests, that remains to be seen.
My own title may require a few words of explanation, as well. The question mark at the end of my subtitle refers, of course, to a rhetorical question. The critical debate about the alleged ‘core value’ has revolved around the rule of law as a legalistic cornerstone with which the neoliberal ethos of the Union and its member states has been sealed. For someone of a critical persuasion, the rule-of-law hullabaloo that Orban and Kaczyński’s antics have caused simply looks like five steps backwards, a nostalgic view of a Europe that supposedly existed before right-wing populism stirred things up. For my part, I wish to retrace some of those steps and to see whether there is still something salvageable.
In order to do that, I have to begin in the Global South. In the landmark case State v Makwanyane and Another (CCT3/94) from 1995, the Constitutional Court of South Africa established that capital punishment was inconsistent with the commitment to human rights as that commitment was expressed and entrenched in the country’s 1994 Interim Constitution. For our purposes today, what is perhaps more important is an elaboration on the nature of that Constitution that Justice Ismail Mahomed added to the ruling as dicta:
In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. (Paragraph 262)
Mahomed’s dicta, among other case law, has been at the heart of a debate that focuses on the unique nature of the two South African post-apartheid Constitutions as instruments of social and political transformation rather than as restrictive juridical ‘iron cages’ as implied in my Weberian subtitle. The theoretical framework that can be extracted from the debate has been called ‘transformative constitutionalism’, a term first coined by the American critical legal scholar Karl Klare in a presentation from 1998, and that has since become a cornerstone of progressive and radical constitutional politics in the Global South. After going through the main points of this subaltern debate — which many of you may be familiar with already — I will continue to argue that transformative constitutionalism is a noteworthy ingredient of progressive constitutional politics in the Global North, as well. Or at least that it should and could be. I will conclude that even the most ‘substantive’ definitions of the rule of law that have been presented in more or less contemporary views about the Union and its member states — indeed, about the rule of law as a ‘European value’ — fall short of any ‘beyond’ suggested by the title of today’s event.
Freedom and constraint
So first to South Africa in 1998, i.e., roughly a year after the new Constitution came into effect. Klare begins his presentation by noting how constitutional adjudication can never be merely the formal application of a given set of legal sources if it is to comply with the more demanding aspirations of democracy. Klare builds his arguments on the notions of freedom and constraint familiar from Duncan Kennedy’s vocabulary (Kennedy 1986; Kennedy 1997).1 An adjudicator, Klare insists, will always be confronted by the conflicting tensions of freedom and constraint. In the case of the South African Constitution, she will encounter a solemn and usually rather abstract text that requires her to acknowledge a ‘never-again’ past and to commit herself to pursuing various aspects of social justice. And yet, at the same time, adjudication can never be completely open-ended in the sense that judges — and by extension lawyers in general — would be free to realise the personal vision of freedom, justice and democracy that the abstract text may suggest. And so Klare concludes that:
A commitment to legal constraint (evoked in the mantra ‘rule of law’) seems to be a foundation of the democratic-transition enterprise. (Klare 1998: 149)
It is, then, clear that for Klare any traditional notion of the rule of law works as a restraint, and even an impediment for realising any of the truly transformative aspirations that may have been enshrined in the Constitution. Consequently, he asks, perhaps he too in a rhetorical fashion, whether we should develop a ‘revised, perhaps somewhat more politicized, understanding of the rule of law and adjudication that can consist with and support transformative hopes’ (Klare 1998: 150). The main aim of my intervention today is, of course, to respond in an affirmative manner. Klare’s definition of transformative constitutionalism centres around a long-term project of ‘transforming existing political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’, that is, ‘inducing large-scale social change through nonviolent political processes grounded in law’ (Klare 1998: 150). And for Klare, such a project is made possible by the postliberal nature of the Constitution. Some of the South African Constitution’s aspirations such as equality, redistribution and social security can still be inferred from traditional welfare state ideals. But it contains much more than that. In particular Klare singles out multiculturalism, the attention to gender and sexual identity, emphasis on participation and governmental transparency, environmentalism and the extension of democratic ideals into the private sphere:
the South African Constitution, in sharp contrast to the classical liberal documents, is social, redistributive, caring, positive, at least partly horizontal, participatory, multicultural, and self-conscious about its historical setting and transformative role and mission. (Klare 1998: 153)
Within these rather broad and vague definitions, Klare points out that traditional liberal welfare ideals seem to suggest an interpretive culture that is more ‘legal’, whereas pursuing postliberal ideals appears as ‘political’ and, hence, non-legal. In line with his CLS pedigree, Klare claims that this is a false dichotomy and that ‘mainstream, traditionalist interpretations are every bit as “political” as the postliberal interpretation, and the latter is every bit as “legal” an interpretation as mainstream exegesis’ (Klare 1998: 152). Liberal constitutionalism sees the idea of transformative adjudication as problematic because it suggests that judges are also ‘super-legislators’ with competences to advance their personal political agendas. The politics of unelected adjudicators are seen as suspicious, however well meaning. And so the liberal interpretation of the rule of law is specifically tasked to filter out politics from adjudication and to ensure that adjudicators remain neutral interpreters and enforcers of laws that are passed down by the democratically elected legislators. Klare specifies:
In all traditional accounts, the rule-of-law ideal is premised on a radical disjunction between law and politics and a sharp role-differentiation between what judges do and what politicians and political theorists do. So, the very idea of transformative adjudication seems out-of-place within liberal legalism. (Klare 1998: 157)
The constraint that a traditional liberal notion of the rule of law represents is, Klare emphasises, an ‘experience’ that a legal actor may have in her dealings with legal materials. Constraint is not some objectively knowable quality that is inherent in the legal materials themselves but, rather, a matter of feeling, belief or conviction that arises from working with the medium. There are, then, no neutral procedures that could objectively and definitively determine how much restraint a given set of legal materials would require (Klare 1998: 160). Put differently, the rule of law is a blunt tool, and we can never be sure what if extracts and filters out and what not. So it is impossible to completely exclude the adjudicator’s personal or political values and sensibilities from interpretation ‘not because judges are weak and give in to political temptation, but because the exclusion called for by the traditional rule-of-law ideal is quite simply impossible’ (Klare 1998: 163). The most palpable consequence of this is, of course, that the stark(-ish) separation of law and politics that liberal constitutionalism relies on is, in the endgames, untenable.
The broken middle
There are two aspects about Klare’s presentation that we might wish to make a note of at this point. First, its focus is almost uniquely on the role that the rule of law plays in constitutional adjudication leaving other forms of political action, be they law-related or not, into the sidelines. This focus reformulates the main question of his article from transformative constitutionalism as a more comprehensive political project to defining the limits of adjudication. This focus on the courts rules out deliberations on, e.g., the constitutionally relevant role of other actors in civil society. Second, the problematic relationship between law and politics that is at the core of Klare’s arguments may be strained, but, so it seems, it is somehow resolvable. It is a ‘dialectic’ (Klare 1998: 149), as Klare at one point somewhat nostalgically explains. This starting-point rules out exploring other options where the tensions of the relationship may not be resolvable at all but are, indeed, an agonistic resource (Minkkinen 2020a).
With these two observations in mind, I’d like to continue developing my argument by drawing on Karin van Marle’s response to Klare. Van Marle, South African legal theorist and Professor at the University of the Free State in Bloemfontein, was also a speaker at the original event in 1998 where Klare first presented his ideas about the transformative nature of the South African Constitution. But my engagement with van Marle is from a later text that she published in 2009 following an event marking a decade after Klare’s original presentation. Van Marle feels that her original response to Klare may have been misinterpreted as an attack, and so in this subsequent text she wishes to clarify and to develop her original ideas. Van Merle’s understanding of what she tentatively calls ‘transformative constitutionalism as critique’ is certainly broader than Klare’s. It views the Constitution — and law more generally — with a commitment to transforming political, social, socio-economic and legal practices in a way that would alter existing assumptions about law, politics, economics and society:
What makes [constitutionalism] “transformative” is precisely a break with what Klare calls traditional accounts of the rule of law thereby reaching amongst other disciplines to philosophy, political theory and sociology. (Van Marle 2009: 288)
So we can see that van Marle is specifically calling on legal scholars encouraging them to break free from the limitations of an unnecessarily comfortable relationship with the legal practice. Van Marle relies on an observation that Klare had made about the conservatism of South Africa’s lawyers that, perhaps, betrays a closer kinship with a German legal culture than with a common law one and that places more emphasis on form and procedure than on outcome. This aspect of South African legal culture imposes considerable limits on the law’s ability to embrace politics and political community. Klare’s notion of transformative constitutionalism as ‘large scale social change through non-violent political processes grounded in law’ becomes impossible because ‘legal rules function as “exclusionary reasons” and political considerations, balancing and reflexivity will not be possible within the limits of the law’ (Van Marle 2009: 293). So we are aware of a certain legal limit that prevents us from fully addressing the positions of others, but at the same time transformative constitutionalism encourages us to go beyond the law and to do the groundwork for more generous adjudicative approaches. Van Marle calls the experience of this paradox ‘playing with both hands’: at the same time as we point out to the practitioners that they haven’t fully lived up to the challenge of the Constitution, we know full well that they never really can (Van Marle 2009: 294). It is this paradox that van Marle wishes to address with her notion of transformative constitutionalism as critique.
Van Marle does so with the help of a rather crude intellectual history of the aftermath of American Realism. She notes that after the 1930s, realism developed into at least two identifiable streams. A first stream took on board the realist distinction between law and morality and ended up as a free market positivism with a keen interest in policy-making and the institutional relationships between the judiciary and other state branches and authorities. These themes were reflected particularly in the work of law and economics scholars, policy-driven socio-legal researchers and legal pragmatists. In terms of transformative constitutionalism, these emphases paved the way for what van Marle calls an instrumental/functionalist approach. The other stream morphed into the American version of CLS — Klare being one of its best-known figures — which, despite having no single unified identity, endorsed a much more radical position in relation to law and politics. In addition to the different variants of American CLS, this second stream included certain strands of feminist theory and politics, critical race theory and identity politics, as well as the more interdisciplinary departures from law that involved insights from continental philosophy and post-structuralism. Van Marle situates her critical approach closer to this second stream that, at least potentially, avoids some of the trappings of ‘playing with both hands’ (Van Marle 2009: 294-295).
For van Marle, transformative constitutionalism as critique is, however, not a simple solution to a clearly articulated socio-political problem. Drawing on Gillian Rose (Rose 1992) she claims that:
Transformative constitutionalism as a critical project lies within a liminal space and time, a precarious and uncomfortable space and time or … a space of double anxiety and sustained equivocation, a broken middle. It must be a site of active political action and struggle, of active engagement with law; a site that entails an unsettled and unsettling approach. (Van Marle 2009: 297)
So precarious, uncomfortable and unsettling: these tensions within which legal actors must elaborate on the relationships between law and human living are a result of numerous dichotomies such as law’s potential and its limits, constraint and freedom, doctrine and theory, analysis and critique, the social sciences and the humanities, and, indeed, ratio and voluntas or apology and utopia. Van Marle, for her part, draws on Adriana Cavarero’s notion of weaving (Cavarero 1995: 11-30) as a metaphor for the way in which one can and should deal with these tensions if the epithet ‘transformative’ is to have any serious political meaning at all:
The weaving invokes a certain rhythm, a certain action of engaging the various tensions without lifting the tension, solving the tension or reaching any new synthesis. It is a continuous weaving within a liminal space. (Van Marle 2009: 298)
In other words, if I understand her correctly, van Marle is here not advocating any relief from the tensions. Perhaps quite the contrary, she is warning that even attempting to resolve the tensions will inevitably cause us to fall back on traditional notions of the rule of law or, at best, only reach an instrumental or functional notion of transformative constitutionalism.
One might be tempted to bypass this debate by claiming that it addresses mainly subaltern concerns. In a much more recent text, Michaela Hailbronner makes the convincing argument that transformative constitutionalism is not only geared to combating poverty even though this might be a key issue in the Global South. Constitutions that can be called ‘transformative’ correspond, she insists, with broader emancipatory issues giving the state a key role in pursuing change. So transformative constitutionalism is part of a broader global trend toward more expansive and ‘activist’ constitutions with new emphases on positive and socio-economic rights and which no longer view private relationships as outside constitutional bounds, perhaps in the spirit of Alexander Somek’s ‘Constitutionalism 2.0’ (Hailbronner 2017: 528-529; Somek 2014). Hailbronner’s understanding of transformative constitutionalism is very much in line with Klare’s and van Marle’s in that ‘it entails a commitment to social and political change, and not just change at the margins, but of a more fundamental sort’ (Hailbronner 2017: 533).
Seen from this perspective, even Germany can be regarded as a variation on the transformative theme although the analogy requires certain specifications and clarifications. German lawyers, she emphasises, approach transformative agendas from a much more traditional legal perspective than their southern counterparts. So in spite of the commitment to an activist state, German constitutionalism is tied to a rather traditional understanding of law as a science compared to southern collaborative, outcome-oriented and, perhaps, more political approaches (Hailbronner 2017: 530). This difference can at least partly be explained by the German historical context.
After the Second World War, Germany was a broken and morally discredited country with a strong imperative for political and social change. This commitment for change was reflected in the Basic Law, but only in a cautious and conservative way. With only twelve years of National Socialist rule with most of its victims either murdered or emigrated to other countries, postwar Germany was rather different than contemporary societies in the Global South that had long histories of cruel colonialist rule and racial injustice. Given this difference in their starting points, the postwar German framers could look backwards to the country’s traditions that still seemed untainted, and especially to the traditional concept of the Rechtsstaatand its accompanying negative rights. But in spite of this conservative orientation, Hailbronner claims that over time German constitutionalism acquired transformative features in important respects. And this was mainly due to the interpretive work of the Justices of the Constitutional Court and legal scholars (Hailbronner 2017: 541-542).
Hailbronner speculates that the Justices may not have always been conscious of what they were doing, but through novel interpretations, they transformed the Basic Law from a charter of individual rights and institutional provisions into an ‘objective order of values’. So as values, the individual norms of the Basic Law had a radiating effect on the whole legal order informing the interpretation of legal rules in all fields of law, not just at the moment of the decision, but guiding adjudication in the future, as well (Hailbronner 2017: 542-543). But, as Hailbronner notes, consensus among the legal elite about the need for social transformation broke down in the 1970s after which German constitutionalists, both adjudicators and academics, have withdrawn into much more conservative potholes (Hailbronner 2017: 545).
The rule of law as a European value, currently being challenged by right-wing populists, is fuzzy to say the least. I would like to conclude by asking, perhaps again rhetorically, whether it contains any transformative potential that would go ‘beyond’ traditional liberal accounts.
We have three main contenders in the three main linguistic variations of my title. The ‘rule of law’, as it is employed in debates that look to Anglo-American sources, is, perhaps, the narrowest reflecting what might elsewhere be regarded as the legality principle. The German Rechtsstaat, on the other hand, encapsulates the idea originally put forward by Jhering about the state’s self-limitation in relation to its own constitution, an idea that, according to Carl Schmitt, simply leads to ‘apocryphal acts of sovereignty’ (Schmitt 2008: 155) blurring things even further. Finally, we have the French term État de droit which, according to some authoritative accounts, was originally merely a translation from German, but that later took on shades from the revolutionary tradition of the Rights of Man.2 With reference to this French idiosyncrasy, more recent EU documentation prefers to make reference to prééminence du droit, which certainly dilutes any transformative potential that the term may have originally had.
With such different contenders on offer, the draft report of the Venice Commission from 2010 concludes that although there are some indications of substantive definitions that are shared by states, ‘a broad consensus can be found only on a formal definition, but an enlarged one, including respect for judicial human rights as well as non-discrimination and equality before the law’ (Draft Report on the Rule of Law 2010: para 77). The Commission, then, settles for what they can find consensus on instead of pursuing the more important substantive definitions. So my conclusion is an invitation to break free from this ‘iron cage’ of legal formality and to begin working on substantive definitions with transformative potential — to provide relief from poverty and deprivation, to promote equal opportunities to all, to proactively address the problems of xenophobia and misogyny, to support action against the looming climate crisis, and so on — work that would not be exclusive to the legal elites or allow curling up into classic legal definitions, but that would involve civil society as a whole, including academia. Not a complete surrender to politics either, but ‘weaving’ destabilising substantive elements into the mix that would enable momentary lingering in that ‘broken middle’ that van Marle referred to.
1. I would argue that the notions of freedom and constraint can relatively effortlessly be changed to ‘apology’ and ‘utopia’ (Koskenniemi 2005) or even ‘ratio’ and ‘voluntas’ (Tuori 2011).
2. I’ve elsewhere tried to open up this tradition by analysing a debate between Claude Lefort and Marcel Gauchet (Minkkinen 2020b).
Cavarero, Adriana (1995) In Spite of Plato. A Feminist Rewriting of Ancient Philosophy. Trans. Serena Anderlini-D’Onofrio and Áine O’Healy. Cambridge: Polity.
Draft Report on the Rule of Law (2010) European Commission for Democracy through Law (Venice Commission). Study No. 512 / 2009.
Hailbronner, Michaela (2017) ‘Transformative Constitutionalism: Not Only in the Global South’, American Journal of Comparative Law, Vol. 65, No. 3: 527-566.
Kennedy, Duncan (1986) ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’, Journal of Legal Education, Vol. 36, No. 4: 518-562.
Kennedy, Duncan (1997) A Critique of Adjudication [fin de siècle]. Cambridge, MA: Harvard University Press.
Klare, Karl E. (1998) ‘Legal Culture and Transformative Constitutionalism’, South African Journal on Human Rights, Vol. 14, No. 1: 146-188.
Koskenniemi, Martti (2005) From Apology to Utopia. The Structure of International Legal Argument. Reissue with a new epilogue. Cambridge: Cambridge University Press.
Minkkinen, Panu (2020a) ‘Agonism, Democracy, and Law’, p. 427-442, in Maksymilian Del Mar, Bernadette Meyler and Simon Stern (eds), The Oxford Handbook of Law and the Humanities. Oxford: Oxford University Press.
Minkkinen, Panu (2020b) ‘’Enemies of the People’? The Judiciary and Claude Lefort’s ‘Savage Democracy’’, p. 27-42, in Matilda Arvidsson, Leila Brännström and Panu Minkkinen (eds), Constituent Power. Popular Rule, Constitutional Law and Politics. Edinburgh: Edinburgh University Press.
Rose, Gillian (1992) The Broken Middle. Out of Our Ancient Society. Oxford: Blackwell.
Schmitt, Carl (2008) Constitutional Theory [orig. 1928]. Trans. Jeffrey Seitzer. Durham, NC: Duke University Press.
Somek, Alexander (2014) The Cosmopolitan Constitution. Oxford: Oxford University Press.
Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.
Van Marle, Karin (2009) ‘Transformative Constitutionalism as / and Critique’, Stellenbosch Law Review, Vol. 20, No. 2: 286-301.
The postscript to my earlier post on Peter Fitzpatrick reminded me of something that has been going on for quite a while now. When I was working for the Finnish Institute in London, I had a full set of design tools available on my desktop by default. And so I familiarised myself with the basics of image manipulation, graphic design, desktop publishing and web design. I don’t think that I really thought I would have any use for those autodidactically acquired skills later on, and in all truth, whatever I may have since done, has never had any utilitarian value. It has simply given me pleasure. And I’ve been grateful to my ‘clients’ who have allowed me to indulge myself and have been kind enough not to complain too much.
One thing that I continue to do is design posters for academic events that do not comply with corporate house-styles. You’d be surprised how many colleagues prefer to communicate about their events with a poster that does not ‘benefit’ from the prestige of a ‘corporate brand’. My first clumsy attempts were simple white sheets with some decorative image, usually blurred, and just text indicating who, what, when and where. The poster I made for the talks by Denise Ferreira da Silva and Peter (link above) is a good example.
At Leicester, I made posters from a variety of templates. But usually they were dark images with white text. The poster for the Critical Legal Conference 2009 that I organised while I was there is a good example.
When I returned to Finland, I was asked (or, rather, I insisted that I be asked) to design something for a one-off seminar in which I was not personally otherwise involved. I don’t really know, but perhaps that is the reason why I’m still so pleased with the way in which the poster turned out. I’ve used the same 1920s modernist aesthetics for a few other posters, as well, but they’ve never been as successful. Maybe this was also due to the fact that I knew my ‘clients’ very well, and they communicated their own wishes to me in a very detailed way. For example the font used here (Romantha) was found after numerous trials and errors, and I’ve used the font quite a lot since. Note also the Sami reindeer taken from one shaman drum or another at the bottom right hand corner that I’ve since used to sign most of the posters I’ve designed for others (the lines curve into my initials).
Many will realise that the poster below advertising a two-day event was adopted from the cover designs with which Seuil serialises the French editions of Jacques Lacan’s seminars. The design is familiar enough to allow for the association, perhaps even without the text, but also different because it doesn’t look exactly like any of the individual covers in the series.
I keep returning to early modernism and spinoffs thereof. Strictly speaking the images below are not posters. Maybe exercises for posters at best. Earlier in the spring, a community college course on experimental photography that I was attending was cancelled due to the pandemic. We were offered the possibility of attending ‘virtually’ and completing the assignments as a form of distance learning. I serialised my own assignments into covers of a fictive modernist art magazine. In 1915, the New York photography pioneer Alfred Stieglitz founded the magazine 291, and 391 with Parisian Dadaist Francis Picabia at the helm followed two years later. 491 was up for grabs. These are the two last covers of my fictive magazine.
In early January, I received an email from Shelby Fitzpatrick on a mailing list including Peter Fitzpatrick’s friends and colleagues. Peter was ill, and apparently there wasn’t much time left. Shelby asked for ‘thoughts and recollections; anything you feel like sharing would be a great boost to us’. The aim is to bring together facets of Peter’s life-long dedication to the academy and to document personal connections. Perhaps I should have done this earlier. But for whatever it’s worth.
As is often the case, we remember old friends as ‘constellations’ that are made up of mnemonic traces, of scattered points in time and space but that, all the same, seem to come together as a coherent whole. Like stars that can be light-years away from each other in three-dimensional physical space, some of which may even have burnt out by the time their light reaches us, but that appear to the eye as a familiar asterism like, say, a plough or a cross.
I first met Peter in the early 1990s. I was still a postgraduate student, and Peter had somewhere picked up on my ‘francophile credentials’ which at the time were starting to make a lot of sense in legal studies. So I was invited to present a paper at a staff seminar that Peter ran for the benefit of his postgraduate research students, for both those that he supervised himself and others whose critical interests Peter wanted to support. Here Peter introduced me to, among others, Colin Perrin who has remained a good friend ever since, and Veronique Voruz who was a dear colleague during my time at Leicester.
At that meeting or immediately after it, Peter asked if I would review The Mythology of Modern Law that had just come out. I agreed to do it, and Peter had already found a home for the review in the prestigious Journal of Law and Society. It would be my second publication in English. At some point before the review was submitted to the journal, we ran into each other again, perhaps on the conference circuit, and Peter asked me how things were going with the review. I then told him that a good part of the review would use the book’s cover image by Edward Curtis as its springboard playing on the notion that Curtis’s photographs were often staged and so did not really ‘document’ anything. As I was talking, I could see a certain horror appear in Peter’s eyes. Not only was this young academic taking a simple ‘book review’ too seriously, but Peter himself was also sensitive to criticism. All academics are! We put our names on what we write, and it’s extremely difficult not to take whatever is said about our writing as comments about ourselves. This was also Peter’s first major book, so it may have had a special significance that I was not aware of. In any case, my review was inspired by Roland Barthes and argued that any attempt to ‘reveal’ the mythical nature of something is caught up in the myth itself. I think in the end Peter was fine with that argument even if I may have ‘tried too hard’.
Shortly after Peter co-organised a seminar in Oñati. Either Peter invited me to participate, or I ruthlessly requested him to invite me because the themes were relevant for my work. Be what may, Peter himself never made it. He had boarded the airplane in the non-Schengen UK with his Australian passport in his bag, and in Bilbao, the Spanish authorities refused him entry because, as an Australian, Peter didn’t have the required visa. Ironically, of course, Peter had a UK passport as well, but he had left that at home. So even in his absence, I went on to present my paper on Jacques Lacan’s ideas on truth, knowledge and the ‘conjectural sciences’ that I had specifically crafted with him in mind and that ended up as the opening chapter of my doctoral thesis. As to leisure activities outside the seminar room, I remember taking a long taxi ride to San Sebastian for some fine dining with Marianne Constable and Peter Goodrich, as well as smoking cigars while watching a Saturday night pelota match with Boaventura de Sousa Santos. So even if he wasn’t personally present, Peter introduced me to the right people.
Over the next ten years, a lot of our joint work efforts revolved around the annual Critical Legal Conferences that Peter often played a part in organising. Sometimes he used his authority to enable one institution or another to organise the whole event, while at others he merely put together streams that would allow the participation of individuals whose work he wanted to support. This way he also encouraged some of my younger compatriots into ‘international mobility’, as it would be called in contemporary parlance. This is a good example of Peter’s limitless generosity.
The following time when our paths crossed properly was on the occasion of Ben Golder’s PhD thesis defence in 2008 at which I was external examiner. Ben’s thesis was excellent, very well researched and argued. But here we once again ran into those ‘differences in academic opinion’ that would sometimes startle Peter. Ben’s work on Michel Foucault was, of course, completely original and independent, but one could hardly not notice the influence of his supervisor who had been advocation a particular reading of Foucault for some time. Those of you who knew Peter personally will remember that he was the gentlest of men. I think that, as such, he found it difficult, perhaps even distasteful, to deal with ‘crude power’ even as a theme of research. To me, the crux of what had been published of Foucault’s work at the time was specifically about power, about the ways in which power is used both to hinder ‘worthy’ causes and to further them. But there was no absolute indicator as to what makes one cause ‘worthy’ and another less so. Peter was, I thought, trying to find ‘ethical’ indicators that were not in those texts. Subsequently Ben and Peter joined forces and put their research efforts together to write the hugely influential Foucault’s Law, while I, for my part, included some of my disagreements in a much less influential book review.
Later Peter and I kept in touch annually over the holiday season through a regular exchange of greetings. It began on my part with a tradition of digital greeting cards that I would send to friends and colleagues towards the end of the calendar year. My first greeting was from 2005. The card included an image of a red-breasted bullfinch against a snowy background which is a typical motif for seasonal cards here in the North. In his response, Peter kindly riposted:
Thank you for your beautiful card, my admiration for which has to be tempered by the elevation of the bullfinch, a creature that plays havoc with our apple buds.
Indeed, in addition to his family, Peter’s constant source of joy was the garden of the beloved Old Vicarage at which I once had the honour of staying (and was first-hand introduced to how cold an old English house can be even if the weather outside is much more temperate than in my native Finland). Peter’s own greetings would often include pictures of the garden like the ones you can see below.
I was never quite sure whether these pictures had just been taken for the purposes of the seasonal greeting, whether they represented some sort of magical ‘wintry blossom’ at the Old Vicarage, or if they were summer photos that Peter had saved on his smart phone (Did he have one?) and that he could then admire on a tedious commute to London or on a long flight to some distant destination. I can imagine that this is where Peter always longed to be. And as I understand it, his wish will now be fulfilled.
One form of academic friendship is hosting each other’s work. Peter, of course, hosted me. After the original posting, I remembered that I, for my part, hosted Peter in Helsinki in 2002 for a one-off when I was at the Helsinki Collegium for Advanced Studies. I’ve been designing posters for academic events for nearly two decades now, and this is the oldest that I have on file. It’s, of course, inspired by the cover of The Mythology of Modern Law.
This essay is once again part of a larger work in progress. But as I also tried to develop it into a self-standing paper for the ASLCH 2020 conference at Quinnipiac Law School, I thought that it would work as a blog, as well. You be the judge. As before, it draws on material that I’ve worked on earlier, and in a similar way, with a rather limited amount of material available in languages that I know, it’s again only ‘getting there’ discovering the nuances and finer details as I go along. Baby steps. If you prefer to download the longish essay as a pdf, you can find it here.
It is a strange paradox: if one perceives the profound absence of escape, the profound absence of goal and meaning, then — but only then — the mind liberated, we approach practically, lucidly, practical problems.
– Georges Bataille (Bataille 2015: 225)
Over the last few decades, constituent power has become a common staple of scholarly debates on political and legal phenomena. The term refers to the ultimate power of ‘the people’ as the foundation of popular sovereignty and, consequently, of democracy, as well: the state’s central institutions and practices of government are an outcome of the exercise of a constituent power, and so they owe their existence to ‘the people’, and not vice versa (e.g. Wenman 2013; Arvidsson – Brännström – Minkkinen 2020 [forthcoming]).1 This focus and the various attempts to resolve the apparent dilemma when a radical democratic rule by ‘the people’ and democratic institutions and principles clash have left the other side of the coin, namely constituted power, temporarily a bit more in the sidelines. This term, in turn, refers to the ‘end-product’, to the institutions and practices that ‘the people’ has entrenched into its constitution as the relatively permanent cornerstones of its political existence. These include the legal and political institutions that allow democracies to function: the legislature, the judiciary, various levels of public authorities, and so on. But despite their membership in the seemingly almighty ‘people’, individuals live out most of their everyday lives within the confines of institutionalised power relations that they have little access to or, perhaps, are even barely aware of.
The constituted side of public power has always been the standard focus in mainstream constitutional law and constitutionalism. Both deal mainly with legal definitions of competencies that constitutions assign to various government branches and authorities: the legislature passes laws, the executive drafts them and implements them, the judiciary applies them in individual cases, and so on. The focus of this essay is somewhat different. Constituted power namely also embodies a physical environment in which the legal and political institutions of the state reside. Think of a public square hosting government buildings, a courthouse, or a monumental statue of a national hero. Individuals, on the other hand, live out a significant part of their everyday relations with public power and domination in and through such spatially ordered environments. These environments are most emphatically present in state capitals and government centres that can more generically be called seats of power.
Especially after the so-called ‘spatial turn’ in the social sciences, studies on the relationship between power and space have been abundant (e.g. Massey 1994; Allen 2003; Löw 2016). But scholarship that would specifically deal with the spatial dimensions of constituted power, that is, with the constituted space of state capitals and government centres, is patchy at best. The broader project to which this essay belongs represents one of the first consolidated efforts to focus on how public power interrelates with the designed and constructed spaces in which statist institutions and authorities operate (for rare exceptions from architectural and political science perspectives, see Aggregate (Group) 2012; Bell – Zacka 2020 [forthcoming]) and how individuals negotiate their relationships with power and domination within them.
The broader contextual framework for this essay would more specifically address the ways in which Brazilian modernism may have influenced the urban planning and architecture of seats of power, and especially whether it is recognisable in the ways in which architects Lúcio Costa and Oscar Niemeyer organised the constituted power of the state spatially in Brasília, the country’s federal capital (e.g. Epstein 1973). In a crude taxonomy of constituted spaces, Brasília is ideal-typically a unique case. First, it is a purpose-built national capital. This is, of course, not unheard of: Canberra, New Delhi, and even Washington D.C. come instantly to mind. But Brasília is remotely located close to the geographical centre of the vast country as if the intention was to deliberately weaken the political influence of the two coastal metropolises further south, that is, the former capital Rio de Janeiro, and São Paulo, the country’s industrial powerhouse. Second and more significantly, the striking bird-like urban design of Costa’s ‘Plano Piloto’ (Plano Piloto 1991)and Niemeyer’s iconic public architecture (Philippou 2008) provide concrete points of reference for evaluating the democratic promises of modernism, that is, whether and how modernist design and architecture enhance democratic principles and values in spatial environments that are saturated with power.
Here my focus is more on the most radical strain of Brazilian modernism that is commonly known as ‘anthropophagy’. I will ask whether (and if yes, how) anthropophagy’s cannibalistic metaphor can provide a platform for a radical spatial politics that might have currency even in more contemporary times (see however King 2000). After identifying some of anthropophagy’s genealogical forerunners and going through some recurring themes, I will present a more detailed elaboration of the architectural ideas of one of anthropophagy’s best-known figures, Flávio de Carvalho (1899-1973). The paper finally suggests that the notion of radical cultural politics that Carvalho’s anthropophagic architecture typifies finds parallels in an anti-instrumentalist position that I have elsewhere, following Georges Bataille, called a ‘politics of the impossible’ (see Minkkinen 2009: 131-144; Minkkinen 2016).
From cannibalism to anthropophagy
So why ‘anthropophagy’?
In his Histories, Herodotus famously recounts how the Scythians prepared for war against the great Persian armies by seeking to make alliances with their neighbours: the Tauri, the Agathyrsi, the Neuri, the Man-eaters, the Black-cloaks, the Geloni, the Budini, and the Sauromatae. The list sounds like a voice-over commenting the opening credits of Game of Thrones. One of the tribes stands out:
The Man-eaters [Ἀνδροφάγοι] are of all men the most savage in their manner of life; they know no justice and obey no law. They are nomads, wearing a dress like the Scythian, but speaking a language of their own; they are the only people of all these that eat men. (Herodotus 1921: 307 [4.106])
Two extremes are consequently identified. At one end, we have an implied humanity that recognises the rule of law and the principles of justice, and at the other, cannibalism as the ultimate form of savagery that negates both law and justice.2 Cannibalism is certainly one of the most recognisable taboos of the west and a benchmark with which a supposedly civilised world has traditionally differentiated itself from the radically ‘other’ of the hinterlands.3 As such, it has made its way into the vocabulary of the west’s pseudo-ethnographic self-reflection as well as the imaginary of its literary culture (e.g. Barker – Hulme – Iversen 1998).
In Freud’s account, cannibalism, like incest, is an atavistic desire that civilisation has consequently prohibited. But because a prohibition — a law — can only deprive the satisfaction of fulfilling an instinctual desire, a certain residue or frustration of the unsatisfied desire will always remain. Of all the instinctual desires that human civilisation has supposedly taken on, Freud suggests that an untrained mind — a non-analyst — may think that of man’s atavistic desires cannibalism alone, perhaps as the most primeval, has been universally proscribed and successfully overcome (Freud 2001: 9-10). But just like incestuous wishes can still be detected in the strength of the prohibition against their fulfilment, even cannibalistic desires find ways to surface from the unconscious:
art offers substitutive satisfactions for the oldest and still most deeply felt cultural renunciations, and for that reason it serves as nothing else does to reconcile a man to the sacrifices he has made on behalf of civilization. (Freud 2001: 13; e.g. Grimm – Grimm 2014)4
A less-well-known strain in the narrative, perhaps only familiar to scholars in Latin-American studies, uses cannibalism as a critical postcolonial metaphor. In 1928, the Brazilian author, theorist and cultural agitator Oswald de Andrade published a short text entitled ‘Anthropophagic Manifesto’ (Andrade 1972).5 The apparent aim of the manifesto was to distance the emerging Brazilian modernist movement from the traditional European ideals that were both idolised and uncritically emulated by a São Paulo cultural elite, and to combine newer avantgarde trends with aspects, both real and imagined, of the indigenous Amazonian peoples, most notably the Tupinambá, to create a truly national cultural movement.
The anthropophagic metaphor likens the birth of Brazilian modernism to a ritual in which a family member, a clan member or an enemy is consumed in the hope of internalising some of her respected, feared or magical qualities. In Totem and Taboo, Freud claimed that the ‘higher motives’ for cannibalism among so-called primitive peoples suggested that ‘by incorporating parts of a person’s body through the act of eating, one at the same time acquires the qualities possessed by him’ (Freud 1995: 81). This incorporation applies to the primal horde and original patricide, as well. The oft-cited passage explains:
Cannibal savages as they were, it goes without saying that they [the fraternal horde] devoured their victim as well as killing him. The violent primal father had doubtless been the feared and envied model of each one of the company of brothers: and in the act of devouring him they accomplished their identification with him, and each one of them acquired a portion of his strength. The totem meal, which is perhaps mankind’s earliest festival, would thus be a repetition and a commemoration of this memorable and criminal deed, which was the beginning of so many things — of social organization, of moral restrictions and of religion. (Freud 1995: 140-141)
Although some have argued that Andrade’s manifesto never managed to draw the disparate individuals involved together into what might be considered a coherent ‘movement’, it certainly was influential (see e.g. Castro-Klarén 2000; Siewierski 2007). According to the standard historical account, the founding moment of Brazilian modernism coincided with the 1922 Semana de Arte Moderna exhibition in São Paulo, an event organised to celebrate a century of Brazilian independence from Portuguese colonial rule (see e.g. Resende 2000; Di Cavalcanti 2017). Over the course of three days in mid-February, the city’s Municipal Theatre exhibited new visual arts and sculpture and provided forums for lectures, concerts and poetry recitals. The critical edge of the event was aimed at the local conservative cultural elite, and due to its radicalness, the event, in turn, was unfavourably received by the general public and prompted a fierce and angry response from the Brazilian press. It did, however, consolidate an emerging cultural movement that had begun to take shape some five years earlier with the return of painter Anita Malfatti to her native São Paulo (see entry in Congdon – Hallmark 2002: 158-160).
Malfatti had travelled in Europe and in the United States and was inspired by the new avantgarde movements that were reshaping the face of art. In an exhibition in 1917/1918 that followed her return to São Paulo, she set the stage for what would eventually lead to the formation of the ‘Group of Five’, a collective of artists including painters Malfatti and Társila do Amaral, and authors Menotti del Picchia, Mário de Andrade and Oswald de Andrade (no relation, as is customary to point out). In addition to Andrade’s manifesto, the group would come to define anthropophagy as the most radical variant of Brazilian modernism through milestone artistic works such as Mário de Andrade’s 1928 novel Macunaíma (Andrade 1985; see also López 1998), Társila do Amaral’s eponymous painting Abaporu from the same year (see D’Alessandro – Pérez Oramas 2017; also Damian 1999), and Menotti del Picchia’s political poetry (see e.g. Madureira 2005: 52-85; Lopes – Jacobs 1952).
One can, perhaps, approach the group’s choice of the cannibalistic metaphor from at least three perspectives.
The first — the least persuasive — concerns the word’s supposed shock value in general. So not only a ‘regressive’ identification with primitive humanity, but also with one of the most persistent taboos of western culture. This first perspective may be more relevant in explaining the hostile reaction of the bourgeois elite than the radical artistic and cultural agenda of anthropophagy itself.
A second perspective serves as a crude genealogy in the charting of anthropophagy’s main sources of inspiration (see e.g. Nunes 2008: 25-57). Although anthropophagy is a distinctively Brazilian approach to modernism, many of its representatives had spent lengthy periods travelling in Europe and North America and become inspired by movements such as expressionism, futurism and Dadaism (see e.g. Pouzet-Duzer 2013; on the influence of psychoanalysis, see Facchinetti 2018). Oswald de Andrade himself travelled extensively in Europe and became acquainted with, among others, French artist and poet Francis Picabia who at the time was one of the leading figures of Dadaism in Paris (see e.g. Karentzos 2014: 252-258). In 1920, Picabia published a short text called ‘Manifeste Cannibale Dada’ (available in English as Picabia 2007) which, no doubt, served as some sort of template for Andrade’s own provocation. In this sense, the genealogy of anthropophagy points to European, white and middle-class origins that coincide with ‘primitivist’ and ethnological motifs in avant-garde art and culture (see e.g. Jackson 1994).
But despite these international sources of inspiration, anthropophagy did aspire to be a truly national movement that, like the Amerindian cannibal, devoured its European counterpart with the aim of producing a unique hybrid combining avantgarde and aboriginal thinking.6 The concrete poet Haroldo de Campos claims that this third, distinctively Brazilian take on cannibalism involved:
the critical devouring of universal cultural heritage, formulated not from the submissive and reconciled perspective of the “noble savage” … but from the disabused point of view of the “bad savage,” devourer of whites, the cannibal. This last view does not involve submission (conversion) but, rather, transculturation, or, even better, “transvalorization”: a critical view of history as a negative function (in Nietzsche’s sense), capable of appropriation and of expropriation, of dehierarchization, of deconstruction. (Campos 2007: 159-160)
From an interpretative point of view, Andrade’s humorous and raucous manifesto may seem almost impenetrable (see Medeiros de Carvalho – Coube 2013; Vinkler 1997) although most regard it as critical of the trappings of modernism, as a specifically ‘decolonial’ project to use Luis Fellipe Garcia’s expression (Garcia 2020; also Castro-Klarén 2000). One can safely assume that much is lost in translation, especially taking into account that the manifesto was never really intended for ‘international’ audiences. It is made up of some fifty short fragments often written in a highly metaphorical style with a certain rhythmic repetition betraying Andrade’s background as a poet. Carlos Jáuregui (Jáuregui 2012; see also Jáuregui 2009) claims that both the manifesto and the movement were, in fact, so heterogeneous that no single interpretation of its essence could be presented. By the same token, anthropophagy was easily appropriated, resignified and transformed — ‘paradoxically consumed and devoured’ (Jáuregui 2012: 22) — for a plethora of purposes such as the tropicália or tropicalismo movement in Brazilian music and cinema (see e.g. Canejo 2004; Young 2001).
This relative success, as Pedro Neves Marques notes, also domesticated anthropophagy and diluted it into a general cultural style of hybridity (as in Alvarenga de Souza 2015). By contrast, as an anthropology, anthropophagy had enabled examining the Amerindian cannibal as a transformation of western capitalist predation and the sterilisation of the world with reason. Anthropophagy was not only an anthropology of otherness, but also an inverted anthropology of ourselves, ‘neither as the study of others or as the study of oneself, but the study of our world through the other; and the rupture with the Indian as the pure (purified), natural (naturalized) other’ (Marques 2014: 30-31). It is in the same vein that Eduardo Vivieros de Castro sees an indigenous anthropology as a ‘permanent decolonisation of thought’:
If the goal of multiculturalist European anthropology was to describe human life as it is experienced from the indigenous point of view, indigenous multinaturalist anthropophagy presumed as a vital condition of its self-description the “semiophysical” prehension — taking life through eating — of the point of view of the enemy. Anthropophagy as anthropology. (Viveiros de Castro 2014: 143)
The ill-mannered archaeologist
So how has Brazilian modernism that was launched at the 1922 Semana de Arte Moderna event in São Paulo influenced the way in which Costa and Niemeyer spatially conceived and designed the constituted power of the state in Brasília (see also Philippou 2004; Philippou 2005)? We do know that in 1938, Niemeyer, who was based in Rio de Janeiro, designed a house for Oswald de Andrade and Társila do Amaral in São Paulo, and that this collaboration is a somewhat unusual ‘tale of two cities’ that can be taken as evidence of some reciprocal aesthetic and political acknowledgement (see e.g. Cavalcanti 2003: 192-193).7 But the true anthropophagic representative of architecture must surely be the extraordinarily versatile avantgarde artist Flávio de Carvalho (see e.g. Leite 1995).8
Carvalho’s background is in many ways similar to his anthropophagic colleagues’. After spending his childhood in France, he studied civil engineering and the fine arts in Northern England. During his university years, he became acquainted with Vorticism, the British modernist movement founded by artist and author Wyndham Lewis (see e.g. Edwards 2000). Through Vorticism, Carvalho absorbed influences from expressionism and primitivism that would, upon his return to Brazil in 1922, both define his own work as an architect and artist, and align his interests with representatives of anthropophagy who were becoming more active at the same time. The extent and intensity of Carvalho’s affiliations with the group are, however, not entirely clear.
During his first years in his native Brazil, Carvalho concentrated on architectural designs of which the best known are a proposal for the Governor’s Palace in São Paulo from 1927, and his entry for the competition of the Columbus Memorial Lighthouse in the Dominican Republic the following year. The anthropophagic spirit of these designs is, perhaps, best captured in their clear intention to function as statements or provocations rather than as realisable building projects.
Carvalho’s sketches for the Governor’s Palace project are not technical drawings from which a building could be completed, but, rather, graphic prints some of which were deliberately optimised for the crude newspaper printing techniques that were typical at the time. This conscious use of mass media to promote his work is a recurring feature that both distinguishes Carvalho from his own contemporaries and, in many respects, makes him an international artistic forerunner well ahead of his time (see e.g. Leite 2004). Apart from the graphic sketches, there is very little information available — at least in English — on the proposal even though its power-related theme would fit in well with the more general aims of my project (see however Segawa 2013: 40).
We know a bit more about the lighthouse design because the competition itself was well-known. Carvalho’s entry was not chosen for the second round. But in a report prepared by the organisers after the first round, it was presented in a section called ‘Comments and appreciations’ as one entry among others reflecting ‘the variety of the ideas submitted, and quite regardless of their architectural merits or of their, in some cases, very obvious architectural shortcomings’ (Kelsey – Union 1930: 51). Carvalho would seem to fit into this latter category. As an architect, he is described as an ‘extreme modernist’, and his entry Criação(‘Creation’) is said to display ‘a deeply founded sympathy and an almost mystical belief, anxious to interpret hieroglyphs and ideograms and the books of magic of various Indian civilizations … though we do not like it’ (Kelsey – Union 1930: 94-95).
A few years later, the São Paulo collective of artists and activists that had come together under the anthropophagy umbrella sent Carvalho to Rio de Janeiro to represent the group at the Fourth Pan-American Conference of Architects (see e.g. Lira 2014: 53-55). As a delegate for the group, Carvalho’s address to the conference clearly echoed themes that had already been introduced more generally in the earlier anthropophagic texts like Andrade’s manifesto. Carvalho’s address was entitled ‘A cidade do homem nu’ (‘The Nude Man’s City’, see Carvalho 2010a), and it was once again closer to a provocative political and cultural statement than an attempt to present any realisable architectural or urban design.
Drawing his theoretical inspiration liberally from Freud and Nietzsche, Carvalho envisioned a city in which the weary ‘machine-man of classicism’ will be ‘crushed under foot, in the logic of natural selection, by the more efficient natural man’ (Carvalho 2010a: 22). The humans of so-called classical societies would see this as a welcome development because they wished to ‘throw off the repetitive destructive churning movement of their souls, to seek out a way of thinking that does not stifle their desire to explore the unknown’ (Carvalho 2010a: 23). Carvalho’s city was clearly of the ‘new world’:
American cities are no longer the fortress-cities of the Conquest. They are geographical, cities for critical times, cities of nude men, of free rational thinkers and eminently anthropophagic men. The anthropophagic city satisfies the nude man because it suppresses the taboos of matrimony and property; it belongs to the whole collective, it is an enormous monolith functioning homogeneously, a gigantic motor in motion, transforming the energy of ideas into the needs of the individual, realizing collective desires, producing the happiness which lies in understanding life or movement. (Carvalho 2010a: 25)
The anthropophagic city was to be built on seemingly contradictory principles. On the one hand, the ‘nude man’ represents pure science and reason. One of the curious dichotomies with which Carvalho operates apparently has to do with measures that seek to ‘transform a non-metric into a metric world, creating new taboos to yield new benefits, encouraging reason to strike out into new fields’ (Carvalho 2010a: 24 [my emphases]). In the city, the ‘nude man’:
can find his ancient soul, can project his free energy in any direction, without repression, discover new desires, impose on himself a strictly efficient selection, shape his new ego, guide his libido and destroy the illogical, thereby approximating to the symbolic god the sublime anguish of the Unknown of non-metric changeability. (Carvalho 2010a: 28)
But in anthropophagic city life, erotism and desire are equally important:
Sex [a erótica] plays a vital role in the life of the nude man. The nude man will choose his own sexual proclivities; there will be no restrictions and no need for renunciation; his own mental energy will be sufficient for controlling and selecting his desire. (Carvalho 2010a: 27)
The reason why Carvalho’s choice of words is worth opening up here is that ‘sex’ is not just a reference to some superficial notion of Brazilian ‘sensuality’ that is often associated with, for example, the tropicália movement. It is much closer to ‘erotism’ and an indication of Carvalho’s rather complicated relationship with Freud, a relationship that subsequently allows us to assess anthropophagy’s genealogical kinship with, for example, the French post-surrealists. I will return to this kinship in the final part of the essay.
As a mathematical representation of the man freed from the ‘scholastic dogma’ of the old colonialist world, Carvalho’s anthropophagic city is organised into three concentric circular ‘zones’ with the most important aspects of city life concentrated into the outermost rings. The most significant of these rings is a research centre that is also the only established authority in the city. It selects, orders and distributes the city’s resources and ‘energies’ according to scientific criteria. It is ‘a mutable god, a god in continuous movement, a god who symbolizes the marvellous desire to reach out into the unknown’ (Carvalho 2010a: 27). The research centre includes three annexes: an educational facility, a ‘huge machine where life is studied and catalogued’ (Carvalho 2010a: 27) for management purposes, as well as a small hospital as hygiene in the city is second to none. The second most important ring is the sex zone, a ‘vast laboratory where a wide range of desires are indulged in’ (Carvalho 2010a: 28). The sex zone also includes designated areas for religion and food, both, perhaps, reflecting the underlying principles of anthropophagic desire. The central nucleus of the city includes less significant government administration and a residential area that is built around it, while a transportation network operates underground connecting the nucleus with the city’s more exterior zones. Finally, industry and farming are situated further away beyond the city’s perimeters.
Given the nature of his works, Carvalho’s ‘career’ as an architect is perplexing. Contrary to what Lauro Cavalcanti claims (Cavalcanti 2003: 100-107; for a more accurate description, see Segawa 2013: 40-41), he never won competitions, and to my knowledge only two of his designs, both from the 1930s, were actually realised: a set of residential houses on the Alameda Lorena in central São Paulo, and his personal estate in Fazenda Capuava on the outskirts of the city (see Anziché – Kon 2012). But even so, Carvalho could not really be described as an ‘unsuccessful’ architect. Inti Guerrero (Guerrero 2010) quite rightly claims that Carvalho’s architectural work must be assessed in the context of his other art, and especially in light of his two performance art ‘happenings’ serialised as Experiência n.2 and Experiência n.3.
In the former ‘experiential’ urban performance from 1931, Carvalho deliberately disturbed São Paulo’s religious Corpus Christi procession by defiantly walking against the flow of the large crowd turning it into an angry lynch mob. He later wrote and illustrated a book on the performance that reflected on his own experiences of mass psychology and crowd behaviour (see Carvalho 2001). For the latter performance from 1956, Carvalho designed a businessman’s outfit that he deemed more appropriate than sweaty suits for Brazil’s tropical climate. The design included a white pleated miniskirt, a silk blouse with puffed sleeves, fishnet stockings and sandals. Carvalho called his outfit the ‘New Look’ as a reference to fashion designer Christian Dior’s postwar modernism (see e.g. Benaïm 2015), and even in this case, he launched his design by dressing up in the clothes himself and walking through the financial district of São Paulo in drag (see Carvalho 2010b). Both performances were supported by intense media coverage which had become a general trademark of Carvalho’s artistic profile.
It is this association with performance art that, to my mind, also defines Carvalho’s radicalness as an architect. His most significant architectural designs and plans for public buildings such as the competition entry for the Governor’s Palace in São Paulo and ‘The Nude Man’s City’ initiative were both bold modernist statements, supported by media spin generated by Carvalho himself, but that were never really intended to be realised. The gist of Carvalho’s ‘performative architecture’ (see e.g. Feuerstein – Read 2013; Kolarevic – Malkawi 2005) is perhaps best captured in his claim that, in the unrealised Governor’s Palace project, what would prevail was the ‘modernist doctrine by Le Corbusier, only modified for better: in the building, the most important thing is the plan’ (cited in Segawa 2013: 40).9 Carvalho rendered his anthropophagic architecture ‘useless’ in the sense that, rich in metaphor and symbolism but poor in function and utility, it really had no other purpose than to communicate its own impossibility. In this way, he paradoxically also captured what is truly radical about the São Paulo variant of Brazilian modernism. And at the same time, with the design and construction of Brasília, Carvalho’s colleagues from Rio had put into effect an internationally celebrated and exportable ‘made in Brazil’ modernism which bore little resemblance to the basic principles of anthropophagy. There is nothing particularly local about Brasília, and certainly nothing indigenous. In many ways, it is the antipode of Carvalho’s anthropophagic architecture.
Unlike his many anthropophagic contemporaries, Carvalho is hardly known outside of his native Brazil. Even so, his avantgarde approach to architecture — and art more generally — align him much more clearly with certain strains of European cultural radicalism. In particular, I see a kinship with Georges Bataille and with the broader agenda of various individuals affiliated with the ‘Collège de Sociologie’ (see Hollier 1987; Falasca-Zamponi 2011; Arppe 2009). This kinship can be examined on at least two levels.
First, Bataille, just like Carvalho and his fellow anthropophagists, draws much from a Freud-inspired notion of cannibalism as a sacred society-founding phenomenon. Humans do not consume each other for sustenance, and cannibalism will always include ritual elements. To eat human flesh is always a wilfully forbidden act, but the fundamental taboo is religiously violated all the same:
The object some undiscriminating animal is after is not what is desired; the object is “forbidden”, sacred, and the very prohibition attached to it is what arouses the desire. Religious cannibalism is the elementary example of the taboo as creating desire: the taboo does not create the flavour and taste of the flesh but stands as the reason why the pious cannibal consumes it. (Bataille 1986: 72)10
Second, if we interpret Carvalho’s projects as indigenously inspired critical responses to colonial ‘classicism’, we can clearly see similarities with Bataille’s deeply-rooted distrust of all things architectural. For Bataille:
only the ideal being of society, that which orders and prohibits with authority, expresses itself in what are architectural compositions in the strict sense of the term. Thus, the great monuments are raised up like dams, pitting the logic of majesty and authority against all the shady elements: it is in the form of cathedrals and palaces that Church and State speak and impose silence on the multitudes. (Bataille 1997: 19; see also Hollier 1989)
Carvalho’s confrontation with architecture was more humorous and subtle. He seemed to emphasise the deviant art that architectural design produced as sketches and media representations at the expense of tangible buildings that, coincidentally, were seldom even realised. The central thematic focus on the relationship between architecture and power is, however, clearly shared by both Bataille and Carvalho, as is the need to progress from a predominant stale classicism to something more radical: ‘strange though it may seem, when it is a question of a creature as elegant as the human being, a way opens — as indicated by the painters [i.e. by art] — towards a bestial monstrousness; as if there were no other possibility for escape from the architectural galley’ (Bataille 1997: 20). This ‘contestation’ of public power through the ‘impossible’ (see Besnier 1990) is something that is clearly missing in Costa and Niemeyer’s aestheticised Lecorbuserian designs for Brasília.
Finally, there is even a factual historical link. Carvalho travelled through Europe in the mid-1930s, and during the trip, he also interviewed representatives of the surrealist movement for the Brazilian media. Among his interviewees was Roger Caillois, Bataille’s ‘Collège’ collaborator. Some ten years later during his stint in Buenos Aires, Caillois paid a return visit to São Paulo staying at Carvalho’s house. Although not much is known about these meetings, Veronica Stigger (Stigger 2017: 134-135) draws on James Clifford’s notion of ethnographic surrealism to speculate on what might have brought the French ethnologist together with a representative of Brazilian anthropophagy:
Ethnographic surrealism and surrealist ethnography are utopian constructs; they mock and remix institutional definitions of art and science. To think of surrealism as ethnography is to question the central role of the creative “artist,” the shaman-genius discovering deeper realities in the psychic realm of dreams, myths, hallucinations, automatic writing. This role is rather different from that of the cultural analyst, interested in the making and unmaking of common codes and conventions. Surrealism coupled with ethnography recovers its early vocation as critical cultural politics, a vocation lost in later developments … (Clifford 1988: 147)
1. The main reason behind the growing interest in this constituent element has in all likelihood been the rise of populism. Populist politics, namely, makes manifest a fundamental dilemma inherent in any radical definition of democracy. Can the constituent popular sovereign, ‘the people’, really do no wrong? Is majority rule by ‘the people’ always democratic?
2. Othello’s stories of his own encounters with savages reflect a similar horror by associating cannibals with headless monsters: ‘And of the cannibals that each other eat — / The anthropophagi — and men whose head / Grew beneath their shoulders’ (Shakespeare 2005: 33 [1:3, 143-145])
3. Geraldine Heng turns the perspective around by reviewing Medieval historical accounts of ‘crusade cannibalism’, i.e. starving troops eating their slain Muslim enemies, and how the European imagination simply lacked the ability to comprehend testimonies of fellow Christians committing such atrocities (see Heng 1998).
4. Another well-known line of argument begins with Michel de Montaigne who used the figure of the cannibal to underline the innocence of his ‘noble savage’, that there is, in fact, nothing innately barbarous or savage about eating your fellow human being, except that ‘we all call barbarous anything that is contrary to our own habits’ (Montaigne 1958: 108; on the ‘noble savage’ more generally, see e.g. Ellingson 2001).
5. The ‘Manifesto’ was originally published in the first ‘teething’ or ‘dentition’ (dentição) of the journal Revista de Antropofagia that activists involved in the movement published for a few years (see Jackson 1978). It was first translated into English as ‘Cannibalist Manifesto’ (Andrade 1991), but in this essay I am using the revised — and more accurate — ‘Anthropophagic Manifesto’ that can be found in Pedro Neves Marques’s excellent collection of relevant texts (Andrade 2014).
6. Of the ‘Group of Five’, it was especially Mário de Andrade who displayed a more systematic interest in Tupinambá languages and thinking as a self-professed ‘idiosyncratic ethnologist’ who recorded and analysed his observations on several expeditions to the Amazonian forests (see e.g. Rosenberg 2006: 106-135).
7. I would, however, argue that the close relationship that the Rio school of Brazilian modernism forged with Le Corbusier’s ‘esprit nouveau’ diluted its potential radicalness in the same way as anthropophagy gradually morphed into the hybridity of ‘tropicália’. The elaboration of this claim will need to be worked out elsewhere.
8. Rui Moreira Leite has written a general analysis of Flávio de Carvalho’s artistic profile in Portuguese (see Leite 2008), but no definitive introduction to this remarkable character is available in English. To my knowledge, only one text, included in Pedro Neves Marques’s collection, is available in English (Carvalho 2014). In addition to the individual publications referred to in the main text, I would recommend the translated essays appended to an exhibition catalogue dedicated to the self-professed ‘ill-mannered archaeologist’ (see Bonan – Rezende 2017: 128-144).
9. Saulo Gouveia has analysed, among other things, the complicated relationship between Le Corbusier and the São Paulo modernists through Mário de Andrade’s early works (Gouveia 2011).
10. Elsewhere Bataille addresses misconceptions about his thinking. He points out that while cruelty against fellow human beings may be wrong in principle, it is a fact. And this relates to cannibalism, as well: ‘Exploitation of man by man, as hateful as it is, is given in humanity. Even anthropophagy, when this is the convention, coexists with the prohibition of which it is the ritual violation’ (Bataille 1991: 207).
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This text is part of a longer paper that I’m currently working on and that I’ll be presenting at a couple of seminars over the spring (e.g. SLSA 2020 in Portsmouth). But I thought that it might work as a shorter piece on its own here in the blogosphere, as well. It continues my (perhaps misguided) self-reflexive engagements with ethnography and expands from a few lines towards the end of an earlier text. If you prefer to download the text as a pdf, you can find it here. All comments are welcome, as usual.
Knowledge vs truth
Most of us involved in the social sciences and the humanities have in one way or another resigned to some variation of postmetaphysics. The work that we do does not address ‘truth’ in any profound sense of the word even if we may insist that it can uncover ‘facts’ or produce ‘knowledge’. Indeed, the fact that we call it ‘work’ already says as much. Perhaps this reflects the kind of defeatism typical of modernism that William Connolly called the ‘primacy of epistemology’ (Connolly 1995: 1-40). So we would probably be more comfortable arguing that the looming climate crisis is a ‘fact’ rather than a ‘truth’ even if the cataclysmic end-result is the same in both cases. It seems that in the postmetaphysical world, only art and literature remain the privileged domains of truth.
But occasionally we may come across something that crosses over and blurs the supposedly established demarcation lines that separate science from art, fact from truth. So momentarily, even as ‘mere’ scholars, we may speak about truth without feeling overtly embarrassed about it. As a young undergraduate, I remember how many of my professors and mentors regarded Asylums (Goffman 1961), Erving Goffman’s collection of essays, as such a cross-over phenomenon. ‘On the Characteristics of Total Institutions’, the opening essay of the book, identified a set of recognisable traits that were distinctive of all total institutions, and, mutatis mutandis, we became aware of totalising traits in institutions like schools that we were not accustomed to measuring with the same yardsticks as, say, mental hospitals or prisons. These were, perhaps, Goffman’s factual merits.
But the book achieved its unusual status in other ways that went above and beyond its mere factual merits. First, Goffman’s style of writing was, at least in the Finnish edition, elegant and light, and in stark contrast to the book’s sombre topics. His heartfelt empathy for the people whose lives he was writing about would redefine, if not the vocabulary, then at least the tone with which prisoners, mental patients and other institutionally incarcerated individuals — the ‘inmates’ of Goffman’s subtitle — were henceforth addressed.
But perhaps even more important was his way of doing research. In the 1960s, the field of the social sciences was already saturated with large-N surveys and statistical analyses that were instrumentally valuable for technocracy-driven governance, but which, at the same time, were as incompatible with any claims to truth as the natural sciences that served as their positivistic matrix. Goffman’s work was different. His intimate way of conducting participant observation at the institute where he was working as a mental health assistant was, for want of a better term, ‘sloppy’. Even though the method itself was already well-established by that time, Goffman seemed to be following his own intuition rather than sticking to any distinct ‘phases’ that qualitative research textbooks insisted on. There is no reason to doubt either the reliability of Goffman’s observations or the accuracy with which he recorded them. But reliability and accuracy are not the main issues here. Goffman’s uniqueness resulted rather from the sensitivity and attention that he invested into his self-reflexion as he reworked his recorded observations into personal interpretations.
So on top of the factual merits — the traits that characterise all total institutions — we have an ethical awareness, that is, Goffman’s empathy, and a very particular brand of methodical self-reflexion that together gave the book its kinship relation to art and its affinity with truth.
Some twenty years later when I was already an independent postgraduate scholar in my own right — albeit still young — the focus of institutional debates had moved from Goffman to Michel Foucault’s Discipline and Punish (Foucault 1995). As powerful and influential as Foucault’s book was, it never ‘crossed over’ in the same way. Nor could it have. Any reference to truth would have fared poorly in Foucault’s power-knowledge relations in which his own work, of course, had to take part. Foucault’s merits were different. First, he studied texts rather than individuals or social actors. Even though he was personally committed to the French anti-prison movement of the time1, Foucault conducted his research in archives and libraries rather than in the institutions that he was writing about. The factual merits were similar to Goffman’s (see also e.g. Foucault 2002: 75-76; Leib 2017), but Foucault’s persuasiveness could not be inferred from his personal encounters with inmates. Rather, it resulted from his meticulous document analysis and the sheer power of its microscopic and highly detailed description. The details and their seemingly counter-intuitive interrelations allowed us to see completely new regularities of power that would otherwise have remained obscured by established discursive conventions. In this sense, Foucault was much more a scientist than a liberal arts scholar.
Goffman was, then, an example of a social scientist whose work crossed over into the realm of the arts because it somehow ‘rang truer’ than your average sociology treatise. Now, such a crossing-over can, of course, move in the opposite direction, as well. Think of, for example, Bernd and Hilla Becher’s famous photographs of water towers (Becher – Becher 1988; see also e.g. Lange 2007). Although we might initially classify the project as ‘fine art photography’, some of its features point in another direction: the Bechers only used a view camera that was capable of producing exceptionally high-quality images, the photographs were shot from angles that would ‘objectify’ the water towers minimising any implications of personal artistic interpretation, and in addition to the repetitive ‘typologies’ of the industrial buildings that were being photographed, the pictures were further serialised by identical lighting conditions that resulted from shooting only in certain seasons of the year, in similar overcast conditions, and at specific times of the day. The various projects of the Bechers reflected the kind of pedantry, meticulous attention to detail and excessive formalism that one was more accustomed to associating with scientifically motivated photographic documentation than the fine arts.
My own ‘Goffman moment’ was similar in the sense that it was a work of art, a novel, that resonated with the kind of research that I wanted to do. Jennie and Pete Smith, friends and artists affiliated with the London-based collective By Beck Road 19, gave me W.G. Sebald’s The Rings of Saturn (Sebald 1998) as a present. I knew of Sebald but had not read him before. In the novel, the unreliable first-person narrator explored a North Sea coastal environment while meditating on issues such as memory and identity. Text and image, different literary genres like prose fiction, essay and travelogue, fact and fiction, all intermingled to produce a wavering meaning that, to me, ‘rang truer’ than any geographically accurate and self-assured description of the same environment ever could have. In an interview, Sebald commented on his own wavering position in the following way:
The walker’s approach to viewing nature is a phenomenological one and the scientist’s approach is a much more incisive one, but they all belong together. And in my view, even today it is true that scientists very frequently write better than novelists. (Silverblatt 2007: 81)
Note the liminal space between the walking phenomenologist (e.g. Roy 2017) and the incisiveness of the scientist (e.g. Theisen 2006) into which Sebald positions himself. These two poles that ‘belong together’ re-articulate a common distinction between sensory perception and knowledge in which the latter represents some unitary whole that sensory data is organised into with the help of spatial and temporal schemata. Although it was easy enough to detect that Sebald the literary author was here flirting with the sciences, it took me a while to understand more precisely the direction into which his flirting was pointing. Two things intuitively attracted me.
First, I had gradually become more and more aware of the weaknesses of the type of critically oriented metaconceptualism that I had dabbled with for most of my professional life (e.g. Minkkinen 1999; Minkkinen 2009). The figure of the ‘walking phenomenologist’ underlined the absence of any empirically observable world in my work back to which my concepts could ultimately be traced. Subsequently I also recognised this as something that had made my work unnecessarily stale and politically inefficient.
Second, and perhaps more significantly, Sebald’s wavering was somehow reminiscent of Goffman’s methodological ‘sloppiness’. Despite his fascination for incisiveness and knowledge, Sebald was, of course, far from a large-N social scientist. He made no conscious effort to fit his data into airtight conceptual boxes or to arrange his data clusters into logical constructs. Describing his fondness for unsystematic thinking in his own thesis work, Sebald claimed that he explored the world around him like a ‘dog following the advice of his nose’ (Cuomo 2007: 94). Systematic patterns would always leave overflow or residue that Sebald often specifically focused on. But neither was the first-person narrator of The Rings of Saturn free to disregard the data-based evidence that he had collected over the course of his coastal walks. So the position in between was clearly a strained one.
Many interpreters of Sebald have drawn the conclusion that this curious relationship to scientific inquiry implies an analogy with ethnography. In addition to pencilled glosses allegedly found in books from Sebald’s private library, a common source for this claim has been an interview, originally published in 1993, in which Sebald described his own work routines in the following way:
I work using the system of bricolage — in Lévi-Strauss’s meaning. It is a form of savage work, of prerational thought, in which one assembles coincidentally accumulated findings until they begin to make some sense. (Sebald 2011: 84, my translation)
It is worth repeating how Claude Lévi-Strauss began his discussion of bricolage in The Savage Mind:
Myths and rites are far from being, as has often been held, the product of man’s ‘myth-making faculty’, turning its back on reality. Their principal value is indeed to preserve until the present time the remains of methods of observation and reflection which were (and no doubt still are) precisely adapted to discoveries of a certain type: those which nature authorised from the starting point of a speculative organization and exploitation of the sensible world in sensible terms. This science of the concrete was necessarily restricted by its essence to results other than those destined to be achieved by the exact natural sciences but it was no less scientific and its results no less genuine. (Lévi-Strauss 1966: 16)
So in Lévi-Strauss’s terms, mythical thinking is one of two forms of a ‘science of the concrete’, an ‘intellectual bricolage’ or logic according to which sensory data is organised into meaningful wholes using a finite number of available parts that the bricoleur/bricoleuse has stumbled upon and collected together. Metaphorically such a broad and unspecific notion of bricolage points conveniently towards the Romanticist idea of the genius author that serves certain strains of Sebald scholarship well (e.g. Chandler 2003). But it is considerably less convenient if one wants to find a comfortable fit with Lévi-Strauss’s own epistemological emphases. By making the distinction between two types of scientific knowledge — the ‘technical’ knowledge accredited to the ‘engineer’ on the one hand, and the ‘mythical’ knowledge of the bricoleur/bricoleuse on the other — Lévi-Strauss, the Saussurian structuralist, clearly associates himself more with the former. A structuralist account of bricolage is, in other words, a ‘scientific’ explanation of how mythical knowledge is produced, while Sebald’s interview, as well as many of the interpretations drawn from it, identify the author with the bricoleur/bricoleuse as the producer of mythical knowledge. Something doesn’t quite add up because Lévi-Strauss’s scheme provides no neutral ‘third’ position from which the bricoleur/bricoleuse herself could self-reflexively comprehend her own position as the producer of mythical knowledge (on these and other problems in coupling Sebald with Lévi-Strauss, see e.g. Hutchinson 2009: 52-55).
But perhaps the ‘third’ position can be found elsewhere. J.J. Long (Long 2011; see also Long 2007) has attempted to show how it might be located by focusing on Sebald’s critical adoptions of other ethnographic conventions. After recognising the problems that arise from Sebald’s self-professed affiliation with Lévi-Strauss’s bricoleur/bricoleuse, Long identifies two such conventions that find some support in Sebald’s own texts.
First, Sebald himself draws a parallel between ethnography and travel literature by noting how certain forms of ‘ethnographic novellas’2 lead to a cross-contamination of sorts. In order to make an exotic environment familiar to a reader, something resembling scientific inquiry draws on simplified ‘typical features’ that have, in fact, only been created for narrative purposes. At the same time, these simplifications become caricatures that in the process acquire unfounded scientific validity. Long claims that these reservations are a critical echo of what anthropologists call the ‘salvage paradigm’. James Clifford describes this ‘pastoral’ paradigm in the following way:
In Western taxonomy and memory the various non-Western ”ethnographic presents” are actually pasts. They represent culturally distinct times (”traditions”) always about to undergo the impact of disruptive changes associated with the influence of trade, media, missionaries, commodities, ethnographers, tourists, the exotic art market, the ”world system”, etc. A relatively recent period of authenticity is repeatedly followed by a deluge of corruption, transformation, modernization. (Clifford 1987: 122; see also Clifford 1986)
In other words, by trying to rescue a threatened authenticity that supposedly exists outside of Western time and space, ethnography also forces it onto a ‘not-quite-there-yet’ point on a common historical timeline that can only destroy any authenticity there may have been to begin with. From Sebald’s point of view, this is a danger that is inherent in all ethnographies that attempt to draw an unknown ‘other’ into the light of familiarity through writing. The elaboration of the ‘typical features’ that are meant to communicate the unknown phenomenon actually end up hastening its destruction.
Second, while the author and narrator of The Rings of Saturn is clearly a participant observer immersed in a ‘foreign’ East-Anglian — culturally English — environment, Long claims that for Sebald the relationship between the observer and what is being observed is far removed from the stark separation that conventional ethnography implies. This issue has, of course, been widely debated in anthropology, as well. Charlotte Aull Davies (Davies 1999: 14-15), to take one example, uses the term ‘de-differentiation’ to describe the gradual process in which the ability to separate observer from observed, researcher from world, has been increasingly questioned. De-differentiated ethnographies are less likely to make strong claims about the ability of fieldwork observations to represent a reality that is radically external in relation to the observer. Ultimately, as the distinction between observer and observed becomes ever more difficult to make, ethnographers can be said to create their objects of study rather than to discover them. Unable to make claims about phenomena that are sufficiently external in relation to herself, the ethnographer is also more intimately bound to her particular ethnographies. The resulting self-reflexivity produces research that is more about the ethnographer herself than her alleged object of study ridding her of the privileged voice of scientific authority.
Long claims that in The Rings of Saturn, a similar de-differentiating effect is achieved by juxtaposing two interchangeable characters. One the one hand, we have a German narrator whose ethnographic gaze follows the occasionally perplexing undertakings of the English, and on the other, the narrator’s anglicised alter ego whose relationship with his native Germany is characterised by the equally perplexed sentiments of an expat. With this move, ‘the rhetorical basis of the power differential [prioritising the observer over the observed] turns out to be provisional and its authority dissolves’ (Long 2011: 424).
If we want to find a similar entanglement in scholarship more generally, then it could, perhaps, be put in the following way. While an empirical reality, first observed by the walking phenomenologist and then organised by the incisive scientist, can provide credibility for the knowledge that is consequently produced, writing it down will inevitably complement the knowledge with an authorial self-reflexion that questions the very foundations on which that credibility is built. This double bind reiterates the distinction made between ethnography as method (e.g. Hammersley – Atkinson 2007) and ethnography as writing (e.g. Atkinson 1990; Atkinson 2020) where the product of the latter, that is, the individual ‘ethnographies’ that we write, destabilise the logic of empirical validity without which those ethnographies would, nonetheless, be impossible. We can identify the same rhetorical entanglement in both Goffman and Sebald, in both a social science that stretches out towards the arts, and in literature that finds its collaborative partner in the sciences.
Many commentators have noted that irrespective of Sebald’s possible fascination for Lévi-Strauss and ethnography, his ties with and to Walter Benjamin and the Frankfurt School are more important. As Sebald himself wrote about his own university studies in the 1960s:
I have often wondered how dismal and distorted our appreciation of literature might have remained had not the gradually appearing writings of Walter Benjamin and the Frankfurt School — which was, in effect, a Jewish school for the investigation of bourgeois social and intellectual history — provided an alternative perspective. (Sebald 2014: 8; see also e.g. Dubow 2007; Hutchinson 2011)
Indeed, it is hard to avoid noticing a certain kinship between Sebald and Benjamin, even if we go beyond the somewhat facile Romanticist associations that are often made in the English-speaking world between German writers (e.g. Preuschoff 2016; Preuschoff 2018). To me, the kinship has less to do with any particular appreciation of literature, or even with any notion that Benjamin may have had about the empirical world ‘out there’ even if Sebald’s walking phenomenologist may have something in common with Benjamin’s flaneur (see e.g. Coates 2017; Jenks – Neves 2000). To me, the relationship between the two is more evident in Sebald’s self-professed attachment to bricolage and Benjamin’s unique ideas about ‘method’ (see especially the ’Epistemo-Critical Prologue’ in Benjamin 2009: 27-56).
David Kleinberg-Levin notes that the most recognisable feature in Sebald’s storytelling is a certain affective mood that he achieves by assigning a particular emotional physiognomy to a whole sentence: ‘Making the sentence or constellation, not the word, the major aesthetic unit gives his narrative its distinctive stylistic form’ (Kleinberg-Levin 2013: 97). Kleinberg-Levin’s choice of words is no coincidence here. For Benjamin, the constellation was, of course, an approach that he began developing in the 1920s into an alternative method of history as he was distancing himself from the influence of Hermann Cohen and the Marburg School and gradually gravitating towards Franz Rosenzweig (see Minkkinen 2013; also e.g. Lambrianou 2004; Löwy 1980; Löwy 1992). This is what is sometimes perhaps too expediently condensed into the ‘early’ Benjamin before his 1924 trip to Capri where he read György Lukács’s History and Class Consciousness for the first time and met Anna ‘Asja’ Lācis, the Marxist theatre director and ‘Bolshevik actress’. So at least on the face of it, this is not yet a properly ‘Frankfurtian’ Benjamin, if he ever was one. One argument might be that what attracted Sebald to Benjamin was, in fact, not any Frankfurt-brand of Marxism at all but, rather, a ‘romantic anti-capitalism’ of sorts (Löwy 1994; Sayre – Löwy 1984).
And so, if we consider Sebald’s ‘ethnographies-by-bricolage’ in Benjaminian terms as constellations (Benjamin 2009: 34-35; Gilloch 2002), we may be in a better position to appreciate Sebald’s critical and ‘self-destructive’ notion of writing, as well. A constellation allows the walking phenomenologist to view the interrelations between independent units of sensory data in ways that grant them some autonomy even within the real-world contexts in which they appear, but without bracketing them into isolated and self-sustained phenomena either. A constellation allows for relational nuances which, to quote Theodor Adorno’s reading of Benjamin, a classifying procedure would regard as ‘either a matter of indifference or a burden’ (Adorno 2004: 162), that is, as the overflow or residue mentioned earlier. So in conventional narrative configurations, a scruffy seaside hotel that the walking phenomenologist has stumbled upon in Suffolk may all too easily find a convenient slot in, say, an ‘excursion around an eastern English wetland’ (cf. Matless 2014). But in a constellation, it may connect with seemingly odd bedfellows such as, for example, an affective self-reflexion on estrangement and the passing of time. And as such it may be more inclined to generate the kind of ‘disruptive paradigms’ that we should be on the lookout for.
This idea has not gone unnoticed by ethnographers themselves either (e.g. Sieber – Truskolaski 2017). Towards the end of his Law in a Lawless Land, an ethnographic diary of how ordinary Colombians are caught up in the interminable and violent conflicts between left-wing guerrillas, right-wing paramilitaries, and the Colombian military, Michael Taussig quotes Benjamin’s well-known criticism of writing history as if it was individual events simply organised successively like beads on a rosary. This is one of the places where Benjamin takes up the idea of a constellation, but in this context as a way to account for history as what he calls ‘now-time’ (see Benjamin 2003: 397; also Hamacher 2005). Taussig associates his own ethnographic work with Benjamin’s history precisely at this epistemological and ‘methodological’ level:
It [the constellation] was not a method I consciously sought. It followed the paths of recollection and their unexpected associations through different lapses of time as they opened out from a diary I kept for two weeks in May 2001. The ”now time” that Benjamin refers us to is incandescent for me in a continuous present the diarist puts onto the page as events slip away the instant they are recorded, yet in doing so they trigger recollections with other events long past so as to create meaningful constellations, more meaningful in that, as Benjamin points out, they connect the present era with an earlier one through unexpected juxtaposition. (Taussig 2003: 184-185)
So here again, just like with Sebald, the ethnographer’s method cannot be Lévi-Strauss’s scientific anthropology but, rather, something resembling a ‘love of muted and even defective storytelling as a form of analysis’ (Taussig 2006: vii) practiced by the bricoleur/bricoleuse herself whose ‘prerational’ thinking the scientist is merely attempting to describe.
In the words of Hugo von Hofmannsthal, Austrian author, poet and playwright:
How wonderful these humans are, indeed,
Who do explain the inexplicable,
And what was never writ, they read;
The intricate they, subjugating, bind,
And thru eternal darkness paths they find.
(Hofmannsthal 1914: 45)
These are Death’s closing lines in Death and the Fool, a play that was significant for Benjamin (see e.g. Witte 1991: 64-67; Cacciari 2009), and as far as these particular verses go, something that also seems fitting for both Benjamin’s own constellations and any interpretive attempts to come to terms with them. Including Sebald’s (on Sebald and Hofmannsthal, see e.g. Sebald 1985).
1. Together with fellow radicals, political thinker Jean-Marie Domenach and historian Pierre Vidal-Naquet, Foucault established an ‘information group on prisons’ the aim of which was to raise awareness of the appalling conditions of inmates in French prisons (see Domenach – Foucault – Vidal-Naquet 1971; English translation available as ‘Manifesto’ 2013).
2. Sebald’s specific reference here is to 19th and 20th century ghetto literature that attempted to reconstruct the Ashkenazi past of German Jews (see e.g. Hess 2010: 72-110).
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In my inaugural lecture from May 2017 (introduced in Finnish here), I tried to argue for a slightly modified notion of judicial power. Section 99 of the Constitution of Finland (731/1999) seems to understand a ‘separated’ judicial power as not much more than the courts’ exclusive duty and right to ‘administer justice’, that is, to apply the law in individual cases. This deceptively clear-cut definition was recently reduplicated in Article 3 of the Courts Act (673/2016) which, in turn, makes a direct reference to the powers of the judiciary as they are defined in the Constitution. There is little about the courts’ role in the general control of the constitutionality of the activities of the political branches, although Section 106 of the Constitution did specifically create a new duty for the courts to abstain from applying primary legislation that is ‘in evident conflict’ with the constitution. The Finnish tradition of constitutional review has traditionally emphasised the role of parliamentary preview preferring a more restraint understanding of judicial power.
In my inaugural lecture, I wanted to suggest that such a simplified notion of a ‘deferential’ judiciary may be making way for a more proactively tuned idea of what judicial power is and could be. A few general observations supported my claim. First, ever new areas of social life had been brought under state or transnational regulation. This, in turn, meant that the duties of the courts to adjudicate had consequently expanded, as well. So, for example, the state had through regulation taken on new obligations to provide for welfare services that, if left undelivered, would enable claims from dissatisfied ‘clients’. Second, the primacy of EU legislation had, to quote my predecessor Kaarlo Tuori, given new prominence to a requirement of ‘normative coherence’ in the adjudication of national courts in addition and alongside the more traditional notion of ‘logical consistency’ (see Tuori 2011: 145-172). So, for example, the authority of ECtHR jurisprudence certainly gave national adjudication a certain principle-based tint that prioritised interpretations that were unambiguously compatible with constitutionally embedded human rights.
The University media services wrote a short interview piece that was meant to function as an introduction to my lecture. Perhaps unaware of the rather obvious reference to popular culture, they decided to give the interview the title: ‘The judiciary says “no”!’ Implying that the courts that had traditionally taken a democratic backseat and been content to merely apply laws passed by the legislature may on occasion feel reluctant to do so in the future. To me, it was a question about how poorly developed the Finnish notion of a separation of powers was, especially in light of the parliamentaristic emphases of the 1999 Constitution, and how, as a consequence, the potential complexities of judicial power had never really been investigated. The constitutional definition of judicial power seemed almost like a tautology. Neither the inaugural lecture nor the interview attracted much attention, and the same can be said about the two academic articles that I had written on the subject in Finnish (Minkkinen 2015; Minkkinen 2016). The whole idea of ‘judicial activism’ in any shape or form was apparently just too far-fetched.
Constitutional traditions vary. And even if similarities can be detected here and there, there are good reasons to steer clear from the universalising excesses of mainstream constitutional theory. But we should be allowed to extract general arguments from some specific court cases even if they originate from jurisdictions other than our own.
R (Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland ( UKSC 41) is such a case. It is, of course, a landmark case for several UK-specific reasons. But here I am more interested in its general implications that concern the role of the judiciary in neoliberal democracies. Already at the Supreme Court hearings, legal representatives for the Government had argued that proroguing Parliament was a controversy for politicians to settle, and that judges should think twice before ‘entering the political arena’. Following the ruling, disappointed Brexit-supporting commentators further rhetorically suggested that UK constitutional culture had entered a new era, and that the role of the judiciary should, perhaps, be re-modelled more on the American ideal with Supreme Court justices appointed by the executive after political hearings.
Much of this is, of course, merely a rehashing of age-old ‘law/politics’ controversies. But in trying to outline this new idea of judicial power that I had in mind, I wanted to address the controversies in a few interrelated ways.
The first is what one could, perhaps, call the ‘epistemic fallacy’. An argument persuading the judiciary to refrain from entering the realm of politics assumes that what is political can be convincingly distinguished from what is properly legal. In the light of, for example, the Finnish constitutional norms in question – and any subsequent legislation that refers back to the constitution – no such criterion of distinction has been provided. Hence we cannot ‘know’ what is law and what is politics. In fact, the definitional tautology of judicial power seems to work the other way around: whatever the courts take on as the ‘administering of justice’ falls under the constitutional category of judicial power. A disagreement in substance with other branches of government (like the one in the UK Supreme Court case) does not alter that. If the court itself decides that something is justiciable, then it by definition belongs to the realm of the law and judicial power. In the German context, one could, perhaps, run such a dispute between constitutional branches as an Organstreit case in the Federal Constitutional Court, but in this case no such mechanism exists.
A second point referred to the ‘relative’ nature of judicial power. As one third of the trias politica, the judiciary uses a power that is supposedly ‘separated’ from the powers used by the two other ‘persons’ of the trinity. The separation of powers doctrine that we claim to extract from the writings of a Locke or a Montesquieu is premised on the idea that concentrating too much power into the hands of a single branch will potentially lead to authoritarian tendencies. Hence ‘checks and balances’ (even though the reality of everyday government may look more like powers ‘shared’ than ‘separated’). Over the last few decades, and in most neoliberal European democracies, we have, however, witnessed the gradual concentration of power in the executive branch leaving the legislative branch, the supposed primus motor of democratic governance, more into the sidelines. There may be several reasons for this development. In some cases, it may have had to do with the terrorist attacks of 2001 promoting security into an overriding constitutional principle, while in others, it may have simply been a reflection of traditional tripartite designs gradually morphing into efficiency-oriented and ‘managerialist’ Westminster models where the executive acts like a parliamentary CEO pushing for a particular legislative agenda.
Whatever the reasons, this shift strengthening the power of the executive at the expense of the legislature has also had an effect on the ‘balance’ that a separation of powers implies. One could, perhaps, argue that the shift has created a deficit or a democratic vacuum that the judiciary has been in a position to fill. In other words, we are not really witnessing a rise in judicial activism per se, or at least not in activism that would be motivated by the political ambitions of the judicial actors themselves. The overall changes have more to do with the relative power of the judiciary increasing as it takes on duties relating to democratic scrutiny that a now weakened legislature was previously primarily responsible for. So, for example, the factual inability of the legislature to authoritatively assess the legitimacy of the executive’s political agenda opens possibilities for the judiciary to strengthen its own democratic role.
My third point wanted to find a plausible theoretical explanation for these changes, in so far as they had actually taken place. Research requires recorded data, and my argument would have made more sense if I could have presented more cases like Miller 2 to support my hypothesis. Because if we simply look at available and published court cases, we would not be able to detect many instances of open disagreement between the judiciary and the political branches. For the most part, the judiciary does seem to play along in a well-mannered way. But judicial power seldom manifests itself as open confrontation. Instead, courts exercise a more subtle authority, and one important manifestation of that authority is the judiciary’s ability to temper government without actually having to intervene. So instead of actual confrontations, we have potential ones. The potentiality of the judiciary confronting the executive produces a fragile equilibrium of sorts that one could, following deterrence theory, call a ‘balance of fear’: the executive refrains from excesses because it is reluctant to deal with the reaction of the courts.
The final point in this chain of arguments was a related development. I wanted to look at some of the ways in which a modern judiciary had taken on a more proactive role in democracy, something that it had, perhaps, previously shunned away from. So how does a judiciary, then, exercise its ‘enhanced’ socio-political authority if the definition of judicial power had nevertheless remained unchanged?
One response was the media which has – and with good reason – also been called the ‘fourth branch of government’. One task of the ‘fourth branch’ is to contribute to democratic scrutiny within the same ‘checks and balances’. A democratic media would, then, also oversee the activities of the judiciary in ways that would secure the legitimacy of the courts’ activities. The media oversight of judicial activities can be illustrated with two metaphors. As a gatekeeper, the media decides what judicial information is circulated in the public domain, and it chooses the broader narrative frameworks around which this information is structured. The media will by and large decide which legal issues are socially and politically relevant and which are not. An example of the media gatekeeper’s influence would be the disproportionate prominence of criminal cases in mass media reporting. On the other hand, the media also operates as a watchdog that safeguards the integrity of government even in relation to the judiciary.
But the judiciary will also itself want to participate in increasing the transparency of its own decision-making. In this case, ‘media’ is understood literally as a set of tools and artefacts that the judiciary itself uses to ‘mediate’ a chosen message. To an ever larger extent, the judiciary is a media actor in its own right that attempts to control the flow of information and, consequently, also its own relationship with society. As media actors, the courts will have their own information strategies in which the outlets and principles of media output are defined, as well as designated media officers to execute these strategies. The resulting transparency will, no doubt, also contribute towards the public’s perception of enhanced democratic values, but the central motive for the judiciary to handle its own media is, nonetheless, its wish to influence information that may be misrepresented by a gatekeeper-media or to manage its own public image in relation to the watchdog-media. These are important ways in which the judiciary exercises its authority and, if my hypothesis was correct, elements in a more developed notion of judicial power.
To this extent, we have started to put together a corpus of norms, recommendations and guidelines on judicial media activities that have been issued either internally by the judiciary itself or externally by ministries or other government bodies. Our aim is to complete a comparative survey of such material before defining the more detailed research questions of a project. If you are a media officer for the judiciary or are otherwise involved in judicial media activities, please don’t hesitate to either be in touch or to leave your comments below.
Minkkinen, Panu (2015) ’Valta, sen jakaminen, ja parlamentarismi – PL 3 §:stä Walter Bagehotin valossa’ [‘Power, its separation, and parliamentarism: on Article 3 of the Finnish Constitution and Walter Bagehot’], Lakimies, No. 1/2015: 3-27.
Minkkinen, Panu (2016) ’”Vähiten vaarallinen valtioelin”? Tuomiovalta, vallanjako ja demokratia’ [‘”The least dangerous branch”? On judicial power, the separation of powers, and democracy’], Politiikka, Vol. 58, No. 3: 224-237.
Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.
Below you’ll find the paper that I prepared for and presented at the ICON-S 2019 conference in Santiago, Chile. If you prefer to download a pdf, you can find it here.
In a lead article for a special issue of Law & Society Review, Kim Lane Scheppele (Scheppele 2004) brought together a number of contributions that focused on the particularities of state-specific and transnational constitutional phenomena as ‘comparative constitutional ethnography’. Unlike constitutional theory that often universalises its claims beyond plausibility, Scheppele claimed that the issue’s contributions expanded from their concrete (and often national) objects of study towards more general definitions by contextualising the phenomena in question both comparatively and historically. So the defining characteristics of, say, a national constitutional court would stand out better against contrasts that comparative and historical insights can provide. At the same time, we gained a better understanding of the institution of constitutional review in general and how it can be implemented in different environments. For Scheppele, such a methodological ethos could be dated back to many socio-legal classics ranging from Montesquieu to Weber, but it had later been abandoned in favour of more nationalistic and state-specific research agendas. The aim of constitutional ethnography was to reclaim some of that lost tradition.
What could, then, such a constitutional ethnography be? Provisionally Scheppele defined it as ’the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape’ (Scheppele 2004: 395). As provisional as that definition was, it was one of the few attempts in recent times to focus on what ethnography as a method may be able to offer the study of constitutional phenomena (see also Bevir – Rhodes 2010).1 For now, I am mainly interested in the latter part of Scheppele’s definition and will consider some methodological options that may be appropriate for the study of that ’lived detail’.
Quite a few years later, Scheppele (Scheppele 2017: 56-59) returned to constitutional ethnography and its compatibility with a phenomenological sociology of constitutions. In her second instalment, Scheppele mentions three specific ethnographic approaches. First, in traditional fieldwork, the researcher immerses herself into the environments that she wishes to study by, for example, observing particular constitutional actors and institutions (e.g. Schatz 2009; Greenhouse 2010). Second, immersive archival work is a form of historical ethnography involving the analysis of historical records in more or less the same way as in historical research proper, but with the addition of an identification with historical actors through the records that they have left behind. If successful, archival immersion allows the researcher to consider meanings that the historical actors themselves may have given to their own practices, albeit as approximations at best (e.g. Merry 2002; Zeitlyn 2012). Scheppele calls her third ethnographic approach the study of ’traces’, that is, of non-curated cultural ’raw material’ such as popular artefacts (e.g. commemorative coins as in Gorski 2000), affective objects invested with special meaning (e.g. gifts that heads of state receive as in Ssorin-Chaikov 2006), as well as specific linguistic practices (e.g. professional jargon as in Mayr 2008). While Scheppele’s two first mentioned approaches are more or less in line with ethnographic conventions, her third approach, the study of traces, may be offering something new (see however Geiger – Ribes 2011). I propose to call this third approach ichnography, a term appropriate in terms of both etymology (íkhnos, meaning ’track’ or ’footprint’) and, in light of this particular paper, its architectural reference (Vitruvius’s ’ground-plan’, see Vitruvius 1931: 25 [i.2.2]).
The aim of this paper is to consider Scheppele’s three approaches as parts of a more focused method suited for studying the ways in which power is experienced as the ’lived detail’ of a constituted space. Individuals namely experience the constitutional arrangements under which they live as, among other things, spatial contours within which they negotiate their relationships to power and domination (e.g. Elden 2009; Crampton – Elden 2007). These power-related spatial contours are especially discernible in the architecture and urban planning of cities that are specifically designated as seats of power (e.g. Gordon 2006). What can these spatial contours, the architectural solutions and city plans, understood now as the containers and conduits of our lived experiences of politico-legal power, tell us about the constitutional arrangements themselves?
In her original article, Scheppele insisted that what made ethnography a distinct field of research was its commitment to collecting whole specimens of social life, that is, particular phenomena, but fully contextualised into unitary wholes (Scheppele 2004: 397). Henri Lefebvre has created a heuristic outline, his well-known ’spatial triad’, that allows us to consider the spatial contours of constituted power as such a whole specimen. The triad requires a brief description here. Its three dimensions are, in phenomenological terms, conceived space, perceived space, and lived space (Lefebvre 1991: 38-39).
Conceived space is the dimension that best reflects the official order of the state. As such, it also offers the most convenient starting point for any power-related analysis. It refers to the way in which space is imagined by scientists and technocrats, by urban planners and architects, that is, to the space of all who conceive it with the help of science and knowledge. The technocrat’s conceptions support notions of space that can be rendered into an image such as a map, a blueprint or a floor plan, but also an organisational chart representing, for example, a particular constitutional design. Perceived space, on the other hand, refers to the everyday practices with which social actors position themselves into capitalist relations of production as they regularly work and consume. Regularity provides continuity and reinforces positions until action stabilises into something with a perceivable spatial outline. For the most part, such action follows the conceived designs of spatial technocrats in the sense that space is usually used for its designated purposes and in designated ways. Finally, lived space is the counterpoint to, or possibly even a contestation of, the technocrat’s spatial conceptions, that is, of the urban plans, the architectural designs, the cartographer’s maps, and so on. As such, it refers to the real-life experiences of users and inhabitants, their manifold ways of ’existing’ in space and giving it their proper meanings in spite of the sometimes overpowering conceptions and perceptions that might be attached to it. These are undoubtedly the most difficult aspects of Lefebvre’s triad, but politically the most important.
If we adopt Lefebvre’s triad as an ideal-typical matrix for an ethnography of the spatial contours of constituted power, our methodological shopping cart may include both familiar and more exotic items, but all finding an appropriate counterpart from Scheppele’s three approaches. The study of conceived space would most likely resemble an archival immersion in which the ethnographer qualitatively analyses document sets such as Pierre Charles L’Enfant’s plan for Washington DC (see Gutheim – Lee 2006; Glazer – Field 2008) or the ’Plano Piloto’ of Lúcio Costa for Brasília (see Plano Piloto 1991; Holston 1989). As designs for capital cities, both plans are attempts to conceive of constituted power in spatially relevant ways. Fieldwork, on the other hand, would seem to be best suited for, for example, ’tracking and tracing’ the ways in which civil servants, citizens and other actors go about their daily routines within the conceived outlines of constituted power in, say, Washington or Brasília. Through observation, the ethnographer may be able to verify whether and how these positions gradually coagulate into the regularities of perceived space (see Bernstein et al 2011; Shore et al 2011). Finally, Lefebvre’s lived dimension of space, perhaps best reflecting Scheppele’s more general notion of the ’lived detail of the politico-legal landscape’ as a whole, allows us to develop the ichnographic idea of studying traces further. What I have in mind as traces in this instance are, for example, Brazilian pichação graffiti that, especially in a UNESCO world heritage site like Brasília, can only exist strained either as a stain in a protected patrimony or as state-sanctioned ‘street art’ (e.g. Zanella 2017).
Embodied engagements with power
How does one, then, retrace the outlines of the spatial contours of constituted power?
As lived experience, these outlines are in no way exclusive to someone or something external in relation to the researcher. Indeed, the epistemology of contemporary ethnography is mostly of a ’non-positivist’ or ’interpretive’ character (e.g. Geertz 1983; Bevir – Blakely 2018) in the sense that the ethnographer is always embedded in the world that she studies. So no radical separation between ethnographer and her object of study is either possible or desirable. Even so, the starting point of most ethnography, ’interpretive’ as it may be, still differentiates the researcher from an éthnos, if you will, albeit both belonging to a shared world.
Charlotte Aull Davies (Davies 1999: 14-15) uses the term ’de-differentiation’ to describe the gradual process in which the ability to separate observer from observed, researcher from world, has been increasingly questioned. De-differentiated ethnographies are less likely to make strong claims about the ability of fieldwork observations to represent a reality that is radically external in relation to the observer. Ultimately, as the distinction between observer and observed becomes ever more difficult to make, ethnographers can be said to create their objects of study rather than to discover them. Unable to make claims about phenomena that are sufficiently external in relation to herself, the ethnographer as author is also more intimately bound to her particular ethnographies. The resulting self-reflexivity produces research that is more about the ethnographer herself than her alleged object of study ridding her of the privileged voice of scientific authority.
To a large extent, this discussion about ethnographic self-reflexion was triggered by the challenges that so-called ’poststructuralist’ positions presented the social sciences more generally (e.g. Van Maanen 2011). Perhaps the discussion was also evidence of a more general tension between the Anglo-American tradition of anthropology and its ’ethnological’ variation in France.2 But rather than trying to somehow appease possible tensions by synthesising interpretive starting points with poststructuralist critiques into an epistemologically more acceptable midway position — Davies herself attempts this through Roy Bhaskar’s ’critical realism’ (Davies 1999: 17-24; see also Aunger 2004: 130-144) — the self-reflexivity can also be embraced and developed into a fully conscious ‘autoethnography’ that ’blends the practices and emphases of social science with the aesthetic sensibility and expressive forms of art’ (Ellis 2004: 30).
A shift to more autoethnographic positions has, of course, raised further concerns about the traditional virtues associated with ’scientific’ inquiry. Autoethnography is, namely, neither ’objective’ nor ’controllable’ in conventional ways. But, on the other hand, it:
brought heightened attention to human suffering, injustice, trauma, subjectivity, feeling, and loss; encouraged the development of reflexive and creative methodologies through which to navigate the landscape of lived experience; and legitimated unconventional forms of documenting and expressing personal experience in literary, lyrical, poetic, and performative ways. (Bochner – Ellis 2016: 45)
So while the ethnographer ’navigates the landscape of lived experience’, she refers to her own embodied engagements within sensory environments requiring her to ’reflect on these engagements, to conceptualise their meanings theoretically and to seek ways to communicate the relatedness of experiential and intellectual meanings to others’ (Pink 2009: 25-26; also Fasula 2013). The spatial contours of constituted power are a good example of such sensory environments. If its lived experience is accessible through the ethnographer’s own embodied immersion into spaces of power such as, for example, the Federal Triangle in Washington DC (e.g. Tompkins 1993) or Brasília’s Praça dos Três Poderes (e.g. Jenkins 2008: 38-39), then the communication of that experience should somehow reflect the sensory nature of the experience itself. In this sense, Scheppele’s third, trace-related approach, in this case a spatial ichnography, would call for a self-reflexive and sensory ethnography, perhaps even an expressive rather than documentary visual ethnography (e.g. Pussetti 2018).
Construct and constellation
By keeping a sufficient distance in relation to the conventions of political anthropology, Scheppele’s constitutional ethnography includes echoes of what Foucault called his ’local critiques’, that is, ’decentralised’ theoretically oriented research ’that does not need a visa from some common regime to establish its authority’ (Foucault 2003: 6). But the Lefebvrian triadic perspective to constituted space, with each dimension examined through one of Scheppele’s ethnographic approaches, may call for some additional remarks. How will the three approaches be able to gel together into a single interpretation without a unifying ’visa’?
Usually results reached by using different approaches are triangulated because the reliability of an interpretation made using one method is expected to improve if the same research question is examined using a second method. So in this case, the reliability of interpretations made by analysing documents on the spatial planning and design of seats of power could, perhaps, be improved if those interpretations were supported by photographic evidence collected ’on site’. But in this project, the motive for triangulation is the very specific way in which, for example, architectural designs and imagery complement each other rather than whether the latter can improve the reliability of the interpretation of the former.
We can try to bring our three approaches together in at least two ways. We can follow Claude Lévi-Strauss’s sequencing and proceed from an ethnography where data is first collected and recorded, through an ethnological synthesis of that data, to a more general anthropological theorising of the studied phenomenon (Lévi-Strauss 1963: 354-356). But even if this seems like a sound way forward, synthesising possibly disparate data from three different approaches into a single interpretation will not fit comfortably into the ’constructionist’ ideal that usually informs the social sciences. Rather, the three approaches, that is, archival immersion, field observations and the ichnographic study of traces, each corresponding with one dimension of Lefebvre’s triad, cascade into each other in ways that suggest tension, friction, or even incompatibility. Following Walter Benjamin (Benjamin 2009: 34-35) and Theodor Adorno (Adorno 2004: 162-166), such an interpretation should be seen as a constellation (see also Lewandowski 2001) rather than a construct. Viewing the triad as a constellation reflects well the necessarily critical nature of any ethnography of power (Yanow – Schwartz-Shea 2015). As such, each of the three approaches can retain some degree of autonomy, but without being cornered into an isolated and self-sustaining entity either. Juxtaposing the approaches in a constellation may reveal aspects which in a constructionist classification might appear as ’either a matter of indifference or a burden’ (Adorno 2004: 162), nuances which would otherwise be disregarded as insignificant or deemed superfluous. So in conventional models of triangulation, a visual perception of space may all too easily slip into a comfortable relationship with, say, photographic documentation where the image is reduced to functioning as proof. But in a constellation, one can, for instance, explore the more challenging questions that address the relationship between the observer’s subjective sense perception and its self-expression through the imagery of photographic art.
Having ‘been there’?
Finally, what would the outcome look like? What type of scholarly constellation can we expect to achieve by bringing together possibly disparate parts with allegedly low scientific credibility?
I doubt whether the polemical interventions of a Michael Taussig can be regarded as a constellation in this sense. Although many similar ingredients are present, including references to both Walter Benjamin and the constellation as a method (Taussig 2003: 184-185), the interrelations between the individual parts seem too forced. They do not ’fall into place’. To me, a much more appropriate example would be W.G. Sebald’s The Rings of Saturn (Sebald 1998). In the novel, the author’s unreliable narrator explores a North Sea coastal environment while meditating on issues such as memory and identity. Text and image, different literary genres like prose, essay and travel journal, fact and fiction, all intermingle to produce meaning (on Sebald as an ethnographer, see Long 2011). In the well-known words of Clifford Geertz:
The ability of anthropologists to get us to take what they say seriously has less to do with either a factual look or an air of conceptual elegance than it has with their capacity to convince us that what they say is a result of their having actually penetrated (or, if you prefer, been penetrated by) another form of life, of having, one way or another, truly ”been there.” And that, persuading us that this offstage miracle has occurred, is where the writing comes in. (Geertz 1988: 4-5)
1 Jo Shaw (Shaw 2007) is one of the few who has actually taken Scheppele to task and has applied Scheppele’s notion of constitutional ethnography in her analyses of European citizenship.
2 I am here thinking of ethnologists like Pierre Clastres (Clastres 1989; Clastres 2010), as well as Roger Caillois, Michel Leiris and other ’sorcerer’s apprentices’ associated with the ’College of Sociology’ (Hollier 1987; see also Caillois 2001; Leiris 2017). Paul Rabinow being the clear exception in the Anglo-American camp (e.g. Rabinow 2003; Rabinow 2008).
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These notes belong to the same project on constitutional spaces that I have been working on for a while. They represent my first attempt to look at the intersections of constituted power, architecture, and urban planning. A very early version was presented in Hong Kong at the ICON-S 2018 conference, but the notes below are closer to something I discussed with colleagues in Gothenburg later that year.
Perhaps the most iconographic ‘new capital’, that is, a city that is specifically built to be a seat of power, is Brazil’s federal capital Brasília.
The plan to move the capital from Rio de Janeiro on the coast to the inland plateaus closer to the country’s geographical center was already initiated in the early 19th century. But it was only President Juscelino Kubitschek who began to put the plan into effect in the 1950s.
In 1957, architect Lúcio Costa won the design competition with his entry known as the ‘Plano Piloto’ (Plano Piloto 1991). The entry consisted of only 15 freehand sketches and 23 handwritten paragraphs, the sort of nonchalance that only a celebrity architect could afford. After winning the competition, Costa invited his former assistant and internationally renowned compatriot Oscar Niemeyer to design the capital’s major administrative buildings for which Brasília is, perhaps, best known. In addition, Roberto Burle Marx, a landscape architect and avantgarde artist, designed the gardens of many of the most important buildings.
In Costa’s entry, the first sketch of the city plan is simply two lines drawn into a cross. The administrative buildings were to be built on the vertical line called the ‘monumental axis’. In the subsequent sketches, the horizontal line of the cross would curve slightly upwards. This ‘residential axis’ would host a total of 108 superblocks or ‘superquadra’ to provide for housing for the capital’s politicians and civil servants. A large bus terminal would be built at the intersection of the two axes, and multi-lane motorways with vast curving interchanges would cross them both.
At the bottom of the monumental axis, a triangular area marks a plaza, the ‘Praça dos Três Poderes’ (‘Plaza of the Three Powers’), hosting the buildings of the three main government branches: the National Congress Building, the presidential Palácio da Alvorada, and the Supreme Federal Court. Note once again how the plan suggests a design in which the three powers can be seen to check and balance each other. From there the monumental axis stretches upward as an ‘esplanade’ where the ministries and agencies of lesser importance are situated.
The aerial view
When looking at the city from above, its planned outline resembles a bird, a dragonfly, or maybe an airplane as the city centre is colloquially known (‘avião‘). This choice can be explained through several narratives, but one is particularly persuasive.
Le Corbusier was a major inspiration for Costa and Niemeyer, both before and during the planning and construction of Brasília. The master of the ‘esprit nouveau’ had close ties with Latin America, and he had already earlier supervised the design and building of the Ministry of National Education and Public Health (today known as the Gustavo Capanema Palace) in Rio, completed in 1943. With Le Corbusier as an official consultant, Costa was the main architect of that project, and Niemeyer was a young assistant in Costa’s office. Le Corbusier had originally visited Rio in 1929 on his tour of South America. He had first arrived in Buenos Aires where he met Antoine de Saint-Exupéry. Saint-Exupéry had managed to establish a number of permanent flight routes across the continent on his Compagnie Générale Aéropostale. Le Corbusier, for his part, was mesmerised by the aerial perspectives that his flights on the Aéropostale routes provided.
The ‘bird’s-eye view’ from the airplane inspired Le Corbusier to such an extent that, in 1935, he published a short book called Aircraft (Le Corbusier 1935). Not only is it a modernist praise of the airplane as a technical innovation – the book has lovely photographs of airplanes of the time – but also of the ‘bird’s-eye view’ as a tool of urban planning:
By means of the airplane, we now have proof, recorded on the photographic plate, of the rightness of our desire to alter methods of architecture and city planning. With its eagle eye the airplane looks at the city. … The airplane instills, above all, a new conscience, the modern conscience. Cities, with their misery, must be torn down. They must be largely destroyed and fresh cities rebuilt. (Le Corbusier 1935: 11)
This type of ‘terraforming’, the ultimate weapon of colonisation, if you will, became the key planning ideology of the influential Congrès International d’Architecture Moderne (CIAM) that Le Corbusier founded a year before his trip to Latin America (see e.g. Mumford 2000). The bird’s-eye view was, of course, not an entirely new idea. Already rather ancient surveying techniques allowed cartographers to develop maps that simulated the same effect. Through land surveying measurements, cartography could produce more or less accurate depictions of existing land formations. But it was less useful in planning.
Aerial photography, on the other hand, enabled the process to be fully reversed (see Morshed 2002; Vidler 2003). We could now create something that didn’t exist at all by first designing it on top of a two-dimensional aerial image of a space that we need not even visit. The aerial image reduced all spatial complexities into a flat workable surface after which the design was easier to execute in unprecedented detail. Costa and Niemeyer’s ‘airplane’ (or ‘dragonfly’ or ‘bird’) is an excellent example of such aerial-based creation ex nihilo.
Brasília is often presented from this aerial perspective. But what if one entered from ground-level seemingly unaware of how the space had been designed? In 1974, Brazilian author Clarice Lispector wrote an essay based on a short lecture trip that she made to the capital from Rio de Janeiro. Lispector’s relation to Brasília is clearly ambivalent. At the same time as she criticises its man-made quality making, for example, comparisons with the raw and ‘natural’ beauty of Bahia, there is a majesty that she can’t quite turn away from:
Brasília is artificial. As artificial as the world must have been when it was created. When the world was created, it was necessary to create a human being especially for that world. We are all deformed through adapting to God’s freedom. We cannot say how we might have turned out if we had been created first, and the world had been deformed afterwards to meet our needs. (Lispector 1986: 136)
So in Brasília, the order of creation has been somehow set off track. Only God is free to create a world, and if man is to inhabit that world, she must be created only after the world so that she can adapt and ‘deform’ herself appropriately. Brasília, as beautiful as it may be, is, for Lispector, still an empty creation, perhaps because it can only be seen from above.
Anthropophagy vs anthropoemia
In 1928, just before Le Corbusier arrived in Brazil, the poet Oswald de Andrade published a poem called ‘Anthropophagic Manifesto’ (de Andrade 1991) that became extremely influential as the text that, through its cannibalistic metaphor, encapsulated the emerging modernist movement in Brazil. Its effects were not limited to literature because it was seen as a general cultural manifesto. The idea behind de Andrade’s poem was to differentiate Brazil from the west with the cannibalistic analogy that depicts the creation of a modern and cosmopolitan, but still authentically national, Brazilian culture. Relieved from simply reproducing second-rate copies of what the old world values, Brazilian culture would ‘devour’ both western and indigenous influences like a cannibal would ingest a respected enemy and offer instead something completely new:
The struggle between what we might call the Uncreated and the Creation – illustrated by the permanent contradiction between Man and his Taboo. Everyday love and the capitalist way of life. Cannibalism. Absorption of the sacred enemy. To transform him into a totem. The human adventure. The earthly goal. (de Andrade 1991: 43)
Although the main architectural representative of this avantgarde movement was Flávio de Carvalho (see Leite 2004), de Andrade influenced representatives of the modernist mainstream like Costa and Niemeyer, as well. But does Brazilian modernism, as it is represented in the spatial solutions of Brasília, produce something genuinely unique in terms of constituted power? Can we see anything ‘anthropophagic’ in Costa and Niemeyer’s visions of power? Or is ‘anthropophagy’ only present in the experiences of a lived or experienced space that came later? Historically we do know that even Le Corbusier had met some of the anthropophagic movement’s followers in Sao Paulo before he arrived in Rio.
In 1935, Claude Lévi-Strauss moved to São Paulo as a diplomat and doubled-up as Visiting Professor of Sociology at the local university. During his four years in Brazil, he also conducted fieldwork (the only fieldwork he ever did) by accompanying his wife Dina Lévi-Strauss (née Dreyfus) who, of the two, was actually the trained anthropologist.
Lévi-Strauss later systematised his fieldwork notes from Brazil and published them in 1955 as part of the celebrated memoir Tristes Tropiques. In one short section towards the end of the book, Lévi-Strauss questions whether the so-called primitive societies of the Amazonian jungle that practiced cannibalism should be seen as barbarous. If we view anthropophagy as cruel and barbarous, he asked, then how would that society view ours? And so Lévi-Strauss suggests a structural binary between two types of societies:
If we were to look at them from outside it would be tempting to distinguish two opposing types of society: those which practise cannibalism who believe, that is to say, that the only way to neutralize people who are the repositories of certain redoubtable powers, and even to turn them to one’s own advantage, is to absorb them into one’s own body. Second would come those which, like our own, adopt what might be called anthropoemia (from the Greek emein, to vomit). … They expel these formidable beings from the body public by isolating them for a time, or for ever, denying them all contact with humanity, in establishments devised for that express purpose. (Lévi-Strauss 1961: 386)
Lévi-Strauss is here suggesting that what characterises the ‘old world’, ‘our’ world, with its asylums and prisons, is an anthropoemic culture, rather than the anthropophagic culture of de Andrade’s notion of Brasilian modernism. So the question that I would like to develop is, do the spatial solutions adopted in Brasília somehow suggest an antithesis to the, perhaps, anthropoemic practices of European capitalism? If the space of constituted power is based on such an idea of exclusion, of building palaces of power that decisively reject Rancière’s ‘those who have no part’, then do the solutions adopted in Brasília reflect some sort of anthropophagic ‘inclusion’?
Lévi-Strauss made no reference to, or acknowledgement of, de Andrade even though we know for sure that Dina Lévi-Strauss collaborated with members of the ‘anthropophagic movement’ at the time (Lévi-Strauss 1937). An ‘anthropoemic’ neglect? The Brazilian origins of Lévi-Strauss’s binary are also lost on Zygmund Bauman who brings it back to life in his own analysis of modernism (Bauman 2000: 98-104).
The empirical dimension of a project that would investigate the spatial dimensions of ‘seats of power’ like Brasília could, perhaps, be best described as ‘ethnographies of constituted space’, bringing together the spatial emphasis that anthropologists like Setha Low (Low 2016) have developed with a constitutional ethnography (Scheppele 2004). Brazil has been studied with ethnographic methods before. Anthropologist James Holston’s book The Modernist City (Holston 1989) is a critical assessment of how Brasília betrayed its own modernist ideals, especially in relation to the working class builders that were recruited to complete the construction work.
My focus is, however, different. I’m interested in the institutions of constituted power. In Brasília, the space of constituted power would be studied through Lefebvre’s triad, focusing in particular on the ‘airplane’, i.e. the planned landscape and buildings that represent public power and the adjoining residential areas in Costa and Niemeyer’s original plans. So conceived space refers to the way in which the institutions of constituted power have been designed and organised in the plans for the capital, but also to changes that have taken place later as Brasília has grown from an administrative capital of 140.000 inhabitants in 1960 to a metropolis with a population now at 2.5 million. Perceived space refers to how the institutional framework of constituted power is then solidified (if it is) though and in everyday routines. Finally, in their own experiences of lived space, the inhabitants and users of space appropriate it in order to bypass the designs of urban planners and architects, and even to oppose them (e.g. the political pichação -graffitis which are considered to be a threat to the UNESCO world heritage site).
Andrade, Oswald de (1991) ‘Cannibalist Manifesto’, Latin American Literary Review, Vol. 19, No. 38: 38-47.
Bauman, Zygmunt (2000) Liquid Modernity. Cambridge: Polity Press.
Frampton, Kenneth (2010) Building Brasília. Photographs by Marcel Gautherot. London: Thames & Hudson.
Holston, James (1989) The Modernist City, An Anthropological Critique of Brasília. Chicago: University of Chicago Press.
Jodidio, Philip (2012) Niemeyer. Köln: Taschen.
Le Corbusier (1935) Aircraft. London: The Studio.
Leite, Rui Moreira (2004) ‘Flávio de Carvalho: Media Artist Avant la Lettre’, Leonardo, Vol. 37, No. 2: 150-157.
Lévi-Strauss, D[ina] (1937) ‘Société d’ethnographie et de folklore de São Paulo (Brésil)’, Journal de la Société des américanistes, Vol. 29, No. 2: 429-431.
Lévi-Strauss, Claude (1961) Tristes Tropiques. Trans. John Russell. First American ed. New York, NY: Criterion Books.
Lispector, Clarice (1986) ‘Five Days in Brasília’, p. 136-140, in Clarice Lispector, The Foreign Legion. Stories and Chronicles. Trans. Giovanni Pontiero. New York, NY: New Directions..
Low, Setha (2016) Spatializing Culture. The Ethnography of Space and Place. Abingdon: Routledge.
Morshed, Adnan (2002) ‘The Cultural Politics of Aerial Vision: Le Corbusier in Brazil (1929)’, Journal of Architectural Education, Vol. 55, No. 4: 201-210.
Mumford, Eric (2000) The CIAM Discourse on Urbanism, 1928-1960. Cambridge, MA: MIT Press.
Plano Piloto (1991) Relatório de Plano Piloto de Brasília. Elaborado pelo ArPDF, CODEPLAN, DePHA. Brasília: GDF.
Scheppele, Kim Lane (2004) ‘Constitutional Ethnography: An Introduction’, Law and Society Review, Vol. 38, No. 3: 389-406.
Vidler, Anthony (2003) ‘Photourbanism: Planning the City from Above and from Below’, p. 35-45, in Gary Bridge and Sophie Watson (eds), A Companion to the City. Malden, MA: Blackwell.