NATHAN MOORE*

THE IMAGE OF LAW

Alison Young, Judging the Image: Art, Value, Law (London:

Routledge, 2005), ISBN: 978-0-415-30184-8.

1. Introduction

Law’s relationship to the image has to date been dominated by a

line of scholarship which finds its roots in the work of French jur-
ist and psychoanalyst Pierre Legendre, in particular the essay trans-
lated as ÔIntroduction to the Theory of the Image: Narcissus and
the Other in the Mirror’.1 The most recent addition to this line of
scholarship is Alison Young’s book Judging the Image: Art, Value,
Law.2 Young explores law’s relationship with the image through a
number of specific contexts, ranging through photography, graffiti,
performance art, and memorials. However, it is her method of
investigation that should be initially foregrounded if one is to
appreciate Young’s interrogation of law’s interaction with the im-
age. In her opening chapter she sets out the theoretical framework
for the law/image relationship which then informs her more partic-
ular, and even subjective, considerations in the rest of the book. It
is also this chapter that most explicitly links Young’s project to the
scholarship derived from Legendre’s work.
There are (at least) two dimensions to this inheritance of law
and image scholarship: the first is concerned with a certain ambigu-
ity or tension in the necessary use made of images by law; whilst
the second explores law’s relationship to aesthetics. I find both of
these dimensions problematic, most of all the assumption that the
image is, in some sense, necessarily aesthetic, and that this aestheti-
cism (also problematically) is understood as a question of represen-
tation, as the representation of the unrepresentable, of the sublime.

* Thanks to Anne Bottomley

1
In Peter Goodrich (ed.) Law and the Unconscious: A Legendre Reader,
P Goodrich, A Pottage & A Schutz (translators) (Basingstoke: MacMillan Press,
1997), pp. 211–254.
2
(London: Routledge, 2005).

International Journal for the Semiotics of Law

Revue Internationale de Sémiotique Juridique (2007) 20: 353–362
DOI 10.1007/s11196-007-9051-3 Ó Springer 2007
354 nathan moore

What tends to be addressed is then not so much aesthetics and the

image, but rather representation as the foundation of both. For
this reason, before turning to a closer examination of Judging the
Image, I want to set out more clearly what I mean by these two
dimensions, and why I think they are limiting of the scholarship in
this area.

2. Law and Image

Young’s opening chapter unsurprisingly references the work of

Peter Goodrich, as well as the influential collection Law and the
Image, edited by Costas Douzinas and Lynda Nead.3 Referencing
Douzinas and Nead specifically, Young points out that the law has
an aversion to images, that the image is a pollutant of law’s self-
image as unified and self-contained. Yet, precisely because law is
necessarily imaged as policing images while also operating through
them, it acts repressively and misconstrues its own desire to repress
as a desire for repression by its object: what it imagines as image.
It might be thought, therefore, that the law only ever engages with
the image of itself, and this would be true but for the fact that the
regulation of images has repercussions, as Young’s book shows.
However, this is where the greatest caution is needed. (Postmodern)
critical legal studies presents a seductive image of the law, which
enables a particular exercise in critique and, to an extent, makes
such exercise inevitable, by predicating an imaging of law as con-
structed through a process of separation. This is well known, and
Douzinas and Nead present it as a foundational story when they
make specific reference to Plato’s separation of law and the image.4
To therefore call for an encounter between law and the image,
between that which Plato divides, nevertheless allows the field of
investigation to be defined by the law: the problem becomes one of
putting law on trial and disproving its claims to be free of the
image and, more broadly, the aesthetic. In such a process neither
term escapes unscathed: the law is forced to admit its own inade-
quacy; whilst the (aesthetic) image is equally forced to admit its
own out-law nature, the truth of its otherness to law. But because

3
(Chicago & London: University of Chicago Press, 1999).
4
Supra at p. 4.
 THE IMAGE OF LAW 355

of a necessary failure to Ôescape’ the law,5 the image remains

caught in the grip of the tragic, as something less than that which
(postmodern) critical legal studies imagined it might, or could, be.
What, we might then ask, is repressed by (postmodern) critical le-
gal studies itself? Perhaps that the law is also not what we imag-
ined it to be, that it is something Ôimpure’ and contingent and that,
furthermore, it revels in this condition, prizing it as the ground of
its very possibility, its exceptionality?
Here we touch on an uncomfortable possibility that (postmod-
ern) critical legal studies has largely chosen to ignore, but which is
evident in work by Badiou, Deleuze and Guattari and Hardt and
Negri: that it was not resistance to power which thrived on the
postmodern, but rather all that such resistance put itself against:
capital, state, law.6 For example, in the UK, one has only to con-
sider the recent rise of anti-social behaviour as a programme of
exceptional and specific intervention, in response to the shortcom-
ings of what Prime Minister Blair called Ôtraditional’ law, to see
that law is rapidly becoming something else, quite different from
what seems to be presupposed of it.7
We might then ask: was law ever the way (postmodern) critical
legal studies imagined it to be? Or was this scholarship from the
very beginning seduced by the idea of a universal legal hegemony

5
Agamben’s work highlights the great difficulty of thinking the exception of law, if
this means a thought Ôbeyond’ the metaphysical voice of sovereign power (see Homo
Sacer, D. Heller-Roazen (translator), (Stanford: Stanford University Press, 1998)
and Language and Death, K. E. Pinkus & M. Hardt (translators), (Minneapolis &
London: Minnesota University Press, 1991). In a related analysis, Deleuze describes
the interrelation of a philosophy with the non-philosophical, where the latter is the
necessarily presupposed, and perhaps even unthought, that enables a philosophical
thinking to occur. It is no coincidence that Deleuze terms this the ’image of thought’
– see Gilles Deleuze Difference and Repetition, P. Patton (translator), (New York:
Columbia University Press, 1994), Chapter Three.
6
A point which has also been understood by Peter Goodrich when he writes that
legal scholars who drew inspiration form the postmodern did not go far enough
(Peter Goodrich, ÔBarron’s Complaint: A Response to ‘‘Feminism, Aestheticism and
the Limits of Law’’’ Feminist Legal Studies 9, 2001, pp. 149–170) – certainly not, as it
now seems, as far as the law itself.
7
See Nathan Moore, ‘‘Icons of Control: Deleuze, Signs, Law’’, International
Journal for Semiotics of Law 20(1) 2007 and Anne Bottomley and Nathan Moore,
Ô‘‘You Will Never Finish Paying’’: Contract and Regulation, Globalization and
Control’ New York University Review of Law and Social Change 31(3) 2007.
356 nathan moore

requiring resistance?8 I raise this question (motivated by a reading

of Law and the Image as a consequence of reading Judging the
Law) because both books reveal in their case studies that law was
always intermixed with images9 – can we then pretend that the law
is hiding something? Hasn’t it always been out in the open that
law, despite what might be said by a Coke, for example, about the
sovereign purity of law, that law in fact only ever deals with partic-
ular problems, with specific cases: that is, with jurisprudence?10
Since Hobbes at least, has it not been the case that everyone knows
the law to be unfounded?11 If so, it is not too much to suggest that
(postmodern) critical legal studies has tended to repress its own
knowledge of law so as to become capable of knowing the law that
it desired.
This is suggested, for example, by both Douzinas’ and Good-
rich’s contributions to the Law and the Image collection. Both offer
admirable analyses of specific situations in which law encounters
the image,12 but both extrapolate from this an over-determining
Ôessence’ of law that operates via the repression of its own absence.
Consequently, the space for critique (and the space of justice) is
not so much opened out as revealed, via psychoanalytical and
deconstructive techniques, as aporetic, feminine and transcendent.
It is as if the authors repressed their own knowledge as to the al-
ways problematic exercise of law (jurisprudence), and instead called
for a generalised law that would best correspond to their respective

8
I don’t mean to arrogantly dismiss the entire venture of (postmodern) critical
legal studies as a failure, nor to deny the success and usefulness of its many struggles
to open law up to other disciplines and modes of knowledge. Rather, I ask what if,
despite all of this, (postmodern) critical legal studies has also helped the law to
become more intrusive, more arbitrary, more extensive – in short, less law like and
more regulatory?
9
See also Peter Goodrich, Law in Courts of Love (London: Routledge, 1996),
particularly Chapter Four.
10
See Gilles Deleuze, ‘‘Control and Becoming’’, in Gilles Deleuze, Negotiations,
M. Joughlin (translator), (New York: Columbia University Press, 1995). See further
in ÔIcons of Control’, supra n 7.
11
See Michel Foucault, Society Must Be Defended, David Macey (translator),
(New York: Picador, 2003), pp. 93–99. Agamben shows how this awareness goes
back beyond Hobbes to the Sophists in Homo Sacer, supra n 5 at pp. 35–6.
12
Douzinas studies the history of the legal icon, revealing the interdependence of
both iconophobia and iconophilia in ÔProsopon and Antiprosopon’; Goodrich
undertakes a genealogy of the empty page that distinguishes between the picture and
the image in ÔThe Iconography of Nothing’. See Chapters Two and Four respec-
tively, supra n 3.
 THE IMAGE OF LAW 357

methods and, in so doing, move much closer to the way in which

the law operates than they might imagine. If so, they are in danger
of themselves becoming legislators.
It is worth briefly considering (despite the limited scope of this
review), how another thought of the image might be worked out, in
the interests of experimentation.13 Studies on law and the image
have been overdetermined by two things predominantly: the power-
ful influence of Pierre Legendre; and the tendency to elide the
image with representation. For Legendre the image is understood
through the myth of Narcissus as testimony that the subject is split,
and that what is thought in the image is absence. Linked to Hegel’s
Aufhebung, the image, as supreme relation to nothingness,14 puts
the subject in relation to the other which, from the perspective of
psychoanalysis, is ultimately the Other as origin of both society
and law. What is at stake here is ‘‘Reason, or ... the principle of
life in and by representation.’’15
Contrast Legendre’s analysis of the Narcissus myth with that of
Kristeva’s analysis in Tales of Love.16 One can discern in Kristeva’s
reading a radically different approach to the image, in which what
is foregrounded is not reason, nor representation, but rather amour.
Law, rather than simply being established, is thus called into ques-
tion by a ‘‘Narcissian process’’ that understands the image not as a
representation of nothingness, but as the image of an image.17 In
other words, before it is a representation, the image is affective.18
Moving away from the psychoanalytical register, we can say that
nothing exists except affectivity. The specificity of any given thing

13
I do not mean that neither critical legal studies, nor law, is experimental. Rather,
it is a matter of refusing (as the best critical scholarship does) to allow the experi-
ments to be done for us: ‘‘It’s jurisprudence, ultimately, that creates law, and we
mustn’t go on leaving this to judges. Writers ought to read law reports rather than
the Civil Code.’’ Supra n 9 at p. 169.
14
This nothingness lies at the heart of both Douzinas’ and Goodrich’s contribu-
tions to Law and the Image.
15
Supra n 1 at p. 240.
16
(New York: Columbia University Press, 1987). See Part III.
17
Supra at pp. 103–121.
18
A point made particularly clear in Chapter One of Brian Massumi Parables for
the Virtual: Movement, Affect, Sensation (Durham & London: Duke University
Press, 2002). See also Leonard Lawlor The Challenge of Bergsonism (London & New
York: Continuum, 2003) in which Bergson’s concept of the image is described as
something other than representation, being instead between the latter and the thing it
represents; pp. 9–10.
358 nathan moore

is determined by its capacity to affect and to be affected: in other

words, nothing exists beyond the universe of images so long as it is
understood, following Bergson, that images and things in extension
are the same.19 For this reason, representation, although differing
only by degree, is nevertheless something less than the image.20

3. Law and Aesthetics

Once the image is considered as something more than representa-

tion, it necessarily takes on an objective characteristic that has
important consequences for how it is to be related to aesthetics.
The most significant is that the aesthetic remains inadequately
thought if it is understood as a matter of subjective experience.
Specifically, it is Kant’s concept of the sublime21 that has proven
particularly influential given the necessary rejection of a beauty
which, even though experienced by the subject, ‘‘rightly lays claim
to everyone’s assent.’’22 The sublime, as a quantity or force that
overwhelms the subject’s imagination, is, in part, a ‘‘negative plea-
sure’’, on account of such magnitudes, combined with a pleasure
that is ultimately moral in nature.23. In my opinion, work on law
19
See Chapter One of Lawlor, supra. It will be noted that I leave out here any
reference to the body, to follow a, perhaps, more Deleuzean line: see Gilles Deleuze,
Cinema 1: The Movement-Image, H. Tomlinson & B. Habberjam (translators),
(London: The Athlone Press, 1992) at p. 58.
20
Again, see Lawlor’s description in The Challenge of Bergsonism. More generally,
Ron Burnett’s study How Images Think (Cambridge, MA & London: MIT Press,
2005), provides a useful reconceptualisation of how images function beyond, and
even as a challenge to, representation.
21
Young uses the word Ôabject’ to ‘‘[locate] that which we would rather not see, or
reveal, or touch.’’ Supra n 2 at p. 12. While not equating the Ôabject’ with the
psychoanalytical Ôsublime’, Kristeva nevertheless recognises an important link
between them: ‘‘The abject is edged with the sublime. It is not the same moment on
the journey, but the same subject and speech bring them into being.’’ Julia Kristeva,
Powers of Horror: An Essay on Abjection, L. S. Roudiez (translator), (New York:
Columbia University Press, 1982) at p. 11.
22
Immanuel Kant Critique of Judgment, W. S. Pluhar (translator), (Indianapolis:
Hackett, 1987) at p. 31.
23
Supra at p. 115. It is worth noting that the feeling of the sublime is also due
universal assent (p. 97), but the difference from the beautiful, at least in terms of its
current acceptability, is, perhaps, that it is not so directly legislative, and thus more
easily absorbed into the postmodern insistence upon the aporetic nothingness con-
stitutive of the subject (for a variation on this see Anne Barron ÔFeminism, Aesth-
icism and the Limits of Law’, Feminist Legal Studies, 2000, 8, pp. 275–317).
 THE IMAGE OF LAW 359

and aesthetics fails to escape the moral dimension of the sublime if

it merely finds, in the aesthetic, a disturbance in the law indicative
of that which the law represses: the law of the law. If Agamben’s
analysis is right, and the Law and law are now elided in a sover-
eignty that takes bare life as its object, the revelation of such a
superior law, through aesthetics, is not only no longer pertinent,
but potentially dangerous in its mistaking.
Young cites Adam Gearey in seeking, by the bringing into
proximity of law and aesthetics, a revelation of law’s other true
nature, of that which, through the image, it seeks to repress.
However, to the extent that the aesthetic remains within the sub-
jective horizon of the sublime, it remains within the law:24 the
law, thoroughly postmodernised, takes the sensations and passions
of the subject as its primary focus and concern, grading and tab-
ulating them in relation to its image of homo sacer; the point
being that the law is not disturbed by what disturbs it, but utilis-
es it to extend its grip over life. Against this we should pursue a
purely objective understanding of aesthetics such as that found
(for example) in Deleuze and Guattari’s What is Philosophy? They
understand aesthetics to be a matter of sensation, made up of
affects and percepts that exist independently of those who experi-
ence them: i.e. affective images.25 That aesthetics therefore has an
ethical dimension (as Simon O’ Sullivan notes, Ôthe ethicoaesthet-
ics of affect’26.) is apparent when Eric Alliez writes, in his com-
mentary on What is Philosophy?, that the function of art is to
render ‘‘Life sensible in its Ôzones of indeterminacy’’’.27

24
It could be argued that Gearey’s analysis, taking Nietzsche as its main inspi-
ration, escapes from Kant’s concept of the sublime. However, his reading of
Nietzsche, and of the eternal return particularly, fails to escape from a subjectivism
that is best described as a type of dandyism. For example, one must bear the weight
of a law that is too great in magnitude, but in such a manner that it is borne lightly –
do we not here re-encounter the pleasure of the supersensible and the will to truth,
i.e. the law of the law? See Adam Gearey, Law and Aesthetics (Oxford & Portland:
Hart, 2001), and, by way of contrast, Gilles Deleuze, Nietzsche and Philosophy, H.
Tomlinson (translator), (London: Athlone Press, 1986), particularly Chapter Two,
and Keith Ansell-Pearson, Viroid Life: Perspectives on Nietzsche and the Transhuman
Condition (London & New York: Routledge, 1997), particularly Chapter Two.
25
Again, it is useful to refer to Deleuze’s study of Nietzsche supra.
26
Simon O’ Sullivan, Art Encounters Deleuze and Guattari: Thought Beyond
Representation (Basingstoke: Palgrave, 2006)
27
Eric Alliez, The Signature of the World, E. R. Albert & A. Toscano (translators)
(New York & London: Continuum, 2004) at p. 69.
360 nathan moore

In which case, what is the relation between law and aesthetics?

To argue that aesthetics can help to reveal the other true nature of
law can only make sense if the law is imagined as ‘‘detached, pas-
sionless, thorough, impartial, rule based’’28 – but as I have sug-
gested above, this is less (postmodern) law’s fantasy than it is a
construction of an image sustained by (postmodern) critical legal
studies. If so, we must not simply look to the law of law, but most
urgently to the working through of cases – that is, to jurisprudence.

4. The Image of Judging

The strongest parts of Young’s book are the chapters focusing on

particular instances of law encountering aesthetic practice – partic-
ularly when her analysis seems on the verge of escaping her own
theoretical framework.29 Equally, the weakest parts are the inter-
chapter sections entitled Ôviewing (de)positions’ where the author
seeks ‘‘to emphasize the experience of looking, a prior state which
necessarily antedates the critical moment and the distance of analy-
sis.’’30 The problem should not be to capture an authentic moment
of experience31 before reason kicks in, but rather to trace how
what Young designates as experience relates to and with critique
and analysis: not to subject the former to the latter (or vice versa),
but rather to discover the Ôzones of indeterminancy’ that renders
both possible.32
What Young portrays when she looks at the encounters of art
and law, is that law responds by treating aesthetics as a problem.
However, it does not follow from this that aesthetic issues are
therefore problems for the law. Rather, as her second chapter
shows, it is the context of the encounter that determines whether or

28
Supra n 2 at pp.12–13.
29
For example, in Chapter Three.
30
Supra n 2 at p. 18. Author’s emphasis.
31
One need only read Agamben’s ÔInfancy and History’ (in Giorgio Agamben
Infancy and History: On the Destruction of Experience, L. Heron (translator),
(London & New York: Verso, 2007) to be aware of the difficulties and dangers of a
politics of experience.
32
Such Ôzones’ are not beyond or superior to the affects they unleash, but rather
are immanent with them. See Gilles Deleuze, Pure Immanence: Essays on A Life, A.
Boyman (translator), (New York: Zone Books, 2001) and Gilles Deleuze and Felix
Guattari, What is Philosophy?, G. Burchell & H. Tomlinson (translators), (London &
New York: Verso, 1994).
 THE IMAGE OF LAW 361

not law must intervene. Despite the interesting account that Young
gives of the various examples of such encounters, none of the law’s
interventions are made on an aesthetic basis; just the opposite,
Young shows that the respective judges avoid any decision on the
basis of aesthetic merit. Instead, consideration is on the basis of
obscenity and offence. Of course, there is a plethora of work on
the indeterminacy of the relation between obscenity and art, but it
should not be thought that this indeterminacy is the same when
considered aesthetically as when considered legally. Indeed, from
the legal perspective, any case, whether it is about art or any other
subject, disturbs the law. Furthermore, if Kristeva writes of a
ÔNarcissian process’, then a case is always a specifically legal pro-
cess, regardless of what it is about, of jurisprudence. Law does not
need aesthetics to locate its own disturbances, but need only look
to itself.
Law is thus neither finally closed nor unified. Not only does it
not function as if it were, but equally, it does not necessarily image
itself as so doing. Without doubt, there are specific legal Ôcharacter-
istics’ or singularities, but these are not matters of closure nor iden-
tity, but instead that which enables legal closure and identity to
function as such, through zones of indeterminacy. In support of
this view, Agamben’s work and its demonstration of a state of
exception that, whilst indeterminate in its relation to the law, is
nevertheless of a specifically jurisprudential quality, is useful.
Thus, whilst Young moves into interesting territory, she quickly
reverses back to her presuppositions about what law is. The appar-
ent refusal of an encounter between law and aesthetics has more to
do with her own insistence upon what the law should be, rather
than what it might be. If law is presumed to be determined by a
desire for some end, rather than as a desiring process, the risk is
run of failing to fully appreciate both legal and aesthetic practices.
What begins to emerge, instead, is less the figure of the artist-as-
redeemer than it is the figure of the victim, of those who suffer the
violence of law’s closure. Art is then in danger of being reduced to
a kind of Ôsub-law’, wholly determined by its relations to the law.
What one then detects is the symptom of what the author might be
repressing: the sense of loss that the law is not what one imagined
it to be, or rather of it not being what (postmodern) critical legal
studies has demanded it be.
This trajectory is increasingly apparent as one reads across the
breadth of Judging the Image. Whilst less obvious in the excellent
362 nathan moore

chapter on graffiti, it becomes much more so in the subsequent

chapters, where what appears is a tragic body ultimately held fast
in its own nothingness, as the subject of disease, loss and death: i.e.
of the law’s absence. Most problematically Young conceives of cer-
tain artworks as a type of judgement against the viewer, in the
name of an Ôethics of witnessing’, in which ‘‘[t]he viewer is thus
metaphorically charged with the participation in the injury’’ that
the work presents.33 It seems that art is concerned only to occupy
that remaining space it imagines the law to have evacuated. From
this perspective, it is no surprise that the book should conclude
with the ruins of 9/11. Against this we should remember, and medi-
tate upon, the consequences, for both law and aesthetics, of the
Deleuzean aphorism: I have nothing to admit.34

N. Moore
School of Law
Birkbeck College
Malet Street,
London, UK
E-mail: nathan.moore@bbk.ac.uk

33
Supra n 2 at p. 116.
34
See generally ÔLetter to a Harsh Critic’ in Gilles Deleuze Negotiations, supra n 10.