As the boundaries of jurisdiction are increasingly challenged, the spatial nature of justice moves between the architectural and the planetary
The architecture of justice is like an unfinished building that is nevertheless occupied. Notwithstanding existing legal forums where justice occurs, which are designed to afford a visible juridical authority, seeking justice is a constructive enterprise that evolves through specific juridical practices and political processes. The orderly interiors of a court of law are the forum par excellence for the presentation of evidence and the stage where justice is seen to be done. But today the itinerant space of justice also includes media space, human rights forums, truth commissions and citizens’ tribunals that blur the distinction between the inside and outside, inclusion and exclusion of the courtroom and the law. One such example is Abderrahmane Sissako’s film Bamako (2006), which takes place in the filmmaker’s family courtyard in the capital of Mali. Presided over by real judges and barristers, the courtroom drama depicts a citizens’ tribunal in which the plaintiffs are the people of Africa, the defendants the World Bank and the International Monetary Fund (IMF) accused of impoverishing the continent through structural adjustments. In staging such an improbable trial, the film represents how justice is a horizon concept, between doing the practical work of judgment, the possibilities of its critique, but also what justice should be – what the world ought to be like. Following Jacques Derrida, justice’s horizon is toward a radical alterity that escapes its capture as justice oscillates between the topologies of the far and near, now and later. Justice, then, is not only about negotiating a geographical or a metaphorical space, it is radical in its ethico-political demand, as Andreas Philippopoulos-Mihalopoulos sees it, ‘in its demand, justice is already here’.
‘Today the itinerant space of justice includes media space, human rights forums, truth commissions and citizens’ tribunals that blur the distinction between the inside and outside, inclusion and exclusion of the courtroom and the law’
Justice is not only the concern of the juridical for the administration of the law. The word ‘justice’ carries associations of both law and right. The requirements of justice concern us all, though not as an undifferentiated humanity but as those fighting against asymmetries of race, class, gender and power. Legal institutions represent only one part of the process of justice: jurisprudence has for too long been associated with the calculations of rational, rule-based law. In the production of capitalist spaces, new political facts and lethal punishment, and in places of social death such as prisons and detention centres, law is already there. Law makes injustice possible. Law’s complicity in corporate and state violence requires not only the critical examination of law as power, but a radical reformulation of justice in ethico-political and spatial terms.
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The sites and struggle for justice are everywhere. Political categories of state sovereignty and the juridical authority to administer justice have tested the boundaries of jurisdiction (space) and international law in the 21st century. From digital surveillance to military interventions and targeted killings of suspects through drone strikes in a post-9/11 world, we have seen powerful states ignore legal norms with an impunity that has eroded fundamental human rights. As the lethal force of remotely mounted US drone strikes on individuals and unaccountability for civilian deaths as ‘collateral damage’ demonstrate, the spatial nature of injustice moves between the architectural, and the urban, territorial and indeed planetary scale. Conflicts and their injustice that are bound by the event, causality and their victims are situated and concrete, yet at any given time, they take place elsewhere. But this sense of justice isn’t only about actions somewhere else, it is about simultaneity, it is equally about injustices at home, here. The political charge of justice moves beyond the operative concept of scale. It is also a coefficient of transversality cutting diagonally through the psychic and the social sphere and the wider environment. It concerns the production of subjectivity. How do we understand ourselves and relate to one other, ethically and morally. It therefore resonates with a question that is fundamental to architecture. How do we live together?
‘Political categories of state sovereignty and the juridical authority to administer justice have tested the boundaries of jurisdiction (space) and international law in the 21st century’
Space is not indifferent to justice. On the contrary, space is bound up with justice in more elusive ways than in the normative framework of distributive justice. Carl Schmitt’s interpretation of nomos, the ancient Greek word for law, in his book The Nomos of the Earth: In the International Law of the Jus Publicum Europaeum, has gained traction in contemporary political theory of the left. The narrative of interest is how the origin of law carries within it a fundamental spatial orientation. For Schmitt, law is bound by territoriality. The relationship of a people to the soil is a prerequisite for giving concrete form to a polity. In other words, the appropriation of land, such as settlement architecture, the drawing of borders, walls and boundaries, give birth to politics in as far as creating distinctions between social groups, and ultimately friend and foe.
For Schmitt, nowhere is this more apparent than in the historical account of the European conquests of the New World that establishes the Jus Publicum Europaeum. In the 16th century, following on from the 1494 Treaty of Tordesillas, Pope Alexander VI had performed a God trick by tracing an imaginary line dividing the Atlantic from the North to the South, thus settling the dispute over the dominion of the Portuguese and Spanish empires. This partitioning act was the creation of a new nomos – whose etymological root nemein is both to take/conquer and distribute/divide – of the earth that in effect saw the birth of international law, established in order to determine the rights of the Europeans over non-European land, water and peoples.
Crucial in Schmitt’s conception of nomos is that the legitimacy of a political community springs from the material conditions of the solid ground. As Michel Serres said, the plough marks one’s own territory by drawing a line. The original meaning of the verb ‘to mark’ is a footstep left on the soil. In Ancient Greece, the city wall gave form to nomos. It is the spatial dimensions of the polis that defined its territorial jurisdiction. But aporias arise in Schmitt’s apparent indifference to justice with respect to the history of colonialism.
‘In Ancient Greece, the city wall gave form to nomos. It is the spatial dimensions of the polis that defined its territorial jurisdiction’
An incisive critique of Schmitt’s concept of the political comes via an analysis of the marginalia of Hannah Arendt’s copy of Nomos of the Earth – as no other direct evidence of the philosopher’s writing on Schmitt exists – in which she characterises the new nomos as violent conquest, not the fount of law oriented by land appropriation. For Arendt, in not recognising the wrongs that resulted from colonialism, Schmitt attempted to remove justice from law. In its stead, settler colonialism’s injustice was predicated on force, terror and violence of occupation that distorted the moral principles of the West towards the eventuality of the end of the Eurocentric international legal order at the end of the 19th century, superseded by the geopolitics of superpowers and a global world economy. It follows then that any nomos is earthbound and grounded in conquest and colonisation. But then, is the source of law based on an original spatial injustice? Two centuries before Schmitt, Jean-Jacques Rousseau, in the second book Discourse on Inequality declared:
The first man who, having fenced off a plot of land, thought of saying, ‘This is mine’, and found people simple enough to believe him, was the real founder of civil society. How many crimes, wars, murders, how many miseries and horrors might the human race have been spared by the one who, upon pulling up the stakes or filling in the ditch, had shouted to his fellow men: ‘Beware of listening to this imposter; You are lost if you forget the fruits of the earth belong to all and that the Earth belongs to no one’.
Contract social crop
Tabula peutingeriana rome
So division of land into property was a precondition for the founding of polities, required some rules of governance and thereafter justice. Yet for Rousseau, this state of affairs had produced no end of injustice in moving from a natural to a civilised state. Rousseau’s conception of inequality as an antagonism resulting from property relations would lead him to formulate his 1762 treatise The Social Contract. Such contractual or constitutional aspect of law as nomos is necessary for Arendt to formulate an alternative to the violence of Schmitt’s geopolitics. In her definition of nomos, the political community is bound contractually as well as existentially, thus she makes use of the Roman notion of law: lex or statute, as well as the Greek, nomos. Unlike the Greeks, the basis of Roman citizenship was not bound by place as much as a legitimisation of empire. It is no coincidence that, unlike the Greek polis, the ancient Roman city was defined by movement and circulation of its roads and aqueducts expanding its urban condition at a territorial scale. Today we would call it globalisation.
‘Division of land into property was a precondition for the founding of polities, required some rules of governance and thereafter justice’
In the mode of appropriation under the logic of the global economic system – namely neoliberal capitalism – a differentiated humanity has marked its territory, the planet, with pollution. Serres has called for a radical space of action, for a ‘natural contract’ to be negotiated between the planet and its symbionts, entangled between the earthbound (nomos) and contractual (lex). This intersectionality is present in the concept of ‘environmental justice’, the struggle for an equal distribution of environmental risks and benefits among classes, races and genders. The term originated in the 1980s in the southern US, the birthplace of the autonomous black movement. The formation of the discipline of environmental justice is credited to the work of sociologist Robert D Bullard and his groundbreaking social research on environmental racism in Houston. Bullard and his students’ spatial analysis showed how the city’s landfill sites were predominantly in black neighbourhoods – despite black people constituting only a quarter of the city population. The waste industry chose these sites by following the path of least resistance and locating the landfills in areas where people were politically and economically powerless. Such environmental inequalities, which exist across the global south today, take place at the intersection of race, place and poverty made even more invisible when compounded by sexual and gender discrimination and violence. As with disasters, the already vulnerable in society are those most at risk, a material reminder of the deep fault lines of inequality stratified in its laws, institutions and policies.
Nasa apollo8 dec24 earthrise
Ecocentric views of justice have further opened up to representations of ‘nature’ not necessarily limited to conservation, sustainability and the like. In fact, environmental historians have shown that the idea of nature as other, as pristine wilderness that needed to be conserved, was a social construct where power shaped landscape. An ecocentric justice that strives to give rights to rivers, forests, trees and apes has sought to expand who constitutes a juridical subject. How well can current justice frameworks protect non-human dignity in times of ecological crisis, when nature remains the object of legal operations, and not its subject? The word ‘ecology’ comes from Greek oikos, meaning ‘house’ or ‘environment’. If the right to a healthy environment is not only for those living but also for non-contemporaries, are present generations obliged, responsible and duty bound to those who do not yet exist for their right to clean air, water and soil? Is not justice also intergenerational for remote future humanity? While the idea of intergenerational equity is deep-rooted in cultural traditions of the world and where international laws and treaties have made significant normative investments beginning with the UN charter, are the actions to protect the planet securing the demands of those in the distant future who are going to inhabit it?
The fruits of the earth belong to all and the Earth belongs to no one. We need to frame the ethico-political question thus. In times of conflict, how can architecture produce the conditions to seek justice, a peace on Earth to come?
Lead image: Police barricade roads during the Standing Rock protest, in reaction to the construction of Energy Transfer Partners’ Dakota Access Pipeline near the Standing Rock reservation in 2017. Photograph courtesy of Christopher Francisco
This piece is featured in the AR’s June 2018 issue on Power and Justice – click here to purchase a copy.