The Place of Law (The Amherst Series in Law, Jurisprudence, and Social Thought)

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Author: Prof. Austin Sarat | Lawrence Douglas | Martha Umphrey

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The Place of Law

The Amherst Series in Law, Jurisprudence, and Social Thought

Each work included in The Amherst Series in Law, Jurisprudence,

and Social Thought explores a theme crucial to an understanding of

law as it confronts the changing social and intellectual currents of the

twenty-first century.

Works edited by Austin Sarat and Thomas R. Kearns

The Fate of Law

Law's Violence

Law in Everyday Life

The Rhetoric of Law

Identities, Politics, and Rights

Legal Rights: Historical and Philosophical Perspectives

Justice and Injustice in Law and Legal Theory

Law in the Domains of Culture

Cultural Pluralism, Identity Politics, and the Law

History, Memory, and the Law

Human Rights: Concepts, Contests, Contingencies

Works edited by Austin Sarat, Lawerence Douglas,

and Martha Merrill Umphrey

Lives in the Law

Law's Madness

The Place of Law

The Place of Law

EDITED BY

Austin Sarat,

Lawrence Douglas,

AND

Martha Merrill Umphrey

The University of Michigan Press

Ann Arbor

First paperback edition 2006

Copyright Â© by the University of Michigan 2003

All rights reserved

Published in the United States of America by

The University of Michigan Press

Manufactured in the United States of America

O Printed on acid-free paper

2009 2008 2007 2006

5 4 3 2

No part of this publication may be reproduced, stored in a retrieval system,

or transmitted in any form or by any means, electronic, mechanical,

or otherwise, without the written permission of the publisher.

A CIP catalog record for this book is available from the British Library.

Library of Congress Cataloging-in-Publication Data

The place of law / edited by Austin Sarat, Lawrence Douglas, and Martha

Merrill Umphrey.

p. cm.-

(Amherst series in law, jurisprudence, and social

thought)

Includes bibliographical references and index.

ISBN 0-472-11350-X (cloth : alk. paper)

1. Law-Methodology. 2. Exterritoriality 3. Jurisdiction

4. International and municipal law. I. Sarat, Austin. II. Douglas,

Lawrence. III. Umphrey, Martha Merrill. IV. Series.

K212 .P58 2003

340'.1-dc21

First paperback edition 2006 Copyright ©by the University of Michigan 2003 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America @ Printed on acid-free paper

2003011961

ISBN 0-472-03158-9 (pbk. : alk. paper)

ISBNI3 978-0-472-11350-7 (cloth :alk. paper)

2009

2008

2007

2006

5

4

3

2

ISBNI3 978-o-472-o3158-o (pbk.: alk. paper)

ISBNI3 978-o-472-o0220o8-3 (electronic)

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher.

A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data The place of law I edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. p. em. - (Amherst series in law, jurisprudence, and social thought) Includes bibliographical references and index. ISBN o-472-11350-x (cloth: alk. paper) 1. Law-Methodology. 2. Exterritoriality 3· Jurisdiction 4· International and municipal law. I. Sarat, Austin. II. Douglas, Lawrence. III. Umphrey, Martha Merrill. IV. Series. K212.P58 2003 340'.1-dc21 ISBN

o-472-03158-9 (pbk.: alk. paper)

ISBNI3 978-o-472-11350-7 (cloth: alk. paper) ISBNI3 978-o-472-03I58-o (pbk.: alk. paper) ISBNI3 978-o-472-02208-3 (electronic)

To my son Benjamin (A.S.)

To KRM and TJUM (M. U.)

For NEP (L.D.)

Acknowledgments

We are grateful to our colleague David Delaney for his help in shaping

the ideas that inform this book. We thank our students in Amherst Col-

lege's Department of Law, Jurisprudence and Social Thought for their

interest in the issues addressed in this book. We would like to express

our appreciation for generous financial support provided by the Col-

lege's Charles Hamilton Houston Forum on Law and Social Change and

to the Dean of the Faculty, Lisa Raskin, for her interest and support.

Contents

Where (or What) Is the Place of Law? An Introduction

Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey 1

Time against Territoriality: National Laws and

Literary Translations

Wai Chee Dimock

21

The Empty Place: Legal Formalities and the Cultural State

Annelise Riles

43

The Architecture of Authority: The Place of Law in

the Space of Science

Susan S. Silbey and Patricia Ewick

75

Digital Networks, State Authority, and Politics

Saskia Sassen

1o9

The Place of Cyberlaw

Lawrence Lessig

131

Against Cyberspace

Richard Ford

147

Contributors

181

Index

183

Where (or What) Is the Place of

Law? An Introduction

Austin Sarat, Lawrence Douglas, and

Martha Merrill Umphrey

The association of law and place is as old as law itself. It is difficult to

think of law without adding the name of a place-be it a powerful

nation-state, or a small municipality.' That law reflects the customs,

values, and ideas associated with particular places is hardly news.2

Identifying the place of law in any social order has long since become

standard practice in legal studies. And yet the meaning of the concept

of "the place of law" remains far from self-evident.

For some, place connotes a landscape, carved up or marked in vari-

ous ways, a "given" of the physical universe.3 This conception links law

and geography by treating place as a precondition of social life.4 For

other scholars, the place of law directs inquiry to the contribution of

law to social life, to the functions of law and law's role in society.5 Still

others describe place as the product of human labor, social processes,

and political contest.6 These scholars recognize that law plays a large

role in the production of a territorialized understanding of place. Law

can be, and is, used to create particular kinds of places, differentiating,

for example, individual property from public land;7 and law invests

place with value or meaning, such that individual property becomes

private.8

Place sometimes is used metaphorically, as a way of organizing our

conceptions of the world. As a metaphor it contends with other ways of

organizing understandings of, or relations to, legal authority, other

ways of marking social relations, other metaphors through which legal

power operates.9 Approached this way, we can inquire about the rela-

2

THE PLACE OF LAW

tive utility of the deployment of metaphors of place for the organiza-

tion of law or the design of legal regulation.'o

These different conceptualizations connect the place of law with the

"various social projects and social practices through which geographi-

cal forms and spatial relations are changed."" Although natural law

theorists may ask us to imagine law as a set of abstract ideals, floating

timelessly beyond the boundaries of cities, states, and nations, few

would deny, as a descriptive matter, that positive law derives its par-

ticular form, content, and social administration from its rootedness in a

geographically defined space.

First and foremost, then, the concept of the "place of law" has a hor-

izontal component: law spreads itself over a specific territory. Thought

of in this way, the place of law is a matter of jurisdiction. Jurisdiction

marks the domain within which one set of legal authorities can be said

to exercise legitimate authority. At the same time, jurisdiction delin-

eates the boundaries beyond which some other law holds sway.12 In

our domestic context, jurisdiction often refers to that rarified and

abstract space in which state interests collide with federal power. More

generally, however, questions of jurisdiction lead us to consider the

very sources and limits of legal authority, and to consider the law's

role in the construction of the classical political form of Western

modernity: the sovereign nation-state. In this regard, law connects

place to power as part of the apparatus through which areas and peo-

ple are governed. Place is important to sovereignty's projects of pro-

ducing social order and ruling a people.13

The study of jurisdiction inevitably invites inquiry into the nature of

legal boundaries, about what is inside and outside of law.14 From the

perspective of state law, boundaries must be clear; the where of law's

authority must never be left ambiguous. But the very act of drawing

sharp boundaries involves an imagination of an outside, a place from

which law is constitutively absent. Law is a set of social institutions and

practices constructed on the basis of imaginings of a place beyond law's

boundaries. Law thus authorizes itself as a lesser or necessary evil and

as a response to our inability to live in a place without law, the Hobbe-

sian state of nature.'5

Hobbes's famous picture of life without law captures a fundamental

dilemma of the human condition: whether people should live freely but

insecurely, or should relinquish their freedom in the name of a greater

security.16 For Hobbes the answer was clear. Power (and so freedom)

WHERE (OR WHAT) Is THE PLACE OF LAW?

3

must be transferred to a single entity (or person) if peace and security

were to be realized. The sovereign must lay claim to rule over a specific

location, a place over which its authority would be complete.

Hobbes's conclusion, however, also asks us to think of the place of

law vertically. In this regard, our responsibility as legal subjects is to

know our place vis-a-vis the law. We must humbly accept the law's

authority as supreme if we are to enjoy its ordering effects. Like Joseph

K.'s vision of the Castle in Kafka's novel, the law occupies a space on

high; as law-abiding citizens, we must approach the law with reverence

and our gaze must be directed upward. Consider the argument of the

Supreme Court in Walker v. Birmingham, a case that asked whether civil

rights protesters could lawfully ignore a court order prohibiting their

march. Although the Supreme Court recognized that the lower court's

injunction was based on an arguably unconstitutional local ordinance,

the majority insisted that the petitioners had no right to ignore the

injunction until the question of constitutionality had been resolved by a

legal authority. Offering a classic statement of what we have called

both the vertical and horizontal understandings, Justice Stewart wrote,

"No man can be a judge in his own case, however exalted his station,

however righteous his motives . . . Respect for judicial process is a

small price to pay for the civilizing hand of law."'7 By reasserting the

law's authority, the Court reminds us of our place before the law by

conjuring the state of nature that lurks beyond law's boundary."8 We

are reminded that the peace and security achieved by law's power are

ever vulnerable; that lies the abyss just beyond the place of law.19

Numerous other cases, from the mundane to the bizarre, deal with

other complications arising from law's relationship to place, both hori-

zontally and vertically conceived. Can, for example, law's authority

extend beyond the place of its origin? Do citizens leave the reach of that

authority when they cross law's geographical boundary? To what

extent does the reality-or even fantasy-of such a space beyond law

trouble law's legitimacy? A classic illustration of this problem is found

in Queen v. Dudley and Stephens-a case that is a parable about the vio-

lence of a lawless place and the utter necessity of sovereign power.20

The case began with the sinking of an English yacht in 1884. As the ship

went down, the defendants, Dudley and Stephens, along with one

other sailor and a young boy, escaped in an open lifeboat. After drifting

for more than twenty days, during which they exhausted their food

and water, Dudley and Stephens killed the weakened and defenseless

4

THE PLACE OF LAW

young boy and "fed upon... [his] body and blood."21 Eventually the

three survivors, found "in the lowest state of prostration," were res-

cued; and, contrary to the long-followed custom of the sea, Dudley and

Stephens were charged with murder.22

At trial, Lord Coleridge acknowledged that the situation in the

lifeboat was one of "necessity," and he painted the actions of Dudley

and Stephens in starkly Hobbesian terms.23 Their actions were, in

Coleridge's view, guided by the belief that "in order to save your own

life you may lawfully take away the life of another, when that other is

neither attempting nor threatening yours, nor is guilty of any illegal act

whatever towards you or anyone else."24 The question as he saw it was

whether that belief, the equivalent of the right of self-preservation that

Hobbes tells us governs behavior in the state of nature, should be rec-

ognized by law, whether the lifeboat was, under such extreme condi-

tions, a place beyond the legitimate reach of positive law.

Though custom had for centuries sanctioned similar lifeboat killings

in cases of dire necessity, for Coleridge this question was not particu-

larly difficult.25 While he recognized that the defendants found them-

selves in a situation where it was almost impossible to "keep ... judg-

ment straight and ... conduct pure,"26 he contended that it is precisely

in such situations where law must stand guard against the frailties that

constitute our very humanness. Law must refuse to acknowledge and

justify actions according to nature's dictates or recognize those dictates

as its own. Coleridge flatly asserted that the idea of an unqualified right

of self-preservation is "immoral"; morality requires that we distance

ourselves from, rather than give in to, the impulses of the state of

nature. "It is not correct," he wrote, "to say that there is any absolute or

unqualified necessity to preserve one's life."27

Recognizing such a principle would mean, Coleridge argued, that

the "weakest, the youngest, the most unresisting" would be most vul-

nerable and most likely victimized. Portraying life without a common

power in Hobbesian terms as violent and exploitative, Coleridge

warned that an incorrect decision in this case, a decision legitimating

such violence and exploitation, "would be of fatal consequence."28 By

conjuring the prospect of a widespread outbreak of lawless violence,

Coleridge justified treating the actions of Dudley and Stephens as

"willful murder."

Coleridge's opinion suggests that the place of law is the place of sov-


5

ereignty and sovereign power.29 Indeed for Coleridge there can be no

moral place outside the sphere of law's authority, at least for the "civi-

lized" English on land or sea.30 But just as the formation of the sover-

eign nation-state played a crucial role in the emergence of a territorial

and jurisdictional understanding of law (and vice versa), the rapid and

often radical transformation of this political form is one of the defining

characteristics of our era. Under pressures variously labeled transna-

tionalism and globalization, state forms throughout the world are

undergoing transformation, adding new functions, shedding old ones,

refining institutional processes, developing new alliances within and

beyond national borders-and, in so doing, changing the relationship

between law and place.

Territory, jurisdiction, boundary: each of these ways of describing

the place of law is called into question by contemporary processes of

globalization that create new territories, rearrange jurisdictions, and

blur boundaries. In the abstract, globalization refers to the increasing

interconnectedness of social relations; in reality, it asks us to imagine

obscure localities shaped by events across the globe, and vice versa.31 In

the domain of culture, globalization entails the penetration of even the

most closed societies by common symbolic forms.32

The driving force behind this diffusion of culture and the hallmark

of globalization is the worldwide spread of corporate capitalism and

neoliberal values.33 As such, globalization can be seen as a vast project

in political economy, a restructuring of the global order to maximize its

compatibility with the values and interests of multinational corporate

enterprise, and as a crucial reorienting of dominant political ideologies.

At the level of jurisdiction, the global economic system has been

institutionalized in the World Bank, the International Monetary Fund,

the World Trade Organization, and the North American Free Trade

Agreement, to name only a few. These arrangements seek to impose the

discipline of the market on economies that have been, it is claimed, cor-

rupted by crony capitalism, welfare state social policy, and other

autarchic tendencies. Accordingly, the mission of these institutional

messengers of globalized capitalism is to dismantle barriers to the free

flow of populations, commerce, information, and especially capital

all in the service of economic growth and industrial development.

Globalization opens up state processes to far-reaching forces and

leads to reconfigurations of state power. As these global forces impinge

6

THE PLACE OF LAW

on the state, the place of law is altered. New challenges and opportuni-

ties emerge, new locations of legal authority develop. The process of dis-

aggregating and reconfiguring state power leads directly to the question

of what roles territory, jurisdiction, and boundaries play in defining the

place of law. Whether at the level of supranational institutions or

reformed domestic ones, globalization alters competition and contesta-

tion over norms, over the content of legal regulations and standards.34

Clearly the globalized political economy is exerting a transformative

impact on the place of law. Complementing globalization in this trans-

formation are newly emergent international and supranational human

rights regimes. "The past few decades," Richard Wilson notes, "have

witnessed the inexorable rise of the application of international human

rights law as well as the extension of a wider public discourse on

human rights, to the point where human rights could be seen as one of

the most globalized political values of our times."35Appeals to human

rights and an emerging body of international law have, then, the poten-

tial to transform power relations within states and open up new possi-

bilities for forces seeking social change.36 And as the creation of the

International Criminal Court suggests these changes may radically

redefine traditional concepts of sovereignty and the jurisdictional lim-

its of legal authority.

Though questions of jurisdiction and sovereign authority present

the most concrete way of analyzing what we mean by the "place" of

law, there is yet another way of conceptualizing "place" that shifts

from the geopolitical to the sociological. Taking this perspective, so-

ciolegal scholars have asked about the role law plays in social life. How

important is it in the lives of citizens?

Two general ways of thinking about the place of law in social life

have emerged in the literature. The first, instrumentalism, posits a rela-

tively sharp distinction between various kinds of legal standards, on

the one hand, and various kinds of nonlegal human activities, on the

other. It then explores the effects of the former on the latter.37 Instru-

mentalism conceives of law as a tool for sustaining or changing aspects

of social life, but not as a major force in shaping society. Instrumental-

ism denies that law is already an integral part of that which it regulates.

Perhaps the key to the instrumentalist understanding is the belief

that there is a fairly firm division between the legal and the social. As

Robert Gordon has observed, writers in this tradition


7

divide the world into two spheres, one social and one legal. Soci-

ety is the primary realm of social experience. It is "real life":

What's immediately and truly important to people ... goes on

there.... "Law" or "the legal system," on the other hand, is a

distinctly secondary body of phenomena. It is a specialized

realm of state and professional activity that is called into being

by the primary social world in order to serve that world's needs.

Law is auxiliary-an excrescence on social life, even if some-

times a useful excrescence.38

Law, then, is pictured as a residual category whose role in the everyday

is episodic, artificial, and often disruptive.39

The second perspective, the constitutive, contends that social life

inevitably is run through with law.40 In bold outline, the constitutive

view suggests that law occupies an important place in society, shaping

it from inside out, providing the principal categories in terms of which

social relations are made to seem largely natural, normal, cohesive, and

coherent. We are not, as instrumentalists suggest, merely pushed and

pulled by laws that impinge on us from the "outside." Rather, we

internalize law's "meanings" and its representations of us, so much so

that our own purposes and understandings can no longer be extricated

from them.41

So conceived, it is understandable that law's place might be either

relatively invisible (as part of the frame in terms of which actions are

formulated) or seemingly necessary and natural (as part of what it

means to be an agent or actor at all). Thus, in thinking about the place

of law, those who adopt the constitutive perspective tend to see the

links between law and society at the level of networks of legal practices,

on the one hand, and clusters of beliefs, on the other. While these links

tend to be relatively diffuse, they are nonetheless incompatible with

portraits of legal systems as "struggling to retain what seems like a ten-

uous grasp on the social order,"42 as having little place in the organiza-

tion of society.43

The essays collected in The Place of Law speak to these different under-

standings of place. They treat place as a geographical fact, calling our

attention to the way distinctive localized cultures are expressed in legal

norms. They analyze the social processes through which the place of

8

THE PLACE OF LAW

law is created and maintained, exploring new places or spaces within

which legal authority might be deployed. Finally, they consider the

way globalization works. Taken together, they help us see the way law

both defines territory and attempts to keep things in place. They high-

light the spatiality of law and the normative contests that spring from

the legal regulation of space. They draw our attention to the fact that

law lives most vividly far beyond its most majestic embodiments, in the

common, the quotidian, the ordinary. They challenge scholars to attend

to the difficult task of charting where (or what) the place of law really is

in any society and in any historical period.

The first two essays in this collection examine the place of law in

repressive political conditions. Both are interested in the intersections

between law as a technology for the governance of particular geogra-

phies and other systems of meaning and control, including literature

and culture. The first examines what happens when the place of law is

penetrated by "literary culture"; the second, what happens at the inter-

section of culture and legal formality.

Wai Chee Dimock begins our inquiry by trying to identify the place

of law in the former Soviet Union, a place in which the rule of law was

allegedly absent. Dimock's essay takes issue with this view, examin-

ing law as a technology of governance, not as something standing

apart from the lives of ordinary citizens living under totalitarianism.

She focuses on law's horizontal axis, that is, its location on a geo-

graphical map. Her essay points to the importance of knowing about

the borders and boundaries of law and whether the jurisdiction and

scope of law are coextensive with the geographic boundaries of

nation-states.

Dimock describes the place of Soviet law in the life of one individual,

Osip Mandelstam. Mandelstam, "probably the greatest Russian poet of

the twentieth century," was arrested twice as a result of his allegedly

subversive poetry, including most especially his "Stalin Epigram."

Dimock insists that the prosecution of Mandelstam occurred within,

not beyond, the boundaries of law. It was, she says, an act clearly

authorized by the Soviet Criminal Code, a code designed to serve the

needs of the state apparatus.

This identification of law and the state came at considerable cost. So

intertwined were law and the state under the Soviets that their law had

neither jurisdiction nor moral force beyond the territorial scope of the

state. Law is generally a powerful expression of the nation as a single,


9

integral, rule-governed and rule-abiding unit that unifies and homoge-

nizes the territorial. Law not only regulates conduct, but, following

what we have called the constitutive view, it seeks to establish the tem-

poral and spatial horizon of its citizens. Yet in this effort law, as it did

in Stalinist Russia, often fails.

Here Dimock uses Mandelstam's profound attachment to Dante as

an example of the power of "literary culture" to overlay the place of

law. Literary culture establishes a different temporality by reaching a

community of readers beyond national boundaries and is activated

when authors write and when readers in different places read their

words. This linguistic migration, Dimock suggests, is one of the most

important challenges to law's jurisdiction. It punches holes in the bor-

ders of the nation, opening them up to alien influences of incalculable

magnitude.

Dimock contends that Mandelstam's love of, and immersion in,

Dante, put him, in one sense, beyond the jurisdiction of Soviet law.

"Space and time," she says, "have no absolute jurisdiction when it

comes to the bonds between texts and readers." Translation of litera-

ture from one language to another is, even under totalitarianism, "the

basis for a limited freedom." Political repression "forces the mind to

think globally." Thus, paradoxically, even as law is used to insure the

territorial jurisdiction of the repressive state, it creates the conditions

under which it is increasingly unable to govern the place of its origin.

Literary culture provides a terrain for engagement in a normative

struggle against the efforts of states to keep things in place. It provides

a vehicle of escape, putting the subjects of such repression in touch

with the values, ideas, and linguistic possibilities of other places and

times.

This preoccupation with boundaries and their disruption is also cen-

tral to the essay by Annelise Riles. Like Dimock, Riles begins with a

problem in legal theory, here the geographic and cultural preconditions

of "legal formalism." Calling attention to the significance of formalism

in debates about jurisprudence, Riles argues that the formalism of the

twentieth century was a compromised, altered version of its earlier iter-

ation. While it was absent from totalitarian states like those described

by Dimock, even the confrontation with totalitarianism could not res-

cue the strictest versions of formalism. No longer insisting on the pos-

sibility that judicial interpretation could be governed solely by the lan-

guage of legal texts, the new formalism of the late twentieth century

10

THE PLACE OF LAW

combined pragmatism with a faith in the salutary effect of solid rules

and stable legal categories.

Riles traces the debate about the instrumental and expressive effects

of law, a debate central to contemporary thinking about formalism, to

what she calls "the cultural state." The cultural state, as she describes it,

is "organized according to theories of culture and cultural difference

and devoted.., to the preservation and elaboration of this difference."

But the cultural state is also "a discursive state . . . in which the hege-

mony of culture.., is nearly absolute." Formalism, in its strictest sense,

is offered up as a response to anxieties about culture and cultural dif-

ference. In this account formalism seeks to place law outside of, or

above, cultural difference. The role of law is, in the view of formalists,

to provide vehicles and devices for regulating, if not resolving, cultural

conflicts.

Riles turns to colonial and postcolonial Fiji, and to its use of a land

titles registration system, to illustrate this conception of formalism.

Because, like Dimock, Riles is interested in the place of law under con-

ditions of repression, she examines what happened to people in Fiji

who were defined as outside culture because they were "half-castes" or

"part-Europeans." For these people, unlike Mandelstam, there was no

possibility of escape from a territorialized version of law, no access to a

literary culture that might have provided an alternative normative

horizon.

For the Fijians any escape from the most extreme conditions of

repression could be found solely in their attachment to land. Their abil-

ity to hold onto land, in turn, was made possible by a very particular

kind of formalism, namely the Fijian land title registration system. This

system created for the half-castes "a set of actual places shielded from

the reach of the cultural state." The law governing place was for the

half-castes a place of protection, a place in which "antihegemonic pos-

sibilities for living" could be carved out and maintained. Examining the

"empty place" that is the domain of legal formalities, Riles contends

that it made possible "particular sociality" for "refugees of the cultural

state, the people without culture."

The next two essays move away from the nation-state in order to

chart the place of law in the constitution of political and social life. They

alter the focus, shifting away from the impact of law on individuals and

groups to analyze its place in institutions and political arrangements.

Thus Patricia Ewick and Susan Silbey inquire about the place of law in

WHERE (OR WHAT) IS THE PLACE OF LAW?

11

modern scientific practice. The laboratory, they argue, "has been trans-

formed over the centuries from a private place of gentlemanly inquiry

to an open and accessible public arena, the forms of regulation govern-

ing the processes of production and certifying the knowledge pro-

duced therein have also shifted." Over time, law has come to have a

much more important role in regulating scientific practices. Legal reg-

ulation has, however, been largely indirect, oriented to controlling the

design and operation of space, namely the laboratory. Law, Ewick and

Silbey suggest, works through the very institutions it allegedly trans-

forms. By regulating space, state law helps to produce a particular kind

of scientist and a particular kind of science.

Ewick and Silbey present a brief history of scientific laboratories to

show how law encouraged, and helped make possible, their transfor-

mation from a private into a public domain, from a personal space into

a democratized, standardized, and anonymous space. Here they chart

the way law invests places with meanings while focusing its regulatory

activity on "the constitution of space." Space itself has become "the

object of governance, and individuals are incidentally (and episodi-

cally) controlled and constructed as subjects only as they occupy or pass

through these governed spaces."

For Ewick and Silbey, inquiry about the social significance of law,

inquiry designed to determine what the place of law is in regard to sci-

ence, should be directed to understanding where the place of law is.

Borrowing from Nikolas Rose, they designate the regulation of the

spaces in which science is done "governing from a distance." Legal reg-

ulation operates through rules about environmental protection and

workplace safety, through the rules governing intellectual property

and the creation of trusts and endowments. But law also encourages

self-regulation, identifying problem areas while leaving it to scientists

to develop standards of practice to address them, creating what look

like places of autonomy beyond its boundaries at the same time it colo-

nizes those places. In this sense, law has both "certified areas of scien-

tific autonomy" and has "been constitutively present.., in the expan-

sion and organization of modern science." Ewick and Silbey's work

suggests that law has a place both outside and inside science. "Scien-

tific authority," they contend, "is in part constituted by law's deference

to science's claims to discover truths that exist prior to and indepen-

dent of human institutions."

The essay by Saskia Sassen moves from the localized context of the

12

THE PLACE OF LAW

scientific laboratory to the global dimensions of the digital revolution.

Sassen is interested in one particular mode or mechanism of the emerg-

ing global order, what she calls "digitization" and its impact on "the

regulatory capacities of states." She notes that the development of the

Internet has important implications for "current framings for state

authority and democratic participation." Digitization creates a new

geography of power. In Sassen's view, it represents both a reposition-

ing of the state in a broader field of power and a reconfiguring of the

work of states.

The Internet's democratic potential cannot resist the incursion of

new modalities of control, control exercised less by public than by pri-

vate actors. Thus the digital revolution creates new challenges to, and

new opportunities for, regulatory activity. New normative regimes,

what she calls "privatized and technologically based rule enforce-

ment," alter the shape, as well as the place, of law. Digitization repre-

sents less a loss of power for the nation-state than a relocation of state

power and the power of state law.

While Sassen urges us not to underestimate the potential of the

Internet to be a site of democratic politics, she notes that its impact on

the jurisdiction of state law and its power to neutralize sovereignty

come from the existence of the private digital networks of international

finance. Because capital can be moved within and beyond national bor-

ders with a single keystroke, international finance capital can exercise

enormous power in state legal orders. These actors and institutions pri-

vatize what was once public and denationalize formerly national policy

agendas. In so doing, they reposition and reorient law; they infuse it

with new norms. Global financial markets, she argues, compete with

state law not only as domains of power, but in establishing a logic that

seems proper and appropriate for new problems of governance.

Yet globalization, as Sassen sees it, does not just happen to states;

globalization works in and through them. While the Internet con-

tributes to countergeographies of globalization, making possible cross-

border political activism, digital space, whether private or public, is

partly embedded in actual social structures and power dynamics. In

this sense the place of law in the digital world is, and will continue to

be, both within and beyond the state.

The remaining two essays in this book, though less focused on glob-

alization, continue Sassen's inquiry into the place of law in cyberspace,

its place in regulating the Internet, and the utility of metaphors of place


13

and space in helping us think about the world that computers have

helped bring into being. Lawrence Lessig's essay shares the instrumen-

talist conception of law that animates Sassen's work; for Lessig, as for

Sassen, law provides one form of regulation among many. Thus he con-

trasts law's regulatory role in cyberspace to the role of social norms, the

market, and what he calls the "architecture" of the world as we find it.

Today many people argue that cyberspace is a place beyond law's

boundaries, a state of nature where freedom exists without danger.

Those who advocate cyber-libertarianism suggest that cyberspace pro-

vides authentic, unconstrained human freedom that is "unregulable."

It is that place where individuals are inherently free from the control of

real place sovereigns.

Lessig takes issue with this view, seeing in cyberspace not a place of

freedom, but instead a place that has the potential to be the most fully,

and extensively regulated space that we have ever known. Noting that

behavior in cyberspace, like behavior elsewhere, is regulated by law,

norms, markets, and architecture, Lessig argues that the most signifi-

cant of these regulatory constraints is what he calls "code," the soft-

ware and hardware that set the terms on which cyberspace operates.

Like other architectural forms, it is not optional. Code is a rival sover-

eign, competing with the regulatory power of geographically located

sovereigns. Lessig describes the complex intersections of law, norms,

markets, and architecture as they occur in the contemporary regulation

of cyberspace, taking as his example the effort to regulate pornography

on the Internet. He contrasts what he calls "real space" and cyberspace,

saying that the latter is indeed less regulable in the sense that there is

less that governments can do to govern behavior there. The source of

this difference, he argues, seems to be architectural. Its architecture ren-

ders it ostensibly unregulable.

Or so it would seem. Architecture stands in the way of the regulation

of cyberspace only if one assumes, as many commentators do, that it

can have one and only one possible architecture. This is the error of nat-

uralism as applied to cyberspace. It is a serious error because it under-

estimates the permeability of the architecture and the significance of

legal decisions about it.

By insisting that manufacturers of encryption assure that any

encryption system have built into it a key recovery ability or insisting

on the use of certifying IDs, law can ensure that the architecture of

cyberspace makes behavior in cyberspace more regulable. In the face of

14

THE PLACE OF LAW

these possibilities it is important, Lessig notes, that we not assume that

freedom in cyberspace is a given. Instead, like freedom in other places,

it must be fought for and maintained with diligence and with no assur-

ance of its survival. We must participate in an intense normative strug-

gle if we are not going to move from an architecture of freedom to one

of control, an architecture every bit as draconian in its reach as the total-

itarian structure that ensnared Osip Mandelstam in Stalin's Soviet

Union.

Yet perhaps understanding cyberspace as a place or in spatial terms

may have its own perverse consequences, its own implications for the

role law can and does play in regulating communications.44 Spatial

metaphors may undermine our capacity to engage in the kind of nor-

mative struggle that Lessig seeks to encourage. Richard Ford concludes

this book by providing a careful examination of the implications of

using place as a metaphor in the context of the Internet. Ford, like

Sassen and Lessig, sees in much of the current discourse surrounding

the Internet the dream of an autonomous (and free) space. He too

thinks that this is something of an illusion. Looking more closely, Ford

argues, reveals "the dependency of cyberspace on the terra firma of

political sovereigns."

Treating the Internet as a place, a territory, underlies the illusion of

autonomy that surrounds it. While Ford acknowledges that spatial

metaphors provide an attractive way of organizing thinking about the

Internet, he insists that they are not the only, or indeed even the best,

way of doing so. "The decision to think of the Internet in spatial terms

... will not help us to understand the Internet so much as it will affect the

way we understand the Internet." Ford worries that spatial metaphors

allow scholars to ignore the technical and normative complexity of the

domain we label cyberspace. He worries, in particular, that they con-

strain and distort thinking about the place of law in cyberspace.

To illustrate the pervasiveness of metaphors of place and space and

their impact in discussions about the Internet, Ford examines the

Supreme Court's adjudication of the Communications Decency Act

and arguments about the impact of the Internet on our thinking about

race. With respect to the former, the government's defense of the CDA

relied explicitly on the idea of place, treating the Internet as "analogous

to a territorial jurisdiction-a cyber city-and thought of restrictions on

Internet obscenity as analogous to local zoning law." On the Court, Jus-

tice O'Connor in particular seemed attracted to this way of thinking,


15

suggesting that a zoning of cyberspace would pass constitutional

muster, though such zoning was not yet possible given the limits of

available technology.

Turning to race, Ford criticizes arguments that the Internet will pro-

mote new consciousness about race. Because it is possible to "speak"

over the Internet without a prejudged racial identity being assigned to

the speaking subject, some scholars seem to favor a form of racial

authentication in order to insure that race is not elided. This argument

is based on the fact that such scholars think about the Internet as a

place. As in any other place, it seems appropriate that people bring

their physical selves with them. However, if we see the Internet as a

medium of communication rather than as a place, we can more readily

identify the dangers of a demand for compulsory racial identification.

Thinking about the Internet as if it were a place or a space "encour-

ages us to import our biases, mythologies, misperceptions, and unre-

flective habitual practices around land and territory into a new

domain." Rather than imagining a preexisting space, whether in phys-

ical or cyber landscapes, into which law may be allowed entrance, we

should remember that law helps to create place, to give it meaning. If

we do so, Ford contends, we may then be able to use the Internet, and

the challenges it poses, to help us develop new ways of thinking about

"real space." In cyberspace, as elsewhere, the definition of space is part

of a normative struggle, not a fact that can resolve it.

This normative struggle reminds us that the place of law-whether

defined as territory, jurisdiction, or sociological fact-is always a place

both of regulation and of contestation. Law's place is never a given in

social life. It is rather always contingent-sometimes strengthened by

other social forces, sometimes limited. As a result, whether in Stalinist

Russia or Fiji, in scientific laboratories or the new institutions of a

global political economy, in or beyond the Internet, charting the place

of law is at once enriching and challenging. The essays in this book sug-

gest that the place of law is as difficult to pin down as the outcomes of

normative struggles are to predict.

NOTES

1. As Richard Ford reminds us, this appearance is deceiving. Instead of

being inevitable, "territorial jurisdictions. . . are relatively new and intuitively

surprising technological developments.... We are now accustomed to territor-

s6

THE PLACE OF LAW

ial jurisdiction-so much so that it is hard to imagine that government could be

organized in any other way." Richard Ford, "Law's Territory (a History of

Jurisdiction)," Michigan Law Review 97 (1999): 843.

2. For an example of this kind of argument see Lawrence Friedman, The

Legal System: Social Science Perspectives (New York: Russell Sage Foundation,

1975).

3. Simon Schama provides an illuminating discussion of the way land-

scape is made into cultural tradition. See Landscape and Memory (New York:

Knopf, 1995). See also Barbara Bender, ed., Landscape: Politics and Perspectives

(Providence, R.I.: Berg, 1993).

4. "Space (and place in a richer understanding of this concept) is fre-

quently reduced to the status of a given." David Delaney, Richard Ford, and

Nicholas Blomley, "Preface: Where Is Law?" in The Legal Geographies Reader, ed.

Nicholas Blomley, David Delaney, and Richard Ford (Oxford: Blackwell, 200ool),

xvi.

5. See, for example, Bryant Garth and Austin Sarat, eds., How Does Law

Matter? (Evanston, Ill.: Northwestern University Press, 1998).

6. "[P]lace seems to connote inertia, closure, and passivity.... However,

recent scholarship in geography would suggest that place can best be under-

stood in other ways. Rather than a passive stage on which the histories of social

life unfold, place, like space, is actively constructed through a constellation of

material and discursive practices. In historical terms, consequently, we should

think of places not as static entities but . . . as in a constant process of becom-

ing." Nicholas Blomley, "Landscapes of Property," Law and Society Review 32

(1998): 581. Also see Nicholas Blomley, Law, Space, and the Geographies of Power

(New York: Guilford Press, 1994); Henri Lefebvre, The Production of Space, trans.

D. Nicholson-Smith (Cambridge, Mass.: Blackwell, 1991); and Doreen Massey,

Space, Place, and Gender (Minneapolis: University of Minnesota Press, 1994).

7. See C. B. McPherson, "The Meaning of Property," in Property: Main-

stream and Critical Positions, ed. C. B. McPherson (Toronto: University of

Toronto Press, 1978); and Margaret Radin, Reinterpreting Property (Chicago:

University of Chicago Press, 1993).

8. A telling example of this is provided by Justice Scalia's opinion in a

recent case on the use of high-tech surveillance to identify the presence of mar-

ijuana in someone's home. See Kyllo v. United States, 121 S.Ct. 2038 (2001). Also

Carol Rose, Property as Persuasion (Boulder, Colo.: Westview Press, 1994).

9. For an interesting example of a metaphorical use see Boaventura De

Sousa Santos, "Law: A Map of Misreading. Toward a Postmodern Conception

of Law," Journal of Law and Society 14 (1987): 279.

10. See Neil Smith and Cindi Katz, "Grounding Metaphor: Toward a Spa-

tialized Politics," in Place and the Politics of Identity, ed. Michael Keith and Steve

Pile (New York: Routledge, 1993).

11. Delaney, Ford, and Blomley, "Preface: Where Is Law?" xvi.

12. Robert Cover, "Folktales of Justice: Tales of Jurisdiction," Capital Univer-

sity Law Review 14 (1985): 179.


17

13. Cover asserts that most jurisdictional thinking is "largely apologetic,

state-serving." "Folktales of Justice," 185.

14. "Law," Delaney argues, "is scrupulous about patrolling its own borders.

It is, as I said, imperialistic." See David Delaney, "Beyond the Word: Law as a

Thing of This World," in Law and Geography, ed. Jane Holder and Carolyn Har-

rison (Oxford: Oxford University Press, 2003), 70.

15. Thomas Hobbes, Leviathan, ed. C. B. MacPherson (New York: Penguin,

1968). Hobbes described the state of nature as a condition of life in which men

might live "without a common Power to keep them in awe" (185). That condi-

tion is one, as every undergraduate knows, of violence, or the perpetual fear of

violence. Given rough equality of desire and power, men "endeavour to

destroy or subdue one another" and are, as a result, "in a condition which is

called Warre; and such a warre, as is of every man against every man" (184-85).

As Hobbes noted in one of the most famous passages in his work, life in the

state of nature is "solitary, poor, nasty, brutish and short" (186).

16. Duncan Kennedy argues that this dilemma poses a fundamental chal-

lenge for liberal political theory. See "The Structure of Blackstone's Commen-

taries," Buffalo Law Review 28 (1979): 211-13. See also Roberto Unger, Knowledge

and Politics (New York: Free Press, 1975). As Unger describes this dilemma,

The apparent guarantee of your safety will be the final cause of your

degradation. The self whose continuity your obedience insures is not

your own.... The others save you from being nothing, but they do not

allow you to become yourself.... The freedom to be unstable in your

desires and pursue the goals you choose, after you have rendered trib-

ute to Caesar, simply confronts you once again with the paradoxes of

the morality of desire from which you were trying to escape. (61)

17. Walker v. Birmingham, 388 U.S. 307, 320-21.

18. As Justice Frankfurter once suggested in explaining the necessity of law,

"no one, no matter how exalted his public office, or how righteous his private

motive, can be a judge in his own case. This is what courts are for.... If one man

can be allowed to determine for himself what is law, every man can. That

means first chaos, then tyranny." See United States v. United Mine Workers, 330

U.S. 258, 308-9, 312 (1947).

19. The threat of such lawless violence is also conjured in United States v.

Holmes, 26 Fed. Cas. 360 (C. E. D. pa. 1842), reprinted in Joseph Goldstein, Alan

Dershowitz, and Richard Schwartz, Criminal Law: Theory and Process (New

York: Free Press, 1974), 1023. Holmes, is a case whose tragic circumstances begin

with the sinking of a ship and the resulting murder trial of a sailor who

attempted to save his own life, as well as the lives of others, by throwing pas-

sengers overboard from an overcrowded, leaking lifeboat.

20. Queen v. Dudley and Stephens, LR 14 QBD 273 (1884), reprinted in John

Bonsignore, Ethan Katsh, Peter D'Errico, Ronald Pipkin, and Stephen Arons,

Before the Law (Boston: Houghton Mifflin, 1974), 25. For a complete history of

18

THE PLACE OF LAW

the case, see A. W. B. Simpson, Cannibalism and the Common Law: The Story of the

Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It

Gave Rise (Chicago: University of Chicago Press, 1984).

21. Bonsignore et al., Before the Law, 26.

22. Ibid. See Simpson, Cannibalism, chap. 5, for a history of the English mar-

itime customs governing such situations.


24. Ibid., 27.

25. Indeed the authorities in London decided to prosecute Dudley and

Stephens with the thought of producing a leading case on the issue; as Simpson

demonstrates, conviction was essentially foreordained.


27. Ibid., 30.

28. Ibid.

29. On the connection of law and sovereignty see John Austin, The Province

of Jurisprudence Determined, ed. Wilfred Rumble (Cambridge: Cambridge Uni-

versity Press, 1995). For a provocative reworking of the idea of sovereignty see

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel

Heller-Roazen (Stanford: Stanford University Press, 1998).

30. See Nikolas Rose, Powers of Freedom: Refraining Political Thought (Cam-

bridge: Cambridge University Press, 1999). For specific examples of the way

power is exercised through the governance of space see Davina Cooper, Gov-

erning Out of Order: Space, Law, and the Politics of Belonging (London: Rivers

Oram Press, 1998); and Marianna Valverde, Diseases of the Will: Alcohol and the

Dilemmas of Freedom (Cambridge: Cambridge University Press, 1998).

31. Anthony Giddens, The Consequences of Modernity (Stanford: Stanford

University Press, 1990), 64.

32. See Arjun Appadurai, Modernity at Large: Cultural Dimensions of Global-

ization (Minneapolis: University of Minnesota Press, 1996). As Susan Sibley

puts it:

[R]ap music from American urban ghettos is played in the shops in

Paris and on the streets in Budapest, portable telephones manufactured

in Finland adorn the hips of stock brokers and manual laborers from

Santiago to Sidney, from Cancun to Cape Town, and television stations

around the globe fill their schedules with the likes of Melrose Place while

the office workers from Moscow to Buenos Aires munch on Big Macs

and fries.

Susan Silbey, "'Let Them Eat Cake': Globalization, Postmodern Colonial-

ism, and the Possibilities of Justice," Law and Society Review 31 (1997): 212.

33. Christopher, Chase-Dunn, Globalization: Structures of the World Economy

(Cambridge: Polity Press, 1991).

34. Pheng Cheah, "Posit(ion)ing Human Rights in the Current Global Con-

jecture," Public Culture 9 (1997): 8.

35. See Richard Wilson, "Human Rights, Culture, and Context: An Intro-


19

duction," in Human Rights, Culture, and Context, ed. Richard Wilson (London:

Pluto Press, 1996), 1.

36. This possibility is discussed by Austin Sarat and Thomas R. Kearns,

"The Unsettled Status of Human Rights: An Introduction," in Human Rights:

Concepts, Contests, Contingencies, ed. Austin Sarat and Thomas R. Kearns (Ann

Arbor: University of Michigan Press, 200ool), 5-6.

37. David Trubek, "Where the Action Is: Critical Legal Studies and Empiri-

cism," Stanford Law Review 36 (1984): 575.

38. See Robert Gordon, "Critical Legal Histories," Stanford Law Review 36

(1984): 60.

39. David Engel and Eric Steele, "Civil Cases and Society: Process and

Order in the Civil Justice System," American Bar Association Research Journal

(1979): 295.

40. See Gordon, "Critical Legal Histories." Also see Christine Harrington

and Barbara Yngvesson, "Interpretive Sociolegal Research," Law and Social

Inquiry 15 (1990): 141. We should emphasize at the outset that there are con-

siderable differences among those we have lumped together as taking the

constitutive view. For example, Barbara Yngvesson's study "Making Law at

the Doorway: The Clerk, the Court, and the Construction of Community in

a New England Town," Law and Society Review 22 (1988): 409, draws atten-

tion to the power of legal officials in shaping the (social) meanings of "good

neighbor," or "dutiful parent"; but this effect of law on social meaning

seems quite different from what, say, Gabel and Feinman have in mind

when they contend that contract law encodes an invasive ideology, an ideal-

ized (and generally unarticulated and unexamined) way of thinking about

conflicts and agreements that tends to legitimate (as natural and necessary)

various oppressive socioeconomic realities. See Peter Gabel and Jay M. Fein-

man, "Contract Law as Ideology," in The Politics of Law: A Progressive Cri-

tique, ed. David Kairys (New York: Pantheon, 1982). In the first case, the

law's effect on social meaning is relatively transparent and explicit; in the

other, social meaning is engendered systemically and is, as a result, less eas-

ily detected.

41. Trubek, "Where the Actions Is," 589-604. From the constitutive perspec-

tive, law enters social practices and is, indeed, "imbricated" in them, by shap-

ing consciousness, by making law's concepts and commands seem, if not invis-

ible, then perfectly natural and benign. As Trubek writes:

[S]ocial order depends in a nontrivial way on a society's shared "world

view." Those world views are basic notions about human and social

relations that give meaning to the lives of society's members. Ideals

about the law-what it is, what it does, why it exists-are part of the

world view of any complex society.... Law, like other aspects of belief

systems, helps to define the role of an individual in society and the rela-

tions with others that make sense. At the same time that law is a system

of belief, it is also a basis of organization, a part of the structure in

which action is embedded

20

THE PLACE OF LAW

Gordon points out that "lawmaking and law-interpreting institutions have

been among the primary sources of the pictures of order and disorder, virtue

and vice, reasonableness and craziness, realism and visionary naivete and

some of the most commonplace aspects of social reality that ordinary people

carry around with them and use in ordering their lives." See "Critical Legal

Histories," o109. See also W. V. O. Quine and Joseph Ullian, The Web of Belief

(New York: Random House, 1970).

42. Susan Silbey, "Law and the Order of Our Life Together: A Sociological

Interpretation of the Relationship between Law and Society," in Law and the

Order of Our Life Together, ed. Richard Neuhaus (Grand Rapids, Mich.: William

Eerdmans, 1990), 20.

43. Thus, returning to Queen v. Dudley and Stephens with this different sense

of "place" in mind, we might imagine an instrumentalist analysis of the case

that focused upon the conflict between long-standing social practices that sanc-

tioned cannibalism in some limited conditions on the open sea, and external

authorities who impose a different regulative principle upon seafaring culture

for purposes of their own. A constitutive approach, on the other hand, might

emphasize the "legal" standing of custom as an integral part of theories of the

English common law and the ways in which a national conception of the doc-

trine of necessity signals the emergence of an alternative, rather than wholly

external, locus of legal authority. Under the latter approach in particular, geo-

graphical and sociological understandings of "place" are linked insofar as the

case implicates a tension between customary and national definitions of law

and the role both play in ordering the social world.

44. "Liberal legal discourse is an embarrassingly rich source of spatial

tropes and metaphors.... The metaphors do work and this work is crucial to

how law itself works." Delaney, "Beyond the Word," 69.

Time against Territoriality: National

Laws and Literary Translations

Wai Chee Dimock

How territorial is the jurisdiction of law? Is it mapped by one set of spa-

tial coordinates? Does it have borders, and where do those borders fall?

Do they coincide with the borders of a sovereign nation? Are both of

these placeable phenomena, describable in geographical terms? If so, is

the jurisdiction of law predicated on, and perhaps even parasitic on, the

jurisdiction of a territorial entity? And what about the jurisdiction of lit-

erature? Is it predicated in the same way on that entity?

I want to address these questions by looking at the conduct of law

and literature in one particular setting, the former Soviet Union. The

operative scopes of these two enterprises are worth comparing, not

only in light of their greater or lesser coincidence with that regime, but

also in light of the possibly nonterritorial ontology on the part of at least

one of them. I want to argue, specifically, that while law is spatially

predicated, most often operating within the limits set by geopolitics, lit-

erature is much less so. That, in turn, suggests that the jurisdiction of

these two must be theorized in two ways: not only in terms of the brute

fact of national borders, but also in terms of something working in defi-

ance of that brute fact. What might this be? What are the grounds for a

form of governance different from territorial sovereignty? In what fol-

lows, I explore time-the time of literary culture, an extended and con-

tinuously evolving duration-as one candidate. Here is a tribunal that

pits the transmission of words against the location of law. And, to the

extent that any large-scale transmission requires translation, requires

the crossing of borders national, linguistic, and chronological, the

cumulative time of literature must act sooner or later as an extraterrito-

21

22

THE PLACE OF LAW

rial force. A duration long in its making and dispersed in its unfolding,

the polyglot, polychronic time of literature cuts across the placeability

of law within the nation-state.

The Place of Law

It is useful, however, to begin with that placeability of law, and with the

nation-state that underwrites it. The former Soviet Union here stands as

a striking example. Of course, for some, this example might not count

at all. In theory-liberal theory as well as Marxist theory-the Soviet

Union was not supposed to have been ruled by law. Here was a nation

constituted by revolutionary justice, not by the judicial apparatus of a

bourgeois state. In practice, however, as Harold Berman and Robert

Conquest have shown, the Soviet Union did have an extensive body of

law, not only common law but more specifically civil law. Formal cod-

ification began in earnest in the early 1920os:

In 1922 and 1923 there appeared a Judiciary Act, a Civil Code,

Code of Civil Procedure, Criminal Code, Code of Criminal Pro-

cedure, Land Code, and a new Labor Code.... These codes gave

Soviet Russia a legal system which on paper and in its main out-

lines is similar to that of the countries of continental Europe,

including prerevolutionary Russia, differing from that of Eng-

land and the United States in technique but alike in many of its

basic principles.

The Judiciary Act established a hierarchy of courts and a sys-

tem of trials and appeals familiar, with variations, to all Western

countries. Its most unusual feature (possibly borrowed in part

from the German practice in commercial cases) was the provi-

sion for trial by a three-judge court, with two of the judges,

called people's assessors, chosen from the general population for

ten-day periods. The Civil Code dealt in traditional terms with

such matters as legal capacity, persons, corporations, legal trans-

actions, statute of limitations, property, mortgages, landlord and

tenant, contracts and torts, unjust enrichment, inheritance....

No American lawyer would be shocked by the provision that

"by the contract of sale one party (the seller) undertakes to trans-

fer property to the ownership of another party (the buyer), while

TIME AGAINST TERRITORIALITY

23

the buyer undertakes to accept the property and to pay the price

agreed upon."'

Law did exist in the Soviet Union, and well within the parameters of

law in the West. In its provenance Soviet law was international and het-

erogeneous. In its operative scope, however, it was inflexibly bound by

the borders of the nation, and nothing better illustrates this than the

brute fact of geography that made Soviet criminal law absolute in its

power but limited in the extent of its exercise. This body of law was

peculiar to the nation in which it was housed. Its "doctrine of analogy"

was uniquely charged to criminalize acts not otherwise prohibited;2

that unique charge made it frame-dependent, limited to one particular

locale. The "Soviet" in the Soviet Criminal Code and the Soviet Crimi-

nal Procedure Code both licensed and circumscribed. It was key to

what these laws were: instruments of repression all powerful within

one nation, but not extendable anywhere else, with no power abroad. I

want to look at these geographical limits of law in the context of one

particular individual, the poet Osip Mandelstam, someone fated to live

and die within those geographical limits, but permeated all the same by

an alternate jurisdiction.

Mandelstam, probably the greatest Russian poet of the twentieth

century, was a poet who had serious run-ins with that adjective, "Rus-

sian." The law of the land was never much to his taste, and never much

on his side. In 1934, he brought upon himself what Nadezhda Mandel-

stam, his wife (and soon to be his widow), would call his "rendezvous

with the State."3 This rendezvous came at the heels of a poem recited to

a small circle of friends. Usually called the "Stalin Epigram," it includes

details such as "the ten thick worms his fingers," and the "huge laugh-

ing cockroaches on his top lips." The poem ends with these lines:

He forges decrees in a line like horseshoes,

One for the groin, one the forehead, temple, eye.

He rolls the executions on his tongue like berries.

He wishes he could hug them like big friends from home.4

The Stalin Epigram was never written down. It was heard by no more

than five or six people. Nonetheless, the incident was reported to the

authorities, and Mandelstam was arrested in due course. In fact, he was

24

THE PLACE OF LAW

arrested twice. On the night of May 13, 1934, he was taken by the secret

police to their headquarters in the Lubianka Prison, interrogated, and

later sentenced to three years of exile. He had a reprieve in 1937. Then,

on May 2, 1938, he was arrested a second time. This time he was sen-

tenced to a labor camp in Eastern Siberia, and he died on his way there,

probably on December 27, 1938.5

Mandelstam's arrest, both times, was strictly within the provisions

of Soviet law. The second arrest in 1938 was authorized by the People's

Commissariat of Internal Affairs, or NKVD. The arrest took place

before guilt was established, but this was not a procedural irregularity.

Pretrial arrests were perfectly legal according to Article 104 of the

Soviet Criminal Procedure Code, which stated:

In all cases of detention of a suspect (Art. 100 of the Criminal

Procedure Code), the agencies of inquiry shall, within 24 hours,

send notification, with an indication of the bases of detention, to

the investigator in whose district the agency of inquiry is located

or to the nearest People's Judge.

Within 48 hours, counting from the moment of receipt of noti-

fication from the agency of inquiry of notification about a deten-

tion that has occurred, the investigator or the People's Judge

must confirm the detention or revoke it. Agencies of inquiry

shall change the measure of restraint upon receipt of a corre-

sponding notification from the agencies to which notification

was sent.6

The NKVD, in short, had the legal power to detain a suspect on its own

authority. After the arrest had taken place, the case would then go to a

sentencing agency, which had 48 hours to confirm or revoke this action.

In Mandelstam's case, this sentencing agency was something called the

Special Board. This was actually an administrative-rather than judi-

cial-body, but it was authorized to make legal decisions, because a

resolution of November 5, 1934 (SZ SSSR, 1935, No. 11, item 84) gave it

the explicit power to impose sentences upon "persons recognized as

especially dangerous," without any need to name a specific crime com-

mitted.7 Mandelstam was sentenced on those grounds. The Special

Board reached the verdict that he was guilty of "counterrevolutionary

activity," which meant five years in a correctional labor camp.8 The ver-


25

dict was read out to Mandelstam, and his signature was part of the trial

records to show that he was a witness to his sentencing.9

I want to highlight the Soviet Criminal Procedure Code and the com-

pliance with that code in Mandelstam's arrest and trial, in order to

make two related arguments. First, simply to repeat the obvious, the

judicial apparatus was very much in place in the Soviet Union. We

might think of it as a kind of legalized lawlessness, as Richard Pipes

does,'o but the fact remains that it was there, solidly there. There was

due process for Mandelstam; his pretrial arrest was procedurally in

order; there was an arrest warrant, a record of his detention and trans-

fer; the sentencing was done by an authorized agency and in compli-

ance with a specific resolution.

There was no violation of the Soviet Criminal Procedure Code in the

conduct of the NKVD and the Special Board. This brings me to my sec-

ond point. These two agencies were law-abiding, and they could afford

to be, because within the Soviet Union there was of course a very com-

fortable fit between the formal codes of law and the agencies charged

with their enforcement. Both were cut from the same cloth; both were

the handiwork of the same nation-state. But to say that is also to say

there was no gap, no spatial separation, between the adjudicative vehi-

cle and what it adjudicated. The Criminal Procedure Code was not

"above" the rest of the Soviet regime. On the contrary, it was continu-

ous with that regime, a handmaiden to the latter and bound by its

terms of servitude. Its codification took place inside territorial borders;

that territorial genesis gave it its operative scope. It had teeth only

because the power of the state was there to back it up. By the same

token, because this legal might was so much the might of the state, it

must come to an end at just that point where the Soviet Union did.

Jurisdiction and sovereignty were here coincidental.

Soviet law was no doubt an extreme case in being so territorially

predicated. This extreme case, however, does say something about the

general rule. Even outside the Soviet Union, the demarcating lines

among different bodies of law are by and large the demarcating lines of

geopolitics." As Bruce Ackerman points out, "The typical American

judge would not think of learning from an opinion by the German or

French Constitutional Court. Nor would the typical scholar."'2

National laws are both consolidated and bounded by their spatial

nonextendability. Even in those rare cases (such as extradition) where

26

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the nonextendability of foreign law is briefly suspended, the newswor-

thiness of those events suggests that they are anomalies.13 Such rare

instances aside, legal jurisdiction and national sovereignty are one.

This explains why adjectives that designate territorial entities-French,

German, Israeli, Iranian-can serve as adequate designations for differ-

ent bodies of law.

Jurisdiction without Sovereignty

And yet a sea change is afoot. In this era of globalization, "world con-

stitutionalism" is no longer a wishful or exotic-sounding term even

among U.S. constitutional scholars.14 Among international lawyers,

this is more obviously the case. The classic "Westphalian" model

with its operative landscape defined by territoriality, recognizing only

sovereign states as legitimate players-is increasingly seen as out-

moded, ill-equipped for the emerging legal order of the twenty-first

century.15 Concepts such as NGOs (nongovernmental organizations),

"nonstate actors," and "transnational adjudication" have entered the

lexicon as never before.'6 What is at stake, once again, is the nature,

scope, and action-bearing entities of this new legal order. Law's operat-

ing theater, its coincidence or noncoincidence with territorial regimes,

the demarcation of its normative fields and the naming of participatory

players: all of these are up for grabs. And, as far as the two growth areas

of international law are concerned-the protection of the environment

and the protection of human rights-global governance is more than

just a dream.'7 It is an actualized fact, here to stay.

It is in this context, in face of this sharp challenge to the territoriality,

sovereignty, and primacy of the nation-state, that I want to invoke the

cumulative time of literature as a robust and well-tested instance of

global governance, a NGO avant la lettre. My claim is that literary cul-

ture is planetary in scope: planetary both in its temporal extension and

in its global reach. Its jurisdiction cuts across the static lines of the

geopolitical map, even as it cuts across the segmented planes of

national chronology. This view of literature not only suggests an alter-

native to the territorial paradigm of law, it also brings into focus a pow-

erful challenge to what Benedict Anderson sees the temporal precondi-

tion of the nation-state, what he calls a regime of "simultaneity."

In Imagined Communities: Reflections on the Origin and Spread of Nation-

alism, Anderson argues that "the genesis of nationalism" is predicated


27

on "an idea of homogeneous, empty time, in which simultaneity is, as

it were, transverse, cross-time, marked not by prefiguring and fulfil-

ment, but by temporal coincidence, and measured by clock and calen-

dar."'8 National time for Anderson is synchronized time: synchronized

by mechanical devices, and synchronized, as well, by "the novel and

the newspaper" (30). These purveyors of simultaneity unite the nation

under an official "now," binding all its citizens to the same temporal

plane. Such an account of national time does work well with the Soviet

Union, a nation founded on a chronological script and eager to clock

itself according to that script: as the designated successor to capitalism,

the final act on the world stage.19 The very legitimacy of this nation

rested on the timetable it claimed for itself.

But, as we know, that timetable could not actually clock the lives of all

Soviet citizens. What was there to undermine its regime? What alternate

time frames messed up its chronological rigor? Obviously, there are

multiple candidates here. In what follows I concentrate on just one, a

temporal formation I call "literary culture." What I have in mind is a

large-scale phenomenon, an extended and continuously compounded

duration, made up not just of a handful of people who write but, above

all, of an entire population who reads, a population spread across coun-

tries and centuries. This large-scale duration is activated whenever

words are lifted from the page, whenever they are taken up by readers

"alien" to the author in space and time. This alienating process is crucial,

because it is only when words are taken out of their original contexts that

literary culture can become planetary, can become a cumulative and

extraterritorial force. Going back thousands of years and going forward

even more indeterminately, literary culture holds out to its readers

stretches of time so far flung, so deeply recessed and so wildly unpre-

dictable that they can never gel with the synchronic plane of national

chronology. Reading creates time warps. It disturbs the official now.

Such, indeed, was the effect of reading on Osip Mandelstam. I focus

on him, then, not only as a poet but above all as a reader, spurred on by

long-lasting words to become a kind of temporal noncitizen, out of step

with the official chronology of the Soviet Union and surviving beyond

it perhaps for just that reason. It is worth noting, then, that, amidst the

nation-based legality of his arrest, there was one small, irregular detail,

a hint of an alternate jurisdiction. That arrest did not come as a surprise;

Mandelstam had the luxury of preparing for it. Those preparations

were recorded by Nadezhda:

28

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M. obtained an edition of the Divine Comedy in small format and

always had it with him in his pocket, just in case he was arrested

not at home but in the street. You could be arrested anywhere

sometimes they came for you at your place of work, and some-

times you were lured out to another place on a false pretext and

no one ever heard of you again.... When M. went to Samatikha

(the place where he was arrested the second time), he left his

pocket Dante in Moscow and took another, rather more bulky

edition. I do not know whether he managed to keep it until he

reached the transit camp [at Vtoraya Rechka] near Vladivostok,

where he died. I somehow doubt it: in the camps under Yezhov

and Stalin, nobody could give any thought to books.20

In a moment of extreme political terror, Mandelstam-Russian and

Jewish-saw fit to immerse himself in a medieval Christian poem. The

immersion did not save him. He died, as mentioned, on his way to a

labor camp. Still, in spite of this biological triumph of the Criminal

Code, it was not a trivial fact that a medieval poem was still around,

after hundreds of years, to be read by a Soviet citizen. That fact gave

Mandelstam a different reference point, a jurisdiction not reducible to

the arm of the Soviet government.21

Conflicting Time Frames

Mandelstam's love of Dante-the physical presence of the poetry

inside his pocket-makes it clear that literary culture is above all an

extended temporal formation, at odds with territorial sovereignty and

numerical chronology. Authors centuries and thousands of miles apart

can turn out to be inseparable. Their adjacency stems from a linguistic

bond, and has little to do with the metrical structure articulated by

numbers, whether these numbers take the form of latitudes and longi-

tudes or whether they take the form of dates. The remoteness or prox-

imity of linguistic events is not something that lends itself to uniform

calibrations. It cannot be expressed as a numerical constant: as one hun-

dred years or one thousand miles. No mileage can tell us how far one

author is from another; no dates can tell us who is close to whom.

This nonnumerical structure of space and time might be described

by borrowing a concept from Einstein: "relativity of simultaneity."22

Einstein uses this to challenge the notion of a universal present, a


29

"now" everywhere enforced, a temporal plane that synchronizes the

entire globe, putting it under a unified chronology. There is no such

synchronized plane, Einstein says, because space and time are not

absolute givens but operational effects, deriving their particular

lengths and widths from the relative motion of the frames in which

measurements are being taken. What is simultaneous in one frame

might not be simultaneous in another; what registers as "now" in one

might not so register elsewhere.

Of course, for Einstein, relativity of simultaneity is a strictly mathe-

matical concept: it is a description of the geometry of space-time. I have

argued elsewhere that this concept can also be understood nonmathe-

matically, that it can be transposed to describe the temporal effects

engendered by reading.23 Transposed in this way, relativity of simul-

taneity highlights the existence of conflicting time frames in any popu-

lation of readers. The apparent unity of the numerical date gives way to

a plurality of experiential "nows." These nows are not discretely or uni-

formly slotted; they do not all line up on the same synchronic plane.

They owe their shapes to the irregular compass of words: their differ-

ent antecedents, different extensions of meaning. Nows are different

because reading habits are, because the strength of linguistic bonds can

have a drastic effect on the distance between any two users of words.

Two thousand years and two thousand miles can sometimes register as

near simultaneity; ten years and ten miles can sometimes pose an

impassable gulf. Thanks to this elasticity, the time frame experienced

by any reader is singly individuated, unlike anyone else's. It has its

own sequence, its own coevals. Its relational fabric is separately cut,

stretching and bulging in odd places. It is not synchronized with the

numerical "now" on any standard calendar.

Understood in this sense-as the temporal disunity engendered by

reading-relativity of simultaneity suggests that the literary contin-

uum is anarchic: impossible to regulate, impossible to police. Where lit-

erary bonds are intensified by particular circumstances-as happens

with Mandelstam and Dante-space and time can undergo the most

astonishing contraction, can turn a standardized metrical unit into a

virtual zero, bringing supposedly remote objects into direct contact.

Space and time, in short, have no absolute jurisdiction when it comes to

the bond between texts and readers. Not a sovereign grid, they are

molded instead by the actions and passions of words. They can behave

like "a kind of fan,"24 as Mandelstam says. The fan can be folded up,

30

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putting Italy in the immediate vicinity of Russia, and making strange

bedfellows out of the fourteenth and the twentieth centuries.

Alien Life-Forms

This folded fan denationalized Dante and Mandelstam both: making

each Italian and not Italian, Russian and not Russian. In Mandelstam's

case, denationalization began with his attempt to learn Italian to read

Dante. He was joined by Anna Akhmatova. The two poets would com-

pare notes, testing each other's memory, savoring every word from that

alien tongue that had ceased to be alien. "Poetry itself is one enormous

quotation," Akhmatova would later note.25 Mandelstam might have

said the same. One would taunt the other: "Do you remember this line?"

"Did you notice that wonderful bit?" Then they would settle down to

read "aloud together, pointing out the passages they liked best, sharing

their finds with each other."26 Spending so much time among these

barely domesticated words-so much time away from his supposedly

native tongue-Mandelstam ended up being a caricature of a national

poet. He was, of course, not Italian. But then, neither was he completely

Russian. Instead, we might think of him, as he says, as a "translator by

calling, by birth," a "foreign emissary from a non-existent phonetic

kingdom."27 Translation was the actual job he had, what he did for a liv-

ing, when his official status as a pariah barred him from all other jobs.

But he also lived off it in a deeper sense, as Clarence Brown suggests,

consigning himself to it as to "a sort of intellectual Siberia."28

This intellectual Siberia is not exactly a Soviet address. Its terrain,

like its provenance, cannot be exclusively localized within one nation.

To be sure, the intellectual Siberia has something to do with the territo-

rial Siberia, but this territorial alignment might not be the primary one,

certainly not the only one. Two frames of reference, at least, are

involved here, one playing upon the other and relativizing the other.

For the very presence of a foreign tongue-the very meaningfulness of

that tongue-already suggests a counterpoint to the entity called the

nation, showing up its limits, its failure to dictate an exact match

between the linguistic and the territorial. Every intellectual Siberia is an

affront to the sovereignty of the state. It points to dimensions of space

and time not fully nationalized because not fully rationalized, space

and time not conforming to an official number, not integrated by a uni-

fied metric. Translation not only turns a foreign language into Russian,


31

it also puts tremendous pressure on the native tongue:29 alienates it,

puts it into perspective, throws it into a linguistic continuum more tur-

bulent and more alive than the inert lines of a geopolitical map.

This linguistic continuum is the basis for a limited freedom. It is the

freedom of an alien life-form: a form of extension and duration not

matching those of the nation, and perhaps not coming to an end with

the latter's demise. This alien life-form sustains every author and every

translator, as Mandelstam makes clear in "To the German Language":

Destroying myself, contradicting myself,

like the moth flying into the midnight flame,

suddenly all that binds me to our language

tempts me to leave it....

An alien language will be my swaddling clothes.

Long before I dared to be born

I was a letter of the alphabet, a verse like a vine,

I was the book that you all see in dreams.30

Under political repression, the only life a poet can have is nonbiologi-

cal. Wislawa Szymborska, writing in Poland in 1970, made the same

point:

When in danger the sea-cucumber divides itself in two ...

We know how to divide ourselves, how true, we too.

But only into a body and an interrupted whisper.

Into body and poetry.31

The latter alone has a chance for rebirth in a different tongue. Of course,

that chance depends on events altogether accidental: the luck of foreign

translators adopting the poems, the luck of foreign readers picking

them up. Haphazard as this might seem, many of Mandelstam's poems

were indeed translated, wrapped in swaddling clothes made in Eng-

land, France, and the United States, long before they were published in

the Soviet Union.

There is an ontological mismatch between literary culture and terri-

torial sovereignty, between the deep time of a linguistic continuum and

the finite borders of geopolitics. The swaddling clothes of foreign lan-

guages highlight that fact. They highlight what happens to official bor-

32

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ders and official timetables when texts are born again and again, into

different countries, different centuries. Nonbiological reproduction cre-

ates a life-form that the nation-state cannot destroy. It turns a seem-

ingly bounded text into something far more random, scattered by cir-

cumstances across the length and width of the globe. The very life of

literature depends on such randomizations. Rather than being stuck in

one national context-and saying predictable things within that con-

text-a literary text becomes a new semantic template, a new form of

the legible, each time it crosses a national border. Global transit makes

for the unexpected extension, triangulation, and transformation of its

meaning. This fact alone challenges the power of the territorial as a

determining force in literature. The space-time coordinates of any

given text are not only fluid when they first come into being, poorly

captured by the map of geopolitics, they are also subsequently and

unforeseeably revisable, induced by their temporal and spatial dis-

placements to play new tricks with the static borders of the nation.

With every new translation they punch a hole in those borders, an

incline that rolls outward:

The earth is at its roundest on Red Square

And its unchained curve is hard,

On Red Square the earth is at its roundest

And its curve, rolling all the way down to the rice fields,

Is unexpectedly expansive

While there are still any slaves on the earth.32

Territorial sovereignty, its incontestable might in one locale, forces the

mind to think globally. The earth on Red Square is roundest because,

for anyone who does not wish to be chained to that spot, this bit of

earth must be taken as a curve, an arc of a larger circumference. That

circumference, rather than being a slavish copy of its origins, is an off-

center set of vibrations, chaotic and tangential. It expands with the

more or less random accretion of signifying moments, emerging at var-

ious temporal and spatial removes.

Ruptured Chronology

Nor is this only a twentieth-century phenomenon. Indeed, the same

alien life-form, the same nonbiological duration that permeates Man-


33

delstam he attributes also to Dante. "Having combined the uncombin-

able, Dante altered the structure of time." What results is a "synchro-

nism of events, names and traditions severed by centuries."33 Dante is

not a slave of chronology either. He too creates adjacencies on grounds

other than numerical dates. Mandelstam pays tribute to this heresy in

this portrait:

What is Dantean erudition?

Aristotle, like a double-winged butterfly, is edged

with the Arabian border of Averroes.

Averrois, che il gran comento feo

(Inferno, IV, 144)

Here the Arab Averroes accompanies the Greek Aristotle.

They are both components of the same drawing. They can both

find room on the membrane of a single wing.

The conclusion of Canto IV of the Inferno is truly an orgy of

quotations. I find here a pure and unalloyed demonstration of

Dante's keyboard of references.

A keyboard stroll around the entire horizon of Antiquity.

Some Chopin polonaise in which an armed Caesar with a

gryphon's eyes dances alongside Democritus, who had just fin-

ished splitting matter into atoms.34

According to Mandelstam, the Divine Comedy is a fan that has folded

away the fifteen hundred years separating Aristotle from Averroes,

the twelfth-century Arab philosopher. These two are paired up, both

of them contemporaries of Dante's in the fourteenth century. The fan

also folds in Chopin, not exactly around when Dante was alive but

eventually to be born, the supposed Frenchness of whose music Man-

delstam traces instead to Florentine origins. And he does not stop

there. For good measure he also throws in Democritus, invoked by

Dante in Inferno IV.136,35 and catapulted now from the fifth century

B.C. to the fourteenth, and onward to the twentieth and beyond.

This might seem a bizarre description of a medieval poem, but what

Mandelstam is trying to highlight here is a giddy voluminousness

peculiar to Dante, innocent of anything that might be called chronolog-

ical decorum. Balloonlike, Dante's metaphors yoke together terms so

disparate, so perilously strung out, as to leave the poem hanging by a

34

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hair across vast temporal and spatial distances. Something of that gid-

diness can be seen in these lines from Paradiso XII:

As two concentric arcs of equal hue,

are seen as they bend through the misty clouds

when Juno tells her handmaid to appear

the outer from the inner one an echo,

like to the longing voice of her whom love

consumed as morning sun consumes the dew

and reassure the people here below

that by the covenant God made with Noah,

they have no need to fear another Flood

even so those sempiternal roses wreathed

twin garlands round us as the outer one

was lovingly responding to the inner.

(XII.lo-21)36

Dante seems to see nothing wrong mixing Greek mythology with bibli-

cal allusions, mentioning Juno and her handmaid, Iris, goddess of the

rainbow, in the same breath as Noah and the Flood. Also in the same

breath he mentions Echo, consumed by her love for Narcissus "as

morning sun consumes the dew," until nothing is left of her but her

"longing voice." Jupiter's heavens and Jehovah's heavens seem to have

merged into one. The same rainbow brightens the horizon of both. And

nimble figures of speech hop from one to the other: Echo is both the

name of a nymph and the name for the mutuality of the blessed revolv-

ing in their concentric circles. Thanks to Dante, centuries of readers

have swallowed such temporal heresies with barely a gulp.37

For Mandelstam, such temporal heresies are the largest gifts poetry

has to offer, to reader and writer alike. This is not the familiar claim

about the "timelessness" of literature. Mandelstam's point is much

more interesting than that. To him, the "anachronism"38 of the Divine

Comedy comes about not because the poem is timeless but because it is

timeful. It is full of time, densely populated, home to each of the cen-

turies bearing signs of human life. This is a home not numbered by a

metric, not sequenced by a chronological axis. A continuum, it grants

adjacency to any two points in space and time. And since it goes for-


35

ward as well as backward, it stretches the life of every finite point to a

potential infinity. This is why Aristotle and Averroes are both here;

why latecomers such as Chopin can be included; and why Democritus,

exponent of an ancient "atomic theory" in the fifth century B.C., can be

said to have lived out his extended life through the extended life of the

poem, surviving with the help of the Divine Comedy to "split matter into

atoms" in the twentieth century.39

An "anachronistic" poem, as Mandelstam uses the term, is one that

makes the world both cumulative and nonsequential. It gathers

together all coordinates, all points in the life of the planet, paying no

attention to their supposed remoteness or proximity. In this way, the

human species articulates itself across space and time, its signature

coterminous with its habitat. As a form of duration and extension, lit-

erature is thus a heresy, an insult and an affront, to the finiteness that is

the norm of biological organisms and territorial jurisdictions. This

heresy allows human beings to have a collective life, not identical to the

life span of a perishable individual or a perishable nation. Against the

robust continuum of the Divine Comedy, either of these life-spans might

look like "less than a wink of the eyelash."40

Mandelstam, who learned about Einstein during his stay in

Kharkov,4' might have referred to this continuum as the "relativity of

simultaneity." He did, in fact, begin one of his essays, "On the Nature

of the Word," with an explicit tribute to Einstein: "Due to the quantita-

tive change in the content of events occurring over a given time inter-

val, the concept of a unit of time has begun to falter, and it is no accident

that contemporary mathematical science has advanced the principle of

relativity."42 For anyone living under Stalin, this relativity of simul-

taneity is not an esoteric idea. It is a living fact, a political fact, the only

recourse against the absolute tyranny of an absolute synchronic plane.

A long past and a long future are signs of hope. And hopelessness, con-

versely, is to be caught in a time slot eternal in its territoriality. This is

the condition of hell. But hell, Mandelstam also insists, is a temporal

effect, the effect of a present that has everything under its thumb. That

thumb shrinks in size the moment we can bring to bear upon it a dif-

ferent time frame, different verb tenses. This, for Mandelstam, is the

central meaning of Dante. Above all it is the meaning of Canto X of the

Inferno, a canto driven by the contrary "forms of verb tenses: the per-

fective and imperfective past, the subjunctive past, even the present

and the future are all categorically and authoritatively presented."43

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This jumble of tenses is occasioned by Dante's and Virgil's visit to the

sixth circle of hell, the circle of the heretics. Among these, none is more

heretical than Farinata, a Ghibelline who is proud and, of course, unre-

generate, who, hearing the Florentine tongue from Dante's lips, simply

cannot hold his own tongue.

Nonterritorial Time

Dante, already frightened, now draws closer to Virgil. It is at this point

that the present tense enters the scene, in a little cry of annoyance. Vir-

gil has no patience with such slinking and shrinking on Dante's part.

And he is not too ceremonious about it. "Volgiti: che fai?" "Turn

around: What are you doing?" Most readers would simply read this as

an offhand rebuke. Mandelstam turns it into a capsule summary of hell,

hell as a verb tense:

The horror of the present tense is given here, some kind of terror

praesentis. Here the unalloyed present is taken as a sign intro-

duced to ward off evil. The present tense, completely isolated

from both the future and the past, is conjugated like pure fear,

like danger.44

The horror of the present tense is perhaps more vivid to Mandelstam

than to Dante. Still, even for the latter, hell is hell precisely because its

time is sealed, because its torments take the form of an iron necessity, a

here and now from which all doors are closed. What is striking about

Farinata, though, is that for him the doors are not closed, at least not the

door to the past. That remains open, and the traffic through it is con-

stant and uninterrupted. Farinata's love for Florence is as lively as ever;

its familiar accents stir him even in hell. Indeed, it soon becomes clear

that if Farinata is "in" hell, it is only in the weakest possible sense. No

full containment comes with that preposition. His heart and mind are

elsewhere, still caught up in the past, a Florentine past in which he

takes great pride and which, for him, remains the eternal reference

point. It is from that reference point that he asks Dante: "Chi fuor li

maggior tui?" "Who were your ancestors?" Here of all places, ancestry

is still the first thing to find out. The question is rude, crude, effortlessly

insulting, because Farinata, great nobleman that he was, still has the

right to exact that bit of information and in just that tone of voice. When


37

told, he lifts his eyebrows a little, half in recognition and half in disdain.

And he persists in both veins: "Bitter enemies of mine they were / and

of my ancestors and of my party; / I had to scatter them not once but

twice."45 Even in hell, what matters the most to Farinata is the memory

of that scattering, the grim satisfaction of it, not once but twice. That

memory is untouched by hell, and forever untouchable. Because Fari-

nata is his memory: a memory prior to hell and external to hell, and

enfolding him forever in that priority and externality.

To Mandelstam, the powerful "past tense" of "Chi fuor li maggior

tui" explodes "like a mighty tuba."46 Hell does not exactly crumble

with that sound, but it is no longer what it purports to be. Its eternal

present has been punctured, shown to be not sovereign, not absolute,

not even governed by the same verb tense. It cannot banish the echoes

of an alien tongue, and it cannot erase the memories of an earthly city,

both of which make a mockery of its less than unified "now." Indeed,

hell does not even have the power to inflict the worst suffering on its

inmates. When told by Dante that the Ghibellines have been defeated

and sent into exile but, unlike the Guelfs, have not "learned the art" of

returning, Farinata counters with this lament: "if they have badly

learned that art, it is worse torment to me than this bed."47 Just as he

loves Florence the best, so he is pained the most by what he sees as its

misfortunes. Nothing in hell can compete with that. Farinata will never

be anything other than what he was: a Florentine, a Ghibelline, some-

one who lived by the sword and revered only the sword. No length of

sojourn in hell would make him a well-behaved inmate.

Surprisingly, the power of the past tense is not even unique to Fari-

nata, so haughty, so magnificent, and so obviously a heretic. Canto X is

not the sole habitat of one individual. Another Florentine is there. This

turns out to be Cavalcante, father of Dante's best friend, Guido. Listen-

ing for some time to the exchange between Dante and his neighbor, he

can finally stand it no longer. Suddenly raising himself up, he looks

around eagerly to see if anyone is with Dante. Not finding anyone, he

cries out:

"Where is my son? Why is he not with you?"

"I do not come alone," I said to him,

"that one waiting over there guides me through here,

the one, perhaps your Guido held in scorn."...

Instantly, he sprang to his full height and cried,

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"What did you say? He held? Is he not living?

The Day's sweet light no longer strikes his eyes?"

And when he heard the silence of my delay

responding to his question, he collapsed

into his tomb, not to be seen again.

(Inferno, X.58-63, 67-72)48

Like Farinata, Cavalcante is Florentine, but almost the exact opposite of

his compatriot. Farinata's firm and weighty words, the stately balance

of his syntax, give way to Cavalcante's "irregular and plaintive ...

questions."49 The civic and military glories of Florence are now set

aside, leaving a single tie, an affective tie, in the foreground. Cavalcante

loves his son, believes in his genius, and wants him to be still alive, his

eyes bathed in the sweet light of Tuscany. He wants him to be Dante's

honored companion in this tour of hell. But Guido is nowhere in sight.

Not seeing him, and catching Dante's words-"ebbe a disdegno,"

"held in contempt"-he can only repeat that verb in dumb terror:

"Come dicesti? 'Egli ebbe?' non viv'elli ancora?" "What did you say? He

held? Is he not living?"

The word ebbe, a slip of a word, will travel across the centuries, com-

ing home to Mandelstam as the sound of the "fated past perfect."5Â° As

in the exchange with Farinata, the human drama here revolves around

a dramatized verb tense. The kinship between these two is all the more

significant for their obvious difference. For Farinata, the word fuor is

summoned with all due deliberation; for Cavalcante, the word ebbe falls

like a bolt from the sky. Still, the two are the same: same kind of tem-

poral heretics. In his single-minded devotion to his son, and in his dev-

astation at the (mistaken) news of Guido's death, Cavalcante turns out

not to be a slave to the "now" of hell, just as Farinata is not a slave. His

reference point, too, remains anterior and exterior. He too will never be

anything other than what he was: a weakling, too easily broken, too

easily given to despair, but prior to hell in just that way, not a full-time

resident of the sixth circle.

Farinata and Cavalcante, one larger than life, the other not at all,

together give voice to the heresy of an unofficial "now." This heresy

infiltrates and permeates even where it does not altogether liberate.

Bursting in upon the supposedly closed doors of hell, it clashes either

as a "mighty tuba" or as "an oboe or clarinet."5' Either way, it lets loose

the force of the unsynchronized, the relativity of simultaneity. This


39

force breaks up the territorial sovereignty of hell. It also breaks up

another kind of territorial sovereignty. The Soviet Union has never

been airtight; Mandelstam and Dante make it less so.

NOTES

1. Harold J. Berman, Justice in the U.S.S.R., rev. ed. (Cambridge: Harvard

University Press, 1963), 34. Berman's account of Soviet law is substantiated by

Robert Conquest, Justice and the Legal System in the U.S.S.R. (New York: Praeger,

1968), 15.

2. Berman, Justice in the U.S.S.R., 35-36; Conquest, Justice and the Legal Sys-

tem, 74, 138-39.

3. Nadezhda Mandelstam, Hope against Hope, trans. Max Hayward (New

York: Athenaeum, 1970), 6.

4. Osip Mandelstam, Selected Poems, trans. Clarence Brown and W. S. Mer-

win (Oxford: Oxford University Press, 1973), 70.

5. Mandelstam, Hope against Hope, 3-41, 360-97.

6. Peter B. Maggs, The Mandelstam and "Der Nister" Files: An Introduction to

Stalin-Era Prison and Labor Camp Records (Armonk, N.Y.: M. E. Sharpe, 1996), 13.

7. Ibid., 27.

8. Ibid., 28; Document M-3.

9. Ibid., 30-31; Document M-3.

10. Richard Pipes, Legalized Lawlessness: Soviet Revolutionary Justice (London:

Alliance, 1980).

11. For a helpful analysis of "law's space," the constitution of law as a fact

of political geography, see Paul W. Kahn, The Cultural Study of Law (Chicago:

University of Chicago Press, 1999), 55-65.

12. Bruce Ackerman, "The Rise of World Constitutionalism," Virginia Law

Review 83 (1997): 772.

13. I am thinking, for instance, of the attempt to have Pinochet extradited

for trial in Chile.

14. See, for instance, Ackerman, "Rise of World Constitutionalism";

Laurence R. Helfer and Anne-Marie Slaughter, "Toward a Theory of Effective

Supranational Adjudication," Yale Law Journal 10o7 (1997): 273-391; Annelise

Riles, "Wigmore's Treasure Box: Comparative Law in the Era of Information,"

Harvard International Law Journal 40 (1999): 221-83; Mark Tushnet, "The Possi-

bilities of Comparative Constitutional Law," Yale Law Journal lo8 (1999):

1225-1309.

15. Stephen D. Krasner argues that "the Westphalian model has never been

an accurate description of many of the entities that have been called states." See

his "Compromising Westphalia," International Security 20 (1995-96): 115-51.

For normative proposals of nonterritorial paradigms, see John Gerard Ruggie,

"Territoriality and Beyond: Problematizing Modernity in International Rela-

tions," International Organization 47 (1993): 139-74; Ruggie, Constituting the

40

THE PLACE OF LAW

World Polity: Essays on International Institutionalization (New York: Routledge,

1998); Christopher Harding and C. L. Lim, "The Significance of Westphalia: An

Archaeology of the International Legal Order," in Essays and Commentary on the

European and Conceptual Foundations of Modern International Law, ed. Christo-

pher Harding and C. L. Lim (Boston: Nijhoff, 1999), 1-23.

16. The literature here is vast. See, for instance, Virginia Haufler, "Crossing

the Boundary between Public and Private: International Regimes and Non-

state Actors," in Regime Theory and International Relations (Oxford: Clarendon

Press, 1993), chap. 5; Peter Spiro, "New Global Communities: Nongovernmen-

tal Organizations in International Decision-Making Institutions," Washington

Quarterly 18 (1994): 45-57; Bringing Transnational Relations Back In: Non-state

Actors, Domestic Structures, and International Institutions, ed. Thomas Risse-Kap-

pen (Cambridge: Cambridge University Press, 1995); Global Law without a State,

ed. Gunther Teubner (Aldershot: Dartmouth Gower, 1997); Helfer and Slaugh-

ter, "Effective Supranational Adjudication"; Margaret Keck and Kathryn

Sikkink, Activists beyond Borders: Advocacy Networks in International Relations

(Ithaca: Cornell University Press, 1998).

17. See, for instance, Peter Haas, "Introduction: Epistemic Communities

and International Policy Coordination," International Organization 46 (1992):

1-35; Kathryn Sikkink, "Human Rights, Principled Issue-Networks, and Sover-

eignty in Latin America," International Organization 47 (1993) 411-41; Thomas

Princen and Matthias Finger, Environmental NGOs in World Politics (New York:

Routledge, 1994); Martha Finnemore, "Constructing Norms of Humanitarian

Intervention," in The Culture of National Security, ed. Peter Katzenstein (New

York: Columbia University Press, 1996), 153-85; Ronnie D. Lipschutz, Global

Civil Society and Global Environmental Governance (Albany: State University of

New York Press, 1996); Paul Wapner, Environmental Activism and World Civic

Politics (Albany: State University of New York Press, 1996); Kal Raustiala,

"States, NGOs, and International Environmental Institutions," International

Studies Quarterly 41 (1997): 719-40; Richard Price, "Reversing the Gun Sights:

Transnational Civil Society Targets Land Mines," International Organization 52

(1998): 613-44.

18. Benedict Anderson, Imagined Communities: Reflections on the Origin and

Spread of Nationalism (London: Verso, 1983), 30.

19. For an interesting discussion of time and the Soviet Union, see Stephen

E. Hanson, Time and Revolution: Marxism and the Design of Soviet Institutions

(Chapel Hill: University of North Carolina Press, 1997).

20. Mandelstam, Hope against Hope, 228.

21. No doubt for this reason, the Divine Comedy was important not only to

Mandelstam but also to many other Soviet authors, including Anna Akhma-

tova, Joseph Brodsky, and Aleksandr Solzhenitsyn.

22. "Relativity of Simultaneity" is the title of chapter 9 of Einstein's Relativ-

ity: The Special and the General Theory, trans. Robert W. Larson, 15th ed. (New

York: Crown Trade Paperbacks, 1961), 29.

23. Wai Chee Dimock, "A Theory of Resonance," PMLA 113 (1997): 1060-71.


41

24. Osip Mandelstam, "On the Nature of the Word," in Complete Critical

Prose, trans. Jane Gary Harris and Constance Link (New York: Vintage, 1997),

73.

25. The line "No, mozhet byt', poeziia sama- / Odna velikolepnaia tsitata"

is from Akhmatova, "Ne povtoriai-dusha tvoia bogata." I quote from Nancy

Pollak, Mandelstam the Reader (Baltimore: John Hopkins University Press, 1995),

4.

26. Mandelstam, Hope against Hope, 223.

27. Mandelstam, "Nature of the Word," 79.

28. Clarence Brown, Mandelstam (Cambridge: Cambridge University Press,

1973), 90.

29. Walter Benjamin, "The Task of the Translator," in Illuminations, trans.

Harry Zohn (New York: Schocken, 1969), 69-82, esp. 73.

30. Mandelstam, no. 266, in Selected Poems, 65.

31. Wislawa Szymborska, "Autonomia/Autonomy," in Sounds, Feelings,

Thoughts: Seventy Poems by Wislawa Szymborska, trans. Magnus J. Krynski and

Robert A. Maguire (Princeton: Princeton University Press, 1981), 136-37.

32. Mandelstam, no. 306, in Osip Mandelstam: Selected Poems, trans. James

Greene (New York: Penguin, 1991), 68.

33. Mandelstam, "Conversation about Dante," in Complete Critical Prose,

282.

34. Ibid., 255.

35. Inferno IV.136, "Democrito, che '1 mondo a caso pone" [Democritus, who

ascribes the world to chance], Sinclair's translation.

36. Dante, The Divine Comedy, vol. 3, Paradise, trans. Mark Musa (New York:

Penguin, 1986), 144-45.

37. Of course, it is Christian theology-Christian teleology-that enables

Dante to see the entire course of time on the same synchronic plane. In this

sense, Dante is not heretical at all.

38. Mandelstam, "Conversation about Dante," 282.

39. By "atoms" Democritus meant small invisible particles differing from

each other only in size, shape, and motion. The modern atomic theory is far

more elaborate, assigning to atoms an internal structure with neutrons, pro-

tons, and electrons.


41. Nadezhda Mandelstam, Hope Abandoned, trans. Max Hayward (New

York: Athenaeum, 1973), 74; Brown, Mandelstam, 97.

42. Mandelstam, "Nature of the Word," 73.


44. Ibid.

45. "Fieramente furo avversi / a me e a miei primi e a mia parte, / si che per

due fiate li dispersi." Inferno, X.46-48.

46. Mandelstam, "Conversation about Dante," 257. He has actually made a

slight error here, misquoting the line as "Chi fuo li maggior tui."

47. Inferno, X.77-78. Sinclair's translation, 137.

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48. "'mio figlio ov' &? Perch& non & ei teco?' / E io a lui: 'Da me stesso non

vegno: / colui ch'attende li per qui mi mena, / forse cui Guido vostro ebbe a

disdegno.' . . . / Di subito drizzato grido: 'Come / dicesti: "Egli ebbe"? Non

viv'elli ancora? / non fiere li occhi suoi il dolce lome?' / Quando s'accorse d'al-

cuna dimora / ch'io facea dinanzi alla risposta, / supin ricadde e piu non parve

fora." I use Musa's translation, 16o.

49. Auerbach points out that Cavalcante's lines "might have been modeled

after Andromache's in Aeneid, 3:310, that is, after a woman's lamentations." See

Erich Auerbach, Mimesis: The Representation of Reality in Western Literature (Gar-

den City, NY: Doubleday, 1953), 158.

50. Mandelstam, "Conversation about Dante," 257. "Ebbe a disdegno" are

three of the most puzzled-over words in the Divine Comedy. For a reading of

these words, see Charles S. Singleton, "Inferno X: Guido's Disdain," MLN 77

(1962): 49-65. Robert Durling sums up the ambiguity of the verb tense: "in

addition to its meaning as a past absolute (Guido habitually disdained), a passato

remoto (Guido at a specific time did indeed disdain), or as a passato prossimo

(Guido just now disdained), also its meaning as a perfect (Guido no longer dis-

dains)." See Durling, "Farinata and the Body of Christ," Stanford Italian Review

2 (1981): 24-25.


The Empty Place: Legal Formalities

and the Cultural State

Annelise Riles

This essay concerns the uses of technical legal rules concerning prop-

erty ownership in creating what I call an empty place. From the point of

view of contemporary cultural theory, the notion of an empty place is a

contradiction in terms. In the early 1990s, anthropologists, literary the-

orists, cultural geographers, and like-minded legal scholars argued for

an understanding of space and place as constructed and constructive in

nature.' These scholars emphasized the role of conceptions of place

aesthetic, geographic, political-in the construction of personal, group,

and national identities.2 Ideological constructions of space and place

were shown to play important roles in, for example, regimes of racial

exclusion.3 Likewise, displacement was taken to have consequences for

a loss of personal or group identity.4 And yet the socially constitutive

character of space also suggested that place remained available as a

resource of resistance and empowerment.5

Of particular interest, from the point of view of the theme of this col-

lection, was the role of law in the construction of place and vice versa.6

David Campbell, for example, has described how what he terms a

"political anthropology" of group identities informed the cartographic

orientation of international lawyers working in Bosnia, and how as a

result the solutions to the conflict there inscribed and enshrined nation-

alist ideologies within the geography of legally defined boundaries.7

This understanding of the mutually constitutive nature of law and

space was also taken as a source of hope: If law was constitutive of spa-

tial arrangements and vice versa, and spatial arrangements in turn

inscribed important notions of identity and politics, it followed that as

43

44

THE PLACE OF LAW

a socially constituted practice, law must be available for groups to rein-

terpret as an instrument of social change. For example, Nicholas Blom-

ley has described how notions of landscape at work in conceptions of

property become available as a resource for disempowered groups in

conflict with developers over urban development.8

These scholars definitively demolished the notion that there could

ever be such a thing as "empty" space and emphasized the ideological

uses of the notion in the European colonial project, or global capital-

ism.9 Lefebvre describes the concept of abstract space as "the locus and

environment of Reason,"'0 characterized by a will to authoritarian

domination, an emptying out of the "natural," and a "flattening" of

"social and 'cultural' spheres":

This modern state promotes and imposes itself as the stable cen-

ter-definitively-of (national) societies and spaces. As both the

end and the meaning of history.., it flattens the social and "cul-

tural" spheres. It enforces a logic that puts an end to conflicts

and contradictions."

Against this ideological notion of the emptiness of space, these

scholars proposed the concept of "place": they sought to reimagine the

passive, neutral space that is the "raw material" of capitalist philo-

sophical tracts as a receptacle for meaningful objects, actions, agents, or

ideologies'2 and also to demonstrate how local communities opposed

the forces of global capitalism by deploying ideas of place. This work

demonstrated that spaces gained psychological and symbolic reso-

nancel3 by the way they are experiencedl4 and "eulogized" as they are

imbued through memory with imaginative qualities.'5

From this point of view, the purposefully "cartographic" orientation

of the laws I will describe, and my own insistence on the possibility of

an empty place in this essay, will seem naive and politically troubling

in the way they fail to appreciate that people always imbue spaces with

political meaning (to deny this fact seems to give renewed voice to an

old ideological position that had taken much hard work to decon-

struct).16 For now, I simply want to note that in this literature place is

imagined as the product, and hence the cultural property of persons by

virtue of their capacity for meaning-making. What is given primacy in

this response to the "cartographic" obsession with space that character-

THE EMPTY PLACE

45

izes the tradition of property as economic means, is persons and their

creative propensity for knowledge/ownership.

In this essay, instead, I want to suggest that the very possibility of a

debate about the expressive qualities of a legally constituted place is

dependent on a particular notion of government and social life that I

will call the cultural state. I intend the term in two senses: First, I refer to

government organized according to theories of culture and cultural dif-

ference and devoted in ostensibly benevolent ways to the preservation

and elaboration of this difference. Nearly all states are to some degree

cultural states today. But second, I refer to a phenomenon that tran-

scends and encapsulates the character of government. Our "cultural

state" is a discursive state or condition in which the hegemony of cul-

ture, and of the kinds of arguments, assumptions, and aspirations that

produced the culture concept, is nearly absolute.

I want to trace out the consequences of the culturalist foundations of

the state practices with respect to an admittedly exotic and unique case,

the legal and political treatment of mixed-race peoples in the colonial

and precolonial state of Fiji. What makes Fiji interesting as a case of colo-

nial governmentality is that it represents the apotheosis of the vision of

cultural government I have described. Fiji was ceded to the British

Crown in 1874, at the moment at which theories of "culture" in the mod-

ern sense were first appearing on the academic stage. Fiji's first governor,

Arthur Gordon, the son of a prime minister, was deeply influenced by

the anthropology he had learned at Cambridge, and his project in Fiji

was to be an experiment in cultural rule. His native policies bear the

strong imprint of the evolutionary theories of Sir Henry Maine champi-

oned.17 In Fiji, the cultural state extended to the form of governance itself:

Gordon presented himself to his native subjects as a high chief among

chiefs and even accepted sevusevu (presentation of kava root as an

expression of chiefly respect) according to what he took to be Fijian cus-

tom. Successive governors took the matter even further by writing schol-

arly articles for anthropological journals and engaging in learned argu-

ments about the extent to which Gordon's policies, as a scientific matter,

had gotten the "facts" of Fijian culture right. Generations of critiques of

colonialism in Fiji have largely continued this tradition, albeit to opposite

ends, by asking to what extent Gordon's policies were built upon "essen-

tialist" notions of Fijian culture-"invented traditions"-and what

effects these essentialisms have had on those subjected to colonial rule.'8

46

THE PLACE OF LAW

The Fiji case brings into relief the less benevolent side of culturalism

as it is deployed in academic and popular debate, as in governmental

action. I focus on what happens to those people defined as "without

culture"-here, the so-called half-castes, or part-Europeans, or today,

just simply, but officially, "Others"-descendants of sexual unions

between foreigners and the indigenous population, many of whom

today live on small plots of land obtained by their ancestors.19 Since the

colonial era, these people have been defined through a discourse of

"illegitimacy": they were, in the government's eyes, the products of

illegitimate marriages and hence could claim neither European nor

Fijian citizenship. They were also culturally illegitimate-to a colonial

government devoted to good anthropological theories of culture, half-

castes represented, quite literally, the bastardization of Fijian culture.

For many of these "others," land has physically defined their space

in the polity. In each generation, the plots acquired by ancestors have

been further divided, and land is rarely sold outside the clan.20 Even

within this legally and spatially circumscribed sphere, however, Part-

Europeans confront the legal effects of their illegitimacy. For example,

until recently, most half-castes could not count on the rules of inheri-

tance that provided for land to pass to one's heirs in the absence of a

will because as "illegitimates"-children born out of wedlock-those

heirs would not be recognized. My hope is that this example will enable

a conversation about some of the consequences of the hegemony of cul-

ture outlined above. The second part of the essay turns to the uses Part-

European's made of a particular kind of legal institution, the land title

registration system. I argue that in Fiji, legal formalities created a set of

actual places shielded from the reach of the cultural state and also a set

of antihegemonic possibilities for living in the shadow of the hegemony

of identity and cultural politics.

The Cultural State

The Republic of Fiji consists of a group of South Pacific islands first col-

onized by the British in 1874 and independent since 1976. From the

beginning of the colonial project, the British colonial government

sought to address two competing concerns: how to turn a profit from

the resources of the colony and how to preserve native culture. Unlike

earlier colonies such as New Zealand and Australia, which were

"depopulated" of their aboriginal peoples in order to make room for

THE EMPTY PLACE

47

economic development, from its inception as a colony, the colonial gov-

ernment in Fiji sought to preserve its "native population." By the time

of Fiji's colonization, the modern, educated colonial administrator was

expected to act out of respect and appreciation for the special needs of

peoples at particular stages of evolutionary development.

Fiji had no major natural resources and was geographically iso-

lated. Brief attempts to develop a cotton industry prior to cession in

1874 had collapsed with the end of the American Civil War. The gov-

ernment's solution was to develop a small sugar industry.21 This pro-

ject presented the government with a problem, however: plantations

would require labor. Both the practical experience of other colonies

with indentured labor and the evolutionary theories of the day sug-

gested that to use Fijians as labor would mean the destruction of the

"native way of life." The colonial government's dual commitments to

preserving native culture and making the colony profitable

demanded a turn to another source of labor. In order to avoid turning

Fijians into laborers, therefore, Gordon arranged for large numbers of

indentured laborers to be brought to Fiji from India as plantation

workers on the theory that these Indians were already culturally

degenerate from generations of less culturally enlightened coloniza-

tion.22 From the beginning, therefore, the colonial government's twin

preoccupations of culture and economy were located in the two prin-

cipal populations of the colony, the Fijians and the Indians, respec-

tively. What followed were a series of problems for the colonial gov-

ernment concerning how to deny that Indians had a "culture" so that

they could be treated as belonging to the sphere of free-market capi-

talism in which, unlike Fijians, they were free to alienate their labor as

commodity.23

The cultural state, as it is exemplified in the admittedly extreme case

in Fiji, therefore, is a state devoted to capitalist economic development

within a world economy. Within that framework, "culture" emerges as

a kind of exception, a circumscribed project of its own that can be

accommodated within the larger economic project, and through which

the economic project can be given positive valence by turning economic

profits to a positive end. Capitalism serves as the means, in other words,

and cultural preservation as the end, although the end can never be

allowed to swallow the means.

In Fiji, the accommodation of these two competing projects, and

their elaboration as a relationship of means to ends, was achieved pri-

48

THE PLACE OF LAW

marily through policy toward land. One of the first acts of the colonial

government was to prohibit the sale of land by "natives," and to return

much of the land held by foreigners at the time of cession to its native

owners. A Land Claims Commission was established immediately

after cession to investigate the validity of every "European title" and

ultimately disallowed more than half of all claims.24

The commission proceeded on the basis of an anthropological the-

ory, extrapolated from Lewis Henry Morgan's evolutionary scheme,

that land was communally owned by Fijians and inalienable.25 Euro-

peans who had paid Fijian chiefs for land had not properly acquired

title the commission held, since they had paid the chief individually

rather than dealing with the communal group and since, in any case,

Fijians did not have a concept of alienability to speak of. What is impor-

tant for our purposes is that this framing of the issue in turn set up the

necessity of balancing the cultural realities against the legal require-

ments of the deed of cession, which explicitly promised that existing

land titles would not be overturned.26

The Land Claims Commission subjected title claims to three very

open-ended, subjective, and context-bound determinations: The first

concerned whether the original vendors had the right to dispose of the

land. This first requirement in turn demanded that the commission

hold hearings in every locale and gather ethnographic evidence from

diverse members of each Fijian community as to who was the rightful

chief, what was the nature of the landowning group, and what were its

lands. The second requirement for title was that the purchaser had paid

a fair price for the land. This requirement allowed the LCC to deny vast

numbers of claims out of hand based on its own concept of fairness. To

these, the LCC added a third requirement: "the buyer, or his successor,

to have occupied the land, whether by living on it, or by establishing a

plantation, or both."27 This final requirement most explicitly addressed

questions of equity-the commission would compromise its theory of

culture and allow the claim only where equitable factors, such as effi-

cient uses of the land or long-standing occupation, seemed to demand

it.28 Where claims were rejected, claimants could appeal to the Execu-

tive Council, and the governor could award title on one final open-

ended basis, that of an "ex gratia" award. Where the Land Claims Com-

mission or the governor allowed a claim, a certificate of title was issued

to the landholder.

The indeterminacy of these criteria has been critiqued from all sides

THE EMPTY PLACE

49

for both the bias entailed in judgments about fair price or who had the

right to dispose of land, and the administrative nightmare this process set

into play. For the present purposes, I want to note how the cultural state

deploys a particular type of administrative process: It is a loose, hands-

on, managerial, pragmatic process emphasizing case-by-case discre-

tionary decision making. The state's own criteria of decision are under-

stood to be compromised from the start; indeed, they are set up so that

they cannot help but be compromised. In this case, the balancing of the

legal requirements of the deed of cession against the cultural truths of

Fijian land tenure proceeded according to a second set of more substan-

tive policy criteria. Here again, however, the state faces a conflict between

its twin concerns: on the one hand, the preservation of cultural essences,

and on the other hand, the demands of capital and economic develop-

ment. To merit title, for example, land had to be productively used. But

on the other hand, what the government regarded as the less palatable

sides of capitalism such as speculation in land were to be reigned in

under the LCC's criteria so that speculators who simply owned large

tracts of land for future sale would have their claims disallowed.

At the conclusion of the LCC's work, land policy was bifurcated into

two regimes and land into two kinds of spaces-a space of capitalist

land ownership and a regime of "native land" on which native peoples

were expected to dwell. Unlike "freehold land," which was owned

individually and could be bought or sold at will, native land was sur-

veyed and registered as communally owned by the mataqali, or clan,

and rendered inalienable. As the colonial government's director of

lands later put it, the government

adopted an attitude of complete laissez-faire to land in freehold

ownership and a policy of rigid protectionism towards land in

the ownership and occupation of the native Fijians. The former

was forced upon it by the circumstances of economic reality and

the latter it voluntarily adopted as a self-imposed obligation.29

Crucial to the governmentality of the cultural state was the delin-

eation of a limited sphere for law so that it would not intrude in the

sphere of culture. As Arthur Gordon wrote to his superiors in London,

One of the most important questions which I have had to con-

sider since my arrival here, is the degree and measure in which

50

THE PLACE OF LAW

native laws and customs should be preserved in force, and how

far English law should be at once generally introduced.... What

then is to be done?... Is the whole body of English Law to be

imposed on all the population of the Colony alike, on the hun-

dred thousand colored subjects of her Majesty equally with the

white residents?30

Of particular concern to Gordon was the mix of fact and law entailed in

the common-law system-and the ensuing discretion it vested in

judges to make judgments about matters of value of the kind Gordon

reserved to the administrators of the cultural state:

Is the English law to be nominally imposed but with a power

vested in the Courts of modifying it in each case, according to

circumstances or is there to be a distinct code of laws applicable

to natives alone?

No sane man could, I think, seriously maintain the first propo-

sition.... Not only would the imposition in all respects of English

Law be inequitable; but it would, I am convinced, be altogether

impracticable to enforce obedience to it, and any serious attempt

to do so would, I have not the smallest doubt, cause an insurrec-

tion the limits of which it would be difficult to define....

Now, if there is one thing about the unknown and much

dreaded law of the foreigners which the Fijians fear more than

another, it is the uncertainty of its operation, of which they have

already seen some striking instances, and nothing can be con-

ceived more calculated to increase that uncertainty to the highest

point, than a system of law to be administered, not as it stands

written, or as it would be applied in the case of whites, but with

such deviations as in each case the Court thinks just and expedi-

ent according to its own appreciation of native usages; and the

degree of respect with which it may be disposed to regard

them.31

Gordon explicitly tied his disdain for the common law to problems of

culture: the danger was that the law, by hemorrhaging authority from

the chiefs, "would degrade the chiefs and render them idle." His solu-

tion was a "recognized Native Code in addition to the General Law and

subsidiary to it."32

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51

Gordon enclosed with his dispatch the comments of two important

figures in the formulation of native policy in Fiji-Walter Carew, the

commissioner of native affairs, and the Reverend Langham, of the

Methodist mission in Fiji. Both strongly supported the view that the

flexibilities of the common law were inappropriate to the native race.

But while both framed their arguments in terms of questions of proce-

dure and form, the examples they deployed revealed concern about a

particular problem-the regulation of adultery and other sanctioned

sexual practices. Carew pointed out that English law allowed only for

monetary damages for adultery, while the natives demanded out-and-

out punishment of adulterers:

A native's wife is his cook, his gardener, his horse and cart, his

water-carrier, his fish-provider, and the bearer of children to

him....

With reference to the necessity of punishment of fornication,

it should be understood that every native woman has an owner

... if another seduces her, the owner of the woman has been

robbed.... Before the introduction of white men's laws,

breaches of chastity were most rare. What is the case now, say

at Bau, where religion has had a footing for more than thirty

years? There chastity is almost unknown among the single

young women, girls of high family prostituting themselves on

their arrival in Levuka with common natives, half-castes, and

petty shopkeepers; the parents say, if a girl steps on a white

man's verandah, she is undone, yet are powerless at present to

prevent it.33

Langham, likewise, began by emphasizing the cultural specificity of

the form of the common law:

British laws as administered among English people are fre-

quently regarded as most incomprehensible and vexatious pro-

ceedings. But to a Fijian they would simply be intolerable. They

would be so difficult to understand, so expensive to set in

motion, so tedious in their operations, so uncertain in their

results, as they would also be oppressive and vexatious in their

restraints and impositions, as to force the conviction that they

are utterly unsuitable and impracticable.34

52

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Yet his argument quickly turned from procedure to matters of sub-

stance:

[Fijian law should be maintained for] offenses against chastity,

adultery, seduction, fornication, etc., the punishment of which

should be certain, prompt, easy of execution, and in proportion

to the gravity of these offences. This is impossible if British law

only be applied in such cases.35

Gordon's antipathy toward the effects of English law in the colony

evidently took him so far as to doubt that any sphere should be carved

out for a European legal regime. As he wrote to Lord Carnarvon about

the ordinance establishing native magistrates and providing for the

adjudication of cases within the village by the chiefs,36

I do not myself see why, if [white] men choose to settle in so

wild, uncivilized and exceptional a district, they should not be

subject to an exceptional jurisdiction and I have only inserted the

clause in question [compelling attendance at white tribunals in

cases involving whites] in compliance with the urgent request of

the legal members of the board.37

It ultimately was settled that even where the English courts would have

jurisdiction, they could admit evidence of native custom "not repug-

nant to justice and morality, especially in regards to marriages, wills,

the title to land, the transfer of property inter vivos and the devolution

of intestacy," and the courts were "to deal with such cases in accor-

dance with natural equity and good conscience."38

In the view of administrators in Fiji, therefore, the common law was

inappropriate to the cultural state they sought to create. Their position

was a complicated one. On the one hand, they justified their rejection of

the common law in a need for clear, firm rules. In his dispatches, Gor-

don made many of the points today's legal formalists make concerning

the indeterminacy of judge-made law and the dangers of judicial dis-

cretion. Yet if Gordon articulated this formalist position to his superi-

ors, it was only to preserve a sphere of extreme antiformalism for him-

self. Having effectively eliminated the judge from the sphere of "native

law," Gordon was able to pursue his "native policy" unfettered. Here,

as for example in the adjudication of the boundary between native and

THE EMPTY PLACE

53

nonnative spheres, the cultural state turned to case-by-case, pragmatic

administration. It freely combined Fijian ritual and economic science

into an "on balance" adjudication of the equities of each particular case.

The cultural state, in other words, was both formalist and antiformalist

in turn, and its particular genre of governmentality depended upon the

careful orchestration of both at the level of rhetoric and practice.

The colonial government's antipathy toward the common law

would seem to vindicate the argument that the debate about rules ver-

sus standards is a debate about matters of substance39-about chastity,

adultery, seduction, fornication, in this case. I want only to highlight

the place of the culture concept in defining the nature of "substance"

here. Culture became the vehicle for the introduction of matters of sub-

stance into a debate about legal form. It is the ethnographic valence of

the discussion-the adoption by Gordon and his colleagues of the role

of explaining Fijian culture to their faraway superiors in London-that

justifies the explicit intrusion into the debate of questions such as the

state's attitude toward adultery. This problem of managing cultural

difference, likewise, makes of a Methodist missionary a kind of gov-

ernment official, a local expert in Fijian culture on whom the govern-

ment might call. It is the cultural difference of the natives, moreover,

that ultimately justifies one regime of governmentality over the other.

Culture can be made to serve an argument for either rules or for stan-

dards, here, and therefore it does not actually end the debate. Yet this

does not diminish its rhetorical power as a stopping point. It feels like

the end of the story, when introduced by Gordon as justification for for-

mal law.

Knowing the Half-Castes

At the time of cession, there were approximately four hundred so-

called half-castes-children of unions between foreigners and Fijians

and their descendents-in Fiji.40 The children of these first-generation

mixed marriages for the most part married other part-European chil-

dren, the sons and daughters of their fathers' partners, and have con-

tinued to do so in large numbers to this day.4' From the early years of

colonial administration, government officials took a contemptuous

view of people of mixed race. Half-castes were seen as mentally dull,

devious, untrustworthy, lazy, and lacking in all of the chiefly qualities

that administrators admired in the Fijian population.

54

THE PLACE OF LAW

One of the ostensible sources of government antipathy toward half-

castes was fear of outside intrusion into Fijian custom. Half-castes were

the products of Fijian contact with outsiders, and it was thought that

their interaction with Fijians only weakened the hold of custom.

Administrators displayed great anxiety about married Fijian women

running away from their husbands to live with part-European men, for

example, and even considered suggesting to the Rokos that Fijians use

physical force to take back their women in such cases.42

The government's assumption, that where half-castes came into con-

tact with Fijians the result would be the corruption of Fijian ways, often

found itself challenged by interactions that both Fijians and half-castes

described as vaka viti (according to Fijian custom). Where this occurred,

officials usually reacted with suspicion and incredulity. For example,

the Land Claims Commission routinely recommended the disallowance

of grants of land made by Fijians to half-castes where money was not

exchanged, on grounds that these were "merely vaka viti" transactions

and not bona fide purchases. Consider, for example, the case of Jimmy

Dyer, "half-caste, son of James S. Dyer," who gave evidence to the com-

mission concerning his father's land at Rewa. Dyer told the commission

that his father was given drawe (tribute of uncooked food) each year as

evidence of his status among Fijians. Commissioner Walter Carew

reported to the governor that this simply could not be true:

My entire impression is, that all that portion of this witness' evi-

dence is utterly unreliable. Dyer had lived many years with

these natives, and lived as a native himself, including polygamy.

He was their "white man"; their agent for the transaction of busi-

ness with foreigners; they allowed him, as one of themselves, to

plant where he pleased, and they fed him. And yet it is pre-

tended by this witness that the yams were given as "drawe" to

his father by the people of Toga.

I may here state that, to say that such or such a chief is

"draweti," or receives "drawe" is to place him in the foremost

rank of the highest class of chiefs in the country, such as the

Vunivalu of Bau, Tui Cakau, or Roko Tui Dreketi.

It is altogether beyond belief, and impossible, that a native

tribe would "draweta" a foreigner, and above all, a person of low

origin and standing amongst his own colour, as it must have

been patent, that to such a quick-witted and intelligent race, the

man Dyer was.43

THE EMPTY PLACE

55

For the government, illegitimacy-cultural, personal, legal-became

the defining parameter of the half-caste and also the question through

which most aspects of government interaction with half-castes were

framed. For example, when the children of American and German set-

tlers petitioned their governments for assistance with regard to the

rejection of their claims to land by the Land Claims Commission, the

governor, and following him, the British Government, held that

because under principles of private international law an illegitimate

child takes the nationality of his mother, these claimants could not

appeal to foreign governments unless they could prove that their par-

ents had had a Christian wedding:

As regards half-caste claimants I took the position with Mr. Scid-

more [the U.S. agent sent to Fiji to investigate the claims] at my

first interview that they were (with one exception known to me),

the offspring of polygamous marriages, or in other words the

offspring of native concubines taken, or bought, at pleasure; and

that until the contrary was shewn I must contend they followed

the nationality of the mother and were therefore British Subjects.

No attempt was made to show me that a valid marriage had

taken place in any one case.44

One of the problems the cultural state encountered, however, was

who should count as half-caste for the purposes of law and administra-

tion. In a case involving the prosecution of a half-caste for adultery

with a Fijian woman, for example, the crucial issue was the "legiti-

macy" of the half-caste man. If he was illegitimate (the child of parents

who did not have a Christian wedding), then he was a "native" and

could be prosecuted for adultery under native regulations. If he was

legitimate, however, he was exempt from those laws.45 In 1893, Chief

Justice H. S. Berkeley ruled that, following English common law, an

illegitimate child takes the citizenship of its mother. Therefore, Berke-

ley wrote, all "illegitimate offspring of aboriginal native women are

aboriginal natives within the meaning of the interpretation ordinance.

Let them be so treated till the question has been decided to the contrary

by a Court of Law after hearing argument."46 Given that very few half-

caste marriages met this legal test of legitimacy, this meant in effect that

most half-castes were prima facie to be considered Fijian. This formula-

tion quickly proved unsatisfactory from an administrative point of

view, as the question of whether half-castes could be tried in Native

56

THE PLACE OF LAW

Court or had to be tried in High Court always turned on whether a per-

son could prove that his parents or ancestors had been married in a

church and had properly registered their wedding. Following a series

of absurdly formalistic legal results and a protest from the head of

police, Berkeley three years later proposed the ultimate pragmatist and

culturalist test:

Prima facie the illegitimate child of a Fijian woman is a Fijian;

but the presumption may be rebutted. If the child is nursed and

brought up in a Fijian community it is a Fijian and subject to the

Native Regulations. If brought up apart from such community it

probably is not.... It is very difficult to lay down a general rule

on the subject. I think each case must be dealt with, as it arises,

on the facts.47

The case of the Fijian half-castes illustrates how the benign pastoral-

ism of the cultural state can in fact be a source of oppression. The par-

ticular idea of culture and cultural purity entertained by the colonial

government led it to treat those in the interstices of culture as danger-

ous and distrustful persons without entitlements. Further, this concep-

tion was difficult to challenge because the cultural state had implicitly

but finally assumed for itself the task of determining culture, of defin-

ing it, and of assigning persons to it.

One view of the harm perpetuated by the cultural state would focus

on the particular concept of culture it deploys. In this "antiessentialist"

view, what was wrong with Arthur Gordon's policies was that they

were founded on a simplistic notion of Fijian culture as a timeless,

bounded entity. Thinking of Fijianness as an essential identity, the

argument goes, led Gordon to imagine any kind of contact with others

as dangerous and degrading.48 This view might even celebrate cultural

hybridity, as exemplified by the half-caste in this case, as the perfor-

mance of a kind of antihegemonic cultural politics.49

I believe the case of Fiji demands a different view. As we have seen,

the concept of culture was borrowed from popular anthropological the-

ories of the day, but it spoke powerfully to the colonial government's

idea of itself as balancing means and ends, capitalist economic devel-

opment and welfare. The "essentialism" of culture was not happen-

stance; on the contrary, it made it possible spatially to arrange the dif-

fering interests of economy and welfare into a physical, bounded

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57

spaces of Fijian culture and pure economy. It was the pragmatic vision

of government as a careful, well-intentioned but realistic balancing of

means and ends, in other words, that made the holistic and simplistic

culture concept so useful in the first place. Culture emerged from a

compromise between welfare and economy, between local conditions

and global markets. It also set in motion its own compromises: once the

colonial government had its theory of Fijian land tenure, as we saw, it

was bound to violate that theory in the name of reasonable economic

development. This pragmatic mode of government in turn required a

rejection of law in favor of policy, where the latter could be either rule-

like or standardlike but was undertaken in light of the totality of the

circumstances.

Management of this kind is fundamentally about knowing things,

and the Fiji case suggests clearly that fact-finding commissions, anthro-

pological theories, ritual meetings with chiefs, and a host of knowl-

edge-making practices were central to the administration of govern-

ment.50 Nothing was beyond the interest or sphere of relevance of the

colonial administrator. Gordon entreated his underlings to take notes

about everything they saw and did, and he encouraged the chiefs and

native officials to report to the government anything and everything

that might occur within their territory.5'

The pragmatism of the colonial government, in other words, was

also a particular regime of knowing with its own epistemological foun-

dations. From this point of view, the harm suffered by Fiji's half-castes

was not due to their neglect per se, but rather to the government's over-

attention to culture at large. It was the excess of knowledge, the insa-

tiable appetite for more factors and elements that might be incorpo-

rated into the pragmatic calculus, that fueled the theories of culture,

and the politics of the cultural state. The politics of the cultural state, in

other words, were inseparable from the smaller cultural state-the dis-

cursive state in which more knowledge was always better than less, in

which ideas about culture as integrated wholes suggested that ever

more factors could be integrated into the understanding.

The Empty Place

Unlike the regulation of native land, which sought to balance the pro-

tection of the native and his culture against the necessities of capital-

ism, the legal regime governing freehold land was aimed at encourag-

58

THE PLACE OF LAW

ing economic development through the efficient allocation of capital.52

If the early administrators saw Fijian culture as distinctive and hence

demanding tailor-made policy solutions, the administration of the

economy was a far more generic policy problem. The administration of

freehold land, therefore, was a matter of opting for the most advanced

and technical of land registration systems available in the empire.

Fiji borrowed the "Torrens system" of title registration from Aus-

tralia, where it was first implemented in 1857, and also imported much

of its case law.53 The goals of the Torrens system are purely instrumen-

tal: It aims to address the special problems associated with treating land

as a commodity-in the words, of Fiji's former lands commissioner, "it

seeks to make transactions in land as straightforward and uncompli-

cated.., as dealing in tins of sardines at a market stall."54 The crucial dis-

tinction between a plot of land and a can of sardines, for these purposes,

is that in the case of sardines, possession is a fairly reliable indicator of

ownership. In contrast, with land, possession is no guarantee that the

seller has good title. The system therefore contributes to the value of

land by making it easier to alienate land free of concerns about the valid-

ity of title since the register contains all relevant information about

adverse claims such as mortgages or encumbrances.55 Although consid-

erable expense is involved in establishing an Torrens system, once set

up, this system is deemed easier to administer, enables efficient taxation

of land, and gives the state a great deal of accurate information.56

The Torrens system represented a significant departure from the

regime of private investigation of title that had existed in England up to

that time, in which there was no centralized record of land owner-

ship,57 or the land-recording systems in use in much of the United

States, in which deeds were recorded and indexed under the names of

the transacting parties,58 in which, as Robert Torrens, the Torrens sys-

tem's architect once put it, "title by deed can never be demonstrated as

an ascertained face: it can only be presented as an inference more or less

deducible from the documentary evidence accessible at the time

being."59 The Torrens system turns away from people-as-owners in

favor of a focus on land itself. In this system, "land is initially placed on

the register as a unit of property, transactions are registered with refer-

ence to the land itself and not merely as instruments executed by the

owner, and registration of transactions becomes essential to their valid-

ity and serves as a warranty of title and a bar to adverse claims."60 Land

is imagined in two dimensions, with each unit physically and legally

separate from the next.61 The goal is

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59

transference of primary attention from the mobile, mortal, mis-

takable persons temporarily possessing or claiming rights over

patches of the earth's surface, to the immovable, durable, pre-

cisely definable units of land affected and the adoption of these

as the basis of record instead.62

This system fixes a moment in time at which all begins-the moment

at which the first Crown title is issued. Unlike the American system,

which emphasizes the historicity of a chain of ownership, in the Tor-

rens system, the document at the registry is the thing. The registrar of

title examines instruments presented for registration and can refuse

any application that appears irregular.63 Thereafter, the state stands by

the document, and its validity can only be contested for fraud, adverse

possession, and a number of other very limited reasons.64 It is often

asserted that the Torrens system functions as a "'curtain' between the

present and the past"65 since historical searches of title records become

superfluous.66

This focus on land in turn asks of the state and its administrators a

very different kind of cognition. As Fiji's latter-day director of lands

described it, its focus was on the accurate spatialization of claims:

the system is based on the concept that every parcel of land must

be properly identified on the ground and accurately surveyed so

that the survey plan is a mirror reflection of the land itself. Every

plan has to be carefully recorded in a register of plans, and every

transaction involving the land should also be recorded in a land

register and referenced to the plan register.67

Indeed, this surveyor's account of the meticulous attention the gov-

ernment devoted to surveying freehold land in the early days of the

colony-the team of surveyors sent from London, the instruments, the

days of laborious work under difficult conditions-is particularly strik-

ing when juxtaposed against the government's lack of interest in the

half-castes who owned and lived upon many of these lands. In this spa-

tialization, the title presents a true, that is complete, nonmetaphorical

representation: commentators often describe title in the Torrens system

as a "mirror" of the land.68

The Torrens system is an instrumentalist, mechanical administration

of justice. The "European law" that would govern freehold land in Fiji

turned out to be a categorical rejection of the case-by-case administra-

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tion of justice that Gordon so despised in the English common-law tra-

dition. The rules governing title transfer represented a categorical bar

to equity, as embodied in doctrines of constructive notice, for exam-

ple.69 In most Torrens system jurisdictions, the efficient functioning of

the system was taken to be dependent on the vigilance of the registrar

of title to assure that false or mistaken titles were not registered in the

first place.70 The very mechanical, rule-based nature of the system, in

other words, depended on a certain degree of context-specific adminis-

trative decision-making on the part of the registrar to ensure the sub-

stantive validity of the titles to be registered.7'

In Fiji, however, this pragmatic compromise was emphatically

rejected. In a 1904 case, the Land Claims Commission had granted

title to a piece of land on which an entire Part-European village was

located to an expatriate speculator under circumstances that sug-

gested something close to fraud. The Supreme Court of Fiji (in the

only case involving Part-European land to reach the court) hinted

strongly that something was amiss in the Land Claims Commission's

decision. Nevertheless, it insisted the decisions of the LCC could not

be reopened.72 Even where title was probably incorrectly issued, as

long as the form of the issue conformed to the prescribed formalities,

the registrar could not interfere.73 Likewise, in a case involving the

transfer of land by a trustee, an issue arose as to whether the trustee

was acting in his fiduciary capacity in alienating the land. The regis-

trar of titles had asked for either an order of the court or the consent

of the beneficiary to this effect before registering the transfer. The

court did not agree that this was necessary and held that "if the con-

veyance or other transfer is presented to the Registrar in proper form

and duly attested, the Registrar must accept and register the instru-

ment and the new title thereby created."74 The purposeful remote-

ness of these decisions from the facts and the equities of the cases at

hand is particularly remarkable when set against the extreme prag-

matism and deep desire for knowledge about factual specifics and

equities that, as we have seen, characterized the governmentality of

the cultural state. The Torrens system, in other words, epitomizes the

"other side" of the cultural state. It is an enabling device, something

that makes capitalism, on the one hand, and efficient government, on

the other, possible. It is about rule-bound efficiency, in its purest

form.

As good legal modernists, we are suspicious of claims that anything

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6i

might be "merely a formality." We are doubtful of the state's claim to

mechanical neutrality-we do not believe in such a thing as a rule that

does not signify.75 In an era in which form follows function, we under-

stand how procedures and institutions create the very parameters of the

imaginable in the guise of efficiency of administration, or through the

implementation of political compromises such as the carving out of a

space for freehold or native land. Even if one were to accept the notion

of a contentless rule, moreover, we understand that it is often impossi-

ble to tell whether a particular rule is a contentless formality established

to aid the parties in private ordering, or a rule designed to deter state-

sanctioned conduct.76 The state may also be passing its own obligations

onto private actors through such devices by forcing them to bear the

cost of producing and maintaining accurate survey maps, for example.

The mainstream academic position therefore is that formalities such as

the Torrens system are better understood as sites of contested cultural or

political meanings. Gregory Alexander, for example, tells us that nine-

teenth-century American debates surrounding alterations to land trans-

fer procedures "metaphorically expressed [a] dual sense of regret for

loss of the past and optimism about the effects of present and future

change."77 What was at stake in these seemingly technical debates,

Alexander emphasizes, was not just technicalities but a deeper set of

ambivalences about the onslaught of the market and the sacrifice of sta-

bility and also the elimination of social hierarchy that would accompany

it. From this perspective, it might be possible to read into the adminis-

trative apparatus of land title registration a cultural politics.

What interests me, however, is how Alexander's point about the

conflicting values embodied in property would seem to have been

missed by the designers of Fiji's land titles registration system, who, as

we have seen, were so keenly sensitive to the point in a multitude of

other contexts. Legal scholars tell us again and again that land registra-

tion is just a means, not an end. As one leading commentator on land

registrations systems has put it,

Land is the source of all material wealth.... Land registration

must, however, be kept in perspective. It is a device which may

be essential to sound land administration but it is merely part of

the machinery of government. It is not some sort of magical spe-

cific which will automatically produce good land use and devel-

opment; nor is it a system of land holding; it is not even a kind of

62

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land reform, though it may be a valuable administrative aid to

land reform. In short, land registration is only a means to an end.

It is not an end in itself. Much time, money, and effort can be

wasted if that elementary truth be forgotten.78

Unlike land, which is essential in every sense of the term, then, land

registration is just procedure, in this view. It is simply about surfaces,

not about meanings. In the remainder of this essay I want to hold back

the critiques I have just described for a moment in order to explore this

claim on its own terms.

Scholars traditionally analyze the Torrens system as two separate

stages-the stage of its establishment and the stage of its operation.79

The establishment of the system is without a doubt a mere extension of

the existing devices and policies of the cultural state. Yet once it is up

and running, the system is no longer managerial in this sense.80s The

dimension of the Torrens procedures that is salient is its "routinizing

value."8 Its modality is not bureaucracy, but machine. Although the

machine is the outcome of pragmatist politics, then, it itself is no longer

pragmatic. What intrigues me here is how something born out of the

very pragmatist, instrumentalist policies I have described in this essay

might escape them not by stepping outside their logic, but by taking the

ideal of instrumentality to its own ultimate conclusion. With the Tor-

rens system machine, the question of "simplification and guarantee of

title for what purpose?" becomes superfluous. The instrument becomes

an end in itself.

In Fiji, this transformation of the bureaucratic into the mechanical

took a concrete, organizational form: the moving of the land titles reg-

istration system into the Department of Lands and Surveys. In most

British colonies, questions of land tenure were considered to be closely

tied to matters of governance and vital to the fostering of the kind of

polity the colonial government sought to create. Land tenure therefore

remained within the jurisdiction of the governor or administrator.

"Survey, on the other hand, was regarded as the technical process

involved in the general topographical surveying and mapping of a

country, which had no social significance and was in no way concerned

with the recording of the proprietary units into which the country was

divided."82 In 1880, however, in response to practical difficulties

encountered with organizing the surveying and titling of land, the

administration of land tenure in freehold in Fiji was allocated to a new

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63

Department of Lands and Surveys, wherein the commissioner of lands

would also serve as registrar of titles.83 This simple organizational

change subsumed land policy within the technical work of creating

surveys and hence replaced law with technoscience, the mathematics

of measurement of the earth's surface, as the register for defining prop-

erty. With the replacement of the lawyer and judge with the surveyor,

matters of land were devalued from questions of high political valence,

to be handled by people of high prestige, to questions of a merely tech-

nical nature to be handled by junior functionaries. Henceforth, what

was foregrounded was the mechanical nature of the system.

We are clearly quite far from the pragmatism of the cultural state,

then, and its benevolent replacement of legal rules with gentle case-by-

case administration. The critiques leveled at Governor Arthur Gor-

don's culturalist project-the questioning of the notion of culture that

guided his administration,84 or the inquiry into the way such Fou-

cauldian pastoralism constituted its subjects85-would begin to suggest

the ways in which the mundane, even trivial spaces devoid of purpose-

ful administration such as the Land Titles Office might offer a kind of

respite from the overdetermined significations of the cultural state.

My concern here is with the implications of this mechanical govern-

mentality for those who did not benefit from the state's culturalist pas-

toral care. Here, the Land Titles Office, with its regime of government

focused only on the spatial arrangement of titles, the "mirror" of the

land and the "curtain" between the present and the past, transformed

the "half-caste" into an entry in a title document, a placeholder for a

particular spatial unit.86 This ironically shielded Part-Europeans, who

largely lived on these small plots of land, from the reaches of the state's

cultural knowledge. Given the state's antipathy toward half-castes, it is

quite remarkable that the lands they received a century ago remain

largely in their possession today. Had the legal formalities surrounding

title to land been rendered more flexible, and hence contestable, the

state would have been called in to make further cultural judgments (is

it usual practice among half-castes for a man to leave his land to his

sons rather than to his wife?). Given the views of the colonial adminis-

tration as to the moral quality of half-castes and the degeneration of

culture they represented, it is not difficult to imagine the shape such

judgments would have taken.

Some of the best pieces of evidence for the significance of the empty

place this machine created for Part-Europeans are the wills they have

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produced over the last century. As noted earlier, because of their status

as illegitimates, Part-Europeans could not count on the rules of intes-

tacy, and hence the writing of a will concerning the disposition of one's

land has become a universal practice for them. At death, these wills are

submitted for probate and then forwarded to the registrar of lands so

that the new owner of the land may be recorded in the registry. As we

have seen, the case law made it clear that the registrar was to inquire

only into matters of form; as long as the formal requirements were met,

the content of the documents was not within his jurisdiction. As a

result, Part-European wills have become rich sites for statements about

practices of family, ownership, and even philosophy and morality that

openly contradict the ambitions and values of the cultural state. Wills

often refer to the allocation of property as between multiple wives, for

example, despite the criminalization of polygamy in Fiji. Likewise,

wills often repeat that since the founding of the clan it has been a prin-

cipal tenet that land is never to be sold outside the family, in contra-

vention of the very idea of alienable land and ease of transfer that the

Torrens system aims to facilitate.

My point is that where Part-European sociality was cast as a matter

of ownership of freehold land, and where freehold land in turn was

cast as a matter of simple mechanical title transfer, this sociality

achieved a kind of invisibility that allowed it ironically to survive in the

very interstices of a set of government practices bent on its illegitimacy.

The land titles documents of the Torrens system enshrined a set of spa-

tial entities-pieces of land. These spatial entities were fictions and

were understood to be fictions by the architects of the system. But they

were also placeholders, symbols that blocked the cultural state from

inquiring further about what lay behind them. By taking on the form of

possessive individualism, in other words, Part-Europeans were able to

live in ways far outside the matrix of individuals and collectivities envi-

sioned by the cultural state.

For Fiji's half-castes, therefore, the possibilities entailed in the slip-

page of formalities as means into formalities as ends created the radical

possibility of an empty place inside the very matrix of the cultural state.

For Part-Europeans, land could not be merely a means to an end

because as people without culture in a cultural state they had no ends,

no place, no meaning to be represented. But they had means, and these

means-the legal formalities-could be taken literally so that they

transformed themselves into ends of their own. In so doing, they cor-

THE EMPTY PLACE

65

doned off an empty, mundane place where the state would not signify

and also failed to see any form of signification worthy of intrusion,

development or concern.

A Postcolonial Postscript

Upon independence, the land ordinance and its system of legal formal-

ities was replaced by a new Property Law Act87 that abolished many of

the formalities I have described. Henceforth, deeds required one wit-

ness but "no particular form of words." Likewise, seals, formal deliv-

ery, and so on would no longer be required (par. 4). Fiji also abolished

the formalities governing the form required of wills found in the Eng-

lish Wills Act of 1837 that had governed to that point.88 In the final days

of the colony a new ordinance governing inheritance in cases where

there was no will explicitly provided for illegitimate children to inherit

equally with legitimate children if the father had admitted paternity.89

The assumptions behind these reforms was a progressive, 1970S

worldview. They were built on the assumption that formalities have a

politics, and a meaning-that the state cannot help but signify. The hid-

den politics were taken to be repressive, restraining individuals'

desires and impairing their creativity by "channeling" their imagina-

tions into strictly regimented forms. The implication of this reform,

however, was to drag freehold land into the orbit of the cultural state,

as freehold land became just like any other dimension of social life

and hence open to cultural administration and cultural politics.

The effect as well as the cause was the overt politicization of land.

Where in the past the boundaries depicted in the title were of far lesser

interest than the divisions one could create within the boundaries, in

the postcoup era, Part-Europeans living on freehold land told of daily

cat-and-mouse games in which Fijians raided their lands or tore down

their fences and then ran back into the hills, leaving behind a message

about the contestability of the boundary line.

If the formalities had evaporated, so too had the land as genitor of

individuals. Those who had moved to the city now saw themselves as

individuals and members of groups, people who could accumulate

wealth and hence for whom productivity was a newfound problem. The

Whippys in Suva often expressed frustration with and estrangement

from their relatives in Kasavu, who, they said, were "wasting their

resources" and therefore were "much poorer than they should be."

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In this new world of individual and group politics surrounding

land, it should be no surprise that title has become a means to an end

in precisely the sense imagined by modernist legal theorists. In par-

ticular, at the time of my fieldwork, land had become the subject of a

protracted legal dispute. In 1994, clan members living in Suva and

overseas brought individual suits to have themselves declared the

owners of the 2,110-acre portion still held in common by the heirs of

Samuel Whippy. Their goal was to lay claim to this one remaining

block of undivided land in order to sell the virgin timber it contained

to a foreign logging company. Although the flurry of court affidavits,

pleadings, and submissions of evidence included many of the same

certificates of title considered above, these documents now had

become instruments, means of signifying (ownership) defined in

terms beyond the documents, rather than arbiters of their own referen-

tial truth.

NOTES

Acknowledgments: This paper is based on ethnographic and archival research in

Suva and Kasavu, Fiji, conducted from September 1994 to April 1996. I owe my

deepest thanks to the Whippy family, and to the many other Part-European

families who so generously took time to teach me about questions of family and

land. I thank the Cornell Law School, where this paper was written, and the

American Bar Foundation for research support and Margaret Werry and Claire

Korenblit for their research assistance. Versions of this paper were presented as

the Keck Lecture, Amherst College, March 2001, at the Workshop on Law and

Colonialism in the Pacific held at the School for American Research, Santa Fe,

New Mexico, March 2001, the Wenner-Gren Foundation International Sympo-

sium on the New Property, April 2001, and the Northwestern Law School Prop-

erty Workshop, May 2001, and I thank each of these groups for many helpful

suggestions. For comments and assistance of many kinds, I thank Gregory

Alexander, Rick Brooks, Paul Kahn, Richard Ford, Tom Merrill, Hiro Miyazaki,

Kunal Parker, Austin Sarat, and Henry Smith. This essay draws at points on a

companion essay as well as on material presented to the Constitutional Review

Commission of Fiji. See Annelise Riles, "Part-Europeans and Fijians: Some

Problems in the Conceptualization of a Relationship," in Fiji in Transition, ed.

Brij V. Lal and Tomasi R. Vakatora (Suva: University of the South Pacific, 1997);

Annelise Riles, "Law as Object," in Legal Legacies, Current Crises: Fiji and Hawaii,

ed. Donald Brenneis and Sally Merry (Santa Fe: School of American Research

Press, 2003).

1. Akhil Gupta and James Ferguson, "Culture, Power, Place: Ethnography

at the End of an Era," in Culture Power Place: Explorations in Critical Anthropol-

THE EMPTY PLACE

67

ogy, ed. Akhil Gupta and James Ferguson (Durham: Duke University Press,

1997), 6; Donald S. Moore, "Subaltern Struggles and the Politics of Place:

Remapping Resistance in Zimbabwe's Eastern Highlands," Cultural Anthropol-

ogy 13, no. 3 (1998): 344-81; James Duncan and David Ley, eds., Place/Cul-

ture/Representation (New York: Routledge, 1993).

2. Ian Baucom, ed., Out of Place: Englishness, Empire, and the Locations of

Identity (Princeton: Princeton University Press, 1999); Linda McDowell, Gender

Identity and Place: Understanding Feminist Geographies (Minneapolis: University

of Minnesota Press, 1999).

3. Peter Jackson and Jan Penrose, "Introduction: Placing 'Race' and

Nation," in Constructions of Race, Place, and Nation, ed. Peter Jackson and Jan

Penrose (Minneapolis: University of Minnesota Press, 1994); Alistair Bonnett,

"Constructions of 'Race,' Place, and Discipline: Geographies of 'Racial' Identity

and Racism," Ethnic and Racial Studies 19, no. 4 (1996): 864-83; David Delaney,

ed., Race, Place, and the Law, 1836-1948 (Austin: University of Texas Press, 1998);

Kevin Durrheim and John Dixon, "The Role of Place and Metaphor in Racial

Exclusion: South Africa's Beaches as Sites of Shifting Racialization," Ethnic and

Racial Studies 24, no. 3 (2001): 433-50.

4. Angelika Bammer, ed., Displacements: Cultural Identities in Question

(Bloomington: Indiana University Press, 1994); Gillian Bottomley, From Another

Place: Migration and the Politics of Culture (Cambridge: Cambridge University

Press, 1992).

5. Steve Pile, "Introduction: Opposition, Political Identities, and Spaces of

Resistance," and Donald Moore, "Remapping Resistance: 'Ground for Strug-

gle' and the Politics of Place," both in Geographies of Resistance, ed. Steve Pile

and Michael Keith (New York: Routledge, 1997); Jenny Robinson, "Spaces of

Democracy: Remapping the Apartheid City," Environment and Planning D: Soci-

ety and Space 16 (1998): 533-48.

6. Richard Ford, "The Boundaries of Race: Political Geography in Legal

Analysis," Don Mitchell, "The Annihilation of Space by Law: The Roots and

Implications of Anti-homeless Laws in the United States," and Gerald Frug, "A

Legal History of Cities," all in The Legal Geographies Reader: Law, Power, and

Space, ed. Nicholas Blomley, David Delaney, and Richard T. Ford (Oxford:

Blackwell, 200ool).

7. David Campbell, "Apartheid Cartography: The Political Anthropology

and Spatial Effects of International Diplomacy in Bosnia," Political Geography

18, no. 4 (1999): 395-435.

8. Nicholas Blomley, "Landscapes of Property," Law and Society Review 32,

no. 3 (1998): 567-612.

9. Carolyn L. Cartier, "The Dead, Place/Space, and Social Activism: Con-

structing the Nationscape in Historic Melaka," Environment and Planning D:

Society and Space 15 (1997): 555-86; David Sadler, "Culture, Place, and Space in

Contemporary Europe," European Urban and Regional Studies 6, no. 3 (1999):

195-96.

10. Henri Lefebvre, The Production of Space, trans. Donald Nicholson-Smith

(Oxford: Blackwell, 1991), 21.

11. Ibid., 23. The nostalgia at play here, and the simplicity of the accompa-

68

THE PLACE OF LAW

nying idea of rational abstraction that forms the other side of the dichotomy,

has lately come under a good deal of postmodern criticism. See, e.g., David

Harvey, "From Place to Space and Back Again: Reflections on the Condition of

Postmodernity," in Mapping the Futures: Local Cultures, Global Change, ed. Jon

Bird, Barry Curtis, Tim Putnam, George Robertson, and Lisa Tickner (New

York: Routledge, 1993).

12. See, e.g., E. C. Relph, Place and Placelessness (London: Pion, 1976); and

Irwin Altman and Ervin H. Zube, introduction to Public Places and Spaces, ed.

Irwin Altman and Ervin H. Zube (New York: Plenum Press, 1989).

13. See, e.g., Richard A. Etlin, "Space, Stone, and Spirit: The Meaning of

Place," in The Eight Technologies of Otherness, ed. Sue Golding (New York: Rout-

ledge, 1997); and Steven Feld and Keith H. Basso, introduction to Senses of Place,

ed. Steven Feld and Keith H. Basso (Santa Fe: School of American Research

Press, 1996).

14. See, e.g., Pierre Bourdieu, Outline of a Theory of Practice, trans. Richard

Nice (Cambridge: Cambridge University Press, 1977).

15. Gaston Bachelard, The Poetics of Space, trans. Maria Jolas (New York:

Orion Press, 1964), xxxi; cf. Kathleen Stewart, A Space on the Side of the Road: Cul-

tural Poetics in an "Other" America (Princeton: Princeton University Press, 1996).

16. In framing land as an "empty place," I am working against the title of

James Weiner's artful study of Foi poetics. See James F. Weiner, The Empty

Place: Poetry, Space, and Being among the Foi of Papua New Guinea (Bloomington:

Indiana University Press, 1991). If by poetics one intends a rigid and careful

attention to matters of form, then one might say that the empty place framed by

bureaucratic technicalities and legal formalities I will describe is as poetic as

that of Foi myth as elucidated by Weiner. However, to the extent that for

Weiner poetics must imply a notion of metaphor and hence of meaning, the

empty place I invoke is radically different. The analysis I present here would

suggest in fact that the metaphorical poetics of the kind Weiner describes-the

preoccupation with the alternative concealment and elucidation of meaning,

the creative deployment of memory in the service of making space into place-

is part of the same matrix of pragmatic ideas that alternatively rationalize for-

malities and tear them down again.

17. Peter France, The Charter of the Land: Custom and Colonization in Fiji

(Oxford: Oxford University Press, 1969), 124.

18. Nicholas Thomas, Entangled Objects: Exchange, Material Culture, and Colo-

nialism in the Pacific (Cambridge: Harvard University Press, 1991); and Martha

Kaplan, Neither Cargo nor Cult: Ritual Politics and the Colonial Imagination in Fiji

(Durham: Duke University Press, 1995).

19. Half-castes was the universal appellation for those who were neither full

Fijian, European, nor Indian until 1936, when the term was officially replaced

with "Persons of European and Native Descent" (File F114/1, National

Archives of Fiji) (after considering Anglo-Polynesians, Anglo-Fijians, Euro-Poly-

nesians, and later Euronesians). In the 1940s, this was again replaced by Part-

Europeans. In recent years, Part-Europeans have reappropriated the term half-

caste to ironic and enabling effects similar to the American gay community's

THE EMPTY PLACE

69

reappropriation of the term queer. In this essay, I use Part-European and half-

caste interchangeably.

20. Annelise Riles, "Division within the Boundaries," Journal of the Royal

Anthropological Institute, n.s. 4, no. 3 (1998): 409-24.

21. Bruce Knapman, Fiji's Economic History, 1874-1939: Studies of Capitalist

Colonial Development (Canberra: National Centre for Development Studies,

Research School of Pacific Studies, Australian National University, 1987).

22. John D. Kelly, A Politics of Virtue: Hinduism, Sexuality, and Countercolonial

Discourse in Fiji (Chicago: University of Chicago Press, 1991).

23. John D. Kelly, "Fear of Culture: British Regulation of Indian Marriage in

Post-indenture Fiji," Ethnohistory 36, no. 4 (1989): 372-91.

24. Gerald R. Ward, "Land Use and Land Alienation in Fiji to 1885," Journal

of Pacific History 4 (1969): 3.

25. France, Charter of the Land, 118.

26. Peter France quotes Gordon's private letter to the permanent undersec-

retary at the Colonial Office:

I cannot too soon or too strongly impress upon you that the adoption of

the course you now seem inclined to follow would be fatal alike to the

settlers and the natives. Unless you find some means of overcoming the

scruples of the gentlemen of the long robe, and substantially adhering to

the original plan, the colony must go to pieces. (Charter of the Land, 115)

Clause 4 read,

That the absolute proprietorship of all lands not shown to be now alien-

ated so as to have become the bona fide property of Europeans or some

other foreigners or not now in the actual use or occupation of some

Chief or tribe or not actually required for the probable future support

and maintenance of some Chief or tribe shall be and is hereby declared

to be vested in Her said Majesty her heirs and successors.

27. Ward, "Land Use and Land Alienation," 12.

28. "[T]he commission proceeded with its adjudicatory functions on the

basis of equity and empiricism and not on dogma or theory." D. T. Lloyd,

"Land Policy in Fiji," University of Cambridge Department of Land Economy

Occasional Paper No. 14 (1982), 143.

29. Ibid., 130.

30. Despatch from Gordon to Earl of Carnarvon, March 6, 1876, enclosing

minutes on question of native law by W. C. Carew, commissioner to the Kai

Colos, and by Rev. F. Langham, head of the Wesleyan Mission.

31. Ibid.

32. Ibid.

33. Ibid.

34. Ibid.

35. Ibid.

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36. Ordinance No. 16 of 1875, An Ordinance to Provide for the Judicial

Administration of Certain Districts of the Colony.

37. Gordon to Lord Carnarvon, November 20, 1875.

38. Dispatch from the secretary of state to the governor, March 22, 1875.

This was the standard treatment of customary law within the local courts

throughout the colonies. See M. B. Hooker, Legal Pluralism: An Introduction to

Colonial and Neoclassical Laws (Oxford: Clarendon Press, 1975).

39. Duncan Kennedy, "Legal Formality," Journal of Legal Studies 2 (1974):

351-

40. Ward, "Land Use and Land Alienation," 9.

41. A demographic study conducted in 1966 found that over 50 percent of

part-Europeans married other part-Europeans, while over 20 percent married

Europeans, and 25 percent married Fijians. See D. L. Kelly, "The Part-Europeans

of Fiji," M.S. Thesis, Dept. of Geography, University of Wellington, 1966, 5.

42. Colonial Secretary's Office (CSO) 274/1885; CSO 2883/1885; CSO

3389/1885, National Archives of Fiji. Rokos were Fijian officers who served as

heads of Fijian administrative provinces in the colonial government.

43. Land Claims Commission Report No. 400, Claim of Thomas P. K. Wil-

son for Lands in Rewa Province known as Toga Island, National Archives of

Fiji.

44. John B. Thurston, dispatch to Colonial Office re US Land Claims, Office

of Public Records, London (OPR), September 2, 1896.

45. CSO 2027/1902, Assault on Half Caste; Status of Half-Castes in Native

Courts, May 2, 1902, National Archives of Fiji.

46. Ruling of His Excellency the Administrator-the Hon. H.S. Berkeley-

Having Reference to the Status of a Portion of the Half Caste Population, May

13, 1893, CSO 1421/1893, National Archives of Fiji.

47. CSO 1032/1896, National Archives of Fiji.

48. Cf. Kaplan, Neither Cargo nor Cult; and Ann Stoler, "'Mixed Bloods' and

the Cultural Politics of European Identity in Colonial Southeast Asia," in The

Decolonization of Imagination: Culture, Knowledge, and Power, ed. Jan Nederveen

Pieterse and Bhikhu Parekh (London: Zed Books, 1995), 128-48.

49. Cf. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity

(New York: Routledge, 1990).

50. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan

Sheridan (London: Penguin, 1991).

51. Nicholas Thomas, "Sanitation and Seeing: The Creation of State Power

in Early Colonial Fiji," Comparative Studies in Society and History 32: (1990):

149-70.

52. One of the colonial government's first acts was the introduction of its

Real Property Ordinance in 1876 (An Ordinance to Provide for the Transfer of

Land by Registration of Titles [No. 6 of 1876], March 1, 1877). The importance

the government attached to the workings of this ordinance is evidenced by its

almost continual revision over the decades that followed: amendments were

introduced in 1877, 1883, 1892, 1895, 1913, 1923, and 1924, and the entire ordi-

nance was ultimately redrafted in 1933 (An Ordinance to Amend the Law of

THE EMPTY PLACE

71

Property and the Law Relating to the Transfer of Land and to the Registration

of Title to Land [No. 14 of 1933], July 25, 1933). The purpose of the ordinance

was to provide for all the trappings of a modern capitalist land system where

freehold land was concerned: provisions were made for transfer (pars. 41-48),

inheritance (pars. 25-31, 82-92), lease (pars. 40-57), mortgage (pars. 58-75), and

ejectment (pars. 103-7). The 1933 ordinance took the demands of capitalist land

use even further by clarifying the process for acquiring land by adverse pos-

session (pars. 82-97), limiting abolishing the rights of widows to dower (par.

116), specifying the rules for land ownership by corporations (pars. 147-48),

and providing for subdivision and roads (pars. 170-76).

53. In re West (1890), Fiji Law Report 1:227-29 (following the practice of the

Colony of Victoria concerning the registration of underleases). Fiji's Real Prop-

erty Ordinance of 1876 was modeled on the South Australian Real Property Act

of 1858 (Lloyd, "Land Policy in Fiji," 153).

54. Lloyd, "Land Policy in Fiji," 154.

55. Eustace J. Harvey, Land Law and Registration of Title: A Comparison of the

Old and New Methods of Transferring Land (London: Longmans, Green, 1910),

187.


57. In 1875, the Land Transfer Act purported to establish a national registry

system for title in England. However, registration was largely voluntary and

the act gave such broad discretion to the registrar that the utility of the system

was largely undermined (Harvey, Land Law, 199-243).

58. The American system, in contrast, is a recording system rather than a

registration system; conveyances are recorded at a central registry, and the

ensuing records are admissible in court as evidence of ownership. They do not

in themselves constitute or conclusively prove ownership, however, as they do

in the Torrens system. See Rufford G. Patton and Carroll G. Patton, Patton on

Titles (St. Paul: West, 1957), 17.

59. Robert Torrens, The South Australian System of Conveyancing by Registra-

tion of Title, quoted in Bernard O. Binns, Cadastral Surveys and Records of Rights

in Land (Rome: Food and Agriculture Organization of the United Nations,

1953).

60. C. K. Meek, Land Law and Custom in the Colonies (London: Oxford Uni-

versity Press, 1949), 275.


62. Ernest Dowson and V. L. O. Sheppard, Land Registration, 2d ed., HMSO

Colonial Research Publications No. 13 (London, 1956), 19.

63. John L. McCormack, "Torrens and Recording: Land Title Assurance in

the Computer Age," William Mitchell Law Review 18 (1992): 101.

64. Caldwell v. Mongston (1908), Fiji Law Report 2:62-76 (even where Crown

grant may have been issued in error, court will not go "behind" the grant); Ram

Kali v. John Percy Bayly and Santa and the Registrar of Titles (1954), Fiji Law Report

4:139.

65. McCormack, "Torrens and Recording," 80.

66. Fiji's ordinance asserts,

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The duplicate certificate of title issued by the Registrar upon a genuine

transfer shall be taken by all courts of law as conclusive evidence that

the person named therein as proprietor of the land is the absolute and

indefeasible owner thereof and the title of such proprietor shall not be

subject to challenge except on the ground of fraud or misrepresentation

... or on the ground of adverse possession.

67. D. T. Lloyd, "A Brief Historical Review of the Land Boundaries in Fiji,"

The Fiji Society: Transactions and Proceedings in Fiji Society 9 (1962): 3.

68. See Theodore B. F. Ruoff, An Englishman Looks at the Torrens System:

Being Some Provocative Essays on the Operation of the System after One Hundred

Years (Sydney: Law Book Company of Australia, 1957); and S. Rowton Simp-

son, Land Law and Registration (Cambridge: Cambridge University Press, 1976),

22.

69. James Edward Hogg, Registration of Title to Land throughout the Empire: A

Treatise on the Law Relating to Warranty of Title to Land by Registration and Trans-

actions with Registered Land in Australia, New Zealand, Canada, England, Ireland,

West Indies, Malaya, etc. (Toronto: Carswell, 1920), 97.

70. See, e.g., McCormack, "Torrens and Recording," 1o1-2; and Harvey,

Land Law, 194.

71. See Harvey, Land Law, 196-97.

72. Gaspard v. Colonial Sugar Refining Co. (1904), Fiji Law Report 3:58.

73. In contrast, judges in other British colonies confronted with such errors

treated them as constructive cases of fraud, and hence expanded the exception

to the conclusive presumption of the validity of title as registered in cases of

fraud to accommodate notions of equity. See Hogg, Registration of Title, 109,

129.

74. Re The Estate of H. Maughan (1929), Fiji Law Report 3:123; Re The Estate of

W. A. Scott (1929), Fiji Law Report 3:125.

75. The land regime is inherently political in this realist view; it does not just

record entitlements, it makes them. See Gregory S. Alexander, Commodity and

Propriety: Competing Visions of Property in American Legal Thought, 1776-1970

(Chicago: University of Chicago Press, 1997). The critique of twentieth-century

Progressive formalities, then, parallels the cultural studies project of rediscov-

ering in abstract "space" a notion of "dwelling" or "place": the one aims to

demonstrate the politics that lurk behind the seemingly objective formality,

while the other aims to recover culture.

76. Duncan Kennedy, "Form and Substance in Private Law Adjudication,"

Harvard Law Review 89 (1976): 1692.

77. Alexander, Commodity and Propriety, loo.

78. Simpson, Land Law and Registration, 3.

79. See, e.g., Dowson and Sheppard, Land Registration, 73.

80. In this, the Torrens system might be described in Gunther Teubner's

terms as an autopoetic system. See Gunther Teubner, Law as an Autopoetic Sys-

tem (Oxford: Clarendon Press, 1993).

THE EMPTY PLACE

73

81. Mann, "Formalities and Formalism," 1048.


83. Ibid., 147-49.

84. Thomas, Entangled Objects.

85. Kaplan, Neither Cargo nor Cult, 71.

86. As Bill Maurer has argued with respect to the property regime estab-

lished by the British in the British Virgin Islands, this system encouraged "peo-

ple to think and act as if individual attributes derived from descent are more

important in figuring identity than corporate group membership." Bill Maurer,

Recharting the Caribbean: Land, Law, and Citizenship in the British Virgin Islands

(Ann Arbor: University of Michigan Press, 1997), 172.

87. An Act to Consolidate and Amend the Law Relating to Property and for

Incidental and Other Purposes (No. 18 of 1971), April 15, 1971.

88. An Act to Consolidate and Amend the Law Relating to Wills (No. 1 of

1972), March 3, 1972, par. 6.

89. An Ordinance to Consolidate and Amend the Law Relating to Succes-

sion, Probate and Administration of Estates of Deceased Persons (No. 20 of

1970), July 2, 1970, par. 6 (3-4).

The Architecture of Authority: The

Place of Law in the Space of Science

Susan S. Silbey and Patricia Ewick

A doctor, a lawyer, and a scientist were having a discussion about

whether it is better to have a wife or a mistress. The lawyer claimed that

it is much better to have a mistress than a wife; if the relationship went

sour, there were fewer legal complications. The doctor said that was all

wrong. It is better to have a wife than a mistress, less threat of a heart

attack from the greater sexual passion with a mistress. The scientist

intervened saying they were both wrong. He wanted a wife and a mis-

tress. He could tell his mistress he was with his wife, tell his wife he was

with his mistress, then go to the lab and work without interruption.

This joke circulates among physical and biological scientists, dis-

playing with unmasked pride a different sort of pleasure than offered

by wives and mistresses: pleasure taken in a professional, albeit comic,

identity as a single-minded pursuer of abstract truths rather than sen-

sual desire, pushing back the frontiers of knowledge by working on a

noble and selfless quest. Of course the joke is sexist, but so too is mod-

ern science. Of course too, science is hardly selfless, and whether it is

noble is for others to say. Unfortunately for those misled by our intro-

duction, our focus is not about sex, wives, or mistresses, but about

space, science, and law.

Our subject is the significance of laboratory space as the habitat of

the research scientist and the place of law in those scientific spaces. Our

thesis is simple. As the laboratory has been transformed over the cen-

turies from a private place of gentlemanly inquiry to an open and acces-

sible public arena, the forms of regulation governing the processes of

production and certifying the knowledge produced therein have also

75

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THE PLACE OF LAW

shifted. As the authority of science has grown, ironically, it has become

increasingly subject to legal constraint and regulation. The legal regu-

lation of science is, however, "from a distance." Rather than directly

controlling the behavior of scientists, science is more often regulated

through the design and monitoring of the spaces of science. What had

been governed primarily by conventions among gentlemen and the

prerogatives of class and aristocracy have been replaced by the tech-

niques of governmentality. Rather than the scientist inviting acquain-

tances to his' home and relying on conventional morality to secure

trustworthy witnesses to scientific experiments, the contemporary

research laboratory is a space governed by a network of laws, regula-

tions, and rules helping to produce a specific kind of subject: a particu-

lar kind of scientist and a particular kind of science. In the spatial regu-

lation of science, processes of social control are largely internalized,

sustaining science and the scientists' authority for autonomy and self-

governance.

Science's traditional remove from everyday life and intractability to

outside control have been challenged by modern transformations in

forms of governance and in the characterizations of science as danger-

ous. Powerfully shaping contemporary life, science is perceived to be

dangerous, both in terms of its potential to produce physical harm and

in its insistence upon an independent source of authority. Many legal

constraints focus on material and physical dangers, and our empirical

data will address the regulation of environmental, health, and safety

hazards in the spaces of scientific production. Nonetheless, we must

note that science is dangerous primarily because its norms and prac-

tices are indecipherable by other institutions. The law's pursuit of jus-

tice and its construction of truth, for example, do not correspond to,

and are often incommensurate with, science's pursuit of empirical real-

ity. This disconnect can be threatening when science offers empirical

answers that seem to undermine the law's truths. Scientific ways of

perceiving, ordering, and manipulating phenomena create the possibil-

ity that other (similarly authoritative) institutions will be unable to

apprehend, no less control, those phenomena. In this sense, science is

dangerous because, being indecipherable, it may incapacitate the law's,

or religion's, or the economy's routinized ways of operating and con-

struing the world. However, an important aspect of its indecipherabil-

ity, especially from the point of view of law and religion, is science's

claim to operate without normative commitments. Thus, by abdicating

THE ARCHITECTURE OF AUTHORITY

77

responsibility for the social terrain attended by law and religion, it

turns out, science secures a measure of autonomy for its most serious

dangers.

We do not wish to suggest that the history and development of mod-

ern science has been a story of total immunity from the influences of

competing social institutions. Indeed, we will argue the opposite. The

law has been constitutively present, sometimes centrally so, in the

expansion and organization of modern science. But, in its efforts to pro-

mote (as well as contain) the development and consequences of science,

the law has, over the centuries, certified areas of scientific autonomy,

putting them beyond the law's reach. Just as the liberal state derives a

good part of its legitimacy from its purported separation from and pro-

tection of civil society (asserted to be prior to and independent of the

state that discursively and legally constructs that divide), so too, scien-

tific authority is in part constituted by law's deference to science's

claims to discover truths that exist prior to and independent of human

institutions. In other words, the law's deference to science's claim-to

have access to something that is independent of its own activities

helps construct scientific authority and legitimacy at the same time as it

instantiates and legitimates law's authority to regulate.

What the law regulates, constrains, and enables may be influenced, if

not determined, by science's methods and conclusions, but how that

regulation takes place, through what sorts of procedures and sanctions,

are the law's specific prerogative. Thus, we manage the dangers of radi-

ation through an elaborate system of continuous surveillance that can

lead to mandatory cessation of operation or personal exclusion from

work. On the other hand, we respond to the dangers of smoking by

requiring notices on cigarette packages, prohibiting advertising and

sale to minors, but taxing rather than prohibiting consumption for

adults. And, in most American states, we respond to the dangers of sex-

ually transmitted diseases not by providing or requiring surveillance or

mandated notices, nor by monitoring the sexual practices of infected

persons; we do, however, permit and certify marriages only after

screening for disease. In each of these instances, the dangers have been

identified through scientific research; the modes and forms of regula-

tion are legal inventions.

By collaborating with science's authority, deferring to its truths, and

its claims to have access to a world independent of itself, law enhances

its own capacity and authority, including the power to regulate the pro-

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duction of science. Importantly, part of this collaboration between sci-

ence and law includes a recognition that the experimental method is

among the central features of scientific epistemology and authority.

Acknowledging that scientific facts are always revisable, the content of

legal regulation drawn from scientific knowledge is also always revis-

able. Thus, by incorporating and deferring to scientific epistemology

and methodology, law justifies the need to come back again, so to

speak, with new regulations. The revisable status of scientific truths

creates a platform for extending the quantity and thus the reach of law,

illustrating the degree to which regulation is characterized not by its

specific content, but its form.

The contemporary history of legal regulation of science is in many

ways a picture of the legal constitution of laboratories. From trusts,

endowments, intellectual property, as well as environmental protec-

tion and workplace safety, legal rules not only penetrate but suffuse

the spaces and production of science. In its engagement with science,

however, this regulatory culture is not often a Weberian model of

top-down command-and-control, mandating specific acts and pro-

hibiting others. Today, in a transformed regulatory environment, we

have bottom-up self-regulation where the law identifies the kinds of

spaces that demand regulation, spaces in which an organization must

define for itself and its members permissible types of action and

interaction. In this contemporary regime, scientists take on the mis-

sion of the law, align their interests with those of the law, and pro-

duce through this process "the content of the form." The form of reg-

ulation is itself experimental, intentionally revisable, and along the

way transportable. In the course of this experimental, engaged form

of self-regulation, the law extends its power and reach, perhaps to

places it might not otherwise be able to enter so easily or effectively.

This is the regime of modern regulation Foucault described as gov-

ernmentality.

We are suggesting that law and science collaborate in a mutual con-

stitution whereby each is transformed, and the authority of each is pre-

served and extended. The interaction between law and science ends up

recreating the world, not only materially but also culturally and

morally. Although science takes pride in its material accomplishments,

it often denies responsibility for the organization of social relations it

helps to constitute. The very capacity to shape the material world cre-


79

ates moral problems that science denies having the capacity or respon-

sibility to solve. Nonetheless, the experimental process supporting sci-

entific authority has become so much a part of the way Western soci-

eties think and act that human subjects and the conduct of human life

itself are regarded as experiments, to be observed and manipulated just

the same as physical matter.2

Our work shows, however, that the scientific life is not immune

from the consequences of the social technologies science has spurred.

Specifically, we see that as the law operates on the spaces and the

forms within which science takes place, it contributes to the produc-

tion of a distinctive content: a particular kind of science and a partic-

ular kind of scientist, the content of knowledge claims and the daily

practices of scientists. By helping to constitute more separated spaces

for science, environmental and safety regulations push the private

lives of scientists out of the labs. As scientists are forced to segment

their lab and nonlab activities, they become increasingly fragmented,

just like other modern social subjects. Ironically, however, as the sci-

entists conform to standardized practices, becoming more like every-

one else, their claims to extraordinary objectivity and authority

increase.

We will illustrate the mutual constitution of science and law through

the construction and regulation of laboratory spaces in three parts.

First, we refer to the standard history of laboratory construction in

which what was once a private and elite space has become public and

relatively democratic. Without repeating the familiar history of

Enlightenment liberalism, the invention of the liberal subject, and the

development of democratic cultures, we will suggest some ways in

which the development and standardization of scientific laboratories is

part of, and mimics, that political story in terms of science's invocation

of some of the central norms of liberal democracy.

In the next part of the paper, we illustrate these processes with

ethnographic data collected in a major research university. These data

show that scientific spaces are defined around the contradictory issues

of danger and democracy, or interdiction and access. In the final section

of the paper, we will examine the processes of regulation that have

emerged to define scientific practice. In particular, the constitution of

space has emerged as a principal modality of governance. The creation,

design, and surveillance of space has, we argue, become increasingly

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important in a world of autonomous subjects. Since it does not directly

challenge the autonomy of liberal subjects, the control of space operates

obliquely, sidestepping issues of subject freedom even while the spaces

thus constituted define and shape subjectivity and practice.

Transforming Spaces of Science and Creating Liberal

Subjects of Law

Over the course of the past four centuries, science has faced a formida-

ble epistemological dilemma. From its inception, science's claims about

an objective, lawlike, natural world challenged religious truth.

Whereas religious truth is based on faith, scientific knowledge derives

its legitimacy from empirical observation. In other words, scientific

authority has always been based upon a claim that seeing is believing.

Yet very few people actually see a gas turn into liquid under pressure,

or directly see the molecular structure of ribonucleic acid. Thus,

although science is offered as a direct challenge to a system based on

faith and trust, there is, Steven Shapin says,3 an ineradicable problem of

trust at the heart of science. "Why ought one to give one's assent to

experimental knowledge claims?" Why believe what one has not seen

and often cannot see?

A solution to this problem required that science engage in a project

of self-presentation.4 Scientific practice had to discover ways of

demonstrating or representing its found truths to a public in order to

obtain the legitimacy and deference, and thus effectiveness, it sought.

The various solutions that have been adopted have all implicated a

particular power optics, involving a designation of who can see and

what can be seen. And at the centerpiece of this history is the labora-

tory. As Lynch has observed,5 "There can be no doubt about the moral

and epistemological significance of. . . the 'physical place' of the sci-

entific laboratory."6

Up until the nineteenth and twentieth centuries, the laboratory was

a "truth spot,"7 a place in which the empirical truths of science were

revealed to a select audience of gentlemen.8 The particular location,

configuration, ownership, and design of the laboratory was available

to that select audience-for inspection. The legitimacy of scientific

claims about the world were dependent upon the idiosyncrasies of

place and the particularistic relationship that existed between the sci-

entist and his audience. Knowledge and truth were thus inscribed onto


8i

the laboratory and the social ties that connected scientists, their labora-

tory spaces, and their public.

Over the last two centuries, laboratory architecture and culture have

changed.9 What was private and personal, identified with and occu-

pied by a specific, socially located individual, became, with the collab-

oration of public authorities, more accessible, in a sense democratized,

standardized, and relatively indistinguishable from other similar

spaces. Laboratories have developed into vast, prototypical, universal

products with interchangeable parts and equipment, unremarkable in

the ease with which they are reproduced and installed in very different

physical conditions and cultural locations. Their contents have been so

standardized that contemporary laboratories are designed and built

Lego style: a pattern module is composed of stock materials, then

arranged in various configurations, most often in rows and bays, to fit

a building's dimensions and each research group's desired social orga-

nization.o Some laboratories emphasize unfettered correspondence

from one group to another, creating open passages between the rows

and bays; others limit communication but nonetheless create some pas-

sages to insure safety exits. Some labs build in sets of shared, commu-

nal equipment in order to leave more space for individual work-

benches, while other labs replicate each instrument, machine, and

facility for every work group in order to avoid dealing with differential

work and housekeeping habits."

The transformation of the laboratory into an anonymous and stan-

dardized space imparts to the laboratory an epistemological authority

that differs radically from its premodern antecedent. The laboratory is

no longer the place where truth is lodged; it has been demoted to a

backstage. Where the credibility of science in the seventeenth century

rested on public demonstrations and access to private homes, the pub-

lic part of science is no longer a performance in the Royal Society or a

visit to a researcher's lab. It is a publication. The text becomes the new

public space, open and accessible to all, in and through which the

provenance of science is established. Rather than seeing the experi-

ment, we see the report of it. We defer to the report because of what

Shapin calls the "literary technology" of the scientific journal: peer

review and critique, "a highly stylized machine for manufacturing

credible knowledge."'2 In modern scientific practice, the validity of a

claim is made and evaluated through replication, claimed and certified

through writing, peer review, publication, and circulation. Truth tran-

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scends its place of discovery. In short, because the laboratory has

become standardized in its construction and composition, it can disap-

pear as an epistemological marker; we can take it for granted because it

is constant and universal.

Today the laboratory remains a context for scientific discovery, but it

is not seen as integral to the scientific truths it yields. This alteration in

the role of the laboratory reveals a much broader transformation in the

role of science in society in general, and in the relationship between law

and science in particular. The changing spaces of science correspond to

similar changes in the social construction of knowledge and the know-

ing subject. Slowly over these last four centuries, science has been

democratized, contributing a particularly modern source of authority.

Today, education and training, not familial or political status, permit

access to scientific knowledge.13 In this regard, the development of sci-

ence followed a host of liberalizing tendencies of the modern world.

The development of professional laboratories corresponds with and

was part of the more general liberalization of social relations, politics,

and law that came with the Enlightenment. With this liberalization, the

scientist qua observer is dislodged from his or her berth in the aristo-

cratic and caste based social structures. His or her relationship to others

in social hierarchies no longer grants the capacity to personally certify

or endow credibility. In much the same way that scientific truth has

been gradually dislodged from its place within the laboratory and resit-

uated in abstract textual space, the scientist is dislodged from particu-

lar, limited geographic and social spaces. The knower and the known

are, thus, seen as transcending any particular social arrangements.

Similarly, just as the laboratory virtually disappears from contempo-

rary accounts of scientific discovery,14 scientists, as embodied, histori-

cal persons, also largely disappear.'5 Contemporary critics of positivist

science often find fault with this obliteration of the observer and the sci-

entific claims to abstract, objective knowledge.'6 What is sometimes

overlooked in these critiques, however, is that this epistemology of

objectivity was politically subversive when it appeared in the emerging

modern world. Rejecting the constraints of religion, tradition, or state,

positivist epistemology both drew from and contributed powerfully to

the construction of the modern liberal subject, a subject who is believed

to be endowed with capacities and rights that transcend and predate

any particular social arrangement.

Linking the emergence of modern science with the creation of the


83

free liberal subject, the sociologist of science Edgar Zilsel has argued

that the closed, stratified social structure of feudal Europe was anath-

ema to experimental method.'7 The complete separation of intellectual

and manual labor characteristic of feudalism precluded the experimen-

tal manipulations that lie at the heart of scientific discovery. Feminist

philosopher of science Sandra Harding likewise observes,

Science's new way of seeing the world developed from the per-

spective of the new kind of social labor of artisans and inventors

of modern technologies. In turn, the new learning produced by

experimental observation increased the economic and political

importance of this kind of activity and social person. Experimen-

tal method became first possible and subsequently important

because it approached the world as it could be grasped only

from the perspective of a violation, a gap, a free space, in the feu-

dal division of labor.'8

Of course, as science became democratized-in the sense of being

taken out of the restricted hierarchies of aristocracy, caste, and place

it also became increasingly professionalized. Although there were no

longer any explicit legal or political restrictions on who could become a

scientist, few could claim familiarity or facility with scientific tech-

niques or knowledge. By the beginning of the twenty-first century this

professionalization has become more pronounced: scientific knowl-

edge has become even more technical, and laypersons have become

even less equipped to comprehend it. Yet despite the inaccessibility of

scientific knowledge for most citizens, there exists a cultural under-

standing of scientific knowledge as belonging to a community that

extends beyond the profession of scientists. Broman has used Haber-

mas's concept of the public sphere to explain this seeming paradox:

even as scientific knowledge becomes more inaccessible to nonprofes-

sionals lacking the educational or technical training, it is still seen as the

common property of everyone. Scientists, according to Shapin, assume

the role of the priests of what "we know."

Thus, the history of scientific laboratories, a history that culminates

in the epistemological disappearance of lab and scientist, replicates the

development and refinement of the mutual constitution of law and sci-

ence. Despite the fact that science was crucially implicated and depen-

dent upon political developments of the Enlightenment, it is precisely

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through these developments that scientific practice, and the knowledge

it produces, can present itself as lying beyond the social, a sphere of

authoritative knowledge protected by claims of objectivity, transcen-

dence, and universality. Without asserting any causality or direction of

influence, it is sufficient to note here the remarkable salience between

the Enlightenment conception of the iconographic liberal individual

and the idealized conception of normal science. Just like scientific

knowledge, liberalism's subject exists independently of and prior to the

political order, the embodiment and carrier of rights that, just like sci-

entific knowledge, are objective, transcendent, and universal.

As science has been increasingly understood to transcend the social

and historical contexts of its production, the authority of tradition, reli-

gion, and law to confine scientific practice have been undermined. As a

more open and meritocratic system of education supplanted the system

of aristocratic privilege, it became more difficult to regulate science

through the norms of status and gentlemen's culture. This experiential

duality, an awareness of the dangers being created here coupled with

deference to the processes that are creating and possibly mastering

those dangers,19 mimics legality's similarly ambiguous relationship to

laboratory science. The moral and epistemological authority of science,

coupled with its instrumental material successes, sustains an almost

unparalleled autonomy from legal regulation of the "substance" of sci-

ence. At the same time, the immediate and potential perils cannot be

ignored. Science is simultaneously something wonderfully productive

and beneficial, and a threat in need of surveillance and control. Science

is simultaneously beyond the laboratory, in the consequences of its

knowledge, and materially and concretely within the spaces where sci-

entists work.

Governing Science

A building is a dogma, a machine is an idea.

-Victor Hugo

As Durkheim wrote, "the truths of science are independent of any local

context."20 Claiming to deal in universal physical laws, science has his-

torically positioned itself beyond the reach of humanly created law. It is

precisely the fetishization of science as a universal abstraction, we sug-

gest, that opens the lab-the material space of science-as a focus of

legal regulation.


85

As science achieved its epistemological authority as objective and

universal, the laboratory became less personal and more standard. The

laboratory's standardization makes the features of any particular labo-

ratory invisible in the production of science,21 unremarkable to the

degree that descriptions of laboratories are conventionally omitted

from most publications and presentations of experimental results.22 Yet

the apparent disappearance of the laboratory in contemporary

accounts of science disguises its increased importance as a site and gen-

erator of truth. Rather than provenance secured by locating each step of

the discovery process in a place and with a person (as, for example, is

the case of the provenance for a work of art), the paradoxical prove-

nance for scientific facts is secured by making the production of science

placeless. The standardization of labs makes particularistic knowledge

of each laboratory meaningless. Indeed, the intention of standardiza-

tion is to eliminate the particular in determining the validity or reliabil-

ity of the knowledge produced. In this way, the invisibility of the place

"secures the placelessness"-the universality-of scientific facts.23

Ironically, it is this placelessness of scientific facts that has created an

opening for law to enter and shape the practice of science. In denying

any particular epistemological importance to the laboratory, science

thereby permits law to claim this space as a terrain upon which it oper-

ates. In other words, through the governance of laboratory space, law

plays a role in shaping contemporary science and contemporary scien-

tists. From the contracts and trusts that establish the institutions within

which science is accomplished, to the safety regime of the federal labo-

ratory standard (a complex array of Occupational Safety and Health

Administration regulations), law is as much a part of the edifice of sci-

ence as the steel and glass, ducts and ventilating shafts so characteristic

of modern laboratory buildings. As sociolegal scholars have discovered

in studying other social and institutional sites-including workplaces,

neighborhood playgrounds, schools, and hospitals, the law is "all over"

the laboratory.24 Yet here, as elsewhere, the ubiquity of law is typically

overlooked. And in the final analysis, it is the failure to see the law that

is all over that grants it much of its power to constitute social life.

To identify the place of law in the space of science, we have been

studying scientific laboratories in several universities. The institutions

we are studying are ranked among the top ten in every scientific disci-

pline; their science faculties are world renowned, including dozens of

members of the National Academy of Sciences and the American Acad-

emy of Sciences, as well as a handful of Nobel laureates. We make no

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claims to be speaking about all or a random sampling of contemporary

science. We are looking at elite American science. Our ethnographic

practice involves regular observation, watching, listening, taking notes

on what we see and hear, asking questions, collecting documents, and

conducting formal interviews with principal investigators, graduate

students, postdoctoral fellows, and lab directors on three campuses.

When introducing our research to the scientists we have interviewed

thus far, we have been receiving a fairly standard reaction to our

announced purpose of studying the connection between law and sci-

ence. Most say that there will be little to talk about. According to Fred

Donner, the director of one of the biomedical laboratories, the law is

irrelevant to science. "Oh, there is no law here. You will be wasting

your time. Of course there are OSHA and EPA regulations, but other-

wise the law is not pertinent to what we do."

Despite these disclaimers, it is undeniable that university laborato-

ries are saturated with legality. They are, of course, legal creations.

Through trusts, bequests, incorporation, and property law, universi-

ties, as well as the laboratories within, are legally created entities. All

research grants and contracts specify legal relationships. Although all

research scientists working with grants and contracts are, according to

their statements, painfully aware of the legal aspects of the funding

relationships, the legal constitution of their roles as employee-scien-

tists, as supervisors of subordinate employees (students or techni-

cians), or as researchers themselves is less salient. In general, they

become aware of these legal relationships only when a taken-for-

granted prerogative of one of their roles, such as tenure, is challenged.

In addition, the results of scientific research are routinely converted

into legally protected property through publication, copyright, patent-

ing, and licensing. Indeed, over the centuries, as science has become an

ever more public enterprise, its products have become increasingly and

more rapidly privatized.25 Thus, scientific laboratories are legal cre-

ations in the sense that they would not exist without the contracts and

trusts that created them, defined their purposes, established their

boundaries, specified the statuses and obligations of the scientists, and

secured the ownership of the research results.

These traces of legality are acknowledged by scientists but routinely

dismissed as being external to the process of discovery itself. Although

they are sometimes contentious and bitter and even more often annoy-

ing, the stipulations of labor law or even property law tend to be for-


87

gotten when scientists enter the laboratory to conduct their research.

Nonetheless, legality operates less conspicuously and yet powerfully in

the practice of science. In fact, law is "all over" science even as it is all

over social life in general.

First, law is inscribed in what Lefebvre referred to as the spaces of

representation: the signs used by the planners, architects, scientists,

and other social engineers to align "what is lived and perceived"26 with

their abstraction of it. The spaces of representations are, in effect, space

apprehended and conceptualized.27 Laboratories are designed, built,

operated, and inspected imagining certain types of scientific subjects

and scientific practice. Those subjects and practices are shaped, in part,

by the design and construction of the material laboratory spaces. To the

degree that science is regarded as a public process, its spaces will be

accessible; to the degree that science is conceived of as a matter of

national security, it could be politically dangerous and access will be

restricted.28 Because science is routinely believed to be physically and

materially dangerous, the design and building of the laboratories is a

thoroughly regulated matter. Thus, through the architectural concep-

tion of the laboratory, law participates in the material constitution of

laboratory science.

In addition to the abstractions of space, the law is also present in the

images and symbols embodied in the physical space, communicating

distinctive meanings. This is not the abstracted conception of the labo-

ratory appearing in drawings or blueprints, but the laboratory space as

it is experienced, as the aesthetic rather than instrumental imagination

apprehends and appropriates it. This is the space of perception not con-

ception, according to Lefebvre.29 "Overlay[ing] physical space," it

makes symbolic use of spatial objects. Representational space refers to

the metaphors and allegorical dimensions of space that mobilize sensa-

tions and affect. "The symbolic level," however, "is where architecture

itself kicks in," and "where land use rises above the level of real estate

speculation" and the organization of concrete, steel, and glass is more

than just a shelter from the elements. Architectural critics offer

accounts of the symbolic messages of buildings; "while not quantifi-

able," these representational aspects of space are "as substantial as the

materials from which the buildings are made."30

Finally, Lefebvre claims that there is not only conceived space, and

perceived space, but there is also lived space, or what he calls spatial

practices. By spatial practices, Lefebvre means the ways in which the

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organization of space enables or constrains the conduct of life. In this

dimension of social spatialization, we want to know how scientific

research is conducted in these spaces. Here, we continue the focus on

the perception of laboratories as dangerous spaces to ask how the legal

regulation of danger has transformed the practice of scientific research.

In particular, legal regulation of laboratories has led scientists to trans-

form the routines of scientific research to manage the inherent dangers.

Although success at managing the danger enhances belief in scientific

mastery, the safety regime may be transforming the meaning of being a

scientist at the very same time.

These three dimensions of space can be used to interpret the social

significance of any particular site. Within a specific site, they may either

contradict or reinforce one another. Collectively, they constitute social

spaces whose foundation, according to Lefebvre, is prohibition. Social

space erects

the gulf between [the members of a society], their bodies and

consciousnesses, and the difficulties of social intercourse; the dis-

location of their most immediate relationships, and even the dis-

location of their bodily integrity; and lastly, the never fully

achieved restoration of these relations in an "environment"

made up of a series of zones defined by interdictions and bans.31

In the modern state, prohibitions, interdictions, and bans are the

province of law, in liberal regimes more often justified by the necessity

of containing harm and danger than by promoting a substantial good.

In fact, one of the most salient features of space as it is constructed

within contemporary scientific labs is the anticipation and containment

of danger: The semiotic and aesthetic representations of science are

coded for danger and hazard. The science of spatial planning, reflected

in architectural plans designating the size and layout of labs, is an

attempt to manage the inherent danger of experimentation. Finally, sci-

entific practice is spatialized along the transits of danger and safety that

lead to a partitioning of both lives and space. In each of these construc-

tions of dangerous spaces, law announces the danger, instructs appro-

priate responses, and reorganizes relationships among scientists and

their science.

Alongside the expression of danger and the prohibitions it requires,

the spaces of science are also coded as public, collective, that is, demo-

cratic. Thus, the social space of science is a shifting boundary whose


89

legally established outline comes to define in various ways the practice

of science and the identity of scientists.

Public Access and Dangerous Space

The image of science as both accessible and yet dangerous is first

encountered upon entering the buildings that house laboratories.

Within these buildings the public-private boundary is constructed

architecturally, decoratively, and legally to symbolize simultaneously

its public stature and significant danger.

At the entrance to many contemporary laboratories, we see broad

inviting plazas, marble vestibules, and grand staircases welcoming vis-

itors and workers alike. These are extraordinarily well built places; they

look as if no expense has been spared in terms of the durability and

attractiveness of the materials, the vastness of the spaces, and the vol-

ume and density of the technical facilities and equipment.

The doors are often unlocked; guards do not police entry. The title

and ownership of the building is nonetheless prominently displayed on

or next to the doors. Whom to call in case of emergency is also noted.

Thus, it is clear that these buildings are private and belong to some

legally responsible agent. Nonetheless, the public is offered free access

to these spaces.

It is not exactly clear, however, what the public gains access to when

they enter. The lobbies, in fact, lead nowhere. And few people do in fact

enter off the street. Most of time these vast impressive spaces are con-

spicuously empty, or function principally as transits through which

personnel enter the space of science.

Among the marble floors and grand stairways of these lobbies, one

cannot miss the art. There are commissioned murals designed as part

the building itself, paintings purchased for this site or borrowed from

the university museum; there are sculptures standing at entrances and

in courtyards. But the art does not stop in the public spaces. Along the

private corridors, on tack boards interspersed among lab equipment,

amid the posters tacked on bulletin boards announcing new courses,

upcoming conferences, or warning of one or another significant dan-

ger, there are watercolors, lithographs, and posters of famous and not-

so-famous artists: a Renoir portrait here, a Lichtenstein abstract there,

and watercolors of sailboats on the river.

Ironically, what is conspicuously absent from these open spaces is

science. The boundary between public and private space, the space of

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science, is marked explicitly-through signs stating that the public is

not allowed beyond this point. The exclusion is not expressed in terms

of personal character or eligibility. No passes are demanded, no screen-

ing devices or card readers operate. The invocation of danger is the

rationale for restricting public access, and that danger is expressed lit-

erally, loudly, and profusely, the warning labels appended almost

everywhere.

Along the corridors, amid the posters, sculptures, and paintings,

there is an almost endless parade of warnings: "Danger, Radioactive

Materials"; "Danger, do not open this door"; "Danger, never leave this

door open." Some signs describe what attire must be worn in these

spaces and what cannot be worn. "Do Not Enter Without Eye Protec-

tion." "Do not wear contaminated clothing outside of the lab." Or the

signs include instructions about what to do in case of contamination.

"BLi: This is a Level 1 Biohazard facility. In case of accident call . . ."

Other signs instruct how materials are to be disposed from this space.

Another sign reads "BL2: This is a Level 2 Biohazard facility. In this lab-

oratory,..." continuing on to explain the conditions for entering, leav-

ing, disposing of materials.

Yet the danger is also conveyed tacitly and implicitly by the archi-

tecture, fittings, and furnishings. There is a noticeable shift in materials

from the public to the private spaces, from marble and mahogany to

glass and steel. Beyond the public spaces, the perils are contained

behind steel doors with small viewing windows reminiscent of the

doors and passages in a contemporary prison. These are clearly sealed

spaces. The danger is also symbolized by the profusion of combination

locks on the doors, locks that can be opened when your hands hold

samples and equipment. The constant jeopardy is represented by the

row of safety showers installed along the corridors. The design of the

showers seems to have varied over the years. In one very recently ren-

ovated laboratory, their presence is both announced and camouflaged,

expressing the latent ambiguity one experiences in these spaces. There

is a simultaneous recognition of the persistent and pervasive danger of

what is going on here coupled with a sense of mastery that suggests

whatever the dangers are, they are under control.

Constructing Safe Spaces

Danger is not simply constructed by policing the public-private bound-

ary. It is constantly negotiated within the work spaces of the lab itself.


91

In the course of our research, we heard a story that illustrates how

space is legally partitioned to manage danger. At the university, new

laboratories were being created in older buildings undergoing total

renovation. The chemistry department would be given additional

space in the renovated area. The chair of the department worked

closely with the faculty who were to move into the new spaces, collect-

ing their wish lists for square footage and facilities.

Nine months into the planning meetings with the architects, draw-

ings began to appear. At that point the chair discovered that there were

25 percent fewer lab benches than had been agreed in the earlier meet-

ings. When he pressed for an explanation, the architects responded that

legal regulation stipulated greater distance between the benches than

the faculty had specified. Among the scientists affected, this change in

design was described as a crisis. By increasing the distance between the

lab benches and reducing their number, the architects had reduced the

possible size, and therefore productivity, of the research groups. When

the department chair presented the faculty's grievances to the archi-

tects, they responded that it was a matter of safety regulations and

insisted that they could not change the designs. A monograph had been

published by a professor at another university-as part of his research

product-that recommended good laboratory practices.32 When the

architects had conferred with the university's attorneys, they were told

that the existence of the book made it unwise to build the lab benches

closer than the distance specified there. Should there ever be an acci-

dent, the attorneys claimed, the book could be cited in expert testi-

mony, and the university might be held liable.

As Lefebvre suggested, the abstract conceptualized spaces of repre-

sentation, such as blueprints, have the capacity to modify and inter-

vene in space.33 In this case, an imagined legal constraint was figura-

tively and then concretely built into the laboratory, significantly

reducing the overall research capacity of these groups.

Governing Danger and Managing Self-Governance

The management of danger is not necessarily imposed from outside of

science. Increasingly, safety in the laboratory has become a major part

of the scientific persona. For one of our subjects, David Laslett,34 this

preoccupation with laboratory safety began with his appointment as

department safety officer. This role was traditional in chemistry depart-

ments but has now spread to every department that uses any chemicals

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for any activity-from cleaning paint palettes, to disinfecting animal

cages, to synthesizing new molecules. Concerns with laboratory safety

took on new meaning when in 1990 OSHA enacted what is known as

the Lab Standard for the safe handling and disposal of chemicals in

research laboratories.

The Lab Standard was created because the existing OSHA rules

were designed for industrial sites and did not work well for research

laboratories. Industrial sites do the same things over and over again.

Because of this standardization and repetitiveness, the forms and

processes of industrial safety can, like the work, also be routinized. By

contrast, most scientific laboratories perform a vast array of different

activities, some of them infrequently. They also typically perform these

acts on a smaller scale, using smaller quantities of chemicals or other

potentially hazardous materials. Because of the variation in processes

and materials, it is difficult to anticipate the kinds of dangers that might

be involved. "There are lots of things," Laslett said, "for which hazards

are not known. They're new substances we've created as part of our

research. And so research lab people said that the laws that are being

applied to us really are not relevant." In other words, the dangers that

attach to research laboratories are to a significant degree unspecifiable

in advance. As a consequence, according to Laslett, the scientists have

taken on the role of regulating themselves. Laslett describes the

process.

We tried to change the culture of safety when I took over in 1990.

... I would say the prior situation was an adversarial relation-

ship between the safety police and researchers and faculty. Occa-

sionally some sort of proclamation would come through-like

you can't wear shorts if you work in the lab-that people would

treat derisively and ignore totally.... The chemists didn't have

much respect for [the safety inspectors who did come by or

make rules] because they weren't as smart in chemistry as we

are, and they came and were saying you're not using this prop-

erly. But they didn't know what the structure and properties of

the chemicals were. They would lose credibility in front of the

students. It was a really bad situation.

We had, in a sense, to reinvent our whole safety regime. So it

was an opportunity to do this differently. It's as if you're saying

we're throwing out our entire legal code and rewriting it.


93

The OSHA Lab Standard is an interesting performance-based

law, which means that it doesn't lay out in detail [that] under the

following conditions you must wear safety glasses, under the

following conditions you don't. Instead, what it comes down to

is it says you must appoint a person called the chemical hygiene

officer and you must write something called the Chemical

Hygiene Plan. And it doesn't specify what you put in there.

What it does say is that this has to be effective in protecting all

researchers from hazards. We're not telling you what a safe labo-

ratory is. You are going to make up rules that make a safe labo-

ratory. That's what the law, the federal law says.... They did

not lay out in excruciating detail one-size-fits-all safety rules. It

says, "We will allow you to... design your own safety plan. We

may inspect and determine if it is effectively protecting people,

and if it is, then it's satisfactory, but we are not going to micro-

manage things."

When the law went into effect, the first thing [we] had to do

was to decide, how are we going to comply with it? Are we

going to have a single safety chemical hygiene officer who

would be safety czar over the entire [university], or are we going

to make every PI [principal investigator], every professor, a

chemical hygiene officer....

So the most important decision we made was that safety

should begin at the grass roots.... If we didn't enlist the people

affected by these rules in the creation of new rules [it wouldn't

work].... The idea was that we would create a structure. The

creation of the new safety rules would be done cooperatively by

faculty, students, and administrators within each department.

And the enforcement of compliance-monitoring the compliance

and enforcing-would similarly involve not only faculty admin-

istrators and authority figures but those researchers, the people

who are affected by the rules. [This was] to overcome the adver-

sarial relationship that otherwise inevitably develops if you have

people outside of the community creating rules and monitoring

compliance and enforcing them.

As Laslett claimed was common, Fred Donner expressed just that

resentment toward the agency that monitors the care and protection of

the animals in the laboratory he directs. "Look," he said, "it's a big pain

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because we want the mice healthy. People are going to want them

healthy because they can't do their experiments [otherwise]. But, in

addition, we have a bureaucracy that deals with making sure that we

do." Because scientists have a direct interest in securing the health and

safety of their experimental animals, Donner claimed, the spot inspec-

tions and detective work of the government agencies wasted time and

energy.

Laslett's account of the invention of the safety regime at his univer-

sity illustrates the self-regulation that is at the heart of regimes of gov-

ernmentality.

After a lot of debate we came up with a plan which would be

more or less equivalent [across the university]. Every depart-

ment would have its own chemical hygiene officer and plan. We

felt that it was unrealistic for each individual laboratory profes-

sor to have one.

It was also not a good strategy to establish one policy for the entire uni-

versity. In the past, that had not produced an effective safety system

because of the hostility between the researchers and the safety profes-

sionals.

The researchers felt that they had no stake in the creation of the

laws. And the laws, any rules, tend to interfere in some way with

research if only in terms of making it less convenient to do cer-

tain things. And the fact is that some of the benefits are not

immediately apparent-like, I'm not going to get cancer thirty

years from now. It is not necessarily easy for people to see the

long-term benefits of these short-term inconveniences. The

inconveniences being applied from on high, naturally people are

less cooperative.

He continued, "My agenda was that if we involved everybody at the

beginning making rules, they were more likely to appreciate why these

are important and necessary; they are more likely to cooperate." Of

course, their cooperation must be verified.

It is very important not just to have an initial training lecture and

to give people copies of these documents, it's also important that


95

we check that they're working in compliance with it. So what we

have, in our department, is a system of inspections. Every

research lab (that means every group) is inspected unan-

nounced-unannounced inspection twice a year... by a team

consisting of one faculty member and one graduate student from

the chemical hygiene and safety committee.

Not all scientists defer so conspicuously to the law's authority.

Sometimes they engage instrumentally with the regulatory regime.

And Laslett, despite the grassroots training and surveillance system he

has created, is unwilling to bow down passively before what he calls

"the regulatory czars" if it means large fines or public embarrassment

for his university. When the EPA inspectors found violations, despite

the efforts of the university, he participated in negotiations over several

years to mitigate the violations and reduce the fines and public expo-

sure.

At other times, some scientists express their reluctance to take the

regulatory regime seriously, and go along either willingly or strategi-

cally. Laslett described some of his colleagues' reactions this way.

Now, in the first time around, when it went into effect, there

were several laboratories, three I remember, that you might say

failed the inspection, where your problems were so egregious

that the letter [we sent] said, "In view of these serious violations,

we will be returning within a few weeks to inspect again, please

correct the problems," something like that. It's a fairly positive

letter.... In two or three cases the second inspection they [also]

failed. Fortunately, the department chair at that time was a non-

laboratory person, a theoretical person not as intimate with real,

wet chemicals; he was particularly paranoid and very support-

ive. So the third letter basically says that in the event that there

are still any problems with the third inspection, we will have no

alternative but to order your laboratory closed to further

research until these problems are corrected. And then there was

a kind of postscript that federal law requires that if you have any

funding from federal agencies, we have to notify them that work

is ordered halted here.

So Goody had a bit of a problem [in his lab]-I don't think it's

there anymore-but he had on his website, for a while, a quote

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from that letter. My words in that letter were that if your group

had been here when the EPA did their inspection, you definitely

would have been the worst lab in the department. So he actually

had one of those scrolling things on the bottom of his web page

[reading] "Worst Lab in the Department"...

Then he was supplanted by Shoemaker. When Shoemaker

had a bad inspection, I said, "Oh man, Goody, I don't think

you're in the lead anymore." He created a running thing which

said, "We are no longer the worst lab. For the link to the worst

lab..." etc.

Gusterson discusses the function of this kind of humor among scien-

tists as a means of managing the emotional consequences of their work's

danger.35 Although Gusterson focuses on the work of weapons scien-

tists whose task is to create the most horrendous and potential dangers

for human bodies (as a part of an elaborate and possibly perverse secu-

rity system-mutual assured destruction), the transmission and acquisi-

tion of a culture of embodied danger is generally part of the training and

socialization of scientists.36 Jokes become one of the ways in which

members of a community reveal and deal with conflict and anxiety.37

Gusterson reports that almost all the jokes he heard in a course on

nuclear physics "had to do with the vulnerability of the human body

and the ignorant fears of non-scientists."38 The jokes are funny, Guster-

son argues, because they are about dangers that have been mastered,

such as radioactivity. Jokes about AIDS, he suggests, are not funny

because AIDS is a subject "before which we feel helpless."

The radiation jokes are funny, at least for physicists, because

although radiation is dangerous, physicists feel confident that

they understand radioactivity and know how to deal with it

though the jokes have an extra edge because they nag anxiously

at this confidence. The jokes play with the body's vulnerability

to radioactivity, teaching students to laugh both at the danger

and at those who, not understanding that heavy water is not

radioactive, for example, have an exaggerated fear of it.39

"These are jokes," Gusterson writes, "that make an elite commu-

nity." Professors Goody and Shoemaker can run banners on their web-

sites announcing the poor safety records of their laboratories because


97

they are confident that they have mastered the real and possibly serious

dangers of chemical reactions. Thus, what their web screen crawls

announce is the foolishness of those who have insisted on these legal

regulations, and perhaps of the department chair, who doesn't "get

wet" with chemicals in a real lab.

Discussion: Space, Power, and Transformations in

Social Control

The parallel development of the liberal subject and autonomous science

share a trajectory that has long been observed in Western societies, cul-

ture, and law: from status to contract, from gemeinschaft to

gesellschaft, from mechanical to organic solidarity, each of these for-

mulations marking a transition from the corporeal to the abstract.

Abstractions themselves, these familiar characterizations also mark

transformations in specific practices of social control that are of partic-

ular relevance to legality and especially the capacities of law to contain

the dangers of modern science. These historical movements signal,

first, a shift away from the direct regulation of subject persons, and, sec-

ond, a shift toward the regulation of spaces, with the result that all ter-

ritories, properties, sites, zones, buildings, parks, homes, movie the-

aters, and, of course, laboratories are imprinted with law. In this

modern system, the social control of science is achieved primarily

through regulation of the physical spaces where the danger resides. We

have illustrated how this regulatory regime operates in some contem-

porary laboratories. We would like to elaborate the shape and texture

of this transformation in the relationship between space, power, and

law more generally.

Foucault, who has been called a cartographer of power, conceptual-

ized modern transformations in social control as a movement from

bodies to minds and spaces. According to Deleuze,40 Foucault's entire

theory of power is spatial in nature. Although space is central to Fou-

cault's work, the role of space is not the same across the different modes

of power Foucault identified. He invoked two powerful, but distinc-

tive, spatial images to represent and contrast exclusionary and discipli-

nary modes of power. In the former case, he described the leper and his

separation into an excluded, disqualified mass. In the case of discipline,

he evoked the image of the city under siege by the plague, where the

enclosure and meticulous partitioning of space allowed for the distrib-

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ution of individuals to be supervised and contained. Each of these

modalities of regulation relies on space to produce (in the case of the

expelled leper) the pure community leached of the unredeemable, and

(in the case of the ordered city) a regimented society where no one was

excluded from the regulatory machinery.

In his later essays, Foucault outlined what has since been construed

by his intellectual progeny as a third form of regulation, governmental-

ity.4' Space figures most centrally and complexly in this form of regula-

tion. If exclusion and discipline are animated by the dreams of purity

and order, this third mode of power seeks a different dream, that of

freedom, or, to be more precise, a subject who can be governed through

his or her freedom. The dream of a free, but governable, subject is

necessitated by the paradox of power to which we have already

alluded and that lies at the heart of a liberal regime: that is, govern-

ments create zones of privacy and autonomy to which they, by their

own authority, are denied access. Governmentality, as a mode of regu-

lation, is a response or accommodation to this paradox. Through an

array of discursive and material practices and technologies, liberal sub-

jects are increasingly, albeit imperfectly, governed through, rather than

against, their freedom.42

This trick is achieved in part by the retreat and fragmentation of cen-

tral governing power. We are, to use Rose's term, governed at a dis-

tance. This distance is both constitutional, in that regulation is achieved

through a variety of nonpolitical experts and authorities (including

medical experts, architects, human relations experts, and the media),

and spatial, in that these operations are located and practiced in dis-

persed sites. Rather than the central tower of the panopticon, with its

single shrouded watcher, governing from a distance implicates hun-

dreds upon hundreds of experts, teachers, physicians, counselors, fam-

ily planners, architects, and talk show hosts, to name but a few.

Ironically, the terminus of these distant and dispersed vectors of reg-

ulation and control, the point at which they all converge and reach their

fullest expression, is the individual subject. In order that governmen-

tality succeed as a mode of regulation, it must realize or produce sub-

jects who are actively engaged in the very same technologies of gover-

nance as the political, scientific, medical, and ethical experts. In this

sense, governmentality is both distant and, at the same time, very close.

Capturing this contradiction, Mariana Valverde has described the

result of this process as the despotism of the self.43


99

To achieve this outcome, those who govern must develop strategies

of aligning their goals and projects with those to be governed. Rose

calls this task of alignment one of "translation." The various mecha-

nisms of translation instrumentalize political authority as freedom.

One of the primary technologies of translation involves the con-

struction, surveillance, and regulation of space. To fully capture how

governmentality works in the liberal cultures of freedom, this form of

governing through space must be distinguished from the spatial prac-

tices of discipline. Disciplinary techniques involve the enclosure of

space and the containment of individuals within enclaves (such as pris-

ons, schools, barracks, rows of desks, and office cubicles). By ordering

space and distributing individuals across the grids, subjects become the

objects of surveillance and control. In the case of discipline, space is a

means to achieve the disciplining of bodies. By contrast, in the case of

governmentality, space itself is the object of governance, and individu-

als are incidentally (and episodically) controlled and constructed as

subjects only as they occupy or pass through these governed spaces.

A few examples may help at this point. Recent legal battles over the

rights and obligations of pregnant women to their fetuses (including

the very recent case of a woman imprisoned in Massachusetts for refus-

ing to submit to a court-ordered medical examination) exemplify the

processes through which governable subjects are constructed through

the regulation of space. Over the past few decades, fetuses have been

constructed as persons deserving of protection from such things as

maternal drinking, or in the case we just cited above, from the mother's

religious convictions regarding the rejection of modern medicine.

These recent cultural (and legal) interpretations of fetuses as subjects

who are separate from and vulnerable to the mother depend upon

other cultural constructions, in this case specifically of the womb.

Petchesky has argued, for instance, that with the development of fetal

imaging technologies such as ultrasound, the fetus has been repre-

sented as separate and autonomous from the mother who, in turn, has

become the empty space inhabited by the new subject.44 The famous

Life magazine cover showing the fetus floating in space without context

or connection presents a creature who is uncontained. It is through

such a spatial uncoupling of mother and fetus that the absent mother

"is increasingly put in the position of adversary to her own pregnancy,

either by having presented a 'hostile environment' to its development

or by actively refusing some medical intervention."45 The Life magazine

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image of the unbounded space, absent the demarcation of the environ-

ment of the womb, created a representation of an individual person

deserving of protection, but at the same time dependent and incapable

of self-governance. Thus, through this spatial imagery, the mother

becomes the relay or the proxy for this newly constructed subject.

Constructing the fetus as an autonomous subject through the fabri-

cation of space is a particularly rich example insofar as it illustrates the

crucial role of inscription in the process of governance. According to

Latour it is primarily through inscription techniques such as maps,

charts, blueprints, and in this case photographs, that what he calls

"immutable mobiles" from dispersed and distant places (such as the

wombs of countless women) are accumulated, stabilized, made

durable, and thus available for inspection and regulation. These mech-

anisms are "little machines for producing conviction in others." Most

importantly, given the political objectives of governmentality, as our

own experiences are converted through these representational devices

and thus made available to our own inspections, surveillance, and

judgments, these little machines (inscription techniques) produce con-

victions within the very subjects represented.

It is not just conviction that is produced, however. By designing

space, giving it form, dimension, locating it in relation to other spaces,

opening or closing access to it, and so forth, space becomes a context

and resource for social action. According to Shields, "the possible,

likely and habitual routines of place are thus concretized in built envi-

ronments and sedimented in the landscape."46 The parking garage with

the speed bumps and tire-ripping grids promote driving at certain

speeds and directions without having to make direct person-to-person

appeals to drivers.

According to Valverde's history of the regulation of alcohol, the

policing of saloons provides another example of this spatial modality of

power.47 In the early twentieth-century zeal to eliminate the saloon (a

space thought to generate excess and immorality), efforts were made to

prohibit some spatial designs and mandate others. Local licensing

boards debated whether patrons should be able to stand at the bar, or

what particular arrangement of furniture would be most unsaloonlike.

Some argued that saloons should have large windows onto the street to

foster surveillance. Others argued against windows on the grounds

that the streetside viewers would be tempted or contaminated by the

sight. For the most part these efforts were thwarted by the fact that


101

there was no consensus over the essential or defining features of a

saloon. The significant point, however, is that these local regulations

more or less ignored the soul of the drinker. The governing impulse

was targeted upon the drinking establishment itself and only inciden-

tally on the drinkers who would inhabit it.

This analysis points to the opportunities, routines, and escape routes

offered by certain spaces to create or foreclose possibilities for sociabil-

ity and consumption (in the case of the saloon), or for being and con-

nection (in the case of the womb). And, as Shields notes, when behav-

iors engendered by particular environments become ritualized or

conventionalized, this produces roles and identities for the individuals

(or groups) inhabiting those spaces.48

In Western thought, dating from Bacon and Descartes, space has

been understood to be an empty void that contains objects. According

to this view, space exists (or can be known to exist) only where it con-

tains objects,49 although even then it is not reducible to them. More

recent theorists, such as Lefebvre, reject this definition of space as

empty, or as simply a container.50 Lefebvre claims that space is itself a

materially produced form, a concrete abstraction, similar to Marx's

notion of the commodity. Space is, in this formulation, a material real-

ization of its design and production. It is, according to Lefebvre, a con-

densation of the social relations of its production. Whereas the classical

view of space was that it was defined by its inhabitants, Lefebvre's

reconceptualization admits the opposite possibility: that spaces are

capable of defining their inhabitants. Social space endows and consti-

tutes subjectivity by presupposing certain kinds of inhabitants (how-

ever temporary or brief their habitation). In other words, space is con-

structed (by virtue of its siting, shape, size, dimensions, contours,

openings, and relationships with other spaces) with certain practices

and persons in mind.

Of course, the classical view of space as a void defined by its contents

is itself a particular historical construction, the product of precisely this

dialectic of spatialization. Up until the twentieth century, cities,

dwellings, and other places derived their meaning and form from a long

"history of habitation." These spaces bore the imprint of the lives and

routines of their inhabitants. And the perfect coincidence of space and

its inhabitants made it difficult to imagine one without the other.

It is precisely this history of habitation that is ruptured by the social

and geographic mobility of modernity. The circulation of persons

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throughout social structures and of bodies through and across geo-

graphic distances, renders older forms of regulation, in particular those

encompassing modes of subjectivity and power such as discipline,

more difficult. Under such conditions, it becomes much more effective

to focus on the governance of space and allow the circulation of sub-

jects.

Thus, we would propose that at the heart of governmentality is the

production and control of space. Individuals who circulate through or

inhabit the spaces so constructed are created as subjects enabled or dis-

abled by the environment. Governmentality offers a solution to the dif-

ficulty of governing free subjects in the modern liberal state. Explicit

moral instruction or legal prohibitions aimed at individual behaviors

are partially supplanted by a form of regulation that operates from afar

and somewhat obliquely. It operates by fabricating spaces designed to

constitute certain types of subjects, allow for certain types of behaviors,

and acknowledge certain types of truth.

Conclusions

Concerns about safety and danger have shaped the spaces and thereby

altered the professional lives, consciousness, and passions of scientists.

Because functions must be spatially separated-no exposing of bodies

in the presence of laboratory chemicals, no putting on makeup, no

ingesting food or drink of any kind-laboratories occupy more physi-

cal space for the same functions than they did in the past. In newer lab-

oratory buildings, spaces are allocated for in-house canteens so that

researchers need not travel to eateries. OSHA regulations prohibiting

eating in the lab can be satisfied while the sense of work too consuming

to abandon for lunch can also be sustained. Depending on the local cul-

ture, lunch/reading rooms have been allocated one per building, or

one per floor or corridor, creating unexpected but productive opportu-

nities for exchanges among members of different labs. Or, as is the case

in one newly renovated laboratory, lunch/reading rooms have been

attached to each investigator's laboratory, restricting rather than

expanding the possibilities of serendipitous exchanges among labs.

When space is at a premium, as it is in all universities, this mode of

accommodating the legal ban on food in the lab means that some per-

sons and some functions get short-changed or are eliminated entirely.

In the building where lunchrooms were allocated one per investigator's


1o3

lab, emeritus professors were moved out of the building, limiting their

continued interactions with the graduate students and junior faculty,

cutting short their professional careers.

Fred Donner offered us additional insight on the ways in which the

life and practices of experimental scientists have been transformed

through these new forms of regulation.

It used to be that all the professors' offices were, for example,

ensconced in the laboratories themselves, and that was part of

the general ethos, which was eating, sleeping, drinking, and

making love in the laboratories. It was all allowed. Or if it wasn't

allowed, people did it anyway. I mean they lived their lives in

the lab. Now there's none of that.... Offices, as you can see, are

cauterized from the laboratories, and if I see somebody eating,

smoking, or doing anything in the labs, they get fined one hun-

dred dollars. It's tough.

If the seventeenth-century chemist Robert Boyle brought chemistry

into his father's, sister's, and his own living quarters, twentieth-century

scientists brought, as Donner reports, their entire lives and selves into

the lab. As our introductory joke implies, the life of a scientist is sup-

posed to be a life devoted almost entirely to science; nonprofessional

aspects of life are sublimated to science. Indeed, Donner confesses that

the laboratory life, or life in the laboratory, was part of why he became

a scientist. He says, "I liked the life; I was a lab rat. I enjoyed being in

the lab." However, because of legal mandates and rules concerning

health, safety, and environmental protection, the characteristic features

of modern science and scientists have been transformed, and that way

of being a scientist is no longer possible. What was a life enacted almost

entirely within the laboratory has now been fragmented through the

partitioning and legal regulation of laboratory space. Shapin concludes

that the house of experiment is now a place where no one resides.51

Exploring the laboratory as an object of governance and as a spatial

means to regulate the dangers of science within liberal democracy, this

paper makes two moves. First, it shifts the focus of governance from the

liberal individual (who is made vulnerable to surveillance and control

through freedom) to an institution (which is made both dangerous and

vulnerable through its claims of autonomy and universality). Second,

we conceptualize governmentality as an ensemble of spatial processes

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that in many ways operate alongside the subject-individual or institu-

tion-who is then "free" to circulate within the regulated spaces.

We argue that precisely because the laboratory plays a crucial role in

the production and governance of science, it has become an important

locus for the legal regulation of science and the various material and

cultural dangers science poses. As laboratories are designed, sur-

veilled, and monitored by literally hundreds of discrete legal rules, sci-

entists themselves-as embodied historical subjects who eat, drink,

sleep, and make love-are increasingly dislodged from these spaces.

By helping to constitute more separated spaces for science, legal regu-

lations push the private lives of scientists out of the labs, stripping sci-

entific practice of some of its more personal and idiosyncratic aspects.

Law works here, as elsewhere, to standardize and homogenize differ-

ences. In this instance, however, it may contribute to, rather than

undermine, the authority of science and scientists, as personal and idio-

syncratic characteristics create vulnerabilities in science's claims to

impersonal, placeless universality.

Ironically, however, because scientists no longer understand the lab-

oratory as an "authenticating place" (that is, a unique place that

imparts truth through its specific location, design, or content), legal

regulation of space has been able to operate with a minimum of resis-

tance. In other words, it is the increasing invisibility of the laboratory in

the epistemology and moral authority of science that has enabled law

to govern science "at a distance." The project of governing science from

a distance has been enabled by the efforts of scientists themselves to

construct science as an abstraction, a practice that lies beyond the reach

of law. Thus, dislodging truth from the laboratory, or locating it only

incidentally therein (because any similarly appointed lab would do),

has opened within the "space of science" a "place for law."

NOTES

This paper was first prepared for presentation as a Keck Lecture at Amherst

College, Department of Law, Jurisprudence and Social Thought, November 6,

2000. We wish to thank Karina Coombs and Ayn Cavicchi for their extensive

help collecting materials on the history of laboratory construction and on the

contemporary legal regulation of laboratories. We are also indebted to col-

leagues who have been generous with their time and comments, helping us to

navigate new terrain and saving us from egregious errors. We are particularly


105

grateful to Jack Balkin, Susan Bandes, Paul Berman, Kristin Bumiller, David

Caudill, David Delaney, Joe Dumit, Michael Fischer, Brian Glenn, Douglas

Goodman, David Kaiser, Jim Kinsey, Jennifer Mnookin, Laura Beth Nielsen,

Jason Owen-Smith, Tanina Rostain, Austin Sarat, Joseph Swingle, Abha Sur,

Alison Young, and the members of the Amherst Seminar on Law and Popular

Culture, for their helpful critiques.

1. We note that science has remained a gendered occupation to a greater

degree and far longer than many other professions.

2. Egon Bittner, "Technique and the Conduct of Life," Social Problems 30

(1983): 249.

3. Steven Shapin, "The House of Experiment in Seventeenth-Century Eng-

land," Isis 79 (1988): 373.

4. Stephen Hilgartner, Science on Stage (Palo Alto: Stanford University

Press, 2000).

5. Michael Lynch, "Laboratory Space and the Technological Complex: An

Investigation of Topical Contextures," Science in Context 4 (1991): 51.

6. Inquiry into the epistemological and moral significance of space is

growing. See for example John Brigham's forthcoming study of courthouse

architecture.

7. Tom Gieryn and David Brian, "Authenticating Places," paper presented

to meetings of the American Sociological Association, 1999.

8. Shapin, "House of Experiment."

9. P. Gallison and E. Thompson, eds., The Architecture of Science (Cam-

bridge: MIT Press, 1999).

10. The standardization of modern laboratories should not be exaggerated

to suggest that there is no variation among individual labs or between different

fields of science. Our reference to Lego style is meant to highlight the fact of suf-

ficient standardization such that the pieces that are put into most labs can be

purchased from catalogs of mass-produced items. Some subjects, for example,

organic chemistry and many areas of bioscience, are much more standard than

others because the tools of these fields are fairly universal and interchangeable.

Physical chemistry and physics labs tend to be idiosyncratic-some might say

chaotic-in their layout rather than arranged in rows and bays. Here the con-

struction of the equipment is often a major part of the scientist's invention.

Thus standardization may affect parts of the building more than the contents,

but, as we have said, this varies by field. See note 14 below.

11. Tom Gieryn, "Biotechnology's Private Parts (and Some Public Ones),"

in Making Space for Science: Territorial Themes in Shaping of Knowledge, ed. Cros-

bie Smith and Jon Agar (New York: St. Martin's Press, 1998).


13. As we suggested briefly above, science continues to be a highly gen-

dered profession (Sonner and Holton 1995, Schiebinger 1999, Reports of the

Committees on the Status of Women Faculty, MIT 2002). It is even more strati-

fied by race. Stratification by social class, which had characterized science for

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centuries, is no longer strong. Thus, in making our historical comparison, we

can mention an increasing social accessibility in contrast to the material inac-

cessibility of the laboratory. The rationale and the consequence of this inacces-

sibility have changed, however, so that exclusion is also democratic, based on

danger and contamination rather than class and gentlemanly status.

14. The laboratory-in the sense of the pieces and parts that can be dislodged

from the building shell and walls and could be metaphorically shaken out-are

usually not described in publications unless the design is highly unusual. The

specific apparatus developed by an investigator is, however, often described in

some detail, especially if it is a new invention. In many instances, however, there

will be separate publications in a vehicle such as the Review of Scientific Instru-

ments that deal solely with the apparatus. In some areas of physical science,

especially where the techniques are part of the invention, it is rare not to have a

description of the apparatus and its use in making the measurements. "To be

sure, these descriptions are often insufficiently detailed for exact replication of a

measurement, but in fact it is often the case that others will copy an innovative

technique," Jimmy Lloyd explained to us, although scientists may have to

design the apparatus themselves. Thus, like the standardization of the labora-

tory space, representation of the apparatus in publications varies by field and

discipline. In general, it is not a central part of the publication unless the tech-

niques or instruments are new. See notes 22 and 23 below.

15. Of course the scientist does not disappear from science. In terms of pres-

tige, the naming of discoveries, functions, awarding of prizes, science pays

abundant homage to its great men [sic]. These honors (prizes, biographies,

immortality) accrue to, and as far as we can see are enjoyed by, embodied

human beings, the scientists. When we say that the scientist disappears, then,

we refer here to the fact that personal authority or biography is not relevant for

the authority of an observation and that the observation stands independent of

the person observing. Indeed, much of the practice of science works to strip it

of these human individual markers (Bruno Latour and Steve Woolgar, Labora-

tory Life: The Construction of Scientific Facts [Beverly Hills, Calif.: Sage, 1979];

Bruno Latour, Science in Action [Cambridge: Harvard University Press, 1988]).

16. Dorothy Smith, The Experienced World as Problematic: A Feminist Method,

Sorokin Lecture No. 12 (Saskatoon: University of Saskatoon, 1981); Nancy

Hartsock, "Political Change: Two Perspectives on Power," in Building Feminist

Theory: Essays from Quest, ed. Charlotte Bunch (New York: Longman, 1974).

17. Edgar Zilsel, "The Sociological Roots of Science," American Journal of

Sociology 47 (1942): 544-62.

18. Sandra Harding, The Science Question in Feminism (Ithaca, N.Y.: Cornell

University Press, 1986); Pierre Bourdieu, "The Specificity of the Scientific Field

and the Social Conditions of the Progress of Reason," in The Science Studies

Reader, ed. Mario Biagioli (New York: Routledge, 1998).

19. Bittner, "Technique."

20. Emile Durkheim, Selected Writings, edited and translated by Anthony

Giddens (Cambridge: Cambridge University Press, 1972), 88.

21. We do not suggest that laboratories are unimportant to the production


107

of science. Quite the opposite: Laboratories are essential vehicles for the pro-

duction of science. We emphasize only that the laboratory is no longer synony-

mous, as it once was, with the science. Today, it is the place where science is

produced; it is not science.

22. An important exception illustrates the general point (see notes o10 and 14

above). In presentations of experimental results, chemists and physicists pre-

sent information and images on the laboratory design and apparatus of their

research only when it is part of their invention, a singular and particular aspect

of the experimental design. Most often, however, presentations and publica-

tions contain little or no reference to the technologies and physical circum-

stances of the experimental apparatus, rarely enough that would enable the

necessary replication. That detailed technical information must be secured

through personal communication. This development stands in marked contrast

to the early scientific publications of the Royal Society. Referencing Shapin's

work on the early laboratories and Royal Society proceedings ("The House of

Experiment"), Gieryn remarks how those early accounts in the Royal Society

publications "were prolix-packed full of every little detail about how an

experiment was done, often with expensive engravings of the apparatus,

enabling the informed reader to become a 'virtual witness' via a reading of the

fact text. But over time, the scientific paper became less explicit in narrating

every detail, and more laconic about how an experiment was conducted or

with what equipment-shorthand codes were devised, and many particulars

were assumed to be so obvious to peer readers that mention of them could be

safely dropped. In effect, the amount of technical knowledge needed to read a

scientific journal was enlarged significantly as actual descriptions of the bones

of experiments became ever more brief" (Tom Gieryn and David Brain,

"Authenticating Places," paper presented at the American Sociological Associ-

ation, 1999, 4).

23. Tom Gieryn, "Model Farms as Truth-Spots," paper presented to the

Society for Social Studies of Science, October 29, 1999.

24. Austin Sarat, "'. . . The Law Is All Over': Power, Resistance, and the

Legal Consciousness of the Welfare Poor," Yale Journal of Law and the Humani-

ties 2 (1990): 343.

25. Jason Owen Smith and Walter W. Powell, "To Patent or Not: Faculty

Decision and Institutional Success at Technology Transfer," Journal of Technol-

ogy Transfer 26, no. o10 (2002): 99-114; Walter Power and Jason Owen Smith,

"Universities and the Market for Intellectual Property in the Life Sciences,"

Journal of Policy Analysis and Management 17, no. 2 (1998): 253-77.

26. Henri Lefebvre, The Production of Space, trans. Donald Nicholson-Smith

(Oxford: Blackwell, 1991), 38.

27. Ibid.

28. H. Gusterson, Nuclear Rites: A Weapons Laboratory at the End of the Cold

War (Berkeley and Los Angeles: University of California Press, 1996).

29. Lefebvre, The Production of Space, 38.

30. Herbert Muschamp, "A Rare Opportunity for Real Architecture Where

It's Needed," New York Times, October 22, 2000, Arts and Leisure, 1, 38-39.

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32. Cf. S. J. Rosenlund, The Chemical Laboratory: Its Design and Operation: A

Practical Guide for Planners of Industrial, Medical, or Educational Facilities (Park

Ridge, N.J.: Noyes, 1987).


34. The names of all subjects are pseudonyms.

35. Gusterson, Nuclear Rites.

36. Emily Martin (1992) has made a similar argument concerning the cul-

tural understandings of bodily danger among American doctors in The Woman

in the Body: A Cultural Analysis of Reproduction (Boston: Beacon, 1992 [2d ed.]).

37. A. R. Radcliffe-Brown, "On Joking Relationships," in Structure and Func-

tion in Primitive Society (New York: Free Press, 1965).

38. Gusterson, Nuclear Rites, 115.

39. Ibid., 117.

40. G. Deleuze, "Un Nouveau Archiviste," Critique 274 (March 1970):

195-209 (quote appears on p. 209), quoted from Rob Shields, Places on the Mar-

gin: Alternative Geographies of Modernity (Routledge, 1991, 30).

41. Michel Foucault, "Governmentality," in The Foucault Effect: Studies in

Governmental Rationality, ed. Graham Burchell, Colin Gordon, and Peter Miller

(Chicago: University of Chicago Press, 1991), 31.

42. Nikolas Rose, Powers of Freedom: Refraining Political Thought (Cambridge:

Cambridge University Press, 1999).

43. Mariana Valverde, Diseases of the Will: Alcohol and the Dilemmas of Free-

dom (Cambridge: Cambridge University Press, 1998).

44. Rosalind Pollack Petchesky, "Fetal Images: The Power of Visual Culture

in the Politics of Reproduction," Feminist Studies 13 (1987): 263.

45. Ibid., 287. See Eileen McDonagh (1996) for an elaboration of this con-

struction of pregnancy that turns the interpretation of an adversarial relation-

ship against its more common purpose to privilege the fetus. McDonagh

describes pregnancy as an assault, invasion, and habitation of a woman's body

by another person. Eileen McDonagh, "From Pro-Choice to Pro-Consent in the

Abortion Debate: Reframing Women's Reproductive Rights," in Studies in Law,

Politics, and Society, edited by Susan S. Silbey and Austin Sarat, vol. 14 (1994),

245-90; McDonagh, Breaking the Abortion Deadlock: From Choice to Consent (New

York: Oxford University Press, 1996).

46. Rob Shields, Places on the Margin: Alternative Geographies of Modernity

(New York: Routledge, 1991).

47. Valverde, Diseases of the Will.

48. Shields, Places on the Margin.

49. F. K. Harre, introduction to The Natural Landscapes of Canada, ed. J. B.

Bird (Toronto: Wiley, 1972).

50. Lefebvre, The Production of Space.


Digital Networks, State

Authority, and Politics

Saskia Sassen

The proliferation of global computer-based networks and the digitiza-

tion of economic and political activities, thereby enabled to circulate in

these networks, raise questions about the effectiveness of current forms

of state authority and democratic accountability. In a context of multi-

ple institutional changes linked to globalization, digitization has

enabled the entry of subnational entities, such as the global city, and

supranational entities, such as global markets, into domains once

exclusive to national states. This rescaling process does not always cor-

respond to existing formalizations of state authority.

These developments, in fact, destabilize older formal hierarchies of

scale and enable the emergence of new ones, often not yet fully formal-

ized. Hierarchies of scale dating from the period that saw the ascen-

dance of the nation-state continue to operate; they are typically orga-

nized in terms of institutional size and territorial scope: from the

international down to the national, the regional, the urban, and the

local. But today's rescaling dynamics cut across institutional size and

across the institutional encasements of territory produced by the for-

mation of national states.' What impact do these developments have on

the regulatory capacities of states, and what is their potential for under-

mining state authority as constituted over the last two centuries? More

analytically, we might ask whether these developments signal new

types of imbrications between authority and place.

This essay examines these questions by focusing on how digitization

and the associated rescalings have strengthened older actors and

enabled novel actors and spaces to engage the competence, scope, and

o109

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exclusivity of state authority. The particular cases considered are global

finance and cross-border activist politics, both of which are instances of

a transformative digitization. Both instances involve multiple causali-

ties and contingencies, and by focusing on digitization I do not mean to

posit a single causality. On the contrary, digitization is caught up with

other dynamics that shape its development and uses. In some circum-

stances it is completely derivative, a mere instrumentality of other

dynamics; in others, it is constitutive of new domains. One key

assumption here is that understanding the imbrications between digiti-

zation and politico-economic processes requires recognizing the

embeddedness of digital space. When focusing on the social order,

purely technological readings of the technical capacities entailed by

digitization are not adequate.

This essay develops through an examination of three dynamics. The

first is the relation between state authority and the Internet, a necessary

introduction to a subject weighed down by assumptions about the

Internet's capacity to override existing relations of law to place, notably

that firms, individuals, and NGOs can elude government control when

operating in cyberspace. The second is the relation between state

authority and the global capital market, which is not only largely elec-

tronic and de facto supranational but also enormously powerful. The

third is global politics based in local concerns and struggles, politics

that expand democratic participation beyond state boundaries. These

noncosmopolitan versions of global politics entail relations of law to

place that are in some respects opposite to those we find in global

finance. My effort here is to map a conceptual problematic rather than

to provide all the answers.

State Regulation and the Internet

The condition of the Internet as a decentralized network of networks

has contributed to strong notions about its built-in autonomy from

state power and its capacity to enhance democracy, strengthening both

market dynamics and access by civil society.2 At the core of the Internet

are so-called Internet exchanges, national backbone networks, regional

networks, and local networks. These networks are often privately

owned.3 While in principle many of the key features of the Internet do

have a capacity to enhance democracy, its technology permits signifi-

cant control of exchanges and limitations on access.

DIGITAL NETWORKS, STATE AUTHORITY, AND POLITICS

111

In many ways the Net escapes most conventional jurisdictions,4 but

this does not mean the absence of regulation. Much of the literature on

this issue operates at one of two very different levels. The first is a set of

notions rooted in an earlier emphasis on the Internet as a decentralized

space where no structures of authority can be instituted. The second is

technical, a rapidly growing literature stimulated by the increasing

importance of Internet addressing and the domain name system reg-

istry, with associated legal and political issues.

At least three factors constitute a de facto management of the Inter-

net. One is the governmental authority to set technical and operational

standards for both hardware and software. The second is the power of

large corporate interests to orient the Internet toward privatizing capa-

bilities. And the third is the central authority overseeing crucial fea-

tures having to do with addresses and numbers granting, and the

domain name system. These three conditions do not show that regula-

tion is ipso facto possible. They merely signal that a representation of

the Net as escaping all authority is inadequate.

Boyle among others has shown that the set of standards built into the

Internet undermines claims that the state cannot regulate it.5 Indeed,

the state's regulatory agenda is already partially contained in the

design of the technologies. Thus, the state can regulate, but not in this

case via sanctions. Boyle alerts us to the fact that privatized and tech-

nologically based rule enforcement would take policing away from the

scrutiny of public law, freeing states from some of the constitutional

and other constraints restricting their options. Even in states that oper-

ate under the rule of law, government agencies can abuse power, as

examples in the United States make clear.6

The second de facto "regulatory" condition is the power of private

corporate interests to shape the activity space of the Internet. It makes

clear that the question of democratic governance goes far deeper than

the types of bodies set up to govern. Beyond governance, the actors

shaping the development of the Internet diverge sharply, ranging from

the original group of computer scientists that developed the open and

decentralized features of the Internet to multinational corporations

concerned with the protection of intellectual property rights. Most

recently, there has been a strengthening of civic and political groups

concerned with the extent to which private corporate interests are

shaping Internet access and development.

These divergent interests are captured in the fact that the leading

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efforts in software development since the mid-199os have been fire-

walled intranets for firms, firewalled tunnels for firm-to-firm transac-

tions, identity verification, protection of trademarks, and billing. The

rapid increase of such software does not necessarily strengthen the pub-

licness of the Net and risks orienting it toward commercial interests.

This is especially significant if less new software is aimed at strengthen-

ing the openness and decentralization of the Internet, as was the case in

the earlier phases. Since 1995-96 political and technical developments

have brought about an increase in controls.7 Prior to 1995 users could

more easily maintain their anonymity while online, better protecting

privacy. The architecture of the Internet inhibited "zoning"-any tech-

nique that facilitates discrimination in access to, or distribution of, some

good or service.8 With the drive to facilitate e-commerce, this has

changed: the architecture of the Internet now facilitates zoning.9 These

conditions inevitably play a role in Internet governance.

The third factor is increasingly formalized central authority govern-

ing key functions of the Internet.'0 Its nature is not necessarily akin to

regulatory authorities, but it is a gatekeeping system and increases

oversight capacities. These capacities demand considerable innovation

in our concepts of regulation." The Internet Corporation for Assigned

Names and Numbers (ICANN), established in the summer of 1998 and

assigned to oversee the Net's address system, represents a formaliza-

tion of the earlier authority.12 It started as a group of insiders with fairly

loose and ineffective bylaws. By early 1999 it had implemented conflict-

of-interest rules, opened up some board meetings, and worked toward

developing a mechanism to elect board members in an effort to increase

accountability.13 Setting up ICANN has by no means solved all Internet

governance problems.14

ICANN is the subject of growing debate within digital subcultures.

Many commentators believe ICANN is setting up an undemocratic reg-

ulatory apparatus, largely dominated by U.S. interests, notably large

corporations.15 What I want to emphasize here is that these trends sig-

nal the existence of Internet management. They also show us, perhaps

more importantly, the necessity for fair governance if public interest is

also to shape the Internet. Market forces alone will not ensure that the

Internet strengthens democratic institutions, despite the assurances of

many a commentator. As the Internet has become more international

and economically important, desire for a more organized and account-

able system has grown.


113

The debate about the Internet is divided on the question of whether

it can be governed at all.16 Simplifying an overlapping set of positions,

we can say that for some the Internet is an entity that can be subjected

to governance, while for others there is no such entity, only a decen-

tralized network of networks that at best can lend itself to coordination

of standards and rules.

Those who consider the Internet a single entity have focused on the

establishment of a system of property rights and other such protections

and the means for enforcing them. They have disagreed on how to

administer and enforce such a system. Some believe that it must be

attached to a multilateral organization, notably the International

Telecommunications Union (ITU) and the World Intellectual Property

Organization, because trademark laws are national, not global.'7 This

would ensure recognition from member governments. For others, gov-

ernance has to come from the institutions of the Internet itself. Gould,

for example, argues that there is no need for outside institutions; rather,

Internet practices could produce a sort of constitutional governance

pertaining exclusively to the Net.'8 A third type of proposal has been

developed by Mathiason and Kuhlman,19 who suggest an international

framework convention agreed upon by governments, akin to the

United Nations Framework Convention on Climate Change.

On the other hand, those experts who say there is no such entity as

the Internet, only a decentralized network of networks, argue that there

is no need for external regulation or coordination, which would in any

case be ineffective. But they tend to agree with the proponents of gov-

ernance mentioned above on the need for a system of property rights.

Gillett and Kapor argue for diffused coordination mechanisms; the

authority of such coordination, they posit, could be more easily legiti-

mated in a distributed network environment like the Internet, and

increasingly so given a stakeholder community that is becoming

global.20 Mueller argues against an Internet regulatory agenda and

against the policing of trademark rights.21 He is critical of the very term

governance, as it is incompatible with what ought to be the purpose of

any framework, that of facilitating internetworking. He argues that too

much effort has focused on restricting the ability to internetwork.

In one of the most systematic examinations of these various per-

spectives, Pare argues that neither of these two types of approaches

offers much insight into the processes actually shaping the governance

trajectory of the Internet, particularly the addressing system.22 Nor,

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argues Pare, can these approaches account for the structures of the

organizations currently managing the core functions of internetwork-

ing (both at the national and at the international level) or the likeli-

hood of their survival.23

One important issue is the role of the features of the technology in

shaping forms of governance or coordination.24 Post and Johnson argue

that transnational electronic networks create jurisdictions different

from those of territorially based states, and hence there is little purpose

in replicating regulatory forms of the latter for the Internet.25 These

authors maintain that various dimensions of internetworking, includ-

ing Internet addressing, could be governed by decentralized emergent

law that eventually could converge into common standards for mutual

coordination. For others emphasizing technological constraints, the

Internet has been a regulated environment given the standards built

into the hardware and software. Thus Reidenberg agrees that the Inter-

net undermines territorially based regulatory governance.26 But new

models and sources of rules continue to be created out of the technical

standards and their capacity to establish default boundary rules that

impose order in network environments.27 Technical standards can be

used as instruments of public policy, and in this regard Reidenberg

posits the emergence of a Lex Informatica.28 This is clearly reminiscent,

for those of us working on the global economy today, of the Lex Mer-

catoria, a concept now being revived in the context of economic global-

ization and privatization.29

But the Internet is only one portion of the vast new world of digital

space, and much of the power to destabilize state authority attributed

to the Internet actually comes from private dedicated digital networks,

such as those used in wholesale global finance. To this topic I turn now.

Distinguishing Private and Public-Access Digital Space

Many assertions about digital dynamics and potentials are actually

about processes happening in private digital space and have little to do

with the Internet.30 This is a serious confusion. Most wholesale finan-

cial activity and other significant digital economic activities take place

in private digital networks.31

Private digital networks make possible forms of power other than

the distributed power we associate with public digital networks. Finan-

cial markets illustrate this well. The three properties of electronic net-


115

works-decentralization, simultaneity, and interconnectivity-have

produced orders-of-magnitude increases in the global capital market.

In a narrow technical sense, this resembles the sharp increase in the

number of transactions individuals can make in a given amount of time

using the Internet, as compared with previous technologies. However,

given that digital networks dedicated to financial activities are embed-

ded in a specific social field-the financial sector-the result of these

technical features is increased concentration rather than increased dis-

tribution, as is the case in the Internet. At the same time, the limits of

the weight of that social field-in this case, the financial sector-are set

by the transformative impact of digitization on the field itself.

One of the key outcomes of digitization on finance has been the jump

in orders of magnitude of value transacted. There are basically three

ways in which digitization has contributed to this outcome. One is the

use of sophisticated software, a key feature of the global financial mar-

kets that has made possible enormous innovation. It has raised the level

of liquidity as well as increased the possibilities of liquefying forms of

wealth hitherto considered nonliquid.32 This can require enormously

complex instruments; computers facilitated the development of these

instruments and enabled their widespread use, because much of the

complexity could be contained in software.

Second, the features of digital networks can maximize the implica-

tions of global market integration by producing the possibility of simul-

taneous interconnected transactions. Since the late 198os, a growing

number of financial centers have become globally integrated as coun-

tries deregulated their economies. This nondigital condition raised the

impact of the digitization of markets and instruments. Third, because

finance involves transactions, not just flows of money, the technical

properties of digital networks assume added meaning. Elsewhere I have

examined organizational complexity as a key variable allowing firms to

maximize the benefits they derive from digital technology.33 In the case

of financial markets, we could make a parallel argument.

The combination of these conditions has contributed to the distinc-

tive position of the global capital market vis-a-vis other components of

economic globalization. Indicators are the monetary values involved

and, though more difficult to measure, the growing weight of financial

criteria in economic transactions, sometimes referred to as the finan-

cialization of the economy. Since 1980, the total stock of financial assets

has increased three times faster than the aggregate GDP of the twenty-

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three highly developed countries that formed the Organisation for Eco-

nomic Cooperation and Development (OECD) for much of this period;

and the volume of trading in currencies, bonds, and equities has

increased about five times faster and now surpasses this aggregate

GDP by far.34 The latter stood at $30 trillion in 2000, while the world-

wide value of internationally traded derivatives reached over $65 tril-

lion, and $192 trillion by 2002 (BIS 2003). To put these figures in per-

spective, compare the value of other major components of the global

economy, such as cross-border trade (ca. $8 trillion in 2000) and foreign

direct investment stock ($6 trillion in 2000). Foreign exchange transac-

tions were ten times as large as world trade in 1983, but seventy times

larger in 1999, even though world trade has itself grown sharply over

this period.35

In brief, the deregulation of domestic financial markets, the global

integration of a growing number of these markets, along with comput-

ers and telecommunications, together have contributed to an explosive

growth in the value of financial transactions.36 The high degree of inter-

connectivity, in combination with instantaneous transmission, signals a

potential for further exponential growth.37 The increase in volumes per

se may be secondary to their deployment, for instance, to overwhelm

national central banks, as happened in 1994 in Mexico and the Thai cri-

sis in 1997. In such cases, the fact of volume itself becomes a significant

variable. Further, when globally integrated electronic markets enabled

investors to rapidly withdraw well over $ioo billion from a few coun-

tries in Southeast Asia in the 1997-98 crisis, and the foreign currency

markets had the orders of magnitude to alter exchange rates radically

for some of these currencies, then digitization emerges as a significant

variable that goes beyond its technical features.

What is the impact of this concentration of capital in markets that

allow rapid, high-volume circulation in and out of countries? Does the

global capital market now have the power to "discipline" national gov-

ernments, that is, to subject certain monetary and fiscal policies to

financial criteria, where before this was not the case? How does this

potential affect national economies and government policies more gen-

erally? Does it alter the functioning of democratic governments? Does

this kind of concentration of capital reshape the accountability relation

that has operated through electoral politics between governments and

their people? Does it affect national sovereignty? And, finally, do these

changes reposition states and the interstate system in the broader


117

world of cross-border relations? These are some of the questions raised

by the particular ways in which digitization interacts with other vari-

ables to produce the distinctive features of the global capital market

today. The responses in the scholarly literature vary, ranging from

those who find that in the end the national state still exercises ultimate

authority, to those who see an emergent power gaining at least partial

ascendance over national states.38

If the global capital market represents a concentration of power that

is capable of influencing national government economic policy, and by

extension other policies, norms are a key issue. Today global financial

markets have produced a logic that becomes integrated into national

public policy and sets the criteria for "proper" economic policy.39 The

operational logic of the capital market contains criteria for what leading

financial interests today consider sound financial policy. These criteria

have been constructed as norms for important aspects of national eco-

nomic policymaking, going far beyond the financial sector as such. This

dynamic has become evident in a number of countries as they become

integrated into global financial markets. For many countries, these

norms have been imposed from the outside. As has been said often,

some states are more sovereign than others.40 Among the familiar ele-

ments that have become norms of "sound economic policy" are the

autonomy of central banks, anti-inflation policies, exchange rate parity,

and the items usually referred to as "IMF conditionality."4'

Digitization of financial markets and instruments played a crucial

role in increasing cross-border integration and hence the raw power of

the global capital market. Yet this process was shaped by interests and

logics that typically had little to do with digitization per se. This makes

clear the embeddedness of digitized markets in complex institutional

settings. Moreover, while the raw power achieved by the capital mar-

kets through digitization also facilitated the institutionalizing of certain

finance-dominated economic criteria in national policy, digitization per

se could not have done so.

One crucial implication of this embeddedness of global finance is

that the supranational electronic market space that partly operates out-

side any government's exclusive jurisdiction is only one of the spaces

for digitized industry. The other type of space is marked by the thick

environments of actual financial centers, places where national laws

continue to operate, albeit often profoundly altered laws. The embed-

dedness of private economic electronic space entails the formation of

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massive concentrations of infrastructure, not just worldwide dispersal,

and a complex interaction between digitization and conventional com-

munications infrastructure-one much more subject to direct state

authority. The notion of "global cities" captures this particular embed-

dedness of global finance in actual financial centers.42 In the case of pri-

vate digital spaces such as those described here for global finance, this

embeddedness carries significant implications for theory and for poli-

tics, specifically, for the conditions through which governments and

citizens can act on the new electronic world.

In brief, the private digital space of global finance intersects in at

least two specific ways with the world of state authority and law. The

first is through the introduction into national state policy of new types

of norms, reflective of the operational logic of the global capital market.

The second is through the partial embeddedness of even the most digi-

tized financial markets in actual financial centers, which partly returns

global finance to the world of national governments. Global digitized

finance makes legible some of the complex and novel imbrications

between law and place. It does not simply override national state

authority. Rather, the result is both the use of that authority for the

implementation of regulations and laws that respond to the interests of

global electronic financial markets, and the renewed weight of that

authority in the case of financial centers.43

A Politics of Places on Cross-Border Circuits

An imbrication of law and place perhaps opposite from that of global

finance is evident in another domain that has been transformed by dig-

itization, yet under radically different conditions. The key digital

medium is the public-access Internet, and the key actors are largely

resource-poor organizations and individuals. The Internet has enabled

a new type of cross-border politics that can bypass interstate politics.

The participation of small organizations and resource-poor individuals

signals the possibility of a sharp growth in cross-border politics by

actors other than states. This produces a specific kind of activism, one

centered in multiple localities yet connected digitally at scales larger

than the local, reaching a global scale in many instances.

Of particular interest here is the potential for localized initiatives to

become part of cross-border networks through the Internet. Previously

subject to specific national and local laws, actors can move to a global

scale where these laws are dissolved into the collective presence of dif-


119

ferent localities in the global network. What kind of law holds sway in

a network of multiple localities?

Current uses of digital media in this new cross-border political

activism suggest two broad types of digital activism: one consists of

place-centered activist groups who connect with other such groups

around the world. The available evidence shows that most often these

places are cities, though not exclusively.44 Activists can develop net-

works for circulating information (about environmental, housing,

political, and other matters) and for executing political work and

deploying strategies of engagement.

There are many examples of such cross-border political work. For

instance the Society for the Promotion of Area Resource Centres

(SPARC), started by and centered on women, began as an effort to

organize slum-dwellers in Bombay to get housing. Now it has a net-

work of such groups throughout Asia and in some cities in Latin Amer-

ica and Africa. By being part of such a global network, the place-based

activists have gained something vis-a-vis the local governments they

need to engage: it is not money or power per se, but perhaps something

akin to political clout that has been an enabling condition. This repre-

sents one of the key forms of critical politics that the Internet can make

possible: A politics of the local with a difference-these are localities

connected with each other across a region, a country, or the world.

Because the network is global does not mean that all activities happen

at the global level.45

The second type of digital politics is one that does most of its work

within the network and then may converge on an actual terrain for

activism-as was the case of demonstrations in Seattle against the

World Trade Organization, the first in a series organized by the

antiglobalization network in cities hosting meetings of the major mem-

bers and institutions of the supranational system, or the coordination of

demonstrations against the war on Iraq held in over six hundred cities

on February 15, 2003. The extent to which the work and the political

effort is centered on the transactions in the digital network varies.

Organizing against the Multilateral Agreement on Investment was

largely a digital event. But when these digital political actions hit the

ground, they can do so very effectively, especially in the concentrated

places that cities are. This digital activism differs from hacktivism,46 in

that it is partly embedded in nondigital environments that shape, give

meaning, and to some extent constitute the event. It also has to be dis-

tinguished from cyberwar.47

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These forms of activism contribute in multiple microlevel ways to an

unbundling of the exclusive authority, including symbolic authority,

over territory and people we have long associated with the national

state. Among the more strategic instantiations of this unbundling is

probably the global city, which operates as a partly denationalized plat-

form for global capital and at the same time concentrates an enormous

mix of people from all over the world. The growing intensity of trans-

actions among these cities is creating a strategic cross-border geogra-

phy that partly bypasses national states.48 The new network technolo-

gies further strengthen these transactions, whether they are electronic

transfers of specialized services among firms or Internet-based com-

munications among the members of diasporas and globally dispersed

interest groups.

The large city of today, especially the global city, and digital space

are two sites where the new claims by nonformal (or not yet formal-

ized) political actors assume concrete forms and can lead to cross-bor-

der transactions. Particularly in the case of cities, the partial loss of

power at the national level makes possible new forms of power and

politics at the subnational level. The national as container of social

process and power is cracked.49 This cracked casing opens up possibil-

ities for a political geography that links subnational spaces and allows

nonformal political actors to engage in cross-border activities. The city

and digital space are far more concrete spaces for politics than that of

the nation. These spaces can accommodate nonformal political actors in

a way that is much more difficult at the national level.50 Nationally pol-

itics needs to run through existing formal systems: whether the elec-

toral political system or the judiciary (taking state agencies to court),

and on the international scale, it needs to run through the interstate sys-

tem. Nonformal political actors are rendered invisible in the space of

national politics and largely lack access to the interstate system.

The combination of the strengthened geographies of transactions

that connect major cities across the globe and access to the new network

technologies has made it possible for a growing variety of organiza-

tions to join efforts with other such organizations around the world.

This is perhaps most evident today with small groups organized on

behalf of environmental issues, human rights, first-nation peoples, or

(typically nationality-based) immigrants. They are often located in only

one city of a country and may not be national, in the sense of operating

nationwide. Yet today these organizations can interact with global net-

works of organizations with similar aims. These aims may be parallel


121

local struggles, as is often the case with human rights organizations or

the SPARC effort alluded to above, or they may concern a global scale,

such as efforts to protect the ozone layer.

We can think of this mix of conditions and resources as facilitating a

place-specific politics with global span. It is a type of political work

deeply embedded in people's actions and activities5' but made possible

partly by the existence of global digital linkages. Further, it is a form of

political and institution-building work centered in cities and networks

of cities and in nonformal political actors. We see here the potential

transformation of a whole range of "local" conditions or institutional

domains (such as the household, the community, the neighborhood,

the local school and health care entities) where, for instance, women

"confined" to domestic roles can remain the key actors. Formerly expe-

rienced as nonpolitical or domestic, these places are transformed into

"microenvironments with global span."

What I mean by this construct is that technical connectivity creates a

variety of links with other similar local entities in other neighborhoods

in the same city, in other cities, in neighborhoods and cities in other

countries.52 A partly deterritorialized community of practice can

emerge that creates horizontal communications, collaborations, soli-

darities, and supports that arise out of specific localized struggles. Peo-

ple can experience themselves as part of global nonstate networks in

their daily localized political work. They enact some features of "global

civil society" in the microspaces of daily life rather than on some puta-

tive global stage.

The new network technologies have amplified these possibilities

and have in good part given them the essential vehicle necessary for the

outcome. But technology by itself could not have produced the out-

come. The emergence of global digital networks as nodes in trans-

boundary politics is the result of a complex mix of institutional devel-

opments. Perhaps crucial among these are globalization and the

international human rights regime. These have helped create formal

and informal operational openings for nonstate actors to enter interna-

tional arenas that were once the exclusive domain of national states.

Various, often as yet very minor developments, signal that the state is

no longer the exclusive subject for international law or the only actor in

international relations. Other actors-from NGOs and first-nation peo-

ples to immigrants and refugees who become subjects of adjudication

in human rights decisions-are emerging as subjects of international

law and actors in international relations. That is to say, these nonstate

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actors can gain visibility as individuals and as collectivities, emerging

from the invisibility of aggregate membership in a nation-state exclu-

sively represented by the sovereign.

One of the most radical forms assumed today by the transformations

in the linkages that connect people to territory is the loosening of iden-

tities from traditional sources, such as the nation or the village. This

unmooring in the process of identity formation now probably affects

only a minority of people but includes the types of groups that concern

me here. For these groups this condition can engender new notions of

community of membership and of entitlement. The mix of focused

activism and local/global networks creates conditions for the emer-

gence of at least partly transnational identities.53 From the perspective

of my concerns in this essay, we might think of the enabling of transna-

tional identities as a condition that can facilitate cross-border relations

that at least partly bypass the world of interstate relations.

The space constituted by the worldwide grid of global cities, marked

by sharp imbrications of digital and nondigital conditions, is a strategic

one for the formation of transnational identities and communities. It is

characterized by density and diversity of transactions and by institu-

tional thickness. It is a space with new economic and political poten-

tialities that are both place-centered, that is, embedded in particular

and strategic cities, and transterritorial, because sites that are not geo-

graphically proximate can be intensely connected. Capital transmi-

grates in this cross-border geography, but so do people, both the rich,

that is, the new transnational professional workforce, and poor, that is,

most migrant workers. It is also a space for the transmigration of cul-

tural forms, for the reterritorialization of "local" subcultures. There is a

good possibility of transnational identities emerging as a consequence

of the thickness itself of this cross-border space even in the absence of

political aspirations in that direction. While these developments do not

neutralize attachments to a country or national cause, they do shift this

attachment to include translocal communities of practice or member-

ship, for example the transnational professionals of global finance or

the activist organizations described here.

Conclusion

The interactions between regulation and digital space are complex and

multivalent. On the one hand, there are several ways in which formal


123

and de facto "regulatory" forces are partly shaping the Internet. These

forces include government-largely U.S. government-standards built

into the hardware and software and the protection of property rights,

and they include the interests of multinational corporations built into

what are today the major directions of technical developments in soft-

ware, hardware, infrastructure, and "governance."

On the other hand, digitization has strengthened specific capabilities

of nonstate actors, such as global financial markets and political orga-

nizations, which can now operate in domains once exclusive to national

states in the world of cross-border relations. These nonstate actors are

gaining influence, and their claims are gaining legitimacy. For instance,

it could be argued (and it is my argument) that private digital space,

with global finance its emblematic manifestation, has had a far sharper

impact on sovereignty than has the Internet. The globalization and the

digitization of financial markets have made them a powerful presence.

Indeed, the logic of the global capital markets is today not merely a con-

dition of raw power but one with normative potential, in that the oper-

ational logic of these markets has contributed criteria for the "proper "

(that is, neoliberal) governmental conduct on the economy. This new

power of the financial markets is partly a consequence of their greater

magnitude, in good part through digitization and global integration,

two conditions that are mutually reinforcing. The capacity of these

markets to affect existing meanings of sovereignty is considerable, in

my view greater, thus far, than that of the Internet. However, access to

low-cost connectivity via the Internet along with the specific features of

these digital networks is enabling a proliferation of grassroots politics

that may eventually redefine aspects of the public sphere and of citi-

zenship practices and identities. Even as it allows place-bound strug-

gles embedded in national specifics to become part of global networks,

the Internet in part denationalizes such political work.

Insofar as the operations of these two types of nonstate actors are

partly embedded in actual territories, they reenter the terrain of

national state authority. But both the partiality of this reentry and its

specific features mark a difference: the insertion of the global into what

has been constructed historically as national, and the insertion of the

national into what is being constructed as the global. In the case of

global finance, its operational logic is inserted into the public domain,

reemerging as criteria for the governing of national economies. In the

case of the new types of global activism, the national specificities of

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place-based struggles around the world are inserted into global net-

works, while being partially erased and amalgamated through the

sheer multiplication of national differences.

One of the greatest challenges to law and governance is the lack of

accountability inherent in the capabilities now deployable by powerful

actors, be they private or governmental, in the pursuit of their interests.

Unaccountable actors hold power to shape key features of digital space.

In the case of private actors, this capacity raises the issue of who can

claim legitimacy for their interests. In the case of governments, it raises

the issue of ensuring public scrutiny of government actions.

NOTES

This essay is a revised text of the Keck Lecture delivered at Amherst College,

February 13, 2000. It is based on a larger project, to be published as Denational-

ization: Territory, Authority, and Rights in a Global Digital Age (Princeton: Prince-

ton University Press, 2004).

1. Peter J. Taylor, "World Cities and Territorial States under Conditions of

Contemporary Globalization," Political Geography 19, no. 5 (2000): 5-32; John

Gerard Ruggie, "Territoriality and Beyond: Problematizing Modernity in Inter-

national Relations," International Organization 47, no. 1 (1993): 139-74; Saskia

Sassen, Denationalization: Territory, Authority, and Rights in a Global Digital Age

(Princeton: Princeton University Press, 2003); Saskia Sassen, "Territory and

Territoriality in the Global Economy," International Sociology 15, no. 2 (2000):

372-93.

2. What constitutes the Internet is continuously changing (World Informa-

tion Order, World-Information Files: The Politics of the Info Sphere [Vienna: Insti-

tute for New Culture Technologies; Berlin: Center for Civic Education, 2002]).

Some years ago it could still be described as a network of computer networks

using a common communication protocol (IP protocol). Today networks using

other communication protocols are also connected to other networks via gate-

ways. Further, the Internet is not only constituted by computers connected to

other computers: also connected are point-of-sale terminals, cameras, robots,

telescopes, cellular phones, television sets, and an assortment of other hard-

ware components.

3. On October 24, 1995, the U.S. Federal Networking Council defined the

term Internet as follows:

"Internet" refers to the global information system that (i) is logically

linked together by a globally unique address space based on the Inter-

net Protocol (IP) or its subsequent extensions/follow-ons; (ii) is able to


125

support communications using the Transmission Control

Protocol/Internet Protocol (TCP/IP) suite or its subsequent exten-

sions/follow-ons, and/or other IP-compatible protocols; and (iii) pro-

vides, uses, or makes accessible, either publicly or privately, high level

services layered on the communications and related infrastructures

described herein. (http://www.itrd.gov/fnc/Internet_res.html)

4. David G. Post, "Anarchy, State, and the Internet: An Essay on Law-Mak-

ing in Cyberspace," Journal of Online Law (1995).

5. James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hard-

Wired Censors (Washington, DC: College of Law, American University, 1997).

6. The power of the U.S. government to engage in multiple forms of sur-

veillance, including surveillance of corporations in countries run by govern-

ments who are strong and long-term allies, was illustrated in the alleged use of

Echelon system to spy on European corporations (World Information Order,

World-Information Files, chap. 6).

7. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic

Books, 1999).

8. Lessig labels the architecture of the Internet "code," and he means by

this the software and hardware that constitutes it and determines how people

interact or exist in this space.

9. Elsewhere I have made a similar argument using the notion of the emer-

gence of cybersegmentations. See Saskia Sassen, "Digital Networks and

Power," in Spaces of Culture: City, Nation, World, ed. M. Featherstone and S. Lash

(London: Sage, 1999), 49-63.

10. This centrally managed function of the Internet involves the control and

assignment of the numbers that computers need to locate an address. It there-

fore can instruct all the top "root servers" of the Net-the computers that exe-

cute address inquiries-which will accept these instructions. This is, clearly, a

power of sorts. As is well known, the particular function of assigning addresses

is crucial and was for many years under the informal control of one scientist

who named this function the "Internet Assigned Numbers Authority." More

generally, the scientists who have tried to make the Net workable and have

reached agreements on a broad range of technical matters have long been an

informal central "authority." In most other cultural settings they would proba-

bly have become a formal, recognizable body-with, one might add, consider-

able power. There is an interesting sociology here.

11. There are also more specific issues that may affect the regulation of par-

ticular forms of digital activity through a focus on infrastructure. There are dif-

ferent types of infrastructure for different types of digital activities, for

instance, financial markets versus consumer wireless phones.

12. With the growth of business interest in the Internet, the de facto author-

ity of the early pioneers and their logic for assigning addresses began to be crit-

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icized. To cite a familiar case, firms found that their names had already been

assigned to other parties and that there was little they could do; the idea of

brand names and rights to names was not part of the early Internet culture. See

Robert Latham, "Networks, Information, and the Rise of the Global Internet,"

in Digital Formations: Mapping a New Field of Enquiry, ed. R. Latham and S.

Sassen (Princeton: Princeton University Press, 2004).

13. Since October 2000 the board of ICANN has been the final decision-

making authority on standards. But a complex web of organizations is involved

in the operation of the Internet. The Internet Society and its subsidiary organi-

zations-the Internet Architecture Board, the Internet Engineering Steering

Group, the Internet Engineering Task Force, and the Internet Research Task

Force-are responsible for the development of communications and opera-

tional standards and protocols that allow users to communicate with each other

over the Net. The Internet Societal Task Force is responsible for naming Inter-

net policy issues. The copyright on the protocols is held by the Internet Society.

Other organizations such as the WWW Consortium specialize in the develop-

ment of standards for certain services of the Net.

14. The U.S. government's "Framework for Global Electronic Commerce"

(1996), a blueprint for Internet governance, argues that because of the Internet's

global reach and evolving technology, regulation should be kept to a mini-

mum. It also suggests that in the few areas where rules are needed, such as pri-

vacy and taxation, policy should be made by quasi-governmental bodies such

as the World Intellectual Property Organization (WIPO) or the Organisation for

Economic Cooperation and Development (OECD). One of the issues with this

proposal is the absence of transparency. Related problems become evident in

one of the first big Net policy dilemmas: cybersquatting (private speculators

seizing valuable corporate brand names on the Internet and selling them back,

at an enormous price, to the firms carrying those names). Net addresses are

important for establishing an identity online. So companies want to establish a

rule that they are entitled to any domain names that use their trademarks. But

the Net is used for more than e-commerce, so consumer advocates say this rule

would unfairly restrict the rights of schools, museums, political parties, and

other noncommercial Net users. However, in deliberations that have taken

place at WIPO, it is largely the large firms who are participating, in meetings

that take place mostly behind doors. This privatizes the effort to design regula-

tions for the Net.

15. For summaries of the debates, see Nettime, Net Critique, compiled by

Geert Lovink and Pit Schultz (Berlin: Edition ID-Archiv, 1997); Geert Lovink,

Dark Fiber (Cambridge, MA: MIT Press, 2002).

16. The distinctions noted here partly follow Pare's classification and

research on the subject. Daniel J. Pare, Internet Governance in Transition: Just Who

Is the Master of this Domain? (Lanham, Md.: Rowman and Littlefield, 2002),

chap. 3.

17. E.g., William A. Foster, "Registering the Domain Name System: An

Exercise in Global Decision Making," Kennedy School of Government, Har-

vard University, 1996.


127

18. Mark Gould, "Governance of the Internet. A UK Perspective" (1996).

19. John R. Mathiason and Charles C. Kuhlman, "International Public Reg-

ulation of the Internet: Who Will Give You Your Domain Name?" Paper pre-

sented at the Internet in a Post-Westphalian Order, University of Minnesota,

Minneapolis, 1996.

20. Sharon Eisner Gillett and Mitchell Kapor. "The Self-Governing Internet:

Coordination by Design" (1996)

21. Milton Mueller, "The 'Governance' Debacle: How the Ideal of Internet-

working Got Buried by Politics." Paper presented at INET 98, Geneva, Switzer-

land, 1998.

22. Pare, Internet Governance in Transition.

23. Pare, ibid., develops another approach to these questions of governance

and coordination. He argues that an emphasis on end results and on optimal

governance strategies, as is typical for the authors briefly discussed here, pro-

duces analytical blind spots. A crucial issue is the need to understand the

dynamic relationship that exists between the institutional forms delivering

technology and the network structures that emerge over time. See also Lessig,

Code and Other Laws.

24. Pare, Internet Governance in Transition, chap. 3.

25. Post, "Anarchy, State, and the Internet"; David R. Johnson and David G.

Post, "Law and Borders: The Rise of Law in Cyberspace," Stanford Law Review

48 (1996), at 1367.

26. Joel R. Reidenberg, "Lex Informatica: The Formulation of Information

Policy Rules Through Technology," Texas Law Review 76 (1998), at 553.

27. See also Lessig, Code and Other Laws.

28. Reidenberg, "Lex Information."

29. Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commer-

cial Arbitration and the Construction of a Transnational Legal Order (Chicago: Uni-

versity of Chicago Press, 1996); Rodney Bruce Hall and Thomas J. Biersteker,

eds., Private Authority and Global Governance (Cambridge: Cambridge Univer-

sity Press, 2002). This bundle of issues, as they pertain both to the Internet and

to the global economy, is discussed in Sassen, Denationalization.

30. New types of private networks also connected to the Internet; see note 2.

31. Retail investment and stock trading use the Internet. So does direct

online investment, which is mostly retail and represents a minor share of the

overall global financial market. Even if we factor in its expected tripling in

value over the next three or four years, it will not have the power that charac-

terizes the wholesale global financial market.

32. For instance, after the Mexico crisis and before the first signs of the

Asian crisis, the leading financial services firms negotiated innovative deals

that expanded volumes in the financial markets and incorporated new sources

of profit, ensuring liquidity even in a situation of at least partial crisis. Typically

these deals involved novel ways to sell debt and novel concepts of what is a

saleable debt.

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33. Sassen, The Global City: New York, London, Tokyo, 2d ed. (Princeton:

Princeton University Press, 200ool), 115-16.

34. Pam Woodall, "The World Economy: Who Is in the Driving Seat?" Econ-

omist 337, no. 7935: 5-18.

35. The foreign exchange market was the first to globalize, in the mid-197os.

Today it is the biggest and in many ways the only truly global market. It has

gone from a daily turnover rate of about $15 billion in the 197os, to $60 billion

in the early 198os, and an estimated $1.3 trillion in 1999. In contrast, that same

year the total foreign currency reserves of the rich industrial countries

amounted to about $1 trillion.

36. For extensive evidence on the issues discussed in this section refer to

Sassen, Global City, chaps. 3, 4, and 7. For a different perspective on issues of

global finance, see Geoffrey Garrett, "Global Markets and National Politics:

Collision Course or Virtuous Circle," International Organization 52, no. 4 (1998):

787-824; Barry Eichengreen and Albert Fishlow, Contending with Capital Flows

(New York: Council of Foreign Relations, 1996).

37. According to some estimates, we have reached only the midpoint of a

fifty-year process of fully integrating these markets. Given the growth dynam-

ics made possible by digitization, this signals that financial markets could

expand even further in relation to the size of other components such as direct

investment and trade.

38. E.g. Helleiner 1999; Leo Panitch, "Rethinking the Role of the State in an

Era of Globalization," in Globalization: Critical Reflections, ed. James Mittelman

(Boulder, Colo.: Lynne Rienner, 1996).

39. I try to capture this normative transformation in the notion of a priva-

tizing of certain capacities for making norms that in the recent history of states

under the rule of law were in the public domain. (I am not concerned here with,

e.g., the Catholic Church, which has long had what could be described as pri-

vate norm-making capacities, but is of course a private institution, or is meant

to be that.) Now what are actually elements of a private logic emerge as public

norms, even though they represent particular rather than public interests. This

is not a new occurrence in itself for national states under the rule of law; what

is perhaps different is the extent to which the interests involved are global. For

a fuller discussion see Sassen, "Territory and Territoriality."

40. A particular feature that matters for my current research on denational-

ization is the fact that many states, more precisely, specific agencies and depart-

ments within states, have participated in the formation and implementation of

these conditions and rules. The result is a reorientation in some components of

"state-work" away from the national and toward the global economy.

41. Since the Southeast Asian financial crisis the specifics of these standards

have been revised. For instance, exchange rate parity is now posited in less

strict terms. The crisis in Argentina that broke in December 200ool raised further

questions about aspects of IMF (International Monetary Fund) conditionality.

But neither crisis has eliminated the latter.

42. For instance, the growth of electronic trading and electronic network

alliances among major financial centers allows us to see the particular way in

which digitized markets are partly embedded in these vast concentrations of


129

material resources and human talents represented by financial centers. See

Sassen, Global City, chaps. 4, 5, and 7.

43. For a full development of these issues please see Sassen, Denationaliza-

tion.

44. It is not clear how much difference it would make if these organizations

were located in rural areas. A more fine-grained analysis suggests that it would

have some effect. For an analysis of the distinctiveness of digital (and other)

networks centered in rural communities see Linda Garcia, "The Architecture of

Global Networking Technologies," in Global Networks/Linked Cities, ed. Saskia

Sassen (New York: Routledge, 2002). In this section I develop an argument that

posits the distinctiveness of large urban environments for these organizations,

derived particularly from my concern to capture the imbrications of digital net-

works with nondigital conditions.

45. I see parallel features in the cases where use of the Internet has allowed

diasporas to be globally interconnected rather than confined to a one-to-one

relationship with the country or region of origin. See, e.g., Centre for Civil Soci-

ety and the Centre for the Study of Global Governance, London School of Eco-

nomics, Global Civil Society Yearbook 2002, ed. Marlies Glasius, Helmut Anheier,

and Mary Kaldor (Oxford: Oxford University Press, 2002).

46. E.g., Dorothy E. Denning, Information Warfare and Security (Harlow:

ACM Press, 1998).

47. James Der Derian, Virtuous War: Mapping the Military-Industrial-Media-

Entertainment Network (Boulder: Westview, 200ool).

48. E.g., Taylor, "World Cities."

49. E.g., Taylor, "World Cities."

50. The space of the city accommodates a broad range of political activi-

ties-squatting, demonstrations against police brutality, fighting for the rights

of immigrants and the homeless, the politics of culture and identity, gay and

lesbian and queer politics. Much of this becomes visible on the street. Much of

urban politics is concrete, enacted by people rather than dependent on massive

media technologies. Street-level politics make possible the formation of new

types of political subjects that do not have to go through the formal political

system.

It is in this sense that those who lack power, those who are disadvantaged,

outsiders, discriminated minorities, can gain presence in global cities, presence

vis-a-vis power and presence vis-a-vis each other. This signals the possibility of

a new type of politics centered in new types of political actors. It is not simply

a matter of having or not having power. These are new hybrid bases from

which to act.

51. See Austin Sarat and Thomas R. Kearns, eds., Identities, Politics, and

Rights (Ann Arbor: University of Michigan Press, 1995).

52. It is important to emphasize that digital networks can also be used for

strengthening local communications and transactions inside a city (see, e.g.,

Geert Lovink and Patrice Riemens, "Digital City Amsterdam: Local Uses of

Global Networks," in Sassen, Global Networks/Linked Cities), especially in an age

where the notion of the local is often seen as losing ground to global dynamics

and actors.

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53. A growing number of scholars concerned with identity and solidarity

posit the rise of transnational identities (Maria de los Angeles Torres, "Transna-

tional Political and Cultural Identities: Crossing Theoretical Borders," in Bor-

derless Borders, ed. Frank Bonilla, Edwin Melendez, Rebecca Morales, and Maria

de los Angeles Torres [Philadelphia: Temple University Press, 1998], 169-82.

Torres 1998; Robin Cohen, "Diasporas and the Nation-State: From Victims to

Challengers," International Affairs 72 [1996]: 507-20; Linda S. Bosniak, "Univer-

sal Citizenship and the Problem of Alienage," Northwestern University Law

Review 94 [2ooo]: 963-82) and translocal loyalties (Arjun Appadurai, Modernity

at Large [Minneapolis: University of Minnesota Press, 1996]). This literature

provides us with a broader conceptual landscape within which we can place

the more specific types of organizations and practices that concern me here.

The Place of Cyberlaw

Lawrence Lessig

We find the world as it is, even if the world we find is one we made.

Our experience is one of discovery, and our reaction is to change that

which we discover. We notice, and then we respond with the tools at

hand. We take what we can to remake what we find, to better fit our

picture of how the world is, or should be. It is in this sense that we say

the world is real and yet constructed: however it seems, it has been

built; even if built, it feels found.

If any world is constructed, cyberspace is. Yet in cyberspace more

than anywhere, the constructed seems found. As people come to know

how cyberspace is, they forget that however it is found, it was made.

They act as if it couldn't be different. They naturalize cyberspace more

completely than any natural place, forgetting that of all the places we

know now, this place is the least natural.

This forgetting first manifested itself in the belief that cyberspace

could not be regulated. Those who first knew this space-indeed, many

who built this space-came to believe that of all the places that human

society knows, cyberspace would be beyond the control of govern-

ments.' But soon into the life of cyberspace, or into the life of cyber-

space affecting real space life, this view (and for some, this hope) dis-

appeared. It is now so obvious that governments can change what

cyberspace is that it would be hard to imagine how any different

thought could have prevailed.

In learning how governments change this place, we are learning

something important and general about regulation itself. In this brief

essay, I sketch this learning. I begin with a model of regulation in real

space, and then apply that model to cyberspace. In both contexts, this

analysis makes clear the law's place within the domain of regulation

131

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how and where it functions, and how its functioning can depend upon

the character of space. This is an understanding of how regulation func-

tions that is remote from ordinary understandings of the law. But

understanding cyberspace will make this remote understanding much

more local.

The world we find is filled with constraints. Some of these constraints

are made. Some of these "made" constraints act to limit-and, hence,

regulate-the liberty that we otherwise would have. These constraints

are of different kinds; they operate upon us in different ways. Consider

four of these constraints, and how they function together.2

The first of these four constraints-for the lawyer, at least-is law.

We are not permitted to travel in a car at speeds above sixty-five miles

per hour; the law imposes this constraint, not the car. In most states, we

are not allowed to marry people of the same sex; the law imposes this

constraint, not the nature of love. The law's constraints are constructed

through the self-conscious acts of courts, legislatures, and constitu-

tional conventions. They are statements that bind: Rules imposed

through words, that institutions then carry into effect.

But laws are not the only rules that regulate. Social norms-the sec-

ond of four constraints discussed here-regulate as well. Regardless of

the law, I would be punished by my neighbors if I drove through a

school zone at sixty-five miles per hour. In most of America, the most

significant constraint on single-sex relationships has nothing to do with

courts or legislators. These rules are not crafted by the self-conscious

actions of legislatures or courts; they live in the expectations and judg-

ments of the members of a community. And unlike laws, these rules

operate only with the complicity of the members of a community. We

might blame the church for restrictions placed on the erotic, but it's not

quite- or perhaps not just-the church that would scorn the reckless

endangerment of children at school.

Rules thus characterize two kinds of constraints: Laws and social

norms. Such rules-based constraints differ from a third type of con-

straints-those of the market. The market sets the terms under which

resources get traded. Its constraint says what must be given for what,

subject to the rules (both law and norms) within which the market func-

tions. The market's constraint is thus distinct from the barrier imposed

by law (for example, a felony conviction that might make it impossible

to be admitted to the bar), or by norms (that for most of our history,

THE PLACE OF CYBERLAW

133

scorned women from the legal profession). But the nature of the barrier

that the market might impose is a function of law and norms. The law

permits a student to wait tables to pay for law school; it doesn't permit

her to sell sex as a way to raise tuition. Norms support this law: the

same constraint on cash for sex is supported by a thick set of norms; a

different, but equally thick, set of norms would make it hard for a male

student to earn money by painting nails in a beauty shop.

The constraints of the market are conceptually different from the

constraints of the law and norms. Laws and norms punish deviation ex

post- one through an institution, the other through a community. The

market demands compliance, in a formal sense, simultaneously. You

trade cash for Coke, or an obligation to pay for a car. The constraint is

realized immediately, and perpetually, for example, as the hungry

man is continually aware that with the passing of each moment, he

can't buy food.

These three constraints are distinct from a fourth that will be the

focus of the argument to follow. This is the constraint of place, or what I

will call architecture. By architecture I mean the complement of physical

constraints that set the terms on which we experience real space. That a

wall is opaque means I can't see what's going on in the other room.

That's a constraint imposed by architecture. That a building has no

access ramp means the wheelchaired cannot get in. That too is a con-

straint imposed by architecture. These constraints of architecture are

distinct again from law and norms and the market. Like the market, they

operate in real time. We don't live life like the Coyote in Road Runner,

racing off a cliff, only then to be reminded of the law of gravity. Con-

straints of architecture are both formally, and effectively, simultaneous.3

Unlike law, norms, and the market, however, the constraints of

architecture require no human agency to be real. I may be able to slip a

bottle of perfume into my pocket and walk out of the store undetected,

and thereby escape the constraints of the market (which demand that I

pay for the perfume I have taken), and the constraints of social norms

(which say perfume is not for me), and the constraints of the law (which

say I can't take it without paying). It is a feature of these human-built

constraints that they must at some point be imposed by an agent to be

effective. The constraints of architecture cannot be escaped simply by

failing to be noticed. I can overcome some of them-I can blast a hole in

a wall to see what's going on in the other room, or I might be able to

pick a lock to get inside. But overcoming a constraint is different from

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the constraint's not being enforced. Constraints of architecture are not

conditional in the way constraints of law, norms, and the market are.4

These four constraints are therefore different. Yet at any time, they

operate together. They interact. Sometimes they support each other: the

norm against students selling sex supports the law against students

selling sex. Sometimes they undercut each other: that there is a price for

sex undermines the norms and rules against it being for sale. Thus, to

understand the effectiveness of any particular regulation, we must sur-

vey how the modalities operate together. And this survey requires a

certain practice. We must become aware of constraints that are often

invisible; we must practice drawing their constraint into focus.

This need is especially true for policymakers. Because constraints

work together, and sometimes crosswise, anyone promoting a policy

should strive to understand how these four modalities interact. And

depending upon the interaction of these modalities, the policymaker

might have to alter or modify these different constraints. These con-

straints-if properly surveyed-can become tools in the hand of the

regulator; they get deployed or modified to whatever end the regulator

might have.

This is a point lawyers, and governments, tend to forget, and hence

the point remains obscure. But the insight that I want to move to the

foreground is that the law is just one of these four possible constraints,

and often not the most significant or important. Yet it is, among the

four, the constraint most relevant to changing the other three.

Take smoking as a simple example. In the United States (fortu-

nately), we live in the culture of the smoking prohibitionists. There are

laws against the sale of cigarettes to minors, as well as laws that zone

where smokers can smoke.5 So too do norms constrain the smoker-in

some places more than others, for some people more than others. Cali-

fornia is different from Detroit; the young executive is different from

the disaffected undergraduate. So too does the market constrain smok-

ing: Cigarettes cost money; money is a constraint. So too with architec-

ture: Smoking is hard to hide. And so too do these four constraints

sometime function together: In this society, we line up smokers at the

entrance of buildings so that they can be shamed by others entering and

leaving work.

Again, these different constraints operate together, and the policy-

maker can manipulate these different constraints to change how they

operate together. The policymaker can change the law, so it prohibits


135

more, or prohibits differently. Or the policymaker can fund television

commercials to change norms surrounding smoking-adding to the

stigma associated with smoking, or stigmatizing the producers of ciga-

rettes to reduce the demand to smoke. Or the policymaker can use the

market to increase the constraint on smoking-taxing cigarettes, for

examples. (We of course tax cigarettes heavily, while simultaneously

subsidizing tobacco production.)6 Or the policymaker could use archi-

tecture to regulate the consumption of cigarettes-for example, by reg-

ulating the amount of nicotine in a cigarette to reduce the addictiveness

of the habit.

Modern regulation-modern law-is the choice among these differ-

ent modalities of constraint. Modern regulation is the pragmatic disci-

pline of selecting the tool, or mix of tools, that best brings about the

desired social end.

This same mix of modalities exists in cyberspace, though the signifi-

cance of each is different. In the pages that follow, I want to argue that

in cyberspace, architecture will become the most significant regulator.

My point is not that cyberspace is the first place where architecture

mattered. The history of governments is littered with examples of

architecture as a tool of social policy. David Hackett Fischer describes

the founders of New England meticulously laying out the towns they

would found so that the relationship of the buildings to each other, and

to the town square, would assure that behavior within the town would

be properly regulated.7 Jeremy Bentham famously described the design

of a prison so that all cells would be viewable from one central position,

so that prisoners would never know whether they were being watched,

but that they always could be watched, and so they would be properly

regulated by the uncertainty about whether they were being monitored

or not.8 Napoleon III had Paris rebuilt so that the boulevards would be

broad, making it hard for revolutionaries to blockade the city, so that

Parisians would be properly regulated.9 Robert Moses built highway

bridges along the roads to the beaches in Long Island so that buses

could not pass under the bridges, thereby assuring that only those with

cars (largely white people) would use certain public beaches, and that

those without cars (largely African Americans) would be driven to use

other beaches, so that social relations would be accordingly regulated.'o

In each of these cases, architecture was a tool for regulating behav-

ior. But in cyberspace, architecture will become even more significant.

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Relatively small changes in the character of the space will have pro-

found effects on the nature of the constraints experienced there. Under-

standing these changes, and their source, is the first step to under-

standing the place of law in cyberspace.

The problem of privacy in cyberspace will make the point more con-

cretely.

The Net was exposed to public view with the emergence of the

World Wide Web-a set of protocols for writing hyperlinked docu-

ments, and facilitating their interlinking across a network. The public

didn't see these protocols-HTML and HTTP-but they were layered

onto a more basic set of protocols that constituted the Internet-the

protocols of TCP/IP, which establish the basic architecture of Internet

communication."

None of these early Internet protocols made the identity of the user a

fact that the system needed to know in order to function. Each machine

on the Net needs an address (called an IP address) to communicate with

other machines on the Net; but those IP addresses have no necessary

connection with a geographic location or a particular person. Every time

the user connects, in principle he could receive a different IP address.

The web thus doesn't know through the IP address alone who I am.

This early architecture thus had the effect of protecting individual

privacy. The user could surf the Web without there being any auto-

matic way to figure out who or where he was. This is not because the

Web revealed nothing about the user. When the user connects to a Web

server using a browser, lots of data is exchanged between the server

and the browser: which operating system is being used, which address

you just came from, which type of browser is being run.12 But while all

these bits of data are communicated to the server, nothing about the

identity of the user is, necessarily, divulged.

For those who liked the world where surfing was anonymous, this

architecture was ideal. But for those who wanted to know their cus-

tomers-or at least their customers' customs-this world was not ideal.

Given the original architecture of the Web, it was difficult to know who

a user was, or what he wanted, and hence difficult to know how to sell

him what he wanted.

Early in the Net's history, the first major provider of a browser

Netscape-took steps to service those who wanted the Net to be less


137

anonymous. Netscape released a new protocol for Web servers-the

cookie technology.13 With cookies, a server could deposit a bit of data

on a user's machine, and when the user came back to the server, the

server would know with whom it was dealing. This made it easy to

monitor and track users, at least those users who tolerated cookies. And

this in turn meant that the protections for privacy had been changed.

Privacy was lessened on the World Wide Web, and the key is to focus

on why. Not because laws were changed or because norms had

evolved. Privacy was lessened because a simple feature of the architec-

ture of the Web had been altered. Changing the architecture to enable

cookies meant that less privacy was automatically assured.

This change was effected not by governments, but by a commercial

browser vendor trying to satiate the appetites of those commercial

enterprises keen to mine data for commerce from the Internet. Today,

as there is increased concern about privacy, different companies are

responding differently. Microsoft, for example, has built into its

browser a technology that enables users to block cookie deposits origi-

nating from sites that fail to make their privacy policies available in

machine readable form. The effect of this change has been to increase

the transparency of sites that use cookies to advertise to customers.

This increases the protection of a certain kind of data for users. Just as

the Netscape-initiated change to cyberspace architecture-cookies-

affected users' privacy on the Net, here too it was a change in cyber-

space architecture-Microsoft's cookie-blocking technology-that sim-

ilarly (yet inversely) affected users' privacy on the Net.'4

There are scores of examples just like this: The architecture of cyber-

space was one way; because it was one way, it protected a certain set of

values. The architecture was then changed, and the original values in

turn were lost or reshuffled. In each of these examples, we might imag-

ine the law playing a role in that change-by assuring a place stays as

it was, or in some cases, inducing a place to become something differ-

ent. In either case, the role of the law would be to alter a particular

architecture to better protect values chosen by the law.

In general, however, the law has not yet played that role in cyber-

space-even with a value as important as privacy that is recognized

both within cyberspace and without. And this is particularly true with

respect to values that are less in the fore than privacy, yet-or perhaps

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because-they are so close to the architecture of the original space as to

be invisible outside it. Among these, there is one that will prove to be

the most significant to the character of innovation and creativity. This is

the value of "end-to-end."

The "end-to-end argument" by Jerome Saltzer, David Clark, and David

P. Reed, directs designers about how intelligence in a network is to be

ordered.15 An end-to-end network places intelligence in the network at

the ends, or edge, of the network. Keep the network simple, or, as

David Isenberg calls it, stupid.16 Stupid networks, smart applications.

This was the character of the original Internet.

The early architects of the Net adopted this principle because

though they were among the best and the brightest network designers

of their time-they knew that they didn't know how the network

would be used. They had no idea how the network would mature, and

so they designed it so that it could mature in any way users wanted.

The network was not optimized to any particular use because no par-

ticular use was assured.'7

A kind of humility (and good pragmatic sense) thus guided these

first network designers, and this humility had a consequence. The net-

work was simple. It specified a simple protocol for exchanging packets

of data. This simplicity meant that the network didn't have within it the

power to discriminate among applications or content. Because the net-

work could not discriminate, innovators knew that their application or

their content could be served across the Internet regardless of the

wishes of the network owner. The network was a neutral platform; it

invited all comers.

For a brief span of time, this is just what the network did.'8 Previ-

ously unimagined applications were built for the Net. New ways of

doing business, both in real space and in cyberspace, were born-as

were new ways of creating, new ways of sharing the fruits of that cre-

ativity with others, new ways of being artists, new ways of innovating.

This architecture, in turn, disabled certain structures of social and

commercial control. Laws were less effectively enforced as behavior

moved outside of traditional institutions. Control over content and dis-

tribution was less effectively achieved as channels of distribution could

no longer be controlled by content providers.

The law's attitude to this change has been curiously ambivalent.

Where the interests affected by this architectural principle have been


139

solely state-or governmental-interests, the law-usually the first

line of defense for the state in protecting its interests-has been slow

to respond. The Internet has made it hard to collect and control taxes;

the government has decided to wait before responding.19 The Internet

has made it extremely hard to keep kids from material deemed harm-

ful to minors; the Supreme Court has made it practically impossible

for the government to respond.20 Where it is the state that has lost

because of this loss of a power to discriminate, the response of the

state has been to wait and see. The governmental attitude seems to be

along the lines of: Let the place mature a bit, let's see how it shakes

out before we launch regulation to alter it in a way that preserves

state values.

But where the interests affected by this architectural principle have

been private, a similar ambivalence has not been the practice. Instead,

the urgent response of both private and state actors has been to move

quickly to change the design of cyberspace to better protect or further

the affected interests.

Cable companies, for example, are building the next generation of

the Internet to be fundamentally different from the Net of the past. The

difference pertains to the value afforded the end-to-end argument.

Contrary to the end-to-end principle, cable companies are architecting

this new Internet to return control to the network owner.21 On the

Internet served by cable, content and applications can be discrimi-

nated among. Some content will flow quickly; other content will flow

slowly; some applications will be permitted; other applications will

not. This new network is being built to return control to the network

owner, and this change will affect fundamentally what innovation is

allowed.22

The same is true with the interests affecting the control of content in

our culture-that cultural institution referred to by a place, Hollywood.

As to content, too, the Net was initially a threat to the existing order: A

handful of companies controlled 80 percent of media in the world; five

companies control 90 percent of distributed music.23 These companies

recognized that the Net was a threat to their way of doing business.

They have responded with lawsuit after lawsuit aimed at stopping any

manner of distributing content that they can't control.24 Their efforts

have largely been a success. As Michael Robertson, former CEO of

mp3.com, told me, "I think the realities are that this litigation is as

much about straddling the competition as anything else."25

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What they've done very successfully is dried up the capital mar-

kets for any digital music company.... [W]e went public a little

over a year ago-when you [could] raise 400 million dollars

from going public. Today, if you took a digital music company

business plan, you couldn't get a buck and a half from a venture

capital company.26

If we think about the Internet as divided into three layers-at the

bottom, a physical layer of wires and computers; in the middle, a code

layer setting the network protocols that make the Internet run; at the

top, a content layer that feeds the stuff that gets served by these proto-

cols across the wires and computers that constitute the Internet-then

the changes that I am describing are changes in the code (middle) layer,

induced by changes in the physical (bottom) and content (top) layers.

In the case of Hollywood, they are changes induced by pressure at the

content layer. In the case of cable, they are changed induced by pres-

sure at the physical layer. In both cases, the pressure induces changes to

the architecture that defines the Internet. The Net is moving from an

architecture that couldn't discriminate-that served content and appli-

cations as individuals wanted-to an architecture that discriminates

that serves content and applications as the influential commercial enti-

ties may control. In both cases, these changes transform the Internet

into something very different from what it was in its end-to-end mani-

festation, with the consequence that the Internet these changes create

increasingly protects traditional interests.27

The aim of both the network owners and the content owners is to use

their power to alter the basic architecture of the Net, so that that archi-

tecture-in particular, end-to-end-does not undermine their power. It

is the old protecting themselves against the new. It is the new being

forced to relinquish the potential that the Internet promised, in the face

of pressure from the old.

This is nothing new. In The Prince, Machiavelli described the same

pattern:

Innovation makes enemies of all those who prospered under the

old regime, and only lukewarm support is forthcoming from

those who would prosper under the new. Their support is indif-

ferent partly from fear and partly because they are generally


141

incredulous, never really trusting new things unless they have

tested them by experience.28

So what is the law's place in this struggle? What should it be?

The freedom that the Internet created did not come from any law; it

came from an architecture that disabled concentrations of power over

speech and communication. That architecture threatens those who

have most prospered in the world before the Internet. They, smartly,

have responded by challenging the very essence of this architecture.

They have responded by building and forcing to be built an architec-

ture that again gives controllers the power to control.

And to great effect. Network architects built a network that-in its

end-to-end form-many enthusiastically embraced. It got codified into

our lives, and every aspect of our life became increasingly affected by

it. It has become a second nervous system, rich with content and

enabling extraordinary communication. But then, using the tools of

code and law, interests of yesterday have rearchitected the place, to

vest back in themselves the power to control how this potential

emerges. They code it to build within its place the power to enforce pri-

vate control over public life. They have commandeered that which has

become our splendid second nervous system, and they are controlling

it to their ends.

The law could have a place in this transformation. It could defend

the values of decentralized, diverse innovation that the original archi-

tecture established. Or vice versa. But this has not been the law's role.

And as the law stands aside, these other modalities remake the space

that the Internet was.

The consequences of this need not be imagined; they are practically

upon us. The place of innovation and unrestrained creativity; the loca-

tion of an explosion of something new; the home to creators without

connection; the territory where no one gets to control which innova-

tions are allowed: This place is passing. In its place is a familiar space of

relatively concentrated, relatively normal, effectively managed "cul-

tural" production. The consequences of a potentially radicalizing archi-

tecture have been averted, in part through the help (inaction) of law.

This is the consequence of a change in the architecture of cyberspace,

induced by actors within the market, aided by the force of rights pro-

tected through law. Yet it occurs practically unnoticed, because we are

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not trained to see values built into architecture. We are therefore insen-

sitive to the changes brought about by the changes in that architecture.

Even here, where the changes affect the most profound features of the

early Internet, the changes are invisible.

Invisible is thus the place of law in this change to the Internet. In the

mix of modalities that effect this change, the most important is not seen,

and yet this part unseen has the most profound effect. Altering the

basic neutrality of the network's platform alters fundamentally the

incentives, and freedom, to create and innovate on the network. This

new architecture becomes the Net's new law. Were the law aware of the

place this architecture had in its regulation, it might well respond to the

changes this change in architecture effects. So far it has not.

NOTES

I am grateful to Elisa Garza Kammeyer and John Neukom for excellent research

help.


Books, 1999), 3-8 ("The claim now was that government could not regulate

cyberspace, that cyberspace was essentially, and unavoidably, free. Govern-

ments could threaten, but behavior could not be controlled; laws could be

passed, but they would be meaningless").

2. I describe these more extensively in "The New Chicago School," Journal

of Legal Studies 27 (1998): 661, and in chapter 2 of Code and Other Laws of Cyber-

space. Other authors have discussed the interaction of these modalities with

varying emphases. For a discussion primarily focused on the interaction

between the law and norms, see, e.g., Robert C. Ellickson, Order without Law:

How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1991),

131-32 ("Different controllers can combine their efforts in countless ways to

produce hybrid systems of social control"); Robert C. Ellickson, "A Critique of

Economic and Sociological Theories of Social Control," Journal of Legal Studies

26 (1987): 76. For discussions of the interaction between the law and architec-

ture in regulation, see, e.g., Erving Goffman, Frame Analysis: An Essay on the

Organization of Experience (Boston: Northeastern University Press, 1986); Jeremy

Bentham, The Panopticon Writings, ed. Miran Bozovic (New York: Verso, 1995).

For examples of analyses of the law and the market interacting in a regulatory

scheme, see Gary Minda, "Antitrust at Century's End," Southern Methodist Uni-

versity Law Review 48 (1995) 1749; and Herbert Hovenkamp, "Antitrust Law

after Chicago," Michigan Law Review 84 (1985) 213 (both discussing the interac-

tion between the law and market forces in antitrust regulation); Frank H. East-

erbrook and Daniel R. Fischel, The Economic Structure of Corporate Law (Cam-

bridge: Harvard University Press, 1991), chap. 5 (discussing the interaction

between the law and market forces in securities regulation).


143

3. See, e.g., Neal Kumar Katyal, "Architecture as Crime Control," Yale Law

Journal 111 (2002): 1039 (discussing the potential of architecture-literally the

physical architecture of buildings and spaces-to prevent and control criminal

activities in a manner more effective than traditional law enforcement); Neal

Kumar Katyal, "Criminal Law in Cyberspace," University of Pennsylvania Law

Review 149 (2001): 1003-14.

4. There are other differences among these constraints that we might note

as well. First, we can't say in the abstract which of these four constraints is

strongest. Norm-wimps like me, for example, could commit twelve felonies

before breakfast; but I could never imagine showing up to a talk in a dress. This

is not, as the economist might think, because of differences in the expected

value of these two actions. The expected value of a felony is always negative,

regardless of whether I would be caught; but the expected value of showing up

to a lecture in a dress-among academics, at least, and given your view of

lawyers-might well be positive. You might, e.g., think, "not quite as boring as

I expected."

Instead, the relative effectiveness of each of these modalities of constraint

must be determined empirically. It depends upon the people and the context.

Thus whether a constraint is effective is something we must explore rather than

posit. And how we make a certain constraint effective is something we must lis-

ten for, rather than pronounce.

This last point suggests a quibble with my claim that the constraints of law

and norms can be escaped, while the constraints of architecture cannot. A well-

socialized sort, one might argue, doesn't "escape" the constraint of law or

norms just because he succeeds in evading the detection of his deviance-slip-

ping the perfume, for example, into his pocket and leaving the store. The well-

socialized, one might well argue, have those constraints architected into their

souls. The theft would bear upon his or her soul, regardless of detection.

This objection is correct, though it shows how psychology might function as

a kind of architecture in social life, not how norms are indistinct from architec-

ture. Whether or not the well-socialized can escape social norms, there are

some persons who, to some degree, do. And this continuum of escape is all we

need to note for the purposes of the argument I want to make here.

Second, although I am speaking about constraints, obviously, these modali-

ties do more than constrain. Without the law enforcing contracts, this would be

an extremely poor world. Contract law enables as much as it constrains. It is the

same with norms of civility, or markets that feed the poor, or airplanes that

carry me from sunny California to the chills of central Massachusetts. These are

expressions of law, norms, markets, and architectures; but they are not expres-

sions of constraint.

But for the purposes that I am sketching this picture of the world we know,

focusing narrowly on the constraints that these modalities impose, and not on

their empowerments, won't matter to the conclusion. The point is the same

whether or not you count the other half.

5. Robert L. Rabin and Stephen D. Sugarman, eds., Smoking Policy: Law,

Politics, and Culture (Oxford: Oxford University Press, 1993); Lawrence Lessig,

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"The Regulation of Social Meaning," University of Chicago Law Review 62 (1995):

943, 1025-34; Cass R. Sunstein, "Social Norms and Social Roles," Columbia Law

Review 96 (1996): 903. See also California Labor Code, sec. 6404.5 (2001) (codify-

ing the California legislation banning smoking indoors for any places of work).

6. Jasper Womach, "Tobacco Price Support: An Overview of the Pro-

gram," Report for Congress, available at http://www.cnie.org/nle/ag-61.html

(visited July 18, 2001).

7. David Hackett Fischer, Albion's Seed: Four British Folkways in America

(Oxford: Oxford University Press, 1989).

8. Jeremy Bentham, Panopticon (London: T. Payne and Son, 1791); Janet

Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (Oxford: Oxford

University Press, 1993).

9. Alain Plessis, The Rise and Fall of the Second Empire, 1852-1871, trans.

Jonathan Mandelbaum (Cambridge: Cambridge University Press, 1985), 121.

10. Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York

(New York: Alfred A. Knopf, 1974), 318.

11. For a more in-depth discussion of the protocols, and layering thereof,

that constitute the World Wide Web, see Lawrence Lessig, The Future of Ideas:

The Fate of the Commons in a Connected World (New York: Random House, 200ool),

chap. 3.

12. Ibid., chap. 8.

13. "Internet Cookies: Cookie Basics," Web Street Studios, available at

http://www.webstreetstudios.com/school/cookies.htm (visited July 19,

2001); Neil Randall, "How Cookies Work," PC Magazine Online, available at

http://www.zdnet.com/pcmag/features/cookie/cksl.htm (visited July 19,

2001).

14. See Microsoft Internet Explorer 6: Web Privacy (August 27, 2001), at

http:/ /www.microsoft.com/windows/ie/evaluation/overview/privacy.asp

(explaining the technology in the Microsoft browser that protects the user from

cookie deposits according to the expressed user-preferences).

15. See Jerome H. Saltzer, David P. Reed, and David D. Clark, "End-to-End

Arguments in System Design," available at http://Web.mit.edu/Saltzer

/www /publications/endtoend/endtoend.pdf; David P. Reed, Jerome H.

Salzer, and David D. Clark, "Active Networking and End-to-End Arguments,"

available at http://Web.mit.edu/Saltzer/www/publications/endtoend

/ANe2ecomment.html.

16. As background, see Peter Cukor and Lee McKnight, "Knowledge Net-

works, the Internet, and Development," Fletcher Forum of World Affairs 25, no. 1

(2001): 46; George Gilder, Telecosm: How Infinite Bandwidth Will Revolutionize

Our World (New York: Free Press, 2000), 70-71.

17. Lessig, The Future of Ideas, 34-39.

18. "When I came to Silicon Valley, everybody said.., there's no way in hell

that you could ever fund another desktop software company. That's just over.

And then in 1995, 1996, 1997, and 1998, all those developers who previously

worked on desktop software said, Ah-hah, we're upgrading to a brand-new


145

platform not controlled.., by anybody-the Internet. [A]ll of a sudden there

was an explosion of innovation, a huge number of applications, and [a] huge

number [of] companies." Telephone interview with Marc Andreessen, Decem-

ber 15, 2000.

19. Internet Tax Freedom Law, P.L. 105-277, Title XI-XII, October 21, 1998;

summary

available at http://www.house.gov/chriscox/nettax/lawsums

.html.

20. See 47 U.S.C., sec. 223 (Supp. 1996); Reno v. ACLU, 521 U.S. 844 (1997).

But see 47 U.S.C., sec. 230 (2002); Ashcroft v. ACLU, 122 S.Ct. 1700 (2002).

21. Mark A. Lemley and Lawrence Lessig, "The End of End-to-End: Pre-

serving the Architecture of the Internet in the Broadband Era," UCLA Law

Review 48 (2001): 925.

22. I describe these changes in depth in Lessig, The Future of Ideas.

23. According to the National Cable Association, the top seven "multiple

system operators" or MSOs controlled 90 percent of the national cable televi-

sion market at the end of 2000; figures available at http://www.ncta.com

/industryoverview/top5omso.cfm; Robert W. McChesney, Rich Media, Poor

Democracy: Communication Politics in Dubious Times (Urbana: University of Illi-

nois Press, 1999), 17-18; Eric Boehlert, "Pay for Play," Salon, March 14, 2001,

available at http://www.salon.com/ent/feature/2001/03/14/payola/print

.html; Allyson Lieberman, "Sagging Warner Music out of Tune with AOL TW,"

New York Post, April 19, 2001, 34 (as of April 2001). See also Charles Mann, "The

Heavenly Jukebox," Atlantic Monthly, September 2000, 53.

24. See, e.g., UMG Recordings, Inc. v. MP3.com, 92 F. Supp. 2d 349 (S.D.N.Y.

2000); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); MGM v.

Grokster, CV 01-08541 SVW (PJWx) (C.D. Ca. 2002, and pending); S3 Inc. v.

nVIDIA Corp., 259 F.3d 1364 (Fed. Cir. 2001).

25. Telephone interview with Michael Robertson (Nov. 16, 2000).

26. Ibid.

27. See Lawrence Lessig, "The Internet under Siege," Foreign Policy, Novem-

ber-December

2001, http: //www.foreignpolicy.com/issuenovdec_2oo001

/lessig.html.

28. Niccol6 Machiavelli, The Prince, trans. Robert M. Adams, 2d ed. (New

York: Norton, 1992), 17.

Against Cyberspace

Richard Ford

According to Wired magazine the hottest Internet start-up may well be

HavenCo. Ltd., a business that is currently building a state-of-the-art if

no-frills Internet server site on a old antiaircraft deck in the North Sea,

about three miles off the coast of the British Isles. On this platform is

scrawled the name "Sealand." Wired reports that the facility "isn't

much to look at.... It consists of a rusty steel deck sitting on two hol-

low, chubby concrete cylinders that rise 6o feet above the churn of the

North Sea. Up top there's a drab building and a jury-rigged helicopter

landing pad.... The server's location means [that potential customers]

won't have to worry about fires, earthquakes, tornadoes, thefts, bomb

threats, industrial sabotage, or killer-bee attacks."'

According to its British owner and the entrepreneurs of HavenCo,

Sealand has one overwhelming advantage over the competition. Its six

thousand square feet of concrete are the sole territory of an indepen-

dent microsovereign. Businesses operating from Sealand will do so

outside the jurisdiction of any nation-state, free from national regula-

tion of content but with ready access to the people of all nations and

their nationally stabilized currency through the world wired web.

"Companies using Sealand to house their data can choose to operate

according to the special laws of Sealand, and those laws will be partic-

ularly lax.... So if you run a financial institution that's looking to oper-

ate an anonymous and untraceable payment system-HavenCo can

help. If you'd like to send old-fashioned adults-only pornography into

a grumpy country like Saudi Arabia-HavenCo can help there too."2

Territorial secession is the latest high-tech innovation.

HavenCo's Sealand may be simply one in a long line of "silicon

snake oil" schemes-as common in the world of e-commerce as pop-up

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advertising and spam email. But it encapsulates nicely a certain con-

ceptual tension in much of the contemporary discourse surrounding

the Internet. There is a tendency to describe the Internet as something

more than a sophisticated medium of communication-as instead an

almost supernatural discovery. In this discourse-the discourse of

cyberspace-each computer is a portal to a undiscovered country; on-

line communications and transactions take place in a digitally conjured

parallel domain, an e-elsewhere. The infrastructure of cyberspace

physically located servers, fiber optic and old-fashioned copper cables

run underneath city streets, and modems and computers sitting on

desks and kitchen tables-is of course much more pedestrian, if not

mundane, and rarely figures in the discussions that imagine the Inter-

net as a space.

But of course this physical infrastructure is cyberspace, stripped of

its metaphysical pretensions, and this physical infrastructure lies very

much in the jurisdiction of territorial sovereigns.3 And so HavenCo's

Sealand promises to fulfill the dream of the Internet as an

autonomous space, even as it is silently premised on the incoherence

of that very dream: the need for a Sealand demonstrates the depen-

dency of cyberspace on the terra firma of political sovereigns. It

reveals that the image of the Internet as an autonomous domain is a

digitally generated illusion or, perhaps, that oldest form of misdirec-

tion, a play on words.

The virgin virtual territory of cyberspace proves fertile for the imagi-

nation. Like any new frontier, cyberspace offers the hope of leaving con-

stricting social conventions, mores, and laws behind and starting from a

clean slate. This innocent is not only fertile but also rather loose with its

charms: the Internet has become the repository for all manner of utopian

and dystopian fantasy-some of it totalitarian (for example, the film The

Matrix or the television show Harsh Realm), much of it libertarian. From

Wired magazine to on-line chat rooms to the pages of the nation's law

reviews, the commanding trope of the Internet is overwhelmingly that

of the free market; the commanding political aspiration is not democra-

tic self-governance but nongovernmental self-regulation.

The libertarian position is best articulated by David Johnson and

David Post:

The rise of an electronic medium that disregards geographical

boundaries throws the law into disarray by creating entirely new

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149

phenomena ... that cannot be governed satisfactorily, by any

current territorially based sovereign.... Because events on the

Net occur everywhere but nowhere in particular, are engaged in

by online personae who are both "real" and "intangible" and

concern things that are not necessarily separated from one

another by any physical boundaries, no physical jurisdiction has

a more compelling claim than any other to subject these events

exclusively to its laws. Many of the jurisdictional and substan-

tive quandaries raised by bordercrossing electronic communica-

tions could be resolved by one simple principle: conceiving of

Cyberspace as a distinct "place" for purposes of legal analysis by

recognizing a legally significant border between Cyberspace and

the "real world."4

Like ancient Venice or the lost continent of Atlantis, the Internet is an

island state.

Having conceived of the Internet as a territory-analogous to the

territory of existing sovereigns-it may seem to follow that we must

respect its autonomy and grant it self-governance:

The problem with using existing territorial governments as the

source of rules for activity on the net is ... that no existing sover-

eign possesses the legitimate authority to make such rules. This

model of governance represents, in effect, an extra-territorial

power grab when transposed to the net, a form of colonialism

long rejected (and rightly so) in the non-virtual context...

because any sovereign's rules for online conduct, even if they are

arrived at democratically, do not take into account the interests

of all of those who are affected by those rules when they are

implemented in the online world-no country's efforts to "plant

its flag" on the net and in effect declare sovereignty over the net

is more clearly grounded in legitimacy than any other's, and is

going to-and should-be met with fierce resistance.5

This remarkable passage rests the full weight of its argument on the

rather thin analogy between the Internet and the territory of nations

(hence talk of "colonialism," an analogy made even less sturdy by the

authors' own insistence elsewhere that the Internet is not like a physical

territory). The cyberspace discourse rests, not on a useful analogy, but

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on a radical contradiction: activity on the Net is so unlike all that has

gone before in "real space" that it cannot be governed by existing terri-

torial sovereigns; but at the same time it is so similar to a physical terri-

tory that we can make casual and yet confident assertions that regula-

tion by existing sovereigns or international institutions is a form of

"colonialism."

The most knowledgeable of commentators take the spatiality of the

Internet for granted. For instance Jerry Kang (to whom we will return)

argues,

The concepts of location, borders, and distance translate into a

cyber-geography. Location in cyberspace can map to a unique

Internet Protocol address and any associated domain names,

which exist for each computer on the internet.... A cyberspace

can also have clear borders that explicitly notify visitors about

the nature of the place they are about to enter. Borders can be

secured, not by installing barbed wire, but by requiring registra-

tion and passwords to gain entry.... Finally, even distance

translates to cyberspace, although it must be understood in

transaction cost, not physical terms.6

Similarly Larry Lessig-despite his prudent insistence that actions

in "cyberspace" have profound consequences for "real space" such that

the autonomous jurisdictional status that Johnson and Post advocate

may be inappropriate-nevertheless seems to accept Johnson and

Post's invitation to treat Internet activities as spatially distinct from

other activities.

Cyberspace is a place. People live there. They experience all the

sorts of things that they experience in real space there.... While

they are in that place, cyberspace, they are also here. They are at

a terminal screen, eating chips, ignoring the phone.... They

have this life there, while here, and then at some point in the day

they jack out and are only here. They rise from the machine, in a

bit of a daze, and turn around. They have returned.7

Of course this is an exercise in poetic license;8 Lessig means this to be

a somewhat loose metaphor. But only somewhat loose: Lessig contin-

ues to analogize the issues of law in cyberspace to those of territorial

AGAINST CYBERSPACE

151

sovereigns with competing claims to jurisdiction. For instance, to Jack

Goldsmith's contention that cyberspace presents few if any new legal

issues, only new incidents of familiar conflict-of-laws problems, Lessig

responds: "We have not had a time when we could say that people are

actually living in two places at once.... This is the challenge that we

will face in the future."9

We may face such a challenge in the future. But if we do, I expect it

will be because we have chosen-perhaps implicitly and not self-con-

sciously-to create such a challenge by spatializing the Internet: by cre-

ating cyberspace. If the Internet becomes cyberspace, it will be because

we made it so. As I have argued extensively elsewhere, the territorial

administration of policy-indeed legally salient territories them-

selves-is an invention and a product of public policy.'0 Territories are

made, not found. A long historical discussion, which I have only

started elsewhere, would make this point most convincingly. For our

purposes I simply restate two of the hypotheses that form the germ of

my argument.

First hypothesis: Territorial jurisdiction may appear to be as natural

and inevitable as the ground we stand on, a natural outgrowth of the

very existence of government. But jurisdiction is not an ahistorical fix-

ture of political organization. Instead, the emergence of jurisdiction is

the product of the coincidence of two innovations, one technological

the science of cartography-and one normative-the ideology of ratio-

nal, humanist government. Each development was necessary. Cartog-

raphy created the conceptual space of jurisdiction, while the

aspirations of rational government provided the incentive to direct the

ordering potential of the map inwards-toward national consolidation

and the administration of government-as well as outward-toward

defense and conquest. Therefore we can speak of jurisdiction as a tech-

nology that was "invented" or "introduced" in a given social setting at

a particular time.

Second hypothesis: We can tie certain historical developments in the

art of government to the availability of jurisdiction as a tool, just as we

can tie certain developments in the art of war to the availability of gun-

powder. When jurisdiction emerged, it advanced a set of identifiable

social projects. It disrupted existing social relations based on personal

status and replaced them with a set of social relationships based on ter-

ritorial location. To use the terms of private law, it initiated a shift from

statuses in gross or in personam to statuses appurtenant to territory. Fur-

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ther, jurisdiction produced a new set of governmental institutions and

helped to construct a type of political subjectivity that was amenable to

a new and more comprehensive form of institutional knowledge, man-

agement, and control.

In the absence of historical examples perhaps a short, provocative

analysis will do. Almost anything that is organized territorially could

be organized in some other way. For instance, territorially defined local

governments generally have jurisdiction over land use, property taxa-

tion, health and safety regulation, traffic and parking, and law enforce-

ment as well as authority to provide a host of public services such as

sanitation, parks and recreation, maintenance of roads, and public edu-

cation. Even when one or more of these services is provided by a spe-

cialized district or authority rather than a "general purpose" local gov-

ernment, they are almost always organized territorially: so a school

district may not coincide with municipal boundaries, but it is still a ter-

ritorially defined entity.

But all of these services could, in theory, be provided statewide or

nationwide and organized according to some other criterion. The

"national public education bureau" could administer schools and

assign students in order to promote race and class integration, or seg-

regate them according to scores on IQ tests. The Park Services Admin-

istration could take over Central Park, Golden Gate Park, Amherst

Commons-all parks-and run them as federal parks. Law enforce-

ment could be performed by a vastly expanded federal police, orga-

nized according to type of crime or the identity of victims or perpetra-

tors-the Drug Enforcement Agency could handle all drug-related

offenses, or we could have a federal violence-against-women unit to

deal with the domestic offenses that the local police let slip.

One might object that the activities at issue are still "really" physi-

cally located, regardless of how they are organized administratively.

An act of domestic violence takes place somewhere as well as against

someone. We could choose to assign jurisdiction based on the status of

the victim (our imagined Violence Against Women Special Force) or

the type of weapon used (Bureau of Alcohol, Tobacco and Firearms) or

the likely motivation of the perpetrator (create a division of the FBI to

handle all hate crimes). But that is simply a choice-it doesn't make the

activity any less located. This is just my point: the habit of organizing the

administration of policy in any particular way is a choice. The practice

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153

of describing certain activities as first and foremost occurring in a

defined place rather than against a particular type of person for

instance, is a habit, not a necessity.

This doesn't mean we should abolish territorial jurisdiction. There

are some good reasons to treat certain activities as if they take place in

a distinctive space. Spatial metaphors are useful- in fact almost

inevitable-in dealing with a variety of textual, temporal, or mathe-

matical problems: we map out solutions to technical problems, we dia-

gram sentences, we think of social issues in terms of a spatial "struc-

ture" of relationships, we construct spatial time lines to make sense of

a history that in fact unfolds only in time. Many people seem almost

hardwired to think in spatial terms and can grasp complicated issues

readily if they are presented as a diagram but are lost when presented

with a verbal or written narrative.

But a spatial depiction is a stylized mode of representation. It reflects

an epistemology, a way of knowing, that is only one among many pos-

sible ways of knowing. This does not mean that a spatial representation

is "wrong" or "distorting"; but it is also not "right" in the sense of

telling us the truth, the whole truth, and nothing but the truth. A spa-

tial representation can be extremely accurate on its own terms, but it is

still accurate only on its own terms. There are other terms, others ways

of being accurate that can tell us something more, something else.

Take for example a spatial depiction of a biological family: the clas-

sic family tree. The chart will show us the biological and legal relation-

ships between a group of people: mothers and fathers, siblings, aunts

and uncles, in laws, and so on. It is much easier for most people to

understand family relationships by looking at a family tree than it is to

hear or read a lengthy narrative containing the same information. But

the family tree is a stylized representation of these relationships

because, of course, the spatial connections it depicts are entirely con-

ceptual. The spatial depiction makes solid what could otherwise seem

somewhat vaporous; it reifies relationships that may be contingent or

ambiguous. It silently incorporates the laws of marriage and adoption

as they exist at some time and place or at several different times and

places. It takes Aunt Lizzy's word about the legitimacy of Cousin Jake

even though everyone thought Jake looked a lot like the mailman. It

omits Thomas Jefferson's children with Sally Hemings.

A spatial metaphor, like any metaphor, is not a transparent repre-

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sentation of an underlying truth, nor is it an ideologically neutral mode

of elucidation. The decision to think of the Internet in spatial terms

and increasingly only in spatial terms-will not help us to understand

the Internet so much as it will affect the way we understand the Inter-

net. Treating the Internet as a place makes it easier to make certain deci-

sions, as Johnson and Post suggest. But it does not necessarily make it

easier to make appropriate decisions or to see all that is at stake in a

given decision. The metaphor of cyberspace simplifies decision making

by allowing us to ignore much of the technical and normative com-

plexity of this new set of technologies and social practices.

More than this, cyberspace suggests new ways of filling in the gaps

in what we experience on-line. The spatial metaphor encourages us to

uncritically import what we believe about space in other contexts to

resolve ambiguities in cyberspace. Ideas about territorialism and law

that are taken for granted in the context of "real space" transactions and

activities may be similarly taken for granted in the metaphysical cyber-

space. Some of the taken-for-granted ideas may be wrong, incomplete,

or outdated even the context of geographical territory. I have argued

elsewhere that much of what is second nature in the context of territo-

rialism-that legal location should be defined by domicile, territorial

boundaries mark off naturally and prepolitically distinctive places,

decentralization of formal territorial authority is equivalent to auton-

omy-is based on a questionable metaphysics of legal presence." This

second nature is a nature that is made, not found.

Performing Territory: Jurisdiction as a Social Practice

It is tempting to examine jurisdiction solely in terms of its material or

spatial attributes, as if it were simply an object or a built structure. But

jurisdiction is also a discourse, a way of speaking and understanding

the social world. Much of what is fascinating and vexing about territo-

rial jurisdiction is that it is simultaneously a material technology, a built

environment, and a discursive intervention. These elements cannot be

neatly severed. Territorial jurisdiction operates on all three levels

simultaneously. Further, no one level is foundational and the others,

epiphenomenal. Instead, all three levels are equally essential. To prop-

erly understand jurisdiction, we must reject the way of thinking that

severs fact from representation or "the real" from "the ideological."

Perhaps it is best to think of territorial jurisdiction as a set of social

AGAINST CYBERSPACE

155

practices, a code of etiquette. Social practices must be learned and com-

municated to others. In one sense they exist in the realm of discourse;

they are representations of approved behavior as well as the behavior

itself. For example, the social practice called "the tango" is a combina-

tion of the diagram that "maps" the steps and the actual movement of

individuals in rhythm (hopefully) and to music ("when dancing the

tango, the man leads and the lady follows; each partner should move

according to the diagram"). These representations have material conse-

quences. They determine who leads and who follows, as well as where

one places her feet. The dance is both an actual spatial practice and the

graphical representation of that practice. One could learn the tango just

by watching people actually dance, but the diagrams standardize the

learning process and thereby in a real sense define the dance itself.

Note that it would be absurd to describe dance notation as "ideology"

or "legitimation" as if it misled us as to the nature of the practice, yet it

would also be incomplete to think of it as a innocent description, as if

the graphical representation only describes and has nothing to do with

perpetuating and regulating the "actual practice."

Similarly, jurisdiction is a function of its graphical and verbal

descriptions. It is a set of practices that are performed by individuals

and groups who learn to "dance the jurisdiction" by reading descrip-

tions of jurisdictions and by looking at maps. This does not mean that

jurisdiction is "mere ideology," that the lines between various nations,

cities, and districts "aren't real." Of course the lines are real, but they

are real because they are constantly being made real, by county asses-

sors levying property taxes, by police pounding the beat (and stopping

at the city limits), by registrars of voters checking identification for

proof of residence. Without these practices the lines would not "be

real"- the lines don't preexist the practices.

Of course each of these practices can be described as "responding" to

the lines or working within the lines rather than making them. When

we think of the practices as happening "within the lines" and imagine

that the boundary lines exist independently of the practices that give

them significance, we think of jurisdiction in the abstract, removed

from any particular social content. Thinking in this way, we imagine

that jurisdiction is the space drawn on a map, rather than a collection of

rules that can be represented graphically as a map.

For many purposes, this way of thinking about jurisdiction is per-

fectly reasonable: sometimes everyone understands the jurisdictional

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dance and knows where to step. At these times the map does seem to

precede the practices. Indeed, the representation of jurisdictional space

may at times precede the actual practices that give a jurisdiction life

and meaning. Nevertheless, we must not treat jurisdiction as a thing

that precedes practice. Lines on a map may anticipate a jurisdiction, but

a jurisdiction itself consists of the practices that make significant the

abstract space depicted on a map. Moreover, when the stakes of a juris-

diction are in question, one cannot simply refer to lines on a map. In

order to understand the significance of jurisdiction as an institution, we

must constantly remind ourselves that jurisdiction is itself a set of prac-

tices, not a preexisting thing in which practices occur or to which prac-

tices relate.

The Forbidden Dance: Jurisdiction as Production of

Status Identity

The tango, like many dances, establishes quite specific roles for the

individual dancers. There is a male and a female role, quite assertively

marked by costume (suits for the gents, glamorous and often aggres-

sively "sexy" dresses for the ladies) as well as by the requirements of

the dance steps. The male "leads" and the female "follows." There is a

set of prescribed actions that rely on the assumed superior physical

strength of the person occupying the male position and the assumed

diminutive size and gracefulness of the person occupying the female

position. These positions can be seen as simple reflections of a preexist-

ing reality. There is a distinction between men and women based in

biological nature; this distinction corresponds to a number of charac-

teristics such as strength, size, assertiveness, and gracefulness. The

dance just reflects these facts. Because men are more assertive, they

lead while the more submissive women follow.

But this way of thinking too easily assumes a relationship of cause

and effect. It may be, on the contrary, that hundreds of social practices,

of which the tango is one, construct these gendered roles and encour-

age people to conform to them. A physically strong, tall, and assertive

woman will not be offered the "male" position, even if she is naturally

well suited for it. She will be encouraged by dance instructors, parents,

potential partners, and friends to conform to the female role: learn to

accept the guidance of the male, develop grace at the expense of

strength.

AGAINST CYBERSPACE

157

Notice that it may become very difficult to distinguish between

"coerced" and "voluntary" conformity to the status roles. Our strong

and assertive woman will find it easier to conform to the female role

than to attack the structure of the tango. No one need force her in the

sense of establishing formal punishment for assertive women. Instead,

the status quo effectively sanctions her assertiveness by depriving her

of acceptable roles in which she can be assertive. Her friends will sanc-

tion her by telling her that she could get a date easily if she were a bit

"nicer" or "more feminine." Men will silently punish her by refusing to

ask her to dance. If she wants to dance, she will conform. Over time

conformity will become "second nature." Our now accomplished

dancer will remember her assertive past as an "awkward phase" that

she grew out of, as a butterfly emerges from a cocoon. At that point the

status will have also become her identity.

To some extent, the dance is a highly stylized context in which gen-

der identity and gender status is performed or constructed. The tango

teaches us that men and women have different statuses because they

have different natures. It builds a status and simultaneously justifies

that status as a biological or natural fact. It provides its own evidentiary

justification: men and women in fact behave differently while dancing;

they demonstrate by their own actions that the premise of the gendered

dance is accurate.12

Similarly, jurisdiction constructs legal statuses. Territoriality con-

structs statuses or identities based on the type of jurisdiction with which

one is associated: one's jurisdictional position is analogous to the gen-

dered positions in the choreographed dance. When we perform these

jurisdictional roles often enough, they too become "second nature." But

this type of "second nature" is the product of social practices that are

enforced by social custom, and more importantly, by law.13

The transfer of this type of unreflective habitual practice from phys-

ical territory to the Internet would be an unfortunate development for

at least two reasons. It would be bad because in thinking of the Internet

as a place, we would import ideas better suited to physical territory

into a different set of issues. For instance, many of the good reasons for

antipornography zoning just don't apply to the Internet: there are no

neighborhoods to get slummy or streets where children must pass a

porn shop as they walk to school.

But perhaps the most severe problem with this conception of cyber-

space is not what it assumes about the Internet but what it assumes

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about geographical territory. Cyberspace also encourages us to import

our biases, mythologies, misperceptions, and unreflective habitual

practices concerning land and territory into a new domain.

In the following sections I'll suggest how the discourse of cyberspace

might have numerous regulative effects, both on expression and on

identity.

First, I'll explore a case in which the cyberspace conception is

employed in an attempt to justify more extensive regulation of on-line

expression than might otherwise be constitutionally permissible.

Second, I'll explore an argument in favor of the regulation and nor-

malization of identities on the Internet, an argument that, again,

employs the idea of cyberspace in a way that naturalizes and makes

invisible the process of regulation that is being proposed.

Sex in the Virtual City: "Cyberspace" as Regulation

In reviewing the scholarship of cyberspace, it is tempting to assert that

the spatialization of the Internet comes with a distinctive ideological

bent: libertarianism. But theorists such as Larry Lessig and Jerry Kang

are not libertarians. They invoke the cyberspace metaphor in order to

suggest the necessity of governmental intervention. For now, an exam-

ple from the pages of the Supreme Court Reporter (or the Lexis Fed

Courts "library") will demonstrate that the conception of the Internet

as a space can as easily serve to justify extensive regulation of on-line

activity as it can serve to delegitimate such regulation.

The Communications Decency Act of 1996 (CDA) ... criminally

prohibit[s] (1)... the knowing transmission, by means of a

telecommunications device, of "obscene or indecent" communi-

cations to any recipient under 18 years of age; and (2) ... the

knowing use of an interactive computer service to send to a spe-

cific person or persons under 18 years of age.., or to display in a

manner available to a person under i8 years of age... communica-

tions that, in context, depict or describe, in terms "patently offen-

sive" as measured by contemporary community standards, sex-

ual or excretory activities or organs. Violators of the CDA face

penalties including up to 2 years in prison for each violation.

However, the CDA provides affirmative defenses.., with

respect to those who (1) take good faith, reasonable, effective,

AGAINST CYBERSPACE

159

and appropriate actions to restrict access by minors to the pro-

hibited communications; or (2) restrict such access by requiring

certain designated forms of age proof, such as a verified credit

card or an adult identification number or code.14

Interestingly, the subject of this dispute is one that might interest

HavenCo's Sealand as well, the regulation of pornography for the ben-

efit of minors (Wired reports that even Sealand will not tolerate child

pornography or obscenity directed at children, this being one of the few

offenses-along with sending spam email-for which Sealand will pull

the plug on a client's secure server.)'5 While the government of Sealand

imagines that it will be easy to draw a line between "adults-only"

pornography and smut that implicates the innocence of children, the

more experienced members of the United States Supreme Court know

better.

The provision of the CDA that most directly implicated the "stakes

of cyberspace," if you will, was the "display provision" italicized in the

quotation above. I will therefore focus my analysis on the Court's treat-

ment of that provision.

In defense of the CDA the government argued that the statute was

analogous to local zoning ordinances directed at obscene expression.

The government cited two examples of constitutionally permissible

restrictions on pornography: age restrictions on access, upheld by the

Court in Ginsberg v. New York,16 and zoning restrictions on porno-

graphic entertainment and merchandising venues, upheld by the Court

in City of Renton v. Playtime Theaters.'7

The government's zoning-based defense of the CDA treated the

Internet as analogous to a territorial jurisdiction-a cyber city-and

thought of restrictions on Internet obscenity as analogous to local land

use regulation. On this analysis, the purpose of land use restrictions on

pornographic entertainment and merchandising is to insure that

minors do not have access to the obscene material. These ordinances

make a legitimate distinction between minors and adults for First

Amendment purposes.

In a similar vein, Justice O'Connor in a separate opinion, argued that

the CDA was "little more than an attempt by Congress to create adult

zones on the internet."'8 Unlike the majority, she articulated a position

that would have left open the possibility that a more carefully drafted

statute, combined with technological innovations that allow for better

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"cyberzoning," might yield a constitutional restriction on cyber porn.

In so doing, O'Connor treated both the Ginsberg age restriction ordi-

nance and the Renton zoning ordinance as forms of antipornography

land use restrictions:

The Court in Ginsberg... necessarily assumed.., that an

adult zone, once created, would succeed in preserving adults'

access while denying minors' access to the regulated speech.

Before today, there was no reason to question this assumption,

for the Court has previously only considered laws that operated

in the physical world, a world that with two characteristics that

make it possible to create "adult zones": geography and identity.

... A minor can see an adult dance show only if he enters an

establishment that provides such entertainment. And should he

attempt to do so, the minor will not be able to conceal com-

pletely his identity (or, consequently, his age). Thus, the twin

characteristics of geography and identity enable the establish-

ment's proprietor to prevent children from entering the estab-

lishment, but to let adults inside.19

O'Connor suggested that an analogous "zoning" of cyberspace would

likewise pass constitutional muster, but alas, such zoning was not pos-

sible given the limits of contemporary technology:

The electronic world is fundamentally different. Because it is no

more than the interconnection of electronic pathways, cyber-

space allows speakers and listeners to mask their identities....

[But] Cyberspace is malleable. Thus, it is possible to construct

barriers in cyberspace and use them to screen for identity, mak-

ing cyberspace more like the physical world and, consequently,

more amenable to zoning laws. Such technology requires Inter-

net users to enter information about themselves-perhaps an

adult identification number or a credit card number-before

they can access certain areas of cyberspace, much like a bouncer

checks a person's driver's license before admitting him to a

nightclub. Internet users who access information have not

attempted to zone cyberspace itself, but have tried to limit their

own power to access information in cyberspace.... This user-

based zoning.., is not complete. Cyberspace still remains

largely unzoned-and unzoneable....

AGAINST CYBERSPACE

161

Although the prospects for the eventual zoning of the Internet

appear promising, I agree with the Court that we must evaluate

the constitutionality of the CDA as it applies to the Internet as it

exists today.... Given the present state of cyberspace, I agree

with the Court that the "display" provision cannot pass

muster.20

O'Connor's embrace of the cyberspace metaphor was more than

casual-she, like Johnson and Post, Kang, and Lessig took it as given

that the Internet was well understood as a kind of territory. For O'Con-

nor, informed by the cyberspace conception of the Internet, the CDA's

display provision is analogous to the zoning ordinance upheld by the

Court in Renton. Both, in her view, attempt to restrict access to porno-

graphic materials to adults by requiring the spatial segregation of

minors from sites of pornographic expression.

For O'Connor, the problem with the government's cyberzoning

argument was not that cyberspace lacked a geography but rather than

cyber-users lacked (or could hide their) identities:

Cyberspace undeniably reflects some form of geography; chat

rooms and Web sites, for example, exist at fixed "locations" on

the Internet. Since users can transmit and receive messages on

the Internet without revealing anything about their identities or

ages.., however, it is not currently possible to exclude persons

from accessing certain messages on the basis of their identity.21

So for O'Connor, adequate identification technology would transform

the display provision from an unconstitutional restriction to a consti-

tutionally acceptable form of land use planning, like that upheld in

Renton.

This analysis is odd if we reject the cyberspace metaphor. First,

although the age restriction ordinance at issue in Ginsberg, the zoning at

issue in Renton, and the CDA's display provision were all laws restrict-

ing pornography, the similarity among them ends there. The Ginsberg

statute was not a land use regulation and was not analyzed as one-it

was a blanket age restriction that had nothing to do with the location of

the businesses in question or the use of real property. Its purpose was

to prevent minors from purchasing pornography, wherever it was

located. It was constitutional because it only restricted access by minors

and did not have a chilling effect on the expression or access of adults.

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The zoning statute at issue in Renton is distinguishable from the

CDA because it does involve land use-conflicting uses of real estate by

geographical neighbors-and the CDA does not. As the majority opin-

ion by Justice Souter points out, the CDA was distinguishable from the

zoning upheld in Renton, which targeted the secondary effects of

obscene expression rather than its content.

According to the Government, the CDA is constitutional

because it constitutes a sort of "cyberzoning" on the Internet. But

the CDA applies broadly to the entire universe of cyberspace.

And the purpose of the CDA is to protect children from the pri-

mary effects of "indecent" and "patently offensive" speech,

rather than any "secondary" effect of such speech. Thus, the

CDA is a content-based blanket restriction on speech, and, as

such, cannot be "properly analyzed as a form of time, place, and

manner regulation."22

The primary purpose of antipornography zoning is not to prevent

access by minors-this objective can be achieved much more directly

by simple restrictions on sale of pornographic materials and admis-

sions to pornographic entertainment venues. The legitimate primary

purpose of antiporn zoning is to avoid the secondary effects of porno-

graphic merchants and entertainment on neighboring land uses: nega-

tive perceptions of the neighborhood, diminished property values, the

presence of unsavory persons often associated (or thought to be associ-

ated) with pornography. This is why the Supreme Court has upheld

zoning restrictions that either quarantine or disperse pornography

merchants, leaving it to local officials to determine whether local inter-

ests are best served by restricting all pornography merchants to a single

red-light district and thereby protecting the rest of the city from its ill

effects, or by dispersing it and thereby preventing a red-light district

from forming anywhere.23

Although zoning that prohibits pornographic entertainment within

a certain distance of a school (also upheld by the Court) might be

understood as designed to prevent access by minors, it is better under-

stood as, again, directed at secondary effects. Assuming effective age

restrictions on admission, physical proximity to pornographic enter-

tainment does not increase the likelihood of direct access by minors. If

the fear is that minors might still be influenced by signs or advertise-

AGAINST CYBERSPACE

163

ments or might glimpse the entertainment through windows or open

doors, this likewise could be (and is) controlled directly by ordinances

requiring opaque window shades and curtains in front of doors (the

merchants also have an economic incentive to prevent access to non-

paying passersby) and banning explicit advertisements visible to the

street. Instead, these zoning ordinances are better understood as

designed to segregate schoolchildren from the secondary effects of

porn: the demimondaine of the smut trade.

Secondary effects are understood to provide a legitimate, content-

neutral justification for restrictions on obscene expression. Indeed,

antiporn zoning can be understood to be simple land use regulation

with a side effect of the restriction of a certain form of expression. Just

as land use restrictions on slaughterhouses do not reflect a bias against

meat, so too restrictions on pornographic entertainment need not

reflect any concern about access to pornography-even for minors.

What looks like secondary effects from the perspective of First Amend-

ment jurisprudence looks like the primary problem of neighboring

incompatible uses from a traditional land use perspective. Hence the

secondary effects of pornographic expression in physical proximity to

other land uses arguably justify restrictions that might otherwise be

constitutionally suspect.

This classic land use problem doesn't exist in "cyberspace" for the

simple reason that there is no physical proximity in "cyberspace." The

cyberspace metaphor has consequences in this context: it makes it plau-

sible to (mis)describe content-based antiporn regulation as content-

neutral land use planning and thereby to justify relaxed constitutional

scrutiny.

Let's suppose that fifteen minutes or so in the future, we have avail-

able the age verification technology that O'Connor anticipated in Reno.

Such technology might make the CDA's display provision constitu-

tionally permissible because with it, we could more reasonably expect

pornographers to police the age of their customers. But the technology

would not transform the Internet into a territory or the display provi-

sion into a zoning ordinance like that at issue in Renton, which could be

justified because it targets secondary effects. The question in Reno is

and would remain: Under what conditions is it constitutionally per-

missible to require on-line pornographers to police the age of the cus-

tomers? The cyberspace metaphor does not help us to answer this ques-

tion-it only distracts us from it.

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Of course one could cling to the spatial metaphor by claiming, as

many have, that in cyberspace "distance . . . must be understood in

transaction cost, not physical terms,"24 in download time or file size,

and not in miles, yards, or feet. We could say, along with Justice O'Con-

nor, that colorful metaphors such as "chat room" and "multi user dun-

geon" "undeniably reflect"25 an underlying geography, as if language

is necessarily mimetic. We could insist that two websites are engaged in

"neighboring" incompatible cyberspace uses when a user is likely to

accidentally get one site while looking for the other (so we might

employ nuisance doctrine to enjoin the operator of the "Youho"

pornography site for interfering with the "neighboring" Yahoo site).26

Or we might say any website is "too close" to the homes of families if

access isn't restricted by some age verification system.

But are such heroic efforts at spatial translation worth the trouble?

We could also say that local telephone calls placed to rural areas where

the cost of providing access is relatively great are "long distance" calls

in cyberspace terms, while calls placed to distant urban areas blessed

with economies of scale are cyberspace "local." We could say that tele-

vision stations occupy "locations" on the dial and therefore the regula-

tion of broadcast media should analyzed as a form of land use plan-

ning, or for that matter that age-of-consent laws are a form of "sexual

zoning" designed to "virtually distance" minors from sexual relations

best reserved to adults.

Sex in the Virtual City II: Manhattan as the Matrix

My point is not that any such system would be unworkable. Just the

opposite: we could make it work if everyone started thinking in this

way. We would all get better and better at describing Internet issues as

real property issues and land use issues and issues of territorial juris-

diction. Perhaps more importantly, we would internalize those

descriptions and act on them. Cyberspace would become "second

nature" to us, not because it is natural to think of the Internet as a space

(as Johnson and Post claim) but because it would become a habitual

practice, reinforced by the equally habitual practices of countless other

people and reinforced by law.

To illustrate this point, let's look at a "space" where territorial analy-

sis is already second nature: land use planning in cities. Immediately

one might object: "But in cities the analysis is appropriate; it is 'second

AGAINST CYBERSPACE

165

nature' because it is in fact natural." Not so fast. There are plenty of

issues that are understood as spatial but could as easily-and perhaps

more appropriately-be thought of in other terms. A great deal of what

we take as natural about physical territories-jurisdictions-is in fact

the product of a legally codified habitual practice.27

We have seen how the idea of antipornography zoning is question-

able when applied to the Internet. But the idea that antipornography

regulation is well understood as land use planning can be questioned

when applied in cities and towns as well. There, too, the use of a spatial

metaphor can distract attention from what is at stake in the regulation.

Consider an antipornography zoning initiative that followed the Ren-

ton opinion: the rezoning of New York City accomplished by Mayor

Rudolph Giuliani. I will argue that the Manhattan neighborhoods reg-

ulated by Giuliani's ordinance were, like the territory of cyberspace,

discursively produced; in a sense as virtual as an Internet chat room.

The New York antiporn zoning was famously about the control of

secondary effects: Giuliani promised to-and did-clean up the seedy

Times Square District, transforming a blighted red-light district that

even hardy New Yorkers avoided into a tourist zone fit to be the east

of the Hudson River pied-a-terre of Mickey Mouse. Other targets of

the ordinance are less celebrated: for instance, social critic Michael

Warner describes a gay-identified neighborhood that was a target of

the ordinance:

The first aim of the bill's five-hundred-feet rule is to disperse

adult businesses.... But for queers the concentration of adult

businesses has been one of the best things about then. The gay

bars on Christopher Street draw customers from people who

come there because of its sex trade.... The boutiques that sell

freedom rings and Don't Panic T-shirts do more business for the

same reasons. Not all of the thousands who migrate or make pil-

grimages to Christopher Street use the porn shops, but all benefit

from that fact that some do.... [Over time the neighborhood]

becomes a base for non-porn businesses like the Oscar Wilde

bookshop. And it becomes a political base.28

Here the concentration of adult businesses is not "secondary"-it is a

primary part of their function in a public culture. The supposed sec-

ondary effects that are the legitimate target of the zoning law under

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Renton are, in Warner's description, a part of the primary expressive

and political content of the adult businesses.

Here, as is Reno, the spatial metaphor of zoning misdirects our atten-

tion. "Zoning" evokes the rational organization of activities in space,

the segregation of "incompatible uses," the minimization of Coasian

joint costs, the classical governmental duty to abate common-law nui-

sances. Through this spatial metaphor, the physical nature of territory

appears to literally ground decision making: we can measure appropri-

ate distances, draw objective maps, and assign various activities their

statuses and their places according to their objective social costs and

benefits. The notion of spatial zoning implies a cool-headed objectivity

and a certain inevitability: in a world of physically proximate incom-

patible activities and joint costs, zoning is necessary to minimize costs

and maximize social utility. Just as "quality of life zoning" sounds

more urbane (not to mention more constitutional) than "censorship of

public sexual expression," so too "zoning cyberspace" sells better than

"censoring on-line expression." Zoning seems to be about objective

social problems and rational solutions, while the regulation of expres-

sion entails the imposition of inherently subjective norms of decency

and delicacy.

But Warner's discussion demonstrates that the two are not so easily

severed, even in a discursive context in which "the physical" has its

strongest and most widely accepted conventional application. For

Warner part of what makes the adult businesses on Christopher Street

what they are-part of what they "sell" and what they say-is their

proximity to other such businesses in a gay business district. And this

expression is precisely what the Giuliani ordinance is directed to pro-

hibit (at least as it is applied to that neighborhood). By describing that

medium of expression as nothing more than objective physical loca-

tion, the city can present the ordinance as a form of "simple" land use

regulation and nuisance abatement.

The constitutional discourse of secondary effects imagines a sharp

division between the regulation of expression-highly suspect under

the First Amendment-and the regulation of land uses that is almost

entirely within the discretion of government. But to the extent that

space itself is a discourse, a form of expression, this division cannot

hold.

Consider first the secondary effects argument in New York's zoning

law. Here the natural, inevitable, organic properties of the territory of

AGAINST CYBERSPACE

167

the neighborhood are invoked to justify an antiporn ordinance on land

use grounds: certain uses (residences, schools, churches) simply are

incompatible with pornography. Moreover, the neighborhood natu-

rally is the property of its residents, whose chosen uses of the territory

are primary to all others.

We find a tacit analogy to a classical land use case in which the phys-

ical properties of activities are at issue: for instance, industrial uses

make an area unsuitable for residences due to unavoidable pollution

and noise: this is taken as settled because of the physical properties of

industrial activity (although, of course, one can argue that buildings

can be equipped with air filters and soundproofing). But the analogy to

pornography is weak: the physical properties of pornography are no

different than any other type of expression. Instead the incompatibility

on secondary effects analysis comes from the social properties of

pornography: the self-fulfilling association of pornography with vice

and crime.

And this raises a problem for the New York zoning law, not only

because social phenomena are generally more susceptible to change

than physical phenomena, but also because expression is precisely the

means by which citizens are supposed to go about trying to change

them. If Warner's description of the queer community as a "sex pub-

lic"29 is credited, then the use of public space for sexual expression is a

social project-an attempt to intervene in the social life of the city and

to change the association of explicit sexuality with vice and degeneracy.

This makes the social "nuisance" of porn quite different than the nui-

sance of, say, coal-burning factories in residential neighborhoods: no

industrialist ever believed he was trying to raise awareness about the

benefits of coal smoke, nor would any doctor entertain the suggestion

than polluted air would be fit to breathe if the nation's asthmatics sim-

ply freed their minds.

Which brings us to the issue of residence and ownership. Here the

analogy to a classical common-law property nuisance is stronger, but it

raises a problem that nuisance law and zoning have never adequately

resolved. Common-law nuisance is a tort against property: by defini-

tion only property owners can sue for nuisance, and their damages are

measured in terms of harm to property values or to the use and enjoy-

ment of property. In many nuisance cases, we consider only the neigh-

boring property owners who litigate the dispute: say the polluting fac-

tory owner versus the suffering residents. But we tacitly and at times

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explicitly acknowledge that the litigants "stand in" for many other

affected parties: the factory owner represents the interests of his

employees and customers, who benefit from his profitable enterprise,

while the homeowner represents the interests of nonresident pedestri-

ans who must also breathe the polluted air. The difficulty is in deter-

mining how appropriately to account for the interest of these broader

publics in resolving the dispute. In some cases, the court attempts to

estimate the costs and benefits to the society as a whole, the benefits of

cheaper products made by coal-burning factories to society and the cost

of coal pollution. But in other cases, the societal interests are "virtually

represented" in a simple cost-benefit calculus that includes only the

costs to the litigants: presumably the idea is that in a well-functioning

market the true cost to the factory owner includes the cost to society,

since the value to society will be reflected in the firm's profitability.

The powers of the state to regulate land uses in the public interest

were derived from common-law nuisance doctrine. But with the shift

from private to public enforcement, the goal should be to consider the

interest of society as a whole-not just property owners-in determin-

ing how to regulate incompatible uses. After all, the power of the state

to regulate land uses goes far beyond anything that could be justified as

a proxy for judicially administered common-law nuisance abatement.

But in practice, land use decisions often fall back on the common-law

nuisance analysis from which the zoning power derived; analysis con-

siders the interests of property owners as proxies for different classes of

people in society as a whole. This introduces a severe bias into land use

planning: a tendency to elevate the interests of property owners over

other interests and often to ignore almost completely those interests that

cannot be virtually represented by a property-holding proxy. This bias

is explicitly articulated in a discourse and formal procedure that privi-

leges the interests of the residents of a community (those with a property

interest-at least a leasehold-in land) over any and all others.30

In the case of pornography, the porn merchant might represent the

interests of Warner's queer sex public that consumes the porn and uses

the public space created by the concentration of queer businesses. But

such virtual representation fails miserably to capture the political and

social nature of the interests Warner describes. For Warner's queer sex

publics, the battle was over as soon as the Giuliani administration

chose land use planning as it modus operandi. Or perhaps the real bat-

AGAINST CYBERSPACE

X69

tle was lost years earlier when the regulation of expression was upheld

against constitutional challenges as land use planning in Renton.

Zoning cyberspace is an attempt to import this type of land use

analysis to the Internet. The consequences of such an attempt, if suc-

cessful, are, I think, predictable. Like existing zoning, zoning in cyber-

space will likely privilege propertied interests over others. On the Inter-

net, this is likely to mean businesses with an interest in intellectual

property and private domestic entities (families) who can evoke the

right to control what enters the private home.

On the Internet, as in Manhattan, there are other people with com-

peting interests. The individual or group that wishes to use explicit sex-

ual expression in order to create a open and visible public presence

Warner's "sex publics"-would have been the victim of the CDA's

display provision, much more than the vilified "pornography indus-

try," which has already accommodated itself to the privatization of sex-

uality in "real space" by moving from public theaters to home video

and pay-per-view and which is already happy to demand, without

legal prompting, identification for its on-line ventures, not in order to

protect impressionable children but in order to ensure prompt pay-

ment for its services.

The idea of "zoning cyberspace" encourages us to think of the Inter-

net as a neighborhood that some class of "stakeholders" have a right to

control at the expense of "mere users." It is no accident that one of the

first attempts to zone cyberspace involved a restriction on expression

that challenges comfortable norms of domesticity. Like land use plan-

ning generally, zoning the Internet involves a certain domestication of

a pluralistic phenomenon, the remaking of a public medium as a pri-

vate preserve.

To some extent the protection of children is simply an excuse for

this private hijacking of a commons. But even to the extent that the

danger to children is real, cyberzoning raises questions about the

costs, to both adults and to children, of child-proofing society at large

that land use analysis, with its roots in nineteenth-century conceptions

of physical of causation and harm, is wholly unequipped to answer.

The urbanist Lewis Mumford observed that suburbia, a place to some

extent designed for children, made the adults who spent their time

there increasingly child-like: "[There is] the temptation to retreat from

unpleasant realities, to shirk public duties, and to find the whole

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meaning of life in the most elemental social group, the family, or even

in the still more isolated individual . . . even as a single phase of life,

that of childhood, became the pattern for all the seven ages of man."31

We should hesitate before "zoning" the Internet to become a plastic

bubble fit for infants, ultimately as confining and sterile for children as

for adults.

Virtual Identity and Racial Zoning

Jerry Kang poses the following provocative question: "Can cyberspace

change the very way that race structures our daily lives?" Kang sug-

gests that it can, by providing unique opportunities for forms of racial

interactions that are either impossible or rare in everyday life. But, like

Justice O'Connor in Reno, he adopts a spatial conception of the Internet

that threatens to undermine the transformative potential of the Internet

and to enlist it as an instrument of a regressive status quo.

Kang argues that cyberspace allows for three types of racial interac-

tion: racial anonymity, racial passing, and transracial interconnection,

which correspond to three possible policy goals: racial abolition, racial

transmutation, and racial integration.

Cyberspace promotes racial anonymity/abolition to the extent that

the technology masks or fails to reveal the racial identity of its users. If

I were to deliver this paper in person, my racial identity would be

revealed to the audience, under normal circumstances. If I were to

deliver this paper on a website, I would not be required to reveal my

racial identity, and indeed it might be odd for me to do so. The Internet

could be structured, either through legal mandates or through techno-

logical mechanisms, to make racial identification impossible or easily

sanctioned (for instance, filter programs could be programmed to

search for and block out references to race, or statutes could forbid

questions about race, much as current antidiscrimination law forbids

questions about age in some contexts). Such a set of policies would pro-

mote racial anonymity.

Kang argues persuasively that racial anonymity/abolition offers

real benefits in situations where racial identity is normatively irrele-

vant, such as economic transactions.32 In such contexts, we expect that

individuals and groups should treat each other in strictly market-ratio-

nal terms, as a sort of embodied capital. Hence, an employer should

treat its employees as their predicted contribution to net profit (gross

AGAINST CYBERSPACE

171

profitability added by the employee's contributions minus the costs of

employing him or her, including opportunity costs). Similarly a land-

lord, public accommodation, or retail business should treat its cus-

tomers or tenants as predicted net profit (the income paid by the cus-

tomer or tenant minus the cost of providing the service or goods in

question). Such a conception excludes decision making based on irra-

tional bias: if a woman can do a given job as a well as a man without

imposing additional costs on the employer, she should receive identical

compensation and identical consideration. This conception of market-

rational behavior (with some exceptions and refinements) underlies the

judicial interpretation and enforcement of federal civil rights laws such

as Title VII and Title VIII of the Civil Rights Act.33

Kang also correctly points out that anonymity also has drawbacks: if

members of racial groups wish to organize for political or social pur-

poses, compulsory anonymity effectively prevents them from doing so.

Because the majority of users of the Internet are not members of minor-

ity groups, abolition could be seen as placing an asymmetrical burden

on minority group members: members of the majority will be less likely

to desire race-based organizing because as members of the majority,

they are less likely to have explicitly racial concerns. By contrast, major-

ity group members are more likely to in fact encounter groups in which

they are in the majority without the need for explicit racial identifica-

tion and coordination.34

Cyberspace promotes racial transmutation/passing to the extent

that the technology allows one to "pass" as a member of a different

race. Kang uses the examples of avatars in MUDs and characters or

personae in chat rooms: if one chooses a persona or avatar of a race dif-

ferent from one's "real space" race, one has engaged in racial transmu-

tation.35 Again, legal rules and technological fixes could either promote

or discourage transmutation. And like abolition, transmutation comes

with risks and benefits. Transmutation has positive potential: users

might come to empathize with members of other racial groups were

they to adopt unfamiliar racial personae and walk a cyber mile in the

shoes of person of another race. But, as Kang points out, racial trans-

mutation also raises the risk of stereotyping and minstrelsy.36 Nothing

would prevent the racist from acting out the most demeaning racial

stereotype, an insult that would include injury to the extent that other

users believed the cyberminstrel was in fact a member of the racial

group she parodied.

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Racial integration is a somewhat different case. Here we rely on

some assumptions about what types of interaction is likely to occur on

the Internet. If we imagine, as Kang does, that the Internet is likely to

produce a greater number of protracted and engaged transracial inter-

actions than physical public spaces, then we might see cyberspace as a

potentially fertile site for racial integration.

Kang points out that in order for racial integration to occur, we must

avoid racial anonymity and racial passing: "As a threshold matter, any

integration environment requires some degree of racial authentication

... people must feel relatively secure that the racial signal broadcast in

cyberspace is the same signal broadcast in real space."37 This is an intu-

itively reasonable suggestion: If everyone were racially anonymous,

there could be no racial integration because, for the purposes of the

interactions, there would be no races to integrate (or perhaps more

likely, most users would assume that all users were members of the

majority racial group). By the same token, if users regularly passed for

races not "their own," other users might not trust the racial signal they

received in cyberspace-one would never know whether one was

"really" dealing with a person of different race or not.

Kang's proposed approach to these issues is one that Justice O'Con-

nor might find amenable: he suggests that cyberspace could be divided

into "zones" in which one of the three policy goals-abolition, trans-

mutation, or integration-would be pursued. In this way, we could

have the benefits of abolition in the economic sphere while allowing for

the benefits of transmutation or integration in the social sphere.

Kang's discussion provides a great deal of valuable insight. Kang is

one of the few commentators who has taken issue of race on the Internet

seriously. Here he fills a real void: as he points out, issues of race will not

vanish on the Internet: "we should not presume that by logging into

cyberspace, we enter some digital promised land that deletes centuries of

racial conflict."38 Still, Kang's racial "zoning" raises at least two ques-

tions. First, is "zoning" the appropriate way to think of what Kang pro-

poses? I have already suggested why it may not be in the context of Jus-

tice O'Connor's opinion in the Reno case. I will have more to say against

this spatialization of the Internet, specifically as it pertains to race, below.

For now I'd like to focus on a second question: How should we think

of the salience of race on the Internet? Is cyber-race simply the faithful

reflection of an objective racial identity in a new medium-"the digital

AGAINST CYBERSPACE

173

projection of your virtual self," in the language of The Matrix? If not

if, for instance, racial identity is the product of social practice and a

social conversation-then perhaps the nature of the medium through

which this discourse occurs alters-even partially determines-the

nature of the identity. In a sense, we ask a question Marshall McLuhan

would understand: if the medium is the message, then isn't cyber-race,

a racial discourse that takes place in a new medium, a fundamentally

new discourse? On this account, cyber-race cannot simply be the inno-

cent reiteration of a given and familiar racial discourse through a rela-

tively transparent medium; it must instead be the active and engaged

production of a novel racial discourse. In this sense, cyber-race is an

invention and its use, a decision.

Kang's own discussion makes this apparent: he spends over seventy

law review pages working out in fairly precise terms the way that the

discourse of cyber-race should be structured and implemented. For

instance, he argues that in order to have racial integration, a proscribed

discourse of race must be "enforced."39 People must have a way of

reading race into interactions where it would not otherwise be visible,

and they must have certainty that others will read racial signals in the

same way that they do.40 In short, integration-indeed any racialized

interaction-requires a lingua franca of race, a shared idiom through

which race is spoken and understood.

Any integration environment requires some degree of racial

authentication. In other words, people must feel relatively secure

that the racial signal broadcast in cyberspace is the same signal

broadcast in real space.., any virtual community could make

clear that its ground rules preclude cyber passing.... This clear

ground rule could be enforced by members of the community to

various verification strategies.... Verification could take place

through some regime of registration... [or] verification can take

place through interrogation. When someone claims to be a grad-

uate of a prestigious university in a chat room, one might ask

which dormitory she was affiliated with.... Men passing as

women often are unmasked when they cannot answer elemen-

tary questions about menstruation. Soon, people may simply ask

for a virtual business card, which includes a photograph or per-

sonal web page.41

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If the Internet is place, it may seem appropriate that people bring

their physical selves-including racial markers-with them, just as we

do when traveling from one neighborhood or one city to another. In

language reminiscent of O'Connor's discussion of age verification in

Reno, Kang describes such practices as "authentication."42 But a policy

of racial authentication might seem less benign were we to think of the

Internet, not as a space, but as a medium of communication. Suppose,

for instance, that someone were to propose racial authentication for

communication through the mail or over the telephone. Such a policy

would share much in common with that at issue in Ferrill v. The Parker

Group:

TPG [The Parker Group] is a telephone marketing corporation,

often hired to perform work for political candidates. The con-

duct at issue in this case involves TPG's work making "get-out-

the-vote" calls for various political candidates ... Approximately

io% of such calling is race-matched, such that black voters are

called by black TPG employees who use the "black" script, while

white voters are called by white TPG employees who use a dif-

ferent "white script."... TPG employees doing the race matched

calling in 1994 were assigned separate calling areas and separate

scripts according to race... TPG also physically segregated

employees who worked at race matched calling. Black callers

were segregated into one room and white callers segregated into

another.43

Although for the Ferrill court, the physical segregation of employees

was most disturbing, I would like to focus instead on TPG's use of

racial scripts. TPG's policy could be defended as an innocent form of

racial authentication-a way of letting potential voters know with

whom they are communicating in a medium that does not adequately

register racial data. But it should be obvious that this type of racial

identification entails something more than a faithful reflection of the

reality at the end of the telephone receiver. In order to produce race

through the wire we need a stylized racial script. The policy of the

Parker Group can be seen as a high-tech apartheid: black and white

employees were not only physically segregated (in an almost quaint

nod to the heritage of the American South) but more importantly, dis-

AGAINST CYBERSPACE

175

cursively segregated, divided by compulsory scripts; each individual

required to play out a racial identity written for it. And through its use

of racial scripts and racial demographic data, the Parker Group installs

Jim Crow as master of ceremonies, not only for its own employees but

also for the potential voter who its practices target: she too is interpel-

lated into the racial script that was written with her votes, her mind and

her body as its object.

TPG's practice is, as the court held, racially discriminatory. But more

than that, TPG's practice produced racial identity-it produced race in

the form dictated by a script and imposed that particular racial script

on its employees and on every household its employees called.

How different is the production of race that Kang proposes? Very

different one might argue, if evaluated in terms of motivations. But of

course we don't know that the motivations of TPG were racist: perhaps

TPG simply thought its racial scripts were the best means of getting its

message out given certain underlying social facts about race. Perhaps

they thought that potential black voters would appreciate the racial

camaraderie that their policy offered. Perhaps they were right. The evil

of TPG's racial scripts policy was that it was self-fulfilling: TPG took a

contingent idea of racial identity for granted and in so doing con-

tributed to entrenching it as a practice, to making it second nature.

By the same token, I would assert that what Kang calls authentica-

tion is a regime of regulation through which racial identity is produced

and inscribed. What Kang proposes is that the racial status one is

assigned in one context should follow her to another. It is not clear why

this policy should be understood as simple "authentication" any more

than it would be authentication if we were to require persons from

caste-based societies to regularly announce their caste status while on

holiday in the United States or require convicted felons to regularly

recount their former crimes once released from incarceration (a sort of

expanded Megan's Law). Viewed from this perspective, the term

authentication takes on an Orwellian tone, a tone that is amplified by

Kang's suggestion that this "authentication" could be underwritten by

a "regime of registration and.., interrogation."44

If self-identification is insufficient to establish racial membership,

how is membership to be evaluated? It may seem that this is a simple

matter, no more difficult than racial identification in "real space." But

in most social contexts we don't have need of racial authentication, and

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when we do, racial authentication is a source of crisis and anxiety, not

easy or obvious evaluation. If we were to use photographs,45 would,

say, lighter-skinned blacks or Asians with "Anglo" features be disbe-

lieved? If interrogation were employed, what responses would authen-

ticate racial identity? Knowledge of ethnic food or music? Use of ethni-

cally identified language patterns or slang? These criteria might

inscribe the stereotypes that Kang justifiably worries about in the con-

text of racial transmutation. Of course we cannot stop people from

racially identifying on the Web, nor should we. But a policy of requiring

racial identification in any context, with the regulative normativity

such a policy would necessarily entail, raises questions that it is easy to

overlook if we think of the Internet as a space with physical properties

waiting to be revealed.

While I question some Kang's proposals, I wholly share his concerns

about the future of cyberspace. I too "fear that cyberspace will reinscribe

a repressive racial mechanism even deeper into our nation."46 This is

one reason that I'm against it. As in O'Connor's description of antiporn

zoning in Reno, the idea of cyberspace as something with natural-if not

inevitable-attributes serves to legitimate a proposal that should be at

least controversial, and perhaps alarming. In both cases the analogy to

land use facilitates a story about a natural and wholesome activity-the

domestic pleasures of the family home in one case, the highly normative

discourse of identity politics on the other-which needs protection from

infiltration by a perverse doppelginger: in the first instance, pornogra-

phy, which mocks, mutates, and infects the conventional sexuality-for-

procreation of the heterosexual marriage, and in the second, racial trans-

mutation, a sort of queer racial cross-dressing that undermines the

conventional commitments and assumptions of identity politics.

Both narratives are undergirded by a pervasive and dangerous fic-

tion of the private: in the first instance, that sexuality can and should be

restricted to the private realm of the home, where it can and should be

domesticated and quarantined; in the second instance, that racial iden-

tity is a thing about which there are truths and that those assigned a

identity could guard and control those truths and their circulation if

given a private property-like right in them. Finally, both narratives

imply that the authentication of identity is nothing more than the inno-

cent verification of a prepolitical fact, even as they require ever more

elaborate mechanisms to produce, assign, and inscribe those identities;

AGAINST CYBERSPACE

177

they imply that the verification of identity has no consequences for

those with nothing to hide, even as the apparatuses of identification

require an ever more ubiquitous and comprehensive intervention into

the lives of anyone within their reach.47

Conclusion

To be "against cyberspace" is not to oppose the Internet, nor is it to cri-

tique an inaccurate description of the Internet. It is to question an ill-

considered design of the Internet. Cyberspace tempts us with a tale that

is both exhilarating and comforting: that the Internet is a new frontier,

a terra nullius laden with the opportunities of first discovery, and is at

the same time familiar, presenting only issues we have dealt with

before. The story concludes that it can be domesticated in the same way

we have domesticated much of the natural environment.

The metaphor of territory promises to provide a literal grounding

for policy analysis-a set of physical constants that can be referred to as

fact and taken for granted. This idea is often inappropriate in the con-

text of physical territory: The economist Ronald Coase demonstrated in

the context of nuisance law that physical proximity does not produce a

physics of causation and harm that can help to resolve a dispute but

instead a conflict of joint costs requiring value judgments about who

should bear socially created burdens. Modern land use planning has

inherited the same problem: at its best, land use analysis acknowledges

the necessity of value judgments about the worth of various land uses.

Similarly the rights and duties of local citizenship seem to naturally

attach to residency, but residence itself is a contingent legal status, not

a feature of physical location.

Even more so in the case of the Internet, a metaphysics of space

threatens to derail sound analysis and to smuggle in, as inevitable or

logically compelled, background rules that should be subject to debate.

Whether deployed to support anarchic "self-regulation" or to justify

the domestication of threatening or destabilizing expression, the cyber-

space trope serves neither justice nor democracy. The idea of cyber-

space is not incorrect; it is unwise. We could, through discourses like

cyberzoning, remake the Internet as cyberspace. We could make the

metaphor reality. This project called cyberspace is what, I propose, we

should be against.

178

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NOTES

1. Simson Garfinkel, "Welcome to Sealand. Now Bugger Off." Wired, July

2000, http://www.wired.com/wired/archive/8.o7/haven.html.

2. Ibid.

3. The telecommunications companies that increasingly administer the

Internet know this very well: they have lobbied hard for federal regulation of

telecommunications, not in order to keep government out of the Internet, but to

secure governmental intervention in the physical world that is favorable to

their interests.

4. David R. Johnson and David G. Post, "Law and Borders: The Rise of

Law in Cyberspace," Stanford Law Review 48 (1996): 1376, 1378.

5. David R. Johnson and David G. Post, "And How Shall the Net Be Gov-

erned?" http://www.cli.org/emdraft.html.

6. Jerry Kang, "Cyber-Race," Harvard Law Review 113 (2000): 1186.


Books, 1999), 190.

8. Greater evidence that Lessig means this only poetically is that earlier in

the same text he asserts that cyberspace is "not a place, it is many places" (ibid.,

63). The thrust of Lessig's argument in largely in line with my own: the dimen-

sions and implications of cyberspace or cyberspaces are not given; they are a

function of law, technology, and other social practices. I wish to add that the

Internet as a territory-a conception that Lessig and many other commentators

take for granted-is also not given. It too is one of the technologies that will

determine what the Internet will be.

9. Ibid., 193.

10. See generally, Richard T. Ford, "Law's Territory: A History of Jurisdic-

tion," Michigan Law Review 97 (1999): 843.

11. Ibid.

12. I owe this line of analysis regarding gender to Judith Butler, Gender

Trouble (New York: Routledge, 1990). Note that it is not necessary to deny the

existence of biological differences between the sexes in order to question the

thoughtless conflation of these biological differences with a host of social differ-

ences.

13. In no way do I wish to suggest that because it produces statuses, juris-

diction (much less the tango!) should be abolished. Nor is the "answer" to

replace structured practices with "fluid" ones that allow individuals autonomy

(All dance must be modern interpretive dance! Down with choreography!). At

this point, I simply wish to draw attention to an aspect of the jurisdiction that

has been overlooked, and to suggest that this aspect is not accidental, but

instead a central and indispensable function of the jurisdiction.

14. Reno v. A.C.L.U., 521 U.S. 844 (1997).

15. Garfinkel, "Welcome to Sealand."

16. Ginsberg v. New York, 390 U.S. 629, 20 L.Ed. 2d 195, 88 S.Ct. 1274.

17. City of Renton v. Playtime Theaters, 475 U.S. 41, 89 L.Ed. 2d 29, 1o6 S.Ct.

925.

AGAINST CYBERSPACE

179

18. Reno v. A.C.L.U., 886.

19. Ibid., 889; emphasis added.

20. Ibid., 889-90.

21. Ibid., 890.

22. Ibid., 867-68.

23. See generally Renton; Young v. American Mini Theaters, 427 U.S. 50 (1976).

24. Kang, "Cyber-Race," 1187.

25. Reno v. A.C.L.U., 890.

26. The reader might object that we in fact do exactly this. Through trade-

mark law we do enjoin activities likely to lead to confusion with an established

mark. But this proves my point: it makes more sense to treat the Yahoo/Youho

conflict as a trademark dispute under established law than as, say, a zoning dis-

pute under a new law informed by the cyberspace metaphor.

27. See generally Ford, "Law's Territory."

28. Michael Warner, The Trouble with Normal (Cambridge: Harvard Univer-

sity Press, 1999), 157-59.

29. Ibid.

30. Warner notes that the zoning bill's "procedural politics.., are set up to

guarantee the dominance of the rhetoric of neighborhood at every step. [The

bill first was considered at] every community board in the city, followed by the

borough boards. Only then did the City Planning commission hold public hear-

ing at which non-neighborhood organizations could testify.... The assumption

remained that people have a right to control their neighborhoods" (ibid.;

emphasis added).

31. Lewis Mumford, The City in History (New York: Harcourt, Brace and

World, 1961), 494-95.


33. See generally, Mark Kelman, "Market Discrimination and Groups,"

Stanford Law Review 53 (2ool): 883.

34. See Kang, "Cyber-Race," 158-59.

35. See ibid., 1180-85.

36. See ibid., 1184-1188.

37. Ibid., 1196.

38. Ibid., 1154.

39. Ibid., 1197.

40. Ibid., 1196.

41. Ibid., 1196-98.

42. Ibid., 1196.

43. Ferrill v. The Parker Group, 168 F. 3d 468 (1999).


45. Ibid.

46. Ibid., 1208.

47. This is not to say that these "zoning" proposals do not attempt to deal

with real social conflicts. It may be that children are harmed by exposure to cer-

tain types of sexual imagery. And it is almost certainly true that the evils Kang

worries about-especially racial minstrelsy by insensitive or racist persons-

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are real problems in an unregulated Internet. But what is odd about both cyber-

space analyses is the underlying implication that these problems are somehow

new and unprecedented in "cyberspace." Children have been exposed to sex-

ual imagery since there were children and sexual images. And there is no rea-

son to think that sexual imagery is more damaging today than in the past (Mar-

quis magazine-a periodical dedicated to sexual fetish imagery-is tame fare

compared to the writings of its namesake, the marquis de Sade). The first clan-

destine peek by preteen boys at some neighborhood father's not-so-well hid-

den porn collection, is, ironically, a staple rite of passage in that exemplary zone

of American domesticity, the middle-class suburb.

Similarly, one need only note the history of the word minstrelsy to know that

racial "transmutation" in the service of stereotyping predates the Internet, the

computer, indeed the telephone and the motion picture. And surely racial

stereotypes acted out by live people, at times people of color themselves-the

televised version of Amos' n' Andy comes to mind, but there are countless other

examples-are at least as damaging to healthy race relations as anonymous

encounters on the Internet, where hoaxes and scams are already sufficiently

pervasive as to make the intelligent user view any "information" with a skepti-

cal eye.

Contributors

Wai Chee Dimock is Professor of English at Yale University.

Lawrence Douglas is Associate Professor of Law, Jurisprudence and

Social Thought at Amherst College.

Patricia Ewick is Professor of Sociology at Clark University.

Richard Ford is Professor of Law at Stanford University.

Lawrence Lessig is Professor of Law at Stanford University.

Annelise Riles is Professor of Law and Professor of Anthropology at

Cornell University.

Austin Sarat is the William Nelson Cromwell Professor of Jurispru-

dence and Political Science and Professor of Law, Jurisprudence and

Social Thought at Amherst College.

Saskia Sassen is Professor of Sociology at the University of Chicago.

Susan S. Silbey is Professor of Anthropology at the Massachusetts

Institute of Technology.

Martha Merrill Umphrey is Associate Professor of Law, Jurispru-

dence and Social Thought at Amherst College.

181

Index

Academy of Science, 85

Ackerman, Bruce, 25

Activist politics, 1o9-10, 118-24. See

also Human rights; NGOs (non-

governmental organizations)

Adjudication, 26, 53

Adultery, 51, 53

AIDS, 96. See also Sexually trans-

mitted diseases

Akhmatova, Anna, 30

Alcohol, regulation of, loo100-101o

Alexander, Gregory, 61

Alien life-forms, 30-36

Anachronism, 34

Analogy, doctrine of, 23

Anderson, Benedict, 26-27

Anonymity, 170-76

Anthropology, 43, 45, 56-57

Antiessentialism, 56

Antiformalism, 52, 53

Architecture: of cyberspace, 13-14,

133-42; use of the term, 133

Argentina, 129n. 41

Aristocracy, 83, 84

Aristotle, 33, 35

Asian financial crisis, 116, 128n. 32,

129n. 41

Atomic theory, 35

Australia, 46, 58

Authentication, of identity, 174-76

Authoritarianism, 44

Averroes, 33, 35

Bentham, Jeremy, 135

Berkeley, H. S., 55, 56

Berman, Harold, 22

Blomley, Nicholas, 16n. 6, 44

Bosnia, 43

Boundaries: and digital networks,

114, 116-17; Douglas, Sarat, and

Umphrey on, 2-3, 5-6, 8-10; Ewick

and Silbey on, 89-90; and legal for-

malism, 9-10, 43, 52-53; between

public and private space, 89-90;

Riles on, 43, 52-53; Sassen on, 114,

116-17; and scientific laboratories,

89-90. See also Territory

Boyle, James, 111

Boyle, Robert, 10o3

Britain, 45, 46-53, 55, 62, 65

Brown, Clarence, 30

Browsers, 136-37

Cable companies, 139, 145n. 23

Campbell, David, 43

Capitalism, 5, 27, 49, 56-58, 60; and

cultural preservation, 47; and

"neutral space," 44

Carew, Walter, 51, 54

Carnarvon, Lord, 52

Cartography, 44-45, 151

Castes, 10o, 83. See also Half-castes

Christianity, 28, 51, 53, 55. See also

Religion

Cities, global, notion of, 118, 120

Citizenship, 46, 124, 177

City of Renton v. Playtime Theaters,

159-63, 165-66, 169

Civil rights, 3, 171

Civil Rights Act, 171

183

184

INDEX

184

Civil War (U.S.), 47

Clark, David, 138

Coase, Ronald, 177

Coleridge, Lord, 4-5

Colonialism, 10-11, 44-73, 149

Commodity, 101

Common law: and legal formalism,

50, 51, 55; and zoning laws, 167,

168

Communications Decency Act

(CDA), 14-15, 158-59, 161, 162, 169

Competition, 6, 139-40

Conquest, Robert, 22

Cookie technology, 137

Copyrights. See Intellectual property

Cultural state, 11, 43-73

Cyberspace: and activist politics,

109-10, 118-24; architecture of,

13-14, 133-42; and the authentica-

tion of identity, 174-76; and

browsers, 136-37; and cross-border

circuits, 118-24; and decentraliza-

tion, 111, 112, 115; and the distinc-

tion between private and public

space, 114-18; Douglas, Sarat, and

Umphrey on, 12-15; Ford on,

147-81; and global finance, 110,

114-18, 123-24; and human rights,

120, 121-22; and intellectual prop-

erty, 111-13, 119, 123; Lessig on,

131-46; and libertarianism, 13,

148-49, 158; and protocols, 136,

137, 14o; and regulation, 13-14,

110-14, 131-46, 158-64; and state

authority, 109-30; use of the term,

125n. 3; zoning of, 14-15, 159-76.

See also Digital networks; Internet

Dante Alighieri, 9, 28-39

Decentralization: and digital net-

works, 111, 112, 115, 141; Lessig on,

141; Sassen on, 111, 112, 115

Deleuze, G., 97

Democracy: and digital networks, 12,

110; Ewick and Silbey on, 11, 79,

83, 88-89; Sassen on, 12, 110; and

scientific laboratories, 11, 79, 83,

88-89

Democritus, 35, 41n. 39

Department of Lands and Surveys

(Fiji), 62-63

Descartes, Rene, 101

Digital networks: and activist poli-

tics, 109-10, 118-24; and the

authentication of identity, 174-76;

and browsers, 136-37; and

cross-border circuits, 118-24; and

decentralization, 111, 112, 115; and

the distinction between private

and public space, 114-18; Douglas,

Sarat, and Umphrey on, 12-15;

Ford on, 147-81; and global

finance, 110, 114-18, 123-24; and

human rights, 120, 121-22; and

intellectual property, 111-13, 119,

123; Lessig on, 131-46; and libertar-

ianism, 13, 148-49, 158; and proto-

cols, 136, 137, 14o; and regulation,

INDEX

INDEX

185

INDEX

96; Ewick and Silbey on, 78, 86;

Sassen on, 120, 121; and zoning

laws, 167-68

Environmental Protection Agency

(EPA), 86, 95, 96. See also Environ-

mental protection

Epistemology, 57, 78-82, 85, 104, 153.

See also Knowledge

Essentialism, 45, 56-57

Ethics. See Morality

Evolutionary theory, 45

Ewick, Patricia, 10-11, 75-108

Family trees, 153

Feminism, 83

Ferrill v. The Parker Group, 174-75

Fetus, legal status of, 99-10oo0

Feudalism, 83

Fiji, 10, 15, 46-73; Department of

Lands and Surveys, 62-63; and

half-castes, notion of, 10, 46, 53-57,

63-65; Property Law Act, 65

Financial markets, global, 12, 110o,

114-18, 123-24

Firewalls, 112

First Amendment, 163, 166

Fischer, David Hackett, 135

Ford, Richard, 14-15, 147-81

Formalism, 43-73

Foucault, Michel, 78, 97

Framework Convention on Climate

Change (U.N.), 113

France, 25-26, 31, 33

Freedom: and cyberspace, 141, 142;

Ewick and Silbey on, 98, 99, 104;

Lessig on, 141, 142; and scientific

laboratories, 98, 99, 104

Freehold land, notion of, 49

GDP (gross domestic product),

115-16

German language, 31

Germany, 25-26, 55

Gillett, Sharon Eisner, 113

Ginsberg v. New York, 159-61

Giuliani, Rudolph, 165, 166, 168

Global cities, notion of, 118, 120. See

also Globalization

Global finance, 12, 110, 114-18,

123-24. See also Globalization

Globalization: and digital networks,

12, 109-10, 114-18, 121, 123-24;

Dimock on, 26; Douglas, Sarat, and

Umphrey on, 5, 6, 8, 12; Sassen on,

109, 121; and time and territory,

relationship of, 26. See also Global

cities; Global finance

Goldsmith, Jack, 151

Gordon, Arthur, 45-52, 56-57, 63,

69n. 26

Gordon, Robert, 6-7, 19n. 41

Governmentality, 78, 98, o100, 102-4

Greek mythology, 34

Gusterson, H., 96

Habermas, Jirgen, 83

Habitation, history of, 101-2

Half-castes, 10, 46, 53-57, 63-65. See

also Castes

Harding, Sandra, 83

185

186

INDEX

i86

Innovation, 138, 141, 142, 159-60

Instrumentalism, 6-7, 59-60, 62

Intellectual property: and digital net-

works, 111-13, 119, 123; Ewick and

Silbey on, 11, 78, 86; Sassen on,

111-13, 119, 123; and scientific lab-

oratories, 11, 78, 86

International Monetary Fund (IMF),

5, 117, 129n. 41

International Telecommunications

Union (ITU), 113

Internet: and activist politics, o109-10,

118-24; and the authentication of

identity, 174-76; and browsers,

136-37; and the Communications

Decency Act (CDA), 14-15, 158-59,

161, 162, 169; and cross-border cir-

cuits, 118-24; and decentralization,

111, 112, 115; and the distinction

between private and public space,

114-18; Douglas, Sarat, and

Umphrey on, 12-15; Ford on,

147-81; and global finance, 110,

114-18, 123-24; and human rights,

120, 121-22; and intellectual prop-

erty, 111-13, 119, 123; Lessig on,

131-46; and libertarianism, 13,

148-49, 158; as a "place," 14, 150,

154; and protocols, 136, 137, 140;

and regulation, 13-14, 110-46,

158-76; and state authority, 109-30;

zoning of, 14-15, 159-76; use of the

term, 125n. 3

Internet Corporation for Assigned

Names and Numbers (ICANN),

112, 126n. 13

IP (Internet Protocol) addresses, 136

Isenberg, David, 138

Italy, 30, 33, 36-38

Jews, 28

Johnson, David, 114, 148-49, 154, 161

Judiciary Act (Soviet Union), 22

Jurisdiction: and cyberspace, 14-15,

147, 149, 151-58; definition of, 2;

Dimock on, 21-42; Douglas, Sarat,

and Umphrey on, 2, 5-6, 8-1o,

14-15; Ford on, 147, 149, 151-58;

Sassen on, 111-14; as a social prac-

tice, 154-56; without sovereignty,

26-28; and the Soviet Union, 8-9,

21-42; and time and territory, rela-

tionship of, 21-42

Kafka, Franz, 3

Kang, Jerry, 15o, 158, 161, 170-72,

174-76

Kapor, Mitchell, 113

Kennedy, Duncan, 17n. 16

Knowledge: Ewick and Silbey on,

80-84; Ford on, 153; and legal for-

malism, 45, 57; objective, 81-85;

Riles on, 45, 57; and scientific labora-

tories, 80-84. See also Epistemology

Kuhlman, Charles C., 113

Lab Standard (OSHA), 92-93. See also

Occupational Safety and Health

Administration (OSHA)

Land Claims Commission, 48-49,

INDEX

INDEX

187

INDEX

Mandelstam, Nadezhda, 23, 27-28

Mandelstam, Osip, 8-9, 14, 23-39

Marx, Karl, 101

Marxism, 22, 101

Mataquali (clan), 49

Mathiason, John R., 113

Matrix, The (movie), 173

Maurer, Bill, 73n. 86

McLuhan, Marshall, 173

Meaning-making, 44-45

Megan's Law, 175

Memory, 44

Methodists, 51, 53

Mexican financial crisis, 116,

128n. 32

Microsoft Corporation, 137

Modernism, 6o-61i

Modernity, 101-2

Morality: Coleridge on, 4-5; Ewick

and Silbey on, 104; and legal for-

malism, 52, 64; Riles on, 52, 64; and

scientific laboratories, 104

Morgan, Lewis Henry, 48

Moses, Robert, 135

mp3.com, 139

MUDs (multiuser dungeons), 164,

171

Mueller, Milton, 113

Multilateral Agreement on Invest-

ment, 119

Mumford, Lewis, 169

Music, distribution of, 139-40

Napoleon III, 135

National Academy of Sciences, 85

Nationalism, 26-27, 43

Nation-state: Dimock on, 8-9, 21-42;

Douglas, Sarat, and Umphrey on,

2, 8-1o, 12; and the Soviet Union,

8-9, 21-42; and time and territory,

relationship of, 21-42

Natural law, 2

Neoliberalism, 5

Netscape Web browser, 136-37

Neutrality, the state's claim to,

61

New England, founders of, 135

New York City, 165-70

New Zealand, 46

NGOs (nongovernmental organiza-

tions), 26, 110, 121-22. See also

Activist politics; Human rights

NKVD (People's Commissariat of

Internal Affairs), 24, 25

Nobel laureates, 85

North American Free Trade Agree-

ment (NAFTA), 5

Nuisance law, 177

Objectivity, 81-85. See also Epistemol-

ogy; Knowledge

Occupational Safety and Health

Administration (OSHA), 86, 92-93,

102

O'Connor, Sandra Day, 14-15,

159-61, 164, 170-74, 176

"On the Nature of the Word" (Man-

delstam), 35

Ontology, nonterritorial, 21

187

188

INDEX

i88

Plantation workers, 47

Poland, 31

Pornography, 157-70, 176

Positivist epistemology, 82. See also

Epistemology

Post, David G., 114, 148-49, 154, 161

Postcolonialism, 65-66

Power: and digital networks, 12, 111,

124; Douglas, Sarat, and Umphrey

on, 2-5, 12; Ewick and Silbey on,

97-102; and the Hobbesian state of

nature, 2-3; Sassen on, 111, 124

Pragmatism, 10o, 53, 57, 6o, 62

Present, universal, notion of, 28-29,

37. See also Time

Prince, The (Machiavelli), 140-41

Privacy, 131, 137-38, 176

Privatization, 114

Property: and legal formalism, 44-45,

58-66; notions of, 44; ownership,

58-66. See also Land use

Property Law Act (Fiji), 65

Protocols, 136, 137, 140

Queen v. Dudley and Stephens, 3-5,

20on. 43

Race: and half-castes, 10o, 46, 53-57,

63-65, 68n. 19; and zoning regula-

tions, 170-76. See also Civil rights

Reason, 44

Reed, David P., 138

Reidenberg, Joel R., 114

Relativity, of simultaneity, 28-29

Religion, 82, 99-100oo. See also Chris-

tianity; Heresy

Reno v. ACLU, 163, 170, 172, 174, 176

Representation, 155

Riles, Annelise, 9-10, 43-73

Robertson, Michael, 139-40

Rose, Nikolas, 11, 98, 99

Royal Society, 81, 107n. 22

Safety issues: and cyberspace, 152;

and scientific laboratories, 11, 78,

90-97. See also Occupational Safety

and Health Administration

(OSHA)

Saltzer, Jerome H., 138

Sarat, Austin, 1-20

Sassen, Saskia, 11-12, 14, 109-30

Scale, hierarchies of, 109

Scientific laboratories: and the

boundaries between public and

private space, 89-90; and democ-

racy, 79, 83, 88-89; and discipline,

97-99, 102; Douglas, Sarat, and

Umphrey on, 11-12, 15; and the

Enlightenment, 79, 82-84; and epis-

temology, 78, 80-82, 85, 104; and

governmentality, 78, 98, 100oo, 102-4;

and intellectual property, 78, 86;

and the liberal subject, 80-84,

97-102; and the management of

danger, 91-97; and religion, 82,

99-100oo; and self-regulation, 91-97;

and truth, 75-78, 80-82, 84-85, 102,

104

Self: despotism of, 98; -governance,

91-97, 149; -preservation, right of,

INDEX

INDEX

189

INDEX

Sassen on, 116; and time and terri-

tory, relationship of, 21-42

Soviet Union, 8-9, 14-15, 21-42; Judi-

ciary Act in, 22; the NKVD (Peo-

ple's Commissariat of Internal

Affairs) in, 24, 25; Soviet Criminal

Code of, 8-9, 21-42; Soviet Crimi-

nal Procedure Code of, 23, 24, 25

Space, 9, 11, 13; dangerous, 89-97;

and digital networks, 109-46;

Ewick and Silbey on, 79-84,

97-102; Lefebvre on, 44; Lessig

on, 131-46; metaphor of, perva-

siveness of, 14-15; private, 89-90,

114-18; public access to, 89-90,

114-18; safe, constructing, 90-97;

and scientific laboratories, 79-84,

97-102. See also Boundaries;

Territory

Special Board (Soviet Union), 24-

25

Stalin, Josef, 8, 14, 15, 23-24, 35

"Stalin Epigram" (Mandelstam), 8,

23-24

Standardization, 85, 92, 105n. o10

Stereotypes, 171, 176

Stewart, Potter, 3

Subjectivity: and cyberspace, 152;

Ewick and Silbey on, 80-84,

97-102; Ford on, 152; and scientific

laboratories, 80-84, 97-102. See also

Self

Sugar industry, 47

Suva, 65, 66

Szymborska, Wislawa, 31

TCP/IP (Transmission Control Proto-

col/Internet Protocol), 136

Territory: and cyberspace, 14-15,

109-30, 141, 149-60, 177; Dimock

on, 8-1o, 21-42; Douglas, Sarat,

and Umphrey on, 1-2, 6, 8-1o,

14-15; and Fiji, 5, 10, 45-73; Ford

on, 149-60, 177; and legal formal-

ism, 5, lo, 45-73; Lessig on, 141;

Riles on, 5, lo, 45-73; Sassen on,

109-30; and time, 21-42. See also

Boundaries; Space

Thailand, 116

Time: frames, conflicting, 28-30; and

literary culture, 8-9, 21-42;

national, 27; nonnumerical struc-

ture of, 28-29; nonterritorial, 36-39;

and ruptured chronology, 32-33;

synchronized, 27; and territoriality,

21-42; and a universal present,

notion of, 28-29, 37; warps, 27

Title registration, 58, 59-62, 64

"To the German Language" (Mandel-

stam), 31

Torrens, Robert, 59

Torrens system, of title registration,

58, 59-62, 64

Totalitarianism, 8-1o, 21-42, 148

TPG (The Parker Group), 174-75

Trademarks. See Intellectual

property

Transcendence, 84

189

190o

INDEX

Whippy family, 65, 66

Wilson, Richard, 6

Wired magazine, 147

Workplace safety, 11, 78, 90-97

World Bank, 5

World Intellectual Property Organi-

zation (WIPO), 113, 127n. 14

World Trade Organization (WTO), 5,

119

Worldviews, 1-2, 65

World Wide Web: and browsers,

136-37; and the domain name sys-

tem, 111; emergence of, 136; and

privacy, 136, 137; servers support-

ing, 136, 137, 147-49. See also

Cyberspace; Internet

Zilsel, Edgar, 83

Zoning: and cyberspace, 164-76;

racial, 170-76

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