Letters on Legal Architecture

by Lucy Finchett-Maddock and Léopold Lambert 

This exchange of letters was originally published on The Funambulist and can be also found in The Funambulist Pamphlets Volume 04: Legal Theory (Punctum Books, 2013)

FIRST LETTER
(New York on July 12th 2012) 

Dear Lucy,

Léopold Lambert
Léopold Lambert

I read your essay Archiving Burroughs: Interzone, Law, Self-​Medication with at­ten­tion and ap­pre­ci­ated, as usual, the way you manage to link nar­rative, law and space all to­gether. I do think how­ever that we should keep this text for a little bit later in our con­ver­sa­tion as its spe­cificity might make us miss the bases of the dis­cus­sion that we would like to have about law and ar­chi­tec­ture. In this re­gard, I would like to in­genu­ously start by stating some ob­vious facts which are al­ways good to re­member for such a discussion.

Law, un­der­stood as a human ar­ti­fact, con­sti­tutes an en­semble of reg­u­la­tions which have been ex­pli­citly stated in order to cat­egorize be­ha­viors in two cat­egories: legal and il­legal. In order to do so, it ex­pects from every in­di­vidual sub­jected to its ap­plic­a­tion a full know­ledge of its con­tent in order to mor­alize and held ac­count­able at­ti­tudes that are either re­spectful or trans­gressive to­wards it.

Law is un­deni­ably re­lated to space as it re­quires a given ter­ritory with pre­cise bor­ders to be able to im­ple­ment it­self. Nothing easier to un­der­stand this fact than to ob­serve in which space one is al­lowed to smoke and in which one is not. It also in­cludes within this ter­ritory smaller zones of ex­clu­sion, from the corner of the class room to the pen­it­en­tiary, in which an­other form of the law –sup­posedly a more re­strictive one– is ap­plied for in­di­viduals who, through an active re­fusal of spe­cific parts of it, are to be sep­ar­ated from the rest of so­ciety. Those in­di­viduals, when cap­tured by law en­forcer in­stances, are brought within those zones of ex­clu­sion and are being held in them for a given period of time pro­vi­sioned by law itself.

Many other spaces con­sti­tute ter­rit­ories on which law is also dif­ferent but com­posed of layers of laws which do not con­tra­dict each other. Spaces like schools, of­fices, factories, hos­pitals, for ex­ample, apply a legal su­per­im­pos­i­tion in order to com­ple­ment the ter­rit­orial law with set of rules spe­cific­ally for­mu­lated to op­timize their in­sti­tu­tional function.

Space it­self is not ne­ces­sarily an ar­ti­fact, al­though the des­ig­na­tion of bor­ders that de­limit it cer­tainly con­sti­tutes a human in­ter­ven­tion, and prob­ably the first legal ges­ture that is. Let us con­sider ar­chi­tec­ture as the en­semble of human phys­ical modi­fic­a­tion of its en­vir­on­ment. It would prob­ably be use­less to wonder whether law in­vented ar­chi­tec­ture or if it is pre­cisely the op­posite. What we can pos­sibly af­firm, how­ever, is that ar­chi­tec­ture, through its phys­ic­ality, em­bodies the im­ma­terial law. This is clear in the case of the zones of ex­clu­sion that I was evoking above. The fun­da­mental ele­ment of the law of ex­cep­tion ap­plied in them con­sists in the ban for their sub­jects to exit their space. In order to im­ple­ment such a ban, an im­per­meable ar­chi­tec­ture needed to be cre­ated: it is the in­ven­tion of prison as a building.

Prisons are the ex­treme ex­amples of how ar­chi­tec­ture em­bodies the law. We are nev­er­the­less sur­rounded by more do­mestic cases of ar­chi­tec­tural en­force­ment of the law. During a curfew or quar­antine, your own house, sup­posedly so neutral and in­no­cent, can be­come your own prison. But was this house so in­no­cent anyway? Isn’t the house the ma­terial em­bod­i­ment of a law which in­teg­rates private prop­erty as one of its com­pon­ents? How to en­force prop­erty in a better way than to build im­per­meable walls on the lines that law ab­stractly con­structed? Architecture, by using the uni­versal “laws” of physics — nobody can cross a wall for ex­ample — in­sures the ex­pli­cit­a­tion of the law which would need to be dis­curs­ively enun­ci­ated oth­er­wise in order to be ac­know­ledged by its subjects.

This vision is how­ever an ar­tic­u­la­tion centered on ar­chi­tec­ture and I am won­dering how the legal theory spe­cialist that you are in­ter­prets this re­la­tion­ship. Do you think that there can be a law with no ar­chi­tec­ture or/​and a law­less ar­chi­tec­ture? If ar­chi­tec­ture is really the em­bod­i­ment of the law, can we pos­sibly think of an ar­chi­tec­ture of illegality?

I very much look for­ward to reading you on those ques­tions, and on the others that you prob­ably have.

Cordially yours,

Léopold

SECOND LETTER
(Exeter, UK, on August 17th 2012) ///

Dear Leopold,

Lucy Finchett-​Maddock
Lucy Finchett-​Maddock

Thank you for your letter dated 12th August, I apo­lo­gise for my tardy reply but I have been away as you know in India. India, of course being a great ex­ample for the themes of ar­chi­tec­ture and law of which you speak, whereby not only are there plural legal levels of law as a result of the gene­a­lo­gies of co­lo­ni­alism, but so too there are those very clear ar­chi­tec­tures of law that re­veal legal di­cho­tomies, the in­sides and the out­sides, those in­cluded and ex­cluded (and of wrath of the common law in par­tic­ular). Nowhere else has there been such a use of law as a mech­anism of le­git­im­ated dis­pos­ses­sion than in co­lo­nial India, with the de­cent­ral­ised des­potism of the Raj and their op­u­lent palaces as re­minders of their de­cent­ral­ised British power; the ac­cept­ance of cus­tomary law into a plural legal hier­archy of state law that put the common law as the pin­nacle of all might.

When thinking of the role of land and law, and the wall as the boundary, the legal space in which all of the di­vi­sions and struc­tures of hier­archy are ana­lo­gised (or not even ana­lo­gised, but ac­tu­al­ised), there is a reason why one is so struck by ar­chi­tec­ture as the ar­chi­tect of law – or law as the ar­chi­tect of ar­chi­tec­ture. Western in­di­vidual prop­erty rights, are based on a pre­sump­tion that ‘own­er­ship’ of land, the right to design land as one sees fit (or hire a draftsman to follow design in­struc­tions), is the right to have ex­clusive ac­cess and pos­ses­sion to that par­tic­ular geo­graphy of land. Thus, and this is taking from the highly in­flu­en­tial German jurist Carl Schmitt, law starts and ends with the earth, and is de­term­ined through the cat­egor­isa­tion and en­closure of the earth where all other phe­nomen­o­logy resides. This in­trinsic link between law and ar­chi­tec­ture is the design of prop­erty rights, it is the ma­nip­u­la­tion of space which acts as a way of keeping some­thing in, keeping a pop­u­la­tion out. Therefore, ar­chi­tec­ture lends it­self spe­cific­ally as the em­bod­i­ment of law, it is the di­viding line, the junc­ture of limin­ality that is so easily de­scribed, and yet the most elu­sive thing in the world, that which is all order and chaos. It comes to­gether in one co­ordinate, the co­ordinate of legal design; the sketch­ings of the architect.

What struck me re­cently when I was away in India was how ob­vious the past, and in­deed the fu­ture, was ex­pressed within the build­ings, and more so within the con­stant con­struc­tion going on within the mega­city­scape where each new wood and ce­ment fix­ture be­came an­other limb of the great living or­ganism that was growing and gurg­ling as I would veer past in my auto-​rickshaw. These were build­ings that were not com­pleted yet, that would most prob­ably al­ways re­main in­com­plete as the years of bur­eau­cratic pro­cras­tin­a­tion and ju­di­cial protest halt the cre­ation of the fly­overs and of­fice blocks.

What I would like to throw in here is a con­sid­er­a­tion of the role of en­tropy within law and ar­chi­tec­ture, and how this can offer a frame­work through which we can un­der­stand the role of law within ar­chi­tec­ture and ar­chi­tec­ture within law, and what you might think of this in re­la­tion to prop­erty, aes­thetics as a whole, and law so too.

Take the seething urban mass of Bangalore, a city that only 30 years ago was a quaint re­tire­ment des­tin­a­tion for local Karnatakan res­id­ents and its sur­rounding states, which since then has be­come the size of London, with no public trans­port in­fra­struc­ture – and is still growing, with an air of tod­dler­ish­ness that hints to only being a tenth of its po­ten­tial size. The pop­u­la­tion has ma­tured its found­a­tions, and the job of pro­du­cing new living spaces and working spaces have not kept up. There are two types of design, those of the massive land ac­quis­i­tions and re-​mappings that allow for co­lossal new speed­ways and air­ports; and then there are the designs of the slums – both of these ar­chi­tec­tures of law rely on un­plan­ning, as op­posed to plan­ning, and are re­active and emer­gent in their con­ver­gences. This, I would argue, is the en­tropy of ar­chi­tec­ture, and there­fore en­tropy of law.

Congestion in Bangalore
Congestion in Bangalore

Specifically in re­la­tion to land law, there is little in the way of ac­tual plan­ning law, and when there is, it is planned with a cer­tain group of elites in mind. The ma­jority of those who live in Bangalore cannot af­ford to buy cars or mo­tor­cycles, and yet there are ap­par­ently 1,000 vehicles added to the road day in the city. These are the up­wardly mo­bile Bangalorians who work within IT and are making the most of the bur­geoning city and it being known as the ‘Singapore of the South’. Huge land ac­quis­i­tions are un­der­taken in order to build in the name of the swelling bour­geoisie. Land ac­quis­i­tion is a common law in­her­it­ance and is known in India as ‘em­inent do­main’. It ex­ists as a stop valve for the state to ac­quire land for ‘public pur­poses’, without the per­mis­sion of those who already live on the land and have rights and at­tach­ments to the land. Those who are moved are by and large the ar­chi­tects of law from below, the slum dwellers and im­pov­er­ished who own little or no legal rights to the land on which they reside. A com­plex web of common law legacy gives way to a situ­ation whereby land is ac­quired and new building schemes begin, whilst at the same time ar­chi­tects from below utilise the no­tori­ously slow, but most cer­tainly rel­evant lit­ig­a­tion pro­cesses of the courts to try and halt the taking of their homes and the con­struc­tion of new hegemonies.

These two un­planned move­ments of law and ar­chi­tec­ture, the state land ac­quis­i­tion and the li­ti­gious rigour of Bangalore’s civil so­ciety, op­er­ates in an emer­gent co­agu­la­tion and one that is real­ised in the half built pil­lars and ce­ment covered chil­dren on the road­side. These are not com­plete spaces, but half spaces, spaces that are not aware of how they will end up as a result of the in­ter­sec­tion of law in design.

So what does this have to do with en­tropy? At a very basic level, and one that takes from a tra­di­tional ther­mo­dy­namic view, en­tropy is the amount of us­able en­ergy within a system. The more com­plex a system be­comes, the more en­ergy it uses, and the more it strives to­wards order, the more dis­ordered it be­comes sim­ul­tan­eously. Entropy ex­ists in all sys­tems, those that are alive and those not, as long as they pos­sess enough en­ergy to do work, and even the­ories on en­tropy them­selves are part of the emer­gent sys­tems of bur­geoning the­ories on ther­mo­dy­namism and com­plexity. Entropy is thus the con­tra­dictory premise that the world is rap­idly be­coming more in­tricate, re­quiring more en­ergy to be used within its sys­temic bounds, marching on­wards on a tread­mill of a Darwinian per­fec­tion and evol­u­tion, whilst at the same time, the more com­plex it be­comes, the quicker it moves to­wards a fi­nality of heat-​death. Entropy is there­fore the jux­ta­pos­i­tioning of order and chaos, which ar­gu­ably con­jures an aes­thetics of sym­metry, dis­sym­metry, design and architecture.

Seemingly, order as some­thing that is ne­ces­sary for the human mind to un­der­stand any­thing. There are those sys­tems that ap­pear ordered, and yet they rely on the dis­membered­ness of their in­terior, their gene­a­logy, to exist and con­tinue, con­sid­ering Michael Buor’s de­pic­tion of the struc­ture of New York in the 1950s:

“…mar­vel­lous walls of glass with their del­icate screens of ho­ri­zontals and ver­ticals, in which the sky re­flects it­self; but in­side those build­ings all the scraps of Europe are piled up in con­fu­sion … The mag­ni­fi­cent grid is ar­ti­fi­cially im­posed upon a con­tinent that has not pro­duced it; it is a law one endures.”

What does this de­scrip­tion of the un­der­belly of New York tell us of how law af­fects ar­chi­tec­ture, and the same vice versa? What can en­tropy tell us about the seem­ingly out-​of-​control city­scape of Bangalore, the planned un­plan­ning and un­planned plan­ning of the ar­chi­tects of law from below and those of the law from above? What is the role of prop­erty in this, and in­deed aes­thetics itself?

At this junc­ture I am going to go and have some lunch and leave it for your­self to ponder dear Leopold.

Yours,

Lucy

THIRD LETTER
(New York, May 2nd 2013)

Léopold Lambert
Léopold Lambert

Dear Lucy,

It has been (too) long since we last sent each other a letter to think to­gether of the way ar­chi­tec­ture and the law in­teract with each other. I apo­lo­gize for that as it was “my turn” to write to you.

In your last letter, you were re­flecting on the strange col­li­sion of the Indian em­inent do­main with what I would slyly call im­manent do­main that is de­veloped by the slums. You were talking about this col­li­sion in Bangalore; I happen to know Mumbai much more as I lived there for a little while but I as­sume that the two situ­ations are re­l­at­ively sim­ilar for that matter. Both em­inent and im­manent do­mains con­sti­tute a form of vi­ol­ence to­wards the law as they both “break” a tra­di­tional un­der­standing of what prop­erty is about. In the first case, the mu­ni­cip­ality or the State ex­pro­pri­ates a group of people, while in the second one, a group of people claims a piece of ter­ritory that does not be­long to them to build their dwelling. Two things ought to be noted in this matter. The first one is that, on the con­trary of the im­manent do­main, the em­inent do­main somehow re­gisters within the legal system even though it seems to con­tra­dict the law at first “sight”. The second thing to note is that, while em­inent do­main un­folds it­self on an in­hab­ited territory/​building, the im­manent do­main ex­ists on a land/​structure that is either the ob­ject of es­tate spec­u­la­tion or that does not re­ceive enough fin­an­cial founds to be de­veloped. I know that you are very in­ter­ested in how the various squats of the world are ques­tioning the le­git­imacy of our defin­i­tion of prop­erty and I am sure that you have already thought ex­tens­ively about those two notes.

It is in­ter­esting to ob­serve how the em­inent do­main im­ple­ments it­self in a country like India as it re­pro­duces part of the pro­cess of col­on­iz­a­tion: some­thing from the out­side that im­poses it­self as the new law upon the bodies that happen to be present on the con­cerned ter­ritory. The re­min­is­cence of the co­lo­nial era is some­thing that really ques­tioned me when I was living there. Many of the ad­min­is­trative build­ings of Mumbai are still the same that were used by the British. I am still won­dering today if the con­tinuity it cre­ates is strictly sym­bol­ical or if it act­ively shapes the way this ad­min­is­tra­tion is op­er­ating. The same ques­tion goes for the Rashtrapati Bhavan in New Delhi, the Viceroy Palace that Gandhi wanted to trans­form into a hos­pital and that Nehru at­trib­uted as the Presidential Palace of the newly in­de­pendent India. I sup­pose that there are a mul­ti­tude of laws that were sim­il­arly elab­or­ated during the co­lo­nial era and that re­mained af­ter­ward. You are in­ter­ested in the en­tropy of law, I sup­pose that we could re­main in the field of physics and talk about its resilience.

What in­terests us how­ever, is not so much ar­chi­tec­ture and the law con­sidered sep­ar­ately, even when they are in­tricate in sim­ilar pro­cesses of ex­ist­ence, but rather as both part of the same strategy in the or­gan­iz­a­tion of a so­ciety; I want there­fore to go back to this no­tion of im­manent do­main as its re­la­tion­ship to the law might be more com­plex than the one I was de­scribing earlier. In Turkey for ex­ample, I read that the po­lice cannot im­me­di­ately des­troy an un­au­thor­ized dwelling whose con­struc­tion has been fin­ished; this kind of dis­pute has to go to court to be settled. This scen­ario, be­cause it in­volves the in­ertia (some more physics) of the ad­min­is­tra­tion that goes with it, is likely to re­quire enough time for the dwelling’s in­hab­it­ants to use it for a while. There are there­fore strategies to build a home in one night to avoid a po­ten­tial de­struc­tion the fol­lowing day as the con­struc­tion would have not been com­pleted. I find this ex­ample fas­cin­ating as it in­ter­prets the prac­tice of the law in a dif­ferent way that we tra­di­tion­ally do it. It is a form of ne­go­ti­ation with the in­ertia of the system rather than a strict reading of the law that would in­dubit­ably es­tab­lish each be­ha­vior in the two cat­egories of legal and illegal.

There is also a di­men­sion of il­leg­ality that I would like to ad­dress. When does an il­legal be­ha­viour can be le­git­im­ately called “civil dis­obedi­ence” to use Thoreau’s well known idea? My theory about it would prob­ably de­serve more work on it, but I have

Separation Barrier - Israel/Palestine
Separation Barrier – Israel/Palestine

the in­tu­ition that one has the right to dis­obey a law when, through this ac­tion, one is primarily ques­tioning the le­git­imacy of the law it­self. I will use a com­par­ison I made in the past to il­lus­trate what I mean. When someone as­sas­sin­ates someone else, the chances are that this first person is not con­testing the fact that one is pre­vented by law to kill an­other person; how­ever, when Rosa Parks de­cided to go seating in the white people sec­tion in the bus in 1955, sit­ting was not primarily what she wanted to do, she wanted to deeply con­test the very es­sence of the se­greg­a­tionist legal system. Of course, there might be some more com­plex and less ex­treme ex­amples but this dis­tinc­tion al­lows us to make a dif­fer­ence between a selfish dis­obedi­ence to the law from a polit­ical one. I sup­pose that the slums we were talking about are a mix of these two di­men­sions as they claim a ter­ritory op­por­tun­ist­ic­ally, not to be re­leg­ated to the out­skirts of the city, but also as a mani­fest­a­tion of their ex­ist­ence and their right to the city.

Do these per­eg­rin­a­tions of my mind res­onate in any way for you? I look for­ward to hearing from you as I am sure that you will know how to chal­lenge and ar­tic­u­late my intuitions.

Yours,

Léopold

FOURTH LETTER
(Exeter, UK,  May 14th 2013)

Lucy Finchett-​Maddock
Lucy Finchett-​Maddock

Dearest Leopold,

Well, thank you for your last cor­res­pond­ence, and as I read through our pre­vious me­an­der­ings into law and ar­chi­tec­ture, I am trans­ported back to the sultry heat of India, the free flow of writing in the summer months of a sop­or­ific, verdant Devon last year. Perhaps any hints to a summer heat do not ring quite true here in the UK, but you get the pic­ture! Not only has it been a while since writing to you dear Leopold, but it has been a while since writing full stop. The al­most ro­botic prac­tises of teaching — reading, re­for­mu­lating, copying, al­tering, presenting, speaking, re­pro­du­cing, shaking — are al­most the inside-​out of writing, the cath­arsis of mind that al­lows for pon­der­ings on an aes­thetics of law. But I am sure my six months of vocal not written en­gage­ment will be con­trib­uting and in­spiring my thoughts nevertheless.

I am back in India with your im­manent do­main, quite a meta­phor for the emer­gent and by no means inert sci­entific al­leg­ories we are sharing in re­la­tion to prop­erty, both that re­quisi­tioned by the state and that per­formed by the slums. The im­man­ence of the Indian geo­graphy speaks to this kin­etic en­ergy, a city in flux through its re­sponse to legal and il­legal plan­ning re­gimes. It is in­ter­esting that you refer to the di­cho­tomy of legal and il­legal, as what has al­ways been of in­terest to my­self has in fact been this space in between, the point and threshold at which a con­stituent cre­ates the con­sti­tu­tion, the res­ist­ance be­comes law. This is the im­man­ency of law and res­ist­ance, the en­ergy and meta­bolism whereby from one heart­beat to the next there is some­thing that re­sembles a jur­idical for­mu­la­tion. Locating this mo­ment is akin to im­posing a rigid grammar of pre­scrip­tion to a work of art; to the eph­em­eral the resides as a sap­phire in coal dust, be­cause it does just that. But this lim­inal space in between the non-​institutional and in­sti­tu­tional still fas­cin­ates and al­lows for what is legal and what is il­legal, within and ex­ternal to law, like a Kafka-​esque gate keeper, patrolling the door to the stomach of the law. By trying to un­der­stand these move­ments, the idea is to un­der­stand any found­a­tion of law.

I also want to draw on your men­tioning of dis­obedi­ence, as this is some­thing that I have been working (sadly more con­fined to within the academy than so much out­side these days!) of late in re­la­tion to the concept and prac­tice of ‘naugh­ti­ness’. Thoreau places the jus­ti­fic­a­tion for dis­obeying law as that which rests as a duty, ‘If (an in­justice) is of such a nature that it re­quires you to be the agent of in­justice to an­other, then, I say, break the law. Let your body be a counter fric­tion to stop the ma­chine’; Arendt would say this is ‘testing the statute’ whereby to be civilly dis­obedient is to counter a law in order to change a law. The in­sti­tu­tional char­acter and limits of law comes up again in Arendt’s un­der­standing of civil dis­obedi­ence and its role in con­sti­tu­tion­alism, whereby to be civilly dis­obedient is to ef­fect and af­fect law through extra-​legal ac­tion, ‘… the law can in­deed sta­bilise and leg­alise change once it has oc­curred, but the change it­self is al­ways the result of extra-​legal ac­tion’. Thus, this di­vi­sion between the ex­terior and in­terior of law as­sumes the found­a­tion of law, as there­fore being in­nov­ated from an out­side source. The legal, il­legal, alegal, extra-​legal, or infra-​legal even, are all a mo­tion of le­git­im­a­tion and struc­tur­a­tion and where can it be better ex­pressed than in ar­chi­tec­ture it­self, in a seething urbanity, in a re­con­fig­ur­a­tion of law whereby slums rest on the grid of co­lo­nial prop­erty rights in a stasis of il­le­git­imacy. And yet without them, prop­erty it­self would not exist, nor in­deed the pre-​eminence of the Common law. Slums are the extra-​legal to the right to exclude.

As you know I have fo­cused my re­search for the last few years on squat­ting, a way of per­forming ar­chi­tec­ture in both an ap­pear­ance and legal loop­hole of tran­si­ency, and yet the per­form­ance can last in a tem­por­ality much longer than that an­ti­cip­ated by either the squatter or the state. This in­ertia in which you won­der­fully place our dis­cus­sion of bur­eau­cracy and the techné of law, is as you say, both a source of frus­tra­tion and also a pro­cras­tin­a­tion that res­ults in the ex­pedient re-​appropriation of land. Returning to physics here al­lows for the role of time to be un­der­stood, or space-​time more pre­cisely, as a motor for res­ist­ance, as a means of testing the statute, whether the dis­rupt it and change its course or oth­er­wise. Entropy is the arrow of time, and so in this in­ertia is an aes­thetics of dilap­id­a­tion and de­com­pos­i­tion, an in­ev­it­ab­ility that the half-​built speedway or giant-​like pillar of a fly­over will even­tu­ally shift from being built — to be­coming ruins. That plateau of ar­chi­tec­ture and law ‚ between con­struc­tion and de­struc­tion — where en­tropy curlicues.

Once again dear Leopold, I shall leave it at that for you to ponder upon and will re­turn to my teaching duties.

Yours,

Lucy

Lucy Finchett-​Maddock is Lec­turer in Law, Uni­ver­sity of Sus­sex; Léo­pold Lam­bert is an archi­tect and Editor of The Fun­am­bu­list.

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