Creating representations of justice in the third millennium: legal poetics in digital times.

I. INTRODUCTION

II. "DIGITAL CONDITION" & "LEGAL POETICS":

DEFINITIONS III. POETICS: WHEN MEANING MATTERS

IV. LEGAL POETICS: "THE TRIAL'S BEGINNING!".

V. VISUAL POETICS OF LAW

VI. LINGUISTIC LEGAL POETICS VII. "SENTENCE FIRST--VERDICT AFTERWARDS":

FAILURE IN THE POETIC MECHANISM VIII. ANALOG POETICS IN CYBERSPACE

A. "Any Good Thing Must Have a Grip in Time".

B. From Walls to Screens

IX. THE ANALOG-DIGITAL RIFT AS DISTORTION OF LEGAL

POETICS

A. Legalizing Cyberspace

B. Digitalizing Law

X. CONCLUSION

I. INTRODUCTION

November 2003 saw more than its share of overwhelming events. Four deadly terrorist explosions shook Istanbul in quick succession. (1) The violence in Iraq escalated, causing many deaths. (2) The Middle East swung widely between eruptions of violence and renewed hopes for cease-fire. (3) However, the event that most captured the public's attention that month was one of a distinctly legal nature. On November 20, 2003, superstar Michael Jackson surrendered in Santa Barbara, California, on a warrant accusing him of multiple counts of child molestation. (4) After posting bail in the amount of $3,000,000, he was released to await continuance of the proceedings. (5)

Digital signals diligently reproduced, manipulated and reorganized the images of the story, spreading them throughout the world through every conceivable channel. The landing of the private jet that ferried Jackson with his wrists clasped behind his back, Jackson's departure from the sheriff's facility free of handcuffs and flashing a "V" sign, or his later flashing of a peace sign before disappearing from sight (6)--these pictures readily created a series of images that could have fit well in any of Jackson's promotional video clips.

Another series of images soon followed. Jackson flew to Las Vegas, and then drove with his entourage to his hotel, "trailed by media helicopters and cheered by dozens of people who lined the roads to catch a glimpse" of him. (7) A gigantic, uncontrollable digital spectacle was created.

After a trial that lasted four months, the jury acquitted Jackson on all charges. (8) Cameras were not allowed in the court in Santa Maria, California, (9) but the reading of the statement on behalf of the jury was broadcast in real time by all major American and international television news channels. (10) Judge Rodney Melville read, "We the jury feeling the weight of the world's eyes upon us all thoroughly and meticulously studied the testimony [and] evidence and ... confidently came to our verdicts." (11)

The Michael Jackson website featured a scrolling calendar that highlighted historic events such as "Martin Luther King is born," "The Berlin Wall falls" and "Nelson Mandela is freed." (12) The last event in this chain, the Jackson acquittal, was annotated by the following text: "Remember this date, for it is a part of HIStory," borrowing from the title of Jackson's 1995 greatest-hits album. (13) Soon enough, the digital coverage became news in itself. A day after the acquittal, news headlines read: "Jackson Site Hails Verdict As 'Historic.'" (14)

It is too early to tell whether the future will validate the label of "historic," and exactly what part the Internet plays in the present and will play in the future construction and shaping of the event. (15) It is, however, already evident that the original core of the event, a legal proceeding that ended with an acquittal, is almost lost within the fiery, ever-widening digital discourse encompassing it.

Was that digital spectacle compatible with the legal proceeding that initiated it, or did it contradict the interests of the legal process? What sorts of stories were created within the digital environment? Did they work in tandem with the legal story, which was fairly straightforward at that point, consisting solely of authorized officials fulfilling their duty and initiating a formal criminal proceeding against an individual? Although the entire episode began with the initiation of a formal legal proceeding, the spectacle that drew huge crowds of spectators and commentators seems at first glance to have had very little to do with representing justice or serving any legal aims. What comes to mind is Guy Debord's insightful, perhaps prophetic, suggestion that "[i]n the integrated spectacular, the laws are asleep; because they were not made [to function alongside these] new production techniques." (16)

The Jackson affair is a paradigmatic case of legal poetics' failure in a digital environment. This case, as well as numerous other proceedings that somehow acquired a digital presence, demonstrates how the impact of traditional legal representations is dramatically altered by the shift to digital technology. This article deals with this change by offering vocabulary and modes of thought to help evaluate the digital condition's impact on the creation of legal representations.

My core contention is that digital times require epistemological changes that influence the efficacy of traditional legal poetics. Specifically, the digital condition pulls in two directions by modifying the fashioning of legal representations, yet preserving the established poetic apparatus based on traditional poetic tools.

In this article, law will be perceived as a system equipped with representational means that aim to convince the legal audience that law is able to skillfully and expertly translate the abstract idea of justice into correct, concrete decisions. (17) Borrowing concepts and terminology from the field of aesthetics, I describe in poetical terms the legal system's use of various representational tools that employ visual, textual and ritual mechanisms.

I start by delineating the principal concepts and notions that underlie the hypothesis regarding the interrelations between poetics, law and the digital condition. I describe the manifestations of legal poetics within two main arenas: the visual and the verbal (or linguistic). As will be discussed in further detail, space and time are the axes of the system on which the poetic mechanisms-visual and linguistic--operate.

Next, this article illustrates several potential failures in a legal poetic mechanism and explains how such failures may affect the legal project. The article proceeds by juxtaposing the digital condition and legal poetics. I draw a distinction between mechanisms aimed at "digitalizing law" (that is, attempts to transform the legal field into a province of the digital realm), and mechanisms aimed at "legalizing cyberspace" (attempts to force the traditional legal tools onto the digital phenomenon). These two conflicting trends intensify the growing sense of perplexity surrounding the existing legal poetic systems.

I conclude by asserting that the law is obligated to facilitate the entry of the digital phenomenon into its realm only up to the point at which its poetic apparatus begins to be impaired. To identify that point, it is necessary to be well aware of the law's role as a creator of representations and of the part played by poetic tools in that enterprise. That sort of awareness is a precondition to the development of improved representational tools that will enable the law to function competently in a digital environment.

II. "DIGITAL CONDITION" & "LEGAL POETICS": DEFINITIONS

Let me begin by elaborating on some of the terms that will be used in the following, starting with "digital condition."

A "defining technology," according to J. David Bolter, is a technology that:

develops links, metaphorical or otherwise, with a culture's

science, philosophy, or literature; it is always available to serve

as a metaphor, example, model, or symbol. A defining

technology resembles a magnifying glass, which collects and

focuses seemingly disparate ideas in a culture into one bright,

sometimes piercing ray. Technology does not call forth major

cultural changes by itself, but it does bring ideas into a new

focus by explaining or exemplifying them in new ways to larger

audiences. (18)

Following Heidegger (19) and Benjamin, (20) it seems that the defining nature of technologies derives, to a large extent, from their influence upon the production of meaning. Digital technology was perceived from its first appearance as carrying the potential to significantly change the traditional systems by which meaning is produced. (21) That potential is already materializing with increasing momentum, creating what might be called a "digital condition."

As used in this paper, the term "digital condition" primarily denotes one aspect of the digital phenomenon, namely, the distinct ability of digital tools to create, present, and manipulate images and representations with unprecedented velocity, frequency, and form. (22) Andrew Shapiro points out six features that can characterize the capacity of these tools: many-to-many interactivity, flexibility, packet-based distribution networks, interoperability, large bandwidth or carrying capacity, and universality. (23) With these distinctive features, the digital tools use bytes as their atom units (24) to reveal a new existence, rather than a mere modification or perfection of the old one.