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

The poetic failure here results from a lack of coherence and consistency. The painting of a human head, horse's neck, and the body of a fish is flawed not because it is "unrealistic" but because it pretends to link non-linkable parts. An expression may engage in depiction of all sorts of imaginary visions, but it must do so in a manner that "makes sense." Its parts should go together, according to some planned order. But the conventions regarding tolerable and intolerable inconsistencies may evidently shift, and Horace himself is aware of the changes over time in the meaning of words: "As the woods change their leaves each swiftly moving year, and the first fall, so the older generation of words die out, and, like young men, the newly-born are fresh and strong." (115)

The meanings of words evolve, and our perceptions as to the meaningful ordering of parts may likewise evolve. However, it is precisely because of those changes in worldview as the centuries go by that the basic principles of poetics--such as the need to consider coherence and consistency when assembling expressions--provide the stable and continuous underpinning that preserves our ability to find meaning in verbal expressions and instill it.

At the second site, where the expressions encounter their addressees, a different sort of poetic failure may come about. Even a poetically flawless articulation might fail to convey its intended meaning because of the addressee's inability to receive it. Aristotle describes such a situation:

[B]eauty depends on magnitude and order. Hence a very small

animal organism cannot be beautiful; for the view of it is

confused, the object being seen in an almost imperceptible

moment of time. Nor, again, can one of vast size be beautiful;

for as the eye cannot take it all in at once, the unity and sense

of the whole is lost for the spectator.... [A] certain length is

necessary, and a length which can be easily embraced by the

memory. (116)

The addressees' capacity to grasp and comprehend the representation is as important as the skills of its creator. These two factors must work in tandem in order to produce expressions that convey intended meanings and effects.

To summarize, the generation of poetic structures, patterns and processes is an important mode of perceiving and making sense of things. Poetic failure can occur when poetics is unused, overused or misused, and when it is properly used but presented to an audience unable to appreciate it. The trial in Lewis Carroll's Alice's Adventures in Wonderland is an illuminating (as well as hilarious) illustration of how such failure develops. As Alice's attempts to find "an atom of meaning in it" fall short, her disorientation and consequent frustration escalate. (117)

Let us note some of Alice's confusions. The jurors busily write their own names on their slates even before the trial begins. (118) They likewise carefully record Alice's indignant proclamation, "Stupid things!" (119) The senseless, erratic accumulation of surplus data on the jury slates results from their inability to differentiate between what is and is not worth recording, and, as Alice sensibly predicts, it can produce only "muddle." (120) That "muddle" could be avoided only by the use of information filters that carefully sift through the information and control the details and facts admitted into the judicial arena.

The proceedings continue, again manifesting a total failure to follow any structural logic. The King orders the jury to consider the verdict right after the accusation is read. (121) Considering their totally deficient poetic cognizance, the jury is in no position to object, but the White Rabbit's partial expertise in the normal course of such proceedings apparently restores sense and order, though only briefly. (122) Witnesses are summoned, but their testimonies are bizarrely collected and interpreted. (123) Alice herself is summoned only to declare that she knows "nothing whatever" and to be told that this is very important. (124) Things go more and more awry until the peak moment, when the Queen's declaration, "Sentence first--verdict afterwards," enrages Alice to such an extent that she is torn away from the trial and carried back to the "real" world, where she finds herself at the bank of the river with her head in her sister's lap. (125)

The disorientation that Alice experiences is a result of multilevel poetic failure. Some components of formal and informal poetics were activated in the court, but instead of generating potent representations of justice being done, they spread a sense of confusion, disorientation and dismay.

Each step in a trial must proceed in due course, and the gradual, structured build-up of phase upon preceding phase validates the closure--the final judgment. The successful conclusion depends on the cooperation of several participants acting in accordance with a preexisting pattern. The account of the trial in Alice's Adventures in Wonderland reports on the failure of all participants to follow such patterns. The executer behind the proceeding (whether it is the King, the White Rabbit, the Queen, or some unplanned collaboration among any or all of them) is unable to maintain the balance of temporal dimensions that any legal proceeding requires. Consequently, the course of the trial is muddled, frenzied and, of course, amusing. Alice is the only one present who can understand that something is wrong. The rest of the participants do not sense the inadequacy or the absurdity of the proceedings; their poetic awareness is too poor to allow them to do so. The poetic failure manifested in the trial is complete; the failure to act according to poetic patterns intertwines with the incapacity of the judge, the jury, the witnesses and all the other characters to properly "read" poetic messages. Under such circumstances, a failure to create meaning is inevitable.

VIII. ANALOG POETICS IN CYBERSPACE

Cyberspace. A consensual hallucination experienced daily by

billions of legitimate operators, in every nation, by children

being taught mathematical concepts.... A graphic representation

of data abstracted from the banks of every computer in the

human system. Unthinkable complexity. Lines of light ranged

in the nonspace of the mind, clusters and constellations of data.

Like city lights receding. (126)

The legal process advances linearly, utilizing visual and verbal language that assiduously systematizes perceptions of time and place. Figuratively speaking, the orientation of the legal process as we have hitherto known it is analog: Each trial resembles the display on the face of an analog clock, which offers a concurrent representation of what is perceived to be the present time and of the location of that present time in the context of a wide scale that delineates past and future time. Each moment creates a representation that is distinct and finite but still linked to a broader surrounding context. The display reflects the continuity of time, or of the fuller temporal context, together with the exceptionality of the passing moment. It is a representation that indicates cohesive distinctiveness, which is the distinguishing effect of legal representations. The digital condition calls into question the attainment of this effect through analog poetic mechanisms.

The encounter between legal poetics and digital times can be illustrated with reference to the two dimensions on which any poetic undertaking is charted: the spatial and the temporal. At the outset, it should be stressed that the revolutionary quality of digital technology lies not in its ability to draw us nearer to distant times and places but, on the contrary, in its effect on our existing conceptions of time and space. Joshua Feinstein thoughtfully expresses this point, in a critique included in a compilation of writings (127) on the current relevance of Walter Benjamin's seminal essay The Work of Art in the Age of Mechanical Reproduction. (128) As the editors of that compilation point out, Benjamin's essay, which has become a central point of reference in cultural studies, is forceful enough "to complexify our thinking about culture even today--despite our 'full immersion' in the data streams of digital age." (129) Feinstein observes:

New media present themselves differently than the forms of

communication discussed by Benjamin. Those older forms

provided a means for accessing a remote time or place: radio,

for example, made it possible to follow a sporting event or

political rally without being physically present. Epic film

extravaganzas lured viewers with the promise of re-creating

history, or making the past breathe again. By contrast, the

claims made by today's technologies of digital communications

are far bolder: cyberspace, interactive television, and virtual

reality do not merely provide access to a distant time or place,

but are themselves a form of authentic experience. An

electronic universe displaces the prosaic world of direct

sensation. Digital technology allows the imagination and spirit

to run riot. (130)