'Atmospheres of Law: Senses, Affects, Lawscapes' by Andreas Philippopoulos-Mihalopoulos in (2013) 2(6)
Emotion, Space and Society is
described by the author thus -
In this article, I deal with airs and sounds and scents, while keeping an eye on the law. My field of enquiry is the interstitial area between sensory and affective occurrences, namely sensory experiences that are traditionally thought to be a causal result of external stimuli, and affective experiences that are mostly associated with emotional changes and generally allude to something internal. I am arguing that there is no constructive difference between internal and external origin of occurrences. In its stead, I suggest the concept of atmosphere, namely an attempt at understanding affective occurrences as excessive, collective, spatial and elemental. However, it quickly becomes apparent that an atmosphere is legally determined. The law controls affective occurrences by regulating property of sensory stimulation. At the same time, the law guides bodies into corridors of sensory compulsion - an aspect of which is consumerism in capitalist societies. The law achieves this by allowing certain sensory options to come forth while suppressing others, something which is particularly obvious in cases of intellectual property protection that capture the sensorial. I deal with the law in its material, spatial manifestation and in particular through what I have called the ‘lawscape’, namely the fusion of space and normativity. I employ a broadly Deleuzian methodology with insights from radical geography, affective studies, urban and critical legal theory in order to develop and link the various parts of the text.
Indeed.
From there it is on to -
Simply put, the lawscape is the epistemological and ontological
tautology of law and the city (Philippopoulos-Mihalopoulos, 2007b,
2008). The neologism risks making the use of individual terms
redundant. A city without law is a holy city of justice, perpetually
floating in a post-conflict space where everything is light and
forgiveness. Likewise, a law without a city is a law without materiality,
an abstract, universal, immutable law that trammels the
globe. Both the above are fantastic beasts that operate at best as
horizon and at worst as cheap rhetoric. Think of the horizon of
justice as a justice always-to-come, a messianic justice that
demands present calculation (Derrida, 1992). Law is needed in the
calculation part. After that, and once justice has been achieved (if
ever), the law recedes for a well-deserved rest, since it becomes superfluous when the city is just. The law only emerges in conflict,
in quest (for justice), and in need to capture the future. A just city,
however, has captured time itself, engraved it right here, onto the
surface of its urban sprawl. A just city is a theological concept and
cannot accommodate anything that falls sort of divinity (contra
Fainstein, 2010). Likewise, law as an abstract universal that is free
from the constraints of matter and space is one of the illusions law
(and some existing legal theory) insists on maintaining. Law as
control is by definition material and more specifically spatial, for it
is only through its very own emplaced body that the law can exert
its power. Law comes from within the controlled, their bodies of
appearance and their corridors of movement, as post-colonial
theory has taught us (Bhabha, 2005). This is more than just biopolitical
control, since it addresses the material nature of the law
itself. To posit a law without a city is tantamount to positing, say,
a universal human right that applies to everyone, without the need
for contextualisation, namely that supreme need for closing in and
eavesdropping on this particular body’s specific circumstances.
For clarification’s sake, I should mention that by law I understand
both standard law and regulation, as well as the generalised
diffused normativity that characterises life - what Spinoza (2007)
has called “rules for living”. This includes human and other bodies
as well as objects. Just as a body, an object is already functionalised,
normalised, never independent of its normative position in the
world. The law is an expansive institutional affect that permeates
the formal and the informal. What is remarkable, however, is that
the latter diffused form of normativity exhibits the paradox of
appearing both as a corporeally embedded preference for individual
self-preservation, and a feature compliant with the current
surveillance and control culture. This sense of normativity takes
few risks and delegates conflict resolution to what it considers to be
higher levels of judgement-making;indeed, to go back to Spinoza,
a sort of guardian authority that pursues efficiently the individual
interests of its subjects. The phenomenon of the “nanny state” is
both an anathema and a desire, a direct result of which is the
perceived political apathy. It is not all bleak though. This is
a comfortable sense of normativity that covers specific needs, such
as issues of belonging, constructions of home and community, as
well as emplacement. It is, properly speaking, a product of its own
spatiotemporal conditions, and as such it manages to make itself
invisible and neutral, to recede from the surface and conceal its
force. This works both ways: legal subjects recede from actively
questioning the law (complacency or reassurance), and the law
recedes from claiming a role in the construction of the everyday.
This does not mean that the law is not there; simply that it is not
perceived as being constantly there. This is a strategic move that
aims at diffusing and dissimulating the force of law, offering instead
a smooth, anomic atmosphere. Even so, things can on occasion
overflow, exceed themselves and embark upon a flight of radical
self-redefinition. In such cases, the already ‘contagious’ (in the
sense of epidemic imitating, see Tarde, 1903) nature of the
normative doubles up and becomes rapid, horizontal and fiery,
engendering such eruptions as demonstrations, revolts, revolutions,
coups. In all these cases, the law does not leave the stage. It is
merely supplemented by a different normative direction and
sometimes a higher velocity.
With city I understand the thick spatiality of bodies (humans,
non-humans, linguistic, spatial, disciplinary), buildings, objects,
animals, vegetables, minerals, money, communication, silence,
open spaces, air, water, and so on. This spatiality is a fractal manifestation
of what I have elsewhere called ‘open ecology’
(Philippopoulos-Mihalopoulos, 2011), namely the assemblage of
the natural, the human, the artificial, the scientific, the political, the
economic and so on, on a plane of contingency and fluid boundaries,
or as Andrea Brighenti puts it, “a series of territories, which can be thought of as superimposed.or mutually exclusive.or
even criss-crossed and overlapping” (2006: 80). The open ecology
of the city is simultaneously open and closed. Hinterlands, globe,
outer space, hybrid technohumans, technologically manipulated
meteorological phenomena ‘and so on’ (see Anna Grear’s 2011
collapse of the anthropomorphic effigy) are all grounded on the
urban materiality of here, itself open to any definition of materiality
may come from over there. Thus, while infinite, open ecology is
entirely immanent. Any transcending movement is inscribed
within, in the recesses of the unknowable here. There is nothing
that is not, actually or virtually, included in open ecology. And
nothing that is not, actually or virtually, connected to everything
else in some form of connection that enables everything to become
everything else. This is a processual rather than value-based
ecology and, to quote Deleuze and Guattari (1986: 4), “we make
no distinction between man and nature: the human essence of
nature and the natural essence of man become one within nature in
the form of production of industry”. Instead of a distinction,
a fractal fluctuation between human/artificial and natural. Instead
of one city, an infinite multiplicity that repeats itself as difference.
The lawscape therefore operates as a surface on which the open
normativity of the law and the open ecology of the city emerge. Yet
it does not constitute a new unity. The surface of the lawscape
enables the reciprocal dissimulation of lawand the city. Thus, in the
lawscape, the city sheds its asphyxiating normativity just as the law
sheds its ever-present materiality. Law and the city are mutually
exclusive in their emergence, thus dissimulating and diffusing the
oppressive nature of the lawscape. In that way they can both carry
on with their self-perpetuating myths, such as the city as an accueil
of difference and the breeding ground of communitarian nostalgia,
and of the law as a universal good that has the potential of universalising
values such as right and wrong. Some elements remain,
however. First, the inescapable lawscape. Wherever one is in the
city (and arguably beyond it, in its global hinterlands), one swims
with and against the various normative flows that constitute the
materiality of its lawscape. Second, the posthuman lawscape.
Defining the city as a slice of open ecology means that the lawscape
lies beyond such distinctions as human/natural/artificial (Wolfe,
2009). Third, the fractal lawscape. While each lawscape is
different, they all fractally repeat the reciprocally invisibilising
embrace between open normativity and open ecology. There is no
global lawscape that operates as a semantic and material common
surface for the totality of cities, yet there is a plane of immanence,
not unlike the earth or nature as Deleuze and Guattari put it (1986).
This plane trammels the lawscapes like a line of flight, namely an
internal movement that begins and ends within the plane of
immanence yet pushes the edges of this plane always further. An
example of such a line of flight would be the creative or competitive
edge of any city that wants to attract the globe and that, by placing
itself alongside other cities, manages to develop creatively its own
potential.
For fans of Theory Bingo we have Bhabha, Deleuze, Derrida, Guattari, Lyotard, Sloterdijk and Virilio.
The Queensland Supreme Court in
Kosteska v Magistrate Manthey & Anor [2013] QCA 105 has refused an application for leave to appeal regarding pseudolegal claims in response to traffic offences. (A prior sovereign citizen claim by Kosteska is noted
here.)
The judgment states
that Koteska had received a “Reminder Notice” from the State Penalties Enforcement Registry (“SPER”) to the effect that she owed $15,278.60 (SPER fees and 36 fines for offences dating back to 2003, inc exceeding the speed limit, driving while unlicensed, driving an unregistered vehicle, possessing property suspected of being stolen, and failing to vote at an election).
[9] The application for leave to appeal is expressed to be made by “Lille: of the Kosteska family (as commonly known)” and “as well for the Queen as for herself and ... made with a view to correcting serious defects in the manner in which legal affairs especially of the nation generally, and the State of Queensland particularly, are presently conducted, and have been for a very long time”.
[10] In bringing this application, the applicant extends a line of similar, hopeless cases. Notwithstanding that her arguments, if correct, would mean that the Supreme Court had no power to grant the orders she seeks, she persists in her applications. The irony of her position seems to have escaped her. But it has not dulled her appetite for wasting the time of courts and the unfortunate respondents to these pointless exercises.
[11] Ms Kosteska’s argument on this application appears to be that:
(a) She was denied natural justice at first instance; and
(b) That “the entire legal system, as established and presently implemented across this Commonwealth of Australia and State of Queensland, is ‘inherently capable [sic], technically’ of addressing such matters at first instance, and to the take the requisite ‘corrective’ action to properly and completely remedy the situation if ‘irregularities’ are uncovered” and that “the applicant has ‘serious concerns that ‘the system’ as a whole, is simply ‘not up to that task’.”
Denial of natural justice
[12] So far as it is possible to discern a thread of argument which would support this ground of appeal, the following seem to be the complaints made by the applicant:
(a) The learned primary judge displayed bias against the applicant;
(b) The learned primary judge did not make reference, in her reasons, to some applications for special leave which had been made to the High Court of Australia by the applicant;
(c) The learned primary judge did not take into account some matters, (the identity of these is difficult to determine); and
(d) The learned primary judge “saw fit to attack” the applicant “on behalf of the respondents”.
[13] The transcript of the proceedings discloses that the learned primary judge had examined all the material before her and proceeded to afford the applicant a complete opportunity to present her case. Her Honour would not have made reference to applications for special leave to the High Court of Australia because they were not relevant to the matter before her.
[14] The learned primary judge did engage the applicant in a series of questions which was clearly designed to elucidate, so far as it was possible, the applicant’s argument. During that exchange her Honour expressed some strong views about the value of the applicant’s contentions, but nothing more than might be expected given the nature of the argument.
[15] It was also argued that her Honour was “severely constrained” in respect of the orders she could make by the “British Coat of Arms” which appeared above the bench Apparently, the presence of this representation (of what is actually the Royal Coat of Arms) required that the law which was to be upheld in all proceedings was the common law of England “in all of its might and majesty”. But, says Ms Kosteska, that requirement was ignored. There are occasions (thankfully very rare) when a submission is made that is so misguided, so erroneous and so lacking in any understanding of the basics of Australian law that one is faced with a truly sublime absurdity. This is such an argument. The presence of a coat of arms in a courtroom is merely a symbol of authority. It provides no power. It creates no duty.
[16] Ms Kosteska was given a complete opportunity to present her case, such as it was, and it cannot be demonstrated that she was denied natural justice.
The flaws in Australia’s entire legal system
[17] This is not the first case in which Ms Kosteska’s argument has been advanced. It, and others like it, have wasted the time of the courts and opposing litigants, together with taxpayers’ money for some time. (This is not a peculiarly Australian problem. Similar fruitless cases have burdened the Canadian courts – so much so that Associate Chief Justice Rooke has examined in detail the characteristics, indicia and concepts of what he describes as Organised Pseudolegal Commercial Arguments.[3])
[18] The kernel of Ms Kosteska’s argument under this heading is contained within her written submissions filed on 19 June 2012. She says that the proceeding in the Magistrates Court was “utterly lacking any proper basis in law” when viewed “in hard constitutional terms”. This audacious submission is supported, she says, by the following (which is set out in the same manner as in her written submission):
“3. ...the essential basis is that, as there has NOT been – since at least 3 March 1986 at 5.00 am GMT, when the now notorious Australia Act (Imp) 1986, purportedly enacted by the Imperial Parliament at Westminster on behalf of, and at the behest of, the Australian ‘authorities’ of the day, ostensibly came into force here at that time – ANY proper basis in law CONSTITUTIONALLY upon which ANY of the now ‘very many’ enactments which have purportedly ‘become law’ in this country since that time, then ALL such laws purportedly now ‘in force’ are NOT so, since they have ALWAYS ‘utterly lacked’ ANY proper ‘constitutional’ foundation, and therefore they ALWAYS HAVE BEEN NULL AND VOID AT LAW from the time of their enactment, appearances to the contrary notwithstanding.
4. This ‘most unlikely’ situation arises as a consequence of a ‘very fundamental procedural error’ in the process whereby that enactment was made, in that, as the referenda, required by the State Constitution Acts then in force in both Western Australia and Queensland to sanction ANY change to the ‘powers of the Office of State Governor’ of the type envisaged by, and indeed expressly in, the Australia Acts (Request Acts) 1985, had NOT been held before those Acts were signed into law by the respective Governors of those States, then the requisite formal agreement of ALL States and Territories, necessarily required FROM ALL States and Territories for such an enactment to be PROPERLY made at law by the Imperial Parliament, HAD NOT IN FACT AND IN LAW BEEN OBTAINED to properly sanction such a change. The necessary consequence HAS TO BE therefore, as stated above.”
[19] It is not easy to summarise what is said in the written submissions filed by the applicant. In some respects it resembles the stream of consciousness style of writing used (more entertainingly) by authors such as Jack Kerouac. There are, for example, contentions that “some very influential people” commonly known as the “the Elite” have been responsible for the unlawful act of subtly removing the common law and replacing it with commercial law so that, amongst other things, the Supreme Court is now an unconstitutional Court of Admiralty which operates under the international law of the sea.
[20] No arguments are advanced to support any of this. Rather, in keeping with the style of all the submissions made by Ms Kosteska, questions are asked which are apparently intended to raise matters of great import. For example:
“Is it also not so that a contract is not deemed valid if it is all factors have not been fully exposed and excepted [sic] by all parties involved, in which case the imposition or enforcement of all such CONTRACTS or CORPORATE REGULATIONS called STATUTES, are in fact not valid or void at law?
Is it also not true that the pseudo Judges of these pseudo Courts have NO powers without the Consent of both the Plaintiff and the Defendant [AND] in every case the Judge must determine that he has Consent; Personam and Subject Matter Jurisdiction before he can act or access the Cesta Que Trust?
Is it also not so that a corporation is a fiction and cannot be sovereign?
Is it not so that as I can touch, feel, smell, bleed, and am in fact a living, breathing Child of God, I am in FACT a Sovereign and have higher authority over any fiction?”[4]
[21] The applicant has also attached to her written submission excerpts from decisions of the High Court of Australia, some newspaper articles relating to “Project Wickenby” and the Bell Resources litigation, correspondence between Mr Alan Skyring and the High Court of Australia, excerpts from various books including “A History of Money”, “Descent into Slavery” and “The Second Treatise of Civil Government”, documents promoting the establishment of a parliamentary state bank, and a statutory declaration in relation to an entirely different matter.
[22] Many of the contentions advanced by Ms Kosteska have been previously considered by the Court of Appeal or the High Court of Australia. Similar or associated contentions have been dealt with, and dismissed, in Skyring v Commonwealth Commissioner of Taxation, Skyring v Australia and New Zealand Banking Group, Re Skyring, Skyring v Lohe, Sharples v Arnison, Kelly v Campbell, Skyring v Australian & New Zealand Banking Group Ltd, Re Skyring’s Application (No 2), Re Cusack, Clampett v Hill & Ors, and Kosteska v Phillips.
[23] Each of the arguments advanced on the constitutional grounds by Ms Kosteska has been firmly and convincingly rebuffed and dismissed in many decisions over many years. The result of this case can be no different.
Stay Application
[24] On 8 October 2012 Ms Koteska filed an application (‘the stay application”) seeking the following orders from this court:
(a) That “a permanent stay be applied on all of the orders made in the Cleveland Magistrates Court on the 4th April 2012 in respect of all proceedings instituted against the applicant by the Queensland Police Service since November 2009”
(b) That “the Applicant’s motor vehicle Driver Licence be reinstated forthwith in a ‘unrestricted’ form, which allows her to drive her car anywhere at any time on the public roads in Australia ‘as other normal people do’”
(c) That “the Applicant be afforded forthwith by the State authorities, compensation in an appropriate quantum manner and form as recompense for the highly improper action which has been taken against her by those ‘authorities’ over the last decade and more as she sought, quite properly to ‘have corrections made’ to the unlawful aspects, constitutionally of ‘the entire government setup’ in this State”
(d) That “necessary action be taken forthwith” with respect to certain matters involving the applicant “to have them properly determined at law by the High Court of Australia”
(e) That “the State Attorney-General ‘be instructed’ to intervene in the proceedings with respect to an application by the applicant for special leave to appeal to the High Court on the basis that as he is really the only legal officer in this State who has the necessary ‘legal standing’ to have carriage of such an action, given the nature of matters raised in it, there is no credible option open to anyone but to do just that.”
[25] The basis for the stay application is said to be that there has been an admission by the respondents “of the veracity of the fundamental tenets upon which the applicant’s action was initially brought in this matter”. The application claims that the respondents’, not having served a notice on the applicant during these proceedings to dispute those facts alleged by the appellant, it follows that judgment should be given for her for the orders she seeks.
[26] The applicant relies upon r 190 of the Uniform Civil Procedure Rules. It does not apply to these proceedings.
[27] The applicant has not provided any argument to support the making of such extraordinary orders.
