# LEGAL THEORY /// Architecture and the Law: An Epistolary Conversation with Dr. Lucy Finchett- Maddock in four letters
FIRST LETTER (New York on July 12th 2012) ///
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.
SECOND LETTER (Exeter, UK, on August 17th 2012) ///
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 moreso 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.
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.
THIRD LETTER (New York, on May 2nd 2013) ///
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 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.
FOURTH LETTER (Exeter, UK, on a rainy Tuesday May 14th 2013) ///
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.
 Thoreau, H. D. Walden, Or Life in the Woods: On the Duty of Civil Disobedience, 1948, Norman Holmes Pearson at 290
 Arendt, H. Crises of the Republic, 1970, Harcourt at 80