# LEGAL THEORY /// The Law Turned into Walls for Volume 38: The Shape of Law
The thirty-eighth issue of Volume entitled The Shape of Law has been recently released and I have the great chance to have a paper in it, in company of many friends (Daniel Fernandez Pascual, Nina Kolowratnik, Pedro Gadanho, Ethel Baraona Pohl, Brendan Cornier, Cristina Goberna, Urtzi Grau, Dubravka Sekulic and Paula Alvarez). This issue is very useful as an introduction to problems of space in relation to the legal system that produces it. My own contribution is entitled “The Law Turned into Walls,” and despite the fact that it does not really bring any new element to the essays gathered in The Funambulist Pamphlets: Volume 04: Legal Theory, the articulation of the ideas developed in various texts written in the past was a useful exercise and constitutes a synthesis for this book:
THE LAW TURNED INTO WALLS ///
originally written for Volume 38: The Shape of Law (February 2014)
01. The lines of the law
Law and architecture are two instruments in the same toolset of political power. Law provides the diagram, while architecture embodies its imperfect violent concretization. Each wall is the crystallization of a law. One of the most immediate examples is the materialization of private property. Someone traces a line in the soil: this is the first act of this legal-architectural union. The architectural act is rather limited (a simple line), but its legal consequences are great: it delimits a territory that now belongs to the person who traced it, and so do the fruits of production made there.
The law is predicated on the strange notion that all present on a given territory shall know the full extent of the law that is applied on it: Ignorantia juris non excusat (Ignorance of the law is no excuse). Architecture can thus be seen as a materialization of the legal diagram to make explicit the law’s content. The foundation of Roman law itself begins this way with the delineation of city boundaries – or at least, this is the case in the mythological foundation of Rome. Twin brothers Remus and Romulus consult the auguries in order to know who receives the divine right to create a new city. Romulus, who is convinced that the auguries selected him, founds the city by digging a trench around its perimeter. Remus, who feels that he has been prejudiced, decides to contest the unilateralism of Romulus’ law, and he therefore jumps over the trench to prove its obsolescence. Each law carries a punishment for whoever transgresses it, and consequently Remus is killed by his brother.
There is something in the translation from perfect law to imperfect architecture that remains ill-defined. This lies in the ambiguous legal status that operates within the thickness of the legal diagram’s lines. The very notion of ‘thickness of a line’ constitutes a geometrical oxymoron: lines are defined by their absence of thickness. Architecture, however, requires thickness to materialize, and therefore to become operative and violent on the bodies that it subjugates to the law. In the mythical example of the foundation of Rome, this ambiguous zone lies in the thickness of the trench, where Remus’ corpse might remain thus immortalizing his transgression. Similarly, on November 11th 1989, Berliners did not just cross their wall; they expressed its obsolescence by residing for a moment on its thirty-centimeter edge. That is the symbol embodied by the funambulist (tight rope walker), who walks the line, and therefore subverts it, impervious to the legal system of either side.
In a more recent example, a group of twenty Eritrean refugees found themselves trapped for seven days in the thickness of the border between Egypt and Israel. When considered on a map, there is of course only a line between the two countries, but things are more complex in reality and an actual zone exists within the thickness of the two-sided materialization of the border. For an entire week, the Israeli authorities refused to grant access to the group and provided only the vital minimum in terms of water, causing one Eritrean women to miscarry. The legal ambiguity that operates in the thickness of the line is therefore a double-edged sword: it constitutes an escape from the law and architecture’s power of subjugation, but it also condemns the body who resides in it to a loss of status. The status of ‘bare life’ might be acceptable for a body that will have deliberately accessed the thickness of the line; it is however, the most degrading condition for a body that is kept by force within it. The extermination camps of the Holocaust or Camp Delta in Guantanamo Bay are tragic examples of this absolute loss of legal status.
02. Territories of alegality
Philosopher Hans Lindahl defines territorial regimes in which the legal context is either not known or ambiguous, through the notion of alegality. Law is characterized by its ability to define each behavior as either legal or illegal. In the case of alegality, such definitive attribution is impossible.
Islands of legal ambiguity also require architecture. Such situations can be observed in embassies around the world that crystallize small territories of sovereignty different from what surrounds them. The fact that, as I write this, founder of Wikileaks, Julian Assange, is still living in the United Kingdom’s Ecuadorian Embassy in London is highly evocative of the fact. On August 16th 2012, Assange took shelter in this small building as he was about to be arrested and deported to Sweden to face two accusations of sexual assault filed against him. The fact that he was able to appear on the embassy’s balcony to give a press conference, on August 19th 2012, without fear of being arrested as long as he remained inside the building, expresses the power of law. Should he have fallen from the balcony, he would have been arrested immediately by the London Police; yet, the architectural elements that compose the embassy – including the balcony – materialize what belongs to it and what does not and therefore what is protected by a specific legal status and what is not. There is something about this as simple as the ‘safe zone’ that we use to have as kids when playing tag. It is nevertheless interesting to observe that embassies’ architecture is far from innocent. Since this building officially depends on its country’s sovereignty, it is often considered a privileged target to concentrate one’s antagonism against a state. The way a country like the United States is building its embassies is evocative of this matter. The legal lines that separate the American territory of the embassy and the rest of the country in which it is situated, is often embodied by the most solid means that the architectural repertoire can use. Embassies in Baghdad, Cairo, or Islamabad, for example, have a lot in common with medieval castles. It is also the case for the new US Embassy in Beijing and the projected embassy in London: despite the aesthetics of openness and cleanliness they attempt to convey, the fortress characteristics that these buildings carry give them the ability to defend the legal particularity of their territory through the strongest means.
The defensive condition in the architecture of these legal anomalies’ is important, as it is often the only element that allows their existence. In Argentina, for example, several factories were taken over by their workers after the 2001 late 1990’s economic crisis that condemned many businesses to bankruptcy. The workers who refused to accept that their factories (or hotels) would be liquidated by their owners, decided to run the factories by themselves on a cooperative mode, thus triggering the implementation of a-legal territories that needed to be regularly defended against the various suppressive actions that were undertaken to give them back to their original owners. The case of the Zanon cermic tile factory shown in Avi Lewis’s and Naomi Klein;s 2004 documentary The Take is illustrative of such takeover. Until 2003 and the election of Nestor Kichner as President that marked the beginning of social measures, the factory had to defend itself from the repeated attempts of the police to take it back from its workers.
03. Colonial law and architecture
The law crystallizes relationships of power, thanks to its authority, as well as its embodiment through architecture. This scheme is particularly expressive in the case of colonial legislation when a people impose ‘from the outside’ a law on the people that it subjugates. The British Raj in colonial India, implemented such a domination and its legal remains continue to be a problem in contemporary India. These problems would deserve to be examined more thoroughly, but I would like to address another example of colonial legislation in relation to its architectural equivalent: the situation of the occupied Palestinian territories, the West Bank, East Jerusalem, and pre-2005 Gaza.
Ra’anan Alexandrowicz’s 2012 film, The Law in These Parts, is helpful to introduce the mechanisms of the colonial legislation implemented by the Israeli Defense Forces (IDF) on these territories since the beginning of their occupation in 1967. This film alternates archival footage and interviews with six members of the Israeli military legal corps who were involved with the elaboration and implementation of a legal strategy to organize the occupation. This colonial law is a well thought-out strategy, not a set of quickly decided tactics. In this regard, the first thing the film tells us is that the brochures informing the Palestinians that they were now under Israeli military legislation – a necessary measure according to international law – were designed and printed by the thousands long before 1967 and the actual occupation of the Palestinian territories by the IDF. The content of this colonial legislation was then regularly updated as issues were raised, involving groups of military lawmakers to continue constructing the legal means through which Palestinian life would be organized by the Israeli army.
Alexandrowicz asks whether it would have not been simpler to enforce Israeli legislation on the Palestinians. The answer is that such logic had to be avoided absolutely as it would have implied that the occupied population were citizens of Israel. The film also points out the ambiguous legal obligation of the Israeli civil population – there are currently 500,000 Israeli civil settlers in the West Bank and East Jerusalem – who live in the occupied territories. Unsurprisingly, this population’s criminal activity is not judged by military courts like the occupied population, but by civil Israeli courts that have been consistently lenient with their action.
The legal problem that constitutes the Israeli settlements in the Palestinian territories – until 2005, there were still some in the Gaza strip – is illustrative of the way laws are being conceived or instrumentalized as colonial weapons. Article 23 of the Hague Convention (1907) states that “it is especially forbidden […] to destroy or seize the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”. In addition, the fourth Geneva Convention (1949), related to the Protection of Civilian Persons in Time of War, writes that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies”. The Israeli civil settlements do not qualify for the ‘necessities’, evoked by the Hague Convention and, in 1975, the Israeli Supreme Court ruled against the foundation of the settlement of Elon Moreh in the region of Nablus in the West Bank, since the purpose of the land seizure had evidently nothing to do with security. The justice’s decision, given months after the land had actually been seized, ordered the settlement to be evacuated and for the land to be given back to its Palestinian owners.
One of the officers interviewed by Alexandrowicz then had an idea that provided a legal narrative that was acceptable for Israeli civil society: he invoked a law that was implemented in Palestine during the rule of the Ottoman Empire from the sixteenth century up until 1920. This law, called mawat (waste) land, was applied to parcels of land that were far enough from a village so that one would not hear the rooster. These parcels could belong to anyone who would cultivate it. However, if it were not cultivated for three years in a row, the land’s ownership would go back to the Empire.
This piece of archaic legislation was then integrated into colonial legislation and, even today, allows the IDF to seize massive amounts of land. I insist on the fact that this law has more to do with a form of narrative, one that seems to legitimize the Israeli army’s systematic seizure of land, rather than an actual legal construction that would integrate part of the occupied population’s legislation within the colonial law.
Israeli civil settlements are now spread throughout the West Bank; one of them, Ariel, even has a university. And from the original ideologically and religiously driven group of settlers, a new settler has emerged, more interested in the price of real estate, since it is cheaper in the settlements than in Israel. Political ideology, religion, and capitalism here come together to fuel the need of a colonial legislation for the Israeli ruling class. This legislation could not exist without the means of incarnation that architecture constitutes. What would the IDF do if they claimed the ownership of a land without the actual means of occupying it? The Israeli settlements in East Jerusalem and the West Bank are thus interesting to observe. Often built on top of hills, they dominate their environment in the same way medieval citadels used to. The architecture of the buildings is expressively defensive and systematic, and integrates a number of observation towers proportional to the size of the settlement – the largest one, Ma’ale Adumim counts 35,000 inhabitants. Colonial legislation, however, does not materialize only in the ‘positivity’ of built architecture, but also in the ‘negativity’ of architecture’s denial to exist. The 1993 Oslo accords, signed in secret by the Palestinian political elite, allowed the Palestinian authority to have relative autonomy in the cities of the West Bank – Hebron being an exception – but established a legal framework in which 63 percent of the West Bank is under absolute control of the IDF, and where the Palestinians are forbidden to build. The result is a ’Palestinian archipelago’ where each town constitutes an island, separated from its neighbor by a sea of Israeli control. This comes in addition to the well-known separation barrier that infringes on Palestinian territories to claim as many settlements as possible on its western side, connected to Israel. The limitation of the Palestinian towns and villages in the space of the Oslo legislation also creates a strange urbanism in which small villages look like fragments of cities, as buildings grow vertically because of the impossibility of claiming more land.
04. Modes of disobedience to the law
Architecture is a fundamental tool in the manifestation of a legal system and its political strategy. Law uses architecture’s intrinsic violence on bodies to express and enforce the relationships of power that it defines. Because of a long religious tradition that considers the law as the Law defined by God, we tend to give the law a legitimacy, which remains worth questioning. Law is more or less a transcendental construction that subjugates our bodies to a political agenda. If we believe that this agenda fundamentally denies the bases of our individual or collective ethics, it becomes a right if not a duty to disobey. This is the one and only reason to disobey a law: disobeying not for ‘selfish’ purposes but rather, to contest the law itself in its very essence. In January 2013, a group of a few hundred Palestinians settled in a small encampment in East Jerusalem where the Israeli government planned to build a new settlement, following the adoption of Palestine as an observer member at the United Nations. The architecture of their tents and fragile buildings that they set on this land – dismantled a few days later by the IDF – was not the mark of a will of domination of one people over another but rather, the expression of civil disobedience to the colonial legislation. Here again, architecture was used as an instrument of power; yet, the power it expressed was the resistive power of the occupied against the oppressive association of architecture and the law, conceived and implemented by the dominant agents of a given society.
1. Harriet Sherwood, ‘Eritrean refugees trapped by security fence at Israeli-
Egyptian border’, The Guardian, September 5, 2012.
2. Hans Lindahl, ‘A-Legality: Postnationalism and the Question of Legal Boundaries’, in The Modern Law Review, 2010.
3. The French Declaration of the Rights of Man and Citizen of 1793 that served as the Constitution of the First Republic states the following in its 35th article: “When the government violates the rights of the people, insurrection is for the people and for each portion of the people the most sacred of rights and the most indispensable of duties.”