Do You See What I See? Iconic Art and Culture and the Judicial Eye in Australian Law

Abstract

Visuals and images challenge law’s positivistic faith: they are ambiguous and threatening to law’s stability precisely because they cannot be corralled into a safe territory – unless they are read literally. Because they are always open to interpretation, law will rein them into a reading that suits and that does not transgress, for instance, sanctioned narratives or accounts of national identities. A ‘juridical-aesthetic state of exception’ enables the courts, as sovereign, to create and constitute the aesthetic mode in which visuals and images are read, allowing them to radically create and recreate the image or visual to achieve a desired aesthetic or political reading. By being ‘rule-exempt’, the courts create the law of the visual as they go along, saturating them with meanings as they choose, deploying interpretations and readings of images as it suits. Their purported indifference is made in deference to art, but as I suggest, the very act of disengagement is ascriptive, through the intervention of the judicial eye. In its place, I suggest the deployment of a Panofskian iconological schema in order to give law some tools to assist with the reading of images beyond the literal and formal. It is precisely for the reasons that Panofsky is criticised by art historians that I see a value in the use of this hermeneutic in the legal context through its creation of a ‘synthetic intuition’. Iconology not only demonstrates that empiricist and literal readings of images and visuals are misleading and partial, but its schema offers a certainty and methodological rigour enabling ‘the vibe’ of art, culture and images to move from being a mere feeling to something which can be ascertained through a method, providing a sense of certainty while curtailing unbounded interpretations that abound in the juridical-aesthetic state of exception.