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Proboscations: Excavations in Comedy and Law

2016; University of Chicago Press; Volume: 43; Issue: 2 Linguagem: Inglês

10.1086/689671

1539-7858

Peter Goodrich,

Ancient Egypt and Archaeology

Procedere ad nasoHand on the tiller, to steady my course, to think by stroking my Anglican Jewish nose, but what unthinkable stupidity lies in the demographics of prow and profile, the faux chorographies of our nostrilated dance. A physiognomy of proboscises is a preposterousness that merits momentary and melancholic elucubration because, lamentable to behold, it has been tried by a variety of undersnouted intellects.16 That historical chain of prognoses merits mostly a summary snubbing. I mean that it looks backwards upon what ought to be addressed forwards. It offers, vere dicat, judgment with absolutely no wit, law without love. I will come back to it because it will come back to me, but for now, may it please, it is my plan to stay with the question of the law of the nose, ius nasi, a Roman affair is it not, with just a hint of the Greek, as George Jabet remarked, while making notes on noses, of the fondly Hellenic lyre.17 The aim, then, is not to deface but to praise proboscation, not to diminish but to expand, to enjoy the bifurcated “knobb” of the visage, that point of insufflation and tonal exhalation, that bell and moistness that we caressingly stroke and smuttily rub. It is a question of character, of turning around, of lifting up, of making one’s way, poorly shaven swordfish though I may be, towards the fluidity and humor of thought.18It is melancholegalism that needs to be candidly confronted. The lack of humor, the humorless, as coined and expounded through its unthought twists, turns, twitches, and other temerities by Lauren Berlant that must be most thoroughly addressed.19 An exemplum may help. An instance of the hairpiece, a judicial wigging. Just down from Oxford University, Stephen Balogh, a newly appointed solicitor’s clerk, was tasked with attending and helping the defense in an inordinately lengthy and soporiphically technical pornography trial in the Crown Court of St. Albans in England. The case dragged on, and he succumbed to the doldrums of boredom. He decided to enliven the proceedings by putting a canister of laughing gas into the air conditioning system and so relieve the tedium of trial. The night prior, he inspected the roof of the courthouse for the best point of entry for the gas. The next day, he brought a canister of nitrous oxide in his briefcase and left said bag on a chair in an adjoining court while waiting for an opportune moment to carry out his scheme. That was as far as he got. Court officers, who had witnessed his reconnaissance of the roof the previous night, opened his briefcase and confronted him.Balogh was arrested and brought before the senior Crown Court judge, Sir Aubrey Melford Steed Stevenson, presiding in the forensic forum next to the one in which the pornography trial was taking place.20 Balogh admitted everything and said it was “a joke. A practical joke.” He was charged summarily, meaning on the spot, in the late afternoon, and without counsel or other representation. As the judge put it: “I am exercising the jurisdiction to deal with the contempt … which has been vested in this court for hundreds of years. That is the basis on which … you will now go to prison for six months.” To this tyrannical vagary of reasoning, the young clerk responded, “you are a humorless automaton.” It is an instance of an extraordinary intransigence that evidences a symptomatic juridical panic in the face of levity. The loss of wit, the demise of judgment, is exhibited in the mode of a humorless reaction—an exorbitant failure to proboscate—in the form of an excessive reaction to an imagined affront to the melancholic dignity and morose sanctity of law. The borders of the jurisdiction were threatened and retaliation was sudden and without reason or consideration. Let’s review the legal points at issue.First, nothing had happened. No canister had been placed in the air ducts leading to the courtroom. No laughing gas had been released. There was in law no actus reus for which the accused could be condemned. This simply means that the law does not punish you for thinking of committing an offence. Acts preparatory to a crime or misdemeanor are not punished. One can, if one so wishes, carry a canister of laughing gas, upon one’s person, or in a brief case. It is hard to predict when laughing gas may be needed. Second, the clerk was in any event attempting something impossible. Making the law laugh is implausible enough, but releasing nitrous oxide into air vents would have no discernible effects; the gas would dissipate, and the temper, tone, and tedium of the proceedings, the pornographos of the trial, would continue unabated. Third, the summary procedure used for trying the clerk on the spot, without time to prepare a defense, without access to legal counsel, and by means of simple confrontation offends the rules of natural justice. Sir Aubrey Melford Steed Stevenson, to give you the full nominal sense of the man, this particular ill-functioning digestive apparatus, was enraged by the intimation of comedy, infuriated by the lack of seriousness, by the irreverence and sheer irrelevance of the preparatory reconnaissance, and seemingly acts as judge in his own cause. Law, however, has long recognized the principle that no one should be judge in matters in which they have a direct interest. He should have recused himself rather than deliver sentence in anger. A matter of decorum, a maxim of law. Fourth, there is a palpable need for reason and explanation of the decision. There is very little actual law on how the judiciary can claim a power of summary judgment for “contempt in the face of the court.” According to Blackstone’s Commentaries, the basis for this jurisdiction and procedure is that “contempts against the king’s palaces or courts of justice have always been looked upon as high misprisions: and by the ancient law, before the conquest, fighting in the king’s palace, or before the king’s judges, was punished with death.”21 While one could argue on this basis that Balogh got off lightly, if it is threat to the person of the king that is the justification for the power, it is surely overstated in relation to a judge in a newly established court, even if Sir Steed can on occasion (cross-)dress up in rather regal attire (fig. 2). Fifth, the actual justification that is proffered is that “it is a necessary power. It is given so as to maintain the dignity and authority of the judge,” and thus contempt in the face of the court, in presencia curie, is punished summarily, in the heat of the moment, on the spot, in flagrante. Here, however, the clerk had not even planned to release the gas into the air ducts of the court in which Sir Steed was presiding. Neither had he done anything in that judge’s face nor had he tried to make him laugh. And yet, without reasons, without didactic or deliberative discourse, lacking utterly in any discussion of humor or boredom, exhibiting an excess of judgment and a complete absence of wit, in decisionist manner, the judge remitted the clerk to six months in prison.The decision in Balogh is a near complete confrontation of the serious and the ludic, of the interior face to face with the exterior, of law revealed by an alien affect within. Anger abrogates the arbiter. It turns the subject against itself and pitches fury against equity, the body, humor and play. Justice is the act of giving time, of hearing the other side, but no such equilibrium is witnessed here. The judge is all judgment and no wit, while Balogh offers a plenitude of wit without an iota of judgment. He pays the price of an intransigent, humorless law, and a melancholegalistic execution. Sic transit ludo, thus does laughter die. And with it, thought.The issue, our reference, lies in the unthought implications of the black letter of legal style and the rigor mortis of humorlessness. The judge is appalled by the incursion of humor, the threat of farce, the appearance of comedy in the confines of the court. This sudden apparition of eros, the figure of the histrion, the playing of the fool, the animadversion of laughter threatens the jurisdiction, the carapace of solemnity whose root is in the ceremonial foundations of the legal, in the spectacle of seriousness. It is the choral liturgy of legality, the tenuous tenor of juridical ritual, the sacerdotal sombrero of juristic effects, in sum, the theology of law that experiences the comic as threat, as dissolution, as a striptease that will unveil the panoplies and paraphernalia of judicial appearances. The juridical is enunciated and yet remains, and remains to be said. It repeats. It claims that it is law and so does not change. In one suitably symptomatic formulation from the court of appeals, discussing again the power to imprison for contempt of court: “The object throughout has been to keep the stream of justice pure and clear. It must not be disturbed by stones or polluted with mud.”22 Humorlessness is the state of inertia, the unthought flow, the tranquil stream and purity, the lack of disruption, the absence of the mud of thought that allows for the appearance of clarity. This is judgment without wit, mere decision, arbitrium that has not even a whiff of invention, not a glimpse of the occasion, without feel for the event. And yet in the very extremity of the judge’s response, as also in the amorphous indefinition of the historical offence—the calumny of regality—we may suspect a hidden affect; the ghost of something else, a specter living on. There is room here for the beginnings of a détournement.Return for a moment to Guy Debord, the author of the concept and practitioner of humorous unsettling and surprise situationist interventions in thought, in practice, in film. He notes a distinction between a minor détournement and a more significant reappropriation and alteration of path and meaning, termed deceptive détournement. The latter prizes the concept captured out of its discursive system and normal use and, like the futurist metagraph, instills it into a novel relay and within a different form and purpose. This movement towards novelty Debord also terms the strategy of “premonitory-proposition détournement,” the reinscription of an intrinsically significant element, which derives a different scope from the new context and complementarity of forms that it now joins.23 As metagraphic act—in transmitting the concept to its new place and trajectory, the alteration of formal context and corresponding concatenation of thoughts—the détournement operates a morphosis, a comedic change, an ideational shift, a petit mort.What then of laughter in law, of comedy in legal reason? My intuition is that it signals a possibility, an instance of potential for change. The banned joke in law, the comedic slip, the oxbow event when a humorless law encounters an external occasion of play, of parody or satire, is correctly designated by Debord as premonitory, as signaling ahead, as a proleptic moment. The future is glimpsed, and the shape of change previewed in the iteration occasioned by the coincidence of law and laughter, the clash and corresponding fissure generated by the intercession of humor in the humorless, of the ludic in the legal. At one level it is an immediate symptom and effect. The simple physicality of laughter, the disintegration or breaking up that the smile insinuates and that the guffaw produces portends a shift, a change of place, of tenor and mood of thought.24 Laughter instigates a falling apart, a loosening up, and so propels a recomposition, new thought, the metagraphic agency of prolepsis and transformation. That indeed is the ontological drive of humor, and in front of it lies a fork in the road of history. Humor either prompts fear and reaction, a recursive and conservative shrinking back, a diminution of both the object of laughter and of the process of thinking, in sum, a lack of judgment; or it propels invention, an epistemic opening up, the fabrication of an unseen connection, a way forward, together, in the dissipation of a humorless gloom through the invention of wit. The choice, when faced with humor, is between hypostasis and ecstasis, entrenchment and détournement. In the latter—because we all, we lively ones, love wit—there is always the coming together, precisely in the metagraph or discombobulation, of the caressing touch of humor and judgment. Where it is law that is in issuance, finally, we have the advent and instance of comedic justice in the rendering of decision, the hobbyhorsical hinging of judgment.At the level of law (though in truth the notion of a plane or tier of legality as somehow above some other entity or enterprise is slightly distracting) wit conflicts with judgment, humor with the saturnine and melancholegalist tone of juridical temper. Back then to my cause. For the jurist, for the judge, there is wit, and there is judgment, and they are separate. Judgment must excise wit, and wit, for lawyers, has to exclude judgment. When they intersect they conflict, and this constitutes an opposition, a necessary antinomy, one which Emeritus Professor Chirelstein captures with conventional accuracy by arguing succinctly that there is silliness, and there are cases, there is humor and there are rules, there is comedy and there is policy, and it is in all instances only the latter that matter. Legal method exists to sever wit from rule and the jocular from the decisional. It operates the castration of the humorous, and the joke paradoxically becomes the eunuch, the nonproducer, the lack of desire intrinsic to the law.