Foreword: Law and Art in the Aftermath

Aftermath is a “peculiar concept.”^[1] Frequently invoked, in both popular and academic discourse, it is rarely theorised, or even explicitly considered. What is the aftermath? Where is it? When does it begin, when does it end? What comes after the aftermath – what endures and what passes, what is transformed and what emerges new? Does all life carry the “taint of aftermath”?^[2] Are we ever not, in some sense, in the aftermath?

Etymology may offer some orientation. In its common, figurative usage, ‘aftermath’ refers to the time that follows a particular moment or event – of change, crisis, conflict or challenge – during which the fallout of that occurrence is felt. The origin of the term is, however, specifically agricultural: it means ‘aftergrass,’ which is a second crop of grass that grows on the same land after the initial crop (the math) has been mowed.^[3] As a concept, aftermath thus grounds experience to a time and a place. To be in the aftermath is to be caught in a relationship to an event; it involves the present being defined by the past. But the aftermath also holds within it the possibility of re-growth and rejuvenation – it is a site that looks towards the future.

In a first sense, then, we may, with Ralph Rugoff, conceive of the aftermath as being akin to a crime scene – as a “place where the action has already occurred,”^[4] and which offers clues to the event of its unfolding. Yet we might also grasp the aftermath as an event in its own right, connected to but distinct from the original occurrence, and directed as much to the future as the past.^[5] Thought in this way, the concept of aftermath presents something more than just a space of recognition and reckoning – of working out and working through the traces, memories and effects of the initial event. It also appeals to a future-oriented engagement with the past that opens up the present to new ethical, political, cultural – and legal – possibilities. To speak with Derrida, such a conceptualisation prompts us to acknowledge the aftermath of the event as the advent of a “future-to-come”^[6] – as a starting point for imagining alternative futures and future alternatives; as nothing less than an invitation to futurity.^[7]

Yet even this extended understanding still comes up short. What it misses, or fails to emphasise, is the original sense of cyclicism and recurrence captured in the rhythms of agricultural life. To recognise the concept of aftermath as opening a horizon to the future is vital, but it still risks presuming a linear trajectory that separates the temporality of the initial event from that which follows. In effect, the temporality of the aftermath is more complex and entangled;^[8] more resistant to the clean mow of historical time. As Caren Kaplan points out, the experience of being in the aftermath does not necessarily conform to any linear timeline; for some, “the past refuses to remain neatly contained and may roam around in the present or hail the future, folding different times and spaces into an unruly or repetitious mode of emotional life.”^[9] For this, Kaplan borrows Kathleen Stewart’s idea of “rogue intensities”^[10] – the “lived, yet unassimilated, impacts of things,”^[11] the “excesses and extra effects”^[12] that are left hanging and “simmer up,”^[13] “surge […] and meander.”^[14] To envisage the aftermath along these lines is thus to open a still more disruptive understanding of its possibilities not (just) as an orderly space for acknowledging, coming to terms with, and moving past a particular history or event, but as a disorderly site of fragments, affects, and unruly intensities of time and space that defy resolution or closure.

These few, brief conceptual lines of flight provide the jumping off point for this special focus section, which shares new perspectives on and around the theme of ‘law and art in the aftermath.’ The initial call was issued as an invitation to revisit and rethink the idea of aftermath as it relates to critical matters of law, justice and jurisprudence. We encouraged authors to pose new questions of the concept, and to probe its boundaries and limits. We bid them to explore continuities and discontinuities between events and aftermaths, and to negotiate various openings to the past, the present and the future. We urged them to look again at what it means to be in the aftermath – legally, politically, experientially.

At the same time, the call also challenged authors to address these prompts via the particular lens of art. We asked for fresh and original takes on the resonances of art and law as they move alongside, through, and against one another in different aftermath contexts. Drawing from recent literatures on law, art and the visual,^[15] we invited contributors to think about not just the representational qualities of the artwork, but also its affective and material affordances – that which Desmond Manderson terms its “living presence”^[16] – and to (re-)consider art’s possibilities for embodiment and attentiveness, intervention and engagement, critique and reimagining. The essays gathered here respond to these cues in distinct ways, referencing a range of artistic objects and media, and moving across various legal, political and critical aftermaths.

The section opens with Eliza Garnsey’s essay, which takes a strong stance regarding the potential of artistic representation to be a form of political representation. Focusing on Australia’s immigration system, Garnsey contends that – in the absence of state protection or recognition – it is possible to know and do politics, and to participate in legal regimes, in different ways. She uses the photographic works and film that make up Hoda Afshar’s Remain (2018) as an example of this form of “artistic representation.” Even though the detention centre at the heart of the film, Manus Island, is now closed, we read Remain’s call to witness and Garnsey’s call to conscience as being opposed to the idea of an aftermath that is static or temporally bounded. Rather, as Garnsey argues, Remain enables us to see the ongoing aftermath of policies of harm caused by an inhumane system.

With some similarities to Garnsey’s approach, but shifting the focus from representation to the power of affect and a question of justice, Clotilde Pégorier and Lars Waldorf argue that cinema can be an “articulation of affective justice.” Focusing on Abderrahmane Sissako’s Bamako (2006), Pégorier and Waldorf examine the film’s staging of a fictional trial in a courtyard in Mali, where the people of Africa sue the IMF and the World Bank. The aftermath here is again political, but also financial – a response to the policies of structural adjustment imposed on the South by international financial institutions. Reading this “improbable” trial – set in the realm of everyday life – enables Pégorier and Waldorf to synthesise an approach to “affective justice,” which they understand as other embodied, creative ways of re-imagining legal potential. As the authors recognise, the affect displayed in the film is one of “dis-affect” – of boredom, anger and distress. Yet in thematising the silencing that legal form can produce, and providing creative ways for testimony to be heard – both within the construct of the trial within the film, and therefore through the medium of film itself – the trial nonetheless “provides a space for the disaffected to affectively claim justice.”

Whilst Pégorier and Waldorf reflect on how Bamako relies on an unconventional take on a form and institution of law – the tribunal – Connal Parsley’s essay offers insights into the way contemporary art is taking up and producing legal forms through the relations and participatory impulses of a new wave of “contract art” in gallery exhibitions. In particular, he examines two works in detail: Adrian Piper’s The Probable Trust Registry (2013–17) and A Constructed World’s The Social Contract (2013). Parsley points out how the legal turn in contemporary art, as enacted by these works, not only fits into the current concerns of art, such as relations, participation and the dematerialisation of art objects, but also matches the concerns of contemporary jurisprudence. Parsley contends that in our post-positivist understanding of law, these artworks enable us to let the subject of law – who has been historically positioned outside of law – to be brought back into the fold. Such artworks that produce legal forms are, in effect, enabling law to be lived and experienced again – a revival or “re-growth” that Parsley terms “material jurisprudence.”

Living, experiencing, and returning – these are also concurrent themes that permeate Paul Gough’s elegiac and descriptive walk-through of some of his photographic and frottage artworks. Moving across locations from the former West Germany to other sites of battle and occupation, Gough describes his work as a “provocation”: his aim is for a conversation to arise through and in the gaps between the reproductions of his works. Gough’s work shows us how law lingers in the cracks and decay of de-militarised land, and how art can refract places, spaces and geopolitical encounters. Even though photography is a condensation of “what has already been,” Gough’s approach to capturing the traces and imprints of material leftovers means his photographs and their accompanying texts, printed together for the first time here, now create refracted mixed-medium aftermath-objects which hum and hold on to their liminality between the past and present.

The contributions in this special focus section revolve around key understandings about the forms, spaces, affects and temporality of the practices of law and the practices of art. Moving from the mirage of an immigration visa, through the pre-enactments of the cinematic tribunal, to the contract that is created through being part of an artwork – legal form is shown to have resonant power outside (legal) institutional terrain. In addition, critical questions of outside, inside, borders, adjacencies and the necessarily constructed spaces of our contractual relations are revealed to permeate the literal spaces and materials of the official and the everyday – here, a typed form and a pen give way to the waving of the washing line. At the same time, our contributors abandon us to the wilds, moving the location of the aftermath to an island jungle, to the neighbourhood courtyard, to the art gallery, to an empty military barracks and the abandoned edgelands of the highway. They suggest, moreover, that to experience the affect of the aftermath is to wait, to be bored, to be empty, to be curious, to be interrupted, to be annoyed, to be angry, to be distressed, to be purposeful and to be reflective.

Doing the work of art and the work of law, or at least being their spectator and their scholar, therefore necessarily means an enfolding of techniques: in these essays, it is a practice of patience, it is going for a walk, it is in the signing of a name, it is expressed through talking and not talking, it is in the kick of an unborn baby, and it is in the captured stillness within a photograph. It emerges that the aftermath is ultimately an address and a relation: to time, and to others, anew. And so, the temporality of the aftermath is textured and disjointed, there is no linearity that emerges out of these papers, only circularity and return. Parsley does show us how re-growth might poke through the mown-down furrows of post-positivist legal thought, but the other contributions are more ambivalent. For Gough, photography is the capture and distillation of the past, whilst Garnsey quotes Afshar on Remain’s “brute circularity – the cycle of death, trauma, boredom, anticipation – […] that resists our understanding.”^[17] Pégorier and Waldorf convey how Bamako attempts to actualise the “here and now” of theatre through film, but emphasise the way the narrative time is constantly interrupted and displaced – it does not flow, it ends abruptly and nobody moves, or moves on.

In sum, these essays collectively suggest, as some of them individually do, a sense of the aftermath as a site of tension and contestation – between rupture and continuity, closure and persistence, renewal and stagnation. Throughout, we get a feel for the aftermath as unforeclosed experience, for its arc-less ongoingness. We also get a sense of plurality – of the means, media and meanings of art, and of the plural spaces and ways in which law is felt and brought into being. In two of the essays, legal forms are explicitly called upon to do work for art, which leads to a frisson made up of novelty, of authority, and of de-familiarisation. In the other two, law’s absence has a tangibility – law lingers on. Thus, one of the impressions made cumulatively by the contributions, perhaps more implicitly than explicitly, is the way law percolates through the time/space of the aftermath, however recurrent and inchoate. Alongside this, it is art’s ‘messiness’, its interpretive openness and non-linearity, its loose ends and abstractions, which emerges as an apt fit for the condition of aftermath as irresolvable, incongruous experience.