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Introduction
The reflexive game of cultural production invites lawyers and the common hero to use tactics to influence and disrupt the competition to control meaning which underpins the force of law. Legal professionals and ordinary people can interrupt the reflexive structure of the game which perpetuates patterns of cultural production and inequality but only to the extent that they can interpret texts and perform subversive acts to intervene in the production of meaning. This essay explores the regulation of unlawful graffiti and reveals that tactics or other techniques of gamesmanship may not be adequate to substantively reform the rules of this contest. This is because the reflexive relationship between law and society reinforces and reproduces dominant norms created by enclaves of privilege. While de Certeau reveals that the common hero may use oppositional practices and maneuvers to resist the dominant structures of power, Bourdieu, Foucault, and Derrida overlook the power of every day in facilitating social and cultural change. This essay examines the distinction between unlawful graffiti and street art to illustrate how the law has been amended in response to shifting social values and perceptions. Accordingly, it is not overly optimistic to assume that lawyers and the common hero can use tactics to interrupt the game of cultural production, however, these techniques may not be sufficient to facilitate fundamental changes to the reflexive structure of the game.
(i) The force of law and Pierre Bourdieu
The regularising and universalizing effects of law and legal norms may reinforce and perpetuate dominant social standards and culture (Bourdieu, p. 846). From my perspective, the reflexive relationship between law and society reveals that while law controls the social field, society also shapes the effectiveness of the law. In my view, the standard metaphor of the force of law assumes that law has authority and power by virtue of being law and because it is legitimate to enforce the law by imposing coercive sanctions. However, this standard meaning problematically forgets the reflexivity between law and society by overlooking how law functions as an instrument of society. In particular, this formalistic approach fails to recognize that law has force because it is an implement of the enclaves of privilege which possess social and economic power. From my interpretation, Bourdieu demonstrates that law is not merely a product of social relations, but rather, law manifests its own social field. Consequently, the juridical field is a discrete social field that functions relatively autonomously in competition with other social fields (Bourdieu, p. 814). In my view, Bourdieu reveals that the juridical fields relative independence presents the solution to the problematic pattern of dominant norms and culture being reproduced and reinforced by the structures of privilege. As law can be considered a function of society, lawyers may use tactics to interpret and influence the meaning of legal and social rules.
Bourdieu states that the juridical field is the site of a competition for the monopoly of the right to determine the law (Bourdieu, p. 817) which indicates, in my understanding, that legal meaning is decided by figures within the legal profession who possess the exclusive privilege to interpret and apply the law. Inequality can be observed within the juridical field as the legal profession manifests its hierarchical system by positioning judges at the apex of the hierarchy. In my view, this arrangement of control and authority within the legal profession provides insights into how power organizes itself in other social fields and the role that law performs in reproducing enclaves of privilege within society. In my opinion, the division of juridical labor (Bourdieu, p. 817) mirrors existing groups of privilege and its exclusion of unprivileged groups within society, and this may reflect the division between which groups get to determine the difference between street art and unlawful graffiti. Specific members within the legal profession, being judges, are the ultimate arbiters of juridical meaning. In the context of graffiti-related offenses, the court through the presiding judge may decide, for instance, whether the person has successfully proven that they had a reasonable excuse in intentionally marking any premises (section 4(1) of the Graffiti Control Act 2008 (NSW) ( Graffiti Act )). Lawyers or judges may use techniques such as interpretation to influence the dominant rules of the game of cultural production in artistic contexts. Although it is an offense for a person under the age of 18 years to possess a spray paint can in a public place (section 8B(1)), it is a defense if the person possessed the can for a defined lawful purpose (section 8B(2)(a)). Under section 8B(3)(b), a defined lawful purpose includes any artistic activity. Through presenting a case for their client on what satisfies the meaning of artistic activity, it can be argued that the lawyer is using tactics to affect the dominant rules of the game to control meaning by offering new interpretations of what constitutes art. In my opinion, judges could also interpret the provisions differently and may overturn their own precedent or the precedent of a lower court in response to changing societal values such as an increasing appreciation for spontaneous acts of creative expression.
As the juridical field is based on symbolic exclusion because only certain groups are permitted to practice law, the legal profession may be seen as another enclave of privilege. From my perspective, lawyers can be viewed as agents in the reproduction of privilege because the tasks of interpreting the law and assigning meaning to legal concepts is monopolized by the legal profession. It can be argued that the concentration of authority in the legal profession excludes laypersons from contributing to legal meaning (Bourdieu, p. 835). Analogously, the dominant opinion of the distinction between street art and unlawful graffiti perpetuates within society and the views of unprivileged groups is excluded, resulting in inequality in cultural production. Bourdieu strengthens my view that lawyers are able to manipulate language and control the production of meaning during the process of interpreting the law. In my opinion, lawyers are able to disrupt the coercive force of law and interrupt the dominant rules of the game of cultural production by bringing different biases to the production of meaning. From my understanding, Bourdieu observes lawyers as agents who use unconscious habits and belief systems as instruments in the process of producing meaning. Accordingly, this supports my view that by challenging, questioning, and interacting with legal meaning, lawyers are competing with the regimes of privilege from which rules and regulations emerge. Although lawyers may unintentionally perpetuate inequalities that exist in society because they are agents of the enclaves of privilege that maintain the dominant view, once lawyers become alert that they can influence the production of legal meaning, they may use tactics to interrupt the processes which perpetuate inequality. In my opinion, Bourdieus theory is persuasive in understanding how legal professionals can deploy tactics to disrupt the competition to control meaning which perpetuates cultural production and inequality.
(ii) The force of law and Jaques Derrida
Derrida similarly analyses legal language, practice, and discourse, allowing us to examine how certain enclaves have privileges to interpret the meaning of language and perpetuate patterns of cultural production and inequality. From my perspective, Derridas writing reflects the instability and mobility of texts such as meaning, language, institutions, and power and its discourses. From my understanding, Derridas theory of deconstruction describes the continuing process of questioning, interrupting, and displacing the foundations of texts and existing patterns of understanding. In my view, Derridas work provides us with an opportunity to analyze whether the dominant rules of the game of cultural production can be interrupted and changed because the recording of regulations and norms in writing encapsulates the contest to control meaning and reveals the dominant author of meaning. Derrida observes that all texts and utterances proclaim their own meaning or truth, representing only one view amongst many. As a result, these texts become unstable because there is competition between alternative views, revealing that there is no singular meaning or truth, only constructed meanings. In my opinion, it is not unreasonably optimistic to assume that lawyers and the anonymous hero can deploy tactics or other techniques of gamesmanship to interrupt the competition to control meaning. This is because existing patterns of cultural production and understanding are perpetually subjected to these processes of interruption, interrogation, and displacement. From my perspective, this process of deconstruction allows us to appreciate that all meaning is contingent on the relevant social context and author. Importantly, the context and author are the products of social contests and their status within the relevant cultural field. Consequently, translations are always contextual and in my view, this is emphasized in the context of art because what is considered street art or unlawful graffiti may depend on the society in which the markings appear.
Derrida challenges the standard metaphor of the force of law which credulously assumes the legitimacy of the laws coercive authority. Law is perceived to have authority because the mystical foundation of law is its assertion to be the perfect translation of abstract concepts (Derrida, p. 943). From my understanding, deconstruction informs us of the error that arises during the process of translating ideals into legal language because alternative perspectives are omitted. In the context of the regulation of graffiti, dominant beliefs about what constitutes street art may be perpetuated while alternative views about the distinction between street art and unlawful graffiti are excluded. My understanding of Derridas writing, reveals that the process of translating ideals into text is flawed, resulting in a gap or difference between the ideal and its textual expression. In my opinion, this suggests that the way we understand what is street art or not is unstable and continuously developing. Accordingly, from my perspective, deconstruction demonstrates that lawyers and ordinary people can contribute to the reproduction of meaning.
Derridas idea of deconstruction confronts institutional hierarchies by emphasizing the contingency of dominant texts such as law. Deconstruction is pertinent to legal thinking because it can assist lawyers and the common hero in subverting the privileges and inequalities which are perpetuated by law. The dominant patterns of thinking which exist within the cultural field lead to the assumption that meaning is settled. However, in my view, Derrida challenges us to observe that there are opposing perspectives. From my understanding, the task of lawyers and the common hero is to recognize themselves as agents in the process of translation and to preclude the dominant structures from exerting themselves in this process. This requires continuing vigilance by the common hero, however, in my opinion, Derrida does not provide a practical solution for substantive change. Nevertheless, deconstruction alerts us to the way legal practice and discourse control meaning and silences marginal voices. Accordingly, the process of deconstruction invites unheard voices to contribute to the discussion about the meaning of certain ideals and concepts. Relevantly, it allows the anonymous hero to convey their understanding and perception of what constitutes art.
Derrida was concerned that the enclaves of privilege within society interpreted and imposed meaning on universal concepts such as inequality. Under the Graffiti Act, a person under 18 years may possess a spray paint can for a defined lawful purpose such as any artistic activity. It may be argued that what constitutes art is determined by privileged groups such as judges who have the power to impose meaning. As a result, the dominant idea of art and culture excludes the views of subjugated groups who may have different ideas of what constitutes an artistic activity. From my perspective, society must look beyond Derrida who states that meaning is controlled by the dominant culture and that the chances for resistance are limited because of the endless cycle of new regimes of hierarchy. This is because there are opportunities for freedom when the ordinary person interprets products of culture such as street art according to their own perceptions and beliefs. In my opinion, Derrida overlooks every day and forgets that in the process of deconstruction, lawyers and anonymous heroes have a choice to impose their own meaning. Therefore, it is not overly idealistic to assume that lawyers and the ordinary person can apply techniques to interrupt the reflexive structure of the game which perpetuates cultural production and inequality.
(iii) The force of law and Michel Foucault
Foucaults analysis of knowledge and power supports the examination of the role of law in responding to social phenomena and challenges society to reconsider the way new techniques of power supplement law. In my view, Foucault invites us to explore the way law facilitates new technologies and how technological innovations have changed the cultural experience. In my opinion, as law can be viewed as a discourse produced by society, it does not encompass all views. Instead, it advocates the dominant views of culture and this perpetuates inequalities. The modern surveillance system may be understood as a contemporary version of Benthams Panopticon (Foucault, p. 200). Accordingly, surveillance is an insidious technique of power that emerges from society itself and controls the human experience. Similar to the panopticon which induces in the prisoner a state of permanent visibility (Foucault, p. 201), it can be argued that ordinary people perpetually self-regulate their behavior and act in accordance with social norms because they believe that they are continuously being surveilled. This reinforces and perpetuates dominant social standards, causing the everyday person to internalize regulation. From my perspective, this misleads us to believe that the reflexive structure of the game cannot be influenced and that patterns of cultural production and inequality cannot be interrupted. It is not overly optimistic to assume lawyers and the common hero can deploy tactics to interrupt the competition of cultural production because the relevance of the law may be diminished by regulatory techniques which supplement the law. In Sydney, compliance with graffiti laws is at least partially monitored and managed by surveillance cameras. As a result, members of society may comply with the dominant rules and regulations perpetuated by the force of law because they are conscious of being surveilled. However, the common hero may subvert the law by identifying places where surveillance cameras are inoperative and subsequently engage in unlawful graffiti.
Foucaults study of knowledge and power challenges the significance of the force of law.
In accordance with Foucaults end of law thesis, it could be argued that law is merely a reduction of the two categories, where knowledge is produced through language or discourse and power is produced through discipline and governmentality. Surveillance is an example of governmentality where group behavior may be regulated without the existence of a law. However, in my view, this new technique of power does not replace the law but transforms its function and significance. From my perspective, the law is not irrelevant because it is necessary to support these new forms of disciplinary power. Analogous to the asymmetrical surveillance of prisoners in the panopticon, present-day disciplinary power similarly controls social deviance by monitoring behavior. In my opinion, the asymmetry of surveillance is exemplified in modern society because the ordinary person could be continuously being observed but are unaware of it. Accordingly, the ordinary person internalizes control by self-regulating and altering their behavior. The effectiveness of this disciplinary power depends on whether it removes the delinquent behaviors within society by eliminating future breaches of the legislation. Similar to Foucaults analysis of the change in punishment and discipline over time, the Graffiti Act illustrates that punishment for committing an offense relating to graffiti is an administrative practice where the offender is reformed to minimize the possibility of recidivism. Under s 9H of the Graffiti Act, an offender must participate in a graffiti prevention program, the purpose of which is to prevent reoffending. This reflects a change in societys attitude because society is taking responsibility for the offender. The surveillance of graffiti suggests that this disciplinary power may not be successful because graffiti still occurs in society, even in public spaces where surveillance technology is operating. Nevertheless, it can be argued that these new forms of power result in more effective graffiti laws because individuals self-regulate in the belief that they are being surveilled.
Foucault alerts us to the problem that dominant discourses may conceal alternative or subjugated knowledge. Street art can be perceived as a way of inviting marginalized individuals into the cultural field to contribute to the meaning of what is street art and what is unlawful graffiti. It can be argued that the regulation of unlawful graffiti and the relaxation of bureaucratic processes under the Sydney Local Environmental Plan Amendment (Street Art) 2017 may not leave adequate space for spontaneous expressions of art. Although the removal of several administrative steps simplified the process to obtain consent to display street art, the Graffiti Act was not amended, leaving insufficient space for society to determine what constitutes art. While the common hero may use oppositional tactics such as vandalism to subvert the graffiti laws, these gaps or opportunities are not sufficient to incite substantive revision of the rules of the game. Nevertheless, it can be argued that the existence of restrictive graffiti laws, which may be perceived to perpetuate inequality, provides society with a discourse that explicitly articulates the rule. Accordingly, society understands the law it is subject to and has a clear basis for resistance against the rule. The common hero may interrupt the competition for meaning by campaigning for reform. In my opinion, although cultural production is automated which causes the endless loop of regularisation of dominant norms, the subversive interventions of the common hero are also automated and this means that tactics can be deployed to interrupt the reflexive structure of the game.
(iv) The force of law and Michel de Certeau
As the ordinary person can make interventions against dominant norms in their daily life, it is not unrealistic to assume that lawyers and the common hero can use subversive tactics to interrupt the competition to control meaning which underpins the force of law and which perpetuates patterns of cultural production and inequality. From my understanding, the game of cultural production is the competition to control meaning between those who produce culture and those who use culture. Every day people are marginalized by the reflexive structure of the game because they do not embody an enclave of privilege. Although Bourdieu, Derrida, and Foucault recognized that the inextricable reflexive relationship between law and society produced a complex loop that offered no way of escape, de Certeau, in my opinion, recognizes that the anonymous hero can perform acts of resistance or disruption in everyday life. From my understanding, de Certeau expounds that the rules of the game are the strategies that the structures of power use to achieve their objectives, and tactics are the actions exercised to resist the structure of the game (de Certeau, p. 6). The regulation of graffiti under the Graffiti Act is an institutional strategy imposed by the state to establish acceptable standards of behavior. In my view, de Certeau allows us to observe that the common hero may exercise resistance against the reflexive structure of the game by construing meaning according to their own beliefs within this framework of strategies constructed by the dominant producers of culture. Every day provides a context for observing the spontaneous opportunities and ritualistic encounters which allow the common hero to interpret and reflect on patterns of cultural production. From my perspective, de Certeau illustrates that the potential for change lies in the random acts of interruption by the common hero who has moments to reflect on the meaning of the system and its laws. This is because the ordinary hero has an opportunity to interpret and resist the dominant structures of cultural production and inequality when they encounter rules and regulations. In my view, this allows the everyday person to determine whether or not they will obey that particular rule.
From my understanding, de Certeau was concerned about the perpetuation and imposition of patterns of cultural production on the lives of ordinary people. However, de Certeau informs us that the common hero can overcome the enclaves of privilege because the ordinary person can manipulate their social setting through their everyday maneuvers. In contrast to Bourdieu and Foucaults idea of regularisation and naturalization where the process of cultural production is automated, de Certeau recognizes that it is feasible to interrupt this process of shaping meaning. The use of subversive tactics by the common hero to resist the ruling structures of power occurs subtly. By deducing their own meaning after reading texts, the anonymous hero is engaged in a form of ongoing resistance which may be internal and silent. In this moment of interaction with the text, there is a gap for the ordinary person to interpret the text in their own way and this represents an opportunity for resistance. The distinction between unlawful graffiti and street art may reflect an example of moving in a gap to change the perceived rules of the game. The intentional marking of premises without consent may constitute vandalism, or it may reflect a gap in the system where there is a chance to challenge the dominant regime. In the moment that the common hero decides their next action, they are provided with an opportunity to resist the graffiti laws. Therefore, these opportunistic acts of textual interpretation allow the common hero to interrupt the reflexive structure of the game which perpetuates patterns of cultural production and inequality.
The regulation of graffiti presents an opportunity for us to observe how the competition between law and society is dynamic and continuing. Street art is a phenomenon that invites unprivileged groups to challenge the dominant assumption of what art and culture mean, thereby placing these marginalized voices in competition with the structures of power. Although there are strict anti-graffiti laws in NSW, there are certain exemptions for street art under the Sydney Local Environmental Plan Amendment (Street Art) 2017. This raises the question of which groups in society get to determine what is considered street art as distinct from unlawful graffiti. The 2017 amendment reclassified street art as exempt development which meant that some bureaucratic steps required to obtain consent were removed. In my view, this amendment facilitates the production of street art and illustrates the way the government has encountered the issue of unlawful graffiti in public spaces. Importantly, it demonstrates how the government addressed the issue about the distinction between street art and unlawful graffiti. In my opinion, this change highlights a relaxation of the regulatory regime by the state. As a result of street art gaining increasing acceptance in the social domain, the law responded by altering the rules, illustrating the reflexivity between law and society. It illustrates that the government responded to the wishes of society by recognizing the social value of street art, thereby revealing that society can force legal changes. Importantly, the Graffiti Act remains unchanged and the requirement of consent has not been removed, meaning that the spontaneity of street art is still restricted by law. Nevertheless, from my perspective, having these gaps in the law that leave space for oppositional practices is critical because it is in these moments where there is potential for confrontation between the common hero and the structures of privilege and authority. Accordingly, when lawyers or the common hero encounter and interact with texts such as laws, there are opportunities and gaps for resisting and interrupting the dominant rules of the game.
Conclusion
An examination of the production of culture in everyday life facilitates an understanding of how lawyers and the common hero can interpret, challenge, and evaluate dominant norms, and question the legitimacy of law. Although Bourdieu, Derrida, and Foucault highlight the normalizing and universalizing effects of law which may lead to the reproduction of inequality, de Certeau reveals that the ordinary person can use tactics to subvert the dominant rules. Ultimately, the regulation of unlawful graffiti demonstrates that the law responds to changing social perceptions and may create new gaps in the law for oppositional practices. However, this may not be sufficient to incite significant change to the reflexive structure of the game.
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